End User's License Agreement & Terms of Service

OPT-IN PROFESSIONAL SOFTWARE SERVICES
LICENSE TERMS AND CONDITIONS

Version 07.16.04

Title, ownership rights, and intellectual property rights in the software ("Software") and service ("Service") and documentation ("Documentation") shall remain in KowaBunga! Technologies and/or its suppliers. The following are the terms and conditions for use of the Services. By clicking the 'I accept these terms and conditions' button on the sign-up page or by logging in to Opt-In Pro, you accept these terms and conditions.

Furthermore, I accept and agree that the Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Services.

DEFINITIONS.
For the purposes of this License Agreement, the following terms shall have the following meanings:

• “List Owner” is herein defined as the person or company using the Software to send messages to List Members.

• “List Member” is herein defined as the person using the Software to receive messages from List Owners.

• “Mailing List” is herein defined as the collection of List Members, each of whom has subscribed to receive messages from a List Owner.
SERVICES & GRANT.

KowaBunga! Technologies grants you a non-exclusive royalty free license to use the accompanying Software, Service and Documentation. As a user of this Software you may:

1) Create and manage a Mailing List.
2) Send messages to List Members in the quantities specified in the accompanying Documentation.
3) Use the service for only lawful purposes
4) Use the Services only in compliance with the Agreement and all applicable laws including the CAN-SPAM Act of 2004 (also including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation).
5) Use the service to send subscribers the specific information they have asked to receive. This includes but is not limited to:

(a) Sending only a newsletter to subscribers that have signed up to receive your newsletter
(b) Sending only affiliate program information (and not advertising materials) to affiliates who have signed up for your affiliate program

As the licensee of this Service License you may not:

1. Modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software or parts of the Software.
2. Rent, lease, grant a security interest in, or otherwise transfer rights to the Service.
3. Remove any proprietary notices or labels on the Service
4. Use the Service to promote sites encouraging illegal activity or racism, or other sites KowaBunga! Technologies deems to be inappropriate.
5. Use the service to send mailings that advertise “adult related” products. This includes but is not limited to:

ai. Pornographic messages
b . Messages including the word “sex”, any synonym thereof or any message implying any type of sexual contact
c . Messages promoting genital or sexual arousal, enlargement or enhancement of any kind

6 . Use the Service to send unsolicited mailings
KowaBunga! Technologies will monitor all messages sent through the Software and Service and reserves the right to, at our discretion, to prohibit messages from being sent that include content that may place KowaBunga!’s brand, services and other customers at risk.

Use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). This includes the CAN-SPAM Act of 2004.

Use the service to promote, solicit or recommend material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party's intellectual property rights

You acknowledge that from time to time delivery of email messages sent through Opt-In Pro may be blocked or prevented at the destination mail servers. You acknowledge and agree that you are responsible for paying Fees for all email messages sent through Opt-In Pro, regardless of whether delivery of such messages to their intended recipients is prevented or blocked by any third party. You are responsible for monitoring, correcting and updating the email addresses to which messages are sent through your Opt-In Pro account.

You acknowledge and agree that the Services and the KowaBunga! Technologies company names and logos and all related product and service names, design marks and slogans, are the property of KowaBunga! Technologies or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of KowaBunga! Technologies. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in KowaBunga! Technologies or its third party suppliers, as the case may be.

NO SPAM POLICY.
Software and Service through which software is accessed may only be used for opt-in lists; the recipients must have voluntarily signed up for your list. Using Software to send out messages to email addresses which you have purchased, "harvested"/collected from the Internet or otherwise obtained without the consent of the recipient is a violation of our policies, and we reserve the right to take legal action against anyone found doing so.

In the event that KowaBunga! Technologies receives one (1) or more SPAM complaint, we reserve the right to immediately suspend your account. KowaBunga! Technologies will investigate the complaints and discern whether to terminate your account or reinstate the services. You will be notified in writing (email) of all such actions. Client agrees that any decision made by KowaBunga in reference to an investigation of SPAM complaints is final and non-contestable.

PAYMENT
The costs associated with Opt-In Pro are as follows:

Opt-In Pro Gold: $199 license fee & $19.95 base monthly fee. Additional advanced usage fees may apply.

Opt-In Pro Silver: $99 license fee & $9.95 base monthly fee. Additional advanced usage fees may apply.

NOTE: The $199 license fee for Opt-In Pro Gold is waived for all MyAP users.

ADVANCED BILLING SCHEDULE.
Your Opt-In Pro package details the fee you are to pay per month/annually. This fee per license represents the anticipated cost per month, per customer/client for bandwidth and server resources. You will be billed the package price plus that package's corresponding advanced price for anything over and above the amount allowed by the package you choose. Each month, your account activity will be reviewed and you will be charged for all activity above and beyond the limits set forth by your account choice according to this Advanced Billing Schedule:

Outgoing Mail
Gold Accounts Include 10,000
Silver Accounts Include 5,000

Number of outgoing above allotted Amount (X)	Price per thousand for these additional pieces (Z)
1 - 10,000	$2.50
10,001 - 50,000	$2.00
50,001 - 100,000	$1.75
100,001 - 500,000	$1.50
500,001 - 1,000,000	$1.00
1,000,000+	$0.83

Incoming Mail
Gold Accounts Include 3,000
Silver Accounts Include 2,000

Number of incoming above allotted Amount (X)	Price per thousand for these additional pieces (Z)
1 - 10,000	$1.25
10,001 - 50,000	$1.00
50,001 - 100,000	$0.75
100,001 - 500,000	$0.50
500,001 - 1,000,000	$0.25
1,000,000+	$0.10

Additional Restrictions

Additional Restrictions	Gold accounts include	Silver accounts include	Additional Available At
Lists	10	1	$1 per month per list
Contacts	60,000	20,000	$2.50 per month per 10,000
eArchives	300	100	$1 per month per 100
SignUp Transactions	30,000	10,000	$10 per month per 100,000
ClickTrack Transactions	20,000	5,000	$10 per month per 100,000
MailTrack Transactions	20,000	5,000	$10 per month per 100,000

KowaBunga! Technologies reserves the right to modify this pricing structure in the future. Customer will be notified of all such changes in writing and will have 30 days to agree to new pricing or terminate this agreement.

UPLOADS.
Client has the ability to upload client records to the Software at any time through the Software. In the event that Client wishes KowaBunga to assist in this effort the following fees may apply.

1. If a KowaBunga representative is requested by Client for the service of uploading a client addresses/records to Clients account, Client will billed at a rate of $1 per 1,000 Client Records. “Client Records” is defined as a grouping of information or data that pertains to one individual. All uploads must meet the formatting requirements as defined within the OptIn Pro software.
2. If a KowaBunga representative is requested by Client for the service of formatting client data for insertion to the Clients account, Client will billed at a rate of $50/hour with a minimum $50 charge.

UPGRADES.
KowaBunga! Technologies reserves the right to update and upgrade the service including but not limited to user interface, demographic questions, procedures and documentation. Upgrades may be made available to you, however, KowaBunga! Technologies does not guarantee, warrant or promise that any or all upgrades will be made available to existing customers.

EMAIL ADDRESSES.
KowaBunga! Technologies agrees not to sell or rent the email addresses of any List Owner or List Member to any third party.

TERM AND TERMINATION.
This license will terminate automatically if you fail to comply with the limitations described herein. KowaBunga! Technologies has the right to terminate the license of any List Owner at any time. Such termination is based solely on the discretion of KowaBunga! Technologies.

You may terminate this agreement at any time and discontinue your future monthly payments. If you would like to discontinue the Service at any time, send a written request to sales@kowabunga.net. Your account will be suspended and all future monthly charges will cease.

KowaBunga! Technologies may terminate this Agreement or the Services at any time with or without cause, and with or without notice. KowaBunga! Technologies shall have no liability to you or any third party because of such termination.

In cases of termination, whether initiated by KowaBunga! Technologies or Client, all information held within the account including contact records, messages and settings will be deleted. If you request a suspension/termination of your account, please be sure that you have first removed any and all information you wish to retain a copy of.

TECHNICAL SUPPORT.
Technical Support is provided, free of charge, via email, telephone, and knowledge base support for all registered users of Opt-In Pro Software.
Technical Support includes support for all applications and services manufactured and provided by KowaBunga! Technologies. Technical Support does not include support for third party applications, including but not limited to the support of operation systems, utilities or products provided by resellers, and other related products or services.

Technical Support reserves the right to deny telephone and/or email support to any user if the user engages in conduct considered unacceptable by the support technicians. Unacceptable conduct includes but is not limited to: profane and/or derogatory language. Engaging in unacceptable conduct can result in the forfeiting of all telephone and/or email technical support.

MONEY BACK GUARANTEE
KowaBunga! Technologies offers a 60-day or 2,000 outbound message (whichever is reached first) money back guarantee on the setup fees for the Service. If you find that the Service does not meet your needs, you may request a refund of setup fees. Your request must be sent in writing to sales@kowabunga.net within the first 60 days after your purchase AND before you have sent more than 2,000 messages (including broadcasts, follow-ups and autoresponders).

After you have had the service for more than 60 days or have sent more than 2,000 messages, KowaBunga! Technologies is not obligated to issue a refund of setup fees for any reason.

LIMITED WARRANTY.
The Software and data for Service will be hosted on KowaBunga! Technologies servers. KowaBunga! Technologies does not warrant that your use of the Software through the Service will be uninterrupted, messages will be delivered, or that the operation of the Service will be error-free or secure. In addition, the security mechanisms implemented by KowaBunga! Technologies have inherent limitations, and you must determine that the Service sufficiently meets your requirements. While KowaBunga! Technologies shall make every reasonable effort to protect and backup data for Licensee on a regular basis, KowaBunga! Technologies is not responsible for Licensee's data residing on KowaBunga! Technologies' servers. Client is responsible for making and keeping current copies of Members and their related information.

Licensee is responsible for all use of Licensee's account and confidentiality of Licensee's password and information.

USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. KOWABUNGA! TECHNOLOGIES SOFTWARE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND KOWABUNGA! TECHNOLOGIES SOFTWARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for KowaBunga! Technologies to use commercially reasonable efforts to adjust or repair the Services.

If any modifications are made to the Service by you during the warranty period; or if you violate the terms of this Agreement, then this warranty shall immediately be terminated.

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL KOWABUNGA! TECHNOLOGIES SOFTWARE OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS " KOWABUNGA! TECHNOLOGIES SOFTWARE") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF KOWABUNGA! TECHNOLOGIES SOFTWARE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, KOWABUNGA! TECHNOLOGIES SOFTWARE IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF KOWABUNGA! TECHNOLOGIES SOFTWARE TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

INDEMNIFICATION

Each party agrees to indemnify, defend and hold harmless the other party, its parent company, or its and their subsidiaries, affiliates, employees, agents and assigns from any and all claims by third parties including, but not limited to, liabilities, judgments, damages, losses, costs and expenses (including reasonable attorneys fees) (“Loss”) arising from or relating to:

1. a breach of such party’s obligations under this Agreement;

2. the violation of any representations and warranties set forth herein; or

3. violation of a third party’s copyright, trademark, patent, trade secret, or other proprietary rights by such party, or such party’s agents, employees, affiliates, or distributors.

Further, each party agrees to indemnify the other for Loss caused by theft, fraud, embezzlement, interception, misuse, hacking, unauthorized interception, or other illegal activities, either by third parties or by agents or employees of KowaBunga. Notwithstanding the foregoing, neither party shall be required to indemnify the other party for any such claims arising out of or resulting from the acts or omissions of such party.

You hereby agree to indemnify and hold harmless KowaBunga! Technologies against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the terms of this agreement or otherwise arising from or relating to your use of the Services. In addition, you acknowledge and agree that KowaBunga! Technologies has the right to seek damages when you use the Services for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. Although KowaBunga! Technologies has no obligation to monitor the content provided by you or your use of the Services, KowaBunga! Technologies may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

RELATIONSHIP.
It is understood and agreed that KowaBunga is a separate legal entity from Client, and the relationship established is that of independent contractor. Nothing contained in this Agreement shall be deemed or construed by the parties hereto, nor by any third party, as creating any relationship of partnership or of joint venture between the parties hereto.

Nothing in this Agreement shall constitute or appoint either party an agent, employee or representative of the other or otherwise authorize either of them to execute on behalf of the other any contract, note, commercial paper or any other document, or to bind or to otherwise obligate the other party, without in each case first obtaining the written consent of the other. All transactions between KowaBunga and Client shall be subject to all of the conditions and provisions of this Agreement unless the parties specifically agree in writing to the contrary.

MISCELLANEOUS.
This Agreement represents the complete agreement concerning this license and may be amended only by a written agreement executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by Michigan law (except for conflict of law provisions). The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
This Agreement shall be governed by the laws of the Michigan, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Michigan.

U.S. GOVERNMENT RESTRICTED RIGHTS.
Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii)of the Rights in Technical Data and Computer Service clause at DFARS 252.227-7013, or at 252-211-7015, or to The Affiliate Program Email Service standard commercial license, as applicable, and in similar clauses in the NASA FAR Supplement.

Contractor/manufacturer is:
KowaBunga! Technologies Inc.
962 Newburgh Rd, Westland, MI 48185