Agreement to our legal terms

These Terms of Use (the “Terms”) constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you” or “Customer”) and RevOptimal, LLC (“RevOptimal,” “company,” “we,” “us” or “our”), concerning your access to and use of www.revoptimal.com as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto and products and services provided by us, as defined below (collectively the “Services”). These Terms shall also govern our provision of and your use and access to RevOptimal’s proprietary audience intelligence platform (the “Platform”, included in the definition of “Services”) unless a specific agreement with respect to your access to or use of the Platform or other services have been entered into by and between us. You and RevOptimal may be collectively referred to as “Parties” and individually a “Party.”

These Terms incorporate by reference our Privacy Policy, our Acceptable Use Policy, and, if applicable, any Order we may enter into with you (hereinafter collectively referred to as the “Agreement”). Any ambiguity, conflict or inconsistency shall be resolved according to the following order of precedence: these Terms or the applicable written agreement, the Order, Acceptable Use Policy, Privacy Policy, and other supplemental terms and conditions.

You agree that by accessing the Services, you represent that you have read, understood, and agreed to be bound by all of these Terms, and that you have the authority to enter into this Agreement on behalf of the company or organization that you represent. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.

Supplemental terms and conditions or documents that may be posted on the Services from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms from time to time. We will alert you about any changes by updating the "Last updated" date of these Terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms by your continued use of the Services after the date such revised Terms are posted.

1. Access and use of our platform

   1. The Platform. RevOptimal’s Platform consists of our audience intelligence platform to which Customer subscribes by purchasing a subscription online or executing an Order form (each an “Order”). Subject to the applicable Order and these Terms, RevOptimal hereby grants to Customer the right to access and use the Platform and Product Data in accordance with these Terms and the Documentation for the duration of the Order Term for the internal business use of Customer, only as provided in these Terms and only in accordance with any technical documentation that we may provide (the “Documentation”).
   2. Third Party Applications. “Third-Party Applications” means computer software programs and other technology that are provided or made available to Customer or to Customer’s authorized end-users (“Authorized Users”) or Sublicensees (as defined below) by third parties, including those with which the Service may interoperate, including, for example, Customer’s CRM, marketing automation software, or sales enablement software, if any. Customer may be able to use the Platform by establishing integrations or other connections to one or more Third-Party Applications (each, a “Connection”). By implementing a Connection to a Third-Party Application, Customer hereby grants to RevOptimal the right, and is expressly instructing RevOptimal, to access and interoperate with that Third-Party Application during the Order Term in order to provide and support the Service. Customer is responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Third-Party Applications and associated data (collectively, “Third-Party Terms”).
   3. Query Data. Through Customer’s configuration and use of Connections and the Platform, Customer has control over the types and amounts of data that it submits for Processing to the Service (collectively, “Query Data”). By submitting Query Data to the Platform, Customer hereby grants to RevOptimal the right, and is expressly instructing RevOptimal, to process Query Data during the Order Term in order to provide and support the service of the Platform and as otherwise provided in these Terms. As between the parties, Customer owns all rights, title and interest in and to Customer’s environment and Query Data.
   4. Service Data. Notwithstanding anything to the contrary, RevOptimal may collect and use query logs and any data relating to the operation, support and/or about Customer’s use of the Services (“Service Data”). RevOptimal may not share any Service Data except (i) in accordance with Section 11 (Confidentiality) of these Terms, or (ii) to the extent the Service Data is aggregated and anonymized such that Customer and its Authorized Users or Sublicensees cannot be identified.
   5. Authorized Uses. Customer shall not access or use the Product Data for the benefit of or on behalf of any person or entity except Customer. Subject to Customer’s compliance with all Applicable Laws, Customer may use the Platform to: (i) view the Product Data; (ii) communicate with any individuals contained within Product Data; and (iii) identify prospective opportunities, research Customer’s existing customers and prospects, and otherwise analyze the Product Data in a manner relating to Customer’s sales, marketing, and business development activities. Customer shall not permit anyone who is not an Authorized User to access or use the Platform, including any Product Data or any Authorized User login credentials. Except as expressly permitted in an Order Form, Customer shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Product Data or any part of the Platform to any third party. Except as expressly permitted in an Order, Customer shall not incorporate any portion of the Platform or Product Data into Customer’s own products or services. Upon expiration or termination of this Agreement for any reason, Customer shall cease accessing the Platform and shall cease using the Product Data in any way. Notwithstanding the foregoing, where Customer has, through using the Product Data in a manner permissible under these Terms, received responsive communication from a contacted individual, Customer shall not be required to delete such Product Data upon expiration or termination hereof, and may continue to use such information in a manner otherwise consistent with these Terms. Customer is solely responsible for any communications between Customer or any Authorized User and any individual contained within Product Data. As between the parties, RevOptimal owns all rights, title and interest in and to the Platform, Product Data, Service Data, Documentation and Feedback, including in each case all associated Intellectual Property Rights.
   6. Permitted Sublicensees. Customer may, subject to additional payment terms agreed between the Parties from time to time, sublicense its rights to use the Platform to its Authorized Users and certain third parties pre-approved by us in writing as sublicensee (“Sublicensees”). Customer is responsible for all acts or omissions of its Authorized Users and Sublicensees, as applicable, with respect to the use of the Platform. Customer shall ensure that each Authorized User and Sublicensee complies with these Terms. Customer shall be responsible for all fees and charges incurred by its Authorized Users and Sublicensees, as applicable, in connection with the use of the Platform.
   7. Restrictions. Customer agrees to comply with RevOptimal’s Acceptable Use Policy available at https://revoptimal.com/acceptable-use (“AUP”). In addition to the restrictions contained in the AUP, Customer shall not, directly or indirectly: (a) attempt to gain unauthorized access to any part of the Platform or its related systems or networks; (b) except as expressly provided for in an Order, resell, distribute or otherwise make available any Service to any third party, including as part of a managed services offering; (c) except to the extent limited by Applicable Law, reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Platform or access or use the Platform or Documentation in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (d) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” the Platform or RevOptimal databases or otherwise gather data owned or stored by RevOptimal, or reproduce or circumvent the navigational structure or presentation of the Platform; or (e) override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of the Platform.
   8. Security. Customer is responsible for maintaining the confidentiality and security of your access passwords and other credentials for accessing the Platform (collectively, “Customer Credentials”) and all activities that occur under your Customer Credentials. You may not disclose your Customer Credentials to any third party except as expressly authorized in writing by us. You agree to immediately notify us of any unauthorized use of your Customer Credentials or any other breach of security. You permit us to access your account in order to respond to your requests for technical support.
   9. Violations. We reserve the right to investigate potential violations of the above provisions of this Section 1. In the event RevOptimal reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 9 below), RevOptimal will have the right to suspend Authorized Users or Sublicensees suspected of the violation from accessing the Service for so long as is reasonably necessary to address the potential violation. Except where RevOptimal reasonably believes the violations are willful, or in urgent or emergency situations, RevOptimal will notify Customer of any such suspension in advance (each, a “Suspension Notice”) and work with Customer in good faith to resolve the potential violation. For clarity, RevOptimal reserves the right, but does not assume any obligation to Customer (except with respect to the Suspension Notice), to take any of the above-described actions.
   10. Suspension. Without limiting the foregoing, RevOptimal, without any responsibility or liability to Customer or any third party, may suspend or limit Customer’s access to or use of the Platform or Services if:
       1. Customer’s account is more than thirty (30) days past due;
       2. Customer’s use of the Platform or Services results in (or is reasonably likely to result in) damage to or material degradation of the Platform or Services which interferes with our ability to provide access to the Platform or Services to other customers; provided that in the case of this Subsection (i): (a) we shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, we shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) we shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remedies the issue within thirty (30) days of receipt of such notice;
       3. Such suspension is necessary for maintenance of the Platform or Services; or
       4. There is any access error which needs to be remedied or there is any error in the servers or local connections of the Customer.

2. Customer Responsibilities

   1. Customer Responsibilities. Customer represents, covenants, and warrants that Customer will:
      1. use the Platform or any part of the Services only in compliance with the Documentation, RevOptimal’s standard published policies then in effect and all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws);
      2. not use the Platform or any part of the Services in a manner that violates any third-party intellectual property, contractual or other proprietary rights;
      3. cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access, and documentation that is reasonably necessary to enable us to provide Platform or any part of the Services, and as otherwise requested by us, from time to time, and in a timely manner;
      4. be responsible for obtaining any consents, licenses, authorities, and permissions from other parties necessary for the Platform or any part of the Services to be provided in accordance with these Terms, at its cost, and for providing us with the necessary consents, licenses, authorities, and permissions;
      5. sublicense the Platform or any part of the Services only to permitted Sublicensees.
      6. grant the right to access the Service only to Authorized Users or Sublicensees of its organization to use the Platform or any part of the Services in accordance with these Terms; and
      7. not implement the Platform or any part of the Services or combine it with the services of another provider without obtaining our express written decryption authorization.
   2. Responsibility for Authorized Users. Customer acknowledges and agrees that:
      1. it is liable for all Sublicensees’ and Authorized Users’ use of the Platform or Services and compliance with these Terms;
      2. it shall retain control over each Authorized User’s and Sublicensee’s level of access to the Platform or Services at all times, and revoke and change such access, or level of access, at any time and for any reason, in which case that a person or entity will cease to be an Authorized User or Sublicensee, as applicable, or must have that different level of access, as the case may be; and
      3. any Authorized User’s and Sublicensee’s license to access the Platform or Services will terminate upon the termination of the Customer’s license to access the Platform or Services.
   3. Operating Environment. Customer shall be responsible for obtaining, maintaining and supporting any equipment, ancillary services and other operating environment needed by the Authorized Users or Sublicensees to connect to, access or otherwise use the Platform or Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Operating Environment”). Customer shall also be responsible for maintaining the security of the Operating Environment, Customer Credentials, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Operating Environment with or without Customer’s knowledge or consent in relation to the Platform or Services, including but not limited to uploading Customer Data (as defined below) onto the Service. We are not responsible for Authorized Users or Sublicensees inability to access or use the Platform or Services arising from any issue with the Operating Environment.

3. Intellectual Property Rights

   1. RevOptimal Intellectual Property. Customer acknowledges that all the Intellectual Property Rights, including but not limited to any patents, copyrights, trademarks, service marks, trade secrets or other proprietary rights in and to the Service (including the Platform) (collectively, “RevOptimal Intellectual Property”) are owned by and shall remain property of RevOptimal, RevOptimal’s licensors or suppliers. Subject to the foregoing, during the Order Term, RevOptimal grants Customer the limited, revocable right to access and use the Services and the data provided from the Services (including the Platform). Customer shall not: (i) exploit or use the Services except as expressly provided herein; (ii) modify or create derivative works of the Services or merge any software therein with other software; (iii) disassemble, decompile or otherwise reverse engineer the Services or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by law notwithstanding this prohibition; or (iv) modify, obscure or delete any proprietary rights notices included in or on the Services. Customer agrees to comply with our Acceptable Use Policy.
   2. Customer Intellectual Property. Customer retains all right, title, interest and responsibility in and to any and all content or data it uploads or transmits using the Services, including any data sourced via direct integrations with Customer’s tools using the Platform (collectively, “Customer Content”). RevOptimal and its licensors exclusively own all right, title and interest in and to all other content or data. Customer grants RevOptimal a worldwide, non-exclusive, irrevocable, transferable, sublicensable, royalty-free license to use, copy, modify (for formatting purposes only), transmit, publicly and digitally display and perform and distribute any Customer Content, including Customer’s logo, trademarks and/or service marks (“Customer Intellectual Property”), that Customer provides to RevOptimal or shares or transmits to the Platform. Such license shall also permit RevOptimal to use Customer Intellectual Property, Customer Content, and other information related to Customer’s use of the Services for the purposes of (i) conducting marketing activities and analyses, (ii) conducting statistical analyses; and (iii) maintaining or making improvements to the Platform or the Services.
   3. Online Submissions. By directly sending us any question, comment, suggestion, idea, feedback, or other information about the Services, or uploading any data in the Platform ("Submissions"), you agree to assign to us all Intellectual Property Rights in such Submission. You agree that we shall own this Submission and be entitled to its unrestricted use and dissemination for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You are solely responsible for your Submissions and you expressly agree to reimburse us for any and all losses that we may suffer because of your breach of (i) this section, (ii) any third party’s intellectual property rights, or (iii) applicable law.
   4. Publicity. Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that RevOptimal may include Customer’s name and logo in its lists of customers, its public website and other promotional materials.

4. User Presentations

   By using the Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Services through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Services for any illegal or unauthorized purpose; and (7) your use of the Services will not violate any applicable law or regulation.

   If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).

5. Payments

   You agree to pay all fees charged by RevOptimal for Customer’s use of our Services in accordance with these Terms and applicable Order(s) (collectively, “Fees”). Except as otherwise provided in an Order, all Fees must be paid in U.S. dollars and within thirty (30) days of invoice. Except in the event of a good faith dispute, if Customer fails to make payment when due, without limiting our other rights and remedies: (a) RevOptimal may charge interest on the past due amount at a rate of 1.5% per month or, if lower, the highest rate permitted under Applicable Law; (b) Customer shall reimburse us for all reasonable costs incurred by us in collecting any late payments or interest, including attorneys’ fees; and (c) if such failure continues, we may suspend Customer’s and its Authorized Users’ or Sublicensees’ access to the Platform until such amounts are paid in full. Customer must assert any dispute with regard to Fees in writing within ten (10) days of receipt of the invoice giving rise to the dispute. RevOptimal will not exercise its suspension or termination rights or apply interest on late Fees if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.

   If you place an order through our website, you agree to provide current, complete, and accurate purchase and account information for all purchases made via the Services. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We may change prices at any time.

   You agree to pay all charges at the prices then in effect for your purchases and any applicable fees, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.

   We reserve the right to refuse any order placed through the Services. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by unauthorized dealers, resellers, or distributors.

6. Taxes

   Customer shall be responsible for all sales, service, value-added, use, excise, consumption and any other taxes on amounts payable by Customer under the Orders and this Agreement (other than any taxes on RevOptimal’s income, revenues, gross receipts, personnel or assets). Without limiting the foregoing, if Customer is required to deduct or withhold any taxes under Applicable Laws outside the United States, Customer shall remit such taxes in accordance with those Applicable Laws and all Fees payable shall be increased so that RevOptimal receives an amount equal to the sum it would have received had no withholding or deduction been made.

7. Services Management

   We reserve the right, but not the obligation, to: (1) monitor the Services for violations of these Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Services.

8. Privacy

   We care about data privacy and security. By using the Services, you agree to be bound by our Privacy Policy posted on the Services, which is incorporated into these Terms. Please be advised the Services are hosted in the United States. If you access the Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Services, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.

   You agree to comply with Applicable Laws concerning the privacy and protection of Personal Data. You will be responsible for providing any notices required by Applicable Law to, and receiving any consents and authorizations required by Applicable Law from, persons whose Personal Data may be included in the Account Data, Query Data or Customer Credentials.

9. Term and Termination

   1. Term. These Terms shall commence on the earliest of the following dates: (i) the date Customer first accesses the Platform; (ii) the date Customer executes an Order; or (ii) the date Customer otherwise first agrees to these Terms (the “Effective Date”). The term of this Agreement will continue through the expiration or earlier termination of the last Order to be in effect (the “Order Term”). Except as otherwise set forth in an Order, each Order will automatically renew upon expiration for additional one-year periods, unless a Party gives the other Party written notice of its intent not to renew at least thirty (30) days prior to the expiration of an Order. Any renewals will be at RevOptimal’s then-current rates.
   2. Termination. We may terminate any Order upon written notice to Customer if Customer fails to pay any amount due under the Order, and such failure continues more than fifteen (15) days after RevOptimal’s delivery of written notice. In addition, either Party may terminate all Orders and this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach (if capable of cure) remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
   3. Effects of Termination. On expiration or termination of this Agreement for any reason:
      1. Customer must immediately stop using the Platform or Services;
      2. we may take any action necessary to disable or terminate Customer’s access to the Platform or Services;
      3. Customer shall return or delete all copies of RevOptimal’s software, Documentation, Product Data, any passwords or access codes, and any other RevOptimal Confidential Information in its possession, unless required by law or regulatory requirements to retain such information; and
      4. we may remove or delete all Customer Content within one (1) month.
   4. Termination Payment. Customer must, within five (5) business days of termination or expiry of an or Order or these Terms, pay to RevOptimal, all Fees incurred and/or owing under these Terms or the relevant Order, as applicable, up to and including the date of termination or expiry. To the extent permitted by law, and except where expressly stated in these Terms in Subsection (e) below, Customer will not be entitled to a refund of Fees that have already been billed or paid.
   5. Pro-Rated Refund. If an Order is terminated early by Customer for RevOptimal’s uncured material breach of this Agreement pursuant to Section 9(b): (a) Customer shall not be obligated to pay any additional amounts specified in the Order following the effective date of termination and (b) RevOptimal will refund to Customer a pro rata share of any unused amounts prepaid by Customer under the applicable Order for the Service on the basis of the remaining portion of the current Order Term (a “Pro-Rated Refund”). In all other cases, and regardless of whether Customer uses the Services at the levels reflected in the Orders or otherwise, Customer will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable.
   6. Survival. After this Agreement terminates, the terms of this Agreement that by their nature contemplate performance after termination shall survive and continue in full force and effect, including without limitation, accrued rights to payment, confidentiality obligations, privacy and data, effects of termination, warranty disclaimers, indemnity and limitations of liability.

10. Modifications and Interruptions

    Except as provided herein, we reserve the right to change, modify, or remove the contents of the Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Services. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.

    We may provide upgrades, modifications, patches, enhancements, or fixes to the Platform generally without additional charge (“Updates”), and such Updates will become part of the Platform and subject to these Terms; provided that we shall have no obligation to provide any such Updates; and provided that we shall not materially reduce the functionality of the Platform in the aggregate.

    We cannot guarantee that access to the Platform or the Services in general will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services.

11. Confidentiality

    1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
    2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
    3. Unauthorized Disclosure of Confidential Information. The Receiving Party hereby acknowledges that the unauthorized use or disclosure of any Confidential Information of the Disclosing Party may cause irreparable harm to Disclosing Party. Accordingly, the Receiving Party agrees that the Disclosing Party shall be entitled to seek equitable relief, including injunctive relief, in addition to all other remedies available at law for any threatened or actual breach of this Section or any threatened or actual unauthorized use or disclosure of Confidential Information. If the Receiving Party becomes aware of a threatened, suspected or actual breach of its confidentiality obligations set forth herein, the Receiving Party shall immediately (but in no event more than 24 hours from the time that it reasonably believes such a threatened, suspected or actual breach has occurred) so notify the Disclosing Party.
    4. Compelled Disclosure. Except as set forth above, the Receiving Party shall not voluntarily provide the Disclosing Party’s Confidential Information to any third party unless authorized in writing by the Disclosing Party. Notwithstanding the foregoing, unless expressly prohibited by law, if the Receiving Party is required by a court of competent jurisdiction (including by subpoena in a civil case) or regulatory authority to disclose the Disclosing Party’s Confidential Information, it shall: (i) immediately notify the Disclosing Party in writing upon receiving notice of such requirement; (ii) consult with the Disclosing Party regarding the Receiving Party’s response to any such request; (iii) cooperate with the Disclosing Party’s reasonable requests in connection with efforts by the Disclosing Party to intervene and/or quash or modify the legal order, demand, or request; and (iv) upon the Disclosing Party’s request, supply the Disclosing Party with a copy of the Receiving Party’s response (including a copy of the information it proposes to provide) prior to providing it to the requesting party.

12. Warranty and Disclaimer

    1. RevOptimal Assurance. We shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform and/or the Services in a manner which minimizes errors and interruptions in the Platform and/or Services and shall perform the Services in a professional and workmanlike manner. The Platform and/or the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by RevOptimal or by third-party providers, or because of other causes beyond our reasonable control, but we shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
    2. DISCLAIMER. THE SERVICES, INCLUDING THE PLATFORM AND PRODUCT DATA, ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES' CONTENT OR THE CONTENT OF ANY WEBSITES OR MOBILE APPLICATIONS LINKED TO THE SERVICES AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

13. Limitations of Liability

    1. EXCLUSIONS. IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. AGGREGATE LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH REVOPTIMAL AND EACH OF THE OTHER REVOPTIMAL PARTIES.
    3. Non-Excludable Liabilities. To the maximum extent permitted by law, our liability and the liability of our employees or agents for a breach of any warranty or liability which by law cannot be excluded, restricted or modified, or under any express warranty, is limited, at its option, to:
       1. the supplying of the Services again; or
       2. the payment of the cost of having the Services supplied again.

14. Indemnification

    1. Indemnification by RevOptimal. RevOptimal agrees to defend, indemnify and hold harmless Customer and its employees, contractors, agents, officers and directors (collectively, “Customer Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) to the extent arising out of or related to any legal claim, suit, action or proceeding (each, an “Action”) by a third party alleging use of the Services as permitted under this Agreement infringes such third party’s United States patent or copyright, or misappropriates such third party’s trade secrets (each, a “Customer Infringement Claim”). The foregoing obligations do not apply with respect to portions or components of the Platform and/or Services (a) not supplied by RevOptimal, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by RevOptimal, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the Platform and/or the Services is not strictly in accordance with these Terms. Furthermore, RevOptimal will have no obligation to indemnify Customer for a Customer Infringement Claim to the extent it arises from any of the following (collectively, “Customer-Controlled Matters”): (i) Customer’s own environment, including Connections to Third Party Applications; (ii) Account Data, Query Data or Customer Credentials (including activities conducted with Customer Credentials), subject to RevOptimal’s processing obligations under this Agreement; or (iii) use of the Platform and/or Services by Customer or an Authorized User in a manner that breaches an Order or these Terms.

       If the Services become, or in RevOptimal’s opinion is likely to become, the subject of a Customer Infringement Claim, RevOptimal may in its discretion and at its own expense: (a) obtain for Customer the right to continue using the Platform and/or the Services; (b) modify the Platform and/or the Services so that they no longer infringe or misappropriate; or (c) terminate these Terms and all Orders and issue a Pro-Rated Refund. THIS SECTION 14(A) STATE REVOPTIMAL’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.
    2. Indemnification by Customer. Customer agrees to defend, indemnify and hold harmless RevOptimal, its Affiliates and their employees, contractors, agents, officers and directors (collectively, “RevOptimal Indemnitees”), from and against any and all Losses arising out of or related to any Action by a third party arising out of or relating to Customer-Controlled Matters or (i) any actual or alleged misuse of the Services (including the Platform) by Customer, its Affiliates, agents or contractors; (ii) any actual or alleged infringement by Customer Content or Customer Intellectual Property of any intellectual property rights or any claim that any Customer Content or Customer Intellectual Property violates any rights of publicity or privacy of any third party; (iii) any material violation or alleged material violation of any laws or regulations by Customer; (iv) any negligent or willful misconduct of Customer its Affiliates, agents or contractors; (v) any breach by Customer of any representation, warranty, covenant, or obligation in this Agreement; (vi) any negligent or intentional act or omission committed by Customer, its Affiliates, agents or contractors, in connection with the performance of this Agreement, which act or omission gives rise to any claim for damages against Customer, RevOptimal and/or its parents, affiliates, employees or agents; or (vii) Customer’s violation of Applicable Law.
    3. Procedure. Customer Indemnitee or RevOptimal Indemnitee (each, an “Indemnitee”) seeking indemnification shall promptly notify the other Party (each, an “Indemnifying Party”), in writing of any Action for which it seeks indemnification under this Agreement and cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings at its own expense with counsel of its own choice. A Party’s failure to perform any obligations under this Section 14(c) will not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnitee’s written consent if such settlement shall require action or payment by the Indemnitee.

15. User Data

    We will maintain certain data that you transmit to the Services for the purpose of managing the performance of the Services, as well as data relating to your use of the Services. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.

16. Electronic Communications, Transactions and Signatures

    Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing. 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 BY US OR VIA THE SERVICES. 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 record

17. Governing Law

    These Terms shall be governed by and defined following the laws of the State of Delaware without regard to the principles of conflicts of law. Unless otherwise elected by RevOptimal, you irrevocably consent that the courts of New York shall have exclusive jurisdiction to resolve any dispute which may arise in connection with these Terms.

18. Dispute Resolution

    1. Binding Arbitration. If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the American Arbitration Association (AAA) website. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in New York. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

       If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in United States, New York, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms.

       In no event shall any Dispute brought by either Party related in any way to the Services be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

    2. Restrictions. The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
    3. Exceptions to Arbitration The Parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

19. Miscellaneous

    1. Assignment. You may not assign any of its rights or delegate any of its obligations under this Agreement without our prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. We may assign this Agreement or any of our rights under this Agreement to an Affiliate, or any third party with or without your written consent. This Agreement shall be binding upon the successors, legal representatives and permitted assigns of the Parties. “Affiliate” shall mean an entity owned by, controlling, controlled by, or under common control with, directly or indirectly, one of the Parties.
    2. Entire Agreement. These Terms, any Order(s), and any policies or operating rules posted by us on the Services or in respect to the Services constitute the entire agreement and understanding between you and us.
    3. Severability. If any provision or part of a provision of these Legal Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
    4. Independent Contractor. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or use of the Services.
    5. Modification or Waiver. Except as set forth in this provision, no amendment, modification, waiver of, failure to enforce strict performance of, delay or omission in the exercise of any rights hereunder, or consent with respect to, any provision of this Agreement shall be effective unless signed by an authorized representative for RevOptimal. No pre-printed information on invoices, purchase orders or shrink-wrap, click-wrap, browse-wrap or similar agreements from Customer shall have any force or effect between the Parties. A delay or omission by RevOptimal to exercise any right or power under this Agreement shall not be construed to be a waiver of that right or power.
    6. Notice. All notices under this Agreement will be in writing to the contact information set forth in the applicable Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
    7. No Third-Party Beneficiaries. Unless expressly set forth herein, nothing in this Agreement is intended to nor shall it confer upon any person or entity, other than the Parties or their respective permitted assigns, successors and legal representatives, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
    8. Rights and Remedies Cumulative. Unless expressly stated otherwise herein, all rights and remedies provided for in these Terms shall be cumulative and in addition to, and not in lieu of, any other remedies available to either Party at law, in equity or otherwise.
    9. Force Majeure. Except for Customer’s obligations to pay any amounts due under these Terms, neither Party will be liable to the other for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond such party’s reasonable control including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemic, epidemic and quarantine restrictions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. In the event that any force majeure events as stated prevails for a continuous period of more than three (3) months, these Terms may be terminated by either Party by providing a written notice to the other Party.

20. Definitions

    Capitalized terms not otherwise defined in these Terms shall have their respective meanings assigned to them in this Section 21.

    1. “Account Data” means information about Customer that Customer provides to RevOptimal in connection with the creation or administration of its account, such as first and last name, user name and email address of an Authorized User or Customer’s billing contact.
    2. “Applicable Laws” means any and all governmental laws, rules, directives, regulations or orders that are applicable to a particular Party’s performance under these Terms.
    3. “Authorized User” means an individual employee, workspace administrator, agent or contractor of Customer for whom subscriptions to the Platform have been purchased pursuant to the terms of the applicable Order and these Terms.
    4. “API” means RevOptimal’s application program interfaces and related materials, including any related Documentation.
    5. “RevOptimal Data” means Product Data and Service Data.
    6. “Documentation” means the specifications, instructions, descriptions, and any other documents or text relating to the Platform provided by RevOptimal or maintained by RevOptimal on its website at https://developers.revoptimal.com.
    7. “Feedback” means bug reports, suggestions or other feedback with respect to the Platform Services or Documentation provided by Customer to RevOptimal, exclusive of any Customer Confidential Information therein.
    8. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
    9. “Personal Data” means information relating to an identified or identifiable natural person that is protected by Applicable Laws with respect to privacy where the individual resides.
    10. “Product Data” means any data reports, text, images, sound, video, code, insights, any other content made available by RevOptimal through the API or platform.