ClubHouse Online Agreement General Terms & Conditions

SET-UP AND CONFIGURATION SERVICES

We will (i) set-up, and configure the Website using the name, brand, copyright(s), trademark(s), artwork, tagline(s), insignia, indicia, logo(s) and/or graphic assets and other materials and content (collectively, “proprietary markings”) that you provide to us for to include on the Services further to the enclosed Addendum, (ii) obtain, on your behalf, a domain name for the Website, provided that you (A) reimburse us for any domain name registration fees we pay on your behalf to the applicable domain name registrar, and (B) acknowledge and agree that we will not be responsible for your domain name registration and we will not take further any action to maintain your domain name registration or pay any fees in connection therewith, and (iii) provide to you four (4) contiguous hours of training to demonstrate the Services and the Website features requested by you, at a mutually agreeable time and location. We reserve the right to reject any of Your Content if it not consistent or compatible with our current template for ClubHouse Online™ websites. We are not responsible under this Agreement for verifying the accuracy, suitability, or currency of Your Content. We will include on the Website those Services features requested by you, as set out on the signature page to this Agreement. We will perform the Set-Up and Configuration Services in a diligent and professional manner in accordance with this Agreement. Other than Your Content, we shall retain our ownership of the Website and all intellectual property therein. “Your Content” means any content, data, information, files, software, records, Messages and other materials that you or your Users loads, transmits to, or through, or enters into, the Website, App or Services, including, without limitation, any Messaging Services.

DEVELOPMENT OF MOBILE APPLICATION

If so indicated on the signature page of this Agreement, We will develop and execute Mobile Application(s) (“App”) for You that will interface with the ClubHouse Online website and will be available for download in a variety of app stores, including the Apple App Store and Google Play or other provider (collectively, “Provider”), as indicated in Section 4 of this Agreement.

APP PROVIDER

You hereby acknowledge and agree that it is Your responsibility to create an account directly with Provider, by entering into a legal agreement with Provider, in order to host the App. You will be solely responsible to satisfy the requirements of the Provider to set up an account to ensure App is available to Users for download.

USE OF INTELLECTUAL PROPERTY

You hereby acknowledge and agree to provide Supplier (as set out in the applicable order form) and are hereby allowing Supplier to incorporate Your proprietary markings in connection with the development and execution of the App. You reserve the right to review all designs incorporating proprietary marks used in the development of the Services prior to its execution. We agree to only use such proprietary markings in the development and execution of Services.
You hereby acknowledge and agree to grant us a limited, nonexclusive, nontransferable, perpetual, license to reproduce Your proprietary markings during the execution and development of the Services. You will retain all rights, title, and interest in its proprietary markings, including but not limited to the underlying design, modifications or enhancements, derivatives thereof, and the exclusive right to file for patents, copyrights, and trademarks thereon. We will not gain any rights of ownership of proprietary markings in connection with the development and execution of the App. You grant permission to Supplier to submit and upload the App to the Provider on Your behalf. You grant permission for the App and any versions or subsequent releases to be available for download through Providers. The enclosed Authorization form will be sent to Provider to demonstrate permission to incorporate proprietary markings in the development and execution of the App.

HOSTING SERVICES

The hosting services will commence once the website has been accepted by you in writing and will continue, provided you have paid the annual fee for hosting services, until terminated in accordance with section 7 of this agreement. The hosting services are intended for your internal business purposes only and may not be resold by or obtained for the benefit of any other party other than your members, without our prior written consent. If you have paid the annual fee for hosting services, we will also provide you with telephone support relating to the website during our regular office hours of 8:30 am EST to 5:00 pm EST. This telephone assistance will consist of explanation of functions and features, guidance in the operation and error analysis and correction of the website. You acknowledge and agree that telephone support is not to be used for educational or training purposes. You agree that you will maintain a current version of the Supplier licensed software product, as defined by Supplier, and will remain current with all support and maintenance fees.

CONSENTS

You shall obtain and maintain in effect, all consents, approvals and licenses which may be necessary for us to perform the Services hereunder including any consents required to provide your members’ personal information or other data to us and to permit us to collect, use and disclose your members’ personal information in the course of performing the Services, and to display all Your Content on the Website. You acknowledge and agree that you are responsible for the configuration of the roster management settings of the Website, including with respect to the display of contact information of your members and which members have access to online statements.

FEES

You shall pay us the fees payable under this Agreement as set out on the signature page. You are responsible for all goods and services tax, retail sales taxes and all other federal, state, provincial and municipal taxes arising in connection with the amounts payable by you under this Agreement. Any amount payable under this Agreement shall be paid by you within thirty (30) days of the date of such amount is payable. In the event that you do not pay an amount in full within such thirty (30) day period, we may charge you interest on the outstanding portion of such amount payable, at the rate of 2.0% per month, until such time as the outstanding amount is paid. In addition, you agree to pay all collection costs and reasonable legal fees incurred by us as a result of your late payment or non- payment. Late payment of fees may result in a suspension of services as provided under this agreement.

CONFIDENTIALITY

Each party (the “Receiving Party”) shall maintain the confidentiality of all confidential information disclosed to it by the other party (the “Disclosing Party”) and shall not disclose, copy or use any such confidential information except as contemplated by this Agreement. The foregoing shall not apply to information which was already known by the Receiving Party from a source other than the Disclosing Party prior to its disclosure by the Disclosing Party, or is independently developed by the Receiving Party or is, or becomes, publicly known otherwise than by reason of a breach of this Agreement by the Receiving Party. The Receiving Party may disclose information to its employees, directors, advisors and subcontractors on a need-to-know basis. The Receiving Party may also disclose confidential information where required by legal or regulatory authority, provided that, if not forbidden to do so by such legal or regulatory authority, it will inform the Disclosing Party prior to such release and allow the Disclosing Party a reasonable opportunity to appeal or dispute such disclosure requirement. The parties, upon written request from the other party, shall provide to the other party all confidential documentation requested within ten (10) days.

INDEMNITY

We shall defend you against any claim by a third party that uses the Website or the App in accordance with this Agreement infringes any intellectual property right enforceable in the United States of America and shall pay all damages and expenses that a court finally awards in connection therewith or the amount of any settlement agreed to by us. You shall defend us against any claim by a third party that the Your Content infringes any intellectual property right enforceable in the United States of America and shall pay all damages and expenses that a court finally awards in connection therewith or the amount of any settlement agreed to by you. In each case the indemnified party must promptly notify the indemnifying party of such claim in writing and reasonably co-operate in the defence and settlement of such claim. The indemnifying party shall have the right to control the defence and settlement of such claim. The indemnifying party shall not be liable to reimburse the indemnified party for any settlement of such claim made by indemnified party or for any legal fees or expenses incurred by the indemnified party in connection with such claim, without the indemnifying party’s prior written consent. In the event that an infringement claim is made or in the indemnifying party’s opinion is likely to be made, it may at its option procure the right for indemnified party to continue using the infringing item or modify it to make it non-infringing. If neither of the foregoing alternatives is available on commercially reasonable terms, having regard to the context of this Agreement, the indemnifying party may require the indemnified party to discontinue all further use of the infringing item. If we so require you to discontinue further use of all or part of the Website, we shall refund to you the amount of the Installation & Site Migration Fees paid by you to us under this Agreement for discontinued items less depreciation applied on a straight line basis over a period of five (5) years from the Effective Date.

TERMINATION

Either party may terminate this Agreement for convenience and without penalty upon sixty (60) days prior written notice to the other party. If we provide written notice to you of a change to the Annual Fee for Hosting Services payable by you and you do not agree with such change, you may terminate this without penalty upon immediately upon written notice to us. In the event that you fail to pay any amount when due under this Agreement and such failure shall continue for a period of thirty (30) days after receipt of written notice from us, we may in our sole discretion terminate this Agreement, the Hosting Services or, we may suspend access to the Services until all past due amounts together will applicable interest have been paid in full. Upon the termination of this Agreement for any reason whatsoever, each party shall return to the other party all confidential information made available pursuant to this Agreement. The applicable provisions of Sections 1, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall survive termination or expiration of this Agreement together with such other provisions of this Agreement which expressly or by their nature survive termination or expiration.

ACCEPTABLE USE; COMPLIANCE; RESTRICTIONS

Acceptable Use. You will not, and will not permit any User or any third party to: (a) resell, copy, frame or mirror any part or content of the Services, App or Website; (b) make the Services, App or Website available for timesharing or service bureau purposes; or otherwise provide access to the Services, App or Website to any third party, except as such third party access is expressly agreed to between the parties; (c) subject to any non-waivable rights Customer may enjoy under applicable law, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying structure, ideas, know-how or algorithms relevant to the Services, App or Website or any software, documentation or data related to the Services, App or Website; (d) interfere with or disrupt the integrity or performance of the Services, App or Website or third party data contained therein; (e) attempt to gain unauthorized access to the Services, App or Website or its related systems or networks; (f) access or search or attempt to access or search the Services or Website by any means (automated or otherwise, including scraping); (g) modify, translate, or create derivative works based on the Services, App or Website; or (h) remove any proprietary notices or labels.
Responsibility & Legal Compliance. You are solely responsible and liable for Your use of the Services, including the accuracy, integrity, legality, reliability, and appropriateness of all messages transmitted using the Services, and any other acts and omissions. We and our affiliates shall not have any liability for your use of the Services. You are solely responsible for all acts or omissions that occur under or through your account. You represent that Your Content submitted for transmission via the Services is for lawful purposes only and that the transmission of messages or files is not in violation of any applicable laws, rules, and regulations Without limiting anything to the contrary herein, you represent, warrant and covenant to us that you will comply with, with all applicable laws, rules, and regulations, guidance’s, standards and industry codes when using the Services, App and Website, and Your Content will comply with all of the foregoing, including those related to email marketing, texting, anti-spam, commercial electronic messages, anti-phishing, data privacy, international communications, and export of technical data or personal information or personal data, such as Canada’s legislation regulating the sending of commercial electronic messages (CASL), the EU Opt-In Directive, the United States’ Telephone Consumer Protection Act (TCPA) and applicable Federal Communications Commission (FCC) regulations; the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN SPAM) and applicable FCC and Federal Trade Commission (FTC) regulations, the CTIA, and the requirements and directions of any regulatory body, in each case as may be amended from time to time. You are solely responsible for, and We shall have no liability or obligation with respect to, compliance with all applicable laws, standards and regulations including but not limited to local, provincial, state and federal laws, with respect to payment processing, surchargers, convenience fees and any other related matters in relation to member and guest payments made in connection with the Services.Violations of this section (i) will cause your accounts to be terminated, suspended, restricted, or otherwise limited; and (ii) is a material breach of this Agreement. We reserve the right to take any other action that we deems necessary or appropriate, in its sole discretion, if we believe that you or your individual employee or representative who is provided access to the Services (“Users”) have violated or will violate this Section.
Your Content. You are fully responsible for Your Content. You agree and acknowledge that neither we nor our partners rent or sell lists of any kind. We act simply as a passive conduit for you and your Users to send and receive information of your and their own choosing. You shall not use the Services to store or transmit, and none of Your Content will include, any data, information, content, records, or files, that (i) is likely to be offensive; (ii) is likely to be unsuitable for minors; (iii) promotes, incites or instructs in matters of crime; (iv) describes, incites or promotes unlawful sexual activity; (v) promotes or incites violence or hatred against any person or group, or incites racial hatred; (vi) causes unnecessary alarm, distress or panic or is menacing in character; (vii) encourages, promotes, provides, sells, or offers to sell products or content relating to illegal or fraudulent activities, or services related to the same; (viii) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ix) that violates any applicable laws, including any of the laws identified in Section 11(b) above, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of public), or is in contravention of any privacy rules or guidance’s; (x) is false, misleading or deceptive, or likely to mislead or deceive; (xi) provides financial advice to any person; (x) is out of date, having regard to information generally available, subsequently published, or released, or made available; (xii) is for the purpose of providing any warning or notification about a serious risk to the safety of persons or property (for example, emergency services); (xiii) contains any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191) or personal health information; (xiv) any information with respect to a payment card or relating to a payment card transaction as covered under the Payment Card Industry Data Security Standard (as same can be amended, “PCI DSS”); (xv) any other information subject to regulation or protection under specific laws, such as the Gramm-Leach-Bliley Act (or related rules or regulations) (collectively, “Restricted Content”);or (xvi) any other type of information that imposes independent legal or regulatory obligations upon us or our partners. This is not an exhaustive list and we, in our sole discretion, may determine whether a particular message is prohibited. Our determination shall be final, binding, and conclusive. Any unlawful or prohibited content stored on our or our partners’ servers may be deleted at any time without notice. Upon receipt of a complaint, we reserve the right, but we are not obligated, to review the content of any messages sent using the Services for compliance with applicable laws, rules, and regulations, as well as this Agreement. We do not: (i) represent or endorse the accuracy or reliability of any opinion, advice, or statement made through the Services; (ii) assume liability for any harassing, offensive, or obscene/sexually explicit material distributed through the Services by you or your Users, or any other parties using the accounts of the foregoing; (iii) assume any liability for material distributed through the Services by you or your Users, or any other parties using the accounts of the foregoing, that violates of any other party’s rights, including proprietary rights and rights of publicity or privacy; or (iv) assume liability for claims concerning unsolicited messages sent by you or your Users, or any other parties using the accounts of the foregoing, including without limitation claims under the CAN-SPAM Act, the EU Opt-In Directive, and CASL.
Unauthorized Access Prohibited. You may not attempt to gain unauthorized access to any other Services accounts, computer systems or networks connected to any server, or the Services, through hacking, password mining, or any other means. You will not obstruct the identification procedures used by Services. You may not use the Services in any manner that could damage, disable, overburden, or impair any server or a network connected to our server or our partners’ server, or interfere with any other party’s use and enjoyment of the Services. With regard to contact-based subscription plans, should we deem your cumulative account activity, including but not limited to factors such as high send volume or large contact lists, to be detrimental to our ability to make the Services available to you or others, we reserve the right to move you to a volume-based subscription plan. Repeated uploading and removing of unique email addresses in an attempt to circumvent fee schedules and billing procedures for contact- based subscription plans is prohibited.
You or User Violations. To the extent that we suspect that you and/or your Users have violated, or will violate, any of the provisions in this Agreement, you agree to work in good faith with us and our partners to investigate and resolve any issues.
Indemnity. You will indemnify, defend, and hold harmless us, our affiliates, our partners and our and their respective past, present, and future directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns, and related parties from and against any claims and proceedings directly or indirectly relating to: (a) the use of the Services by you or your Users; (b) any negligence, misconduct, or breach of this Agreement by you or your Users, or any other party for whom you are responsible or liable under this Agreement; (c) Your Content, including Messages and the content and delivery of any of your and your Users’ Messages using the Services; or (d) the infringement of any proprietary markings by you or your Users.

ADDITIONAL MESSAGING SERVICES TERMS

Messaging Services. As part of the Services, we may make available to you certain text and e-mail messaging services designed to allow you and your Users to send Messages to End Users (“Messaging Services”). References in the Agreement to “Services” shall be deemed to include the Messaging Services “End User” means any person who receives a Message from you or your Users via a Messaging Service, including your customers and members. “Message” means a text message, including any multimedia message, instant message, or short message, or e-mail message.
Representation, Warranty and Covenant. You represent, warrant and covenants that (a) End Users of any Messages will contract directly with you for receipt of Messages (“End User Contract”); (b) End Users to whom you send any Messages have consented or otherwise opted-in, whether as part of the End User Contract or otherwise, to the receipt of such Messages as required by any applicable laws, rules, regulations, guidance’s, standards and industry codes; (c) you will include clear opt-out/unsubscribe information on all Messages when required to do so by any applicable laws, rules, regulations, guidance’s, standards and industry codes; (d) you will honor all such opt-outs/unsubscribes; and (e) you will, prior to sending any text Message to an End User, obtain from such End User, whether as part of the End User Contract or otherwise, express written agreement to the terms of the acknowledgement attached as Exhibit A to this Agreement, without modification. You agree that we are an intended third-party beneficiary of such terms of acknowledgement.
Third Party Providers; Responsibility. You acknowledge and agree: (a) that the Messaging Services are each provided by different third party providers (each, a “Third Party Provider”) and not by us, and that the control, availability and provision of the Messaging Service is outside of our control; (b) that access to and use of any Messaging Services may cease or be suspended by us or any Third Party Provider at any time; (c) that neither us nor Third Party Provider are liable for or responsible for any Messaging Service; and (d) hereby to permit the transmission of and access to each Message, including the content of any Message.
Additional Terms. You hereby agree to the extent applicable as set out in your applicable order form: (a) with respect to the Messaging Service branded as “Frankie E-mail Marketing”, the Addendum attached to this Agreement as Exhibit B; and (b) with respect to the Messaging Service branded as “ClubHouse Online E-mail Marketing”, the Addendum attached to this Agreement as Exhibit C.

DISCLAIMER; LIABILITY

THE SERVICES, WEBSITE AND APP ARE PROVIDED OR MADE AVAILABLE ON AN “AS IS” BASIS AND WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, AND EXPRESSLY WAIVES ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT REPRESENT OR WARRANT THAT THE THE SERVICES, WEBSITE OR APP WILL MEET ANY OR ALL OF YOUR PARTICULAR REQUIREMENTS, BE ERROR-FREE, UNINTERRUPTED, SECURE OR MEET ANY SPECIFIC PERFORMANCE STANDARDS OR THAT ANY ERRORS CAN BE FOUND IN ORDER TO BE CORRECTED.
OUR AGGREGATE LIABILITY ARISING IN ANY MANNER IN CONNECTION WITH THE WEBSITE, THE SERVICES, THE APP, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE OF THE FEES PAID BY YOU TO US PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT SHALL WE BE LIABLE FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; (ii) FOR LOST PROFITS OR REVENUES, (iii) LOST DATA, USE OR GOODWILL, OR (iv) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, IN EACH CASE HOWEVER CAUSED AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT OUTLINED IN THIS SECTION 13. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY REGARDLESS OF THE CAUSES OR CIRCUMSTANCES GIVING RISE TO THE CLAIM EVEN IF SUCH CLAIM IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT INCLUDING, FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM.
The parties acknowledge that the above provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.

GENERAL

This Agreement contains the entire agreement between the parties in respect of its subject matter and supersedes all prior agreements, negotiations, representations and proposals, whether oral or written.
Neither party may assign or transfer this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, except that we may assign this Agreement to one of our affiliates.
The invalidity or unenforceability of any provision of this Agreement or any covenant herein contained shall not affect the validity or enforceability of any other provision or covenant hereof or herein contained and any such invalid or unenforceable provision or covenant shall be deemed to be severable.
Unless the context clearly indicates otherwise, words used in the singular include the plural and words used in the plural include the singular. All headings are included solely for convenience and do not affect interpretation thereof. Where used in this Agreement, the word “including” shall be deemed to mean “including without limiting the generality of the foregoing”.
The parties shall at all times remain independent parties and neither party or its employees or officers shall be deemed to be the agent, servant, employee, partner or joint venturer of the other party and each party and its employees shall always remain independent of the other party.
Neither party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement due to reasons beyond its reasonable control.
The law that will apply to any question of interpretation regarding this Agreement, any question of the existence of this Agreement, or a lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such lawsuit, depend on the country of incorporation, or organization, as applicable, of Customer, and will be determined as follows:

Customer Country of Incorporation:	Governing Law:	Courts Having Jurisdiction:
The United States of America, Mexico or a Country in Central or South America or the Caribbean	The laws of the State of New York and the federal laws of the United States applicable in that state.	(a) The United States District Court for the Southern District of New York (to the extent it has subject matter jurisdiction), or (b) the Commercial Division of the Supreme Court of the State of New York in New York County (or, if such court lacks subject matter jurisdiction, in the courts of the State of New York in New York County)
Canada	The laws of the Province of Ontario and the laws of Canada applicable in that province.	Toronto, Ontario
The United Kingdom or Another Country in Europe, the Middle East or Africa	The laws of England and Wales.	England and Wales
Australia or a Country in Asia or the Pacific Region	The laws of the State of New South Wales and the laws of the Commonwealth of Australia applicable in that state.	Sydney, Australia

Each party agrees to the applicable governing law above, without regard to choice or conflicts of law rules, and to the jurisdiction of the applicable courts above. The parties exclude the operation of the United Nations Convention on Contracts of the International Sale of Goods.

EXHIBIT A

TEXT MESSAGING ACKNOWLEDGEMENT

This Acknowledgement is between you and [Account.Name] (“us”, “we” or “ours”) and is with respect to the third party text messaging service (“Text Messaging Service”) that we may use to send you text messages, including any multimedia message, instant message, or short message (each, a “Message”).

Text Messaging Service. You acknowledge and agree that: (a) the Text Messaging Service has been procured by us from a third party provider, Message Media USA Inc. (“Text Message Service Provider”), via a reseller, Jonas Software USA LLC (“Reseller”); (b) as among us, Text Message Service Provider and Reseller, Text Message Service Provider, and not Reseller, has sole control and responsibility over the Text Messaging Service and Messages; (c) Reseller does not send, initiate, authorize or control any Messages sent via the Text Messaging Service; (d) we, and not Reseller, are solely responsible for sending, initiating, authorizing and controlling any Messages sent via the Text Messaging Service; and (e) we, and not Reseller, are solely responsible for complying with all applicable Laws with respect to provision of the Text Messaging Service and any Messages.
Liability. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL RESELLER BE LIABLE TO YOU, AND RESELLER DOES NOT ACCEPT ANY LIABILITY, IN RESPECT OF ANY MESSAGES OR THE TEXT MESSAGING SERVICES WHATSOEVER, INCLUDING FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR LOST PROFITS OR REVENUES, HOWEVER CAUSED, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSES OR CIRCUMSTANCES GIVING RISE TO THE CLAIM EVEN IF SUCH CLAIM IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT INCLUDING, FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM.
Third Party Beneficiary. Reseller is an intended third party beneficiary of this Acknowledgement to the extent necessary to enforce the disclaimers and limitations contained above.
No Actions. Except to the extent precluded by applicable law, you hereby waive any right it may have to litigate any matter brought against Reseller in respect of the Text Messaging Service or any Messages, including on a class or consolidated basis, or on any basis involving disputes brought on a purported representative capacity.

EXHIBIT B

ADDENDUM FOR TERMS OF FRANKIE E-MAIL MESSAGING SERVICES

This Addendum for Terms of Frankie E-mail Messaging Services (“Frankie Addendum”) is an addendum to the Clubhouse Online Agreement (the “Agreement”) between us (as used herein, “Jonas Software” or “Provider”) and you (as used herein, “Customer”). In the event of any conflict between the terms of the Agreement and this Frankie Addendum, this Frankie Addendum will govern.
This Frankie Addendum governs the use of the Frankie E-mail Messaging Service (as defined below) by Customer and sets out the terms and conditions upon which Provider makes the Frankie E-mail Messaging Services available to Customer. Customer agrees as follows:

DEFINITIONS. In addition to terms defined elsewhere in this Frankie Addendum, the below definitions will apply to capitalized words in this Frankie Addendum. For certainty, solely for purposes of this Frankie Addendum, defined terms in this Frankie Addendum shall prevail over the same defined terms in the Agreement.
1. “Admin User” means an individual designated by Customer within the Customer’s Account that has “Full” administrative
2. “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of a party or the right to receive more than fifty percent (50%) of the profits or earning of the entity.
3. “Beta Features” mean services and/or features available to Customer for use which are still in their beta stage and have not been fully tested.
4. “Contact” means any individual
  1. whose information is stored on or collected via the Frankie E-mail Messaging Services from Users, or
  2. to whom Users send emails to or otherwise engage or communicate with via the Frankie E-mail Messaging Services.
5. “Customer’s Account” means the Web-based email-marketing account made available on the Site to Customer which is accessible to Users via usernames and passwords created and/or assigned by Customer.
6. “Customer Content” means information, data, text, software, photographs, graphics, video, messages, tags and/or other materials and content, excluding the E-mail Marketing Software, Statistical Data, that Users or Contacts post, upload, share, submit, store or otherwise provide or make available through or using the Frankie E-mail Messaging Services.
7. “Frankie E-mail Messaging Services” means the services ordered by Customer from Provider, including those white- labeled Third Party Services made available at myemma.com (the “Site”), Statistical Data, as well as products, services, applications, tools and other resources provided or made available by Provider or the Third Party Service Provider, or accessible at the Site (or other website(s) owned by Third Party Service Provider), including any applicable support services, manuals, documentation and related material, and all related service names, logos, design marks, slogans, and all other material comprising the Frankie E-mail Messaging Services and Site, but excluding any Customer Content.
8. “Intellectual Property Rights” means any and all patents, inventions, copyrights, moral rights, trademarks, domain names, trade secrets, know-how, and any other form of intellectual property and/or proprietary rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
9. “Law(s)” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority, including where applicable, the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”). Where relevant to the Customer’s or User’s obligations, when assessing “applicability”, Customer and User shall take into account the Governing Law in Section 13 and the Laws relating to both the jurisdiction where User is using the Frankie E-mail Messaging Services and the jurisdiction where the Contact resides.
10. “Malicious Code” means harmful or malicious code, files, scripts, agents, programs, or the like designed or intended to have, or capable of performing or facilitating, any of the following functions: disrupting, disabling, harming, corrupting, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system, database, or network (or other device on which such code is stored or installed), including but not limited to viruses, worms, time bombs, and Trojan horses.
11. “Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
12. “Statistical Data” has the meaning ascribed in Section 5.C (Statistical Data).
13. “Subcontractor” means a service provider engaged by Provider that provides a part of the Frankie E-mail Messaging Services.
14. “Third Party Service Provider” means Emma, Inc. (“Emma”), but expressly excluding Provider and its Affiliates.
15. Third Party Provider Privacy Notice” means the Privacy Notice available at myemma.com/legal/privacy-statement, as updated from time to time.
16. “Third Party Services” means any software, products, tools, applications, or services that are used in connection with the Frankie E-mail Messaging Services that are not owned by Provider or its Affiliates.
17. “User” means any person accessing and/or using the Frankie E-mail Messaging Services through Customer’s Account.

SERVICES.
1. Frankie E-mail Messaging Services.
  1. Prerequisite to Use of Frankie E-mail Messaging Services. Customer is responsible for obtaining all hardware, software and services, which are necessary to access the Frankie E-mail Messaging Services.
  2. Modification of the Frankie E-mail Messaging Services. Provider and/or Third Party Service Provider, in their sole discretion, reserve the right to modify the Frankie E-mail Messaging Services, or any features of the E- mail Marketing Software Services at any time and for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness.
  3. Acknowledgement. Customer agrees and acknowledges that Provider or its Affiliates, or Provider and its Affiliates, may make the Frankie E-mail Messaging Services available to Customer hereunder.
2. Acceptable Use.
  1. Customer and User obligations
    1. Customer agrees to, and where applicable, shall ensure that Customers’ Users:
      1. designate at least one Admin User who is authorized to act on behalf of Customer and its Users;
      2. keep contact information for the Admin User updated and promptly respond to queries sent to the Admin User’s email address;
      3. use commercially reasonable efforts to prevent unauthorized access to or use of the Frankie E-mail Messaging Services, and notify Provider promptly of any such unauthorized access or use;
      4. be responsible for ensuring that any User’s computer systems, technology, or other similar items used in connection with the Frankie E-mail Messaging Services do not interfere with or disrupt the integrity or performance of the Frankie E-mail Messaging Services; and
      5. use the Frankie E-mail Messaging Services in compliance with Laws and this Frankie Addendum, as well as the Third Party Service Provider’s Anti-Spam Policy available at myemma.com/legal/anti-spam-policy.
    2. Customer Content. Customer acknowledges and agrees that Customer is responsible for the nature and content of all of the Customer Content, including the legality of the Customer Content and of the means by which Customer and its Users acquire Customer Content. Except where the following restrictions are prohibited by Law, Customer and its Users shall not directly or indirectly:
      1. host images or content on Provider’s or Third Party Service Provider’s servers or through the Frankie E-mail Messaging Services for any purpose other than for the sending of email campaigns;
      2. use the Frankie E-mail Messaging Services in any manner that puts an excessive burden on the bandwidth of the Frankie E-mail Messaging Services;
      3. upload or provide any social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, criminal records, or insurance numbers, passport numbers, or other highly sensitive personally identifiable information (collectively, “Sensitive PII”) to the Frankie E-mail Messaging Services or use the Frankie E-mail Messaging Services to collect, transfer, or store any Sensitive PII; or
      4. use the Frankie E-mail Messaging Services to store or transmit material in violation of any third party rights, including Intellectual Property Rights and privacy rights.
    3. Privacy, Cookies & Tracking Technologies. Customer understands and acknowledges that the Third Party Provider Privacy Notice explains how a Third Party Service Provider handles data processed by and through the Frankie E-mail Messaging Services. Customer hereby acknowledges and agrees that such Third Party Service Provider will handle data in accordance with the Privacy Notice. Customer agrees to adopt, maintain, and post a privacy notice that: 1) takes into account the data processing activities described in the Privacy Notice that are applicable to Customer’s Contacts and Users; and 2) complies with all requirements imposed by Laws (particularly as such notice relates to notice, consent, and disclosure in connection with the collection, sharing, and use of any Contact’s and User’s information using the Frankie E-mail Messaging Services). In addition, Customer and its Users acknowledge that the Frankie E-mail Messaging Services employ the use of cookies and similar tracking technologies (“Cookies”), as further described in the Third Party Service Provider’s Cookie Notice located at myemma.com/legal/cookie-notice. Accordingly, Customer represents and warrants that each Contact and User is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies and/or other information on the Contact’s and/or User’s device where such activity occurs in connection. Customer and its Users shall promptly notify Provider if they are unable to comply with the above obligations.
  2. Restrictions on Use. Except where the following restrictions are prohibited by Law, Customer and its Users shall not directly or indirectly:
    1. send or forward personal mail through the Frankie E-mail Messaging Services;
    2. send emails to individuals under the age of 13;
    3. end mail created using the Frankie E-mail Messaging Services through another service;
    4. copy, modify, distribute, translate, or create derivative works of the Frankie E-mail Messaging Services or any part of the Frankie E-mail Messaging Services;
    5. sell, resell, rent, or lease the Frankie E-mail Messaging Services or any part of the Frankie E-mail Messaging Services;
    6. reverse engineer, reverse assemble, decompile, or attempt to discover or extract the source code, object code, underlying structure, or algorithms, found at or through the Frankie E-mail Messaging Services or any software, documentation, or data related to the Frankie E-mail Messaging Services;
    7. remove trademark, logo, copyright, or other proprietary notices or labels from the Frankie E-mail Messaging Services or any Software;
    8. delete, bulk unsubscribe, or otherwise alter or modify Contact Lists in order to evade billing thresholds;
    9. use the Frankie E-mail Messaging Services to store or transmit Malicious Code;
    10. interfere with or disrupt the integrity or performance of the Frankie E-mail Messaging Services or third party data contained therein;
    11. hack, violate, attempt to violate, attempt to gain unauthorized access to the Frankie E-mail Messaging Services or their related systems or networks;
    12. attempt to probe, scan, or test the vulnerability of the Frankie E-mail Messaging Services or perform any penetration testing against or on the Frankie E-mail Messaging Services; or
    13. use the Service to encourage or facilitate any illegal activities; or break any Law, including but not limited to those related to e-commerce, defamation or privacy.
  3. Right to inspect. For the purposes of providing Customer and its Users with the Frankie E-mail Messaging Services and to ensure that the terms of this Frankie Addendum are being followed, Provider, on behalf of itself and its Affiliates, and Third Party Service Provider reserve the right to inspect and monitor Customer’s Account and Customer Content at any time, without notice, and to limit Customer’s access to Customer’s Account at any time should Provider, its Affiliates, or Third Party Service Provider have reason to believe that Customer or its Users have violated or may at some point in the future violate any terms set forth in this Frankie Addendum.
3. Customer Warranties. Customer represents and warrants that:
  1. all personal information (including any Personal Data as defined by GDPR) provided by Customer to Provider or its Affiliates or the Frankie E-mail Messaging Services from Users has been collected with the relevant individual’s consent; and
  2. to the extent required by applicable Laws, Customer has informed all persons whose information is collected: 1) of the purpose for which that information was collected, 2) that Customer may provide this information to its vendors and/or service providers for the purposes of use in relation to the E-mail Marketing Software Services, and 3) that such information may be processed and/or stored by Customer’s vendors and/or service providers on servers located in the United States of America; and Customer has obtained the consent of such persons for processing of their personal information by its vendors and service providers in the foregoing manner.
INTELLECTUAL PROPERTY.
1. Customer’s Property. By using the Frankie E-mail Messaging Services, submitting any Customer Content through the E- mail Marketing Software Services, or providing any Customer Content to Provider, any Provider Affiliate, Third Party Service Provider or any Subcontractor, Customer hereby grants Provider, Provider Affiliates, Third Party Service Provider, and any Subcontractors a worldwide, non-exclusive, irrevocable (until such time as Customer requests deletion of the Customer Content or within 30 days of termination of this Frankie Addendum), royalty-free, fully paid, sublicensable and transferable, license to use, adapt, aggregate, combine, distribute, perform, process, store, reproduce, and edit, modify, prepare derivative works, and make available, and display the Customer Content in connection with the Frankie E-mail Messaging Services, in each case solely for the purposes of making available the Frankie E-mail Messaging Services. For clarity, the foregoing license granted to Provider, Provider Affiliates, and their Subcontractors, does not affect Customer’s ownership or license rights in its Customer Content unless otherwise agreed in writing. While using the Frankie E-mail Messaging Services, Customer may provide to Provider, Provider Affiliates and Third Party Service Provider the following information: users’ names, contact information, and/or other registration information (“User Related Information”). Customer agrees to, and agrees and warrants that it has the necessary rights to, permit Provider, Provider Affiliates and Third Party Service Provider to use User Related Information and any technical information about Users’ use of the Frankie E-mail Messaging Services to tailor the user experience of the Frankie E-mail Messaging Services to User, to facilitate Users’ use of the Frankie E-mail Messaging Services, and to communicate with User. Customer agrees that Provider, Provider Affiliates Third Party Service Provider, and any Subcontractors shall have the right to use the User Related Information to understand trends related to our Frankie E-mail Messaging Services and to conduct internal business analysis based on meta-data about usage, feature adoption and forecasting, on an anonymized, aggregated basis (unless otherwise agreed by Customer). With respect to User Related Information, Provider shall ensure that neither Customer or any User will or could be identified or inferred in any manner from such data or use or analysis, even if such data, use or analysis were reverse engineered in any manner.
2. Provider’s Property. Customer acknowledges and agrees that, as between Customer and Provider, all rights, title and interest in and to Frankie E-mail Messaging Services are the exclusive property of Provider or its Affiliates, or their licensors or suppliers, including Third Party Service Provider. Unless stated otherwise, Provider, Provider Affiliates, Third Party Service Provider, and their licensors retain all Intellectual Property Rights in and to the Frankie E-mail Messaging Services and all logos, graphics, software, algorithms, functionality, content (other than Customer Content) comprising the Frankie E-mail Messaging Services. Customer is not authorized to copy, modify, re-package (unless otherwise expressly agreed by Provider), reverse-engineer, disassemble, or otherwise use any of the Frankie E-mail Messaging Services without the prior written consent of Provider. Customer’s use of the Frankie E-mail Messaging Services confers no title or ownership in the Frankie E-mail Messaging Services and is not a sale of any rights in the Frankie E-mail Messaging Services. Customer’s access and use of the Frankie E-mail Messaging Services is non-exclusive.
3. Statistical Data. Notwithstanding anything to the contrary in this Frankie Addendum, but subject to the Privacy Notice, Provider, Provider Affiliates and Third Party Service Provider may monitor, analyze, and compile statistical and performance information based on and/or related to Customer’s use of the Frankie E-mail Messaging Services, in an aggregated and anonymized format (“Statistical Data”). Customer agrees that Provider, Provider Affiliates and Third Party Service Provider may make such Statistical Data publicly available, provided that it does not contain personally identifying information of any individual or any information that would identify Customer. As between the parties, Provider, Provider Affiliates, Third Party Service Provider and/or their licensors or suppliers own all right, title and interest in and to the Statistical Data andall related software, technology, documentation, and content provided in connection with the Statistical Data, including all Intellectual Property Rights in the foregoing.
CONFIDENTIALITY, SECURITY, & PRIVACY.
1. Confidential Information. The parties acknowledge that in the course of performing their obligations under this Frankie Addendum, each party (a “Recipient”) or its Affiliates may receive information that is either clearly marked as “confidential” or information which, under the circumstances surrounding the disclosure, a reasonable person would conclude should be treated as confidential (“Confidential Information”) from the other party (a “Discloser”). Recipient covenants and agrees that neither it nor its Affiliates, agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Discloser, except (a) to those employees, representatives, or contractors of the Recipient or its Affiliates who require access to the Confidential Information to exercise its rights under this Frankie Addendum and who are bound by confidentiality obligations, or (b) as such disclosure may be required by Law, subject to and to the extent permitted by Law, the Recipient providing to the Discloser written notice to allow the Discloser to seek a protective order or otherwise prevent the disclosure. Notwithstanding the foregoing, nothing in this Frankie Addendum will prohibit or limit the Recipient’s or its Affiliates’ use of information: (i) previously known to it without breach or obligation of confidence, (ii) independently developed by or for it without use of or access to the Discloser’s Confidential Information, (iii) acquired by it from a third party that was not under an obligation of confidence with respect to such information at the time of disclosure, or (iv) that is or becomes publicly available through no breach of this Frankie Addendum. Customer agrees that Provider may provide a copy of this Frankie Addendum to Third Party Service Provider.
2. User Passwords. Customer is solely responsible for keeping Customers’ and/or Users’ account name, password, and any other login credentials in its custody confidential. Customer is responsible for any and all activities that occur within Customer’s Account, whether authorized by Customer or not to the extent attributable to Customer’s custody of its login credentials. Customer must notify Provider immediately of any unauthorized access or use of Customer’s Account. Neither Provider nor its Third Party Service Provider will be held responsible or liable for any losses due to lost or hacked passwords.
3. Privacy Notice. Notwithstanding anything to the contrary in this Frankie Addendum, the Third Party Provider Privacy Notice explains how Third Party Service Provider handles Customer Content and other data processed by the Frankie E-mail Messaging Services. Customer hereby acknowledges and agrees that the Third Party Service Provider will handle data in accordance with the Privacy Notice. Customer agrees to provide its Contacts with a privacy notice that complies with Laws and takes into account the processing activities related to the Frankie E-mail Messaging Services. For more information on how personal data is handled in connection with the Frankie E-mail Messaging Services as well as information on rights to access, correct and lodge a complaint regarding the handling of personal data please refer to the Privacy Notice.
4. HIPAA and PHI. Customer understands and acknowledges that the Frankie E-mail Messaging Services are not configured to receive and store personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and that none of Provider, Provider Affiliates or the Third Party Service Provider are “Covered Entities” or a “Business Associates,” as those terms are defined in HIPAA. As such, Customer agrees not to, and not to permit Users to, transmit, request, provide access to, submit, store, or include any PHI through the Frankie E-mail Messaging Services. Customer agrees that Provider may terminate this Frankie Addendum immediately if Customer is found to be in violation of this Section 4.D.
5. EU Personal Data Transfer. In the event that Customer intends to transfer the Personal Data of an EU Data Subject, Customer shall notify Provider and the parties shall execute Provider’s Data Protection Addendum. Once executed, such Data Protection Addendum will be deemed wholly incorporated into this Frankie Addendum.
THIRD PARTY SERVICES; BENEFICIARIES.
1. Customer agrees and acknowledges that certain features of the Frankie E-mail Messaging Services depend on the continuing availability of Third Party Services. If any Third Party Service Provider ceases to make their services or programs available on reasonable terms, Provider may cease providing any affected features or services.
2. If Customer enables, installs, connects, or provides access to any third party services procured by Customer for use with the Frankie E-mail Messaging Services (“Customer Initiated Third Party Services”), Customer:
  1. acknowledges and agrees that access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and that neither Provider nor its Third Party Service Provider endorse, are responsible or liable for, and make any representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Customer Content) or any interaction between Customer and the provider of such Customer Initiated Third Party Services.
  2. acknowledges and agrees that neither the Provider nor the Third Party Service Provider guarantees the continued availability of such Customer Initiated Third Party Service features, and may cease enabling access to them without entitling Customer to any refund, credit, or other compensation, if, for example and without limitation, the provider of a Customer Initiated Third Party Service ceases to make the Customer Initiated Third Party Service available for interoperation with the corresponding Service in a manner acceptable to Provider.
  3. hereby permits the transmission of and access to Customer Content to such Customer Initiated Third Party Services.
  4. grants to Provider, Provider Affiliates, the Third Party Service Provider, and their respective subcontractors a worldwide, non-exclusive, irrevocable (until such time as Customer requests deletion of data or within 30 days after termination of this Frankie Addendum) , royalty-free, fully paid, sublicensable, and transferable right and license to process, store, edit and modify and prepare derivative works, aggregate, combine, reproduce, distribute, display, and perform any data transmitted to or obtained by the Frankie E-mail Messaging Services from any Customer Initiated Third Party Service enabled, installed, or connected to the Frankie E-mail Messaging Services by Customer. Customer represents and warrants that it will have all right and license to make available such data to Provider and its Third Party Service Provider.
  5. agrees that none of Provider, Provider Affiliates or the Third Party Service Provider are liable for: a) damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access, or use of any such Customer Initiated Third Party Services, or b) Customer’s reliance on the privacy, data security, or other practices of such Customer Initiated Third Party Services.
  6. irrevocably waives any claim against Provider and its Third Party Service Provider with respect to such Customer Initiated Third Party Services.
  7. agrees to comply with any reasonable requests by Provider or Third Party Service Provider to remove any connections to or from other websites and/or applications to the Frankie E-mail Messaging Services which Customer installs in the event such connections pose, in Provider’s or Third Party Service Provider’s reasonable opinion, a security risk to Provider or the Third Party Service Provider.
RIGHT TO SUSPEND.
1. Provider, on behalf of itself and Third Party Service Provider, may temporarily suspend Customer’s Account: (i) for non-payment within 31 days following notice that such payment is overdue; (ii) at any time without notice for conduct that it believes, in its reasonable discretion, violates this Frankie Addendum. Provider shall promptly reinstate the Frankie E-mail Messaging Services if Customer demonstrates, to Provider’s or Third Party Service Provider’s (as applicable) reasonable satisfaction, that it is not committing the violation as contemplated by Subsection (ii) that gave rise to the reasonable grounds to believe. ACCOUNTS THAT HAVE BEEN INACTIVE FOR MORE THAN 700 CONSECUTIVE DAYS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING CONTACT SIGNUPS, MAY BE PERMANENTLY REMOVED FROM THE SERVICES.
DISCLAIMERS; LIABILITY.
1. Service Availability. Customer acknowledges and understand that Provider, Provider Affiliates and/or Third Party Service Provider may occasionally experience “hard outages” due to disruptions that are not within their control. Any such hard outage shall not be considered a breach of this Frankie Addendum by Provider. Customer releases Provider, Provider Affiliates and Third Party Service Provider entirely of all responsibility for the consequences of any down-time.
2. CUSTOMER UNDERSTANDS AND AGREES THAT DOWNGRADING ITS ACCOUNT MAY RESULT IN THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF CUSTOMER’S ACCOUNT AND PROVIDER DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES. IN NO EVENT WILL PROVIDER, PROVIDER AFFILIATES, OR THIRD PARTY SERVICE PROVIDER BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
3. NONE OF PROVIDER, PROVIDER AFFILIATES OR THIRD PARTY SERVICE PROVIDER WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY AGREED TO BY THE PARTIES, THE SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER, PROVIDER AFFILIATES AND THIRD PARTY SERVICE PROVIDER HEREBY DISCLAIM ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROVIDER, PROVIDER AFFILIATES AND THIRD PARTY SERVICE PROVIDER EXPRESSLY DISCLAIM ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
THIRD PARTY BENEFICIARY.
1. Emma Inc. is a third-party beneficiary of this Frankie Addendum to the extent necessary to enforce its rights in its Third Party Services, including those Frankie E-mail Messaging Services made available at the Site, the Third Party Provider Privacy Notice, and the myemma.com/legal/anti-spam-policy.
INDEMNITY
1. Customer will defend, indemnify and hold harmless Provider, is Affiliates, and Third Party Service Provider, and their employees, officers, directors, agents, contractors, successors, and assigns against any and all liability (including damages, losses, recoveries, deficiencies, interest, penalties, costs and legal fees), arising from or in connection with: (i) Customer Content; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Frankie Addendum; or (iii) use of the Frankie E-mail Messaging Services (or any part thereof) by Customer or any User in combination with any third party software, application or service. Customer will fully cooperate with Provider or its Affiliates in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Provider.

EXHIBIT C

ADDENDUM FOR TERMS OF CLUBHOUSE ONLINE E-MAIL MESSAGING SERVICES

This Addendum for Terms of Clubhouse Online E-mail Messaging Services (“CHO E-mail Messaging Addendum”) is an addendum to the Clubhouse Online Agreement (the “Agreement”) between us (as used herein, “Jonas Software” or “Reseller”) and you (as used herein, “Customer”). In the event of any conflict between the terms of the Agreement and this CHO E-mail Messaging Addendum, this CHO E-mail Messaging Addendum will govern.

This CHO E-mail Messaging Addendum governs the use of the CHO E-mail Messaging Services (as defined below) by Customer and sets out the terms and conditions upon which Reseller makes the Frankie E-mail Messaging Services available to Customer. Customer acknowledges that the CHO E-mail Messaging Services are provided by a third party provider, j2 Global, Inc. (“j2”) under the brand name “Campaigner” or “Campaigner Solution” (or “Campaigner Reseller Solution”). References in this addendum to Campaigner Solution shall be quivalent to references to the CHO E-mail Messaging Service. Jonas Software is a reseller of the “Campaigner Solution”. Customer agrees as follows:

DEFINITIONS & INTERPRETATION
1. Definitions: The terms defined elsewhere in the CHO E-mail Messaging Addendum are incorporated herein. In addition, the terms below have the following meanings:
  1. “Affiliates”: any and all parents, subsidiaries, predecessors, successors, and other related entities of a corporate entity.
  2. “Login Information”: any passwords, access codes, user IDs, or other login information provided to or used by Customers or its Users to access the Campaigner® Solution.
  3. “Proprietary Rights”: all proprietary rights of any kind, including without limitation patents, trademarks, trade dress, copyrights, trade secrets, and other intellectual property and industrial property rights.
  4. “Suppliers”: any and all third party agents, business associates, resellers, licensors, partners, and other vendors of goods or services used by j2 to provide the Campaigner Solution.
  5. “User”: an individual employee or representative of a specific Customer who is provided access to the Campaigner® Solution.
2. Interpretation. The headings are for reference only and do not define, limit, or enlarge the scope or meaning of this CHO E-mail Messaging Addendum or any of its provisions.
Intentionally deleted.
LICENSES
1. Campaigner Reseller Platform. Subject to the terms and conditions of this CHO E-mail Messaging Addendum, Reseller hereby grants to Customer a limited, restricted, non-exclusive, non-sublicenseable and non-transferable license during the term of Customer’s order for the Campaigner Solution. Customers is prohibited from using the Campaigner Solution other than as provided herein.
2. No License to Proprietary Rights. Customer acknowledges and agrees that the the Campaigner Solution, including all parts thereof and all other software, technology, documents, and other information used to provide the same, are the exclusive property of j2 and its Affiliates, and are the subject of various Proprietary Rights held by j2 and its Affiliates. Customer will not acquire any rights, title, or interest in or to any of the foregoing. This CHO E-mail Messaging Addendum does not provide any express or implied license to use, modify, or improve the the Campaigner Solution or any Capigner related services, or to otherwise use or exploit the Campaigner Solution,or j2’s Proprietary Rights in any manner not expressly permitted herein.
3. Restrictions. Customer will not, and will not permit any third party to, (a) attempt to create or derive any of the source code, technology, or data within the Campaigner Solution by disassembly, reverse engineering, or any other method, otherwise reduce the Campaigner Solution to a human-perceivable form, or modify or translate any part of the Campaigner Solution; and (b) attempt to obtain Proprietary Rights related to the Campaigner Solution, or the Campaigner brand.
CUSTOMER OBLIGATIONS
1. Equipment & Services. Customer is solely responsible for obtaining, provisioning, configuring, maintaining, paying for, and protecting all equipment and services necessary to use the Campaigner Solution, including providing its own computer equipment, internet access, and email service. j2 shall have no responsibility for the same.
  Reseller shall guarantee and ensure that its Customers are solely responsible for obtaining, provisioning, configuring, maintaining, paying for, and protecting all equipment and services necessary to use the Campaigner Solution, including providing their own computer equipment, internet access, and email service. j2 shall have no responsibility for the same.
2. Protection of Login Information. Customer is solely responsible for protecting and safeguarding its Login Information. Customer shall not disclose or make available its Login Information other than to its authorized employees or contractors. Customer shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, its accounts. Customer is entirely responsible for any and all activities that occur by anyone who has authorized access to Customer’s accounts, or any other party with whom Customer has shared its Login Information. Customer agrees to notify Reseller immediately of any unauthorized access or use of its accounts or Login Information, or any other breach of security. Customer shall make any disclosures related to such unauthorized access or use, or other breach of security, that may be required under applicable law.
3. Neither j2 or Reseller are obligated to verify the actual identity or authority of any individual using the valid Login Information of Customer or Users. If j2 or Reseller, in their absolute discretion, considers Login Information to be insecure or to have been compromised, then j2 or Reseller may immediately cancel the affected Login Information without notice and/or suspend any affected accounts.
  Neither j2 or Reseller will be liable for any loss that Customer or Users, or any other parties may incur as a result of any authorized or unauthorized use of the Campaigner Solution. However, Customers and Users may be held liable for losses incurred by j2 or Reseller or another party due to any authorized or unauthorized use of the Campaigner® Solution.
4. Records. Reseller may provide j2 copies of this CHO E-mail Messaging Addendum and/or other evidence that customers have accepted the terms contained herein.
Intentionally deleted.
TERMINATION; SUSPENSION
1. Termination For Convenience. Reseller or j2 may terminate this CHO E-mail Messaging Addendum at any time with or without cause.
2. Termination, Suspension, Restriction, or Other Limitation Under Special Circumstances. In its sole discretion and without liability, j2 or Reseller may terminate, suspend, restrict, or otherwise limit Reseller’s and/or Customers’ use of, and licenses to, the Campaigner Solution based on:
  1. j2’s or Reseller’s reasonable belief that Reseller or its Customers have violated or will violate Section 7;
  2. an order issued by a court or other governmental authority requiring such termination, suspension, restriction, or limit; or
  3. j2’s or Reseller’s reasonable belief that use of the Campaigner® Solution by Customer has or will adversely affect j2’s or Reseller’s equipment, security network infrastructure, or service to others / j2 and Reseller reserve the right to terminate, suspend, restrict, or otherwise limit Customers’ access to the Campaigner Solution if j2 or Reseller, in their sole discretion, believes that the Campaigner Solution are used for a purpose that is unlawful or prohibited by this CHO E-mail Messaging Addendum, the Agreement, or any other notices. Neither j2 or Reseller shall have any obligation to maintain any messages or other content in suspended, restricted, or terminated accounts, or forward any unread or unsent messages to Customer, a User, or any other party.
3. Effect of Termination. Immediately upon termination of this CHO E-mail Messaging Addendum:
  1. Customer will cease using the Campaigner Solution;
  2. j2 will cease providing the Campaigner Solution to Reseller and Customer; and
  3. Customer will pay Reseller all fees accrued up to the date of termination without any right of deduction or setoff.
    If this CHO E-mail Messaging Addendum is terminated by j2 or Reseller for cause, Customer will immediately pay a termination fee equal to one hundred percent (100%) of the average of the last three (3) months of monthly recurring charges prior to the effective early termination date. Notwithstanding anything to the contrary, the following provisions of this CHO E-mail Messaging Addendum, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this CHO E-mail Messaging Addendum, will remain in full force and effect, and WILL be binding upon the Parties: Sections 3.2, 3.3, 4.4, 6.5, 6.6, 8, 9, AND 10.
NO UNLAWFUL OR PROHIBITED USE
1. Acceptable Use & Legal Compliance. Customer is solely responsible and liable for its and its Users actions in its use of the Campaigner Solution, including the accuracy, integrity, legality, reliability, and appropriateness of all messages transmitted using the Campaigner Solution, and any other acts and omissions. Customer will ensure that its use of the Campaigner® Solution:
  1. complies with all applicable laws, rules, and regulations, as well as this CHO E-mail Messaging Addendum and the Agreement; and
  2. does not infringe the rights of other parties. Neither j2 nor Reseller shall have no responsibility for the same.
    Customer represents that the information submitted for transmission via the j2 network for Campaigner Solution is for lawful purposes only and that the transmission of messages or files is not in violation of any applicable laws, rules, and regulations, including without limitation encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability, or otherwise violate any local, provincial, state, national, or other law.
    Customer may not use the Campaigner Solution to upload, post, reproduce, or distribute, in any way, any information, software, or other material protected by another party’s Proprietary Rights without first obtaining permission.
    Customer agrees to comply with all applicable laws, rules, and regulations, including those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data. Violations of Section 7 will cause Customers’ accounts to be terminated, suspended, restricted, or otherwise limited. j2 and Reseller each reserves the right to take any other action that it deems necessary or appropriate, in its sole discretion, if j2 or Reseller believes Customer or its Users have violated or will violate Section 7.
2. Unsolicited Email Marketing. The transmission of unsolicited email is regulated by the CAN-SPAM Act (United States), the EU Opt-In Directive (Europe), and CASL (Canada), among other laws, rules, and regulations in these and other countries, states, provinces, and jurisdictions. Unsolicited email marketing in violation of such laws, rules, and regulations using the Campaigner® Solution is prohibited and is a material violation of this CHO E-mail Messaging Addendum. Reseller warrants its compliance with laws, rules, and regulations regarding unsolicited email marketing.
3. Message Content. Customer is fully responsible for the content of its transmissions through the Campaigner® Solution. Customer agrees and acknowledges that:
  1. Customer is the creator of all content;
  2. neither j2 or Reseller is the author or publisher of any content; and
  3. neither j2 or Reseller rent or sell lists of any kind. j2 and Reseller act simply as a passive conduit for Customer and Users to send and receive information of their own choosing.
4. Unauthorized Access Prohibited. Customer may not attempt to gain unauthorized access to any other Campaigner Solution accounts, computer systems or networks connected to any j2 server, or the Campaigner Solution, through hacking, password mining, or any other means.
  Customer will not obstruct the identification procedures used by j2 in the Campaigner Solution.
  Customers may not use Campaigner Solution in any manner that could damage, disable, overburden, or impair any j2 server or a network connected to a j2 server, or interfere with any other party’s use and enjoyment of the Campaigner Solution.
  With regard to contact-based subscription plans, should j2 or Reseller deem Customers’ cumulative account activity, including but not limited to factors such as high send volume or large contact lists, to be detrimental to j2’s ability to provide the Campaigner Solution to Customer, or others, j2 or Reseller reserve the right in its sole discretion to move Customer to a volume-based subscription plan.
  Repeated uploading and removing of unique email addresses in an attempt to circumvent fee schedules and billing procedures for contact-based subscription plans is prohibited.
5. Customer or User Violations. To the extent that j2 or Reseller suspects that Customer’s and/or User’s have violated, or will violate, any of the provisions in Section 7, Customer agrees to work in good faith with j2 and Reseller to investigate and resolve any issues.
REPRESENTATIONS, LIMITED WARRANTY, & DISCLAIMER
1. accuracy of account information. Customer represents and warrants that the information provided to Reseller is current, complete, and accurate. Customer agrees to notify Reseller promptly of any changes to this information as required to keep it current, complete, and accurate.
2. general disclaimer. Use of the Campaigner Solution is at Customers’ and Users’ own risk. The Campaigner Solution may be affected by numerous factors beyond j2’s control, and may not be continuous, uninterrupted, or secure. Security and privacy risks cannot be eliminated. Login information may not prevent unauthorized access. J2 is not responsible for the use of the Campaigner Solution by reseller, its customers, and their users.
3. no warranties. The Campaigner® Solution is provided on an “as is” and “as available” basis. There are no other warranties, representations, or conditions of any kind, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade, or otherwise with respect to the Campaigner® Solution.
  J2 and Reseller further expressly disclaim guarantee of continued availability of the Campaigner® Solution, or any implied warranty or condition of merchantability, satisfactory quality, durability or fitness for a particular purpose, title, or non-infringement. No representation or other affirmation of fact including but not limited to marketing literature or collateral, or statements regarding performance of the services by j2 or Reseller that are not contained in this section 8 shall be considered to be a warranty or representation, and should not be relied upon and is not binding upon j2 or Reseller.
LIMITATION OF LIABILITY
1. Limitation of Liability. None of j2, Reseller nor any of their Affiliates or suppliers shall be held responsible in any way or by any means, either directly or indirectly, for any communications or other difficulties outside of j2’s or any of its affiliates’ or suppliers’ control that could lead to any delay, interruption, or misdirection of messages.
  The aggregate liability of j2, Reseller or their affiliates and suppliers, whether in contract (including fundamental breach or failure of an essential purpose), tort (including negligence), misrepresentation, or otherwise in respect of a single occurrence or a series of occurences shall in no circumstances exceed the monthly recurring revenue paid or payable by Customer to Reseller for the month during which the liability arose.
  In no event shall j2, Reseller nor any of their Affiliates and suppliers be liable to Customers, Users, or any other party for any punitive, indirect, incidental, special, or consequential damages, or for any failure to realize expected savings, loss of business, loss of revenues or profits, loss of data, or any other commercial or economic loss (including but not limited to loss of data resulting from delays, non-deliveries, wrong deliveries, service interruptions, performance or failure of the internet or j2’s internet service provider, or deletion or failure to save deliveries), even if they been advised of the possibility of such damages or if such damages are foreseeable.
  In this section, “j2” and “Reseller” includes j2, Reseller and tjeor Affiliates and their respective past, present, and future directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns, and related parties.
  In the event applicable law does not permit such exclusions to be completely disclaimed, these exclusions shall be interpreted as necessary to give j2 and Reseller the full benefit of any disclaimer or limitation as permitted by applicable law.
2. Third Party Claims. Customer is solely liable and responsible for any and all claims and proceedings directly or indirectly arising from, connected with, or relating to the use of the Campaigner Solution by Customers, Users, or anyone using any of their accounts. Customer is also solely liable for any breach of this Agreement, violation or infringement of the rights of other parties, violation of the acceptable use policy, or violation of any applicable civil or criminal law, rule, or regulation by Customers, or Users. J2 and Reseller disclaim responsibility and liability for such matters to the fullest extent permitted by law.
3. Fair Allocation of Liability. This section 9 represents a fair allocation of risk and liability, which is reflected in the fees to be paid hereunder.
INDEMNIFICATION
1. Reseller Indemnity. Customer will indemnify, defend, and hold harmless Reseller and j2, their Affiliates, and their respective past, present, and future directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns, and related parties from and against any claims and proceedings directly or indirectly relating to:
  1. the use of the Campaigner® Solution by Customer or Users;
  2. any negligence, misconduct, or breach of this CHO E-mail Messaging Addendum or Agreement by Customer or Users, or any other party for whom Customer or User is responsible or liable under this CHO E-mail Messaging Addendum;
  3. the content and delivery of any of Customers’ or Users’ messages using the Campaigner® Solution;
  4. the infringement of any trademark or copyright by Customers or Users; or
  5. the expiration or termination of this CHO E-mail Messaging Addendum.
    J2 retains the right to participate in the defense of and settlement negotiations relating to any claim or proceeding with counsel of its own selection at its sole cost and expense.
PRIVACY POLICY & STORAGE
1. Privacy Policy. j2 is dedicated to establishing a trusting relationship with its resellers and customers based on respect for personal identity and information, by promoting the use of fair information practices. A current copy of j2’s Privacy Policy is available here (https://www.campaigner.com/legal/privacy-policy/) and is incorporated herein by reference.
2. Storage. While a particular account is active, j2 will store messages sent and received for a period of up to one year, in each case measured from the date of receipt of such message. Contact lists are maintained while the account is in good standing. j2 shall maintain administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of Customer information in its possession.
  Customer acknowledges that j2 may change its practices and limitations concerning the storage of messages at any time and that notification of any such changes will be posted on j2’s website. Customer further agrees that this feature is provided as a convenience to its resellers and customers only, and j2 and its Affiliates have no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, any messages and/or other communications maintained or transmitted by the Campaigner Solution.
MISCELLANEOUS
1. Inurement. This CHO E-mail Messaging Addendum will inure to the benefit of and be binding upon each of the parties and their respective successors and permitted assigns.
2. Force Majeure. Notwithstanding any other provision, j2 will not be liable for any delay in performing or failure to perform any of its obligations under this CHO E-mail Messaging Addendum to the extent performance is delayed or prevented due to any cause or causes that are beyond j2’s reasonable control, including without limitation:
  1. any act of God, fire, explosion, lightning, storm, flood, earthquake, accident, or natural disaster;
  2. war, terrorism, hostilities, civil war, insurrection, riot, civil unrest, commotion, or acts of a public enemy;
  3. labor shortages, strikes, lock-outs, or other labor, industrial or trade action, disputes, disruption, or disturbances (whether involving its employees or those of any other party);
  4. theft, sabotage, malicious damage, fraud, epidemic, or quarantine restrictions;
  5. material shortages or rationing;
  6. general failure, malfunction or unavailability of power, utilities, telecommunications, data communications, or related services;
  7. action, inaction, demand, order, restraint, restriction, requirement, prevention, or hindrance by any government or court; or
  8. applicable law or regulation. Any delay or failure of this kind will not be deemed to be a breach of this CHO E-mail Messaging Addendum by j2, and the time for j2’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.

ClubHouse Online Agreement General Terms & Conditions

EXHIBIT A

EXHIBIT B

EXHIBIT C

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