MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT is entered into between Postie, Inc. (“Postie”) and the Customer (“Customer”) and governs the use of the Services.  By entering into an Order Form, checking a box indicating your acceptance, or otherwise accepting this Agreement, you agree to be bound by the terms of this Agreement.  If you are entering into this Agreement on behalf of a Company or other legal entity, you represent that you have the authority to enter into this Agreement on behalf of the entity.

Direct competitors may not access the Services without Postie’s prior written consent.

This Agreement was last updated on April 8, 2019.

1.              Provision of Services.  Subject to Customer’s compliance with the terms and conditions set forth in this Agreement and any applicable Order Form, Postie will (a) make available to Customer its website and related technology platform owned or licensed by Postie during the Term (the “Site”), and (b) perform the services as described in the applicable Order Form (collectively with the Site, the “Services”).

2.              Use of Services.

2.1            Authorized User. This Agreement governs Customer’s use of the Site and the data, content and services available on the Site and Postie’s tracking pixel, SDK and server integration that Customer may use on Customer’s Website (as defined in Section 3.1 below), mobile application, database and/or servers. Each Authorized User (“Authorized User(s)” means one or more individuals who have been authorized by Customer to use the Services on behalf of Customer) shall create a user account.  This enables Authorized Users to access the Services at any time during the Term.  Authorized Users must protect their username and passwords, and not make them available to persons or entities not authorized to use the Services on behalf of the Customer.  Customer will (a) be responsible for Authorized Users compliance with this Agreement and liable for any Authorized Users breach thereof, (b) comply with all laws applicable to the operation of, content on and data privacy and security related to Site, including all privacy statement requirements, (c) use commercially reasonable efforts to prevent unauthorized access to, use of or reproduction of the Services, and notify Postie promptly of any such unauthorized access, use or reproduction, (d) use Services only as permitted in this Agreement and by applicable laws, (e) advise its employees, agents and contractors who have access to the Services of the restrictions in this Agreement, and (f) comply with terms of service of any non-Postie application with which Customer uses Services.

2.2            Compliance with Applicable Laws.  Postie will comply with all applicable laws relating to its performance of Services hereunder.  Customer will comply with all applicable laws relating to its business and exercising its rights under this Agreement, including any applicable privacy laws and regulations. 

3.              Customer Responsibilities

3.1            Advertisement, Customer Data and Customer Website.  Customer will be solely responsible for (a) its advertisement (“Ad”) and customer data that is uploaded to the Services, collected through Postie’s tracking pixel (the “Pixel”) or otherwise processed by or for Customer using the Services (collectively “Customer Data”), (b) Pixel use decisions, the use of Ad server tags and Ad targeting decisions, (c) its use of the SDK or server integrations, (d) any website to which an Ad directs its targeted recipients as chosen by the Customer (its “Audience”) and any website on which it uses the Pixel (“Customer Website”), (e) advertisement servers and research vendors (other than Postie) that it uses in connection with the Services, Customer Data or Customer Website, and (f) products and services advertised in the Ads or on Customer Website, and any other Customer products and/or services.  Customer will be solely responsible for the accuracy, quality and legality of its Ads and Customer Data and the means by which Customer acquired the same. Customer agrees that its use of the Pixel, SDK and server integrations and its use and disclosure of Customer Data will comply with all applicable laws and industry organization notice and consent requirements.  Customer may not (and may not permit any third party to) alter any ad tags or the Pixel or server integrations made or provided by Postie.  Further, Customer agrees that Customer’s Website will comply with all applicable laws, including all privacy statement and notices and consent requirements related to, and necessary to disclose, the tracking mechanisms and other activities contemplated by this Agreement. 

3.2            Restrictions.  Customer will not (a) make any Services available to, or use any Services for the benefit of, anyone other than Customer, for compensation or otherwise, (b) use Services to store or send infringing, libelous or otherwise unlawful, hateful, offensive or otherwise objectionable material, or material that is harmful to minors in any way, (c) use Services to store or send material in violation of third party privacy rights or other rights, (d) transmit any virus, worm, spyware, Trojan Horse or other malicious code to the Services, (e) interfere with the integrity or performance of any Services or any networks or computer systems used to provide the Services, or any other Postie customer’s use of the Services, (f) attempt to gain unauthorized access to any Services or networks or computer systems used to provide the Services, (g) modify, translate, copy or create derivative works of the Services, or any part, feature, function or user interface thereof, except as expressly permitted herein, (h) access any Services in order to build a competitive product or service, (i) decompile, disassemble, reverse engineer or reduce to human-perceivable form any Services (to the extent such restriction is not prohibited by law), (j) attempt to remove, modify or obscure any proprietary notices on the Services, (k) have any right to receive the code for the Services,  (l) harvest or collect information or data regarding other users of the Services, or (m) upload any prohibited data to the Services, including (i) individual medical or health information, including any information comprising “Protected Health Information” under the Health Insurance Portability and Accountability Act; (ii) security codes, passwords, credit or debit card numbers or other financial information; (iii) data regarding residents of jurisdictions outside of the United States of America; (iv) information regarding individuals under thirteen (13) years of age; and (v) information concerning a natural person’s (a) sex life or sexual orientation, (b) racial or ethnic origin, (iii) genetic or biometric data, (c) political opinions, (d) religious or philosophical beliefs, or (e) trade union membership.

3.3            Removal of Data and Content.  Postie may remove data or content from the Services if Postie has a good faith belief that the data or content violates any of the restrictions set forth in Section 3.2.

3.4            Suspension.  If an Authorized User is in breach of this Agreement, without limiting Postie’s other rights or remedies, Postie may suspend the Authorized User’s use of the Services immediately until the violation no longer persists.

3.5            Consumer Inquiries/Consumer Care.  Customer is solely responsible for consumer notice and obtaining any required consumer consent under applicable law with respect to its Customer Data and honoring such choices. Customer will be responsible for accepting and responding to any communication initiated by an end user customer. No reference to Postie in written or oral communication to a consumer or in scripts used by Customer in responding to consumer inquiries will be made without Postie’s prior written approval.

4.              Confidentiality.

4.1            No Use.  During the Term, each party will at all times, keep and hold all Confidential Information of the other party in the strictest confidence, and will not use such Confidential Information for any purpose, other than as may be reasonably necessary for the performance of its duties pursuant to this Agreement, without the other party’s prior written consent.  In addition, each party will maintain and protect the confidentiality of Confidential Information in a manner consistent with all applicable laws.  In addition to any materials Postie may identify as Confidential Information, Postie also deems its technology and data as Confidential Information and said property shall be safeguarded as such by Customer. The terms and conditions of this Agreement will be deemed to be the Confidential Information of each party and will not be disclosed without the written consent of the other party. 

4.2            No Disclosure.  Each party will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement, and it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

4.3            Exceptions.  Notwithstanding the foregoing, each party may disclose Confidential Information of the other party (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by applicable law; so long as such party first provides the other party as much notice as reasonably practicable under the circumstances and cooperates with the other party’s efforts to limit the extent of such disclosure, or (b) on a "need-to-know" basis under an obligation of confidentiality no less restrictive than those set forth in this Section and to its authorized agents, employees, third party contractors, consultants, subcontractors, legal counsel, accountants, banks and other financing sources and their advisors.  Any such compliance by each of the persons referenced in the preceding sentence with the confidentiality obligations as set forth in this Section will remain the responsibility of the party employing or engaging such persons. 

5.              Trigger Campaigns.

5.1            Cancellations. Customer may cancel an Order Form at any time prior to approving the proof of the Ad for mailing. If Customer approves the proof of an Ad for mailing, Customer acknowledges that (a) Postie may print and mail the Ad to its Audience, and (b) Customer will have no right to cancel or receive a refund for such Services. Additionally, Customer may purchase a “Trigger Campaign”, which is an order for Postie to send a previously-approved Ad based on the action of a website or app user, or another “trigger” designated by Customer.  Customer may cancel or pause a Trigger Campaign, and Postie will use reasonable efforts to cancel or pause the Trigger Campaign within forty-eight (48) hours of the cancellation or pause action.  Customer acknowledges that during such forty-eight (48) hour period (a) Postie may continue to print and mail the Ad to Customer’s Audience that falls within the “trigger”, and (b) Customer will have no right to cancel or receive a refund for the charges that accrue during such period.  Any permitted cancellation or pause must be made online through the Services or by written notice to Postie. Upon Customer’s request, Postie may place the Pixel or server integrations on Customer’s Website.  Postie will have no liability for excessive or fraudulent activity or other interactions with an ad triggered by events on Customer’s Website.  Customer shall not obscure or manipulate the reach count.  Postie’s reach count will be definitive.

6.              Fees and Payment.

6.1            Fees and Expenses.  Customer will pay all fees and expenses specified in the applicable Order Form. Except as otherwise specified in this Agreement or in the applicable Order Form (a) fees and expenses are based on Services purchased and not actual usage, (b) payment obligations are non-cancelable and fees and expenses paid are non-refundable, and (c) prices are stated in U.S. dollars.

6.2            Invoicing and Payment.  Fees and expenses will be charged in advance and otherwise in accordance with the relevant Order Form. 

6.3            Late Payments.  If any invoiced amount is overdue, then without limiting Postie’s other rights or remedies, Postie may assess late payment interest on those charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.  Customer will reimburse Postie for all reasonable costs of collection and Postie may suspend or terminate access to the Service until such amounts are paid in full. 

6.4            Taxes.  Postie's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Customer is responsible for paying all Taxes associated with its purchases hereunder.  If Postie has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 6.4, Postie will invoice Customer and Customer will pay that amount unless Customer provides Postie with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, Postie is solely responsible for taxes assessable against it based on its income, property and employees.

6.5            Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Postie regarding future functionality or features.

7.              Proprietary Rights and Licenses.

7.1            Customer Data. Customer shall own all right, title and interest in and to the Customer Data and Ads, which shall not be deemed to be the Site, Service, Documentation, or other technology, even if delivered or incorporated therewith.  Postie shall not be responsible or liable, in any way, for the deletion, destruction, damage or loss of any Customer Data through no fault of Postie or its providers. 

7.2            Postie Intellectual Property. Except for the limited rights granted to Customer hereunder, Postie exclusively owns and shall retain all right, title and interest, including all related copyright, trade secret, trademark and patent rights, and all other intellectual property or proprietary rights in and to, or related to, the Site, Services, Documentation, or other technology, including all software programs contained therein and derivatives thereof; provided, however, that any third-party intellectual property incorporated into the foregoing shall remain the property of the third-party owner thereof.  Customer agrees and acknowledges that Postie shall have an unrestricted right to incorporate into the technology and the Service all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any Authorized User, and the technology and Service, as updated, upgraded and modified, shall be owned exclusively by Postie.  Postie will not be obligated to credit Customer or its Authorized Users for such feedback or hold any such feedback in confidence.

7.3            Permission to Use Services.  Subject to the terms of this Agreement, Postie hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Site and Services ordered by Customer, subject to the terms and conditions of this Agreement and applicable Order Form, solely during the Term, and solely for Customer’s lawful distribution of direct mail.

7.4            Permission to Use Customer Data. Subject to the terms of this Agreement Customer hereby grants Postie a non-assignable (except as expressly permitted by Section 13.12), non-transferable, revocable license, during the Term of the Agreement, to host, copy, process, transmit and display Customer Data, solely as necessary for Postie to provide the Services in accordance with the Agreement. 

7.5            Aggregate Data. Postie may aggregate Customer Data with data from other Postie customers or third parties to create anonymous aggregated data that does not identify Customer or its end user customers for the purpose of preventing and fixing technical problems with the Services, and with respect to aggregate data derived in whole or in part from Customer Data, improving the Services, adding to the data (provided other Postie customers will not be able to view Customer Data), and creating and commercializing statistics, models and analytics.

8.              Protection of Customer Data

8.1            Security. Postie will ensure that reasonable safeguards are in place that is designed to preclude unauthorized access, use, modification or disclosure of Customer Data Security Breach. The safeguards will include reasonable access controls, encryption, firewalls, the maintenance of an information security program and annual information security audits. “Security Breach” means unauthorized access, use, modification or disclosure of Customer Data. Postie will inform Customer promptly in writing of any Security Breach involving Customer Data of which Postie becomes aware within forty-eight (48) hours or sooner if required by law.

8.2            Back Up; Deletion of Data.  Subject to Section 12.3, Customer is responsible for backing up, on Customer’s computer systems, all Customer Data loaded into the Service.

9.              Representations, Warranties, Exclusive Remedies and Disclaimers.

9.1            Mutual Warranties.  Each party represents and warrants to the other that it is authorized to enter into this Agreement and will not be in violation of any other contractual commitment or other obligation by complying with the obligations under this Agreement.

9.2            Postie Warranty.  Postie warrants that (a) the ordered Services will conform in all material respects to any description of the Services in the Order Form; and (b) Postie has the right to allow Customer to use the Services for its intended purpose as specified in the applicable Order Form. If Postie breaches the warranty set forth in Section 9.2(a), Customer’s sole and exclusive remedy, and Postie’s entire liability, will be, at Postie’s reasonable discretion, to provide Customer with a credit for the amount paid for the non-conforming Services, or should there be no invoice to apply the credits to, for example, in the case of termination, a refund. This limited warranty will not apply to the extent the nonconformity was caused by Customer’s abuse or misuse of the Services. In order to receive a credit, Customer must notify Postie in writing of the non-conformity of the Services within thirty (30) days after the non-conforming deliverable is sent.

9.3            Customer Warranties.  Customer warrants that (a) it has the right to provide the Ads and Customer Data to Postie and allow Postie to use the Ads and Customer Data to provide the Services; and (b) the sending of an Ad to Customer’s designated Audience as permitted by Customer will not violate Customer’s privacy policy, terms of service, or the privacy rights of any end user customer.

9.4            DISCLAIMERS.  EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN AN ORDER FORM, NEITHER POSTIE, AND ANY LICENSOR NOR CUSTOMER MAKES ANY REPRESENTATION, WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND POSTIE, ON BEHALF OF ITSELF AND ALL LICENSORS, DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  EXCEPT AS OTHERWISE SET FORTH HEREIN, POSTIE DOES NOT REPRESENT OR WARRANT THAT (A) THE SERVICES WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE, ACCURATE, COMPLETE OR COMPLETELY SECURE, (B) ALL DEFECTS IN THE SERVICES (IF ANY) WILL BE CORRECTED, (C) THE SERVICES (IF ANY) WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (D) CUSTOMER WILL INCREASE SALES OR ACHIEVE ANY PARTICULAR RESULT. THE SERVICES MAY BE SUBJECT TO TRANSCRIPTION ERRORS AND IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS.  POSTIE SHALL NOT BE DEEMED TO BE IN BREACH OF ANY REPRESENTATION OR WARRANTY TO THE EXTENT THAT SUCH BREACH RESULTS FROM THE ACT OR OMISSION OF A THIRD PARTY. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

10.            Indemnification.

10.1         Mutual Indemnification. Each party shall indemnify, defend and hold harmless the other, its employees, licensors, officers, directors, agents, affiliates, from and against any losses arising out of or resulting from (i) third party claims (including governmental claims) resulting from the breach of a party’s respective representations and warranties (except as otherwise set forth in Section 9.2(a)); (ii) third party claims (including governmental claims) resulting from the breach of a party’s respective obligations set forth in the Agreement regarding privacy or the protection of Customer Data or Services, as applicable; and (iii) with respect to Customer, any damages arising from or relating to the Customer’s Website, including its privacy policy or Customer’s product or service.

10.2         Intellectual Property Indemnification.  Each party shall indemnify, defend and hold harmless the other, its employees, officers, directors, agents, affiliates, from and against any losses arising out of or resulting from any kind of misappropriation or infringement, trademark, copyright, right of publicity, trade secret or other similar right of any person or entity (the “Indemnified Materials”).  Notwithstanding the foregoing, a party shall have no liability for the Indemnified Materials under this Section 10.2, to the extent a third party claim, demand, cause of action, debt or liability is based upon (i) the combination of any Ads or Services, as applicable, with any other products, services, hardware, software, data or other materials not provided by the infringing party where such combination is the sole cause of such infringement; (ii) the use of  Ads or Services, as applicable, other than in accordance with all written instructions and documentations; or (iii) any infringement arising out of Services used by Customer outside of the United States.

10.3         Indemnification Procedure. A party's obligation to indemnify the other under this Section is subject to the indemnified party notifying the indemnifying party promptly in writing of any claim as to which indemnification will be sought and providing the indemnifying Party reasonable cooperation in the defense and settlement thereof, at the expense of the indemnifying party.  In each case the indemnifying Party will have the exclusive right to defend any such claim (provided, however, that the indemnified party will have the right to assume such defense at the expense of the indemnifying party if the indemnifying party fails to timely provide the defense required by this Section 10), however the indemnifying party may not settle or compromise such claim without the prior written consent of the indemnified party if such settlement would admit liability or impose any obligation on the indemnified party.  The indemnified party may, at its sole cost and expense, participate in the defense of a claim with counsel of its own choosing.

10.4         Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim described in this Section 10.

11.            LIMITATION OF LIABILITY AND CLAIMS.

11.1         LIMITATION OF LIABILITY.  NEITHER POSTIE OR IT’S LICENSORS WILL BE LIABLE UNDER THIS AGREEMENT OR ANY ORDER FORM FOR ANY LOST INCOME OR LOST PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER FOR TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER OR NOT FORESEEABLE AND HOWEVER RISING, AND EVEN IF POSTIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POSTIE’S AND ITS LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER FORM, WHETHER FOR TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNT CUSTOMER PAID TO POSTIE FOR THE SERVICES SET FORTH IN THE ORDER FORM TO WHICH THE CLAIM RELATES. THE LIMITATIONS HEREIN WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS HEREIN ARE REASONABLE AND A BASIS OF THE BARGAIN, AND THAT POSTIE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT CUSTOMER’S AGREEMENT TO SUCH LIMITATIONS.

12.            Term and Termination.

12.1         Term. This Agreement commences on the Effective Date and continues until terminated as permitted herein. Either party may terminate this Agreement for convenience at any time that there is no outstanding Order Form.

12.2         Termination for Breach.  If either party commits a material breach of this Agreement, the other party may terminate this Agreement; provided, however, that, if such breach is curable, the party that wishes to terminate shall provide the breaching party with thirty (30) days’ prior written notice and the opportunity to cure such breach within such thirty (30) day period. 

12.3         Effects of Termination; Surviving Provisions.  Termination of this Agreement will terminate all outstanding Order Forms. Termination of this Agreement will not relieve Customer of its obligation to pay any fees owed to Postie prior to the effective date of termination. Customer’s right to use the Services ordered will terminate immediately and automatically upon the expiration or termination of the applicable Order Form. Each party shall return and/or delete or destroy all copies of the other party’s Confidential Information in its possession or control. The following Sections will survive any termination or expiration of this Agreement: 3.1, 3.5, 4, 6, 7, 10, 11, 12.3, and 14.

13.            General Provisions.

13.1         Export Compliance.  The Services, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions.  Customer represents that it is not named on any U.S. government denied-party list. Customer will not access or use any Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Postie does not represent or warrant that the use of the Services is lawful or available in any country outside of the United States.

13.2         Entire Agreement; Order of Precedence.  This Agreement and the terms and conditions of the applicable Order Form (which are hereby incorporated into this Agreement) contain the entire agreement between Postie and Customer regarding Postie’s provision of, and Customer’s receipt and use of, the Site, Service, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. Each Order Form will be governed by and incorporate this Agreement.  No amendment of this Agreement or an Order Form will be effective unless in writing and signed by both parties.  In the event of any inconsistency between an Order Form and this Agreement, this Agreement will prevail.

13.3         Publicity.  Postie may publicize that Customer is a Postie client and display Customer’s name and logo on Postie’s website and marketing materials.

13.4         Relationship.  The parties are independent contractors.  Neither this Agreement nor any Order Form creates a partnership, joint venture, agency or employment relationship between the parties.

13.5         No Third Party Beneficiaries.  Nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement.

13.6         Injunctive Relief.  The parties acknowledge that the provisions of this Agreement that protect Confidential Information and Intellectual Property Rights, including Sections 4 and 7, are essential for the protection of the parties and that any breach or threatened breach of such sections may cause immediate and irreparable damage to the nonbreaching party, for which monetary relief would be inadequate or impossible to ascertain.  Accordingly, the parties agree that upon the existence of any breach or threatened breach thereof, the nonbreaching party shall be entitled to seek injunctive relief restraining the breaching party from committing such breach or threatened breach.  In addition, the nonbreaching party shall be entitled to any other remedies that may be available to it, at law or in equity.

13.7         Waiver.  No failure or delay by either party in exercising any right under this Agreement or the applicable Order Form will constitute a waiver of that right.  A party can enforce a waiver only if the other party made the waiver in writing.

13.8         Severability.  If any provision of this Agreement or the applicable Order Form is held by a court of competent jurisdiction to be contrary to law, the provision will be reformed to the nearest enforceable provision (or deemed severed from this Agreement or the Order Form if that is impermissible), and the remaining provisions of this Agreement and the applicable Order Form will remain in effect.

13.9         Construction.  Neither this Agreement nor any Order Form will be construed against the drafter.  Lists following “include”, “includes” or “include” are illustrative and not exhaustive.

13.10       Force Majeure.  Postie shall not be responsible for delays or failure in performance resulting from acts beyond its reasonable control, including acts of God, strikes, lockouts, riots, acts of war, terrorism, Internet outages, failures of Internet hosting providers, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.

13.11       Governing Law.  This Agreement, its execution and negotiation, and all obligations resulting here from, and all claims or causes of action arising from or related hereto (regardless of form), including, without limitation, obligations resulting from the Order Form, shall be construed and enforced in accordance with and governed by the laws of the State of California, USA and its statutes of limitations, without giving effect to any principle of law that would cause the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties: (a) consent to and waive any objections to personal jurisdiction and venue in the federal and state courts located in Los Angeles County, California, and (b), any action or proceeding relating to the Services, Site, or this Agreement will be filed and prosecuted only in such courts.

13.12       Assignment; Subcontracting.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, Postie may assign this Agreement and all applicable Order Forms in their entirety (including all applicable Order Forms), without the Customer’s consent, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement and all applicable Order Forms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.  Postie may subcontract its performance of the Services. 

13.13       Notices.  Except as otherwise specified in this Agreement or in the applicable Order Form, all notices related to this Agreement or the applicable Order Form will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), which must be sent by physical mail, the day of sending by email.  Notices to Postie will be addressed to the “Legal Department” at legal@postie.com, it will be effective when received and Customer must use the appropriate email address above or the following physical address: 12130 Millennium Drive, Los Angeles, CA 90094.  Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer will be addressed to Customer and be clearly identifiable as Legal Notices to the address listed in the preamble of this Agreement.

13.14       Counterparts. This Agreement and any Order Form may be executed in counterparts, both of which taken together will constitute one and the same document.  This Agreement and any Order Form may be signed by electronic signature.  A signed copy of this Agreement or an Order Form delivered by facsimile, e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement or Order Form.