EMAIL SERVICES ADDENDUM TO EULA
This Email Services Addendum to EULA (this “Addendum”) applies to licenses of XMPie Software (“Users”) who have contracted with XMPie for services. This Addendum supplements the XMPie End User License Agreement (”EULA”). Any capitalized terms used in this Addendum without definition have the meanings set forth in the EULA.
RECITALS
WHEREAS, XMPie is licensing to User certain XMPie software under the EULA; and WHEREAS, XMPie wishes to provide User with electronic access to email marketing software over a computer network and related technical support services (collectively,
“Services”); and
WHEREAS, User is willing to use the Services on the terms and conditions hereof;
XMPie and the User agree as follows:
1. USE. User may use the Services only in and for User’s own internal purposes and business operations. User may not use the Services as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the email marketing software accessed by User hereunder, in whole or in part, is granted except as expressly provided by this Addendum. Neither User nor any of User's affiliates shall reverse engineer, decompile or disassemble the email services software. Nothing in this Addendum will entitle User or any of User's affiliates to access or use the source code of the XMPie software.
2. ANTI-SPAM POLICY. User hereby acknowledges that jurisdictions vary in the manner that commercial electronic mail transmission is regulated. It is User's sole responsibility to verify and to comply with the applicable laws, rules and regulations that govern the transmission of such messages. Without prejudice to the above, User may use the Services to send electronic mail messages to customers, subject to the following restrictions:
a. User may send electronic mail messages only to customers and prospects that have directly consented (opted-in) to receive email messages. User may not transmit unsolicited commercial e-mail messages.
b. User may not use purchased, rented or harvested electronic mail addresses lists, or
any other list that contains electronic mail addresses captured in any other method than opt-in.
c. User may not transmit electronic commercial e-mail messages in violation of the addressees’ right to privacy.
d. User may be required to reconfirm or stop transmitting messages to addressees included in an existing mailing list if such message transmission is determined to be in violation of this Addendum or any applicable law, rule or regulation. Repeated violations or failures to comply may result in the termination of User's account.
e. User will use the Services in strict compliance with the Can-Spam Act of 2003,
15 U.S.C. § 7704(a).
3. MESSAGE VOLUME. User may use the Services to send the number of e-mail messages in each three-month period that User has indicated on the Commitment Subscription page, which is available at: http://email.services.xmpie.com.
a. Additional Credits. User may buy additional credits ("Additional Credits") at any time to increase the number of messages which User is permitted to send in the then- current three-month period, at the Extra Credit price indicated in User's Subscription plan.
b. Overage. XMPie will notify User if User has sent more e-mail messages ("Overage") in a three-month period than User has paid for in User’s Subscription plan, including any Additional Credits. User agrees to purchase Additional Credits to cover User’s Overage before the end of such three-month period. The maximum Overage is defined in User's Subscription Plan. The Overage price is indicated on User's Subscription page.
c. Email Account. Associated with every subscription is the Email Account ("Default Account"). User may, at User’s option, purchase separate and additional email accounts ("Additional Account") under the same subscription. Each account will be isolated and privately managed, so as to protect User's customers from spam-reports reported by recipients of other customers with other accounts. An account (Default Account or Additional Account) physical address, supplied by User at the time of account purchase must be the real physical address of User's business or User's customer’s business as required by the CAN-SPAM Act. Additional Account pricing is defined in User's Subscription page. Each Account must be renewed annually. If User's does not renew the Default Account or Additional Account, it may be closed automatically, and all opt-out information, as well as other information stored at the Account, will be deleted.
4. REGISTRATION AND USER ACCOUNT.
a. When User registers with the Service, XMPie may ask User to provide certain contact information and other personal information. User shall submit true, accurate and
complete information. False, incorrect or outdated information may prevent User from registering and impair XMPie’s ability to provide User with the Services. XMPie will explicitly indicate the fields which are mandatory. If User does not complete the data in these fields, User will not be able to register with the Services.
b. To log in, User must use User’s user name and password. From time to time, XMPie may establish and require additional or different means of identification and authentication for logging in and accessing the Services.
c. User agrees to maintain User’s XMPie E-mail Services (and all Account) password in absolute confidentiality and refrain from disclosing User’s XMPie E-mail Services password to others.
d. User assumes full responsibility for any damage, loss or claims resulting from User’s failure to provide true, accurate and complete information upon registration, and for any use or misuse of User’s account as a result of conveying User’s user name and/or password to a third party.
5. FEES.
a. Setup Fee. In consideration for receiving a license to use the Service, User will pay to XMPie a one time, non-refundable setup fee in the amount set forth on the Subscription Page.
b. Services Fee. During each three-month term, in consideration for the Services, User will pay to XMPie a non-refundable Service Fee in the amount set forth in the Subscription Page.
c. Additional Credits. If User wishes to purchase Additional Credits, User will pay to XMPie a non-refundable Additional Credit fee at the price set forth in the Subscription Page.
d. Overage Fee. XMPie will notify User of any Overage via email and via the XMPie E-mail Services website. User agrees to buy Additional Credits to cover User’s Overage before the end of the then-current three-month period.
6. CONFIDENTIALITY. User hereby acknowledges that the Services and any other information provided to User by XMPie incorporate confidential and proprietary information developed by, acquired by, or licensed to XMPie ("Confidential Information"). User will take (and will cause User’s affiliates to take) all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information.
Neither User nor any of User’s affiliates will make any unauthorized use of the Confidential Information or disclose, in whole or in part, any part of the Confidential Information to any individual or entity, except to those of User's employees or consultants who require access for User's authorized use of the Confidential Information and agree to comply with the use and nondisclosure restrictions applicable to the
Confidential Information under this Addendum. User acknowledges that any unauthorized use or disclosure by User or any of User's affiliates of the Confidential Information may cause irreparable damage to XMPie. If XMPie becomes aware of User's breach or threatened breach of this Section 3, XMPie may suspend any and all rights granted to User under this Addendum and shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to XMPie.
7. INDEMNIFICATION. User shall indemnify and hold XMPie, its affiliates, and its and their officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorney’s fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with (i) a breach of User's obligations hereunder, (ii) any breach of User's representations and/or warranties contained herein, (iii) XMPie’s use, in connection with the performance of the Services hereunder, of any email addresses, User's end user information, or other information that XMPie obtains from User or any of User's affiliates for purposes of providing such services, (iv) any content provided by User or any of User’s affiliates, (v) any emails, newsletters, or other materials sent out by User or any of User’s affiliates using the Services, (vi) any violation of the Anti-Spam Policy herein.
8. USER'S REPRESENTATIONS AND WARRANTIES. User hereby represents and warrants to XMPie that:
a. User is authorized to enter into this Addendum. User affirms that User is 18 years of age or older. If User is under 18 years of age, User may not use the Services on behalf of himself or any business entity, and User must not provide XMPie with any of User’s personal information.
b. No information delivered by User to XMPie in support of this Addendum will infringe on any copyright, patent, trade secret or other proprietary right held by any third party.
c. User will not use the Services in a manner that violates any law or regulation.
Neither User nor any of User's affiliates will use the Services for purposes of, or transmit via the Services, (i) any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or foreign law, including without limitation the U.S.
export control laws and regulations; (ii) any chain letters, pyramid schemes or other deceptive, misleading, and/or fraudulent content; (iii) any unsolicited commercial or non- commercial communication; (iv) any emails with deceptive, misleading or false subject lines or header information that makes it difficult to identify the initiator of the email; or (v) any information containing a virus, Trojan horse, worm, or other harmful component.
d. Each person to whom email addresses are provided to XMPie by User or any of User's affiliates (i) can or will be categorized as an "opt-in" recipient by such person’s agreement with User to receive such information via email, and (ii) has not or will not have notified User or any of User's affiliates of such person’s desire not to receive email (i.e., no such person has "opted out" of the receipt of email with respect to User or User's products or services or any of User's affiliates or their products or services).
e. The use of the Services is subject to XMPie’s privacy policy which is available at:
http://www.xmpie.com/privacy. XMPie may use personal information in accordance with XMPie’s privacy policy and User will provide any person whose personal information is used through the Services, accordingly.
9. OUTAGE POLICY. USER ACKNOWLEDGES AND UNDERSTANDS THAT
XMPIE DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE AND THAT XMPIE MAY OCCASIONALLY EXPERIENCE "HARD OUTAGES" DUE TO INTERNET DISRUPTIONS THAT ARE NOT WITHIN THEIR CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THIS ADDENDUM.
10. DISCLAIMER OF WARRANTIES. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, XMPIE AND ITS APPLICABLE SERVICE PROVIDER(S) EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE APPLICATION SOFTWARE AND APPLICATION SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APPLICATION SOFTWARE OR APPLICATION SERVICES, WHETHER MADE BY EMPLOYEES OF XMPIE OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS ADDENDUM, SHALL BE DEEMED TO BE A WARRANTY BY XMPIE FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF XMPIE WHATSOEVER.
11. USER'S MARKS. XMPie and its applicable service provider(s) may use User's trademarks and trade names ("Marks") solely in connection with the authorized provision of the Services. Any other use of User's Marks shall be with User's prior written consent and subject to all written guidelines regarding the use of User's Marks.
12. TERM AND TERMINATION.
a. Term. The term of this Addendum will commence on the Effective Date and will continue for twelve (12) months.
b. Automatic Renewal. The Term will renew automatically for successive twelve (12) month terms. XMPie will notify User of renewal not less than one calendar month prior to the expiration date of the then-current 12-month Term. User may, at User's option and upon notice to XMPie, upgrade, downgrade, or terminate this Addendum during such one-month renewal notice period.
c. Termination for Cause. XMPie may terminate User's right to use the Services and this Addendum in the event User fails to cure any material breach of the EULA and/or this Addendum (including User's failure to pay fees when due, or settle any debt to XMPie in respect to any XMPie product or services that User licensed, purchased or used) within thirty (30) days after written notice. Either party may terminate this Addendum in the event such party files or has filed against it any bankruptcy or similar proceeding or enters into any form of arrangement with its creditors (provided such filing is not removed within sixty (60) days thereof).
d. Termination for Convenience. User may terminate these Terms at any time effective on written notice to XMPie by e-mail, with a copy by postal mail to XMPie Inc., 485 Lexington Avenue, 10th Floor, New York, NY 10017, provided, however, that User shall not be entitled to any refund or credit upon such a termination (including with respect to the unexpired portion of the 12-month Term). User's duty to pay any outstanding fees, including fees for the unexpired portion of the 12-month Term and any Overage fees, will survive termination of these Terms.
e. Effect of Termination. Upon termination of this Addendum, XMPie shall terminate User's access to the Services, and delete User's account and data, and Termination of this Addendum shall be in addition to, and not in lieu of, any equitable or other remedies available to the terminating party.
f. Survival. Sections 4-13 of this Addendum will survive termination of this Addendum.
13. Miscellaneous. The provisions of Section 18, Miscellaneous, of the EULA apply to this Addendum.
