Terms of Service AgreementLast revised on October 5th 2015
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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 October 5, 2015, including for customers subject to prior Terms of Service (available here).
1 OVERVIEW OF THE OPTIMIZELY PLATFORM. Optimizely provides a suite of products that allows subscribers to test, personalize, and analyze the experiences they deliver through their web and mobile platforms. To accomplish this, Customers first install Optimizely Code on a website or mobile application, then use the editing and configuration tools within the applicable Optimizely Service to select Content to personalize or test. Based on these selections, variations of the Customer Properties are presented to Visitors without requiring Optimizely to host or distribute Customer’s original websites or mobile apps. The Service-Specific Terms and the applicable Documentation provide additional details about each Optimizely Service.
2.1 “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. 2.2 “Confidential Information” means code, inventions, know-how, product plans, inventions, 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.
2.3 “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.
2.4 “Customer Apps” means the Customer owned-and-operated mobile applications expressly identified in the applicable Order Form.
2.5 “Customer Data” means: (i) Content; (ii) Submitted Data; (iii) Visitor Data; and (iv) any other Customer Data specified in the Service-Specific Terms.
2.6 “Customer Property or Properties” means the (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.
2.7 “Customer Sites” means the Customer owned-and-operated web domains and subdomains expressly identified in the applicable Order Form.
2.8 “Documentation” means Optimizely’s end user technical documentation provided with the Optimizely Service.
2.10 “Optimizely Service” means the specific proprietary software-as-a-service product of Optimizely specified in Customer’s Order Form, including any related Optimizely Code and Documentation.
2.11 “Optimizely Technology” means the Optimizely Services, 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.
2.12 “Order Form” means any Optimizely ordering documentation or online sign-up or subscription flow that references this Agreement.
2.13 “Regulated Data” means: (i) any personally identifiable information; (ii) any patient, medical or other protected or regulated health information; or (iii) any other information subject to regulation or protection under specific laws or regulations.
2.14 “Scope of Use” means the usage limits or other scope of use descriptions for the Optimizely Service included in the applicable Order Form 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.
2.15 “Service-Specific Terms” means the additional or different terms and conditions (if any) specific to an Optimizely Service, feature or subscription plan. Service-Specific Terms are currently available at https://www.optimizely.com/service-specific-terms/.
2.16 “Submitted Data” means data uploaded, inputted, or otherwise submitted by Customer or its third-party data providers to the Optimizely Service, including through integrations.
2.17 “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).
2.18 “Visitor” means any end user of a Customer Property.
2.19 “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 such data specified in the Service-Specific Terms.
Other terms are defined in other Sections of this Agreement or in the Service-Specific Terms.
4 USE RIGHTS.
4.1 Use of Optimizely Services. Subject to all 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 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 such 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 Employees and Contractors. 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 herein. 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, sublicense, or provide access to the Optimizely Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate the Optimizely Service (or any portion thereof) into, or use it with or to provide, any site, product or service other than Customer’s own Customer Properties as specifically permitted above; (iii) use the Optimizely Service (or any portion thereof) for time sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the Optimizely Service (which is deemed Optimizely’s Confidential Information); (v) modify or create a derivative work of the Optimizely Service or any portion thereof; (vi) 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 upon advance notice to Optimizely; (vii) distribute any portion of the Optimizely Service other than the Optimizely Code installed in Customer Apps as specifically permitted above; or (viii) 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 Subscription”) or with “alpha”, “beta” or other early-stage Optimizely Services, Optimizely Code, integrations or features (“Beta Releases”). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is 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 RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND TO CUSTOMER. 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 A BETA RELEASE IS AT CUSTOMER’S SOLE RISK. Optimizely makes no promises that future versions of a Beta Release 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 Subscription or Beta Release at any time for any reason or no reason in Optimizely’s sole discretion, without liability.
5 CUSTOMER DATA.
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 therein (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. 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. Optimizely aggregates Customer Data with other data so that results are non-personally identifiable with respect to Customer or Customer’s Visitors, and also generates anonymous learnings, logs and data regarding use of the Optimizely Service (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree 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, this Section 5.2 does not give Optimizely the right to identify Customer as the source of any Aggregate/Anonymous Data without Customer’s prior written permission.
5.3 Security. Optimizely agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use, or disclosure. These 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.
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.
6 CUSTOMER OBLIGATIONS.
6.2 PII and Other Regulated Data. Customer must not submit, collect or use any Regulated Data with or to the Optimizely Service (other than information about Authorized Users necessary to create user accounts). The parties agree that Optimizely has no liability under this Agreement for Regulated Data received from Customer, notwithstanding anything to the contrary herein.
6.3 Customer Apps. Customer must ensure that it complies with any applicable third-party application development or distribution agreements (such as app store terms) when using or distributing the Optimizely Service (including the Optimizely Code) in connection with its Customer Apps. Customer may not take any action that would cause Optimizely, the Optimizely Service, or the Optimizely Code to become subject to any third party terms including open source license terms.
6.4 Acceptable Use Policy. Customer must use the Optimizely Service in compliance with Optimizely’s then-current Acceptable Use Policy (currently available at https://www.optimizely.com/acceptable-use-policy/).
6.5 Notice and Take-Down. Customer will be responsible for handling infringement notices and take-down requests it receives for any Customer Property and Content. Customer must promptly notify Optimizely if it learns of any notices or take down requests related to Content and immediately stop using that Content with any Optimizely Service. Without limiting its other available remedies, Optimizely without liability may take down allegedly infringing Content and otherwise respond to any notice and take-down requests it receives in accordance with its policies.
7 SERVICES. 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 set forth 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.
8 FEES AND PAYMENT. Customer agrees to pay all fees in U.S. dollars within thirty (30) days of the invoice date, unless a different currency or payment period is 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 included in Optimizely’s invoices. Some customers may have the option to pay by credit card. If Customer is paying by credit card, it authorizes Optimizely to charge fees and other amounts automatically to Customer’s credit card without invoice. Unless otherwise specified in an Order Form or Service-Specific Term, such charges typically occur monthly in advance, though overage fees (if any) may be charged in arrears. 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 TERM AND TERMINATION.
9.1 Term. This Agreement is effective until all Subscription Terms for the Optimizely Service(s) have expired or are terminated as expressly permitted herein.
9.2 Subscription Term and Renewals. By placing 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. 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. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the Optimizely Service. Pricing for any Subscription Term renewal, new Order Form or Order Form change will be at Optimizely’s then-applicable rates.
9.3 Suspension of Service. If Customer’s account is overdue, Optimizely reserves the right to suspend Customer’s access to the Optimizely Service(s) (and any related services) without liability to Customer until paid in full, but Optimizely will send Customer a payment reminder before doing so. Optimizely may also suspend any use or access by Customer without liability if: (i) Customer has exceeded its usage limits as set forth in the Order Form; or (ii) Optimizely deems suspension necessary as a result of: (a) a breach or suspected breach of Sections 4 (Use Rights) or 6 (Customer Obligations); or (b) to prevent harm or liability to other customers or third parties or preserve the security, stability, availability or integrity of the Optimizely Service. For avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period. Unless this Agreement has been terminated, Optimizely will cooperate with Customer to 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 fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is 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 shall terminate and it must immediately cease use of the applicable Optimizely Service(s) (including any related Optimizely Technology), cease distributing any Optimizely Code installed on its Customer Properties, and 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 any such data in its possession at any time. 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 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).
10 CONFIDENTIAL INFORMATION.
10.1 Obligation of Confidentiality. 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) use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, or contractors having a legitimate need to know (which, for Optimizely, includes the subcontractors referenced in Section 16.4), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 10 and 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 prior to receipt of 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 disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon 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 OPTIMIZELY TECHNOLOGY.
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 herein. Other than the Optimizely Code, the Optimizely Service is offered as an on-line, 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 such Feedback in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Optimizely’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
12 INDEMNIFICATION. Customer will indemnify and hold Optimizely harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to any Customer Data, Customer Property (including services or products provided through such property), or breach or alleged breach of Section 6 (Customer Obligations). Customer also agrees to defend Optimizely against these claims at Optimizely’s request, but Optimizely may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Customer must not settle any claim without Optimizely’s prior written consent if the settlement does not fully release Optimizely from liability or would require Optimizely to admit fault, pay any amounts, or take or refrain from taking any action.
13 DISCLAIMERS. ALL OPTIMIZELY TECHNOLOGY AND RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “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 DOES NOT WARRANT OR GUARANTEE THAT ANY OPTIMIZELY TECHNOLOGY OR RELATED SERVICES (INCLUDING CHANGES CUSTOMER MAKES TO CUSTOMER PROPERTIES) WILL MEET CUSTOMER’S EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE OR PRESERVED WITHOUT LOSS, OR THAT USE OF THE OPTIMIZELY TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE. OPTIMIZELY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SERVICE FAILURES, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS OR CAUSED BY NON-OPTIMIZELY SYSTEMS, NETWORKS, PRODUCTS OR SERVICES. OPTIMIZELY CANNOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. CUSTOMER ACKNOWLEDGES THAT OPTIMIZELY IS NOT A BUSINESS ASSOCIATE OR SUBCONTRACTOR (AS THOSE TERMS ARE DEFINED IN THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT) AND THAT THE OPTIMIZELY SERVICE IS NOT HIPAA COMPLIANT. IN NO EVENT SHALL OPTIMIZELY BE RESPONSIBLE FOR ANY DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON USE OF ANY OPTIMIZELY TECHNOLOGY OR RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
14 LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT NOT PROHIBITED 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 SUCH DAMAGES. IN NO EVENT WILL OPTIMIZELY’S OR ITS SUPPLIERS’ TOTAL LIABILITY TO CUSTOMER 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 PROVIDED WITHOUT CHARGE, OPTIMIZELY’S TOTAL LIABILITY SHALL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 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 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. 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.
15 THIRD-PARTY PRODUCTS AND INTEGRATIONS. The Optimizely Services may include integrations that enable third-party products to access Customer’s instance of the Optimizely Service and export, delete or otherwise alter Customer Data. Customer is solely responsible for this access and for compliance with any applicable third-party terms. Optimizely does not warrant or support third-party products or services (whether or not they are designated by Optimizely as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these products and services and their access to the Optimizely Service and Customer Data.
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 null and 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 at the following address, email@example.com, and include “Attn. Legal Department” in the subject line. Optimizely may send notices to the e-mail 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 such notice on Optimizely’s website or the Optimizely Service. Each party hereby consents to receipt of 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 herein, 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 obligations 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.
16.9 Amendments; Waivers. Optimizely may update or modify this Agreement (including any Service-Specific Terms, referenced policies and other documents) from time to time. If Optimizely modifies the Agreement during Customer’s Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal, except that: (i) changes to the policies referenced herein (such as the Acceptable Use Policy) will take effect thirty (30) days from the date of posting; (ii) if Optimizely launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance; and (iii) any updated or modified Agreement will take effect immediately for Free Access Subscriptions or if Customer accepts new Order Forms or Order Form changes following the modification. Customer may be required to click through the updated Agreement to show acceptance; in any event, continued use of Free Access Subscriptions or any renewal of a Subscription Term following the update shall constitute acceptance of the updated Agreement. If Customer does not agree to the updated Agreement after it takes effect, Customer will no longer have the right to use the Optimizely Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.
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 and not any affiliated entities.
16.12 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.
16.13 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 Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Optimizely Services were developed fully at private expense. All other use is prohibited.
16.14 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. 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.
16.15 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 roles thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be 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. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.