ADDITIONAL TERMS AND CONDITIONS FOR EMAIL SERVICES

Nexxt, Inc. (“Nexxt”) will provide email marketing services under the following terms and conditions provided below:

DEFINITIONS. “Services” means the provision of Nexxt’s email marketing services for Client-provided content over a computer network to a targeted audience for a specific marketing campaign, as further described in an applicable insertion order or service agreement (each an “SA” under these terms and conditions) which, together with the SA Terms and Conditions or Standard Terms and Conditions for Performance, as applicable, and these Additional Terms and Conditions for Email Services shall constitute the “Agreement.” “Affiliate” means, with respect to an entity, any entity, whether incorporated or not, that controls, is controlled by, or under common control with the first entity or its corporate parent, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
SERVICES. Subject to the terms and conditions of this Agreement, Nexxt shall provide Services to Client, either directly or through its vendor-partners, and Client hereby engages Nexxt to provide the Services. This is not a technology license agreement and, except as provided for in this Agreement, it does not give Client any right to use any proprietary software or hardware technology used by Nexxt to provide the Services. Client and Nexxt may contract for additional services to be provided under this Agreement pursuant to a writing executed by both Client and Nexxt. Any such additional services shall be governed by these terms.
USE. The Services are being provided only for Client’s and its Affiliates’ internal purposes and business operations. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the Services or any software used to provide the Services, in whole or in part, is granted except as expressly provided by this Agreement. Neither Client nor its Affiliates shall reverse engineer, decompile or disassemble the Services or any software used to provide the Services.
TERM. This Agreement will become effective as of, and service shall start on, the Effective Date stated in the SA and shall continue as stated therein. If no term is stated, the Agreement shall continue for a period of one (1) year from the Effective Date unless sooner terminated as provided in this Agreement (the “Initial Term”). After the expiration of the Initial Term, this Agreement may be renewed for successive one (1) year periods (each a “Renewal Term”) upon written agreement of the parties, unless one of the parties has notified the other of its election to terminate this Agreement at least thirty (30) days prior to the end of the then expiring term.
PRICING; EXPENSE REIMBURSEMENT; PAYMENT. The Services will be provided by Nexxt to Client at the prices set forth on the applicable SA. Prices are subject to change, from time to time after the Initial Term of this Agreement, upon thirty (30) days' advance written notice to Client, which notice may be given, among other ways, by email or a posting on Nexxt’s website. Invoices are due upon Client’s receipt thereof and Client shall pay such invoices in accordance with the terms and conditions set forth in the applicable SA. Failure to pay to Nexxt shall constitute a material breach of this Agreement. Client shall pay a late fee of one and one-half percent (1½%) per month on all amounts due but not paid within thirty (30) days of the invoice date and Nexxt may, as a result of such late payment, among other remedies available to it, discontinue its provision of the Services to Client in accordance with Section 15 below.
TAXES. Client is solely responsible for payment of any taxes (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes, and similar taxes and duties) resulting from Client’s acceptance of the Services, excluding, however, any taxes payable by Nexxt as a result of income earned by Nexxt hereunder. Client shall pay any such taxes as they fall due to Nexxt for remittance to the appropriate authority. Client shall hold harmless Nexxt from all claims and liability arising from Client’s failure to report or pay such taxes.
CONFIDENTIALITY.

Obligations. The parties acknowledge that the Services, any software used to provide the Services, and any other information provided to each other incorporate confidential and proprietary information developed by, acquired by, or licensed to the disclosing party (“Confidential Information”). The parties agree that Confidential Information shall be used only for the purposes of this Agreement, and that no Confidential Information of the other party shall be disclosed to outside parties by the recipient party, its agents or employees without the prior written consent of the other party. Nothing in this Agreement shall be understood as having granted, expressly or by implication, any rights to proprietary or confidential information, trade secrets or know-how of the other party. Each party acknowledges that any unauthorized use or disclosure by it of the other party’s Confidential Information may cause irreparable damage to that party. If the disclosing party becomes aware of a breach or threatened breach of this Section, it shall be entitled to seek injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to it.
Exceptions. The confidentiality obligations set forth in this Section 7 shall not apply, or shall cease to apply, to information which (i) was publicly available at the time of disclosure to the other party, (ii) becomes generally known to the public after disclosure to the other party, through no fault of the other party, or (iii) is disclosed under force of law, governmental regulation or court order.

INDEMNIFICATION. Subject to Section 18 below, Client shall indemnify and hold Nexxt, and its officers, directors, employees, and agents, harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorney’s fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with (i) a breach of Client’s obligations hereunder, (ii) any material breach of Client’s representations and/or warranties contained herein, (iii) Nexxt’s use, in connection with its performance of the Services hereunder, of any email addresses, Client end user information, or other information that Nexxt obtains from Client or its Affiliates for purposes of providing the Services, (iv) any content provided by Client or its Affiliates, or (v) any emails, newsletters, or other materials sent out by Client or its Affiliates using the Services.
CLIENT’S REPRESENTATIONS AND WARRANTIES. Client represents and warrants to Nexxt that:

Client’s agreement to engage Nexxt to perform the Services hereunder does not violate any agreement or obligation between Client and any third party.
Neither any information delivered by Client to Nexxt in support of this Agreement nor Client's performance of this Agreement will infringe on any copyright, patent, trade secret, or other proprietary right held by any third party.
None of the activities for which Client has engaged the services of Nexxt shall violate any international, federal, state, or local law or regulation relating to individual privacy or the distribution of email messages. Neither Client nor its Affiliates will use the Services for purposes of, or transmit via the Services, (i) any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations; (ii) any chain letters, pyramid schemes, or other similar deceptive, misleading and/or fraudulent content; (iii) any unsolicited commercial or non-commercial communication; (iv) any emails with deceptive, misleading or false subject lines or header information that makes it difficult to identify the initiator of the email; or (v) any information containing a virus, trojan horse, worm, or other harmful component.
Each person as to whom email addresses are provided to Nexxt by Client or its Affiliates (i) has been or will be given notice of Client’s or its Affiliate’s information and privacy practices (which practices shall not constitute an unfair or deceptive trade practice or be contrary to any privacy laws, regulations, or requirements), (ii) has been or will be given a choice with respect to the use by Client or its Affiliates of such information, (iii) has been or will be given access to information collected about such person, (iv) can or will be categorized as an “opt-in” recipient by his, her, or its agreement with Client to receive such information via email, and (v) has not or will not have notified Client or its Affiliates of his, her, or its desire not to receive email (i.e., no such person has “opted out” of the receipt of email with respect to Client or its products or services or any of Client’s Affiliates or their products or services).
Client shall not use any non-Nexxt-provided software, application, or service to send emails created via the Services or any website URL's produced by the Services.
Upon notification from any person that such person desires not to receive email with respect to Client or its Affiliates or any of their respective products or services, Client shall immediately notify Nexxt of such recipient’s request to unsubscribe in writing.
Client has reviewed the Nexxt Terms of Use and the Nexxt Privacy Policy located on Nexxt’s website and shall abide by their respective terms.
When executed and delivered by Client, this Agreement will constitute the legal, valid, and binding obligation of Client, enforceable in accordance with its terms.

NEXXT’S REPRESENTATIONS AND WARRANTIES. Nexxt represents and warrants to Client that:

Nexxt’s agreement to perform the Services hereunder does not violate any agreement or obligation between Nexxt and any third party.
To the best of Nexxt’s knowledge, the Services do not infringe on any copyright, patent, trade secret or other proprietary right held by any third party.

CLIENT CERTIFICATION & ACKNOWLEDGEMENTS. Client certifies that it understands and acknowledges that:

Nexxt may, at its sole discretion, refuse to distribute any email content or other information provided by Client or its Affiliates that contains information that Nexxt has reason to believe to be defamatory, infringing, or otherwise unlawful or inappropriate.
Nexxt may, at its sole discretion, refuse to distribute any email to any email address that Nexxt has reason to believe has not granted permission or otherwise “opted-in” to receive such email(s) or that Nexxt has reason to believe is otherwise unlawful.
Nexxt has no obligation to review email content or related information provided by Client to ensure that such comply with applicable laws and Client accepts full responsibility for compliance with such laws.
Client is solely responsible for the creation of its emails, including, but not limited to, the content of such emails, and the timing of such emails.

NEXXT OUTAGE POLICY. CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEXXT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT NEXXT MAY OCCASIONALLY EXPERIENCE “HARD OUTAGES” DUE TO INTERNET DISRUPTIONS THAT ARE NOT WITHIN NEXXT’S CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT BY NEXXT.
FORCE MAJEURE. To the extent one of the parties hereto is prevented from performing any of its obligations hereunder due to circumstances reasonably Nexxt its control (including, but not limited to, the action or inaction of any governmental, civil or military authority; a strike, lockout or other labor dispute; or a fire, flood, war, riot, theft, earthquake or other natural disaster, acts of terrorism or other civil disturbance) and not involving such party’s negligence, such party shall not be liable to the other party for any losses or damages arising out of such non-performance. In the event a party hereto is prevented from meeting its obligations by such unforeseen circumstances, and such party is unable to provide assurances that recovery will occur within fifteen (15) days, or recovery fails to occur within fifteen (15) days, the other party hereto shall have the right to terminate this Agreement, effective upon delivery of written notice of the same to the other party, and no party shall be liable to any other arising out of such termination, except for obligations existing prior to such termination.
NOTICES. Any notice or correspondence required or permitted to be given or forwarded hereunder or by law shall be effective on receipt and shall be considered properly given if in writing and delivered personally or faxed with confirmation or sent by any commercially reasonable means of receipted delivery, addressed, with respect to Client, to the address of Client stated above, or most recently provided in writing to Nexxt, and with respect to Nexxt, to the address of Nexxt stated above.
TERMINATION. Either party shall have the right to terminate this Agreement prior to expiration of its term: (i) in the event of the other party’s material breach of any of the provisions hereof and the failure of the breaching party to cure such breach to the reasonable satisfaction of the non-breaching party within fifteen (15) days after receipt of written notice informing it of such material breach, (ii) in accordance with the provisions of Section 13 hereof, or (iii) in the event a petition seeking composition of creditors, the protection afforded by the United States Bankruptcy Code or benefit of other laws affecting the rights of creditors generally is filed by or against the other party and such petition remains unstayed or undismissed for a period of thirty (30) days. Upon termination of this Agreement, all Services provided to Client hereunder will terminate. Upon termination or non-renewal, the parties’ obligations of a continuing nature shall continue to be binding and in full force and effect, and all outstanding amounts shall become immediately due and payable.
OWNERSHIP. All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services, or otherwise used to perform the Services for Client or its Affiliates hereunder, are and will remain the sole and exclusive property of Nexxt, whether or not specifically recognized or perfected under applicable law. Nexxt shall own all rights, title, and interest, including all intellectual property rights, in and to any improvements to the existing Services or any new programs, upgrades, modifications or enhancements developed by Nexxt in connection with rendering the Services to Client or its Affiliates, even when refinements and improvements result from Client’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Nexxt by virtue of this Agreement or otherwise, Client hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to Nexxt all rights, title, and interest which Client or its Affiliates may have in to such refinements and improvements.
NONEXCLUSIVITY. Client acknowledges and agrees that Nexxt may provide email marketing services to third parties, including competitors of Client or its Affiliates, which are the same or similar to the Services provided to Client or its Affiliates hereunder.
LIMITATION OF LIABILITIES. NEXXT SHALL NOT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, OR FRUSTRATION OF BUSINESS EXPECTATIONS, WHETHER ARISING OUT OF SUCH PARTY’S BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE). NEXXT’S MAXIMUM LIABILITY HEREUNDER FOR ANY CLAIMS WHATSOEVER IS EXPRESSLY LIMITED TO THE AMOUNT PAID UNDER THIS AGREEMENT BY CLIENT TO NEXXT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO THE CLAIM, IF ANY. NO CLAIM MAY BE BROUGHT BY THE CLIENT OR ANY OF ITS AFFILIATES UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM.
DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED HEREUNDER BY NEXXT “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEXXT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY EMPLOYEES OF NEXXT OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY NEXXT FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF NEXXT WHATSOEVER.
CLIENT TRADEMARKS. Upon receipt of Client’s written authorization, Nexxt may use the trademarks and trade names of Client in connection with its provision of the Services and in connection with the marketing by Nexxt of its services to third parties. Upon receipt of Client’s written authorization, Nexxt may use specific email examples generated by Client in connection with the marketing by Nexxt of services to third parties. Nexxt shall comply with any reasonable written guidelines of Client relating to usage of Client's trademarks or trade names. Nexxt shall discontinue use of Client’s trademarks or trade names upon the expiration or termination of this Agreement, except as may be required to exhaust any marketing materials on hand at the time of such expiration or termination.
GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to any jurisdiction’s conflict of laws principles, and all proceedings relating to the subject matter hereof shall be maintained exclusively in the courts situated in Montgomery County, Pennsylvania. Client consents to personal jurisdiction and venue therein and waives any right to object to personal jurisdiction or venue.
WAIVER. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. The failure of a party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by one or both of the parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.
ASSIGNMENT. This Agreement shall inure to the benefit of, and shall be binding upon, both parties and their respective successors and permitted assigns. Neither party may assign or delegate this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other party, except as expressly set forth herein or to an individual or entity into which it has merged or which has otherwise succeeded to all or substantially all of the assets or equity securities of the assignor, and which has assumed in writing or by operation of law, the assignor’s obligations under this Agreement.
INVALID PROVISIONS; SEVERABILITY. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibitive or enforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
ENTIRE AGREEMENT; GENERAL. This Agreement, including all attachments and exhibits hereto, represents the complete understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements, whether written or oral, between the parties. This Agreement may not be modified or amended, except by a written instrument executed by each of the parties hereto. This Agreement is for the sole benefit of the parties hereto and is not for the benefit of any third party. The parties hereto shall be deemed to be independent contractors hereunder, and as such, neither party shall be, nor hold itself out to be, an employee or agent of the other party. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.

Rev. June 2017