1. LICENSE##1.1. MacMicro/BizConnector hereby grants Customer and its End Users a non-exclusive, non-transferable right and license to access and use the BizConnector and/or Lead Follow-Up Product hosted on MacMicro's servers via the Internet solely for Customer's own internal business use, subject to the terms and conditions of this Agreement.####2. FEES AND PAYMENT TERMS##2.1. Payments. Customer will pay to MacMicro all fees due MacMicro under this Agreement, including, without limitation, all fees for license of the BizConnector and/or Lead Follow-Up Products and otherwise for provision of MacMicro Services The normal method of billing is directly through a credit card. In cases where invoices are presented, all Fees will be due within thirty (30) days after the date that Customer receives of an invoice for same.##2.2. Overdue Accounts. A late fee may be charged by MacMicro on Fees and Expenses not paid to MacMicro by Customer as set forth in the Order Form, as applicable, or within thirty (30) days after the date that Customer receives notice that it is late in making such payment. at the lesser of (a) the maximum amount chargeable by law or (b) one and one-half percent (1½%) per month commencing with the date payment was due.######3. NONDISCLOSURE AND CONFIDENTIALITY##3.1. Each party hereunder may disclose to the other party certain Proprietary Information of such party or of such party's associated companies, suppliers, or customers. Recipient agrees to hold the Proprietary Information disclosed by Owner in strictest confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information disclosed by Owner to any third party, or utilize the Proprietary Information disclosed by Owner for any purpose whatsoever other than as expressly contemplated by this Agreement. The obligations in this Section 4 will survive the Term and Termination of this Agreement and endure in perpetuity. ####4. TERM AND TERMINATION 4.1. Generally. This Agreement shall commence as of the Effective Date when signed by both parties and thereafter will remain in effect until terminated as provided herein. Either party may terminate the Agreement as of the end of any month by giving written notice to the other party at least thirty (30) days prior to the end of the month.##4.2. Default. In the event that either party materially defaults in the performance of any of its duties or obligations under this Agreement and does not substantially cure such default, or commence a cure, within thirty (30) days after being given written notice specifying the default, the non-defaulting party may, by giving written notice thereof to the defaulting party, terminate this Agreement.##4.3. Effect of Termination. Within thirty (30) days after the termination of this Agreement for any reason (i) Customer will pay MacMicro for all Services performed by MacMicro up to the effective date of such termination for which payment is due and outstanding and (ii) MacMicro, in the event that the Agreement is terminated by Customer in accordance with Section 4.2 will refund to Customer all fees paid in advance for the remainder of the existing term beyond the effective date of termination. Each party will destroy or return all documents, materials, and all copies, in whole or in part, all documentation related thereto, and any Proprietary Information of the other party. Upon termination of this Agreement for any reason, all rights and licenses granted by MacMicro hereunder to Customer will immediately cease. Termination of this Agreement will also terminate all rights granted or services provided to any End User.##4.4. Survival. Termination of this Agreement by either party pursuant to the provisions of this Section will terminate each party's obligations under this Agreement except for Sections 4,6, 7, 8 and 9, all of which will survive termination of this Agreement.####5. CUSTOMER INDEMNIFICATION. Customer shall indemnify MacMicro against, and shall hold MacMicro harmless from, any and all claims, lawsuits and/or causes of action threatened or asserted against MacMicro based on, arising out of or in any way relating to (i) Customer's breach of this Agreement, (ii) use of the Services by Customer and its End Users, (iii) any claim that the Customer's Marks infringe a third party's intellectual property rights, or (iv) any claim that content provided by Customer and used with the BizConnector and/or Lead Follow-Up Product infringes a third party's intellectual property rights ("Customer Indemnification Events"). Customer shall pay any and all awards, judgments, settlements, fees and costs, including, without limitation, attorneys' fees, incurred by or on behalf of MacMicro in the defense, satisfaction and/or settlement of any and all such claims, lawsuits and causes of action. ####6. OWNERSHIP AND RESERVATION OF RIGHTS. Title, ownership rights, and intellectual property rights in and to the BizConnector and/or Lead Follow-Up Product and the BizConnector and/or Lead Follow-Up Marks (and all derivative works thereto and copies thereof) will remain with MacMicro and/or its third party licensors. Customer agrees to abide by the patent and copyright laws and all other applicable laws of the United States including, but not limited to, export control laws. Customer acknowledges that the BizConnector and/or Lead Follow-Up Product remains Proprietary Information of MacMicro and/or its third party licensors, that the source code is not licensed to Customer by this Agreement and will not be provided by MacMicro. Except as set forth in this Agreement, no right or implied license or right of any kind is granted to Customer, including, but not limited to, any right to use, reproduce, market, sell, host, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer the BizConnector and/or Lead Follow-Up Product or any related documentation thereof, or any portions thereof, or obtain possession of any source code or other technical material relating to the BizConnector and/or Lead Follow-Up Product. Customer agrees not to modify the BizConnector and/or Lead Follow-Up Product, create derivative works or attempt to decipher, decompile, disassemble or reverse engineer the BizConnector and/or Lead Follow-Up Product.####7. WARRANTIES AND DISCLAIMER. MacMicro represents and warrants that it has the right to enter into this Agreement and to perform all its obligations hereunder. MACMICRO, NOR THEIR AFFILIATES, LICENSORS OR SUPPLIERS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE OTHER, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.####8. LIMITATION OF LIABILITY##8.1. Limitation of Remedy. In no event will MacMicro, its affiliates, licensors or suppliers, or any of their officers, directors, employees, shareholders, agents or representatives be liable to the other party, or any other person or entity for any direct, indirect, incidental, exemplary or consequential damages or loss of goodwill in any way relating to this agreement or resulting from the use of or inability to use the services or the performance or non-performance of any services, including the failure of essential purpose, even if such party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on contract, tort, negligence, strict liability, products liability or otherwise.####9. GENERAL##9.1. Third Party Sends. Customer may, from time to time, utilize email lists from third parties. When requirements of the third party providing the list require a Third Party Send (see Paragraph 10 - Definitions), Customer is required to notify MacMicro in advance of each Third Party Send and to provide reports to MacMicro listing the sending user id, date of send, message name, and number of recipients to whom the message is sent.##9.2. Force Majeure. Neither MacMicro nor Customer will be liable for failure to perform any of its respective obligations under this Agreement, other than the payment of Fees and Expenses, if such failure is caused by an event outside its reasonable control, including but not limited to, an act of nature, war, terrorism or other event beyond such party's reasonable control.##9.3. Miscellaneous. MacMicro shall not be liable for any errors or interruption in the use of the Product outside of MacMicro's reasonable control. Access to the Product may be temporarily unavailable for scheduled maintenance, either by MacMicro or by third-party providers, or because of other events. MacMicro shall, in any event, provide 48 hours advance notice of any scheduled maintenance. This Agreement supersedes and cancels any previous understandings, representations, or agreements between the parties relating to the subject matter hereof, and expresses the complete and final understanding with respect to the subject matter hereof and supersedes and cancels all previous and contemporaneous written and oral agreements and communications relating hereto. Neither party may assign, transfer or pledge this Agreement, or any interest, license or rights herein, in any manner, without the prior written consent of the other party. MacMicro and Customer are independent principals in all relationships and actions under and contemplated by this Agreement. This Agreement shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship between the parties or to authorize any party to enter into any commitment or agreement binding on the other. Any failure by either party to detect, protest, or remedy any breach of this Agreement shall not constitute a waiver or impairment of any such term or condition, or the right of such party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. All communications between the parties which are required or permitted to be in writing shall be sent by hand delivery, with receipt obtained, or by prepaid, first class U.S. postal service mail, certified return receipt requested, or by recognized express delivery service, or by facsimile with confirmation by first class U.S. postal service and sent to the address on the Signature Page. By written communication, either party may designate a different address for purposes hereof. This Agreement shall be governed by, construed, and interpreted in accordance with the laws of the State of Georgia without regard to its rules governing conflicts of law. This Agreement shall be binding upon and inure to the benefit of each party and their respective heirs, successors and assigns. Facsimile transmissions of the signature page shall be binding upon the parties.####10. DEFINITIONS##As used in this Agreement, and in addition to any other terms defined in this Agreement, the following terms will have the following meanings: ##10.1 "Confidential Information" means information, other than Trade Secrets, that is of value to its owner and is treated as confidential, including, without limitation, data belonging to an End User of Customer.##10.2 "End User" means an employee or independent contractor of Customer##10.3 "Owner" refers to the party disclosing Proprietary Information hereunder, whether such party is MacMicro or Customer and whether such disclosure is directly from Owner or through Owner's employees or agents##10.4 "Proprietary Information" means Trade Secrets and Confidential Information##10.5 "Recipient" refers to the party receiving any Proprietary Information hereunder, whether such party is MacMicro or Customer and whether such disclosure is received directly or through Recipient's employees or agents##10.6 "MacMicro Services" means all services provided by MacMicro under this Agreement, whether designated as a part of BizConnector and/or Lead Follow-Up Product or otherwise, and listed on one or more Order Forms##10.7 "BizConnector and/or Lead Follow-Up Product" means the product(s) listed on one or more Order Forms##10.8 "Third Party Send" means a BizConnector and/or Lead Follow-Up message sent by a third party (list broker or other) wherein (1) the recipient list is controlled by the third party and not uploaded to MacMicro's servers, (2) the message content is created, maintained and delivered from MacMicro's servers, and (3) the message body is created on MacMicro's servers and then transferred to the third party for delivery to the recipient list.##10.9 "Trade Secrets" means information defined as trade secrets under applicable law##########Schedule A - Terms of Use####USER PRIVACY##MacMicro considers the Messages sent by Customer and Customer's End Users to be the private correspondence between the sender and recipient. MacMicro will not monitor, edit or disclose the contents of a Customer's private communications without Customer's prior permission, except that Customer agrees MacMicro may do so: (a) as required by order of a government agency or court of competent jurisdiction; (b) to comply with legal process or (c) to respond to a good faith belief of third party claims that such contents violate the rights or interests of a third party or these Terms of Use; MacMicro will, prior to disclosing the contents of Customer's private communications to any third party, provide notice to the Customer of the details of any claim or other circumstance that may allow disclosure under this section. Customer understands and agrees that technical processing of the Messages is and may be required (w) to send and receive the Messages; (x) to conform to the technical requirements of connecting networks; (y) to conform to the limitations of the BizConnector and/or Lead Follow-Up Product; (z) to conform to other, similar technical requirements, or to conform to the BizConnector Privacy Policy (http://www.theBizConnector.com/pps1.php?sect=general&pg=privacy), as updated from time to time, which is incorporated herein by reference.####NO "spamming"##Customer shall not use the BizConnector and/or Lead Follow-Up Product in any way, form or manner that is prohibited by this Agreement, including without limitation the use of any distribution lists with the BizConnector and/or Lead Follow-Up Product that include persons who have not given specific permission to be included on such list for the purpose of receiving email communications from Customer, unless Customer has an existing business or personal relationship with such persons. Customer is required to include a valid opt-out mechanism in each message.####NO RESALE OR COMMERCIAL USE OF THE SERVICE##Customer's right to use the BizConnector and/or Lead Follow-Up Product is personal to Customer. Customer shall not resell or make any commercial use of the BizConnector and/or Lead Follow-Up Product or otherwise seek financial gain from providing the BizConnector and/or Lead Follow-Up Product or access to the BizConnector and/or Lead Follow-Up Product to any third party without the express, prior, written consent of MacMicro.####USER CONDUCT##As a condition of Customer's use of the BizConnector and/or Lead Follow-Up Product, Customer represents and warrants to MacMicro that Customer will not use the BizConnector and/or Lead Follow-Up Product for any purpose that is unlawful or prohibited by these Terms of Use. The BizConnector and/or Lead Follow-Up Product makes use of the Internet to send and receive certain messages; therefore, Customer's conduct is subject to Internet regulations, policies and procedures. Customer's use of the BizConnector and/or Lead Follow-Up product in violation of these Terms of Use is a breach of the Agreement and subject to Termination in accordance with Section 5.2 above. By way of example, and not as a limitation, Customer shall not use the BizConnector and/or Lead Follow-Up product: ####in connection with unlawful contests or pyramid schemes; ##to defame (including without limitation libel and slander), abuse, harass, stalk, threaten or otherwise violate the legal rights (such as but not limited to rights of privacy and publicity) of others; ##to publish, distribute or disseminate any defamatory, infringing, obscene, adult-oriented, pornographic, or unlawful material or information through use of the BizConnector and/or Lead Follow-Up Product; ##to harm minors in any way; ##to harvest or otherwise collect information about others, including without limitation email addresses and email interception, without their consent; ##to record the conversations or communications of other people without their consent; ##to create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a Message or forge message headers or manipulate identifiers to disguise origin of transmission; ##to transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs; ##to transmit or upload any material that contains software or other material protected by copyright, trademark and patent rights, rights of privacy or publicity or any other applicable law unless Customer owns or controls the rights thereto or has received all necessary consents; ##to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation; ##to interfere with or disrupt the BizConnector and/or Lead Follow-Up Product, networks or servers connected to the BizConnector and/or Lead Follow-Up Product or violate the regulations, policies or procedures of such networks or servers; ##to attempt to gain unauthorized access to the BizConnector and/or Lead Follow-Up Product, other accounts, computer systems or networks connected to the BizConnector and/or Lead Follow-Up Product, through password mining or any other means; ##to violate any applicable laws or regulations including, without limitation, laws regarding the transmission of technical data or software exported from the United States through the service and any other applicable local, state, national and international laws and regulations; ##to interfere with another person's use and enjoyment of the BizConnector and/or Lead Follow-Up Product or another individual's or entity's use and enjoyment of similar services; ##to promote illegal activities; ##for illegal purposes; ##for gambling or betting or to promote the use of alcohol, firearms or tobacco products; ##to email links to World Wide Web sites that violate the terms of this Agreement; or ##to engage in any other conduct, which, in MacMicro's sole discretion, is considered unauthorized or objectionable. ##MacMicro has no obligation to monitor Customer's use of the BizConnector and/or Lead Follow-Up Product or to retain the content of any Customer session. Customer agrees that MacMicro shall not have liability for any such monitoring, lack of monitoring, review, lack of review, retention, lack of retention or disclosure of information. Customer agrees to be solely responsible and liable for the contents of Customer's Messages sent through the BizConnector and/or Lead Follow-Up Product. ########Schedule B - Service Levels####MacMicro will maintain the following Service Levels to ensure that a standard level of quality service is maintained while Customer utilizes the BizConnector and/or Lead Follow-Up Product:##1. MacMicro guarantees the following performance benchmarks for the BizConnector and/or Lead Follow-Up Product:######· 99.0% uptime measured in a 24-hour period beginning at 12:00am daily.##· A maximum sustained system utilization of 60% and additional capacity within 48 hours of reaching this utilization level;##· A bandwidth scalability to handle the amount of traffic contemplated by this Agreement.##* This calculation does not include scheduled and emergency maintenance##2. MacMicro agrees to monitor the levels of service and all systems on a regular basis.##3. Scheduled maintenance is carried out between the hours of 12:01am - 12:00pm Sunday morning each week. MacMicro agrees to notify Customer of any scheduled maintenance outside of the normal weekly maintenance window at least 48 hours in advance of that scheduled maintenance##4. Should Customer be prevented from accessing BizConnector and/or Lead Follow-Up for more than thirty (30) minutes during a 24-hour period as defined in #1 above (excluding scheduled and emergency maintenance), MacMicro agrees to extend Customer usage for one day. Customer is entitled to only one extension for any one 24-hour period.##5. Customer agrees to make a claim against this SLA to MacMicro Customer Support within ten (10) days of the service outage.
