Effective Aug 10, 2024

This Services & Platform Agreement (this “Agreement”) is between OptalX, LLC. (“OptalX”), and Customer (“Customer”).

BY USING THE PLATFORM SERVICES, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND AS A CONDITION TO CUSTOMER’S USE OF THE PLATFORM SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. THE PERSON WHO ENTERS INTO THE ORDER ON CUSTOMER’S BEHALF REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO AND DOES BIND CUSTOMER TO THIS AGREEMENT. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, OPTALX AND CUSTOMER AGREE AS FOLLOWS:

1. PLATFORM SERVICES

1.1 Platform Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, OptalX will make the Platform Services available to Customer during the Term, and for the number of Authorized Users specified in the (“Subscription Plan”), solely for Customer’s internal business purposes as set forth in Section 2.1.

1.2 Authorized Users. Customer’s employees and agents who are authorized by Customer to use the Platform Services (each, an “Authorized User”) may access and use the Platform Services under Customer’s account. Each Authorized User must agree to the Authorized User terms and conditions (the “Authorized User Terms of Service”). Customer is responsible for all actions of its Authorized Users in connection with the Platform Services and their compliance with the terms of this Agreement and the Authorized User Terms of Service.

1.3 OptalX Data and Projects. By using the Platform Services, Customer will have access to (a) OptalX proprietary data models and data sets; (b) data that is curated or otherwise licensed from various sources, and compiled, organized, analyzed by OptalX ((a) and (b) are collectively, the “OptalX Data”), and (c) all of Customer’s advertising data identifiable to Customer or its Customers and any other data that is provided by Customer hereunder (“Customer Data”), and may be accessed by Customer via the Platform Services (collectively, the “Data”). Customer may also access related Projects analyzing the Data (“Projects”).

2. OWNERSHIP

2.1 OptalX Platform Services and Data. As between the parties, OptalX is the sole owner of all rights, title and interest in and to the Platform Services including without limitation, the Platform console, tools, methods, know-how, inventions, features, data models, and data architecture provided or otherwise developed by OptalX including without limitation, in connection with the provision of Platform Services, the OptalX Data, and Projects (except for any Customer Confidential Information or Customer Data contained in such Projects), and any enhancements, modifications, adaptations, or improvements made by OptalX. This includes without limitation, all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights recognized in any jurisdiction in the world (collectively, “Intellectual Property Rights”) therein. OptalX hereby grants to Customer and any Authorized Users, during the Term, the limited revocable and non-transferable right to access and use the Platform Services, OptalX Data, and Projects for Customer’s internal business purposes only.

2.2 Restrictions. Customer acknowledges that the OptalX Materials (as defined below) contain trade secrets of OptalX and its licensors, and, in order to protect such trade secrets and other interests that OptalX has in the Platform Services and any rights OptalX or its licensors have in and to the OptalX Data and Projects (collectively, the “OptalX Materials”), and all Intellectual Property Rights therein, Customer agrees not to reverse engineer, decompile or disassemble the OptalX Materials or authorize a third party to do any of the foregoing. In addition, Customer will not and will not allow its Authorized Users or any third party to: (i) modify, distribute, sell, sublicense or otherwise transfer the OptalX Materials; (ii) copy the OptalX Materials except as strictly necessary to use the OptalX in accordance with the terms of Section 2.1; (iii) make the functionality of the OptalX Materials available to third-party users through any means, including, but not limited to, by uploading the OptalX Materials to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or other use or configuration whereby the OptalX Materials are used by, for the benefit of, or to provide a service on the computer equipment of a third party; (iv) use the OptalX Materials, or any OptalX technology or Confidential Information, to create, improve (directly or indirectly) or offer a substantially similar product or service, or build a competitive product; or (v) repackage, redistribute, or sell the OptalX Materials as an OEM product. In addition, Customer will not share the Data (except the Customer Data that it owns) or Projects with any third party other than its third party service providers who may use the Data and Projects strictly for the purpose of providing services to, and for the sole benefit of, the Customer. Customer will reproduce all of OptalX’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the OptalX Materials that OptalX makes available hereunder.

2.3 Grant of License by Customer in Customer Data. Customer shall own all right, title, and interest in and to the Customer Data and any output from OptalX’s data models that is unique and otherwise identifiable to Customer. Customer hereby grants to OptalX, during the Term, a worldwide, non-exclusive, transferable (only pursuant to Section 10.1), sublicensable, royalty-free license to use, copy, reproduce, modify, create derivative works, and process as necessary, the Customer Data, solely for the purpose of providing the Platform Services and during the Term and thereafter, the right to use such Customer Data in an aggregated manner that is not identifiable to Customer (or its customers) for OptalX’s internal business purposes including improving or adapting the OptalX Materials.

3. FEEDBACK

3.1 Feedback. Customer will: (a) use the Platform Services (including without limitation, any beta elements) and cooperate with OptalX in evaluating the Platform Services; (b) provide OptalX with feedback as requested from time to time. All feedback, comments, and suggestions for improvements that Customer provides to OptalX hereunder, are referred to collectively as “Customer Feedback”. Customer hereby irrevocably transfers and assigns to OptalX and agrees to irrevocably assign and transfer to OptalX all of Customer’s right, title, and interest in and to all Customer Feedback, and Customer will execute documents and take such further acts as OptalX may reasonably request to assist OptalX to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the Customer Feedback.

4. CONFIDENTIAL INFORMATION

4.1 Definition. “Confidential Information” means: (a) the Platform Services (including the existence thereof), and any features produced by, and other information or documentation relating to, the Platform Services (including, without limitation, all OptalX Materials and Customer Feedback); and (b) any business or technical information of OptalX or Customer, including, but not limited to, any information relating to product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or otherwise should be reasonably deemed confidential, and, if orally disclosed, is reduced to writing by the disclosing party within thirty (30) days of such disclosure.

4.2 Exclusions. The obligations in Section 4.1 will not apply to the extent any information: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without access to or use of any Confidential Information that can be evidenced in writing; or (d) is rightfully obtained by the receiving party from a third party without restriction on use or disclosure. In addition, the receiving party may disclose such Confidential Information of the disclosing party that it is required to disclose pursuant to a court order or other judicial process provided, the receiving party shall first give the disclosing party prompt notice and only disclose the minimum amount of information required. OptalX may further disclose under confidentiality the existence of this Agreement to any of its investors, shareholders, or prospective investors or acquirers.

4.3 Restrictions. Neither party will use or disclose any Confidential Information, except as necessary for the performance of this Agreement and each party will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance. Each party may disclose Confidential Information only to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement. In addition, Customer may disclose Projects only to those of its services providers who have a bona fide need to know such Projects for the sole purpose of providing services to Customer; provided, that each such service provider first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Projects as those set forth in this Agreement. To the extent there is a breach of Confidential Information or Intellectual Property Rights, each party may seek injunctive relief in any court of competent jurisdiction without the posting of a bond or other similar requirement.

5. PAYMENT

5.1 Fees. In exchange for using the Platform Services hereunder, Customer will pay OptalX the fees specified in the Subscription Plan in accordance with the terms set forth therein and this Agreement (“Fees”) and any reasonable out of pocket expenses incurred or committed by OptalX and approved by Customer in advance in writing. Any additional services or features that may be provided by OptalX shall be subject to additional fees set forth in either a mutually agreed upon amendment to this Agreement or the execution of a change order.

5.2 Payment Terms. All Fees and other amounts set forth in the Subscription Plan are stated in and are payable in U.S. dollars, and are due and payable in accordance with the timeline specified in the Subscription Plan. To the extent Customer fails to pay such invoice, OptalX may in its discretion, and without limiting its termination or other rights, (i) charge interest at the highest rate permissible, (ii) suspend access to the OptalX Materials; and (iii) to the extent Customer is more than 45 days late, be immediately reimbursed for any collection fees including any reasonable attorney fees or costs. Customer shall be responsible for any recurring Customer data Fees incurred while using the Platform Services. These Fees will be calculated based on 2 the data units and rate set forth in the Subscription Plan and will be automatically charged to the credit card on file throughout each month. Customer agrees to monitor data usage and maintain a sufficient credit balance to cover these charges.

6. WARRANTY DISCLAIMERS

6.1 Warranty Disclaimers. Customer acknowledges that the OptalX Materials are being provided on an “AS IS” basis. OPTALX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, OPTALX DOES NOT WARRANT OR GUARANTEE: (I) ANY RESULTS FROM THE USE OF THE OPTALX MATERIALS, (II) THAT THE OPTALX MATERIALS WILL MEET CUSTOMER’S EXPECTATIONS, OR (III) THAT CUSTOMER’S MEDIA SPENDING BASED ON THE PROJECTS WILL RESULT IN INCREASED RESULTS OR HAVE ANY EFFECT AT ALL. OPTALX DISCLAIMS ALL LIABILITY ARISING FROM ALL THIRD PARTY APPLICATIONS OR DATA INCLUDING, ANY RESULTS OR PROJECTS GENERATED FROM SUCH THIRD PARTY DATA OR CUSTOMER DATA.

7. LIMITATION ON LIABILITY

7.1 Limitation on Liability. EXCEPT FOR BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING THE USE OF OR INABILITY TO USE THE OPTALX MATERIALS OR FOR ANY ERROR OR DEFECT IN THE OPTALX MATERIALS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT OPTALX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

8. INDEMNITY

8.1 OptalX Indemnity. OptalX will indemnify, defend, and hold Customer and its directors and officers and successors and assigns harmless from any and all damages, losses or liabilities, (including reasonable attorney’s fees and costs) (“Losses”) in connection with any finally adjudicated suit, action, settlement, or judgement (“Claims”) brought against Customer to the extent that it is based upon a third party claim that (i) the Platform Services, as provided by OptalX to Customer pursuant to this Agreement infringes any Intellectual Property Rights of any third party, (ii) any violation of applicable federal, state, or local laws, rules or regulations by OptalX; and (iii) any gross negligence or willful misconduct.

8.2 Customer Indemnity. Customer will indemnify, defend, and hold harmless OptalX and its affiliates, investors, directors and officers, and their successors and assigns from any Losses arising from any Claims (including any regulatory investigation claims or third party subpoena) to the extent that it is based upon or arises from (i) any Customer Data, or other Customer materials or content as provided by or on behalf of Customer to OptalX; (ii) Customer’s products or services; (iii) use of misuse of the OptalX Materials including any breach of the rights licensed by OptalX hereunder; and (iv) any violation by Customer of any applicable federal, state or local laws, rules, or regulations; and (v) any gross negligence or willful misconduct of Customer.

8.3 Indemnity Procedure. The indemnifying party’s obligations under this Section 8 are contingent upon: (a) the indemnified party providing the indemnifying party with prompt written notice of such claim; (b) the indemnified party providing reasonable cooperation to the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of such claim; and (c) the indemnifying party having sole authority to defend or settle such claim.

8.4 Exceptions and Exclusions. OptalX’s obligation to indemnify Customer pursuant to Section 8.1 will not apply to the extent any claim results from or is based on: (i) any combination, operation or use of the Platform Services with any product, system, device, method or data not provided by OptalX, if such claim would have been avoided but for such combination, operation or use; (ii) modification of the OptalX Materials by anyone other than OptalX, if a claim would have been avoided but for such modification; or (iii) Customer’s use of the OptalX Materials other than in compliance with this Agreement or (iv) any open source or third party applications or components. If Customer’s use of the Platform Services is, or in OptalX’s opinion is likely to be, enjoined due to the type of claim specified in Section 8, then OptalX may at its sole option and expense: (i) replace or modify the Platform Services to make them non-infringing and of equivalent functionality; (ii) procure for Customer the right to continue using the Platform Services under the terms of this Agreement; or (iii) terminate Customer’s rights and OptalX’s obligation under this Agreement with respect to such Platform Services and refund to Customer a pro-rata portion of the Fees paid for such Platform Services for the time Customer is unable to use the Platform Services. THE PROVISIONS OF THIS SECTION 8 SET FORTH OPTALX’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

9. TERM AND TERMINATION

9.1 Term. This Agreement commences with the Customer’s Subscription Plan and, unless earlier terminated as provided in Section 9.2, will continue in effect for as long as OptalX is providing Platform Services to Customer. Each Subscription Plan will automatically renew for equal and successive renewal terms, unless either party provides written notice of non-renewal at least three (3) days before the end of the Subscription Plan term.

9.2 Termination. OptalX may terminate this Agreement immediately upon written notice to Customer in the event that (i) OptalX discontinues the Platform Services or any of the Data or Projects (in which case Customer will be entitled to a refund of any pre-paid fees); or (ii) Customer fails to pay the Fees in a timely manner or (iii) Customer breaches Sections 2, 4 or infringes or otherwise violates OptalX’s Intellectual Property Rights in and to OptalX Materials. In addition, either party may terminate this Agreement upon notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) business days following written notice specifying the breach, to the extent such breach is curable. If Customer terminates this Agreement in violation of this Section 9.2 or OptalX terminates this Agreement for breach, all unpaid fees due and owing through the end of the Term shall be accelerated and paid immediately by Customer.

9.3 Effect of Termination. Upon any termination or expiration of this Agreement: (a) the rights and licenses granted to Customer under this Agreement will automatically terminate; (b) Customer will promptly deliver to OptalX the Customer Feedback and any accrued but unpaid Fees and expenses incurred or committed to be incurred by OptalX with Customer’s prior approval; and (c) within five (5) days after any such termination or expiration, each party will, at its expense, return to the disclosing party (except for any archived electronic communications which may be stored confidentially) all Confidential Information in the receiving party’s possession or control.

9.4 Survival. The provisions of Sections 2, 3, 4, 5, 6, 7, 8 (in accordance with its terms), 9.3, 9.4 and 10 will survive any termination or expiration of this Agreement.

10. GENERAL PROVISIONS

10.1 Assignment. Neither party shall assign this Agreement without the other party’s prior written consent except for any merger, consolidation, or acquisition of all or substantially all of a party’s assets.

10.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, USA (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Los Angeles County and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

10.3 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.

10.4 Waiver. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.

10.5 Notices. All notices required or permitted under this Agreement will be in writing and delivered by email.

10.6 Entire Agreement. This Agreement and the attached exhibits constitute the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

10.7 Force Majeure. Except for Customer’s payment obligations, if either party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials, governmental restrictions, regulation or controls, judicial orders, enemy or hostile governmental action, terrorist act, civil commotion, riot, fire, unicorn sighting, earthquake, or natural disaster, or other causes (except financial causes) beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused for a period equal to the period of such event.

10.8 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

11. MISCELLANEOUS

11.1 Publicity. Provided that a party complies with any trademark usage requirements notified to it by the other Party, each Party may refer to the other party as a customer (for OptalX) and a vendor (for Customer) and use the other Party’s logo as part of such reference.

11.2 Fee Increase. OptalX may increase Fees for Platform Services, which will be effective at the beginning of the next Subscription Plan term. OptalX will notify Customer of any increase prior to it becoming effective; notice may be in the form of an invoice or email.

11.3 Data Access and Security. Customer grants OptalX limited, non-exclusive permission to utilize Customer’s login credentials provided through the Platform Services to access Customer’s ad accounts for the purpose of obtaining data necessary for operation. Customer represents and warrants that it has the full right and authority to grant OptalX access to its ad accounts using the provided login credentials. Both parties agree to implement reasonable security measures to protect the confidentiality and integrity of the login credentials and any data accessed. Customer agrees to cooperate with OptalX in troubleshooting and resolving any authentication issues that may arise during the use of the login credentials. 

11.4 Customer Communications. Customer authorizes OptalX to use the email address provided during the signup process for operational communications related to the Platform Services, including but not limited to account updates, technical support, and billing information. Customer consents to receiving promotional communications, including but not limited to product updates, marketing materials, and newsletters, from OptalX at the email address provided. Customer may opt-out of receiving promotional communications at any time by following the unsubscribe instructions included in each email or by contacting OptalX directly.