ENTERGROUP EMAIL AGREEMENT
1.1 “E-Mail Template” shall mean those graphics and layout which have been customized for the Customer pursuant to this Agreement and which operate on the Internet with EnterGroup’s full featured e-mail technology at the domain name identified in Item 1 of Appendix A.
1.2 “User” shall mean any person having an E-Mail address on the Internet that incorporates the Customer’s domain name.
1.3 “Active Mailbox” shall mean any mailbox that is opened and has not been cancelled.
2. Term and Termination
2.1 This Agreement shall commence as of the date hereof and shall continue thereafter in full force and effect for a period of one (1) calendar month from the date the E-Mail Template is available to Users, unless terminated earlier as otherwise provided in this Agreement (the “Initial Term”). This Agreement shall automatically be renewed beyond the Initial Term for additional successive one (1) calendar month terms (each a “Renewal Term”), unless either party provides the other party with written notice of termination at least five (5) days prior to the expiration of the Initial Term or the then current Renewal Term.
2.2 In the event of any material breach or nonperformance of this Agreement by the Customer, including, without limitation, the failure to make payment, when due, of any fees or other consideration owing to EnterGroup, the use of any registration or other data with respect to any User in violation of this Agreement or violations of the confidentiality or intellectual property provisions contained in Sections 7 and 8 hereof, EnterGroup may terminate this Agreement, by giving five (5) days’ prior written notice thereof; provided, however, that this Agreement shall not terminate at the end of said five (5) days’ notice period if the Customer has cured the breach of which it has been notified prior to the expiration of said five (5) days.
2.3 EnterGroup may terminate this agreement for any or no reason by giving five (5) days prior written notice to the Customer.
2.4 Right of first refusal. If client shall receive any offer from any third party to provide email services to client or to the end-users, it shall notify EnterGroup of such offer and grant EnterGroup the exclusive right for 30 days from such notification to match the terms and conditions of such offer from said third party
3. Fees and Other Considerations.
3.1 If applicable, the Customer shall pay customization and development fees to EnterGroup, due and payable before customization and development are initiated.
3.2 For services with advertising real estate included, the customer shall have the right to 100% of the advertising revenue generated from the E-mail Template. EnterGroup takes no part in the selling, buying or promoting of the clients email template advertising, not including opt-in/out campaigns as stated in item 3.3.
3.3 EnterGroup, if agreed upon by customer, will include any or all of its current advertising and opt-in/out campaigns. EnterGroup will receive 75% of this revenue and customer will receive 25% of this revenue.
3.4 Other considerations and fees to be paid by the Customer to EnterGroup for the right to use the E-Mail Template is set forth on the EnterGroup Web site located at http://www.entergroup.com.
3.5 The Customer shall pay to EnterGroup a monthly fee for any and all open mailboxes under the customers domain. All fees, exept for set-up fees, are due and payable to EnterGroup Fifteen (15) days after the closure of every month during this Agreement. Upon termination of this agreement all due fees should be paid. All set-up fees are to be paid before set-up is complete and are non-refundable.
4.1 The Customer hereby acknowledges that the technology involved in developing, activating and servicing the E-Mail Template is the property of EnterGroup and the Customer acknowledges and agrees that neither the Customer nor any Users have or will acquire any ownership right in, or any license to, the E-mail Template technology.
4.2 The Customer and EnterGroup hereby agree that all User information (database of users) gathered through the E-Mail Template shall be the property of the Customer. Customer shall have exclusiveness to this database. Customer shall not have the right to use any User information for the purpose of spamming or for the purpose of soliciting away said User on behalf of a competitor of EnterGroup.
5. Upgrades. EnterGroup reserves the right to exclusively sell upgrades (“Upgrades”) and premium services to the E-Mail Service directly to Users on certain select packages such as X-Presso Mail. Upgrades shall include but are not limited to additional storage space, forwarding, POP and unified messaging services. EnterGroup will charge the Users directly for the cost of Upgrades and all such revenues earned from Upgrades shall be the property of EnterGroup and the Customer shall not be entitled to any portion thereof not including any percentages stated in item 3.3
6. Limitation of Warranties, Liabilities and Remedies
In no event shall EnterGroup be liable to the customer for any direct, special, incidental, punitive, consequential or lost profit damages, even if advised of the possibility of such damages. EnterGroup’s aggregate liability from or in relation to this agreement, whether arising in contract, negligence, tort, strict liability or otherwise, shall in no event exceed the total amounts paid to and received by EnterGroup in connection with the provision of the e-mail services during the previous three (3) month period.
7. Confidentiality. The Customer agrees that during the course of this Agreement, information regarding EnterGroup that is confidential or proprietary may be disclosed or become known to the Customer, including, but not limited to, the technology underlying the E-mail Template or other information of a technical or other nature (“Confidential Information”). Except as provided for in this Agreement, the Customer shall not (i) use or permit the use of any Confidential Information, or (ii) make any disclosure or permit the disclosure of any Confidential Information to anyone other than the Customer’s employees who have a need to know such Confidential Information in connection with this Agreement. The Customer shall notify its employees of its confidentiality obligations with respect to the Confidential Information and shall insure that its employees comply with these obligations. The confidentiality obligations of the Customer and its employees shall survive the expiration or termination of this Agreement and upon such expiration or termination, the Customer shall cease to use any and all Confidential Information, and will return all originals and copies made therefore to EnterGroup.
8. Intellectual Property. All materials, including but not limited to, any computer software (in object code and source code form), script, programming code, technology, data or information developed or provided by EnterGroup under this Agreement, and any trade secrets, know-how, methodologies, equipment, or processes related to the E-Mail Template or used by EnterGroup in connection therewith, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto and Confidential Information (as hereinafter defined) (collectively, the “EnterGroup Intellectual Property”) are and shall be the sole and exclusive property of EnterGroup. To the extent, if any, that ownership of EnterGroup Intellectual Property does not automatically vest in EnterGroup by virtue of this Agreement or otherwise, the Customer hereby transfers and assigns to EnterGroup all rights, title and interest which the Customer may have in and to EnterGroup Intellectual Property.
9. Indemnification. Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party and such other party’s affiliates, partners, licensors, officers, directors and employees (collectively, the “Indemnified Party”) against any and all claims, losses, costs and expenses, including reasonable attorneys’ fees, which the Indemnified Party may incur as a result of claims in any form by third parties due to or arising out of or based upon any act or omission by the Indemnifying Party in connection with the performance or non-performance by the Indemnifying Party of any of its duties or obligations under this Agreement or arising from or related to the breach by the Indemnifying Party of any of its representations, warranties, covenants or agreements contained in this Agreement. The Indemnifying Party’s indemnification obligation is subject to the Indemnified Party: (a) giving the Indemnifying Party prompt notice of the relevant claim; (b) cooperating with the Indemnifying Party in the defense or disposal of such claim and settlement negotiations; and (c) giving the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party will not enter into any settlement that affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval. The Indemnified Party will have the right to participate in the defense at its expense.
10. Force Majeure. EnterGroup shall not be liable for or responsible to the Customer for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of EnterGroup. EnterGroup is not responsible for any damage caused by malicious attacks by hackers against its systems whether intentional or miss intentional.
11. Notices. All notices to either party hereunder shall be in writing and shall be given to such party at its street address set forth in this Agreement or such other street address of which such party may hereafter give notice to the other. Each such notice shall be effective (i) if given by mail, 72 hours after such communication is deposited in the United States mails with first class postage prepaid, addressed as aforesaid, or (ii) if given by nationally recognized overnight delivery service with charges pre-paid by the sender and signed receipt required, on the date of delivery and receipt by the recipient.
12. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that no Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other Party hereto; provided, that such consent shall not be required with respect to any successor-in-interest to all or substantially all of either Party’s business or assets.
13. Miscellaneous. This Agreement constitutes the entire agreement and supersedes all prior agreements, understandings and communications of the parties with respect to the subject matter hereof and, except as otherwise expressly provided herein, is not intended to confer upon any other person any rights or remedies hereunder. This Agreement shall not be amended, waived, modified, assigned or transferred by the Customer except by a written consent to that effect signed by EnterGroup. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms and provisions of this Agreement will nevertheless remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to principles of conflicts of laws. Both parties submit to the exclusive jurisdiction of the Miami-Dade courts. The parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods (if applicable).
ENTERGROUP EMAIL AGREEMENT
Item 1: Additional Considerations
1. All set-up fees as displayed on the EnterGroup site in the respective ‘Pricing’ section are to be paid before set-up is complete and are non-refundable.
2. The email service must be launched by client within three weeks from the date of execution of this agreement.