IMPORTANT - READ CAREFULLY:

These "Terms of Use" (sometimes referred to as this "Agreement") constitutes a legal agreement between you and Optimizer HQ Limited(T/A Optimizer HQ ) ("Maxmail," "we," or "us"). You are a customer ("Subscriber") (or will become a subscriber if you agree to our Terms of Use by clicking below). The "Term" is the time during which you are entitled to use our website to create and send out electronic newsletters, online surveys, SMS marketing Messages and other digital content. If an individual purports, and has the legal authority, to sign these Terms of Use electronically on behalf of an employer or client, "you" refers to the employer or client. If not, "you" refers to the individual signing hereon. You are responsible for assuring that all the terms and conditions of this Agreement are complied with. By clicking the button to join Maxmail, you will be agreeing to the terms of this Agreement. Furthermore, by clicking that button, after typing in your username, or other indication of your identity, you do confirm to us that typing in such indication of identity constitutes your "signing" of this Agreement for all purposes under applicable law. Any individual clicking the button on behalf of another individual or entity, listed as the Subscriber above, does hereby represent and warrant that such agreement is being made with full authority.

The Most Important Sections

• Anti-SPAM Related Rules
• How are we protecting ourselves against SPAM
• What happens if you breach our Terms

Maxmail Terms of Use

WARNINGS OF SERIOUS LEGAL CONSEQUENCES

Warning: Under Section "15" of these Terms of Use, if you engage in certain conduct, such as violating laws that regulate sending out and the content of bulk email, try to take advantage of us in violation of our Terms of Use by taking such actions as using our servers to host images for your website, instead of just emails you send using Maxmail, sending out emails created using Maxmail through another service or failing to pay an amount you owe us, we will be entitled to collect from you the higher of a pre-set amount or a multiple of your charges for one year on an annualized basis (which is a reasonable pre-estimate of the actual damages we would likely suffer from such conduct) plus attorney fees. We offer very powerful tools at a very low price. In exchange we expect our customers to act with integrity and follow our rules in order to help us maintain our reputation as having customers who only send bulk email to people who have consented to receiving them or with whom they have had a relationship from earlier selling or licensing (or negotiating to sell or license) a product or service and to not otherwise abuse our system.

Part 1

(Applies to All Subscribers of Maxmail)

1. Who We Are:

"Maxmail" is a trade name and registered service mark of Genesis Interactive, a New Zealand based limited liability company, that owns and operates the website with the URL: http://www.MaxmailHQ.com (the "Website").

2. Purpose:

The purpose of these Terms of Use (this "Agreement") is to set forth the terms and conditions under which you are permitted to use our email/electronic newsletter creation, distribution and management system (the "Services"). Any email, including but not limited to any email newsletters, and online survey participation requests, sent out using the Services, are referred to herein as an "Email".

3. Changes:

We reserve the right to change any of the terms of this Agreement by posting the revised Terms of Use on our Website and/or by sending an email to the last known email address you have given to us. Unless the Term is terminated within ten (10) days, this new Agreement will be effective immediately with respect to any continued or new use of the Services.

4. Eligibility:

We require that any Subscriber be at least eighteen (18) years of age. By using the Services, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Services does not violate any applicable law or regulation. Your uploads may be deleted and your subscription may be terminated without warning, if we have reason to believe you are under eighteen (18) years of age.

5. Charges and Payments:

A. Monthly Plans

5.1 Charges for monthly plans are posted on our Website and may be changed from time-to-time. Payments are due for the full month for which any part of the month is included in the "Term." Payments are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly payment (the "Pay Date").

5.2 As long as you are a Subscriber or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.

B. Refunds

5.3 We do not provide any refunds.

6. Term, Termination and Removal:

Either party may terminate the Term of this Agreement at any time for any reason by providing notice to the other party. We may suspend our services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment or reimburse you for unused email credits if we terminate you without cause. We will not refund and/or reimburse you in such manner, if there is cause, such as your using our system to send bulk Emails to people with whom your relationship does not meet the requirements of 11(b) below. Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our website and any other storage.

7. Account and Password:

You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.

8. Proprietary Rights Owned by Us:

You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.

9. Proprietary Rights Owned by You:

You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.

10. General Rules:

You agree to the following:

(a) You will not incorporate into your Email any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email or you are not otherwise permitted to use.

(b) You will not post on the Website, including in any Emails created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.

(c) You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.

(d) You will not share your password.

(e) You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.

(f) You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party's rights, including, but not limited to, copyrights and privacy and publicity rights.

(g) You consent to receiving occasional email communication from us concerning your account, upgrade offers, educational information and/or blog updates.

11. Anti-Spam and Abuse Related Rules:

You agree to the following:

(a) Definition of SPAM: We have adopted the definition of Spam set forth on the Spamhaus website at http://www.spamhaus.org/definition.html. The first line of the Spamhaus definition reads:
The word "Spam" as applied to Email means Unsolicited Bulk Email ("UBE").

It is a concern to us if you use Maxmail to send any unsolicited email to anyone with whom you have no relationship. It is much more of a concern, and more likely to cause our system to be blocked by various ISP's, for you to send an unsolicited email to an entire list of people you don't know.

(b) Permission Lists Only: You may use Maxmail only to send Emails to individuals and entities that either:

Possibility 1 - Consent Obtained

(A) Gave or give you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission and either:

(i) Consent Given Recently gave you the permission within the prior 12 months; or
(ii) Consent Given More Than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months; or

Possibility 2 - Sold or Negotiated to Sell Product or Service

(B) Gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:

(i) Recent Sale or Negotiation such sale or negotiations occurred within the previous 12 months; or
(ii) Sale or Negotiation Occurred More than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months.

If you send Emails to a list, and you get an unusual amount of SPAM complaints (more than 1 out of 1,000), ISPs will begin blocking future emails from your company. They will also request (that's putting it mildly) that Maxmail shut down your account. So if you don't have proof that each recipient on your list has opted-in to receive your emails, or otherwise meets the above requirements, don't import them into Maxmail.

(c) Requirements: You agree that you will use:

• No purchased lists (no matter how expensive).
• No rented lists (even if they "opted in").
• No 3rd party lists whatsoever.

You should only use Maxmail to send newsletters, updates, and promotions to people who specifically requested email from you, or otherwise meet the requirements of 11(b) above. Don't have a permission list yet? Maybe your company’s too new and you have no customers. Feel free to set up a Maxmail account, run through the List Setup Wizard, and add a signup form to your website so that you can grow your list.

(d) We're In This Thing Together: We do what we can to keep our system clean, but you agree to pitch in too. Here's how:

• Sending your first campaign to an old list? Many recipients won't remember you, and will report you for spamming. Do everything in your power to remind them of who you are, and how they got on your list.
• Clean your customer list before you import. Take out any addresses older than 6 months. Bad addresses lead to bounce backs. Too many bounce backs, and ISPs block Maxmail (and you). We'll shut your account down if you import an old list that gets too many bounces.
• Don't just import your entire Outlook Address Book. Export them into a spreadsheet, take some time to clean out bad addresses (like Sales@Amazon, or Support@Comcast). If you import even one address by mistake, that person can get you blacklisted and shut down.
• Importing from a CRM? Make sure you setup custom fields to break it into separate segments or interest groups so you can send relevant content to your customers ("We met at a tradeshow, you bought xyz from us in the past, you are a client of..." etc). Don't just mix a bunch of different lists together and send one "blast" to all of them.
• Sending on behalf of a client? Educate your client about responsible email marketing. They're depending on you to be the expert.

(e) CRM and API Imported Lists CRM tools are great for maintaining relationships with prospects and leads, then converting them into paying customers, or just nurturing your customer relationships. But CRM tools are built for one-to-one communication. Email marketing tools like Maxmail are built for one-to-many communication. They are not the same. Spam laws apply when you do one-to-many email marketing.
Before importing any list into Maxmail from your CRM or any other database you maintain, understand our permission-lists-only rules. Remove any prospects or leads that did not explicitly request email marketing from you or otherwise meet the requirements of 11(b) above. Even if you're sending email marketing to customers who have consented to receive your Email, you are still required, under applicable law, to allow them to opt-out of your email marketing list (you may need to turn that feature ON in your CRM tool). The simple fact that a recipient is "in my CRM" is not the same as "they gave us permission to send them email marketing."

(f) Prohibited Content and Industries. Don't use Maxmail to send anything offensive, to promote anything illegal, or to harass anyone. You may not send:

• Pornography or other sexually explicit Emails
• Emails offering to sell illegal substances
• Emails that violate the CAN-SPAM Law

(g) Who Can Use Maxmail. If you do not meet these eligibility requirements, you may not use the Maxmail service:

1. You must be at least 18 years of age, and be able to form legally binding contracts under applicable law.
2. You must complete the registration process and agree to the terms of this Agreement. All contact information you submit must be true, complete, and up to date.
3. Maxmail does reserve the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, in its sole discretion.

(h) Bandwidth Abuse: Image hosting, API, Tracking. You may not use our bandwidth for anything other than your Maxmail email marketing. In this regard, you agree to the following:

• Unlike some other email marketing services, we provide image hosting for your email campaigns totally free. This doesn't mean you can host images on our servers for other uses, like your website. If we detect that you're using our hosting services for anything other than your email campaigns, we have the right to delete the image. Depending on your intent, we may even replace the image with something you don't want to see.
• Not to build a campaign in Maxmail, then send it using some other delivery tool. Yeah, we can see when that happens. If you do that we may, and reserve the right to, shut your account down, replace all images in your campaign, and redirect all hyperlinks to point somewhere else. You may not like the replacement images.
• If you integrate with Maxmail using our API, you must use efficient programming, which will not cause too many requests to be made in too short a period. We reserve the right to throttle your API connections, or suspend or terminate your Maxmail account.

(i) Fees, Refunds, Account Suspensions, Etc. You agree:

1. Maxmail reserves the right to change our fees at any time by posting a new fee structure to our Website.

2. If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.

3. If, for some reason, we are unable to process your credit card order, we will attempt to contact you by email and we will suspend usage of your account until your payment can be processed.

4. You agree to pay for your account even if messages are blocked by any third party (we have no control over your recipients' email servers, ISP availability, personal spam filter settings, etc)

(j) Avoiding Spam Related Problems. As an email marketing service provider, we feel it's our duty to be extra vigilant about preventing spam related abuses. It's not just bad for the Internet community in general---if illegal and/or abusive spam gets sent from our system, we'd get blocked by all major ISPs, which would make our system useless for the thousands of users who depend on us.
It's in our best interest to keep our system clean, because our reputation and deliverability depends on it. So here's what we do:

Right to Review Email Campaigns

We, including our employees and independent contractors, are permitted to copy and transmit copies of the content from your email campaigns to develop algorithms, heuristics and computer programs ("Tools") to help us more efficiently spot problem accounts and to use such Tools, together with personal viewing by employees and or independent contractors, to uncover Subscribers who violate either these Terms of Use or applicable law.

Feedback Loops w/ISPs

Maxmail has been delivering emails since 2007, and has established relationships with most major ISPs. They know us. We know them. We're on feedback loops (FBL) and reporting systems with most ISPs and anti-spam organizations:

When a recipient clicks their "this is spam" button in their email program, a FBL report is sent to us. We analyze the data, trace it back to the sender that caused the complaint, remove the complainer from the sender's list, and track future complaints about that campaign. If complaints exceed a reasonable threshold based on list size, we take appropriate action (which sometimes means permanently shutting down a Maxmail account) to keep our servers clean and off blacklists. To prevent this from happening to you, please read section 11(d) (e) and (f) above.

Reporting Abuse

We take abuse reports seriously at Maxmail. If you've received spam that you think came from a Maxmail user, we want to hear about it. Please report the fact that you received spam from what appears to be a Maxmail user to us by emailing support@optimizerhq.com

Report Bad Senders

Every campaign sent from Maxmail has an embedded Campaign Tracking ID (CID) in the email's header that makes it easy for recipients to report suspected spam.
If the campaign you received does not contain a CID, it didn't come from Maxmail. It was probably just spoofed to look like it came from Maxmail (something that inevitably happens to everyone online). Learn more about spoofing.

Account Audit Policy

Because of one of the major causes of ISP level blocking, we've implemented a new Tool that allows us to check if the email addresses imported in your list are valid email addresses. This Tool is activated in two cases.

1. When the list you import has more than 5,000 subscribers in it
2. If we believe your lists are not "clean"

The list cleanup Tool runs straight after you have imported a list and if the total number of "bad" addresses exceeds 25% then your account will be referred to our Audit Team whereby you will need to provide us with some additional information that will help us validate your account. Until the audit is complete, you will not be able to send any campaigns from Maxmail. In most cases, the Audit results in the account being re-instated within 48 hours with specific recommendations as to how you can import clean lists in future. One way to avoid account audits and suspension is to make sure the list you are importing is

1. Clean
2. Is a Permission List
3. Has been processed with previous bounce-backs.

12. No Warranties:

To the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.

13. Limitation of Liability:

To the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and the services including any downloads from the website. Under no circumstances shall we or any of our employees or representatives be liable for any indirect, punitive, special or consequential damages even if we or any of our employees or representatives have been advised of the possibility of such damages. Our total liability in any event is limited to the amount, if any, actually paid by you for use of the website and the services for the one month period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation

14. Indemnity:

You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims not permitted under this Agreement due to a "Limitation of Liability" or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this Website or the Services. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.

15. Liquidated Damages:

The parties agree that we may recover liquidated damages, in lieu of any other damages that may have been recoverable, for certain types of breaches of these Terms of Use, which we refer to as "Abusive Conduct." Liquidated damages are being made available for specified situations in which proving the actual damages would likely be impossible. The liquidated damages are being set at a reasonable pre-estimate of the damages that would be incurred as a result of the particular type of breach. The particular type of breaches that constitute Abusive Conduct and the liquidated damages for each type are as follows:

	ABUSIVE CONDUCT	LIQUIDATED DAMAGES
(a)	violations of provisions of this agreement designed to avoid Maxmail being viewed as a source of spam such as sending emails to people who have not consented to receiving bulk emails from you in the immediately preceding 12 months and to whom you are not otherwise authorized to send emails under 11(b) above; sending emails offering the types of products or services set forth in 11(f) above; or sending emails that include false or misleading headings or other content or otherwise violate anti-SPAM laws, i.e., laws that restrict and regulate the sending of bulk emails.	Five times the total of our then current monthly charges over a period of 1 year (i.e. 5 times 12 times our monthly charges), but not less than $900. Example: If your monthly plan is set at $25/mth the damages will be $25x5x12 = $1,500
(b)	violations of provisions of this Agreement designed to protect Maxmail from its users taking actions to use Maxmail's resources in a way not permitted hereunder such as using our Services to host images other than for Emails you send out using the Services such as for your website; or sending out any Emails created using the Services, other than via the Services.	Four times the total of our then current monthly charges over a period of 1 year (i.e. 4 times 12 times our monthly charges), but not less than $720. Example: If your monthly plan is set at $25/mth the damages will be $25x4x12 = $1,200
(c)	not paying an amount due within ten (10) days after a demand by us.	Three times the total of our then current monthly charges over a period of 1 year (i.e. 3 times 12 times our monthly charges), but not less than $540 in addition to the sum owed. Example: If your monthly plan is set at $25/mth the damages will be $25x3x12 = $1,500

16. Attorney Fees:

In the event we file an action against you claiming you breached this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney's fees in addition to any damages or other relief which we may be awarded.

17. Disclaimers:

We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.

18. Reporting Violations:

If you become aware that any other person is violating any of the terms and conditions of this Website, please notify us immediately. If you believe that any person has posted material in violation of any copyrights that you may have, you may notify us in accordance with our Copyright Policy. If you believe that any user of this Website has posted materials in violation of any other rights that you may have, you may notify us in accordance with our Removal Policy.

19. Assignments:

You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity at our discretion.

20. Compliance With Law:

In using the Services, you agree that you will comply with all applicable laws.

21. Applicable Law and Jurisdiction:

This Agreement will be governed by the laws of New Zealand. Except as otherwise provided in this Section below, each of the parties does hereby agree that any dispute related to this Agreement, any other agreement between the parties, the Privacy Policy or the Services, will be decided by the courts of New Zealand and agrees that that party is subject to the jurisdiction of such courts in such locality.

Part 2

(Applies to All Subscribers to the extent they Use Maxmail to Send Any Form of Email to Residents of the European Economic Area ("EEA") Which Is Composed of the Subscribers of the European Union ("EU") Together with Iceland, Norway and Liechtenstein)

22. Warranties of Compliance:

22.1 You represent and warrant that in compiling your Email distribution list, sending Emails via the Maxmail Services and collecting information as a result of individuals visiting your website or otherwise, with respect to your customers and potential customers who reside in the EEA, you:

(a) Will have clearly described, and will continue to clearly describe, in writing how you intend to use any data collected, including for sending Emails if you obtain express consent from your customers and potential customers to use the data in that manner, and include an express consent to transfer the data to Maxmail as part of this process, and otherwise comply with whatever privacy policy you have posted.

(b) Represent and warrant that you have complied, and will comply, with all data protection and privacy laws and regulations applicable to the countries in which you are sending any form of email via Maxmail including, for example, with respect to the United Kingdom, the Data Protection Act, and the regulations relating to the European Union Privacy and Electronic Communications Directive. In this regard, you represent and warrant that you have collected, stored, used and transferred all data relating to any individual in accordance with all data protection laws and regulations relating to the country in which such individual resides and obtained all necessary consents to enable Maxmail to receive and process that data and forward communications to that individual on your behalf.

You further agree to indemnify and hold us harmless from any losses, including attorney fees, resulting from your breach of any part of the foregoing warranties.

Part 3

(Additional Provisions Applicable to All Subscribers)

23. Miscellaneous:

23.1 NO Consent Required: Once your trial account expires, you may receive upgrade and promotional offers for up to two (2) years without there being a need for us to reconfirm your consent to receive such information. However, if, at any stage you express your desire to opt out of receiving such communication, you may do so by either clicking on the "Opt out" link in the email (if available) or by replying with "STOP" in the subject line to the email you received opting you out from receiving any such information in the future.

23.2 Force Majeure. We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slowdowns over the internet or any third party internet service providers.

23.3 Survivability. The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.

23.4 Severability. The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.

23.5 Interpretation. The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.

23.6 Amendments. No amendment or other change of this Agreement shall be effective except as either expressly permitted under these Terms of Use or agreed to in writing between the parties.

23.7 Privacy Policy. You agree that we may access, collect, use and disclose your information as set forth in our Privacy Policy. In this regard the terms of the Privacy Policy are to be treated as if they were added to and part of this Agreement and shall be binding on all parties hereto.

23.8 Further Actions. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.

23.9 Notification of Security Breach. In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a "List"), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.

23.10 Amendments. No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.

23.11 No Changes in Agreement at Request of Subscriber. Because of our huge number of Subscribers, we cannot, as a practical matter, change this Agreement for any one Subscriber or group of Subscribers. If we did that, keeping up with the changes alone would be a logistical nightmare. In addition, one reason we are able to offer one of the most powerful email/electronic newsletter creation, distribution and management systems at a low price is that we are able to use this Agreement to reduce our financial risks.

23.12 Entire Agreement. The terms of the Privacy Policy posted on this Website are incorporated by reference herein. This Agreement, including such policy which is incorporated by reference herein, embody the entire agreement and understanding of the parties, and supersedes all prior agreements, representations and understandings between the parties hereto, relating to the subject matter hereof.

Last Updated: December 12, 2011