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Safe Harbor

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Monster Mail Safe Harbor Policy

1. SCOPE OF POLICY

2. COLLECTION AND USE OF PERSONAL DATA

3. DISCLOSURES/ONWARD TRANSFERS OF PERSONAL DATA

4. SENSITIVE DATA.

5. DATA INTEGRITY AND SECURITY

6. RIGHT TO ACCESS, CHANGE OR DELETE PERSONAL DATA

7. CHANGES TO THIS POLICY

8. QUESTIONS OR COMPLAINTS

9. ENFORCEMENT AND DISPUTE RESOLUTION

10. DEFINED TERMS

End User Services Agreement

1. Services. The Services assist customers to distribute electronically customer-created content to customers’ lists of subscribers, each of whom must have consented previously to the receipt of such content (“Recipients“). While Customer retains Monster Mail to assist with the transmittal of content to its Recipients, Customer acknowledges that Monster Mail does not actually send Customer content to Recipients on Customer’s behalf. The Services comprise primarily of a web-based technology platform through which such content is delivered once Customer sends such content. Among other things, Monster Mail provides customer support and formatting assistance for the electronic content Customer desires to distribute. In all cases, Monster Mail simply acts as agent for Customer with its authorization. Customer agrees that the Services are used only for Customer’s business purposes. If Customer does not intend to use the Services for business purposes, Customer must contact us at support@monstermail.com.
2. Site and Policies. During the Term (as defined below) and subject to the terms and conditions set forth herein and in any guidelines, rules or operating policies that Monster Mail may establish and post from time to time on www.monstermail.com (the “Site“), including, without limitation, Monster Mail’s anti-spam policy, privacy policy and prohibited content and commerce statement, each of which is incorporated herein by reference (collectively, the “Policies“), Monster Mail agrees to use commercially reasonable efforts to provide Customer with the Services. From time to time, Monster Mail may modify the terms and conditions set forth in this Agreement and/or in the Policies. All such changes shall become effective once posted on the Site, and Customer’s use of the Services thereafter shall be subject thereto. In the event of any conflict between any term or condition set forth in this Agreement and in a Policy, the former shall govern. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by Monster Mail with respect to future functionality or features.
3. Professional Services. In addition to the Services, Customer may purchase certain premium services by making its selection therefor in accordance with the instructions posted at www.monstermailplus.com (the “Professional Services“), which Professional Services may be customized pursuant to a mutually agreed upon written statement of work provided to Customer upon the earlier of its request or its selection of desired Professional Services (each, a “Statement of Work“). The Professional Services are provided by Monster Mail separate and distinct from the Services and are not required for Customer’s use or enjoyment of the Services. In the event of any conflict between any term or condition set forth in this Agreement and in a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly agree otherwise in such Statement of Work. Any Statement of Work may be modified or amended only with the written consent of each of Monster Mail and Customer.
4. Free Trial Period. In the event Customer elects to use the Services on a trial basis, Customer will not be billed for such use for a period equal to thirty (30) days or, if a different number of days are posted on the landing page through which Customer subscribes to use the Services, that different number of days, beginning on the date on which Customer first subscribes to use the Services and indicates its agreement with the terms and conditions set forth in this Agreement (the “Trial Period“). During the Trial Period, Customer’s subscriber level limit may not exceed 100 Recipients and Customer’s monthly email send limit may not exceed four (4) times the number of permitted Recipients (i.e., 400 emails per month), unless a higher subscriber level and/or a higher monthly email send limit are posted on the landing page through which Customer subscribes to use the Services. The subscriber level and email send limits for the Trial Period are subject to change at any time. Once Customer completes its free trial period or exceeds any such limit (even if Customer manually removes names from its Recipient list), whichever occurs first, the Trial Period will terminate. Upon such termination, Customer may purchase a monthly or annual subscription for the Services. Customer’s access to the Services will be disabled until payment therefor is received. Monster Mail reserves the sole and exclusive right to modify the duration of the Trial Period.
5. Monster Mail Free Edition. If Customer subscribes to use the Services through a free customer account (“Monster Mail Free Edition“), Customer’s use of the Services will be subject to the terms, conditions and restrictions (including subscriber level limits) set forth herein and posted on the landing page through which Customer subscribes to Monster Mail Free Edition. If Customer exceeds any such limit (even if Customer manually removes names from its Recipient list), its access to the Services may be disabled. In such event, Customer may purchase a monthly or annual subscription for the Services. Customer’s access to the Services will be disabled until payment therefor is received. Monster Mail reserves the sole and exclusive right to modify any of these terms, conditions and restrictions. All such modifications shall become effective once posted on the Site. Customer acknowledges and understands that its use of the Service through Monster Mail Free Edition may be limited in terms of functionality, features and support as compared with the Services provided through Monster Mail’s standard paid customer accounts. Customer may upgrade from Monster Mail Free Edition to a standard paid customer account at any time.
6. Purchase. Pricing for the Services is based upon the subscriber level Customer chooses to purchase as indicated on the landing page through which Customer subscribes to use the Service or in a negotiated sales order, as the case may be (in either case, the “Sales Order“). The Sales Order records Customer’s subscriber level, term, subscription fee, payment method and other account information. If the number of Recipients stored in Customer’s account exceeds the subscriber level set forth in the Sales Order, Customer’s access to and use of the Services will be disabled until Customer: (i) reduces the number of Recipients stored in Customer’s account; or (ii) upgrades its subscriber level to at least equal the number of Recipients stored in its account. Customer may upgrade (but not downgrade) Customer’s subscriber level at any time during the term of this Agreement. The total number of emails per month that may be sent by Customer cannot exceed six (6) times the subscriber level limit. For example, if Customer’s subscriber level limit is 100,000, Customer can send up to 600,000 emails per month. If Customer requires a sending limit higher than six (6) times Customer’s subscriber level limit per month, Customer should contact Monster Mail’s sales group at sales@monstermail.com or 866-775-4254.
7. Fees and Payment. In consideration for the Services to be provided by Monster Mail (other than through Monster Mail Free Edition), Customer agrees to pay the monthly subscription fees set forth in the Sales Order (the “Subscription Fees“). Paid Subscription Fees are non-refundable. Customer acknowledges that from time to time, delivery of email messages sent using the Services may be blocked or prevented at destination email servers. Customer’s payment obligation set forth herein continues regardless of whether delivery of such email messages is prevented or blocked. In consideration for the Professional Services to be provided by Monster Mail, if any, Customer agrees to pay the fees posted at www.monstermailplus.com, set forth in the Statement of Work or as otherwise provided to Customer by Monster Mail, (the “Professional Fees,” together with the Subscription Fees, the “Fees“). All Fees are exclusive of taxes, levies, or duties imposed by taxing authorities. Unless collected and remitted by Monster Mail, Customer is responsible for payment of all taxes due to a governmental authority, if any, except for taxes imposed on Monster Mail’s net income. Customer shall provide to Monster Mail any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax or other tax liability. Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be due immediately upon receipt of invoice; or may be pre-paid in advance; or otherwise may be paid pursuant to the terms set forth in the Sales Order. If Customer is paying for the Services with a credit card, Customer hereby authorizes Monster Mail to charge such credit card for Fees on a regular basis until such time as Customer’s account is terminated. If Customer is paying for the Services by credit card and such credit card is declined, Monster Mail will send Customer notice thereof to Customer’s email address on record. If Customer misses a payment, Monster Mail may notify Customer by phone or mail, but has no obligation to do so. Any payment due and not received by Monster Mail by the due date may be subject, at Monster Mail’s sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue until paid in full. In the event Customer fails to make timely payments when due, Monster Mail may, at its election, discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein. For amounts outstanding after ninety (90) days from its receipt of the invoice therefor, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses. From time to time, and at any time, Monster Mail may require reasonable credit guarantees before continuing its provision of the Services or the Professional Services hereunder.
8. Customer’s Recipient Data. In offering the Services, we may collect personal information about Recipients. Monster Mail will not own any data, information or material that Customer submits to Monster Mail in connection with the Services (“Customer Recipient Data“). Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Recipient Data, and Customer is responsible for maintaining, securing and storing all Customer Recipient Data in accordance with applicable law. Upon any termination or expiration of this Agreement and Customer’s payment of all unpaid and outstanding Fees, and Customer’s written request received by Monster Mail within thirty (30) days of such expiration or termination, Monster Mail will provide Customer with an electronic file of the Customer Recipient Data. Customer acknowledges and agrees that after the thirtieth (30th) day following any such termination or expiration, Monster Mail has no obligation to retain the Customer Recipient Data and may delete and destroy such Customer Recipient Data without providing Customer with notice of such deletion. If Customer uses the Services during a Trial Period and fails to convert its account to Monster Mail Free Edition or a standard paid customer account upon the expiration or other termination thereof, Monster Mail has no obligation to retain the Customer Recipient Data after the date of such expiration or termination. If Customer uses the Services through Monster Mail Free Edition and fails to use the Services for at least sixty (60) consecutive days, as of the sixty-first (61st) day after Customer’s last use of the Services, Customer acknowledges and agrees that Monster Mail has no obligation to retain the Customer Recipient Data and may delete and destroy such data without providing Customer with notice of such deletion. Monster Mail will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Recipient Data.
9. Customer Information. Monster Mail collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information and payment information (the “Customer Information“). Monster Mail collects such information in order to provide the Services or the Professional Services, as the case may be, and related technical support. If you have provided your Customer Information, Monster Mail may contact you for marketing purposes by various means, including, but not limited to, regular mail, email or telephone. When you activate an Monster Mail account (including during the Trial Period), you expressly consent to receive marketing communications via direct mail, email (at the email address you provided when you activated your account), telephone (at the number you provided when you activated your account), pre-recorded messages (at the number you provided when you activated your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods.
10. Data Disclosures. Except as otherwise set forth herein, Monster Mail does not disclose, sell or rent Customer Recipient Data or Customer Information (collectively, the “Data”), without Customer’s prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits Monster Mail to disclose the Data to: (i) Monster Mail personnel who access and manage the Data in connection with the Services; (ii) service providers for purposes of providing functions or services related to the Services and Monster Mail’s customers’ accounts; and (iii) Monster Mail marketing partners through which Customer purchased the Services, if any. Except as otherwise set forth herein, Monster Mail will not provide any Data to any third party without Customer’s authorization and will use commercially reasonable efforts to prohibit any third party that receives any such Data from selling or redistributing such Data without Customer’s authorization.
11. Passwords. In connection with Monster Mail’s provision of the Services, Monster Mail will send to Customer’s email address (as designated by Customer at the time an account is established), information such as user-IDs and/or passwords which will enable Customer to access the Services (the “Passwords“). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify Monster Mail promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer’s negligence or intentional misconduct. Any unauthorized use of the Passwords by Customer will constitute a material breach of this Agreement.
12. Proprietary Rights. This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services, the Professional Services, and in any applications developed, owned or controlled by Monster Mail (as applicable) (the “Software“), and the Services, are and shall remain the sole and exclusive property of Monster Mail. Accordingly, Customer acknowledges that, as between Monster Mail and Customer, Monster Mail owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of Monster Mail. Customer will not take any actions inconsistent with Monster Mail’s ownership of each of Monster Mail’s rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by Monster Mail. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
13. Use of Services. Customer acknowledges and agrees that it will use the Services (and the Professional Services as the case may be) only to access, employ, utilize, or display the Software solely for Customer’s “internal business purposes” by Customer’s employees or by independent contractors hired by Customer. For the avoidance of doubt, the term “internal business purposes,” as used herein, does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send messages to any purchased (email) lists, purchased distribution lists, purchased newsgroups, or purchased email addresses; (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (v) use the Services (and the Professional Services as the case may be) in any other manner which violates any Policy or any applicable law. Customer agrees to report immediately to Monster Mail, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 13 or in any of the Policies. In the event of any suspected violation of any term, condition or restriction set forth in this Section 13 or in any Policy, or in the event Monster Mail otherwise reasonably objects to any inappropriate or improper content uploaded by Customer in connection with its use of the Service, Monster Mail may immediately disable Customer’s access to the Services and suspend its provision thereof.
14. No Tampering. Each email message that is sent using the Services must contain an “unsubscribe” link that allows Recipients to remove themselves from Customer’s mailing list and a link to Monster Mail’s Policies. Customer agrees that it will not remove, disable, modify or attempt to remove, disable or modify either link. Further, each such email message may contain an automatic identifying footer such as “Powered by Monster Mail.” Except as otherwise expressly permitted in writing by Monster Mail, Customer agrees that it will not remove, disable or modify or attempt to remove, disable or modify such footer.
15. Confidential Information. Each of Monster Mail and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party“) to the other party (the “Receiving Party“) that relates to such Disclosing Party’s business affairs, internal operations, personnel, subscribers, customers, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; (iv) can be proven by competent written evidence to have been independently developed by the Receiving Party; or (v) is approved in writing for release by the Disclosing Party. For purposes hereof, Customer Recipient Data and Customer Information are considered Customer’s Confidential Information. Nothing set forth herein shall be construed to prohibit Monster Mail from disclosing Customer’s Confidential Information to any third party that has a need to know such information in connection with its performance of the Services. From time to time, Monster Mail may be required to disclose Customer’s Confidential Information by order or other requirement of a court, administrative agency, or other governmental body or applicable law, as determined by Monster Mail or its legal counsel. In such event, Customer hereby permits Monster Mail to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 15.
16. Representations, Warranties and Covenants. Customer represents, warrants and covenants to Monster Mail that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Sales Order and that will be provided it during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Customer Recipient Data, the Services and the Professional Services, including, without limitation, its right to email Recipients, is and will at all times be in accordance with the terms and conditions set forth in this Agreement, the Policies and all applicable laws, rules and regulations, and without infringement or misappropriation of any intellectual property right or other right of a third party; (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services; and (vii) neither Customer nor any of its officers, directors or personnel is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department’s listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States.
17. Third Party Products and Services. From time to time, certain third parties may offer products and services related to the Services (and the Professional Services, as applicable). Any subsequent business relationship, exchange of data or other interaction between Customer and such a third party, and/or any purchase, download or use by Customer of any product or service offered by such third party, is solely between Customer and such third party. Regardless of any recommendation by Monster Mail or use of such third party products or services, Monster Mail does not make any representations, warranties or guarantees with respect to any such third parties or any of their products or services. While Monster Mail may rely on data or information provided or generated by such third party products and services in the course of providing the Services (and the Professional Services, as applicable), Customer hereby acknowledges that Monster Mail specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that Monster Mail shall not be liable for any acts or omissions based on its reliance thereon. Accordingly, Customer hereby releases and holds harmless Monster Mail from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising therefrom.
18. Open Source Software. Customer acknowledges and understands that certain open source code may be incorporated into the Service (the “Source Code“). Except as otherwise set forth in the applicable Source Code license therefor, the Source Code is provided “as is,” and without representation or warranty of any kind. Customer hereby releases and holds harmless Monster Mail from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising therefrom.
19. Disclaimer of Warranties. THE SERVICES (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Monster Mail AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, AGENTS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES OR THE PROFESSIONAL SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES OR THE PROFESSIONAL SERVICES.
20. Limitation of Liability. IN NO EVENT WILL Monster Mail OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF Monster Mail OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL Monster Mail OR ANY REPRESENTATIVE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICES, OR THE PROFESSIONAL SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO Monster Mail FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM, LOSS, OR DAMAGE. No claim may be asserted by Customer against Monster Mail more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or Monster Mail’s non-provision, of the Services (or the Professional Services as the case may be), Customer’s sole and exclusive remedy shall be for Monster Mail to use commercially reasonable efforts to repair or provide the Services (or the Professional Services as the case may be).
21. Indemnification. Customer agrees to indemnify, defend and hold harmless Monster Mail, the Representatives, and its and their respective affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising from: (i) Customer’s acts or omissions; (ii) Customer’s violation of any applicable law, including, without limitation, the United States CAN SPAM Act and Canada’s Fighting Internet and Wireless Spam Act, or the Policies; (iii) Customer’s breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer’s breach of any of its representations or warranties set forth herein; and/or (v) Customer’s infringement or misappropriation of any intellectual property rights or other rights of any person or entity.
22. Term and Termination. The Sales Order determines the initial term (the “Initial Term“) of your Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for successive terms equal to the same period of time as the Initial Term (each, a “Successive Term,” together with the Initial Term, the “Term“), and you will continue to be billed for the Fees until this Agreement is terminated in accordance with the terms and conditions set forth herein. At any time during the Term, either Customer or Monster Mail may terminate this Agreement for any reason. If Customer desires to terminate this Agreement, Customer may request a termination by calling Monster Mail at (800) 986-6896, Monday through Friday, between the hours of 9:00 a.m. (PST) and 5:00 p.m. (PST) (a “Valid Termination Notice“). Customer acknowledges that allowing a credit card to expire or failing to submit payment by check does not constitute a Valid Termination Notice. Any Customer termination request that occurs in the middle of a payment term (whether monthly, quarterly or annually, as set forth in the Sales Order) will be made effective on the final day of such term. If Customer wishes to terminate only the Professional Services, it should contact its account manager prior to such services being performed. Monster Mail may terminate this Agreement immediately effective upon delivery to Customer of notice thereof. Such right to terminate this Agreement shall include Monster Mail’s right to terminate its provision of the Services and/or the Professional Services (as applicable) and to pursue all available equitable and legal remedies (in the event Customer breaches any term or condition, or any of its representations or warranties set forth herein). Upon termination of this Agreement for any reason, all Customer Recipient Data may be destroyed and deleted in accordance with the terms and conditions set forth in Section 8 above. Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay Monster Mail Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.
23. Governing Law. This Agreement will be governed by the laws of the State of North Carolina as applied to agreements entered into and performed entirely within the State of North Carolina, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
24. Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Raleigh, North Carolina. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, Monster Mail shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of North Carolina, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
25. Relationship. This Agreement does not create a partnership, joint venture or agency relationship between Monster Mail and Customer. Customer does not have any right, power, or authority to act as a legal representative of Monster Mail.
26. Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Monster Mail. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
27. Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
28. Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
29. Entire Agreement. This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between Monster Mail and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the Monster Mail and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements with Monster Mail which are subject, expressly or otherwise, to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the term or condition which most favors Monster Mail, as determined by Monster Mail, shall govern.
30. No Waivers. Monster Mail’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
31. Notice. Monster Mail may provide Customer with general notice by electronic mail to Customer’s e-mail address of record, or by written communication sent by first class mail or pre-paid post to Customer’s address of record, or to such other address designated by Customer and communicated to Monster Mail in accordance with the notice delivery provisions of this Section 31. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to Monster Mail (such notice shall be deemed given when received by Monster Mail) by using one of the following means: (i) letter delivered by a nationally recognized overnight delivery service; or (ii) by first class postage, return receipt requested, prepaid mail to Monster Mail; in either event, to the following address: Monster Mail LLC, Attn: Support Department; 10785 West Twain Ave, Suite 102, Las Vegas, NV, 89135. Notwithstanding the foregoing, Customer must adhere to the terms and conditions set forth in Section 22 above to provide Monster Mail with notice of its intention to terminate this Agreement. Either Customer or Monster Mail may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with the notice delivery provisions of this Section 31.
32. Consent to Use of Electronic Signatures and Records. As a convenience and courtesy to you, Monster Mail provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking “I Agree” or “I Accept” anywhere on the Site or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Site:
    • you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
    • you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto;
    • you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
    • you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and
    • you agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
    If you wish to withdraw this consent, please contact us at support@monstermail.com, in which case Monster Mail shall have the right to terminate your use of the Services.
33. Export Restrictions. Customer acknowledges that the Services may be subject to U.S. or other countries’ export control laws and regulations. Customer agrees not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any U.S. or other applicable export control laws and regulations.
34. Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by Monster Mail and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.

Prohibited Content and Commerce Statement

1. pornography, adult entertainment, nudity, prostitution or escort services; online gambling; federally regulated or otherwise illegal drugs or narcotics, or paraphernalia associated therewith; illegal or unlawful goods or services; act(s) of violence or commission(s) of crimes or illegal activities; products or services from an embargoed or blacklisted country, individual or entity; stolen goods; libelous, defamatory, scandalous, threatening or harassing acts; pirated computer programs; counterfeit or fraudulent products; instructions on how to assemble or otherwise make any weapon including bombs, grenades or firearms;
2. mailing lists, distribution lists, newsgroups, or spam email addresses;
3. content or material that exploits or is harmful to children under 18 years of age;
4. any personally identifying information or private information;
5. content that is: unlawful; grossly offensive, including expressions of bigotry, discrimination, prejudice, racism, hatred or excessive profanity; or obscene, lewd, lascivious, filthy, malicious, libelous, defamatory, excessively violent, defamatory, threatening, harassing or otherwise morally objectionable;
6. viruses, worms, harmful or malicious code and/or Trojan horses;
7. pyramid schemes, multi-level channel and/or network marketing opportunities, including, but not limited to personal work-at-home offers promoting “get rich quick,” “build your wealth,” and “financial independence” offerings;
8. promotion, offering, or proliferation of access to payday loans, payday advances, or short-term unsecured loans;
9. any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence; and
10. content that violates or misappropriates any third party intellectual property, moral or privacy right.

Termination Policy

Credit Card Expirations or Declines

Retrieving your Data After your Account has been Terminated

Affiliate Agreement

1. Appointment: Subject to the terms and conditions set forth in this Agreement, Monster Mail hereby appoints Affiliate, and Affiliate hereby accepts such appointment, to promote and market the Software in accordance with the terms and conditions set forth herein, with the intention of referring to Monster Mail each month unique and bona fide subscribers for the use of the Software (each, an “Monster Mail Customer”).
2. Affiliate Landing Page: Within thirty (30) days after the Effective Date, unless otherwise agreed by Monster Mail in writing, Monster Mail will create and maintain during the Term (as defined below) for Affiliate a landing page upon which Monster Mail’s Marks (as defined below) will be displayed prominently. This landing page will be coded with an Affiliate ID # so that all transactions and sales from Monster Mail Customers can be tracked and correctly applied and credited to Affiliate’s account. Once a visitor to such page becomes an Monster Mail Customer, an Affiliate ID # will be hard coded to such Monster Mail Customer’s account, through which Affiliate’s account will be credited for every payment made by such Monster Mail Customer. At any time during the Term, Affiliate may log onto Affiliate’s account and use the link found within the ‘Partner Central’ section to track total number of Monster Mail customers and commissions for each month.
3. Licenses: In connection with each party’s performance of its obligations set forth herein, each party (in such capacity, the “Licensor”) : (i) represents and warrants to the other party (in such capacity, the “Licensee”) that it is the sole and exclusive owner of any trade names, trademarks, service marks, “d/b/a”s, names, URLs, or logos (collectively, the “Marks”) that Licensor provides to Licensee hereunder, and that such provision will not violate or otherwise infringe upon any intellectual property or other rights of any third party; and (ii) hereby grants to Licensee a limited, nonexclusive, royalty-free license to use Licensor’s Marks during the Term in connection with the performance of Licensee’s obligations hereunder. Licensee hereby agrees not to: (x) alter or otherwise modify any of Licensor’s Marks; (y) attack ownership of, or rights to, any of Licensor’s Marks; or (z) intentionally use the Licensor’s Marks in a way that might deceive others, create a likelihood of confusion or destroy or diminish the goodwill in any of the Licensor’s Marks.
4. Term and Termination: This Agreement shall commence on the Effective Date, and shall continue until terminated by Monster Mail, by providing Affiliate with prior written notice of its intention to so terminate; or by Affiliate, by providing Monster Mail with fifteen (15) days’ prior written notice of its intention to so terminate (the “Term”). Upon any termination of this Agreement, the licenses granted in Section 3 above shall terminate effective immediately as of the date of such termination. Notwithstanding any such termination, the terms and conditions set forth in Sections 4, 5, 7, 8, 9, 10, 12, 14 and 18 hereof shall survive; provided, however, that if this Agreement is terminated by Monster Mail due to Affiliate’s breach of any term or condition set forth in this Agreement or of any of Affiliate’s representations and warranties set forth herein, as determined by Monster Mail in its sole discretion, Affiliate shall not be entitled to any commission payments arising pursuant to Section 5 below after the date of such breach.
5. Commission: During the Term, Monster Mail agrees to pay Affiliate a commission equal to: (i) fifteen percent (15%) of all Revenue (as defined below) actually received from each Monster Mail Customer referred to Monster Mail by Affiliate; and (ii) five percent (5%) of all Revenue generated by affiliates referred to Monster Mail by Affiliate, which enter into affiliate agreements with Monster Mail substantially similar to this Agreement (each, a “Second Tier Affiliate”); provided, however, that: (A) for Monster Mail Customers which Monster Mail determines, in its sole discretion, are Monster Mail for Salesforce or Agency customers, Monster Mail will not pay Affiliate any commission; (B) for Monster Mail Customers which Monster Mail determines, in its sole discretion, are enterprise, large sender, or managed account customers, Monster Mail agrees to pay Affiliate a commission equal to ten percent (10%) of all Revenue (as defined below) actually received from each Monster Mail Customer referred to Monster Mail by Affiliate; and (C) Monster Mail will pay Reseller a monthly commission of no more than $175 for each Monster Mail Customer. Except as otherwise set forth in Section 4 above, Affiliate will continue to receive the commission payments described in this Section 5 for the life of each Monster Mail Customer in accordance with the terms and conditions set forth herein. Commission payments will be based on Revenue actually received by Monster Mail from Monster Mail Customers in a calendar month, as calculated on the first day of the immediately subsequent calendar month (the “Month of Payment”), and will be mailed to Affiliate no later than the fifteenth (15th) day of the Month of Payment, by check made payable to Affiliate. Such payments will be made after Affiliate’s cumulative commissions exceed $30.00 (or in the case of non-U.S.-based Affiliate, such payments will be made after cumulative commissions exceed US$100.00). For purposes hereof, “Revenue” means gross revenue actually received by Monster Mail from each Monster Mail Customer minus any refunds, rebates, setoffs, discounts, promotions, charge backs, non-payments, or defaults, any of which may be set-off against amounts already paid to Affiliate.
6. Marketing Materials: During the Term, Affiliate may use graphics, text, and sample promotions provided in Affiliate Central to promote the Software. Affiliate may not use unsolicited commercial email to promote the Software, which includes mass emails sent to recipients who have not requested it (not opted-in) and with whom Affiliate has no prior relationship, and any other definition of “spam” as defined under applicable law. Any such use will be considered a material breach of this Agreement and will result in the termination of this Agreement in accordance with the terms and conditions set forth in the last sentence of Section 4 above.
7. Monster Mail Pricing and Customer: Monster Mail reserves the sole and exclusive right to review, modify or change its posted pricing, and to accept, reject, suspend or terminate service to any Monster Mail Customer or prospect, at any time and without regard to, limitation from, or restriction by Affiliate or any of the terms or conditions set forth herein.
8. Disclaimer of Warranty: THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Monster Mail AND ITS AFFILIATES, LICENSORS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THIS AGREEMENT. Monster Mail AND THE REPRESENTATIVES DO NOT WARRANT THAT THE SOFTWARE WILL MEET Monster Mail CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE.
9. Affiliate’s Representations, Warranties and Covenants: Affiliate represents and warrants to Monster Mail that: (i) in connection with the appointment described herein, Affiliate will at all times comply with all applicable laws; (ii) Affiliate will at all times present the Software to potential customers, accurately, fairly and truthfully and will not make any misleading, unfair or deceptive statements about Monster Mail or the Software, or misrepresent either in any way; (iii) Affiliate will not disparage Monster Mail or the Software during the Term or at any time after the termination thereof; (iv) Affiliate will do all things reasonable to promote the good reputation of Monster Mail and the Software; (v) Affiliate’s execution, delivery and performance of this Agreement will not result in any violation of any other agreement or arrangement; and (vi) none of the Affiliate’s Marks will violate or infringe upon the intellectual property, or other rights, of any third party.
10. Limited Liability: In no event will Monster Mail be liable to Affiliate or Monster Mail Customers for any special, direct, indirect, incidental, exemplary, consequential or punitive damages arising from or related to the Software or this Agreement, including, but not limited to, damages for losses of profits, loss of business or goodwill, loss of data or use of data, interruption of business, even if Monster Mail was advised in advance of the possibility of such losses or damages. Monster Mail’s total cumulative liability to Affiliate or to any other party for claims, losses or damages of any kind, whether based on contract, tort, negligence or otherwise, arising out of or related in any way to this Agreement or the Software will not exceed the commission actually paid to Affiliate in the calendar month immediately preceding the month in which such claim, loss or damage arose. Monster Mail is not, and will not be, responsible or liable for any downtime or failure of performance or slowdown in deliverability that may occur from time to time.
11. Entire Agreement: This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous proposals, oral or written, and all negotiations, conversations of discussion heretofore and between the parties related to this Agreement. Each party acknowledges that it has not been induced to enter into this Agreement by any representation or statements, oral or written, not expressly contained herein.
12. Governing Law: This Agreement shall be governed by, and enforced in accordance with, the laws of the State of North Carolina, without regards to its conflicts of law provisions. Both parties hereto irrevocably consent to the jurisdiction of the state and federal courts located in Wake County, North Carolina.
13. Relationship of the Parties: Although references are made in this Agreement to the term “Affiliate,” the parties do not intend to create a partnership or joint venture in the legal sense, but only a referral relationship. The parties agree that they are independent contractors and that neither of them has any fiduciary duty to the other. Neither party is the agent of the other. Neither party may represent to any person that it has the power to bind the other party on any service contract or other agreement, or take any action reasonably likely to lead a third party to believe that it is the agent or representative of the other party.
14. Indemnification: Affiliate hereby agrees to indemnify, defend and hold harmless Monster Mail, and its officers, directors, stockholders, employees, agents, successors and assigns (the “Indemnified Parties”) from and against any and all liabilities, losses, damages, claims, suits, judgments, costs, expenses (including reasonable attorneys’ fees and costs of any investigation or action related thereto) and actions suffered or incurred by the Indemnified Parties as a result of: (i) Affiliate’s performance, failure to perform or improper performance of this Agreement; (ii) Affiliate’s material breach of any of its representations or warranties set forth herein, or any term or condition set forth in this Agreement; (iii) the Indemnified Parties’ use of Affiliate’s Marks in accordance with the terms and conditions set forth herein; or (iv) Affiliate’s acts, omissions or intentional misconduct.
15. Assignment and Binding Effect: Affiliate may not assign this Agreement without first seeking and obtaining Monster Mail’s prior written consent. All assignments in violation of this restriction set forth in this Section 15 shall be considered null, void and of no legal effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
16. Waiver: No waiver by Monster Mail of any provision or condition of this Agreement shall be effective unless such waiver is expressed in writing and signed by an authorized representative of Monster Mail. Monster Mail’s failure to enforce any provision of this Agreement will not constitute a waiver of its right to subsequent enforcement of such provision or any other provision of the Agreement.
17. Amendment: Any modification or amendment of any provision of this Agreement must be made in writing and signed by an authorized representative of each party.
18. Other Agreements: Affiliate has entered into certain other agreements with Monster Mail, including, without limitation, the EUSA (the “Other Agreements”). While each of the Other Agreements constitutes a separate legal agreement between the parties, such agreements may address subject matter related to this Agreement. In the event of any conflict between any term or condition set forth in this Agreement and in any of the Other Agreements, the term or condition which most favors Monster Mail, as determined in Monster Mail’s sole discretion, shall prevail.

Digital Millennium Copyright Act: Notice and Take Down Procedures, Copyright Agent.

1. Your postal address, telephone number and email address;
2. A detailed description of the copyrighted work that you claim has been infringed; along with the URL that contains the claimed infringing material that you are asking be removed;
3. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you as the copyright owner, its agent, or the law;
4. A statement by you that the information in your notice is accurate, and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
5. A physical or electronic signature of the owner of the copyright or person authorized to act on behalf of the owner.