Avoyel End User License

Avoyel provides its users a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online marketing campaigns (the “Services”). The Services may not be used for sending of unsolicited e-mail (“spam”). (See our Anti-Spam Policy.). By clicking the “I accept these terms and conditions” button on the sign up page, you agree to the following terms and conditions:

1. Services and Support

1.1 The Services are provided subject to this End User License Agreement, as it may be amended from time to time by Avoyel (the Agreement), and any guidelines, rules or operating policies that Avoyel may establish and post from time to time, including Avoyel’s Anti-Spam Policy, Privacy Policy, and Prohibited Content Policy (“Policies”). Unless otherwise stated, all references to the Agreement shall include the Policies. By posting updated versions of this Agreement on the Service or at Avoyel’s web site, or by otherwise providing notice to you, Avoyel may modify the terms of this Agreement and Policies and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement and/or Policies on the Service website.

1.2 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.

1.3 The Services enable websites of individuals, corporations, small businesses, and other organizations to sign up web visitors, collect and retrieve visitor sign-up data, and develop and execute e-mail marketing communications with their subscribers.

1.4 The Services will be subject to periodic subscription fees (“Paid Services”). You may purchase, in advance, a monthly, quarterly or annual subscription for Paid Services. If you chose to pay monthly, your credit card will be billed automatically on the first day of each month. Access to the Services may not be available until payment is received. Paid Services are billed monthly or pre-paid, in advance, according to the Fee Schedule posted on Avoyel’s website. The Fee Schedule, including subscriber levels and prices, are subject to change.

1.5 You must complete the registration form in order to use the Services. You agree to provide accurate information about yourself as requested in the registration form. As part of the registration process, you will identify a current e-mail address for your Avoyel account. You are responsible for maintaining the security of your account, passwords and files, for all uses of your account and all mail sent in your name. Avoyel reserves the right to cancel or refuse registration of any account.

1.6 If Avoyel is for any reason unable to obtain payment on your account via your credit card (or by check for invoiced accounts), you will be notified via e-mail and your Avoyel service will be suspended until payment in full has been received. It is your responsibility to provide us with updated credit card information prior to expiration of your credit card on file with us. If a credit card is declined, we will send notice to the e-mail account on file with us.

1.7 You will remain responsible for paying the monthly charges due on your account until we receive a notice of termination as described in paragraph 3.2 of this Agreement. If you are past due on payments due to us, you agree that we may discontinue services, terminate our Agreement with you and delete your data from our system without prior notice. Payments overdue by more than thirty (30) days will incur a late charge of 1% of the outstanding balance due per month from the date such payment was due until paid.

1.8 You will be charged for the Services at a rate based on the number of subscribers stored in your account according to the price terms posted on the Service’s website. If the number of subscribers stored in your account exceeds the number of subscribers allowed for the service level you have purchased, you agree that your access to the Services may be suspended until you either: a) reduce the number of subscribers in your account to the maximum allowed under your Service level; or b) upgrade to the service level applicable to the number of subscribers in your account.

1.9 The maximum number of e-mails you may send during a given calendar month is ten (10) times your account subscriber limit. (for example, if your subscriber limit is 100,000, you may send up to 1,000,000 emails per month). If the maximum email volume is exceeded we may suspend Services under this Agreement, and you will be charged for additional sending capacity. If you require a higher sending limit, please contact us in advance for a custom price quote.

1.10 You may downgrade your account to a subscriber level below your current subscriber level upon request. Any downgrade request will be made effective on the final day of your current pre-paid term (month, quarter or year, depending on the payment option you have selected).

1.11 Repeated downgrade requests in excess of two (2) may not be honored, or may result in termination of your account. If you anticipate that your subscriber level will fluctuate regularly, we recommend that you contact us in advance for a custom price quote.

1.12 You acknowledge that, from time to time, delivery of e-mail sent through Avoyel may be blocked or prevented by third parties. You acknowledge and agree that you are responsible for payment of subscription fees for all e-mail messages sent through Avoyel regardless of whether email messages are successfully delivered to their intended recipients. You are responsible for monitoring, correcting and updating the e-mail addresses to which messages are sent through your Avoyel account.

2. Restrictions and Responsibilities

2.1 This is an Agreement for services, and you are not granted a license to any software by this Agreement. You agree that you will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business purposes or operations only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of any third party.

2.2 You acknowledge and agree that the Services and Avoyel company names, logos, trademarks and all related product service names, design marks and slogans are the property of Avoyel or its affiliates or suppliers (collectively the “Marks”). You are not authorized to use any of the Marks in any advertising, publicity, correspondence, mailings, or in any other commercial manner without the prior knowledge and written consent of Avoyel. Your use of the Services is a license only and 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 vested in Avoyel or its third party suppliers, as the case may be.

2.3 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to all applicable state, federal and international laws regulating to and/or prohibiting spamming, privacy, fair trade practices, fraud, obscenity and defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. You agree that any and all lists uploaded into Avoyel will be permission-based and that you will not use purchased or rented lists in connection with the Services.

2.4 You hereby agree to indemnify, defend and hold harmless Avoyel and its affiliates, management, employees, directors and owners for any loss, damages, liabilities, settlements, fines, and expenses (including without limitation attorneys fees and costs) arising from or incurred in connection with any claim or action that arises from any violation (or alleged violation) relating to your use of the Services. Although Avoyel has no obligation to monitor the content provided by you or your use of the Services, Avoyel may do so and may at its discretion remove any such content and/or prohibit any use of the Services which Avoyel, in its sole discretion, believes to be (or is alleged to be) in violation of the Agreement.

2.5 You agree that every e-mail sent in connection with the Services will contain an “unsubscribe” link that allows all recipients, subscribers and visitors to remove themselves from your mailing list and a link to the current Privacy Policy (see Section 2.10 below). You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You agree to only import permission-based lists (note: purchased lists may not be used). You cannot mail to distribution lists, newsgroups or spam e-mail addresses. You cannot copy any Avoyel template and use the design for any purpose other than sending emails from Avoyel. Avoyel, at its own discretion, may immediately disable your access and terminate your account to the Services if Avoyel believes in its sole discretion that you have violated any of the terms or restrictions in this Agreement.

2.6 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates applicable state, federal or international laws or treaties is prohibited, including material that is obscene, threatening, harassing, libelous, or a violation of the intellectual property rights of any third party. See Avoyel’s Prohibited Content Policy for further details.

2.7 You agree that the Services may automatically add an identifying footer to every e-mail message sent in connection with the Services containing the words “Avoyel, Your eMarketing Solutions Today” or similar language promoting Avoyel’s services. You agree to cooperate with and provide reasonable assistance to Avoyel in promoting and advertising the Services.

2.8 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to Avoyel. Avoyel may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Services, or communicate separately with you. If you licensed the Services as a result of solicitation by a Marketing Partner of Avoyel, Avoyel may share your information with the Marketing Partner. Avoyel will not provide information to companies you have not authorized, and Avoyel will not authorize the companies that receive such information to sell or redistribute it without your prior consent.

2.9 Avoyel will not use your customer list or any other customer information for any purposes other than those intended with the Services. Your customer information will not be shared with any other parties. Avoyel will not use your customer information for the purpose of sending unsolicited commercial e-mail.

2.10 You agree to adopt, maintain and comply with the E-mail Privacy Policy, which may be modified by Avoyel from time to time.

2.11 Avoyel has a zero tolerance spam policy. You agree that your account may be immediately terminated if you send spam. Spam is defined as unsolicited mass e-mail to persons with whom you do not have an established business relationship or who have not requested (opted in to) your mailing. Avoyel’s services are intended to facilitate contact between marketers and their established list of permission based (opted in) e-mail contacts only. You agree to comply with our Anti-Spam Policy. If you violate Avoyel’s Anti-Spam Policy your account will be terminated and you agree to pay Avoyel a penalty fee of $100 for every e-mail sent in violation of said policy.

3. Termination

3.1 This Agreement commences on the date Services initially begin (the Effective Date) and continues until terminated by Avoyel or the Customer as set forth in this Agreement. The term of your Paid Services shall automatically renew for an additional term(s) of equal length, without limitation, at the contractual price currently in effect at the time of the renewal unless the Agreement is terminated as set forth in paragraphs 3.2 or 3.3, below.

3.2 You may terminate this Agreement at any time by sending written notice to Avoyel at the mailing address shown on its website at http://avoyel.com, attention “Customer Accounts”. Your termination will be effective upon receipt by Avoyel.

3.3 Avoyel may, at its discretion, terminate this Agreement at any time with or without cause or prior notice. If payment on your account is past due, Avoyel may discontinue the Services and terminate this Agreement without prior notice. Customer agrees that, in the event of termination, Avoyel has the right to immediately delete all Customer data from its system.

3.4 Termination of this Agreement, whether by you or by Avoyel, shall not relieve you of the obligation to pay any fees accrued or payable to Avoyel prior to the effective date of termination. Billing on your account will cease as of the next billing period following termination. No payment(s) will be refunded or credited for past billing periods, or for any remaining portion of the current billing period during which Services are terminated.

3.5 It is agreed that, after cancellation or termination of this Agreement, Avoyel shall have no obligation to maintain or provide any Customer Data and may at its sole discretion immediately delete all such data from its system.

4. Warranty, Disclaimers and Remedies

4.1 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. AVOYEL 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 AVOYEL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES FOR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

4.2 Although we work hard to keep our IPs off blacklists, at times we may be on one or more, which may impair or prevent delivery of mail sent via the Services from time to time. Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for Avoyel to use commercially reasonable efforts to reinstate, adjust or repair the Services, as applicable.

5. Limitation of Liability

5.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL AVOYEL OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, AFFILIATES, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, MANAGERS, EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, DISTRIBUTORS, OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS AVOYEL) BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL, EVEN IF AVOYEL SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, AVOYEL IS FOUND LIABLE TO YOU FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE), THE LIABILITY OF AVOYEL TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES.

6. Export of Services or Technical Data

6.1 You may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.

7. Miscellaneous

7.1 If any provision of this Agreement, or of the documents referenced herein, is found to be unenforceable or invalid, the remaining terms of this Agreement, and the documents referenced herein, shall be binding and enforceable upon the parties and shall remain in full force and effect.

7.2 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes any prior written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and all waivers and modifications of this Agreement must be in writing and signed (or otherwise affirmatively agreed to) by both parties.

7.3 No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

7.4 No agency, partnership, joint venture, or employment contract is created as a result of this Agreement or the documents referenced herein. You do not have the authority to act on behalf of or bind Avoyel in any respect whatsoever.

7.5 In any action or proceeding to enforce the parties rights under this Agreement, the prevailing party shall be entitled to recover its attorneys fees and costs.

7.6 This agreement shall be governed by the laws of the state of Nevada. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Las Vegas, Nevada.