This Master Services Agreement (the “Agreement”) sets forth the terms under which J2 Martech Corp. DBA EmailMother(“EmailMother,” “we,” or “us”) provides you (“Customer,” “you,” or “your”) with email verification and/or deliverability suite services. Each of you and EmailMother may be referred to individually as a “Party” and together the “Parties.”

In order to receive the Services, you must execute a valid SOW or click on the “Agree” button during sign-up. By clicking the “Agree” button and/or using the Services, you acknowledge that you have read the Agreement, understand it, and agree to be bound by it. If you do not execute a valid SOW or click on the “Agree” button, EmailMother will have not entered into any legal agreement with you and shall not provide or deliver the Services to you.

In consideration of the premises and the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, EmailMother and Customer agree as follows:

1. SCOPE OF SERVICES. EmailMother agrees to provide email verification and/or deliverability suite services (each and together, the “Services”) to Customer as provided herein, and as more fully set forth in separate Statements of Work (“SOW(s)”) or online order form. Each completed SOW will identify the specific Services to be performed, the beginning date of performance, the compensation to be paid for performance of the specified Services and any further details, as necessary. On reaching agreement on each SOW to be performed as part of the Services, the SOW shall be completed and signed by the Parties, and shall thereupon be deemed to be fully incorporated herein by reference.

2. CHANGES IN SCOPE OF SERVICES. Should Customer request EmailMother to perform any additional Services not covered under any SOW then these additional Services and costs will be paid at a rate agreed upon in advance by the Parties.

3. TERM. This Agreement shall become effective upon the Effective Date and shall remain in full force and effect for the duration of Customer’s use of the Services. Upon termination of any applicable SOW or sixty (60) days after the expiration of all Customer’s verification credits, if applicable, this Agreement shall also terminate. EmailMother may terminate this Agreement if, in its reasonable determination, EmailMother determines that Customer has violated Section 12. Email verification credits automatically expire one (1) year from the date of purchase.

4. PAYMENT.

   1. Verification Services Invoicing and Payment. Upon full execution of each SOW, EmailMother will invoice Customer for the fees described in such SOW. If Customer is submitting an online order form, fees are due upon checkout. All fees must be paid in full before email verification credits are applied to Customer’s account.
   2. Deliverability Suite Invoicing and Payment. Upon full execution of each SOW, EmailMother will invoice Customer for the full fees described in such SOW. Each invoice must be paid before Customer gains access to the deliverability suite Services.
   3. Self-Serve Customers. Customers who sign up for EmailMother  services via EmailMother  online portal shall pay all fees upon check-out as presented in the online portal. Customer must agree to the payment terms presented at the time Customer signs up for or purchases any additional Services. Customer must ensure that the credit card information used for Customer’s account is current and accurate, and that Customer is authorized to use that credit card. We may implement fraud-protection measures anytime including, without limitation, temporarily charging small amounts to validate Customer’s credit card and authorization.
   4. Payment Terms. Customer shall pay each invoice within thirty (30) days of receipt unless otherwise stated in an SOW. Customer shall be liable for collection costs, including, but not limited to, reasonable attorney’s fees for any invoices that are not paid in accordance with this Section 4. EmailMother Services are billed in advance and are non-refundable. There will be no refunds or credits for partial service or refunds made should Customer not use the full volume of EmailMother Services ordered. The foregoing shall apply without exception.

5. INTELLECTUAL PROPERTY. Customer agrees that no title to the intellectual property in the Services is transferred to Customer. Title, ownership rights and intellectual property rights in and to the Services shall remain with EmailMother  and/or EmailMother licensors. The Services are protected by intellectual property laws of the United States and other countries and by international treaties.

6. CONFIDENTIALITY. In the course of performing this Agreement, the Parties may have access to certain proprietary information and trade secrets of each other (collectively, the “Confidential Information”). The Parties agree that the terms of this Agreement are part of the Confidential Information. Neither Party may, either during or after the Term of this Agreement, use, disclose or otherwise permit any person or entity access to any of the Confidential Information of the other Party, except as required or anticipated in the performance of their obligations hereunder or to comply with applicable law. The Parties each understand that they are not allowed to sell, license or otherwise exploit any products or Services that embody in whole or in part any Confidential Information of the other Party, except as set forth hereunder.

7. REPRESENTATION AND WARRANTY OF CUSTOMER. Customer represents and warrants to EmailMother that any personal details such as email addresses, first and last names, phone numbers, or any information that alone or when combined with other information could identify an individual (“Personal Data”) furnished to EmailMother is owned or properly obtained by Customer, and none of such Personal Data infringes upon the privacy or proprietary rights of any third party.

8. MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants to the other Party, with the intention that the other rely thereon in entering into this Agreement, that:

   1. In connection with performing its obligations hereunder, it will not violate any applicable laws or regulations of any jurisdiction;
   2. It has full power and authority to execute and deliver this Agreement and to perform the transactions contemplated hereby; and
   3. The execution and performance by it of this Agreement does not and will not violate or conflict with, or result in a breach of: (i) any of the terms, conditions, duties or obligations to which it is bound to any third party or (ii) any other rights of any third party.

9. EmailMother LIMITED WARRANTY, DISCLAIMER AND CUSTOMER’S SOLE REMEDY. EmailMother WARRANTS THAT THE SERVICES SHALL BE PERFORMED IN A WORKMANLIKE MANNER. CUSTOMER MUST REPORT ANY MATERIAL DEFICIENCIES IN THE SERVICES TO EmailMother IN WRITING WITHIN NINETY (90) DAYS OF CUSTOMER’S RECEIPT OF THE SERVICES OR SUCH ALLEGED DEFICIENCIES ARE WAIVED BY CUSTOMER. CUSTOMER’S EXCLUSIVE REMEDY FOR THE BREACH OF THE FOREGOING WARRANTY WILL BE THE RE-PERFORMANCE OF EmailMother WORK WITHIN A COMMERCIALLY REASONABLE TIME. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. EmailMother EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.

10. INDEMNIFICATION.

    1. Indemnification by EmailMother. EmailMother shall defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim provided, that Customer: (i) promptly gives EmailMother written notice of the Claim; (ii) gives EmailMother sole control of the defense and settlement of the Claim (provided that EmailMother may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (iii) provide to EmailMother all reasonable assistance, at EmailMother  expense. Further, if any Service is found to infringe any copyright, trade secret or Canadian or United States patent of any third party or EmailMother determines that it is likely that an injunction or similar remedy will be granted in favor of a third party preventing further use of the allegedly infringing Service, EmailMother  will use commercially reasonable efforts to either: (iv) acquire the right for Customer to continue to use the infringing Service in accordance with this Agreement; or (v) modify the infringing Services to avoid or correct the noncompliance. If EmailMother does not accomplish (iv) or (v) above within a reasonable time period after receipt of Customer’s notice of the noncompliance, then EmailMother  will refund to Customer the fees Customer pre-paid to EmailMother for any Service Customer was unable to use as a result of EmailMother not being able to provide the remedy in (iv) or (v).
    2. Indemnification by Customer. Customer shall defend EmailMother against any Claim made or brought against EmailMother by a third party alleging that Customer’s data, or Customer’s use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify EmailMother for any damages finally awarded against, and for reasonable attorney’s fees incurred by, EmailMother in connection with any such Claim; provided, that EmailMother: (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release EmailMother of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.
    3. Exclusive Remedy. This Section 10 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section.
    4. Limitation. Notwithstanding anything in this Agreement, EmailMother shall have no liability or indemnification obligation for any Claim resulting from: (a) any combination, operation or use of the Services with any other software or other product not recommended, reasonably contemplated for use with, or authorized by EmailMother; (b) any modification of the Services or any deliverables derived therefrom not authorized by EmailMother; (c) the combination, operation, or use of any Services or any deliverables derived therefrom with any service, product or data that EmailMother did not provide, provided such service, product, or data are not required for the operation of, or may not otherwise be reasonably considered to be used with, such Services or any deliverables derived therefrom; (d) EmailMother use of Customer’s assets provided to EmailMother so that EmailMother can perform Services where the claim of infringement is based on the asset provided by Customer; or (e) the use or possession of any third party data, whether alone or as part of any Services or any deliverables derived therefrom.

11. LIMITATION OF DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT OR ONSEQUENTIAL DAMAGES INCURRED OR SUFFERED BY THE OTHER ARISING AS A RESULT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE OTHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EmailMother TOTAL LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF CAUSE OR THEORY OF RECOVERY, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO EmailMother IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. RESTRICTIONS AND ACCEPTABLE USE.

    1. Restrictions on Use. Customer hereby agrees not to reverse engineer, decompile, copy or disassemble the Services. Customer shall not modify, or create derivative works based upon, the Services in whole or in part. Customer shall not resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Services. Customer shall not use EmailMother to perform competitive analysis. Customer shall not attempt to interfere with the Services.
    2. Account Control and Passphrases. Customer acknowledges and agrees that Customer and its authorized users alone are responsible for the use of the account and the Services. Customer and its authorized users shall be fully responsible for the control of and/or access to the account, including limiting access to pass phrases used to access the account. Customer agrees to take all reasonable precautions to protect the passphrase and those of the authorized users. Customer agrees to notify EmailMother  immediately in the event Customer thinks the account or the passphrase has been compromised. EmailMother shall have no liability to Customer or to any third Party for the failure to prevent any unauthorized access or use of the account due to a failure of the Customer to protect account credentials.
    3. Acceptable Use. Customer and its authorized users shall only use the Services for the verification and/or confirmation of electronic mail addresses in accordance with the terms of this Agreement and will not use them in any manner that may degrade the performance or availability of the Services. Customer agrees on behalf of itself and its authorized users that Customer will not use the Services for any of the following purposes. If Customer does, EmailMother  may immediately suspend or limit the Services without further liability or obligation to Customer, in addition to any other remedies that EmailMother  may have. Customer hereby agrees and warrants that Customer and Customer’s authorized users will not engage in, encourage, enable, or permit:
    4. Any conduct that results in retaliation against EmailMother , its network or website, or EmailMother employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service (DoS) attack;
    5. Attempting to use the Services in contravention of the terms of this Agreement;
    6. Committing or attempting to commit a crime or facilitate the commission of any crime or other illegal or tortious act, or using the Services for any activity or conduct that is or is likely to be in breach of any applicable laws, codes or regulations, including data protection and privacy laws and laws relating to unsolicited commercial electronic messages;
    7. Using the Services for any invasive or defamatory purpose;
    8. Using the Services for purposes directly or indirectly relating to the sending of unsolicited bulk commercial email (“Spam”) of any kind;
    9. Using the Services to verify email address(es) obtained from a third party or obtained indirectly without the recipients’ knowledge and consent;
    10. Using the Services to verify email address(es) of anyone who has not opted-in, or who has opted-out, of receiving email communications from Customer;
    11. Using the Services to harvest email addresses or otherwise determine the existence of unknown email addresses;
    12. Interfering with the use of the Services by EmailMother customers or other authorized users;
    13. Altering, tampering with or circumventing any aspect of the Services;
    14. Testing or reverse engineering the Services in order to find limitations, vulnerabilities;
    15. Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; or
    16. Any activity intended to withhold or cloak identity or contact information, including the omission, deletion, forgery or misreporting of any transmission or identification information, such as account data and IP addresses.

13. NOTICES. Any notice hereunder shall be in writing and shall be effective upon delivery personally or by courier or five (5) business days following deposit in the United States mail, postage prepaid, registered or certified and addressed as follows:

    1. If to EmailMother:
       J2 Martech Corp.
       ATTN: Legal Department
       114 5th Ave., 15th Floor,
       New York, NY 10011
       Copy to [email protected]

    2. If to Customer, notices shall be sent to the address provided in Customer’s online account or in the applicable SOW.

14. ASSIGNMENT. This Agreement shall not be assigned by either Party voluntarily, involuntarily or by operation of law, unless the non-assigning Party consents in writing, and in advance. Notwithstanding the foregoing, this Agreement may be assigned to a Party’s affiliate entity or in the instance of a merger or sale of substantially all its assets.

15. INDEPENDENT CONTRACTORS. The Parties shall act solely as independent contractors, and nothing herein shall at any time be construed to create the relationship of employer and employee, partnership, principal and agent, or joint venture as between EmailMother and Customer. Neither Party shall have any right or authority to, nor shall either Party attempt to enter into any contract, commitment or agreement, or to incur any debt or liability of any nature, in the name, or on behalf, of the other Party.

16. WAIVER. No waiver of any term or condition of this Agreement shall be construed as a waiver of any other term or condition, nor shall any waiver of any default under this Agreement be construed as a waiver of any subsequent default.

17. SURVIVAL OF PROVISIONS. The warranties, representations, confidentiality, indemnification obligations of the Parties, and any provision which, by its nature should survive termination, shall survive the termination of this Agreement.

18. GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND THE LEGAL RELATIONSHIP BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. THE PARTIES AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR A BREACH HEREOF SHALL BE LITIGATED ONLY IN THE APPROPRIATE COURTS OF NEW YORK COUNTY.

19. GOVERNMENT ORDER. In the event EmailMother is prevented from providing any portion or all of the Services or is required to grant access to unencrypted information by any law, regulation, or ruling, regardless of form, issued by any judicial or other governmental entity, or if a notice from a governmental entity, department or agency indicates that the Services cannot be provided, EmailMother may immediately cease providing the Services without any liability whatsoever to Customer. EmailMother shall not be required to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order.

20. ONLINE POSTING OF GENERAL CHANGES. EmailMother may amend, revise, change, alter, replace, substitute the system requirements and interoperability standards, acceptable use provisions, or any other general policies applicable to all end users, at any time and in any manner, including by posting a notice of any such changes or modifications, etc. on the Services website or by e-mail. Customer’s use of the Services after posting of such a notice shall constitute acceptance of the modified terms. Wherever a conflict of terms occurs, the terms of this Agreement shall supersede any such conflicts.

21. RIGHT TO ALTER SYSTEMS, EQUIPMENT. EmailMother reserves the right, from time to time, to make changes in the configuration of EmailMother proprietary facilities, type and location of equipment, programming languages, end user identification procedures, accessibility periods, allocation and quantity of resources utilized, rules of operation, its administrative and operational algorithms, and the designation of the control center serving you at any particular address.

22. ENTIRE AGREEMENT. This Agreement contains the entire understanding between the Parties, and all prior or contemporaneous promises, representations, agreements or understandings are expressly merged herein and superseded hereby. This Agreement shall not be modified, altered, amended or revoked except as set forth herein and in writing, duly executed by both Parties.

CONTENT GUIDLINES

1. Online Bulletin Boards, Forums and Blogs. We may from time to time host bulletin boards, forums, blogs or other public posting areas (“Forums”). The information and opinions expressed in these Forums are not necessarily ours, and we make no representations or warranties, whatever, regarding them. Neither do we assume any obligation to monitor these Forums or to delete or edit any postings. We do however reserve the right to delete, move, or edit any postings that we consider illegal or inappropriate in any way. Specifically, you shall not submit or otherwise publish through such Forums anything which libels, defames, invades privacy, or is even remotely obscene, pornographic, abusive, or threatening, violates any law, or advocates any illegal activity, advertises products or services, or solicits funds, or infringes any intellectual property or other right of any person or entity, including, but not limited to violating anyone’s right of privacy or publicity.

   1. Grant of License for Posted Content. If you do post content or submit material, and unless we indicate otherwise, you grant EmailMother and its affiliates a nonexclusive, royalty free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such content throughout the world in any media. You grant EmailMother and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if they choose.

   2. How to Notify EmailMother if you think your copyright has been infringed. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide EmailMother copyright agent the written information specified below. Please note that this procedure is exclusively for notifying EmailMother and its affiliates that your copyright material has been infringed.

      • An electronic or physical signature of the person authorized to act on behalf of the owners of the copyright interest
      • A description of the copyrighted work that you claim has been infringed upon
      • A description of where the material that you claim is infringing is located on the site
      • Your address, telephone number, and e-mail address
      • A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law
      • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf
      • EmailMother Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows:

      Copyright Agent
      EmailMother 
      Attn: Legal Department
      114 5th Avenue, 15th Floor
      New York, NY 10011
      Email: [email protected]