Thank you for signing up for a subscription with Optimizely, Inc. (“Optimizely”, “we” or “us”). By placing an order, clicking to accept this Agreement, or using or accessing any Optimizely Service or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). If you are using an Optimizely Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. Please note that we may modify this Agreement as further described in the amendments section below, so you should make sure to check this page from time to time. This Agreement includes any Order Forms and Service-Specific Terms (as defined below) as well as any policies or exhibits linked to or referenced herein.
This Agreement is effective as of January 12, 2018. Prior Terms of Service are available here.
Optimizely provides a suite of products that allows subscribers to test, personalize, and analyze the experiences they deliver through a variety of platforms, such as web, mobile, server-side, and OTT applications. To accomplish this, Customer first installs Optimizely Code for the relevant platform, and then uses the tools within the applicable Optimizely Service to select Content to experiment. Based on these selections, variations of Customer Properties are presented to Visitors. The Service-Specific Terms and the applicable Documentation provide additional details about each Optimizely Service.
2.1 “Add-On” means integrations, applications, and other add-ons that are used with the Optimizely Service.
2.2 “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
2.3 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Visitors; and (ii) learnings, logs, and data regarding use of the Optimizely Service.
2.4 “Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.
2.5 “Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
2.6 “Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the Optimizely Service. This Content becomes public on the Customer Properties, so Customer should only provide Content that it wishes others to see.
2.7 “Customer Apps” means the applications (such as for mobile device platforms or OTT devices) expressly identified in the applicable Order Form.
2.8 “Customer Data” means: (i) Content; (ii) Submitted Data; (iii) Visitor Data; and (iv) any other Customer Data specified in the Service-Specific Terms.
2.9 “Customer Property or Properties” means: (i) Customer Sites; (ii) Customer Apps; or (iii) other types of platforms or properties (as may be supported by Optimizely) specified in the applicable Order Form.
2.10 “Customer Sites” means the web domains expressly identified in the applicable Order Form.
2.11 “Documentation” means the end user technical documentation created by Optimizely and provided with the Optimizely Service, currently available in the Knowledge Base and Developer Docs at help.optimizely.com/.
2.13 “Optimizely Service” means the specific proprietary software-as-a-service product(s) of Optimizely specified in Customer’s Order Form, including any related Optimizely Code and Documentation, and excluding any Third-Party Products.
2.14 “Optimizely Technology” means the Optimizely Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Optimizely Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
2.15 “Order Form” means any Optimizely ordering documentation or online sign-up or subscription flow that references this Agreement.
2.16 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.
2.17 “Scope of Use” means the usage limits or other scope of use descriptions for the Optimizely Service included in the applicable Order Form (including descriptions of packages and features) or Documentation. These include any numerical limits on Visitors or Authorized Users, descriptions of product feature levels, and names or numerical limits for Customer Properties.
2.18 “Service-Specific Terms” means the additional or different terms and conditions (if any) specific to an Optimizely Service or other Optimizely products, features, services or subscription plans. Service-Specific Terms are currently available at www.optimizely.com/service-specific-terms/.
2.19 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the Optimizely Service, including Third-Party Content.
2.20 “Subscription Term” means the initial term for the subscription to the applicable Optimizely Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
2.21 “Third-Party Content” means content, data or other materials that Customer provides to the Optimizely Service from its third-party data providers, including through Add-Ons used by Customer.
2.22 “Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by Optimizely.
2.23 “Virus” means a virus, Trojan horse, or worm that is designed to harm, disrupt or interfere with computers, software or hardware and detectable using commercially reasonable procedures.
2.24 “Visitor” means any end user of a Customer Property.
2.25 “Visitor Data” means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the Optimizely Service, including any data specified in the Service-Specific Terms.
Other terms are defined in other Sections of this Agreement or in the relevant Service-Specific Terms, policies, or Exhibits.
4.1 Use of Optimizely Services. Subject to all the terms and conditions of this Agreement, Optimizely grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Optimizely Service(s) designated on Customer’s Order Form solely for Customer’s internal business purposes, but only in accordance with this Agreement (including without limitation any applicable Service-Specific Terms), the Documentation, and all applicable Scope of Use descriptions. Where specified in the Service-Specific Terms, the Optimizely Service may require installation of Optimizely Code on Customer Properties. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Optimizely Code on the specified Customer Properties and, in the case of Customer Apps, to distribute the installed Optimizely Code with Customer Apps.
4.2 Use by Others. Customer may permit its Authorized Users to use the Optimizely Service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.
4.3 General Restrictions. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Optimizely Service to a third party (except Authorized Users); (ii) incorporate the Optimizely Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) publicly disseminate information regarding the performance of the Optimizely Service (which is deemed Optimizely’s Confidential Information); (iv) modify or create a derivative work of the Optimizely Service or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Optimizely Service (including Optimizely Code), except to the extent expressly permitted by applicable law and then only with advance notice to Optimizely; (vi) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Optimizely Service, or configure the Optimizely Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vii) distribute any portion of the Optimizely Service other than the Optimizely Code installed in Customer Properties as specifically permitted above; (viii) access the Optimizely Service for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the Optimizely Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Optimizely’s prior written consent; or (x) remove or obscure any proprietary or other notices contained in the Optimizely Service, including in any reports or output obtained from the Optimizely Service.
4.4 Beta Releases and Free Access Subscriptions. Optimizely may provide Customer with an Optimizely Service or Optimizely Code for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Optimizely Services, Optimizely Code, integrations, or features (“Beta Releases”), which are optional for Customer to use. This Section will apply to any Free Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. Optimizely may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH OPTIMIZELY WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. Optimizely makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. Optimizely may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time for any reason or no reason in Optimizely’s sole discretion, without liability.
5.1 Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all content contained within them (excluding any Optimizely Technology). Customer hereby grants Optimizely a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Optimizely Service and related services to Customer and as set out in Section 5.2 (Aggregate/Anonymous Data). For Content, this includes the right to publicly display and perform Content and the Customer Properties (including derivative works and modifications) as directed by Customer through the Optimizely Service.
5.2 Aggregate/Anonymous Data. Customer agrees that Optimizely will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Optimizely Technology, which Optimizely may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Optimizely’s products and services and to create and distribute reports and other materials). For clarity, Optimizely will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer is not responsible for Optimizely’s use of Aggregate/Anonymous Data.
5.3 Security. Optimizely agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification, which are described in more detail on Optimizely’s website, currently available at www.optimizely.com/security. Optimizely’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.
5.4 Storage. Optimizely does not provide an archiving service. During the Subscription Term, Customer acknowledges that Optimizely may delete Content no longer in active use. Optimizely expressly disclaims all other obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.
5.5 Data Export. Optimizely provides the ability for Customer to export data at any time in the Optimizely Service as described in the Documentation.
Optimizely makes available web-based support through its website (currently available at help.optimizely.com/). Additional support services may be available to Customer upon payment of applicable fees (if any), as specified in Customer’s Order Form. Any support services are subject to this Agreement and Optimizely’s applicable support policies. Optimizely may also provide onboarding, deployment and other services under this Agreement. The scope, pricing, and other terms for these additional services will be specified in an Order Form, Order Form exhibit, or other document referencing this Agreement. Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Optimizely Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the Optimizely Service itself. Optimizely’s ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services. For avoidance of doubt, Customer retains ownership of any Confidential Information it provides to Optimizely.
Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Optimizely’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Optimizely. Customer will make tax payments to Optimizely to the extent amounts are appropriately included in Optimizely’s invoices. Optimizely sends invoices electronically, and invoices for the Optimizely Service in advance as set out in the Order Form, and for overages or additional CPM, if applicable in the relevant Order Form, monthly in arrears. If Customer requires a Purchase Order number referenced on Optimizely’s invoice, Customer must promptly provide the Purchase Order number. If Customer does not promptly provide the Purchase Order number, Customer agrees to pay the invoice without a referenced Purchase Order Number. Some customers may have the option to pay by credit card. If Customer is paying by credit card, it authorizes Optimizely to charge and fees other amounts automatically to Customer’s credit card without invoice. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.
9.1 Term. This Agreement is effective until all Subscription Terms for the Optimizely Service(s) have expired or are terminated as expressly permitted in this Agreement.
9.2 Subscription Term and Renewals. By executing an Order Form for purchase of an Optimizely Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause) or a Service-Specific Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the Optimizely Service. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at Optimizely’s then-applicable rates.
9.3 Suspension of Service. Optimizely may suspend Customer’s access to the Optimizely Service(s) if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its Scope of Use limits. Optimizely may also suspend Customer’s access to the Optimizely Service(s), remove Customer Data or disable Third-Party Products if it determines that: (a) Customer has breached Sections 4 (Use Rights) or 6 (Customer Obligations); or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Optimizely Service. Optimizely will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.3. However, unless this Agreement has been terminated, Optimizely will cooperate with Customer to promptly restore access to the Optimizely Service once it verifies that Customer has resolved the condition requiring suspension.
9.4 Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter). Optimizely may also terminate this Agreement or any related Order Forms immediately if Customer breaches Sections 4 (Use Rights) or 6 (Customer Obligations), or for repeated violations of this Agreement.
9.5 Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable Optimizely Service(s) (including any related Optimizely Technology); (b) stop distributing any Optimizely Code installed on its Customer Properties; and (c) delete (or, at Optimizely’s request, return) any and all copies of the Optimizely Code, any Optimizely documentation, passwords or access codes, and any other Optimizely Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable Optimizely Service will cease and Optimizely may delete the Customer Data at any time after 30 days from the date of termination. If Optimizely terminates this Agreement for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
9.6 Survival. The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (Optimizely Technology); 12 (Indemnification); 13.2 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).
10.1 Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Optimizely, includes the subcontractors referenced in Section 16.5), provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than this Section.
10.2 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
10.3 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
11.1 Ownership and Updates. This is a subscription agreement for access to and use of the Optimizely Service. Customer acknowledges that it is obtaining only a limited right to use the Optimizely Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer under this Agreement. Customer agrees that Optimizely (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Optimizely Technology (which is deemed Optimizely’s Confidential Information) and reserves any licenses not specifically granted in this Agreement. Other than the Optimizely Code, the Optimizely Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Optimizely Service and that Optimizely at its option may make updates, bug fixes, modifications or improvements to the Optimizely Service from time-to-time.
11.2 Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Optimizely (collectively, “Feedback”), Customer hereby grants Optimizely a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Optimizely will not identify Customer as the source of the Feedback. Nothing in this Agreement limits Optimizely’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Customer agrees to defend and indemnify Optimizely from and against any third-party claims and liabilities to the extent resulting from: Customer Data; Customer Properties (including services or products provided through the Customer Properties); or a breach or alleged breach of Section 6 (Customer Obligations).
Customer must not settle any claim without Optimizely’s prior written consent if the settlement would require Optimizely to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action. Optimizely may participate in a claim through counsel of its own choosing at its own expense and Customer and Optimizely will reasonably cooperate on the defense.
ALL OPTIMIZELY TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER OPTIMIZELY NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. OPTIMIZELY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT OPTIMIZELY TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT OPTIMIZELY TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. OPTIMIZELY DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. OPTIMIZELY WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-OPTIMIZELY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON OPTIMIZELY TECHNOLOGY OR OPTIMIZELY’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
14.1 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OPTIMIZELY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.
OPTIMIZELY’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO OPTIMIZELY FOR THE APPLICABLE OPTIMIZELY SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, OPTIMIZELY’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).
14.2 Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14.3 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY OPTIMIZELY TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
If Customer uses Third-Party Products in connection with the Optimizely Services, those products may make Third-Party Content available to Customer and may access Customer’s instance of the Optimizely Service, including Customer Data. Optimizely does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Optimizely as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Optimizely Services, including their modification, deletion, disclosure, or collection of Customer Data. Optimizely is not responsible in any way for Customer Data once it is transmitted, copied, or removed from the Optimizely Services by Customer or under Customer’s direction. Customer may use Optimizely’s Add-on Platform to enable non-Optimizely Add-Ons for use with the Optimizely Services. Those Add-Ons are subject to the Add-On Platform Terms of Service (currently available at www.optimizely.com/terms-add-on).
16.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Optimizely may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be void.
16.2 Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to Optimizely, in English, at the following address, firstname.lastname@example.org, and include “Attn. Legal Department” in the subject line. Optimizely may send notices to the email addresses on Customer’s account or, at Optimizely’s option, to Customer’s last-known postal address. Optimizely may also provide operational notices regarding the Optimizely Service or other business-related notices through conspicuous posting of the notice on Optimizely’s website or the Optimizely Service. Each party consents to receiving electronic notices. Optimizely is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.
16.3 Publicity. Unless otherwise specified in the applicable Order Form, Optimizely may use Customer’s name, logo, and marks (including marks on Customer Properties) to identify Customer as an Optimizely customer on Optimizely’s website and other marketing materials.
16.4 Subcontractors. Optimizely may use subcontractors and permit them to exercise the rights granted to Optimizely in order to provide the Optimizely Service and related services under this Agreement. These subcontractors may include, for example, Optimizely’s hosted service and CDN providers. However, subject to all terms and conditions of this Agreement, Optimizely will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Optimizely Services if and as required under this Agreement.
16.5 Subpoenas. Nothing in this Agreement prevents Optimizely from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Optimizely will use commercially reasonable efforts to notify Customer where permitted to do so.
16.6 Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.7 Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
16.8 Export. Customer is responsible for obtaining any required export or import authorizations for use of the Optimizely Services. Customer represents and warrants that it, its Affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the Optimizely Service in violation of any U.S. export embargo, prohibition or restriction.
16.10 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
16.11 No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s) as the Customer, and not any Customer Affiliates.
16.12 Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Optimizely Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.
16.13 Governing Law, Jurisdiction and Region-Specific Terms. Governing law, jurisdiction, and other region-specific terms are set out below:
US, North and South America, Asia Pacific, and Rest of World. For customers located in the United States, North and South America, Asia Pacific (excluding Australia and New Zealand), and any other jurisdiction not covered by the region-specific terms below (Rest of World), the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in Santa Clara County, California or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts.
HIPAA non-compliance. Customer acknowledges that Optimizely is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Optimizely Service is not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced. “Regulated Data” includes HIPAA-regulated data and data covered under the Gramm-Leach-Bliley Act (or related rules or regulations) as updated or replaced.
U.S. Government Use. The Optimizely Services are based upon commercial computer software. If the user or licensee of an Optimizely Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Optimizely Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulations 12.211 (Technical Data) and 12.212 (Computer Software) for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). The Optimizely Services were developed fully at private expense. All other use is prohibited. If greater rights are needed, a mutually acceptable written amendment specifically conveying these rights must be included as part of this Agreement.
General. The Uniform Computer Information Transactions Act (UCITA) do not apply to this Agreement regardless of when or where adopted.
Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.
English language. The parties agree that this Agreement is in the English language. Les parties ont demande a ce que le present document soit redige en langue anglaise.
UK, IE, Middle East, Africa, Russia, and India. For customers located in the Republic of Ireland, the United Kingdom, British Crown Dependencies, British Overseas Territories, Middle East, Africa, Russia, and India the following terms apply:
Germany, Austria, and Switzerland (“DACH”). For customers located in DACH, the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of Germany and the parties submit to the exclusive jurisdiction and venue of courts located in Cologne, Germany.
Late payment interest. The interest on late payments rate set out in Section 8.1 does not apply. Instead, late payments may be subject to interest of 9% above the base interest rate of the German Federal Bank of the amount due or the maximum amount allowed by law.
Clarification on Liability Cap under Section 14.2. THE PARTIES AGREE THAT THE LIABILITY CAP AT SECTION 14.2 (LIABILITY CAP) APPLIES FOR SLIGHTLY NEGLIGENT INFRINGEMENT OF A MATERIAL CONTRACTUAL OBLIGATION, WHOSE FULFILLMENT IS ESSENTIAL IN ACCOMPLISHING THE CONTRACT AND ON WHOSE FULFILLMENT THE OTHER PARTY CAN REGULARLY DEPEND (“CARDINAL DUTY”). THE PARTIES SPECIFICALLY AGREE THAT THE TYPICAL FORESEEABLE DAMAGE AND BREACHES OF A CARDINAL DUTY WILL NOT EXCEED IN AGGREGATE THE LIABILITY CAP SET OUT IN SECTION 14.2.
Additional Exceptions on Liability under Section 14.3. NONE OF THE LIMITATIONS IN SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR DAMAGES DIRECTLY RESULTING FROM: (I) INTENT; (II) GROSS NEGLIGENCE; (III) CULPABLE INJURY TO LIFE, BODY AND HEALTH; (IV) IN CASE OF A BREACH OF GUARANTEE, WHICH MUST BE EXPLICITLY NAMED A “GUARANTEE”; OR (V) MANDATORY LIABILITIES UNDER THE PRODUCT LIABILITY ACT.
Netherlands and Rest of Europe. For customers located in the Netherlands and European countries not covered by other region-specific terms above, the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the Netherlands and the parties submit to the exclusive jurisdiction and venue of courts located in Amsterdam, the Netherlands. Any court proceedings will be conducted in English, to the extent available.
Additional Exceptions on Liability under Section 14.3. NONE OF THE LIMITATIONS IN SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR EITHER PARTY’S LIABILITY FOR INTENT OR GROSS NEGLIGENCE (OPZET OF BEWUSTE ROEKELOOSHEID) OF THAT PARTY OR ITS MANAGERIAL STAFF.
Force Majeure (under Section 16.8). The parties agree that “causes beyond a party’s reasonable control” include if the delay or failure is due to a force majeure event (overmacht) as defined in Article 6:75 of the Dutch Civil Code.
Australia and New Zealand. For customers located in Australia and New Zealand, the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of Australia and New South Wales and the parties submit to the exclusive jurisdiction and venue of courts located in Sydney.
Additional tax-related section (Australia and New Zealand):
A. Interpretation. References to an entity in this tax-related section (including Optimizely, the Customer, or the Payee, defined below), include references to the representative member of a GST group to which the entity belongs. All words and phrases that are not otherwise defined in this Agreement have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“the GST Act”).
B. Reverse charge. Under Division 83 of the GST Act, Customer agrees to pay the GST on all taxable supplies made by Optimizely to Customer under or in connection with this Agreement.
C. Warranty and Indemnity. Customer represents and warrants that it is registered for GST. Customer will indemnify, defend, and hold harmless Optimizely from and against any and all third-party claims, costs, damages, liabilities (including without limitation any tax impost, penalty, or interest charge), and expenses (including reasonable attorneys’ fees and costs) arising from a breach of this representation and warranty.
D. Termination of reverse charge arrangement. The reverse charge arrangement in Section B will cease to apply where either party gives notice in writing to the other party terminating the arrangement. The notice must specify the date of termination, which must be not less than 14 days after the notice is given.
E. GST recovery. This Section E applies where Section B does not apply or a reverse charge arrangement has been terminated. Where Optimizely makes a taxable supply to Customer under or in connection with this Agreement, Customer must pay to Optimizely an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST). The additional amount must be paid by Customer at the date when any consideration for the taxable supply is first paid or provided.
F. Reimbursements, etc. Subject to an express provision in this agreement to the contrary, any payment, reimbursement, or indemnity required to be made to a party (the “Payee”) under this agreement which is calculated by reference to an amount paid or payable by the Payee to a third party (the “Outgoing”) will be calculated by reference to that Outgoing inclusive of GST, less the amount of any input tax credit which the Payee is entitled to claim on that Outgoing.
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