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JOLT MEDIA’S EASY TO SEND WEB SITE & PRODUCTS TERMS & CONDITIONS OF USE

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE AND USE OF THE PRODUCTS. BY USING THIS WEB SITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEB SITE OR THE PRODUCTS.

Agreement

Jolt Media (“Company”) agrees to provide you (“User”) with access to technology to be used in connection with email marketing services through its Easy to Send product (the “Service”) subject to the terms of this agreement (“Agreement”), this website (“Website”), the privacy policy (“Privacy Policy”), the then current prices as identified on www.easytosend.com (“Website”), and the Acceptable Use Policy (“AUP”) and Anti-Spam Policy (“ASP”) (the AUP and ASP collectively referred to as “Policies”).

Modification

The Agreement may be supplemented, modified or amended (each a “Revision”) by Company at any time at its sole discretion, and each such revision will be effective upon posting of such change(s) on the Website.  If any Revision is not acceptable to User, User may terminate this Agreement as provided herein.  User’s continued use of the Services under this Agreement after the effective date of such Revision shall be deemed acceptance of such Revision. 

Activation and Use of Service

1. After the Effective Date, Company shall provide User with an account name and a password, which will enable access to the Service.  User shall be liable and responsible for any and all activities conducted through its account by User whether or not such activities have been authorized by User.

Fees

1. User will be charged for the use of the Service in accordance with the rates as identified on the Website.
2. User is responsible for all charges arising out of its use of the Service whether or not User authorizes such use.

Content

1. User may charge their end-users under separate agreements for use of any information, communications, other material, products and services provided by User (collectively referred to as the “Content”) through the Service.
2. User acknowledges, and shall also notify its end-users, that Company is not responsible for and does not provide any assurance to any person with respect to the validity, value, usefulness or accuracy of Content.  User shall bear any risk associated with the Content.  Company has the right to monitor the use of the Service, including the Content.  However, Company does not prescreen or attempt to censor or review any Content prior to its appearance on the Service.  Company has the right (but not the obligation) to require User to remove, prohibit or discontinue any Content on the Service which Company, in its sole discretion, determines to be harmful, offensive or otherwise in violation of the AUP, as may be amended from time to time.
3. The Service may be used solely to support User’s own internal operations.  The Service shall not be (i) sold or licensed to or used by any third party or (ii) used as a service bureau or for commercial time-sharing.

Intellectual Property

1. Company Proprietary Rights.  Company shall retain and own all proprietary rights in and to all of Company’s intellectual property, including but not limited to any Services provided hereunder (including all software, source codes, modifications, updates and enhancements thereof or any other aspect of the Services).
2. User Proprietary Rights.  User shall retain and own all proprietary rights in and to all of User’s intellectual property, including the Content.

Confidentiality

1. Definition.  “Confidential Information” includes the Service, administrative access to the Service, the terms and conditions of this agreement, the Website, software and other related materials furnished by Company, any information, business plan, concept, idea, know-how, process, technique, program, design, formula, algorithm or work-in-process, any engineering, manufacturing, marketing, technical, financial, data, or sales information, or any information regarding suppliers, Users, employees, investors, or business operations, and any other information or materials, whether in written, or graphic, or any other form or that is and whether disclosed orally, or electronically, whether tangible or intangible and in whatever form or medium provided, or otherwise which is learned or disclosed in the course of discussions, studies, or other work undertaken between the parties, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information (“Company Confidential Information”). 
2. Ownership of Confidential Information.  Nothing in this Agreement shall be construed to convey any title or ownership rights to the Service or other Company Confidential Information to User or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Company Confidential Information. User shall not, in whole or in part, sell, lease, license, assign, transfer, or disclose the Company Confidential Information to any third party and shall not copy, reproduce or distribute the Company Confidential Information except as expressly permitted in this Agreement.  User shall take every precaution to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Company Confidential Information.
3. Non-Disclosure.  Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party.  Each party agrees to restrict access to the other party’s Confidential Information only to those employees or subcontractors who (i) require access in the course of their assigned duties and responsibilities and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth herein.
4. Injunctive Relief.  User acknowledges that any unauthorized disclosure or use of the Company Confidential Information may cause Company imminent irreparable injury and that Company shall be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the User does not fulfill its obligations under this Section or this Agreement.
5. Suggestions/Improvements to Service.  Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by User regarding the Service or other Company materials provided to User shall be owned by Company, and User hereby agrees to assign any such rights to Company.  Nothing in this Agreement shall preclude Company from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Company in the performance of any services hereunder.

International Usage.

User agrees that its access to and use of the Services may be governed (in addition to this Agreement and AUP) by separate terms and operating policies, which conform to appropriate and applicable national laws and customs. User shall comply with all then-current export and import laws and regulations of the United States and such other governments as are applicable when using the Service.  User hereby certifies that it will not directly or indirectly export, re-export, transship, or transmit the Service, or any portion thereof, or related information, media, or products in violation of United States laws and regulations

Warranty.

1. User warrants that it will not use the Service to (i) send any unsolicited commercial email (as determined in Company’s sole discretion); (ii) send any Content that infringes the proprietary rights of a third party; (iii) send any Content or email that violate the laws of any jurisdiction; or (iv) send any Content or to any email addresses in violation of User’s privacy policy. 
2. User agrees that by transmitting or allowing the transmission of any Content on the Service, User automatically warrants that Company has the royalty free, perpetual, irrevocable, nonexclusive worldwide right to transmit and display such Content in whole or in part on the Service.
3. User understands and acknowledges that Company does not insert specific language on any email deployment or the Services that may be required by applicable laws, rules or regulations. 
4. USER EXPRESSLY AGREES THAT USE OF THE SERVICES HEREUNDER IS AT THE USER’S SOLE RISK.  THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND.  COMPANY MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

Limitation of Liability.

1. IN NO EVENT SHALL COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY USER FOR THE SERVICES WHICH GAVE RISE TO THE DAMAGES DURING THE MONTH OR MONTHS IN WHICH THE SERVICES FAILED TO OPERATE AS A RESULT OF COMPANY’S ACT OR OMISSION.  THE REFUND OF FEES PAID TO COMPANY FOR THE PERIOD DURING WHICH THE SERVICE MAY HAVE FAILED TO OPERATE AS A RESULT OF COMPANY’S ACT OR OMISSION SHALL BE USER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICE. 
2. IN NO EVENT SHALL COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL ARISING HEREUNDER EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE.

Indemnification

User agrees to defend, indemnify and hold harmless Company, its affiliated companies, licensees, employees from all liabilities, claims, causes of action and expenses, including reasonable attorneys’ fees and internal expenses, arising out of User’s use of the Service or breach of the AUP by User, transmission of any Content on the Service whether or not such use was authorized by User, use of the Service to send unsolicited commercial email (as determined in Company’s sole discretion) or a claim that User sent unsolicited commercial email, or the failure to remove a user from the Service when requested.  Company reserves the right to approve User’s counsel to defend any such claims, which approval shall not be unreasonably withheld, and to approve any settlement agreement.  Company shall cooperate with User in the defense of any claims at User’s expense.

Termination

This Agreement may be terminated prior to expiration or completion in accordance with the following:

1. Company may immediately suspend User’s use of the Service, without notice, if deemed reasonably necessary by Company to prevent any harm to Company’s network, its business or its other Users, based on User’s misuse or alleged misuse of the Service. 
2. User may terminate this Agreement at any time by providing written notice to Company pursuant to the procedures identified on the Website. There are no refunds for any fees paid. USER IS RESPONSIBLE FOR TERMINATING ITS ACCOUNT AND THIS AGREEMENT AND COMPANY IS NOT RESPONSIBLE FOR USER’S FAILURE TO PROPERLY TERMINATE ITS ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES USER INCURS AS A RESULT OF ITS FAILURE TO PROPERLY TERMINATE ITS ACCOUNT AND THIS AGREEMENT.

Notices

Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery. Unless otherwise specified, all notices to Company shall be sent to the attention of the General Counsel with copies to the CEO.
       
Force Majeure

Company shall not be liable for any delay or failure to perform hereunder due to the inability of User, Company or any other person to connect to the Internet, or any other failure or unavailability of the Internet for any cause whatsoever, acts of God or of the public enemy, or of any government or agency thereof, restrictions imposed by governmental agencies, fires, floods, epidemics, quarantine restrictions, strikes, work stoppages, freight embargoes, severe weather, Internet congestion, virus attacks, Denial Of Service (DOS) attacks, differences with workmen, war, hostilities, terrorist acts, riot, rebellion, delay in or lack of transportation facilities, inability to secure materials, power failure or fluctuation or any other cause beyond the control of Company or Company’s exercise of its rights under this Agreement.  In the event of delay by Company due to any such cause, the date of performance of any act by Company will be postponed by such length of time as may be reasonably necessary to compensate for such delay.

Publicity and Publication

1. User agrees that Company may include User’s tradename and logo on publicly displayed User lists (including Company’s Website).
2. For every email message sent in connection with the Service, User acknowledges and agrees that Company may add an identifying footer stating "Email Marketing by Easy to Send," "Powered by Easy to Send " or a similar message.

Data

1. ALL EMAIL ADDRESSES AND MESSAGE CONTENT ARE THE PROPERTY OF USER.  User shall obtain and maintain all source data for the email addresses uploaded to the Service (“Source Data”).  The Source Data shall contain at a minimum, the IP address and URL where the individual registered to receive messages and the time-stamp of such signup.
2. Company shall have the right to retain records of all data pertaining to use of the Service by User or User’s users including, but not limited to, usage, activity logs, and click-throughs.  Company may disclose such data to third parties provided it is grouped with other Company clients’ data and is presented in an aggregate form.  Company shall retain all rights to aggregate data after termination or expiration of this Agreement.
3. Notwithstanding confidentiality provisions herein, Company may disclose usage information about specific email addresses and Content to respond to abuse complaints from other mail administrators, law enforcement agencies, courts, or any other governmental agency.

Miscellaneous

1. Each provision of this Agreement is a separately enforceable provision.  If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
2. This Agreement shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto.
3. User shall not assign or transfer this Agreement whether by operation of law, change of control, or in any other manner, without the prior written consent of Company.  Any attempt to assign or transfer this Agreement shall be null and void.
4. Except as otherwise provided herein, the parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
5. The provisions set of this Agreement that by their nature would survive termination or expiration of this Agreement shall survive.
6. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
7. Headings are for reference purposes only, have no substantive effect, and shall not enter into the interpretation hereof.
8. Company is an independent contractor and nothing in this Agreement shall be deemed to make Company an agent, employee, partner or joint venturer of User.  Neither party shall have no authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
9. This Agreement shall be governed by the laws of the State of New York, excluding the conflicts of law provisions of any state or jurisdiction.  User and Company each submit to the exclusive jurisdiction of the courts of New York, New York for the enforcement of this Agreement or any action arising out of or relating to this Agreement.

[By clicking the submit button, User represents that he/she is over the age of 18 and is authorized to bind User to this Agreement.]

Charges/Payment:

Company will be charged for use of the Service as set forth in this Section.  All prices are subject to change at any time. 

Ongoing Costs:

Pricing will be based on the number of consumers contained in the User’s database loaded into the System

A specified cost multiplied by the number of consumers contained in the User’s database will be the monthly charge. Monthly charges will be billed on the 1st of the month using the following calculation:

Qty of Consumers	Unit Price Per Month
0 – 250	FREE
251 – 1,000	$8.99
1,001 – 5,000	$18.99
5,001 – 10,000	$34.99
10,001 – 25,000	$59.99
25,001 <	To be determined by Company

 

Acceptable Use Policy

Every mailing must adhere to the following best practices:

1. Only be sent to lists of opt-in recipients and provide source information on every recipient to be able to prove opt-in status;
2. Provide a physical mailing address in each mailing so end-users may contact you;
3. Provide a easy to use and working unsubscribe mechanism in each mailing and immediately honor any removal or unsubscribe requests;
4. Never confuse, mangle, or provide misleading Email headers, including Subject lines and From addresses;
5. Not contain or transmit any unlawful, harmful, threatening, abusive, harassing, offensive, defamatory, vulgar, obscene, sexually explicit or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party;
6. Not impersonate any person, including but not limited to, an official of Company or an information provider, or communicate under a false name or a name not entitled or authorized to use.

Violation

In the event User violates these terms in Company’s sole discretion, Company may suspend or terminate services.

 

Optional Services

Optional Services Rate schedule:

OFFERING	DESCRIPTION	RATE
Design Services	Company provides a creative marketplace where graphic design teams work with clients to provide design services for email content and related registration and landing pages.	As agreed upon between the User and designer(s) “Designer”.
Third Party Data	User may use Company’s built-in third party data (“Data Provider”). If User utilizes anonymous user-level information provided by a Data Provider (“Data”) using Company’s financial relationship with a Data Provider that is required in order to utilize Data from the Data Provider (“Data Provider Account”), then Company, on User’s behalf shall pay for any payments arising from Data usage; however User is solely responsible for such charges and will pay Company the associated cost of utilizing Data from a Data Provider (“Data Cost”).  If User utilizes Data from a Data Provider using User’s Data Provider Account, User will be responsible for the associated Data Cost.	As defined herein
Ad Serving	This Service provides the technology that places banner advertisements in User emails. In the event that the User opts to include display banner advertising in their outgoing emails, an ad-serving fee of 5% (of total ad revenue) will be charged for all revenues paid by the Supply Partner or third party advertiser. Fee is subject to change with or without notice All remaining revenues will be shared 50/50 with the User unless the User chooses to participate in the Banner Barter network.
Media Buying (Ad Serving)	In the event that User buys “impressions” or “inventory” bought from a website or publisher that allows Client to serve ad banners (“Media”) from a supply partner (“Supply Partner”) and uses its own account that has been established with a Supply Partner that allows a User of the Supply Partner to purchase Media from the Supply Partner (“Supply Partner Account”), then User agrees to pay Company the associated Media cost.  In the event that User buys Media from a Supply Partner and controls the Supply Partner Account, User will be responsible for making all payments to the Supply Partner (and will hold Company harmless for making any such payments).  User understands that the Media cost reported in the Services interface will be the sole basis for determining the Media cost amounts due and payable by User hereunder.  Fees owed to Company do not include any additional fees charged by a Supply Partner, unless such fees are explicitly listed as being included in this Agreement.	As defined herein
Banner Barter (Ad Serving)	The Service provides a barter network (“Barter Network”), which is an exchange where Users have the ability to barter ad space in their emails for ad distribution within the Service’s User network at no out-of-pocket cost. Exchanges are bartered in impressions (“Impressions”), in that for every Impression that is served, the User receives 1 Impression. As a User accrues these Impressions, the User can exchange them to purchase ad space elsewhere in the User network at the price of 2 Impressions. For example, if User A, who sends a restaurant review newsletter wants to acquire new customers via this program, then he/she would have to accrue Impressions by serving other User's ads in the User network first. Once User A has accrued Impressions, he/she can use these credits to purchase advertising space throughout the network from any User who has allowed their inventory to be purchased via barter. Users will have the ability to choose which category of advertising they are willing to accept on their site (i.e. Wireless advertising, Restaurant advertising).	As defined herein
Third Party Advertising (Ad Serving)	The Service provides a network exchange that facilitates the selling of display advertising inventory in User emails.  The advertisements will be served by the Service or by a third party vendor. All payments will be made by a third party advertiser and will be shared 50/50 with the User minus a 5% fixed fee (of total ad revenue) for ad-serving (“Fee”). (Fee is subject to change with or without notice)	As defined herein