OPTIMA™ Terms & Conditions
- PURCHASE AND PAYMENTS: For the Annual Grand Total indicated on the front of this agreement, Publisher agrees to provide the Services designated on the front of this agreement to Advertiser for a period commencing on the signature date on the front of this agreement and continuing for a period of twelve months. Unless canceled in advance by Publisher or Advertiser as described in Section 2 below, Publisher may in Publisher’s sole discretion provide Services for continuing annual periods for an additional sum equal to the fixed annual rate shown on the face of this agreement. Advertiser may terminate services at the end of the original or any subsequent annual period by sending Publisher a notice of nonrenewal. In the event that the Advertiser has a current unpaid balance from a previously purchased advertising product or service, any amounts paid by Advertiser upon execution of this agreement or subsequently collected by Publisher may be applied by Publisher in its sole discretion to the prior balance outstanding, including finance charges and late fees. Payment by check represents Advertiser’s express authorization that returned checks may be electronically re-presented and that Publisher may draw a check on or electronically debit Advertiser’s account for the lesser of a return fee of $25 or the state allowed maximum fee. In the event that Advertiser is or becomes past due and fails to fully pay any undisputed amount owed to Publisher for any goods or services provided by Publisher to Advertiser on a timely basis, Publisher may in its sole discretion terminate this agreement, or deny or suspend access to the Services until the delinquency is cured. If Advertiser’s delinquency in payment causes Publisher to terminate, deny, or suspend the Services, Advertiser will continue to owe Publisher the amount represented by the Annual Grand Total plus any other contractual fees or costs under this agreement. Publisher may restore Services through the end of the then current term when such a delinquency is cured.
- AUTOMATIC RENEWAL: In order to ensure continued and uninterrupted Advertiser and consumer access to the Services described in the following sentence, Advertiser’s payment for the Services may be AUTOMATICALLY RENEWED by Publisher on a recurring annual basis after the first year of service until such time as either Publisher or Advertiser choose to terminate the Services. Upon renewal, Publisher will charge or bill Advertiser the fixed annual rate shown on the face of this agreement and Publisher will continue to provide the Services generally described herein, including as the case may be, to host Advertiser’s Testimonial Page, accept additional or new information to update and modify Advertiser’s Testimonial Page templated content as requested by Advertiser, to submit modifications or additions to Advertiser’s business listing information at the online sites designated in the initial order, or in the sole discretion of Publisher, an equivalent number of similar sites consistent with those then shown here that Publisher then currently offers enhanced data or claiming services on. In the event that review solicitation, syndication, or review monitoring services have been purchased, Publisher will also continue to provide Advertiser with notification of reviews posted about Advertiser on up to 15 publicly accessible review sites and Publisher will provide Advertiser with a supply of Recommendation Cards in an amount similar to the initial number ordered, approximately four to seven weeks after the renewal date. During the initial term and subsequent renewal terms, in the Publisher’s sole discretion, Publisher may (but shall not be required to) begin to or continue to aggregate and re-display (or may discontinue the aggregation and re-display of) positive public reviews from various public third party review websites on the Testimonial Page. Advertiser and Publisher agree that payment for any such renewal shall be made in the sole discretion of Publisher by ACH debits as described below, by traditional invoicing and timely payment, or by charging the credit card provided by Advertiser at the time of purchase for the initial term on or within twelve weeks of the anniversary renewal date. (The renewal may occur on the first business day following the applicable renewal date if the renewal date is not a standard business day). In order to prevent automatic renewal, Advertiser may provide Publisher a notice of non-renewal consistent with Section 11 “Notice” below or may simply send Publisher an e-mail to email@example.com at least 10 days prior to the next annual automatic renewal date, in either case clearly stating the Advertiser’s intention not to be automatically renewed and stating the name of the business and the name of the person authorized to cancel the automatic renewal. Publisher will send Advertiser an email reminder of the pending automatic renewal at least 15 days in advance.
- NON-RENEWAL, TERMINATION, OR EXPIRATION OF OPTIMA™ SERVICES: In the event that Publisher or Advertiser terminates OPTIMA™ Services, or Publisher or Advertiser does not allow automatic renewal of the Services, declines to affirmatively renew, or declines to continue providing services at the end of a one year service period, or in the event Advertiser refuses or fails to pay for services when due, Publisher: (a) will discontinue hosting Advertiser’s content for Advertiser’s Testimonial Page and the content, including positive review content, if any, may be permanently lost; (b) will make best efforts to remove the enhanced content, photos, links, and business profile information (other than name, address, phone number and primary business classification) that Publisher has aggregated, submitted, or managed at the designated sites on behalf of the Advertiser within six months of the termination or expiration of Services. During the initial term of this agreement and any renewal term and so long as Advertiser has paid Publisher in full for the services that are the subject of this agreement through the end of the then current term, then upon written request and the furnishing and execution of appropriate forms acceptable to Publisher by Advertiser, Publisher agrees that it will transfer the domain name it owns and uses to host Advertiser’s website to Advertiser for a one-time fee of $175.00. Otherwise, Publisher will return the domain name to the registrar it was purchased from. In addition, during the initial term of this agreement and any renewal term and so long as Advertiser has paid Publisher in full for the services that are the subject of this agreement through the end of the then-current term, then upon the written request of Advertiser, Publisher agrees to provide Advertiser with any credentials to particular sites requested by Advertiser that Publisher has created and saved for administration or management of listing information or content at third party sites on Advertiser’s behalf.
- ADDITIONAL OR SUBSEQUENT PURCHASES: Advertiser may purchase continuing Services or additional Services, including other print, online, or mobile advertising services or products, support programs, or hourly development or consulting services from Publisher. Advertiser and Publisher agree that in the case of any such subsequent purchases or in any other instance where a typed written agreement is not signed by the Advertiser and Publisher but an agreement is made orally and recorded by Publisher, Advertiser and Publisher intend that the General Terms & Conditions contained in this agreement, including those incorporated by reference as they are modified from time to time, shall apply.
- AUTHORIZATION AGREEMENT FOR DIRECT PAYMENTS (ACH DEBITS): Advertiser authorizes Publisher from time to time to recover payments from Advertiser for (a) the amount of returned checks and returned check fees, (b) other amounts owing to Publisher that are the subject of this or any contract between Publisher and Advertiser, and (c) amounts periodically due from Advertiser to Publisher to automatically annually renew and continue Services as described above. In each case, Publisher may initiate ACH electronic debit entries to any of Advertiser’s accounts identified on any checks and other items issued by Advertiser to Publisher for any services, and by debiting such amounts from such accounts. Advertiser represents to Publisher and agrees that all such accounts are and shall be used primarily for business purposes. Advertiser may revoke this authorization only by notifying Publisher in a notice that complies with Section 11 “Notice” below. A revocation notice is not effective until it is received by Publisher and Publisher has a reasonable opportunity to act on the revocation. Advertiser agrees to be bound by the operating rules of the National Automated Clearing House Association (NACHA) as are in effect from time to time.
- BUSINESS DATA COLLECTION, SUBMISSION AND DISTRIBUTION, REVIEW MONITORING AND ALERTS. Publisher will assist Advertiser in compiling and enhancing Advertiser’s business information or claiming Advertiser’s online listings on the online sites shown on the Essential Data Collection Form and will assist the Advertiser with the collection and distribution of Advertiser-verified essential business information to these sites, with the objectives of increasing the online accuracy and completeness of displayed Advertiser information at those sites, including appropriate online categorization, physical address, Testimonial Page URL or main company website URL, and phone number and increasing the frequency of Advertiser’s accurate business information being present in the results of consumer searches. Advertiser understands that they may need to verify the authenticity of the data that Publisher submits on their behalf, either by phoning or taking a phone call from the particular online site, by registering with the site online, or by entering or by sharing with Publisher a verification code that comes to Advertiser in the postal mail or via e-mail, and that without assisting the Publisher in that way, Publisher may be unable to help them successfully submit their enhanced business data or claim their listing at that online site. Publisher and Advertiser agree that Publisher may create user names and passwords specific to Advertiser’s business as a part of establishing the Advertiser’s online listings. Advertiser authorizes Publisher to interact with search sites on Advertiser’s behalf in furtherance of providing the Services. Advertiser acknowledges that Publisher has no direct control over or responsibility for how third parties such as search engines, online directories, internet yellow pages, navigation systems, directory assistance databases, or search portals use data submitted by Publisher in fulfilling internet search queries or any particular placement of data or information from Advertiser. In the event Publisher determines that one or more of the particular sites selected as a part of the program purchased by Advertiser is not responsive to Publisher’s efforts or that it cannot efficiently or cost effectively submit Advertiser’s data to the site, Publisher may in its sole discretion either submit Advertiser’s enhanced listing information to a different online site or sites or, upon due and diligent effort consider the work fulfilled and cease further effort at that particular site. In addition, Publisher may provide listings claiming and other services at additional sites not initially purchased or shown, in Publisher’s sole discretion if Publisher reasonably believes that it would assist Advertiser in developing a better online presence or visibility. Advertiser understands that there is most frequently a substantial delay, which may last months or longer, between the time verified business data is submitted and distributed by the Publisher to other firms related to internet search and the time that such data is first reflected in the results shown at such sites or returned by search engines. Advertiser grants to Publisher and to any third parties under contract with Publisher the right to use, disseminate, display, and sublicense the business data collected. If Advertiser, as shown on the front of this Agreement, has purchased Services which include the Reputation Management Program, Publisher will monitor the consumer reviews left on up to 15 prominent public reviews sites and will notify Advertiser by email of the new reviews that it detects as it detects them. Such a review notification email may contain the text of the review or a link to the review site where the public commentary was left. Publisher may also, in its sole discretion, selectively collect and re-display positive reviews from third party review sites on the Testimonial Page that it creates and host for Advertiser. Publisher cannot and will not notify Advertiser of all online commentary regarding Advertiser, nor will Publisher monitor all of the hundreds of review sites that can be found on the internet. However, Advertiser will monitor and provide to Advertiser data about reviews left on those sites where review monitoring may be efficiently and economically effectuated in the sole discretion of Publisher, on a timely basis.
- TERMINATION, INDEMNITY, LIABILITY AND DISPUTES: Publisher reserves the right to cancel for convenience the Services contracted for herein upon written notification to the Advertiser, and Publisher agrees in such a case only to return a ratable portion of the fees paid for the Services based on Publisher’s work completed prior to the cancellation. In the event that Publisher suspends or terminates Services due to Advertiser noncompliance with the terms of this agreement, including delinquency in paying, such termination shall not thereby relieve Advertiser of payment or other contractual obligations herein. This agreement is intended to benefit Advertiser, Publisher, and Publisher’s suppliers, vendors, and providers. IN NO EVENT WILL PUBLISHER OR PUBLISHER’S EMPLOYEES, THIRD PARTY PROVIDERS, SUPPLIERS OR VENDORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF PUBLISHER HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN THE CASE OF ANY ERRORS OR OMISSIONS OF THE PUBLISHER (including those of any data aggregators, application providers, distributors, data storage vendors, software developers, and other technology or service vendors and any other partner, supplier, provider, vendor, or agent of Publisher) ADVERTISER AGREES THAT THE TOTAL AMOUNT OF DAMAGES THAT ADVERTISER MAY RECOVER SHALL NOT EXCEED THE AMOUNT ADVERTISER HAS PAID TO PUBLISHER FOR SERVICES OR GOODS THAT ARE THE SUBJECT OF THIS AGREEMENT DURING THE 12 MONTH PERIOD PRIOR TO THE DATE THE ERROR(S) OR OMISSION(S) FIRST OCCURRED. Advertiser agrees to defend, indemnify and hold harmless Publisher, and its business partners, third party suppliers and providers (including without limitation any data aggregators, application providers, data storage vendors, software developers, distribution vendors, and other technology or service vendors and any other partner, supplier, provider, vendor or agent of Publisher), licensors, officers, directors, employees, distributors and sales agencies from and against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorney’s fees) in connection with any claim or action that (i) arises from any alleged or actual breach of this agreement (ii) arises from the content or effects of any content, images, data, information, or messages Advertiser or Publisher distributes in providing the Services or (iii) that otherwise arise from or relate to Advertiser’s use of the Services. In the event of any action arising out of or concerning this agreement brought by Advertiser or Publisher, the action will be governed by the laws of the State of Illinois (notwithstanding its conflicts of law rules or principles). Any dispute arising out of or relating to this agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by binding arbitration administered by JAMS in accordance with its Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator, and shall be conducted in DeKalb County, Illinois. Each party shall bear its own costs relating to such arbitration, and the parties shall equally share the arbitrator’s fees. Judgment on any award resulting from such arbitration may be entered in any court having jurisdiction. This clause shall not preclude Publisher from seeking injunctive relief in aid of arbitration, or pending the outcome of arbitration, from a court of competent jurisdiction. If this arbitration provision is deemed invalid, the parties agree that the court of proper and exclusive jurisdiction to resolve any action arising out of this agreement shall be the 16th Judicial Circuit Court in DeKalb County, Illinois. Each party hereby waives any right it may have to participate in any class actions or class arbitrations.
- PERSONAL GUARANTEE: The individual signing this agreement on behalf of Advertiser agrees that he/she has the authority and is signing this agreement (1) in his or her own individual capacity (2) as an authorized representative of the Advertiser and (3) as a representative of the entity for whose benefit the service is being purchased (if such entity is not the same as the Advertiser.) By his/her execution of this agreement, the signer personally and individually undertakes and assumes jointly and severally with the Advertiser, the full performance of this agreement, including payment of amounts due hereunder.
- WARRANTY DISCLAIMER: Advertiser’s use of the Services and any reliance by Advertiser upon the Services, including any action taken by Advertiser because of such use or reliance, is at Advertiser’s sole risk. The Services are provided by Publisher on an “AS-IS” and “AS-AVAILABLE” basis. Publisher does not warrant that the Services or any associated service provided by Publisher will be uninterrupted or error free, or that Advertiser’s use of the Services will result in particular improvements in search engine rankings, page one rank, or a positive customer response. Publisher is excused from any non-performance to the extent caused by circumstances beyond its control, including but not limited to, acts of God, war, civil disturbance, electrical outages, mechanical failure, failure of heat, ventilation, or air conditioning, labor disputes, telecommunications or other utility outages, or any law or order of any governmental agency or authority. PUBLISHER DISCLAIMS ALL WARRANTIES OR OBLIGATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- This agreement shall constitute the entire agreement between the parties. Any prior understanding or representation of any kind preceding the date of this agreement shall not be binding upon either party except to the extent incorporated in this agreement. If any provision of this agreement is, for any reason, deemed unenforceable or in violation of law, such unenforceability or violation will not affect the remaining provisions of this agreement, which will continue in full force and effect and be binding upon the parties hereto.