Terms

The website located at www.messagebus.com (the “Site“) is a copyrighted work belonging to Mail Bypass, Inc., doing business as Message Bus (“Company“, “us“, “our“, and “we“). Company provides a message delivery service (collectively, with all other services provided through the Site, the “Services“) and an application programming interface (“API“) to access the Services. Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Services or Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.

PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT“) CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE, SERVICES AND API. BY CLICKING ON THE “I AGREE” BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT; AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, PERSONALLY OR ON BEHALF OF THE COMPANY NAMED IN THE USER PROFILE OR COMPANY ACCOUNT(S) (DEFINED BELOW), AND TO BIND SUCH COMPANY TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT OR IF YOU DO NOT HAVE SUCH AUTHORITY, DO NOT ACCESS OR USE THE SITE, SERVICES OR API. YOU MAY NOT ACCESS OR USE THE SITE, SERVICES OR API OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD.

1. Accounts

   • 1.1 Account Creation.
     In order to use certain features of the Site (e.g., to use the Services or API), you must provide certain information about yourself to create a user profile (“User Profile“) and register for one or more account(s) with Company (“Company Account(s)“) as prompted on the Site. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your User Profile or Company Account(s) at any time, for any reason, by following the instructions on the Site. Company may suspend or terminate your User Profile or Company Account(s) in accordance with Section 1.1.

   • 1.2 Account Responsibilities.
     You are responsible for maintaining the confidentiality of your User Profile and Company Account login information, as well as any usernames or passwords issued to you, and are fully responsible for all activities that occur under your User Profile and Company Account(s), including those by additional users that you invite to administer or view your Company Account. Please do not disclose your User Profile or Account password to unauthorized people. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your User Profile and Company Account(s) or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

2. Delivery and Payment Terms

   • 2.1 Delivery of Services.
     You may access the Services by following the instructions on the Site. Company will provide you with a username, password and API to access the Services. Company reserves the right to change or update these usernames and passwords in Company’s sole discretion from time to time. You are responsible for (a) providing to Company all email addresses and other Content (defined below) necessary for Company to provide the Services to you; (b) obtaining all consents for Company to provide the Services relating to the supplied email addresses; (c) promptly updating and providing to Company all updates to the supplied email addresses; (d) maintaining a privacy policy as required by applicable laws; (e) complying with all applicable privacy laws in your use of the email addresses provided to Company; (f) obtaining all rights for Company to use the Content provided by you; (g) complying with the provisions of the federal CAN-SPAM Act and the laws and regulations of any country in which the email recipient is located; and (h) complying with the Acceptable Use Policy set forth below.

   • 2.2 Payment Terms.
     Unless you and Company have agreed upon a separate fee arrangement, the following payment terms apply to your use of the Services. If you access the Services, you agree to pay the then-current applicable Services fee listed on the Site. Company may change the pricing for the Services (from time to time in its sole discretion) by updating the Site. Company or its third party service provider will automatically send you an invoice for the fees required. Payment will be due within thirty (30) days after the date of the invoice. Company reserves the right to require advance payment of such fees if you have not paid all amounts owed to Company or if Company determines in its reasonable discretion that you are not creditworthy. All payments are non-refundable and must be made in U.S. dollars. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. If non-payment is not remedied within seven (7) days after receiving notice of non-payment, then Company may terminate the applicable Services.

3. Site

   • 3.1 License.
     Subject to the terms of this Agreement, Company grants you a non-transferable, non-exclusive, license to (a) use the Site and Services for your internal business use; and (b) use the API solely to interface with your own API to access the Services.

   • 3.2 Certain Restrictions.
     The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, share, host, or otherwise commercially exploit or allow the unauthorized use of the Site, Services, or API; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site, Services or API in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site, Services or API may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site, Services or API shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site, Services or API content must be retained on all copies thereof.

   • 3.3 Modification.
     Company reserves the right, at any time, to modify, suspend, or discontinue the Site, Services or API or any part thereof with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site, Services, API or any part thereof.

   • 3.4 Ownership.
     Excluding your Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site, Services and API, including any updates or revisions thereof, are owned by Company or Company’s licensors. The provision of the Site, Services and API does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Company and its suppliers reserve all rights not granted in this Agreement.

4. Content

   • 4.1 Content.
     “Content” means any and all information and content that you submit to, or use with, the Site or Services. You are solely responsible for your Content. You assume all risks associated with use of your Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your Content that makes you or any third party personally identifiable. You hereby represent and warrant that your Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your Content (and not Company), you may expose yourself to liability if, for example, your Content violates the Acceptable Use Policy. Company shall use reasonable efforts to create backup copies of your Content; however, no method of electronic storage is 100% effective. Therefore, Company recommends that you create backup copies of your Content if you desire.

   • 4.2 License.
     Company acknowledges that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in your Content are owned by you or your licensors. You hereby grant, and you represent and warrant that you have the right to grant, to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, and otherwise use your Content, and to grant sublicenses of the foregoing, solely for the purposes of including your Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Content.

   • 4.3 Feedback.
     If you provide Company any feedback or suggestions regarding the Site or Services (“Feedback“), you hereby assign to Company all rights in the Feedback and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.

5. Acceptable Use Policy. The following sets forth Company’s “Acceptable Use Policy“:

   • 5.1 You agree not to use the Site, Services or API to collect, upload, transmit, display, or distribute any Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.

   • 5.2 In addition, you agree not to use the Site, Services or API to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; or (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services.

   • 5.3 We reserve the right (but have no obligation) to review any Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your Content, terminating your User Profile and Company Account(s) in accordance with Section 11, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.

6. Third Party Sites

   • 6.1 Third Party Sites.
     The Site might contain links to third party websites, and services for third parties (collectively, “Third Party Sites“). Such Third Party Sites are not under the control of Company and Company is not responsible for any Third Party Sites. Company provides these Third Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. When you link to a Third Party Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.

   • 6.2 Release.
     You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, Third Party Sites. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

7. Confidentiality.
   You acknowledge that the Site, Services, and API are commercially valuable assets which constitute trade secrets of Company and that each contains Confidential Information proprietary to Company. For purposes of these Terms of Service, “Confidential Information” means the Site, Services and API, all information provided by Company about the Site, Services and API, and all information provided by Company that is clearly marked or identified as confidential or that a reasonable person would understand that such information is confidential. You shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than as expressly permitted by these Terms of Service other than as expressly permitted in this Agreement. You agree that you, including your employees, officers, and agents, if any, shall treat all Confidential Information with the same degree of care as it accords to your own confidential information but which, in no event, shall be less than reasonable care and shall not disclose, sell, transfer, publish, copy, display or otherwise make the API available, or any part thereof in any form, to any person or entity not a party to these Terms of Service. You shall take all reasonable precautions to ensure fulfillment of this confidentiality and nondisclosure obligations and agree to immediately notify Company of any unauthorized use, copying and/or disclosure of the Confidential Information, as well as, take such actions as are necessary to cease and prevent any further unauthorized use, copying and/or disclosure.

8. Indemnity.
   You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, Services or API; (b) your Content; (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

9. Disclaimers.
   THE SITE, SERVICES AND API ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE, SERVICES OR API: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

10. Limitation on Liability.
    IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE, SERVICES OR API, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE, SERVICES AND API ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID COMPANY IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

11. Term and Termination.
    Subject to this Section, this Agreement will remain in full force and effect while you use the Site, Services or API. We may (a) suspend your rights to use the Site, Services (including your User Profile and Company Account(s)), and/or API; or (b) terminate this Agreement or the licenses herein, at any time for any reason at our sole discretion, including for any use of the Site, Services, or API in violation of this Agreement. Upon termination of this Agreement, your User Profile, Company Account(s) and right to access and use the Site, Services and API will terminate immediately. You understand that any termination of your User Profile or Company Account(s) involves deletion of your Content associated therewith from our live databases. Company will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your User Profile or Company Account(s) or deletion of your Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.2-3.4, 4 — 13.

12. Copyright Policy.
    Company respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:

    • 1. your physical or electronic signature;

    • 2. identification of the copyrighted work(s) that you claim to have been infringed;

    • 3. identification of the material on our services that you claim is infringing and that you request us to remove;

    • 4. sufficient information to permit us to locate such material;

    • 5. your address, telephone number, and e-mail address;

    • 6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and

    • 7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

    Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

    The designated Copyright Agent for Company is:

    Designated Agent: VP Finance/Business Operations

    Address of Agent: 200 Tamal Plaza 2nd Floor, Corte Madera, CA 94925

    Telephone:415.888.8499

    Email: copyright@messagebus.com

13. General

    • 13.1 Support and Maintenance.
      You may obtain technical support and maintenance in connection with the Site, Services and API by following the directions on the Site or by e-mailing support@messagebus.com.

    • 13.2 Changes to Terms of Use.
      This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site, Services or API. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site, Services or API following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

    • 13.3 Governing Law and Venue.
      This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for San Francisco county for any lawsuit filed there against you by Mail Bypass arising from or related to this Agreement.

    • 13.4 Injunctive Relief.
      You acknowledge that any breach of this Agreement by you would cause irreparable injury to Company for which monetary damages would not be an adequate remedy and, therefore, will entitle Company to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.

    • 13.5 Export.
      You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.

    • 13.6 Miscellaneous.
      If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Except as otherwise provided in Section 13.2, no modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by you and a duly authorized officer of the Company.

If you have questions regarding this Agreement, or wishto obtain additional information, please send an e-mail to support@messagebus.com.

Last revised on: December 21, 2011

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