This AGREEMENT (the “Agreement”) is entered into by and between LISTMARKETER, Inc., a Nevada corporation located at 4770 South, 900 East, Suite 100, Salt Lake City, UT 84117 and you, the end user “Licensee”.
LISTMARKETER is in the business of developing and licensing email marketing SOFTWARE (as defined below).
Licensee is in the business of using email marketing software to communicate with its customers and desires to obtain a license to use the SOFTWARE for that purpose.
LISTMARKETER is willing to grant to Licensee a month-to-month license to use the SOFTWARE on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, including the mutual promises and agreements set forth herein, the parties hereby agree as follows:
“SOFTWARE” means any or all of the following: (a) the LISTMARKETER email marketing software in executable form; (b) the LISTMARKETER world wide web http/https pages/interface; (c) the Documentation; and (d) any other software in executable form owned or distributed by LISTMARKETER that executes on the Servers.
“Server” means the serving computers, hardware, and operating system software provided by third parties necessary to operate and support the SOFTWARE in accordance with this Agreement.
“Documentation” means the user guides and other written instructions that LISTMARKETER provides to Licensee relating to Licensee’s use of the SOFTWARE.
“Governmental Authority” means any United States, state, or foreign government, governmental authority, court, tribunal, agency, or other regulatory, administrative, or judicial agency, commission, or organization, and any subdivision, branch, or department of any of the foregoing.
“Monthly SOFTWARE License Fee” means the monthly SOFTWARE license fee/
“ISP” means the third party internet service provider chosen by LISTMARKETER to provide the Servers, IP addresses, and bandwidth connectivity for Licensee’s use of the SOFTWARE.
“ISP Fees” means the monthly and/or other fees for ISP services to be provided to Licensee pursuant to this Agreement.
“Registrar” means any third party domain registrar and DNS service provider recommended by LISTMARKETER.’
4.1. Term. The license granted shall begin when the actual login is provided to Licensee, and will remain in effect for as long as the Monthly SOFTWARE License Fee and any applicable ISP Fees are paid, unless terminated as provided herein.
4.2. Termination by Licensee. Licensee may terminate this Agreement at any time with prior written notice of at least ten (10) business days. Termination shall cause the termination of this Agreement and all of Licensee’s SOFTWARE rights under this Agreement.
4.3.a. Termination for Cause. In the event Licensee fails to pay the Monthly SOFTWARE License Fee and/or ISP under the agreed upon terms, or otherwise breaches this Agreement, the LISTMARKETER Acceptable Use Policy, or any ISP acceptable use policy, LISTMARKETER may, at its discretion and at any time, restrict or prevent Licensee’s access to the SOFTWARE, interrupt delivery of messages, and/or delete all the information on a Server, without notice, if in LISTMARKETER’s sole discretion and determination, such restriction, interruption, termination, or deletion, will terminate or prevent the activity causing the alleged breach. Any Licensee terminated for cause will NOT be entitled to a pro-rated refund of any fees paid or payable under this Agreement.
4.3.b. Termination Without Cause. LISTMARKETER may terminate this Agreement or SOFTWARE license, at any time for any or no reason. If LISTMARKETER terminates this Agreement or SOFTWARE license without cause, Licensee will be entitled to a pro-rated refund based on the number of days left in the period for which Licensee has already paid the applicable fees.
5.1. Indemnification. Licensee covenants and agrees to indemnify, defend, and hold harmless LISTMARKETER, its parents, subsidiaries, and affiliated companies, and the officers, directors, members, agents, and employees of the foregoing (collectively, the “Indemnitees”) for, from, and against any and all losses, claims, causes of action, damages, expenses, judgments, awards, petitions, demands, attorneys’ fees of the claimants and the Indemnitees, costs, and liabilities of any type, joint or several, to which LISTMARKETER and/or any of the other Indemnitees may become subject directly or indirectly on account of:
(a) any act OF omission of Licensee or its agents or employees arising from or relating to this Agreement;
(b) any breach or claimed breach of this Agreement or activity relating thereto by Licensee;
(c) Licensee’s use of the SOFTWARE except as strictly provided for and authorized under this Agreement; and
(d) any use by any third party of the SOFTWARE installed under this Agreement with Licensee (collectively “Claims”).
Licensee shall cooperate with LISTMARKETER’s decision to engage reputable counsel with respect to any and all such Claims, with any and all attorneys’ fees and other associated expenses to be paid by Licensee. LISTMARKETER shall have the right, if reasonably necessary, or advisable, to separately defend any Claims relating to this Agreement in its own name and/or in the names of any other Indemnitees and determine in good faith whether any Claims, on the basis of liability, expediency or otherwise, shall be paid, compromised, defended, or appealed. LISTMARKETER may incur such costs, including without limitation attorneys’ fees, as may be reasonably necessary or advisable for the investigation, defense, settlement, or payment of any such Claims, and such amounts shall be paid by Licensee. LISTMARKETER shall reasonably cooperate with Licensee with respect to Claims described in this provision that are defended solely by Licensee, and the costs of LISTMARKETER’s cooperation shall also be paid by Licensee.
5.2. Limited Warranty. LISTMARKETER warrants to the Licensee that the SOFTWARE will perform substantially in accordance with the Documentation. If the SOFTWARE does not perform as warranted, LISTMARKETER shall undertake reasonable efforts to correct the SOFTWARE, or if correction of the SOFTWARE is not reasonably possible, replace such SOFTWARE free of charge. If neither of the foregoing is commercially practicable, as determined by LISTMARKETER in its sole discretion, LISTMARKETER shall terminate this Agreement with respect to the non-conforming SOFTWARE and refund the monies paid by Licensee for the non-conforming SOFTWARE during the time that it failed to perform in accordance with the Documentation, provided that Licensee gave timely notice of the warranty claim. The foregoing are Licensee’s sole and exclusive remedies for breach of warranty. The warranty set forth above is made to and for the benefit of Licensee only and will be enforceable against LISTMARKETER only if:
5.3 Refunds and Credits. Except as expressly provided in Section 4.3.b, any and all payments under this Agreement are non-refundable. In the event of a SOFTWARE problem preventing usage or an ISP service outage (“Service Outage”), Licensee shall be entitled to a credit that may be applied to future service periods, equal to the number of Service Outage days on the SOFTWARE or ISP Services, to be determined in LISTMARKETER’s sole discretion.
5.4. DISCLAIMERS. THE WARRANTIES SET FORTH IN SECTION 5.2 ABOVE ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, AND STAUTORY. LISTMARKETER HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF LISTMARKETER HAS BEEN INFORMED OF SUCH PURPOSE) AND NON-INFRINGEMENT, REGARDING OR RELATING TO THE SOFTWARE AND DOCUMENTATION, ANY ISP, ANY AND ALL OTHER MATERIALS OR SERVICES PROVIDED TO LICENSEE PURSUANT TO THIS AGREEMENT. Any statements or representations made by any other person or firm are void.
Without limiting the generality of the foregoing disclaimers, the LISTMARKETER limited warranty does not cover damage due to external causes, including but not limited to accident, abuse, misuse, problems with electrical power, problems with ISP connectivity or services, any servicing or modifications not authorized by LISTMARKETER, usage not in accordance with product instructions, or problems caused by use of parts and components not supplied by LISTMARKETER. Moreover, LISTMARKETER does not warrant that the SOFTWARE will be error free or will perform in an uninterrupted manner, that the SOFTWARE will meet Licensee’s requirements, or that all SOFTWARE errors will be corrected. Furthermore, due to the potential impact of external factors, LISTMARKETER cannot and does not guarantee the performance of the SOFTWARE or the privacy, security, authenticity, or non-corruption of any information transmitted through the Internet or stored in any system connected to the Internet. LISTMARKETER does not warrant against the loss of data. LISTMARKETER cannot and does not guarantee that administrators of networks or systems will accept email sent by Licensee via the SOFTWARE.
5.5. Limitation on Damages. In no event will LISTMARKETER be liable for any loss of profits, loss of use, business interruption, loss of data, cost of cover, or any indirect, special, incidental or consequential damages of any kind arising out of or relating to this Agreement. In addition, LISTMARKETER’s maximum aggregate liability (whether in contract or in tort or under any other form of liability) for damages or loss, howsoever arising or caused, whether or not arising from LISTMARKETER’s negligence, shall in no event be greater than the following amount; (a) if such damages or loss results primarily from Licensee’s use of the SOFTWARE, such liability shall be limited to the aggregate Monthly SOFTWARE License Fees paid to LISTMARKETER for the Server(s) giving rise to the liability for the twelve (12) month period immediately preceding the events giving rise to the liability or to the period from the effective date of this Agreement to the date of such events, whichever period is shortest, or (b) if such damages or loss results primarily from any services or materials (but not the Documentation) provided to Licensee under this Agreement, the aggregate fees paid to LISTMARKETER for such services or materials for the twelve (12) month period immediately preceding the events giving rise to the liability or to the period from the effective date of the this Agreement to the date of such events, whichever period is shortest.
5.6. Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of LISTMARKETER’s proprietary rights in the SOFTWARE, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued.
6.1. Domain registration. As a pre-condition to LISTMARKETER installing the SOFTWARE on the applicable Server(s), Licensee agrees to open an account at a LISTMARKETER compatible Registrar and to purchase at least one or more domain name(s) which will be assigned to each Server for the purpose of providing DNS service for any such domains. Failure to provide domains on a timely basis shall not be cause for downtime credits if Licensee fails to obtain additional domains within 3 business days. Licensee may request to have LISTMARKETER create various domain names on behalf of Licensee in Licensee’s Registrar account(s) provided Licensee keeps sufficient funds on account at Licensee’s Registrar account(s). Licensee may choose domains on its own, following If Licensee requests LISTMARKETER to register domain names on its behalf. Licensee agrees to fully indemnify LISTMARKETER in regard to the choice of the actual domain names per Section 5.1 above. For monitoring purposes, Licensee can monitor all names in its login at anytime but may not change anything, including any DNS settings, without LISTMARKETER’s prior consent and notification.
6.2. Operation of the SOFTWARE. Licensee shall be solely responsible for the operation of the SOFTWARE, including ensuring that the operation of the SOFTWARE complies with all applicable laws, rules, regulations, and rulings of any and all Governmental Authorities as defined in the AUP. Licensee shall provide LISTMARKETER with access to any ISP Server under its control to allow LISTMARKETER 24/7 access to monitor its use and upgrade it from time to time. Licensee agrees to provide notice as in Section 4.2 upon termination of Licensee’s use of each such ISP Server.
7.3. ISP Services. If Licensee does not have a Server meeting current LISTMARKETER specifications (available upon request), LISTMARKETER may, at its option, provide the opportunity for Licensee to obtain ISP services through LISTMARKETER. LISTMARKETER does not guarantee the fitness or performance of any ISP or any ISP Servers or services, but will use all commercially reasonable efforts to use an ISP or ISPs that will provide uninterrupted service or to transfer the SOFTWARE to another ISP of LISTMARKETER’s choosing. Licensee acknowledges and agrees that LISTMARKETER is not the party responsible for providing the ISP Server hardware, IP addresses, or bandwidth for the SOFTWARE but only acts as a conduit of those ISP services on behalf of Licensee, subject to the terms and conditions of each respective ISP and the terms and conditions of this Agreement.
7.4. DNS. Licensee hereby grants LISTMARKETER the permission to configure all domain name services and settings for proper use of the SOFTWARE in Licensee’s Registrar accounts provided by Licensee to LISTMARKTER under this Agreement, until termination.
7.5. White Listing. LISTMARKETER will provide all necessary assistance regarding “white listing” and registration practices with major email providers who have a public “white listing” service, however LISTMARKETER needs the co-operation of Licensee to assist in this process as LISTMARKETER cannot represent Licensee in the white listing process with third parties. Licensee hereby agrees to take all reasonable steps necessary for any Licensee requested white listing.
7.6. Privacy of Licensee Emails.
7.6.a. LISTMARKETER agrees that it shall not use, disclose, reproduce, or otherwise make available Licensee’s email addresses stored on any LISTMARKETER Server(s) to any third party, unless required by law. LISTMARKETER shall use reasonable efforts to make periodic backups during the term of this Agreement to allow Licensee to restore any Server that may have a service outage. On termination of this Agreement, and full payment of any outstanding invoices, LISTMARKETER shall return Licensee data and destroy any and all copies of the data, including backups.
7.6.b. Notwithstanding the provisions of Section 7.6.a above, Licensee agrees that LISTMARKETER may collect feedback and other information relating to the usage of any and all email addresses as to which the SOFTWARE is used and may use that information to improve service to Licensee and other LISTMARKETER customers.
8.1. Licensee agrees to pay the Monthly SOFTWARE License Fees and any ISP Fees ordered by Licensee.
8.2. Invoicing and Payment. Invoices for payment of monthly SOFTWARE License Fees and any ISP Fees shall be paid by Licensee via ACH or credit card payment on the monthly billing anniversary of each license and/or any ISP Fee.
9.1. SOFTWARE Non-Disclosure. Each party may have access to information that is confidential to the other party (“Confidential Information”). Confidential Information shall include the terms and pricing under this Agreement, the SOFTWARE, the contact information of staff, developers and programmers, any LISTMARKETER furnished ISP information, domain information, and all other information identified (whether orally or in writing) as confidential.
A party’s Confidential Information shall not include information that: (a) is or becomes part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and was not obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. The parties to this Agreement acknowledge that no effort will be made to circumvent any previously established relationships or the terms of this Agreement in an attempt to gain commissions, fees, remunerations, or considerations to the benefit of any of the parties of this Agreement.
The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of two (2) years after termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the implementation of this Agreement and/or the exercise of any party’s rights as expressly set forth in this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Without limiting the generality of the foregoing, Licensee shall not undertake any benchmark tests of the SOFTWARE or disclose the results thereof to any third party without LISTMARKETER’s prior written approval.
9.2. ISP Confidentiality. If Licensee learns the identity of LISTMARKETER’s ISP(s) Licensee agrees that it will not communicate with, disclose, or otherwise refer anybody, including companies, friends, contacts, partners, or others to any LISTMARKETER ISPs. Licensee understands that its relationship with any ISP selected by Licensee pursuant to Section 7.3 is a separate third party relationship between Licensee and the ISP.
10.5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns, if any.
10.6. Remedies. Except as otherwise provided for herein, no remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by any party shall not constitute a waiver of the right to pursue other available remedies.
10.7. Force Majeure. Any cause or circumstance of whatever nature which prevents or delays performance by a party of its obligations hereunder, including, without limitation, any riot, labor dispute, strike or civil disturbance, or any law or action of a Governmental Authority, which cause or circumstance is not within the control of the party chargeable, and which cannot by the exercise of reasonable diligence by such party be prevented or overcome, shall extend the time for performance thereof, provided such cause or circumstance was the proximate cause of the failure to perform. This provision shall not apply, however, to any party’s failure to pay amounts due.
10.8. Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. The provisions of the Agreement are for the sole benefit of the parties hereto and not for any creditor of a party or for any other person. This Agreement shall be construed as if each party had the opportunity to participate in drafting it and shall not be construed against either party.