1.1 Offering Integration; API Documentation. During the term of this Agreement, Developer may use the APIs to provide capabilities or integrations that leverage the Creativ.eMail products available at www.creativemail.com (the “Creativ.eMail Products”) into additional functionality, products, websites and/or services that are offered by Developer (the “Offerings”), subject to the terms and conditions of this Agreement. Creativ.eMail may make available to Developer the Creativ.eMail API and any corresponding reference materials (including API documentation, wrapper libraries, sample code and API updates and changes) and source code, which may be amended or revised by Creativ.eMail at any time (the “Creativ.eMail API Documentation”), for use for such purposes during the term of this Agreement.

1.2 User Terms and Conditions. Developer acknowledges and agrees that users of the Offerings (“Users”) must be Creativ.eMail account holders for a Creativ.eMail Product in order to access and use such Creativ.eMail Product through the Offerings. Developer further acknowledges and agrees that all Users’ access and use of the Creativ.eMail Products is subject, in all respects, to the User Agreements. Developer hereby agrees to either: (i) require all Users to agree to the User Agreements prior to permitting such users to access the Creativ.eMail Products through the Offerings; or (ii) only provide access to Creativ.eMail Products in a manner that requires Users to register with Creativ.eMail directly and accept the User Agreements. Developer further agrees that, to the extent Developer uses the Creativ.eMail Products on its own behalf or on behalf of its customers, Developer’s use shall be subject to the User Agreements in all respects. Developer agrees that it may use the APIs to add or update only customers that have been obtained by the User using permission-based standards that meet standards described in the User Agreements. The “User Agreements” are defined as Creativ.eMail’s Web Site and Products Terms and Conditions of Use, Privacy Policy, Anti-Spam Policy,  Prohibited Content and Commerce Statement, and any other acceptable use policy, content restrictions, user agreements, and other terms and conditions governing use of the Creativ.eMail Products, generally available through the Creativ.eMail websites and/or www.constantcontact.com, as each of the foregoing may be amended by Creativ.eMail from time to time in its sole discretion.

1.3 Privacy Policy; Customer Accounts. Developer represents, warrants and covenants that, in its operation of the Offerings, it will maintain and comply with a privacy policy that complies with applicable law and that accurately discloses how Developer collects, uses, stores, and discloses data provided by Users and third parties. Developer will post its privacy policy prominently in the Offerings. Further, if Developer has any login, customer or other account information relating to a User’s account with Creativ.eMail, Developer shall only use such information for the purposes expressly authorized by the applicable User.

1.4 Responsibility for Offerings. Developer is solely responsible for the Offerings and Creativ.eMail shall have no liability or obligations with respect to the same (including support obligations). Developer represents, warrants and covenants that Developer has and will at all times maintain the right to provide all Offerings provided by Developer hereunder and that the Offerings (and any other materials provided to Creativ.eMail or Users) do not infringe the intellectual property or other rights of any third parties or contain viruses, worms, malware or any other harmful scripts or code. Developer agrees to provide support for its Offerings. Developer shall ensure that all Offerings that access the Creativ.eMail Products comply with all applicable laws and regulations, including all applicable data privacy laws.

2.1 License. Subject to the terms and conditions herein, Creativ.eMail hereby grants to Developer a revocable, non-exclusive, non-transferable, non-sublicenseable, limited license to use and integrate the APIs into the Offering for the sole purpose of developing the integration to the Offering and allowing access to the Creativ.eMail Products via the Offering. Once integrated into the Offering, access to the APIs may then be distributed to the Users as an integrated part of the Offering.

2.2 Responsibilities; Restrictions. Developer shall implement the APIs in accordance with the Creativ.eMail API Documentation. Developer may not access the APIs if Developer is a competitor of Creativ.eMail, as determined by Creativ.eMail in its sole discretion, or to replicate or attempt to replicate the essential user experience of the Creativ.eMail Products. Except as expressly provided herein, Developer has no other right to install, integrate, use, reproduce, sublicense or distribute APIs. Developer shall not: (i) modify, reverse engineer, decompile, or otherwise alter or attempt to gain access to the APIs or the Creativ.eMail Products in a manner not in accordance with this Agreement, (ii) use or enable its customers to use the APIs for the purposes of testing or comparison of Creativ.eMail Products or for any purpose competitive with Creativ.eMail Products, (iii) rent, lease, resell, or distribute the APIs on a stand-alone basis or for commercial purposes for direct commercial or monetary gain, or (iv) perform bulk operations with APIs that are designed for single contact operations or perform single contact operations with APIs that are designed for performing bulk operations. Developer agrees to protect the security and confidentiality of any credentials and API keys disclosed by Creativ.eMail hereunder.

2.3 Ownership; No Other Licenses. The APIs contained in the Offering shall remain the sole and exclusive intellectual property of Creativ.eMail and Developer shall reasonably assist Creativ.eMail in protecting such ownership. No other licenses or rights in any of Creativ.eMail’s intellectual property rights are granted hereunder. For example and without limitation, no rights are granted to use Creativ.eMail’s logos or trademarks; provided, however that Developer may refer to the names of the Creativ.eMail Products solely for the purpose of describing the Offering.

2.4 Right to Developer’s Ideas, Logo and Name. Developer hereby grants to Creativ.eMail a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license (i) to use any ideas that Creativ.eMail learns from observing Developer’s Offerings or other use of the APIs or any feedback provided by Developer and (ii) to use and display Developer’s name and logo for the purpose of disclosing that Developer is providing Offerings using the APIs and for promotion of the availability of the APIs.

Developer acknowledges that Developer’s right to use and demonstrate the Creativ.eMail Products hereunder is non-exclusive, and that Creativ.eMail reserves the right to sell and distribute any of its services to any customers in the world, and to appoint any third party to do so, without giving Developer notice thereof and without incurring any liability to Developer therefore. Creativ.eMail reserves the right to develop and extend its products and capabilities without regard to whether those products compete with or invalidate any Developer Offering. Unless otherwise mutually agreed by the parties, Creativ.eMail may contact directly any User for the purpose of marketing and selling the Creativ.eMail Products and other products and services. Unless otherwise mutually agreed by the Parties, in the event that such User elects to purchase the Creativ.eMail Products, Creativ.eMail shall have no obligation to Developer with respect to such transaction.

Developer represents and warrants that Developer’s networks, operating system and software (collectively, Developer’s “Systems”) are properly configured to securely operate the Offerings. Developer must promptly report any security incidents impacting Developer’s Systems that also impact or compromise the Offerings or Creativ.eMail’s APIs to Creativ.eMail in accordance with Section 8.11 hereof. Developer will work with Creativ.eMail to correct any security deficiency or incident promptly, at Developer’s own expense. In the event Developer develop an Offering for Users to direct Creativ.eMail to process their data, Developer understands that Creativ.eMail is acting as a data processor, and Developer agrees to Creativ.eMail Data Processing Addendum.

5.1 Indemnification. Developer shall defend, indemnify and hold Creativ.eMail and its underlying service providers, business partners, third-party suppliers and providers, members of its network, account providers, licensors, officers, directors, employees, distributors and agents harmless from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys’ fees) incurred by Creativ.eMail as a result of any third-party claim against Creativ.eMail resulting from or relating to the Offering, Developer’s use of the APIs, Creativ.eMail’s use of the Developer’s marks, the content on Developer’s website, Developer’s unauthorized marketing, promotion, use or distribution of the Creativ.eMail Products, Developer’s failure to abide by the applicable terms of any User Agreement, Developer’s breach of this Agreement, or the infringement or misappropriation of any patent, copyright, trademark, or other intellectual property right of any third party.

5.2 Limitation of Liability. EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF CREATIV.EMAIL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CREATIV.EMAIL OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS AND MEMBERS OF ITS NETWORK, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “CREATIV.EMAIL”) BE LIABLE TO DEVELOPER OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF CREATIV.EMAIL SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF CREATIV.EMAIL TO DEVELOPER ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY.

Developer agrees that Creativ.eMail has made the APIs available and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.

5.3 Disclaimer. DEVELOPER EXPRESSLY AGREES THAT THE APIS AND THE CREATIV.EMAIL PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE APIS OR THE CREATIV.EMAIL PRODUCTS AND ANY RELIANCE BY DEVELOPER UPON THE APIS OR THE CREATIV.EMAIL PRODUCTS, INCLUDING ANY ACTION TAKEN BY DEVELOPER BECAUSE OF SUCH USE OR RELIANCE, IS AT DEVELOPER’S SOLE RISK. CREATIV.EMAIL DOES NOT WARRANT THAT THE USE OF THE APIS OR THE CREATIV.EMAIL PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES CREATIV.EMAIL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. CREATIV.EMAIL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CREATIV.EMAIL IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT. CREATIV.EMAIL MAY MODIFY OR TERMINATE OR RESTRICT ACCESS TO THE APIS AT ANY TIME WITHOUT NOTICE. CREATIV.EMAIL SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR DEVELOPER’S COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.

NO CLAIM MAY BE ASSERTED BY DEVELOPER AGAINST CREATIV.EMAIL MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. DEVELOPER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE APIS OR THE PRODUCTS SHALL BE FOR CREATIV.EMAIL TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE APIS OR THE PRODUCTS. DEVELOPER HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 1542 (IF DEVELOPER IS A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF DEVELOPER IS A RESIDENT OF SUCH JURISDICTION).

Developer may terminate this Agreement at any time by ceasing to provide Offerings. Creativ.eMail may terminate this Agreement and/or disable Developer’s ability to provide Offerings via the APIs, in each case at any time with or without cause, and with or without notice. Creativ.eMail shall have no liability to Developer or any third party because of such termination or action. This Agreement terminates automatically if Developer breaches any term of this Agreement. The following provisions shall survive expiration or termination of this Agreement: Sections 1 (Enabling Access; Developer Obligations), 3 (Non-Exclusivity), 4 (Security and Data Privacy), 5 (Indemnification; Limitation of Liability; Disclaimer), 6 (Term; Termination) and 8 (Miscellaneous).

Developer hereby warrants that Developer is not a Restricted Person. For purposes of this Agreement, Developer is a Restricted Person if Developer or any officer, director, or controlling shareholder of Developer is (i) a national of or an entity existing under the laws of any country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (ii) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (iii) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (iv) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (v) owned, controlled, or acting on behalf of a Restricted Person.

If Developer becomes a Restricted Person during the term of this Agreement, Developer shall notify Creativ.eMail ([email protected]) within twenty-four (24) hours, and Creativ.eMail shall have the right to terminate any further obligations to Developer, effective immediately and with no further liability to Developer, but without prejudice to Developer’s outstanding obligations to Creativ.eMail. Developer agrees that Developer shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. Developer may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.

8.1 Full Force and Effect. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

8.2 Entire Agreement. Creativ.eMail and Developer agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that this Agreement may be amended from time to time by Creativ.eMail with or without advance notice to Developer. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy. In the event of any inconsistency between this Agreement and the User Agreements, this Agreement controls.

8.3 Assignment. Developer may not assign any of its rights hereunder. Creativ.eMail may assign all rights to any other individual or entity in its sole discretion.

8.4 Further Assurances. Developer agrees to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.

8.5 Third Party Beneficiaries. Creativ.eMail’s underlying service providers, business partners, third-party suppliers and providers, members of its network, account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.

8.6 Titles. The titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect.

8.7 No Agency. Except as expressly set forth herein, no agency, partnership, joint venture, or employment is created as a result of this Agreement, and Developer does not have any authority of any kind to bind Creativ.eMail in any respect whatsoever.

8.8 Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.

8.9 Authority. Developer represents that Developer has the full power, capacity and authority to accept this Agreement. If Developer is accepting on behalf of its employer or another entity, Developer represents that it has full legal authority to bind its employer or such entity to this Agreement.

8.10 Governing Law and Legal Actions. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the Commonwealth of Massachusetts, in each case, without regard to its choice or law or conflict of laws provisions. All legal actions in connection with this Agreement shall be brought in the state or federal courts located in Boston, Massachusetts.

8.11 Notices. Developer agrees that Creativ.eMail may provide notice to Developer by emailing such notice to the email address listed by Developer during Developer’s registration. Such notice shall be considered to be received by Developer within 24 hours of the time it is emailed to Developer unless Creativ.eMail received notice that it was not delivered. Any notice to Creativ.eMail must be sent by postal mail to: Constant Contact, Inc., 1601 Trapelo Road, Waltham, Massachusetts 02451, Attention: Legal Team.

8.12 Equitable Relief. Developer agrees that any violation or threatened violation of this Agreement may cause irreparable injury to Creativ.eMail, entitling Creativ.eMail to obtain injunctive or other equitable relief in addition to all legal remedies.