Last Updated: 05-12-05
LoadMail, LLC. ("LoadMail") is pleased to provide the Private Label E-mail service ("Service") to the client ("Client") subject to the terms and conditions outlined below. These terms and conditions, the LoadMail Service Order and any addenda attached to the Service Order are together the "LoadMail Private Label License Agreement" or the "Agreement." This Agreement is effective as of the date Client executes the Service Order ("Effective Date"). To the extent of any conflict among them, the Service Order supersedes these terms and conditions but these terms and conditions supersede any provisions of any purchase order drafted by Client and all related proposals and communications, written or oral. A printed version of this Agreement (with a revision date the same as or prior to the Effective Date) and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
LoadMail has developed Web-Based E-mail software that personalizes and integrates online communications. LoadMail and Client desire to create a version of the LoadMail software bearing the Client trademark in order to achieve wider distribution of the software and provide value to the Client and its customers.
The parties agree as follows:
1.1. In addition to the other duties of LoadMail under this Agreement, LoadMail will provide and maintain the private label e-mail product for the Client as follows:
A. LoadMail will provide persons or classes of persons designated by Client (the "Client Users") with the capability to send and receive e-mail via the World Wide Web and on LoadMail's systems.
B. LoadMail will provide such services using the Internet domains www.DomainName.com (the "Client Domains").
1.2.
Third Parties.
A. Neither party may assign any rights or duties under this Agreement, or grant sublicenses or redistribution rights, to any third party without the prior written consent of the other, which shall not be unreasonably withheld.
B. If the Client assigns its rights and duties under this Agreement as provided in this Section 1.2 then, without limiting any other provision of this Agreement, the Client's assignee shall be bound by the confidentiality provisions set forth in Section 12 of this Agreement.
1.3.
Proprietary Rights. LoadMail retains sole and exclusive right, title and interest including but not limited to all intellectual property rights, in and to the Private Label Product, except to the extent that Client's Trademarks are included in the Private Label Product and except to the extent the Private Label Product includes the intellectual property of Client's clients (including, but not limited to, universities and sports organizations). Client retains sole and exclusive right, title and interest in and to all Client's intellectual property rights, including but not limited to its Trademarks. Client agrees not to reverse engineer, reverse assemble, decompile, or otherwise attempt to derive source code from the Private Label Product. All of Client's rights in the Private Label Product are expressly set forth herein. There are no implied rights in intellectual property and each party reserves all rights not expressly granted.
1.4.
Ownership of Data. Client retains sole and exclusive right, title and interest for data collected through acquired users of Private Label Product and ability to contact acquired users through any electronic or other method including, but not limited, to e-mail bulletins, letters, messaging, images and text.
2.1
Updates. From time to time during the term of this Agreement, LoadMail may provide Updates to the Private Label Product.
2.2
Support. In addition to hosting and site maintenance services provided by LoadMail, LoadMail shall provide technical support to Client and end-users of the electronic mail portion of Client's WWW site (including, without limitation, the Private Label Product). Such technical support includes, but is not limited to:
an Online help section of the Private Label Product, which shall contain frequently asked questions and current information on the most common difficulties experienced by users similar to the Client Users. An e-mail support form shall be posted on the Private Label Product. Client will also have access to LoadMail's technical staff during normal operational hours Monday - Friday 8AM - 5PM.
3.1.
Lawsuits; Recalls. If the Private Label Product or related materials are (or in LoadMail's reasonable judgment may become) the subject of a third party lawsuit, upon LoadMail's request, Client shall immediately cease promoting and/or using the Private Label Product and shall remove or redirect Site Link(s) from all Client properties.
4.1.
Client. Client shall have the right to sell advertising within all the banner slots of the Private Label Product.
4.2.
Competitors. Client shall not sell advertising within the Private Label Product where such advertising would deal directly with such subject matter and where such persons could reasonably be considered material competitors of Load, Ltd.
4.3
LoadMail List Management. Client shall not exceed two (2) e-mail blasts each month for users residing on the Load, Ltd and LoadMail systems. Such content and subject matter of the e-mail blast shall not be material competitors of any products or services of Load, Ltd.
During the term of this agreement only: (i) Client hereby grants to LoadMail a non-exclusive, royalty-free right to apply Client's Trademarks to the Private Label Product for the purposes of performing its duties under this Agreement; (ii) each party hereby grants to the other the right to use its Trademarks on materials, including without limitation advertisements, sales literature, user documentation, and promotional materials ("Promotional Materials"), solely in connection with the promotion of the Private Label Product, except that in no case shall LoadMail use the intellectual property of Client's clients for any purpose except performance of LoadMail's duties under this Agreement; (iii) each shall submit to the other all representations of Trademarks that it intends to use in connection with the Promotional Materials, for approval of design, color, and other details. No Promotional Materials Trademarks shall be published, disseminated, exhibited, or otherwise distributed without the prior approval of the owner of the Trademark. At no time during the term of this Agreement shall either party challenge or assist others to challenge the other party's Trademarks or the registration thereof or attempt to register any trademarks, service marks or trade names confusingly similar to such Trademarks. Except as expressly granted in this Agreement, each party reserves all of its other rights in and to the Trademarks.
6.1.
Payment. Payments due shall be made by any party owing money to the other as follows. (i) in the case of Monthly Per Mailbox Fees, such fees will be invoiced by LoadMail on the 25th day of each month due by the 15th day of the following month for the Monthly Per Mailbox Fees for the immediately preceding month, (ii) in the case of the one-time license fee and fees for additional Skins, payments as set forth on the Service Order.
6.2.
Payment - Collection Fees. All debt accounts not paid-in-full within 30 days from the date of the initial debt notification letter will accrue monthly interest charges. Additional fees for administration costs and penalties may also apply. Accounts having no collections within 30 days of the initial debt notice date are considered delinquent.
7.1.
Term. This Agreement shall commence on the date of the last signature on the Service Order, and shall continue in full force and effect for twelve (12) months. This Agreement will automatically renew unless either party gives written notice (excluding therefrom facsimile and e-mail) of intent to end the Agreement no less than thirty (30) days from the expiration date herein. Client has the right during the term of this Agreement to supply LoadMail with a thirty (30) days written notice (excluding therefrom facsimile and e-mail) to end this agreement.
7.2.
Termination. If either party materially breaches any provision of this Agreement, the other party may give written notice to the breaching party that if the default is not cured within forty-five (45) days of the date of such notice the Agreement will be terminated. If the non-breaching party gives such notice and the breach is not cured during such forty-five (45) day period, then this Agreement may be terminated by such other party immediately upon written notice.
7.3.
Rights Upon Termination. Following any termination or expiration of this Agreement all of Client's rights in the Private Label Product shall automatically terminate and Client shall immediately cease all use, promotion, reproduction, manufacturing and distribution of the Private Label Product (including removing Site Links). The licenses each has granted herein to the other to use its Trademarks shall immediately terminate, and be of no further force and effect.
7.4.
Survival. Termination or expiration of this Agreement shall not affect any service agreements between LoadMail and end-users using the Private Label Product. The following provisions shall survive termination of this Agreement for any reason: Sections 7.3, 8, 9, 10, 11 and 12.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT, THE PRIVATE LABEL PRODUCT IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, AND LOADMAIL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRIVATE LABEL PRODUCT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. THE LIMITS SET FORTH IN THIS SECTION 9 WILL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. EXCEPT IN THE CASE OF LOADMAIL'S LIABILITY UNDER SECTION 10.2 OF THIS AGREEMENT, LOADMAIL'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF TEN THOUSAND DOLLARS ($10,000) OR SIX MONTHS' CHARGES UNDER THIS AGREEMENT.
10.1. Client Indemnity. Client agrees to defend and/or settle any claim brought by a third party against LoadMail (i) arising from Client's actions in reproducing, marketing and distributing the Private Label Product; (ii) that the Client Trademarks infringe a third party's U.S. trademark or worldwide copyright or trade secret; and (iii) to the extent that the content within Client's Advertising Banner Slots has not been sold by LoadMail, that said content constitutes libel, invasion of privacy, or the violation of any right of publicity or privacy, or infringes a third party's U.S. trademark or worldwide copyright or trade secret.
10.2. LoadMail Indemnity. LoadMail agrees to indemnify, defend and hold harmless Client from any claim brought by a third party against Client that (i) the Private Label Product (excluding Client Trademarks) infringes a third party's intellectual property right; and (ii) the content within Advertising Banner Slots sold or provided by LoadMail (with or without Client's permission) constitutes libel, defamation, invasion of privacy, or violates any right of publicity or privacy, or infringes a third party's intellectual property right.
10.3 Procedures. The indemnifying party shall pay all damages or settlement amounts finally awarded against the indemnified party to the extent based on such a claim, including payment of reasonable attorneys' fees, and costs, provided that (i) the indemnified party notifies the indemnifying party promptly in writing of the claim, (ii) the indemnifying party has as much control of the defense and all related settlement negotiations as the indemnifying party can reasonably procure for the indemnifying party, and (iii) the indemnified party provides the indemnifying party with all commercially reasonable assistance, information and authority to perform the above at the Indemnifying Party's expense. THE FOREGOING INDEMNIFICATION OBLIGATIONS SHALL BE THE INDEMNIFYING PARTY'S SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF PATENT RIGHTS, COPYRIGHTS OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS.
Each party acknowledges that, by reason of its relationship to the other party under this Agreement, it may have access to non-public information and materials ("Confidential Information") including, without limitation, the terms of this Agreement, LoadMail's or its parent's advertising statistics and registration or demographic information of end users, each party's business, plans, customers, technology and products. Each party agrees to maintain in confidence and use only as permitted in this Agreement all Confidential Information received from the other, both orally and in writing; provided that the parties' obligations of non-disclosure under this Agreement shall not apply to Confidential Information which: (i) is or becomes a matter of public knowledge though no fault of the receiving party; (ii) was rightfully in the receiving party's possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Information; (iv) is independently developed by the receiving party; or (v) is required to be disclosed by law. Each party may seek equitable relief (as well as money damages) to protect its interests under this Section 11.
A. This Agreement will be interpreted and governed by the laws of the State of Nevada, without reference to conflict of laws principles and without regard to the 1980 U.N. Convention on the International Sales of Goods.
B. This Agreement embodies the entire agreement between the parties regarding the subject matter hereof, supersedes all previous and contemporaneous agreements regarding this subject matter and may be amended only by a written instrument duly signed by an authorized representative of the party against whom enforcement is sought.
C. The relationship of the parties is one of independent contractors.
D. The rights and obligations of the parties will bind and inure to the benefit of their respective successors and permitted assigns.
E. No waiver of any breach of any provision of this Agreement constitutes a waiver of any other breach, and will not be effective unless made in writing and signed by an authorized representative of the waiving party.
F. All notices, authorizations and requests in connection with this Agreement will be deemed given (a) five days after deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; or (b) the day after sent by overnight courier, charges prepaid, and in either event addressed to the addresses set forth in the preamble of this Agreement.
G. Client warrants that it will not export or re-export the Private Label Product except in conformity with all U.S. and foreign laws and regulations.
H. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
If you have any questions or concerns with this policy or any of Load's services, please send your comments to
info@load.com.