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Platform license and services agreement

This Platform license and services agreement (this "Agreement") is made effective as of the date first written below (the "Effective date"), by and between MailUp, Inc., a Delaware corporation ("MailUp"), and the undersigned client ("Client" or "You”). MailUp and Client may be referred to individually as a "Party" and collectively as the "Partie".

RECITALS

WHEREAS, MailUp has developed and designed a digital platform (the "MailUp platform") to store and manage data and provide multi-channel digital messaging and online marketing campaign management services (the "MailUp service(s)" or "Service(s)");

WHEREAS, Client wishes to utilize the MailUp Services in connection with the Client’s business;

WHEREAS, the Parties intend to enter into a platform license and services agreement pursuant to which, as expressly provided herein:

A. MailUp will make available to Client the MailUp Services on the MailUp Platform;

B. Client will use the MailUp Services, in accordance with and subject to the terms of this Agreement and to the MailUp Platform terms of use as in effect from time to time, for purposes of communicating with and tracking the responses of its users (the "Clients”);

WHEREAS, in furtherance of the objectives set forth above, the parties hereto desire to enter into this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, MailUp and Client, intending to be legally bound, hereby agree as follows:

Section 1. Certain definitions

1.1. "Intellectual property rights" mean all inventions, discoveries, trademarks, patents, trade names, copyrights, moral rights, jingles, know-how, intellectual property, software, shop rights, licenses, developments, research data, designs, technology, trade secrets, test procedures, processes, route lists, computer programs, computer discs, computer tapes, literature, reports and other confidential information, intellectual and similar intangible property rights, whether or not patentable or copyrightable (or otherwise subject to legally enforceable restrictions or protections against unauthorized third party usage), and any and all applications for, registrations of and extensions, divisions, renewals and reissuance of, any of the foregoing, and rights therein, including without limitation (a) rights under any royalty or licensing agreements, and (b) programming and programming rights, whether on film, tape or any other medium which a Party owns or for which has a right to use.

1.2. "Person" means any natural person, legal entity, or other organized group of persons or entities. (All pronouns whether personal or impersonal, which refer to Person include natural persons and other Persons.)

Section 2. Terms

2.1.Platform license. Subject to the terms and conditions of this Agreement, MailUp hereby grants to Client a limited, non-exclusive license for Client to use the MailUp Platform and shall provide to Client the Services in accordance with the Menu of services available on the MailUp Web site at http://www.mailup.com/create-email-campaign.htm (the "License”).

2.2. Client database. Client shall deliver to MailUp and MailUp shallhost and maintain a database (the "Client database") to host external data delivered by Client to MailUp to enable the provision of Services (collectively, the "Data") in accordance with the terms and conditions of this Agreement and any other agreement, if any, pursuant to which such data are integrated and collected. Client understands and agrees that MailUp’s ability to provide the Services is subject to Client providing the Data to MailUp in such a manner and format so as to permit MailUp to host the Data in the Client Database in accordance with and subject to MailUp policies as in effect from time to time. So long as this Agreement is in effect, Client grants to MailUp a non-exclusive irrevocable royalty-free license to access the Data in connection with the Service. Client shall be solely responsible for and represents and warrants to MailUp that Client has full and complete authority to access and deliver the Data for hosting in the Client Database, without requiring any third party consent. MailUp reserves the right at any time to refuse hosting Data in its own discretion.

2.3. Client dashboard. In connection with the delivery of Services, Client shall be granted access to a dashboard through which certain user, traffic and other data analysis and statistics shall be available. (the "Dashboard”) Client’s access and use of the Dashboard shall be in accordance with and subject to the additional terms and conditions set forth in the MailUp Terms of use available at http://www.mailup.com/terms-of-use.htm

2.4. Additional features and interoperability. The MailUp Platform also provides functionalities, tools and API integration and interoperability features (collectively, "Interoperability features") as set forth in the MailUp API documentation available at http://api.mailup.com, to enable Client to create custom integrations with the MailUp Platform, such as synchronizing contact databases and automating tasks. Client shall be solely responsible for enabling the interoperability of Features with the MailUp Platform; provided, however, that Client first provides appropriate tools necessary to support, use, and interoperate with the MailUp Platform in accordance with the terms of this Agreement.

2.5. Support services. MailUp will provide support services on the MailUp Platform in accordance with its Service Level Guarantee.

Section 3. Ownership and branding; third party licensees

3.1. Ownership of MailUp platform. MailUp is and at all times shall remain the sole and exclusive owner of all rights and interests to the MailUp Platform and of any and all Intellectual Property Rights related thereto, including developments therefrom, unless otherwise provided under the terms of this Agreement.

3.2. MailUp software and services.

(a) MailUp shall remain the sole and exclusive owner of all rights and interests to the MailUp software and of any development therefrom that underlie the MailUp Platform.

(b) On all Client e-mail messages sent using the MailUp Services,unless otherwise agreed, MailUp shall receive clickable, linking textual attribution (i.e. "Powered by MailUp") of at least a font size of HTML font size = 1 (i.e. approximately the equivalent of 8 point Times Roman font) or as otherwise determined by MailUp (the "MailUp attribution").

3.3. Third party customers. Client and MailUp may agree that from time to time Client may want to sublicense access to the MailUp Platform to certain third party customers, for provision of the Services. Any such sublicense shall be permitted only upon (A) MailUp’s prior written consent and execution of the MailUp Vendor Agreement, and (B) the third party’s acceptance of the Terms of Use

Section 4. Service fees

4.1. License and activation fees. Client shall pay MailUp license and activation fees for the Services as provided on the MailUp Web site at http://www.mailup.com/login/. An overview of pricing for the Services is available to all visitors to the MailUp Web site at http://www.mailup.com/pay-per-speed-email-marketing.htm. Complete pricing information for the Services is available only to registered user and can be found in our Pricing schedule available at http://www.mailup.com/ once Client logs into his or her account.

4.2. Payment terms. The text messaging portion of the Services is available for purchase as a Pay As You Go Plan ("PAYG plan”). The e-mail marketing portion of the Services is available as a subscription pricing plan (the "Email subscription plan”). The PAYG Plan enables Client to purchase a specified number of text messaging credits to use in connection with the Services. Prices may change at any time at MailUp's sole discretion. Client is responsible for understanding what current prices are in effect at all times. MailUp will use reasonable efforts to notify Client of any changes to the price list prior to such changes taking effect.

The Email Subscription Plan offers Client access to the e-mail marketing portion of the Services based on a flat monthly fee described in the e-mail price list. The charges are based upon the amount of sending capacity allocated to the Client’s account, and typically expressed in terms of messages that can be sent in an hour, and the corresponding pricing tier into which such number falls.

The Services must be paid in advance prior to Client’s usage of such Services. Access to the Services shall be enabled once Client remits payment. Access to the Services shall be disabled should Client become delinquent in paying the monthly subscription fees if Client is purchasing Services on a subscription pricing plan. If Client is on a monthly subscription plan, Client’s credit card will be charged on the anniversary day of the Client’s initial sign-up date in each subsequent month following the initial month of subscription. If MailUp modifies its pricing structure, MailUp will use reasonable efforts to notify Client prior to implementing such changes.

Payment for Services shall be paid with any valid credit card that is accepted by MailUp. MailUp also accepts ACH debits from Client bank accounts. Checks will only be accepted for prepayments of Services upon approval by MailUp. All payments shall be made in U.S. dollars. Client authorizes MailUp to keep Client credit card or Client bank account information on file and charge such credit card or debit such bank account for the continuing usage of existing Services or the future usage of the Services. Client's account will be disabled if MailUp is unable to charge Client's credit card for Services rendered or future Services purchased. MailUp will attempt to notify Client of our intent to suspend access to the Services prior to such suspension taking effect.

4.3. Refunds. There shall be no refunds for the unused portion of any pre-paid billing period. When Client elects to upgrade or otherwise modify the Services in such a way that increases the License Fees due to MailUp, Client will be charged on a pro-rated basis for the current billing period. Client may not downgrade the Services during the same billing period in which the Services were upgraded.

Section 5. Intellectual property rights

5.1. Client property. Client is or shall be the exclusive owner of and shall retain all right, title and interest to all Intellectual Property Rights that Client, respectively, owns or has the right to use (the "Client property").

5.2. MailUp property. MailUp is the exclusive owner of and shall retain all right, title and interest to all Intellectual Property Rights that MailUp, respectively, owns or has the right to use (the "MailUp property”).

5.3. Cooperation. Each party agrees to take all action and cooperate as is reasonably necessary, at the other party's request and expense, to protect the other's respective rights, titles, and interests specified in this Section 5 and further agrees to execute any documents that might be necessary to perfect each party's ownership of such rights, titles, and interests.

Section 6. Warranties; representations; indemnities

6.1. Client represents and warrants that:

(a) it is has the full power and authority to enter into and fully perform this Agreement.

(b) it owns or controls all right, title, and interest in and to all Data.

(c) it owns or controls all right, title, and interest in and to all Intellectual Property Rights therein, necessary to carry out its obligations hereunder and to grant and assign any rights and licenses granted to MailUp herein.

(d) the Data and the use thereof pursuant to this Agreement shall not violate any law or infringe upon or violate any rights of any Person.

(e) it will use best efforts to ensure that any use of the Services by Client or by Client permitted users, in accordance with the License, shall comply with this Agreement and with the Terms of use.

6.2. MailUp represents and warrants that:

(a) it is has the full power and authority to enter into and fully perform this Agreement.

(b) it owns or controls all right, title, and interest in and to all Intellectual Property Rights therein, necessary to carry out its obligations hereunder and to grant and assign any rights and licenses granted to Client herein.

6.3. Indemnification. Client agrees to indemnify, defend (at MailUp’s request) and hold harmless MailUpand each of its respective agents, officers, directors, employees, affiliates and subcontractors from and against any and all third party claims, suits, liability, damages and/or costs (including without limitation reasonable attorneys fees and costs) (collectively, "Claims”) arising from or with respect to:

(a) Client’s breach of any warranty and/or representation of Client under this Agreement; or

(b) Client’s performance of or failure to perform any obligation under this Agreement.

6.4. Limitation on liability. MailUp shall not be liable for any damage, liability or loss resulting from a cause over which such entities do not have direct control, including but not limited to the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access or theft.

Section 7. Confidentiality

The terms of this Agreement and information and data that either party has received or will receive from the other party and other matters relating to the respective businesses of the parties is proprietary and confidential information of the disclosing party ("Confidential information"), including without limitation any information that is marked as "confidential" or should be reasonably understood to be confidential or proprietary to the disclosing party and any reference manuals compiled or provided hereunder. Each party agrees that for the Term and for two (2) years thereafter, it will not disclose to any third party nor use for any purpose not permitted under this Agreement any Confidential Information disclosed to it by the other party. The nondisclosure obligations set forth in this Section shall not apply to information that the receiving party can document is generally available to the public (other than through breach of this Agreement by the receiving party) or was already lawfully in the receiving party's possession at the time of receipt of the information from the disclosing party.

Section 8. Term, termination and remedies

8.1. Term. Subject to the termination provisions in this Section 8, this Agreement shall begin on the Effective Date and shall end upon termination as provided herein (the "Term").

(a) By Client. Client shall have the right to unilaterally terminate this Agreement at any time upon advance written notice to MailUp.

(b) By MailUp. MailUp shall have the right to unilaterally terminate this Agreement, without any notice, if Client:

(i) breaches any material term or condition of this Agreement, and has failed to cure such breach within ten (10) days after written notice of such breach.

(ii) becomes insolvent or unable to pay its debts as they mature or makes an assignment for the benefit of its creditors;

(iii) is the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or

(iv)becomes the subject of any involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

In any such termination event, Client shall have the right to immediately terminate the Agreement, while MailUp shall be required to provide Client 30 day written notice, provided however that MailUp shall have the right to immediately terminate this Agreement, without any notice, if Client violates the Terms of Use and policies, including, but not limited to the Anti-SPAM policy that apply to the Service.

8.2. Mutual termination. This Agreement may be terminated by the written consent of both Parties.

8.3. Effects of termination. In the event of termination, the obligations of the Parties under Sections 5, 6 and 7 shall survive the termination of this Agreement.

Section 9. General

9.1. Assignment. This Agreement will be freely assignable by either party to any entity controlling, controlled by or under common control with such party.Each party agrees to provide to the other party prompt written notice of any such assignment.This Agreement may not be assigned by either party to an unrelated third party without the prior written consent of the other party, which will not be unreasonably withheld.

9.2. Governing law; venue and jurisdiction.This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. Each party hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of California, San Francisco County, or (b) the United States District Court for the Northern District of California, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby or thereby. Each of Client and MailUp agrees to commence any such action, suit or proceeding either in the United States District Court for the Northern District of California or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Superior Court of the State of California, San Francisco County.Each of Client and MailUp further agrees that service of any process, summons, notice or documents by U.S. registered mail to such party's respective address set forth above shall be effective service of process for any action, suit or proceeding in California with respect to any maters to which it has submitted to jurisdiction in this Section 10.2. Each of Client and MailUpirrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby and thereby in (i) the Supreme Court of the State of California, San Francisco County, or (ii) the United States District Court for the Northern District of California, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

9.3. Severability. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other Persons or circumstances.

9.4. Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent, postage prepaid, by registered, certified or express mail or reputable overnight courier service and shall be deemed given when so delivered by hand, or if mailed, three days after mailing (one business day in the case of express mail or overnight courier service), as follows:

(a) if to MailUp:

One Market Plaza,

Steuart Tower, 5th Floor,

San Francisco, CA 94105

(b) if to Client, to the email address provided by Client in connection with Client’s registration as an User.

9.5. No partnership. The parties to this Agreement are independent contractors.There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.

9.6. Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of such right.

9.7. Entire agreement. This Agreement, along with the additional documents that are linked and incorporated by reference and include the Mailup privacy policy, anti-SPAM policy, and service level guarantee, all available at http://www.mailup.com and other web, related properties such as http://api.mailup.com and http://support.mailup.com, contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter. Neither party shall be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth herein.

9.8. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to each of the other parties.

9.9. Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. By an instrument in writing, any two parties hereto may waive compliance by the third party with any term or provision of this Agreement that such third party was or is obligated to comply with or perform.

9.10. Headings. The headings contained in this Agreement or in any Exhibit or Schedule hereto, or linked document, as applicable, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All Exhibits and Schedules annexed hereto or any linked documents referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit or linked documents but not otherwise defined therein, shall have the meaning as defined in this Agreement. When a reference is made in this Agreement to a Section, Exhibit, Schedule, or linked document, such reference shall be to a Section of, or an Exhibit, Schedule to, or document linked to this Agreement unless otherwise indicated.