ePS ePostal Services

EPOSTAL SERVICES, INC.

END-USER SOFTWARE LICENSE AND SERVICES AGREEMENT

IMPORTANT --- READ CAREFULLY: This End-User Software License and Services Agreement ("Agreement") is a legal agreement between you, an individual person or a single legal entity ("you"), and ePostal Services, Inc. ("ePostal"), governing the use of the ePostal software ("Software") and related services ("Services"). By opening an account and installing the Software, you will be able to access the Services offered by ePostal. There is no charge to download and install the Software, and no charge to open an account. While there is no charge for receiving ePostal emails, you must have credits in your ePostal account balance ("Credits") in order to pay to use the Services for sending emails. You may learn more about adding Credits to your account balance and using the Services by visiting www.ePostalServices.com.

1.   GRANT OF LICENSE . ePostal grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license for the Software, provided that you comply with all terms and conditions of this Agreement.

1.1   Installation and Use . You may download and install a single copy of the Software on a single computer. If you desire to download and install the Software on more than one computer, you may do so. However, each download and installation on a computer requires an acceptance of the Agreement. You remain responsible for all use of the Software and Services on every computer on which the Software is installed by you or at your direction.

1.2   Network Use . You are expressly prohibited from installing the Software on a network-level server or any such network-level device. ePostal software operating at the network server level may be licensed under a separate agreement. The download and installation of the Software on a client computer that is a component of such a network is permitted, and requires a separate Agreement in accordance with Section 1.1.

1.3   Remote Access . You may use remote access technologies to access and use the Software on a device hosting the remote desktop session. These remote desktop rights do not permit you to install and use the Software on the access device without a separate Software license for the access device.

1.4   Media Elements . The Software may include certain graphics, icons, indicators, screens, windows, words, phrases and sounds that facilitate your use of the Services (collectively, "Media Elements"). You may not copy and/or modify any of the Media Elements, and have no right to license, display, or distribute any of them. In addition, you agree to indemnify and defend ePostal from and against any and all claims or lawsuits, and all costs, damages, and expenses associated with such claims or lawsuits (including attorneys' fees), that arise from or result from your unauthorized use of any of the Media Elements.

1.5   Documentation . Any documentation that accompanies the Software is licensed for your reference purposes only and may not be copied or distributed.

2.   ADDITIONAL SOFTWARE/SERVICES . The terms of this Agreement apply to any updates, upgrades, supplements, add-on components, or any other client-, network-, web-, email-, or Internet-based components of the Software ("Supplemental Components") and to the related new services of these Supplemental Components ("New Services") that ePostal may provide to you or make available to you after the date you obtain your initial copy of the Software, unless such Supplemental Components and New Services are accompanied by separate terms. In addition, to use such Supplemental Components and New Services, you must first be licensed for the Software identified by ePostal as eligible for the Supplemental Components. After installing the Supplemental Components, you may no longer use the original software except with the Supplemental Components. For the purposes of this Agreement, the original software, combined with the Supplemental Components, shall be the "Software," and the original services, combined with the New Services, shall be the "Services." ePostal reserves the right to discontinue, at any time, any Services it provides or makes available to you through the use of the Software.

3.   RESERVATION OF RIGHTS AND OWNERSHIP . ePostal reserves all rights not expressly granted to you in this Agreement. The Software and Services are protected by copyright and other intellectual property laws and treaties. ePostal or its suppliers own all title, copyrights, and other intellectual property rights in and to the Software and Services. The Software is licensed, not sold. This Agreement does not grant you any rights to trademarks or service marks of ePostal or of its suppliers, and you are expressly prohibited from using such trademarks or service marks without ePostal's prior written consent.

4.   NO TRANSFER TO THIRD PARTY . You may not transfer this Agreement, or any rights or obligations hereunder, to any third party. Any attempted transfer in violation of this provision shall be void.

5.   NO SEPARATION OF COMPONENTS . The Software is licensed as a single product. Its component parts may not be separated for use on any device for any reason.

6.   PROHIBITION AGAINST REVERSE ENGINEERING . You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

7.   ACKNOWLEDGEMENTS AND CONSENTS . You understand and agree to the following:

7.1   Internet Disclaimer . The Internet consists of a series of networks that are subject to failures and errors in operation and transmission. The Internet is an inherently insecure, publicly accessible network subject to access at multiple locations. The Services may be subject to failures and errors caused by the operation or failure of, or defects in, the Internet. Any data transmitted over the Internet, even when transmitted with security protections, is subject to possible access, modification, diversion, corruption and disclosure by unintended parties. In no event shall ePostal be liable for or as a result of any such failure, error, access, modification, diversion, corruption or disclosure.

7.2   Consent to Use of Data . ePostal and its affiliates may collect and use technical information gathered as part of the product support services provided to you. ePostal may use this information to improve its Software and Services or to provide customized software or services to you. ePostal will not disclose this information in a form that personally identifies you. ePostal's use of any information collected will be in accordance with ePostal's Privacy and Security Policy ("PSP"), as it may be amended from time to time. The PSP is incorporated into this Agreement by reference and is available to review at: www.ePostalServices.com.

7.3   Consent to Process and Receive; No Aliases; Limited Benefits to Non-ePostal Recipients . Any email for which Services are requested to be provided (each, an "eLetter") may be processed with the Software and ePostal's proprietary processing system (the "System") in order to provide the Services, which processing may occur on the sender's or recipient's computer, and/or may be forwarded to the ePostal processing network, hereinafter the ePostal Office ("ePO"), before delivery to the intended recipients. You agree to allow ePostal to process such eLetters if sent by or to you, and you agree to receive such eLetters if ePostal delivers them to you. You agree that ePostal is under no obligation: (a) to process or deliver any eLetter that it considers a risk to the sender, any recipient, or the System; (b) to process or deliver any eLetter for or to a forwarding address (an "Alias"); (c) to correct or resolve any errors or technical problems that may occur to an eLetter from the use of an Alias; (d) to notify a sender that any eLetter was undeliverable to a recipient for any reason; (e) to return any such eLetter to its sender; or (f) to credit the sender's account for undeliverable eLetters. If you send an eLetter to a recipient who does not have the Software, the full potential of the Services selected by you may not be achieved; under no circumstances will ePostal credit your account for any such eLetter. As part of its Privacy Policy, ePostal will not reveal whether a recipient address is listed with any ePostal customer account. You also understand and agree that Article 12 of this Agreement (Limited Warranties; Limitations of Liability; and Remedies) applies to all eLetters, whether sent or received by you.

7.4   Consent to Access Software . The Software contains components that enable and facilitate the use of the System and the Services. ePostal may automatically check from time to time the version of the Software and/or its components installed on your computer(s) and may download and install Supplemental Components to the Software. Furthermore, you permit ePostal to access, by any remote means and without notification to you, your licensed copy of the Software for the purpose of providing you with technical support and/or maintenance services.

7.5   Secured Communications . In order to make the Software operate smoothly and securely, and to provide you with Supplemental Components, the Software will, from time to time (without interrupting the Services and without your knowledge) communicate with the ePO while you are using the Software. Such communications may include without limitation verifying your Credits, exchanging and verifying security keys, and accessing other data related to the processing of eLetters. These communications are secured by the System with encryption technology to protect your information and the System.

7.6   Notifications to Sender . The ePO keeps a record of when eLetters are sent, processed, received, and opened. Such information will be available to you, as a recipient, as part of your history of received and opened eLetters, and also to the sender of an eLetter, if the sender selects from the Services to be notified when the eLetter has been received and/or opened by the recipient. To provide this notification Service, the Software may communicate with the ePO (without notification to the recipient) when the recipient receives and opens an eLetter.

7.7   Processing of Encrypted Documents . The sender of an eLetter may elect from the Services to have an eLetter encrypted. When an encrypted eLetter is sent through the ePO for processing, it remains encrypted through the entire ePO processing. Decryption only occurs at the recipient with the Software.

7.8   Features Not Specifically Mentioned . While this Agreement mentions several Services and the System's features and functioning processes, ePostal may offer other Services and System features and processes which are not mentioned. All such Services, features and processes of the System made available to you through use of the Software are covered by the terms and conditions of this Agreement.

7.9   User Incentives . Recipients are under no obligation to open any eLetter. ePostal may from time to time offer incentives, or create programs whereby senders can offer incentives, to encourage recipients to open received eLetters, which incentives may include Credits or other special offers. ePostal may also from time to time offer marketing and promotional programs that encourage customers to use, and/or potential customers to create, an account for the Services. Such incentives and programs may be offered to all or to select groups of users and potential users. ePostal has no obligation to offer or continue such incentives and programs and may at anytime, in its sole discretion, create, implement or discontinue such incentives.

7.10   Credit Card Charges . While there is no cost for receiving eLetters through the ePostal System, you must have Credits in your ePostal account balance in order to pay for sending eLetters. One way you may add Credits to your account balance is to buy Credits with a credit card. To do this, you need to log in through the Software or at www.ePostalServices.com using two of your security codes: your Login ID and your Password. You may change your security codes at any time, but they should be kept secure - and known only to you.

            (a)   YOU ARE SOLELY RESPONSIBLE FOR KEEPING YOUR SECURITY CODES SECURE. You acknowledge that no one else should know or have access to your Login ID and Password. Therefore, you acknowledge that no one other than you can log into your account, unless you have given someone else access to your codes.

            (b)   EPOSTAL IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED PURCHASE OR USE OF CREDITS INVOLVING YOUR ACCOUNT. You acknowledge that you alone are responsible for your security codes and therefore for purchasing Credits for your account Credits balance and the use of any credit card to do so. You also agree that any use of your ePostal account after making such a credit card charge confirms that you intended to make that charge and to continue using the ePostal System.

            (c)   YOU ACKNOWLEDGE THAT YOU ACCEPT SOLE RESPONSIBILITY FOR ANY CHARGE TO A CREDIT CARD WHICH PURCHASES CREDITS FOR YOUR ACCOUNT CREDITS BALANCE.

            (d)   YOU AGREE THAT YOU WILL NOT DISPUTE WITH THE CREDIT CARD COMPANY A PURCHASE OF CREDITS MADE WITH A CREDIT CARD AT YOUR EPOSTAL ACCOUNT, WHICH RESULTS IN A CHARGE BACK FEE FROM THE CREDIT CARD COMPANY LEVIED AGAINST EPOSTAL. IF YOU ENTER ANY SUCH DISPUTE, HAVING AGREED TO BE RESPONSIBLE FOR ANY AND ALL SUCH CREDIT CARD CHARGES, YOU ALSO AGREE TO BE RESPONSIBLE FOR REIMBURSING EPOSTAL SERVICES FOR THE TOTAL AMOUNT OF ANY SUCH CHARGE BACK FEE, NOT TO EXCEED TWENTY FIVE DOLLARS ($25) U.S. IN SUCH EVENT, EPOSTAL MAY, WITHOUT NOTIFYING YOU, AT ITS OPTION DEDUCT FROM YOUR ACCOUNT CREDITS BALANCE AND/OR CHARGE ANY OF THE CREDIT CARDS ON FILE WITH YOUR EPOSTAL ACCOUNT AN AMOUNT EQUAL TO THE CHARGE BACK FEE, NOT TO EXCEED TWENTY FIVE DOLLARS ($25) U.S.

8.   UNAUTHORIZED USES . You agree that you will not use the Software or any Services in any manner that is in violation of any applicable federal, state, or local laws or regulations or ePostal authorized uses, including without limitation:

8.1   Unlawful Use and Access . You may not use the Software in any manner: (a) that could damage, disable, overburden, or impair any Services associated with the System and the Software or interfere with any other party's use and enjoyment of them; (b) that could damage, disable, overburden, or impair any other party's email- or Internet-based services; or (c) to attempt to gain unauthorized access to any service, account, computer system or network associated with the Services, the System, or the Software, with any of ePostal's customers, or any other email- or Internet-based services.

8.2   Unlawful or Inappropriate Material . You may not use the Software to transmit or distribute any material that: (a) is protected by copyright, trademark, trade secret, or other intellectual property right without proper authorization; (b) is obscene, defamatory, or constitutes an illegal threat; (c) impersonates any person or entity; or (d) violates or threatens to violate ePostal's or any other party's system or network security, irrespective of whether such violation could result in criminal or civil liability. ePostal, in its sole discretion, may refuse to process, forward, transmit, or return any material in violation of this Section.

8.3   Spam . You agree to comply with all federal and state laws regarding the sending of unsolicited commercial email (“Spam”), including but not limited to the prohibition against: (a) sending any unsolicited commercial email without including a valid email address and an “opt-out” provision in the body of the email; (b) sending unsolicited commercial email to any address that causes complaints from the recipients; (c) continuing to send commercial email to a recipient if the recipient has requested that you discontinue such communication; (d) sending bulk emails, "spam," chain letters, "mail bombs," or other disruptive transmissions; (e) forging message headers or otherwise concealing an email address or preventing others from responding to a message, or attempting to do so; or (f) using subject lines in commercial email that have the tendency or capacity to deceive the recipient as to the email’s actual content.

9.   INDEMNITY IN BREACH OF AGREEMENT . You agree to indemnify and defend ePostal from and against any and all claims or lawsuits, and all costs, damages, and expenses associated with such claims or lawsuits (including attorneys' fees), that arise from or result from your breach of any of the terms of this Agreement.

10.   TERMINATION .

10.1   By ePostal . Without prejudice to any other rights, ePostal may terminate this Agreement (and any others you may have with ePostal), without prior notice to you: (a) if you breach this Agreement; (b) if ePostal determines, in its sole discretion, that your use of the Software, System, or the associated Services is a risk to the Software, System, Services, or any other third party's email- or Internet-based operations; or (c) for any other or no reason.

10.2   By You . You may terminate this Agreement at any time, for any or no reason, by notifying ePostal through its website or by email to an email address provided by ePostal to its customers for such communications.

10.3   10.3 Effect of Termination. (a) In the event of termination by you or ePostal, you must immediately discontinue all use of the Software and Services and destroy all copies of the Software and all of its component parts under this Agreement. (b) If ePostal terminates this Agreement under Section 10.1 (c), and if you have unused Credits in an amount that exceeds twenty-five dollars ($25) U.S. that were purchased prior to termination, ePostal will, in its sole discretion, either reimburse to you the value of such unused Credits in excess of twenty-five dollars ($25) U.S., or transfer such unused Credits to another existing account in your name. (c) If you terminate this Agreement for any reason, ePostal has no obligation to reimburse you for any unused Credits you may have purchased prior to termination; however, ePostal may in its sole discretion, transfer your unused Credits to another existing account in your name. (d) ) If ePostal terminates this Agreement pursuant to Section 10.1(a) or (b), ePostal has no obligation to refund any unused credits to you or transfer Credits to another account for you. (e) YOUR BREACH OF THIS AGREEMENT IS A BREACH OF ANY AND ALL AGREEMENTS YOU HAVE WITH EPOSTAL. IN THE EVENT OF YOUR BREACH, EPOSTAL MAY, IN ITS SOLE DISCRETION, TERMINATE ANY AND ALL OTHER AGREEMENTS PURSUANT TO SUBSECTION 10.1(a). YOUR BREACH OF THIS AGREEMENT MAY LEAD TO THE FORFEITURE OF ALL UNUSED CREDITS IN ANY AND ALL OF YOUR ACCOUNTS. You agree that subsections (b), (c), (d) and (e) of this Section 10.3 are intended to provide liquidated damages in the event of your breach of this Agreement and are not intended as a penalty. Termination of this Agreement shall not relieve you of any obligations you may owe to ePostal. All prohibitions, conditions, indemnities, and limitations (including without limitation those contained in Articles and Sections 1.4, 1.5, 3, 6, 8, 9, 10, 12, 16 and 17 of this Agreement) shall survive any termination.

11.   LINKS TO THIRD PARTY SITES . ePostal is not responsible for the content of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. If ePostal provides these links and access to third-party sites and services to you, it is only as a convenience, and the inclusion of any link or access does not imply an endorsement by ePostal of the third-party site or service.

12.   LIMITED WARRANTIES; LIMITATIONS OF LIABILITY; AND REMEDIES

12.1   Warranties . ePostal warrants that the Software will substantially conform to the documentation provided with it, if any, for a period of thirty (30) calendar days from the date of installation. You must notify ePostal in writing of any material non-conformance of the Software within thirty (30) days of its delivery to you. ePostal's sole liability, and your sole remedy, with respect to actual or alleged breach of this warranty shall be, at ePostal's option: (a) to replace the Software containing the non-conformity; (b) to provide a new download of the Software to you; or (c) to refund to you the value of unused Credits you may have purchased, if any. Any Supplemental Components to the Software, including without limitation any service packs or hot fixes, provided to you are not covered by any warranty or condition, express, implied or statutory, unless otherwise stated.

12.2   No Other Warranties . TO THE MAXIMUM EXTENT PERMITTED BY LAW, ePOSTAL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU. STATUTORY RIGHTS THAT CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.

12.3   User's Risk . You agree that, unless otherwise expressly provided in this Agreement, USE OF THE SOFTWARE AND SERVICES IS AT YOUR OWN RISK AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES ARE PROVIDED TO YOU BY EPOSTAL "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS, FOR YOUR USE. Neither ePostal nor any third-party provider of products or services makes any representation or warranty with respect to any Software or Services offered by ePostal, except as provided in Section 12.1.

12.4   Limitation of Liability . Unless otherwise specifically provided in this Agreement, ePostal and its suppliers will not be liable to you or to any third party under any circumstances for:

            (a)   Any pecuniary or other loss resulting directly or indirectly from, or in any way related to, your use of or inability to use the Software or Services, including without limitation any damages resulting from or arising out of your reliance on or use of the Software and Services, even if such loss is due to mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance of ePostal or the Software or Services, irrespective of whether such failure is due to ePostal's (or a supplier's) negligence, misrepresentation, breach of contract, breach of warranty, or failure to meet any duty, including the duty of good faith or of reasonable care, even if ePostal or any such supplier has been advised of the possibility of such damages; and

            (b)   Any losses, claims, damages, expenses, liabilities or costs (including attorneys' fees) resulting directly or indirectly out of, or otherwise arising in connection with, any allegation, claim, suit or other proceeding based upon a contention that the use of the Software or Services by you or a third party infringes the copyright, patent, trademark, trade secret, confidentiality, privacy, or other industrial or intellectual property rights or contractual rights of any third party.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER TORT, CONTRACT, PRODUCTS LIABILITY OR OTHERWISE), SHALL ePOSTAL BE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF ePOSTAL SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IF ePOSTAL IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN TORT, CONTRACT, PRODUCTS LIABILITY OR OTHERWISE), ePOSTAL'S LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES FOR THE AMOUNT YOU ACTUALLY PAID FOR THE SERVICES GIVING RISE TO ePOSTAL'S LIABILITY, UP TO A MAXIMUM OF TWENTY-FIVE DOLLARS ($25) U.S.

13.   SUBMISSIONS . ePostal does not accept unsolicited ideas, concepts, or techniques for new services or products ("Submissions"). If you send ePostal a Submission, you acknowledge that (a) the Submission will not be considered confidential or proprietary, (b) ePostal and its affiliates are under no obligation to keep such Submission confidential, and (c) ePostal will own all rights in and to each such Submission.

14.   EXPORT RESTRICTIONS . You acknowledge and agree that the Software may be subject to restrictions and controls imposed by the United States Export Administration Act and other applicable transfer control and prohibited persons laws of the United States and the regulations thereunder (collectively, the "Export Laws"). You agree to comply with all Export Laws and any applicable international laws that apply to the Software, as well as end-user, end-use, and destination restrictions issued by the U.S. and other governments. You hereby certify that neither the Software nor any of its underlying information or technology: (a) is being or will be acquired, shipped, transferred or re-exported directly or indirectly into any country, or to any person, prohibited by the Export Laws; or (b) will be used for any purpose prohibited by the Export Laws.

15.   U.S. GOVERNMENT RESTRICTED RIGHTS . The Software and documentation are provided with RESTRICTED RIGHTS. The U.S. Government's rights to use, modify, reproduce, release, perform, display, or disclose the Software are restricted by: paragraph (b)(3) of the Rights in Technical Data-Noncommercial Items provision at DFARS 252.227-7013; paragraph (b)(3) of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation provision at DFARS 252.227-7014; and paragraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights provision at 48 CFR 52.227-19, and any successor provisions, as applicable. Any reproduction of the Software or portions thereof marked with this legend must also reproduce these markings. Any person, other than the U.S. Government, who has been provided access to any such Software from anyone other than ePostal must promptly notify ePostal. Manufacturer is ePostal Services, Inc., 45 Mayapple Road, Stamford, CT 06903.

16.   APPLICABLE LAW . This Agreement is governed by the laws of the State of Connecticut, United States of America, without respect to its conflicts of law principles. You agree to the exclusive jurisdiction and venue of the state or federal courts located in Fairfield County, Connecticut. You may not bring any action against ePostal, regardless of form, arising out of this Agreement more than one (1) year after the event giving rise to the cause of action has actually occurred.

17.   ENTIRE AGREEMENT; SEVERABILITY . This Agreement (including any addendum or amendment to this Agreement included with the Software), and the PSP incorporated herein by reference, are the entire agreement between you and ePostal relating to the Software, the Services and any support services (if offered), and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or Services or any other subject matter covered by this Agreement. To the extent the terms of any ePostal policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal by a court of competent jurisdiction, the other provisions shall continue in full force and effect.

18.   AMENDMENT . ePostal may, in its sole discretion, chang, modify, add or remove portions of this Agreement at any time. ePostal may notify you of any such change or modification to this Agreement by posting notice of such change or modification on the ePostal website, calling you or sending you notice via email. Your continued use of the Software and Services following a notice of such change or modification shall be deemed to be your acceptance of any such change or modification. If you do not agree to any change or modification of this Agreement, you must immediately cease using the Software and Services and notify ePostal, via the ePostal website or by email to an email address provided by ePostal to its customers for such communications, that you are terminating this Agreement.


END OF AGREEMENT
EULSA.RO.120109



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