OPTIMOB LICENSE AGREEMENT
[Last Updated: February 20, 2017]
This Online License Agreement (“Agreement”) is a legally binding and enforceable agreement between ClickShell Ltd. (“Company” or “we”) and you, a person or an entity registering to our optimization services (“Customer”, “user” or “you”) through our website available at: http://optimob.io, all as detailed below and subject to the terms herein.
NOW THEREFORE, in consideration of the premises and of the mutual agreements and covenants hereinafter set forth, the parties hereto agree as follows:
- “Company Properties” shall mean Company’s owned and developed optimization technology tool and platform, including the Service (defined below) and the Website, as well as any and all related or documentation, component, software, URL, code, know-how, logos, reports or any information delivered therein including any updates, modifications or derivative works therein.
- “Confidential Information” shall mean any non-public, proprietary, confidential or trade secret information of a party that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party") either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall not include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development or (iv) required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a Protective Order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality.
- “Customer Properties” shall mean all of Customer’s or Customer’s third party affiliates’ or partners’ text, images, videos, text, features, tags, pixels, data, application, code or other materials, campaigns and services, provided or made available by Customer to Company through the Service solely for the purpose herein.
2. SCOPE OF SERVICE
The Company provides an online mobile marketing optimization tool which enables you to automatically manage, analyze and optimize your mobile campaigns by choosing the optimized demand and suspending or terminating any fraudulent traffic, all, in real time (“Service”). The Company reserves the right to add, remove and revise the Service at any time with or without prior written notice.
3. SERVICE PACKAGE
Free trial following which you may choose a service package applicable to you. The service packages are based on monthly fees calculated according to the API calls, support services, offer managements, notification tools, all as detailed in our pricing page available at: pricing. Each package has a base fee which may incur extra charges for overages in the event you exceed the amount of API calls and impressions. Once you have exceeded all applicable API calls, we will notify you through your account or your designated account manager, following which you will be charged an extra $0.0004 USD per API call. The extra charge will be added to the following month’s invoice, if you fail to submit the payment your account may be suspended or terminated in Company’s sole discretion. You hereby agree to pay for services rendered above and beyond those included with your package (“Service Fee”). All payments shall be in US$ Dollars and transferred through designated PayPal accounts, credit card or wire transfer. The Customer is solely responsible for payment of any taxes resulting from these Terms, any taxes required to be withheld shall not be deducted from the Service Fees. All payments occur in advance for each month and are non-refundable.
4. REGISTRATION AND ACCOUNT
5. LICENSES AND INTELLECTUAL PROPERTY RIGHTS
Company owns and shall retain all rights, including all intellectual property rights, in and to the the Company Properties and any and all adaptations, modifications, enhancements, or improvements thereto made therein. Customer acknowledges and agrees that no ownership rights are transferred to Customer under this Agreement and Customer shall not, shall not attempt to, and shall not allow any third party, to use, copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, adapt, sublicense, sell, rent, lend, process, combine with other software, translate, modify, reverse engineer, disassemble or decompile the Company Properties nor may it create any derivative works or other works that are based upon or derived from the Company Properties in whole or in part. Certain portions of Company Properties are provided together with third party tools (such as HasOffer and Affilitest), that may be subject to their own term and conditions, licenses (collectively, “Third Party Software”). Such Third Party Software is not subject to these Terms and is licensed under the terms and conditions of the license that accompanies such Third Party Software.
Company hereby grants Customer a limited, non-exclusive and non-transferable right to access and use Services. Customer may not sublicense, assign, or transfer any rights granted herein, and any attempt to sublicense, assign, or transfer any part thereof shall be void. Company reserve all rights not expressly granted herein and Customer is not granted any right or license, or ownership including any intellectual property, other than as explicitly set forth in these Terms.
Customer shall provide the Company with worldwide, non-exclusive, royalty-free, transferable license (with right to sub-license) to collect, use, copy, store, transmit, modify, publicly display, perform and create derivative works of Customer Properties, all solely for the purpose of providing the Service herein.
6. RESTRICTIONS OF USE
You agree only to use the Company Properties as set forth in these Terms and according to applicable laws and regulations. You shall not agree to nor shall you authorize or encourage any third party to: (i) use the Company Properties in non-compliant or illegal manner; (ii) prevent others from using Company Properties; and (iii) use the Company Properties for any fraudulent or inappropriate purpose. You are responsible for any of your actions which breach or could be reasonably construed as a breach of these Terms.
You shall not: (i) circumvent, disable or otherwise interfere with security-related features of the Company Properties; (ii) modify, create a derivative work of, reverse engineer, disassemble other customers’ accounts; (iii) remove, deface, obscure, or alter the Company Properties or any or other notices contained in the Services including any third parties’ proprietary rights provided as part of the Service; (iv) use the Company Properties or any of the content therein for benchmarking purposes or to develop any website, software, application, product or service that is the same as, substantially similar to, or competitive with the Company Properties; (v) use the Company Properties to promote, conduct, or contribute to fraudulent, obscene, pornographic, illegal or otherwise inappropriate activities, including without limitation, deceptive impersonation in connection with contests, pyramid schemes, surveys, chain letters, junk e-mail, spamming or any duplicative or unsolicited messages; and (vi) use any robot, spider, other automated device, web-bar, other web-client, device, software, routine or manual process to monitor or scrape information from the Company Properties.
We reserve the right, at our sole discretion, to limit your use or prevent you from accessing or using the Services if we become aware of any action which breaches or which is reasonably construed as a breach of the Terms. WE MAKE NO REPRESENTATION OR WARRANTIES THAT THE COMPANY PROPERTIES ARE OR WILL BE AVAILABLE FOR USE IN ANY PARTICULAR LOCATION OR AT SPECIFIC TIME. WE MAY CHANGE, MODIFY, SUSPEND, OR DISCONTINUE ANY ASPECT OF THE COMPANY PROPERTIES AT ANY TIME. YOUR USE OF THE COMPANY PROPERTIES IS AT YOUR OWN RISK AND RESPONSIBILITY.
7. REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants that: (i) it has the full corporate right, power and authority to enter into these and to perform the acts required hereunder; (ii) the execution of this Agreement and the performance of its obligations and duties hereunder does not violate any agreement to which it is a party or by which it is otherwise bound; (iii) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each Party, enforceable against each party in accordance with its terms.
The Company further undertakes and warrants that: (i) it will provide the Service in compliance with applicable laws and regulations and in accordance with reasonable professional skills and knowledge; (ii) the Company Properties do not infringe any third party rights, including proprietary and privacy rights; and (iii) it shall provide the Customer with applicable free technical support Monday to Thursday (excluding holidays) 9:00 am-18:00 pm gmt+3.
Except for the express representations and warranties stated herein the Company makes no warranties whatsoever and explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or non-infringement and compliance with applicable regulations.
9. TERM &TERMINATION
This Agreement shall commence upon acceptance of these Terms and shall remain in full force and affect, with monthly renewal, until terminated by either party. Each party may terminate the Agreement at any time by providing the other party with 30 days prior written notice (email correspondence shall be sufficient). Notwithstanding the above, Company may immediately terminate this Agreement if Customer: (i) acts in a manner which breaches or may breach any of the terms of this Agreement; or (ii) becomes insolvent or bankrupt or compounds with or grants a trust deed for the benefit of his creditors.
Upon termination (i) Customer shall pay the Company any and all amounts due, including the applicable Service Fee; (ii) all rights granted under the applicable license shall immediately expire and each party must immediately cease any use of the other party’s materials and content, hence, the Company shall cease the use Customer Properties and the Customer shall cease the use of Company Properties; (iii) each party shall return to the other party any Confidential Information or any other content granted or made available from the other party and all copies thereof; ; and (iv) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive the termination on this Agreement.
10. CONFIDENTIAL INFORMATION
During the term of the Agreement and for a period of one (1) year thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the prior written consent, except as permitted under this Agreement. Each party agrees to use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under this Agreement and to prevent the disclosure of the other party’s Confidential Information other than to whom must have access to such Confidential Information for the purpose of performing the obligations herein. Customer acknowledges that disclosure of Company’s Confidential Information may cause Company with substantial harm, thus, upon breach of this provision Company shall be entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
11. DISCLAIMER AND LIMITATION OF LIABILITY
THE COMPANY PROPERTIES ARE PROVIDED ON AN "AS-IS" AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO THE FOREGOING. THE COMPANY DOES NOT WARRANT THAT: (I) THE COMPANY PROPERTIES OR ANY CONTENT AND TECHNOLOGY AVAILABLE THEREIN WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE FIXED; OR THAT (II) THE CUSTOMER WILL PROFIT OR DERIVE ANY BENEFIT FROM THE COMPANY PROPERTIES. IN NO EVENT WILL THE COMPANY OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS OR REVENUES, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE COMPANY PROPERTIESBASED ON CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE COMPANY SHOULD HAVE REASONABLY FORESEEN OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. THE COMPANY'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT POSSIBLE BY APPLICABLE LAW. THE TOTAL LIABILITY OF THE COMPANY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS OF FEES MADE UNDER THIS AGREEMENT DURING THE MONTH PRECEDING ANY CLAIM UNDER WHICH SUCH LIABILITY SHALL ARISE.
Customer agrees to indemnify and hold the Company harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action (“Claim”) by a third party (including reasonable attorney fees) arising from or in connection to Customer’s access or use of the Company Properties or any breach of Customer’s responsibilities or obligations, representations or warranties under this Agreement. The Company shall promptly notify Customer in writing of the Claim and shall make best reasonable efforts to provide the Customer with reasonable assistance and information.
13. DISPUTES RESOLUTION
For any dispute you have with us, you agree to first contact us email@example.com and attempt to resolve the dispute with us informally. If we were not able to resolve the dispute with you informally, we each agree by this enforceable Agreement, to resolve any claim, and unless otherwise required by a mandatory law dispute or controversy arising out of or in connection with or relating to the Agreement by binding and exclusively arbitration by the American Arbitration Association (“AAA”). ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THE AGREMENT, YOU AND US ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
If you disagree, please contact us firstname.lastname@example.org, in your email you must include your name and residence address, and a clear statement that you want to opt out of this arbitration agreement. This arbitration agreement will survive the termination of the Agreement. The Agreement is governed by and construed in accordance with the laws of the State of New York, Southern District, without giving effect to any principles of conflicts of law and will specifically not be governed by the united nations conventions on contracts for the international sale of goods, if otherwise applicable. For any action at law or in equity relating to the arbitration provision of this Agreement, you agree to resolve any dispute you have with exclusively in a state or federal court located in New York, New York Southern District, Manhattan and to submit to the personal jurisdiction of the courts located in New York County for the purpose of litigating all such disputes. Any cause of action you might have relating to the service is limited in time to one (1) year from the arising incident, and will be permanently barred afterwards.
The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither Party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party. The Company shall not be deemed in breach of this Agreement if the Company is unable to complete the Services or any portion thereof by reason of earthquake, labor dispute, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages or any act of God or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Company’s control. Company reserves the right, at its sole and absolute discretion, to change, modify, add to or delete any of the terms and conditions of this Agreement at any time. In the event of a material change we will make best efforts to notify you by email or through the Company Property or the Customer’s account. if any modification is unacceptable to you, your only recourse is to terminate this Agreement. your continued use of the Service will constitute binding acceptance of the change.
Company reserve the right to suspend, remove, restrict or disable your access and use to parts or all of the Company Properties at any time and without notice or liability, at Company’s sole discretion. In no event, will the Company be liable for the suspension, removal, and restriction or disabling of the user access or use of the Company Properties or to any feature available therein. Furthermore, the Company reserves the right, at its sole and absolute discretion, to change, modify, add to or delete any of these Terms at any time, including without limitation the availability of any feature of the Company Properties. In the event of a material change we will make best efforts to notify you by email or through the Customer account. Your continued use of the v following any revision of these Terms constitutes your complete and irrevocable consent and acceptance of any and all such changes. If you do not agree with any update or modification, you should cease to use the Company Properties in any matter.