TERMS OF SERVICE

1. LEGAL AGREEMENT

Bronto Software, Inc. ("Bronto") provides web-based email marketing software and associated services (collectively, the "Bronto Services"). These Bronto Terms of Service, along with Client’s Subscription Order Form comprise a legal agreement ("Agreement") between Client and Bronto and govern Client’s use of Bronto Services. BY ORDERING OR MAKING USE OF THE BRONTO SERVICES, CLIENT AGREES TO BE BOUND BY THESE TERMS OF SERVICE, AS MODIFIED FROM TIME TO TIME.

"Client" means Client, Client’s company, Client’s employees, and anyone who has access to use Client’s Bronto account.

2. SERVICES

Bronto shall make the Bronto Services available to Client pursuant to the terms and conditions set forth in this Agreement. During the term of this Agreement, (i) the Bronto Services shall perform materially in accordance with the associated documentation, and (ii) the functionality of the Bronto Service will not be materially decreased from that available as of the Effective Date. Client agree that Client’s purchase of subscriptions and associated payments due in accordance with this Agreement are not contingent upon the delivery of any future functionality or features nor is it dependent upon the availability of the Bronto Services which may be unavailable for time to time.

Bronto may change any of the Bronto Services at any time and from time to time without notice. In the event that Bronto were to terminate the service altogether, Bronto will provide Client with a pro-rata refund of any pre-paid fees associated with such Bronto Service.

Client acknowledges that Bronto is the sole owner of all intellectual property rights in and to the Software and all web sites provided by Bronto in connection with the Bronto Services (the "Sites"), including but not limited to the structure, organization, design, algorithms, methods, templates, data models, data structures, logic flow, and screen displays associated therewith. All customizations, enhancements, modifications and new code made available to Client pursuant to this Agreement shall be deemed "Software" hereunder and shall be owned by Bronto. Except as expressly authorized in this Agreement, Client will not copy, modify, display, rent or unbundle the Software. In addition, Client will not reverse engineer, decompile or disassemble the Software, and will not otherwise attempt to reconstruct or discover the source code for the Software. The Software and the Sites shall be used only by Client for Client’s sole and exclusive benefit, and shall not be used to provide time-sharing or other similar services for the benefit of any third party. Bronto reserves all rights in the Licensed Product not expressly granted to Client hereunder.

3. WARRANTIES

By subscribing to or receiving any Bronto Service, Clients make the following representations and warranties. Bronto shall have the right to terminate Client’s Bronto account, without notice at any time, if any representation or warranty made by Client proves to be untrue in any respect.

Client represents and warrants that:

• Client and all users of the Bronto Service approved by Client are at least eighteen (18) years of age;
• Client have the legal capacity and authority to: (a) enter into binding contracts for the sale and purchase of goods and services, (b) be bound by these Terms of Service, (c) subscribe to and use the Bronto Service, including, where applicable, the buying, selling and listing of items, in accordance with these Terms of Service, and (d) if Client are acting in a corporate capacity, bind Client’s company;
• Client will not use the Bronto Service for any purpose that is unlawful, or prohibited by these Terms of Service (as may be modified from time to time);
• All information and content supplied by Client or by others using any Bronto Service, including but not limited to all information submitted as part of the registration and subscription process and all content included in e-mails delivered by Client via any Bronto Service (collectively, "Customer Content"), is true and accurate;
• Any products or services advertised, sold or otherwise distributed by Client on or in connection with any Customer Content are legal for sale or distribution; that Client have all licenses necessary to sell or advertise the goods or services offered for sale or distribution and that all sales and advertisements will be in compliance with applicable law;
• Client owns or have the right to use all of the intellectual property, proprietary and similar rights necessary for all Customer Content, and all products and services sold or otherwise distributed by Client or on Client’s behalf that are referred to in the Customer Content; Client’s delivery of emails in connection with any Bronto Services is in full compliance with the CAN-SPAM Act of 2003; and
• Client has secured required permission to use any person's name, voice, likeness or performance as embodied in any Customer Content, and nothing in the Customer Content will otherwise infringe on the privacy or publicity right of any individual.

By using the Bronto Service, Client agrees that Client will defend and indemnify Bronto and its suppliers from any third party claim related to a breach of any of the foregoing warranties.

4. RIGHTS GRANTED TO BRONTO

Client allows Bronto to reference our relationship on a listing of Bronto customers. Bronto may also request the right to use Client’s logo and/or trademark on Bronto's website or in certain marketing material. Bronto agrees to obtain written permission from Client prior to using Client logo and/or trademark.

Bronto may include in every e-mail sent by any Bronto Service a statement similar to the following: "Delivered by Bronto".

5. LIMITATIONS OF LIABILITY AND DISCLAIMERS

The information, software, products, services and other material included in or available through Bronto Services may not be complete, and may include inaccuracies or errors, and may also be modified, discontinued or deleted from time to time without notice. Advice, information, products, services or other materials received via Bronto Services should not be relied upon for personal, medical, legal, business, financial or other decisions and is not intended to replace the advice of appropriate and qualified professionals.

Bronto warrants that it will use commercially reasonable efforts to provide the ordered Bronto Services in accordance with the terms and conditions in the applicable order form. Otherwise, Bronto makes no guarantees of any kind regarding the dependability, accuracy, security, timeliness or availability of the Bronto Services. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, ALL BRONTO SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND BRONTO AND ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE BRONTO SERVICES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

IN NO EVENT SHALL BRONTO OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF BRONTO OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ADDITION, BRONTO OR ITS SUPPLIERS SHALL NOT BE LIABLE FOR:

• DAMAGES FOR LOSS OF USE, DATA, ACCOUNTS, REVENUES OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF BRONTO SERVICES, OR
• WITH THE DELAY OR INABILITY TO USE BRONTO SERVICES; IF CLIENT ARE DISSATISFIED WITH ANY PORTION OF BRONTO SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, CLIENT’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING BRONTO SERVICES.

Without limiting the foregoing, Bronto is not responsible for any of Client’s data residing on Bronto hardware or systems, including such hardware or systems provided to Bronto by third parties. Client is responsible for maintaining and backing-up Client’s data and information that may reside on Bronto hardware or systems, including such hardware or systems provided to Bronto by third parties, whether or not such information is produced through the use of Bronto, including all Customer Content.

Bronto is not liable for Client’s actions with Client’s customers or vendors, or the use of their information, or for any other actions arising from Client’s use, or the use of other parties to whom Client has given access to Client’s Bronto information, through the use of Bronto Services.

Bronto is not involved in any transaction between Client and Client’s buyer or seller or other third parties with whom Client may have transactions through Client’s web site or between Client and any user of any products or services offered or provided by Client or by a third party through any Bronto Service. Bronto is not responsible for screening, censoring or otherwise controlling Client’s Customer Content, or any listings or transactions offered or conducted via Client’s Customer Content. Client is deemed to have a direct commercial relationship with each third party that purchases goods or services from or undertakes any other transaction with Client. Bronto is not acting as Client’s or any third party's agent in connection with the operation of Bronto Services. Further, because Bronto is not involved in any orders or other transactions between Client and other users of Bronto or other marketplace forums, Bronto cannot and will not be involved in resolving any disputes relating to any completed or uncompleted transactions or the purchase or sale of listed goods or otherwise.

6. INDEMNITY

Client hereby agree to defend, indemnify and hold harmless Bronto and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages Client distribute using the Products or (iii) otherwise arises from or relates to Client use of the Products. In addition, Client acknowledge and agree that Bronto has the right to seek damages when Client use the Products 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.

7. PRIVACY; CLIENT’S CUSTOMER DATA

Bronto will not use Client’s customer data or Client’s customer contact list for any purposes other than those intended by the Bronto Service. Client’s customer information will not be shared with any other parties, unless Client are also subscribing to a Bronto Service where one of the features of such service is the sharing of customer information between services. Bronto will not use Client’s customer information for the purpose of sending unsolicited commercial e-mail to such customers.

8. TRADEMARKS

Bronto is a registered trademark of Bronto Software, Inc. and should not be used without written permission. The names of actual companies and products mentioned herein or on the Bronto web site may be the trademarks or service marks of their respective owners.

9. LIMITATIONS ON CLIENT’S USE OF BRONTO SERVICES

Bronto Services are provided to assist Client with the operation of Client’s business. Client’s right to use the Bronto Service is limited to Client, Client’s company and its employees. Client is solely responsible for Customer Content and all use of Client’s Bronto account. Bronto reserves the right, but is not obligated, to monitor or to review Customer Content and to monitor Client’s compliance with these Terms of Service. Bronto reserves the right in its sole discretion to: (a) refuse to provide Bronto Services if Client violate these Terms of Service, and/or (b) edit, refuse to post, or remove any Customer Content that violates the Terms of Service, without notice at any time. Client may not: (a) restrict or inhibit any other user from using and enjoying such user's rights in Bronto Services, or (b) interfere with or disrupt our Bronto Servers or servers or any network connected to Bronto Services.

In addition, Client may not use the Bronto Services to:

• send unsolicited bulk email, for commercial or non-commercial purposes. Unsolicited bulk email is defined as email sent to more than 10 individuals without their permission;
• rent, lease, license, grant a security interest in, or otherwise transfer or sublicense Client’s rights hereunder to any third party;
• defame, libel, slander, impersonate, abuse, harass, threaten, invade the privacy of or otherwise violate or infringe the legal rights (including the rights of privacy and publicity) of any other person;
• conduct, promote or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, or multi-level or illegal marketing campaigns;
• harm minors in any way;
• publish, post, distribute, disseminate, advertise or link to any: (i) content, site, topic, name, material or information which is inappropriate, profane, defamatory, libelous, slanderous, infringing, obscene, indecent, or which contains nudity or adult content; (ii) software, content or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless Client own or control such rights or have received all necessary consents for Client’s publication, distribution, or linking of such software and other materials; (iii) software, content or other material that contains viruses, worms, corrupted files, cracks or that may or are intended to damage the operation of or render inoperable another's computer, hardware, software, security measures or system or other programs written to defeat the security measures of any computer, system or programs; (iv) software, content, other material or Web site that constitutes "hate speech", whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group;
• sell, offer to sell, distribute, promote, facilitate, disseminate or link to any sites for marketing, sales, promotion, facilitation or distribution of: firearms; explosives; ammunition; liquor; tobacco products; illegal gambling (including gambling in connection with sporting events); food that is not packaged or does not comply with all applicable laws for sale to consumers by commercial merchants; illicit drugs, pharmaceuticals and controlled substances; counterfeit, pirated or stolen goods; any goods or services that infringe or otherwise violate a third party's rights including copyright, patent, trademark, or rights of publicity or privacy; goods that are considered indecent, obscene or pornographic; Nazi memorabilia; registered or unregistered securities; goods or services that Client cannot legally sell; goods which are misrepresented or which do not in fact exist; fraudulent goods; or any other illegal activity;
• harvest or otherwise collect information about third parties, including e-mail addresses, without the express consent of such third parties;
• violate any applicable government laws or regulations.

10. GENERAL

Client agrees that no joint venture, partnership, employment, or agency relationship exists between Client and Bronto as a result of these Terms or Service or use of Bronto Services.

Bronto's performance of this Agreement is subject to existing laws and legal process, and nothing contained in these Terms of Service are in derogation of Bronto's right to comply with governmental, court and law enforcement requests or requirements relating to Client’s use of Bronto Services or information provided to or gathered by Bronto with respect to such use.

If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service shall continue in effect.

Unless otherwise specified herein, these Subscription Order Form, Terms of Service, the Anti-Spam Policy and the Privacy Statement constitute the entire Agreement between the user and Bronto with respect to Bronto Services and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Bronto with respect to Bronto Services.

Bronto reserves the right to disclose any information, content, or materials as necessary to satisfy any applicable law, regulation, legal process or government request or in accordance with Bronto's Privacy Statement

Any rights not expressly granted herein are reserved by Bronto, including all legal and equitable remedies available to Bronto upon Client’s violation of any of these Terms of Service.