EULA

Services Agreement

This Services Agreement (“Agreement”) is made and entered into between Mailnet Services, Inc. dba Conclusive Marketing (“Conclusive”) and user of Conclusive’s online services (“Customer”). The Agreement contains the terms and conditions that apply to Customer’s use of the online services. Please read these terms and conditions carefully.

By clicking on the I ACCEPT button, you acknowledge that you have agreed to all of the terms of this Agreement, that you have agreed to become a party to, and legally bound by, this Agreement and that you are duly authorized to execute this Agreement. If you do not agree to all of the terms of this Agreement, click the I DECLINE button. You will not be able to use the Service if you click the I DECLINE button.

This Agreement governs the web-based marketing applications and services to be provided by Conclusive to Customer under this Agreement, which services may change from time to time in the sole discretion of Conclusive (the “Service”).

1. TERM AND TERMINATION. This Agreement shall commence as of the Effective date and shall continue thereafter unless terminated by either Party on thirty (30) days prior written notice. Notwithstanding the foregoing, either Party may terminate this Service Agreement immediately in the event of a breach or a threatened breach of this Service Agreement by the other Party and Conclusive shall have the right to immediately terminate this Service Agreement in the event that Conclusive determines, in its sole discretion, to suspend offering the Service to Customer.

2. CUSTOMER RESPONSIBILITIES.

2.1. Upon receipt, Customer shall inspect Conclusive’s work for compliance with the Service ordered. If verifiable errors are reported to Conclusive within 30 days, Customer shall elect its remedy as set forth in Section 8 of this Agreement. Customer’s failure to notify Conclusive of errors shall constitute acceptance of the order “As Is”.

2.2. Customer will maintain current, accurate and complete books and records relating to its use of any rented lists for a period of at least twelve (12) months after each marketing communication including sample mail pieces, telemarketing scripts, ad copy or other communications that Customer has used, and a list of each state to which the marketing communication has been made using the Lists. At their own expense, Conclusive, or any representative designated, will have the right to examine and copy or make extracts from all such books and records and any source documents used in preparation thereof, related to the rented lists, at any time during normal business hours, provided Conclusive gives Customer written notice at least three (3) business days prior to any such examination.

3. PRICING. Customer agrees to pay Conclusive all fees and charges (including applied sales taxes) in connection with the Services as set forth within the website upon order completion, which fees and charges may be changed from time to time in Conclusive’s sole discretion through posting of such changes on its website. All past due invoices shall incur interest at a rate of 1% per month or the maximum lawful rate, whichever is less. Ownership title for the Services purchased on the website will transfer at the point of origin. In the case of direct mailing campaigns this would be the location that the mailing is presented and given to the USPS for distribution to the mailing campaign recipients.

4. CONFIDENTIALITY / PROPRIETARY INFORMATION. The Customer Data disclosed pursuant to this Agreement will be deemed to include certain personally identifiable information which may include information that is publicly available combined with information that is not publicly available. Conclusive agrees to not use, disclose, or commingle with information held by Conclusive the Customer data for marketing purposes or for any other purposes except (a) as permitted or required by this Agreement or as required by law, or (b) with prior written approval from Customer. Conclusive agrees and acknowledges that the Customer data shall at all times be owned by Customer or Customer’s subsidiaries or affiliates. Conclusive and Customer acknowledge that the information disclosed hereunder may constitute proprietary information and trade secrets of the disclosing party and agrees that it shall maintain such confidential information in strict confidence and shall not disclose to any person or entity, or otherwise utilize or license, either during the term of this Agreement or at any time thereafter, any confidential information, data, trade secret or any other proprietary or confidential matter of which it becomes aware and which in any way relates to the business, financial or property affairs of the disclosing party or its subsidiaries or affiliates, without the disclosing party’s prior written consent. The recipient agrees to use appropriate safeguards to prevent use and/or disclosure of the confidential information of the disclosing party in a manner other than as provided for by this Agreement, including, but not limited to, protecting written documents and electronic files. The recipient shall restrict access to the disclosing party’s confidential information to those employees, officers, subcontractors and other third parties whose access is necessary for the performance of the Services. If Conclusive or any of its representatives are requested pursuant to, or become compelled by law, regulatory request, legal process, subpoena or court order to disclose Customer data, Conclusive will provide Customer with prompt advance written notice of such intended disclosure so that Customer may seek a protective order or other appropriate remedy. Conclusive will furnish only that portion of the Customer data which is legally required and Conclusive shall reasonably cooperate with Customer’s efforts, at Customer’s expense, to obtain reliable assurance that confidential treatment will be accorded the Customer Data.

5. MATERIALS / DATA PROTECTION WARRANTIES.

5.1. Customer acknowledges that in providing the Services, Conclusive will rely on various materials and data provided or obtained from Customer and Clients (“Materials”). Customer agrees that Conclusive does not perform any independent analysis or verification of these Materials and cannot guarantee or warrant the accuracy or such Materials. Conclusive assumes no responsibility or liability for errors resulting from the Materials.

5.2. The parties agree to comply with all privacy and data protection laws, rules and regulations. Customer warrants that any Materials sent to Conclusive by Customer or Clients has been legally obtained, that Customer’s or Client’s subsequent use of such Materials will be legal, and that, to the best of its knowledge, none of the activities for which it has engaged the Services of Conclusive will involve the commission by Conclusive of any illegal act. Conclusive warrants that all information that it provides Customer has been legally obtained and that to the best of Conclusive’s knowledge it has complied with all applicable laws and regulations.

5.3. Conclusive may suspend the Services if in its reasonable judgment the performance of the Services would be illegal. Such a suspension of Services shall not constitute a default under this Agreement. In such event, the parties agree to use their best efforts to implement an alternative method of performing the Services. In the event that no such alternative method can be reasonably implemented, Conclusive agrees to return all of Customer’s proprietary information that relates to the suspended Services promptly upon Customer’s payment to Conclusive of any then current invoices relating to such Services. Conclusive will promptly refund to Customer any portion of its pre-paid fee that has not been used for services at the time of service suspension.

6. OWNERSHIP

6.1. The Services provided under this Agreement include pre-existing works (individually and collectively, the “Conclusive Materials”). The Conclusive Materials and all rights therein including any patent, copyright, trademark, trade secret or any other intellectual property right associated with the Conclusive Materials and any source code related to the Conclusive Materials shall be owned exclusively by Conclusive. Customer shall have no claim of ownership in any of the patent, copyright, trademark, trade secret, or any other intellectual property right in the Conclusive Materials. Client has the right to use Conclusive Materials as defined in the Schedule.

6.2. Conclusive reserves the right to modify or update the Conclusive Materials from time to time. Conclusive will give Customer reasonable notice in the event that these modifications will materially change the functions or features of the Services.

7. Limited License. Conclusive grants Customer a nonexclusive, revocable right to use Conclusive Marketing icons and logos provided by Conclusive, and such other images for which Conclusive grants express permission, for the purpose of identifying Customer and Conclusive as business partners and to assist in generating additional product sales for Conclusive. Customer may not modify any such materials in any way. Conclusive reserves all of its rights in the icons, logos, and other such images and materials, trade names and trademarks, and all other intellectual property rights therein. Customer agrees to allow Conclusive to review final ad copy and images prior to such licensed logos and icons being displayed publicly on any written or electronic media. Conclusive agrees to not unreasonably withhold approval of use of ad copy and images. Conclusive may revoke Customer’s trademark and images license at any time by giving 30 day written notice to Customer.

8. GENERAL WARRANTIES.

8.1. Conclusive warrants that it has the necessary equipment, computer capacity, software, programs and trained personnel to properly perform the Services described herein consistent with standard industry practices, that it will perform the Services described herein in a professional and workmanlike manner, that it is a duly formed corporation in good standing under the laws of the state of Delaware, that it is qualified to transact business in all states where the ownership of its properties or nature of its operations requires such qualification, that it has full power and authority to enter into and perform the Agreement, that the execution and delivery of the Agreement have been duly authorized, and that the Agreement does not violate any law, statute or regulation and does not breach any other agreement or covenant to which Conclusive is a party or is bound.

8.2. Customer warrants that it is a duly formed company in good standing under the laws of its state of incorporation, that it is qualified to transact business in all states where the ownership of its properties or nature of its operations requires such qualification, that it has full power and authority to enter into and perform the Agreement, that the execution and delivery of the Agreement have been duly authorized, and that the Agreement does not violate any law, statute or regulation and does not breach any other agreement or covenant to which Customer is a party or is bound.

8.3. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THAT ANY DATA IS TO BE SUPPLIED HEREUNDER, CONCLUSIVE MAKES NO WARRANTIES EXPRESS OR IMPLIED WITH RESPECT THERETO, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, COMPLETENESS, OR CURRENTNESS.

9. REMEDIES. Conclusive’s sole obligation and Customer’s exclusive remedy for any claim of defective Services shall be to re-perform the Services in question without charge or, at Customer’s option, to refund the price paid by Customer for any defective Services. Conclusive’s aggregate liability to Customer whether for negligence, breach of warranty, or any other cause of action shall be limited to the price paid for the Services to which the incident relates.

10. MUTUAL NON-INFRINGEMENT INDEMNIFICATION. Conclusive and Customer (Parties) will defend and indemnify each other against a claim that their services, data, or any other product furnished by the Parties and used within the scope of this Agreement infringes a copyright, patent, trademark, trade secret, or other third-party proprietary right provided that: (a) each Party notifies the other in writing within thirty (30) days after receiving written notice from a third party specifying such claim; (b) each Party has sole control of the defense and all related settlement negotiations on its own behalf and is responsible for all costs and expenses associated therewith; and (c) each Party provides the other with such assistance as may be necessary to perform their obligations under this Paragraph 10. THE FOREGOING STATES EACH PARTIES’ ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

11. LIMITATION OF LIABILITY. In no event shall either party, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS OR ASSIGNS BE LIABLE for any special, indirect, incidental or consequential damages, including, but not limited to, lost income or lost revenue whether based in contract, tort or any other theory. Any cause of action arising from or in connection with this Agreement shall be asserted within one (1) year of the date upon which such cause of action accrued, or the date upon which the complaining party should have reasonably discovered the existence of such cause of action, whichever is later.

12. Governing Law. This Agreement shall be governed by the Laws of the State of Tennessee.

13. ENTIRE AGREEMENT. This Agreement, together with the Schedule attached hereto, sets forth the entire understanding and supersedes and merges all prior and contemporaneous agreements between the parties relating to the subject matter contained herein, and neither party shall be bound by any provision, amendment or modification other than as expressly stated in or contemplated by this Agreement or as subsequently shall be set forth in writing and executed by a duly authorized representative of the party to be bound thereby. All waivers hereunder must be made in writing, and failure at any time to require the other party's performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver of any breach of this Agreement shall not be construed as a waiver of any continuing or succeeding breach.

14. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law; but if any provision of this Agreement should be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, and the balance of this Agreement shall be interpreted as if such provision were so excluded.

15. Subject Headings. The subject headings of the sections of this Agreement are included for the purposes of convenience only, and shall not affect the construction or interpretation of any of its provisions.

16. Successors and Assigns. Customer shall not assign or transfer its rights, or delegate its rights or responsibilities under this Agreement, without the prior written consent of Conclusive. Any purported assignment or delegation in violation of this Section shall be null and void and of no force or effect. Conclusive may assign this Agreement and/or payments due hereunder without requirement for Customer permission or approval. This Agreement shall be binding on, and shall inure to the benefit of, the authorized successors and assigns of Conclusive and Customer.

17. FORCE MAJEURE. Neither party is responsible for delays due to causes or occurrences beyond its control including, but not limited to, civil disobedience, acts of God, casualty or accident, war, labor disputes, government actions, or the like.

18. NOTICES. Notices required or contemplated by this Agreement by either party shall be delivered either by (i) personal delivery, (ii) postage prepaid, return receipt requested, registered or certified mail, (iii) nationally recognized overnight courier, such as Federal Express or UPS, or (iv) facsimile with a confirmation copy sent simultaneously by postage prepaid, return receipt requested, registered or certified mail. Notice shall be effective on the date it is received.