EXHIBIT 10.1
ETRACKS
SERVICES AGREEMENT
CLIENT: Traffix, Inc.
Xxx Xxxx Xxxx Xxxxx 0xx Xxxxx
XX Xxx 0000
Xxxxx Xxxxx, XX 00000
SERVICES DESCRIPTION: Services provided via ASP model. Etracks provides full
service until ASP is available.
Database Setup: Hygiene, Merge-purge with detailed scrub
report per file load.
Update List: Additions, Deletions and Deduping
Application of Etracks' Global Suppression File
Opt-out & Bounce Collection / Suppression
List Selection & Segmentation
Customization of From Line, Subject Line and Opt-out
Language and body personalization
Content Formatting--plain text, HTML and AOL (excluding
letter creation)
Opt-out language insertion
Internal Cell Testing Across Multiple Domains
External Cell Testing
Email Delivery of up to 40 million per day
Online Reporting: Delivered, Undelivered, Opened, and Clicks
Applying Undeliverable and Opt-outs in Updating Your
Database
Forwarding of Undeliverable, Opt-outs, Opens, and Clicks in
Text Files to Update Your Database weekly for all activity
since prior file pull.
Forwarding of all customer complaints and inquiries within 1
business day of receipt by Etracks.
FEES: ** per thousand for emails delivered up to 1,000,000,000 per
month
** per thousand for email delivered over 1,000,000,000 per
month
Minimum (full calendar) monthly fee = **
* For the first month of the agreement, the effective
monthly minimum
will be **
Invoiced monthly for the prior month's services and Due net
30 days.
** Confidential Treatment Requested.
TERMS AND CONDITIONS:
- All invoices will be sent to Client by Etracks on the first day of each
month for the prior month's services and are due and payable net 30 days
after receipt.
- The term of this Agreement shall begin upon the Execution Date and will
continue for a period of one year. Client may terminate this Agreement at
any time for non-performance if, within 48 hours after notice from Client,
Etracks remains unable to perform. In addition, either party may terminate
this Agreement upon 45 days written notice in the event that there are
material changes to the regulatory environment affecting either party's
ability to send email.. In the event of the termination of the Agreement,
Etracks will return all Customer data (including clicks and opens) to
Client within 14 days of the effective date of termination.
- Etracks will send email to list only when instructed by representatives
authorized byClient. Etracks will not use, manipulate, alter or release
your list without express written consent from
authorized Client representatives. Client's list will remain Client's own
property; Etracks will function strictly as a service provider.
- Client represents and warrants to Etracks that the information (including,
without limitation, mailing lists, copy and/or images) supplied to Etracks
by Client is owned or licensed by Client and that such information may be
used pursuant to this Service Agreement without violating the rights of
any third party or applicable law. Client warrants and represents that
lists all lists are composed of permission-based customers.
- All other information shared between Client and Etracks will also remain
strictly confidential including, but not limited to: email content,
response activity, sales figures, database size, and service fees.
- Etracks agrees to indemnify Client from any losses resulting to it/them by
reason of breach of any representations, covenants or warranties contained
in this agreement. Client agrees to indemnify Etracks from any losses
resulting to it/them by reason of breach of any representations, covenants
or warranties contained in this agreement
- Notwithstanding any other provisions in this Agreement/Proposal, no claim
may be made by either Client or Etracks against the other, or any parent,
affiliate, officer, director, employee, agent or attorney of such part,
for any special, indirect, consequential, or punitive damages in respect
of any breach or wrongful conduct (whether the claim is based on contract
or tort or duty imposed by law) arising out of or related to the terms of
this Agreement or any act, omission or event occurring in connection
therewith, including the termination of this Agreement. Client and Etracks
hereby waive, release and agree not to xxx upon any claim for such
damages.
- Client shall not use Etracks' proprietary services including AP
Tracking-TM- service (the "Service") in any manner that violates
applicable law. Client shall only use the Service in connection with its
own network servers or with the express permission of the owner/operator
of a third party's network server. Client shall indemnify Etracks fully
for any cost, liability, or harm suffered by Etracks as a direct or
indirect result of Client's breach of the foregoing.
- All unsubscribe requests that it is not determinable what database the
user is placing his unsubscribe request will be applied to all databases
owned by the client.
- All unsubscribe requests collected through the Etracks system will be
applied to the corresponding database. For example, if someone
unsubscribes from National Brands they will be unsubscribed from National
Brands only and no other databases.
- Etracks at its sole discretion may suppress mailing to any address in the
Clients databases whenever it deems it necessary based on Etracks' current
business practices.
- Client will respond to all complaints including user complaints forwarded
by Etracks within 1 business day of receipt from Etracks.
The undersigned parties have read and agree to the terms and conditions ser
forth in this Etracks Service Agreement.
Xxxxxxx.xxx, Inc. Traffix Inc.
000 Xx Xxxxxx Real Xxx Xxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000 XX Xxx 0000
Xxxxx Xxxxx, XX 00000
/s/ XXXXX XXXXXXXX /s/ XXXXXX XXXXXXXX
---------------------------------------- ----------------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
Title: President Title: COO
By: Date: 4/1/02 By: Date: 4/1/02
