THIS MASTER SERVICES AGREEMENT (“Agreement”) governs all Services set forth in one or more orders (“Orders”) executed by and between Postie, Inc., with offices at 578 Washington Blvd., Suite 1027, Marina Del Rey, CA 90291 (“Postie”) and the entity listed in the initial Order referencing this Agreement (“Customer”).
1. DEFINITIONS. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English (U.S.) meaning.
2. TERM. This Agreement begins on the date the first Order referencing this Agreement is executed by the parties (the “Effective Date”) and will continue in effect so long as any Order remains in effect, unless terminated as specified herein (“Term”). The term of each Order will begin as specified in the Order and will continue for the term stated in the Order. Customer may elect to renew the Services by entering into an additional Order with Postie. The term of any then-active Order will end upon termination of this Agreement.
3. ORDERS. All Services performed by Postie under this Agreement will be strictly as set forth in Orders under this Agreement. All Orders will be as agreed to in writing by the parties and no other Order will be valid or binding on either party unless signed by the authorized representatives of both parties. Once signed by the authorized representatives of both parties, each Order will become a part of this Agreement. In the event of a conflict between the terms of an Order and the other terms of this Agreement, the other terms of this Agreement will control, except where an Order expressly indicates it is intended to control.
4. POSTIE SERVICES.
4.1 GENERALLY. During the Term, subject to the terms and conditions of this Agreement and Customer’s payment of all applicable Fees, Postie will provide to Customer the Services identified in one or more Orders referencing this Agreement. The “Services” consist of all subscriptions, licenses, services, and other offerings set forth in one or more Orders entered into by Postie and Customer, including the features and functionality provided through Postie’s direct mail campaign management platform (the “Platform”), including the ability to build Platform Audiences on the Platform, and Postie’s distribution of the direct mail marketing campaigns approved by Customer through the Platform (“Campaigns”) to either Platform Audiences or Customer Audiences, as defined below.
4.2 Platform Access. Subject to the terms of this Agreement, including Customer’s payment of all applicable Fees, Postie hereby grants Customer the right to access and use of the Platform, during the Term, to build, manage, and analyze Campaigns relating to Customer’s products and services. Access to and use of the Platform will be through an account on the Platform provided for Customer (“Account”). Customer will be permitted to authorize its employees and contractors to access the Platform under Customer’s Account (“Users”). Customer will designate a User as the administrator of Customer’s Account (the “Admin”). Until an Admin is designated by Customer, the Admin will be the first User added to Customer’s Account. Customer may allow its Users to access and use the Platform solely under Customer’s Account for purposes of exercising the rights granted to Customer under this Agreement. Customer will ensure that all information about each User provided to Postie is and remains accurate and complete. Customer will advise Users of the restrictions set forth in this Agreement and will be solely responsible for all acts and omissions of its Users just as if each were “Customer” under this Agreement. Customer will implement commercially reasonable measures to protect the security and confidentiality of all User credentials associated with Customer’s Account and to prevent unauthorized access to or use of the Platform through any User credentials. Customer will notify Postie promptly of any such unauthorized access or use of the Platform or if any User credentials are lost, stolen, or otherwise compromised.
4.3 Third Party Offerings. At Customer’s request, Postie may facilitate or allow a connection or integration (whether via API or otherwise) between the Platform and certain Customer owned or operated websites, mobile applications, datasets, or other software applications (collectively, “Other Offerings”). All Other Offerings are not provided by Postie and are not included in the Services. To the extent specified in an Order, Postie will use commercially reasonable efforts to facilitate an integration with the Other Offerings set forth in the Order, provided that Postie does not control any Other Offerings and is not responsible or liable for Customer’s access to or use of any Other Offerings, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from any Other Offerings.
4.4 Campaign Distribution. Prior to Campaign distribution, Customer will receive a hard proof of Customer’s direct mail advertisements (each an “Ad”), including the marketing creative comprising such Ads. Customer must approve the Ads, including the look and feel of all marketing creative, through its Account on the Platform prior to Campaign distribution. Once the Ad is approved, Customer must also approve the Campaign for distribution through its Account on the Platform. Upon approval, Campaigns are non-cancellable and, provided that Customer has not exceeded the Usage Limits set forth in the applicable Order and has paid all applicable Fees, Postie will distribute Customer’s Campaigns to the Customer Audiences and/or Platform Audiences selected by Customer on the Platform. “Customer Audience” means a list of individual consumers’ names and addresses that Customer uploads to the Platform. “Platform Audience” means a list comprised solely of individual consumers’ names and addresses that is either, (a) built by Customer on the Platform to reflect the demographics and attributes of the Customer Audience, (b) custom built by Customer on the Platform from a set of selected demographic criteria and attributes, or (c) created by matching names and addresses in Postie’s proprietary database to data obtained from the Customer Website through Postie’s tracking pixel (“Pixel”) or other Customer selected integration. “Usage Limits” means the total number of mailed records that Postie is obligated to distribute under the applicable Order. Customer may increase its Usage Limits at any time by executing additional Orders with Postie providing for such increase. Upon termination of the applicable Order, any unused Usage Limits will expire.
4.5 PLATFORM AUDIENCES. Provided Customer has not exceeded the Usage Limits set forth in the applicable Order, during the Term and subject to Customer’s payment of all applicable Fees, Customer may select Platform Audiences using the demographic and attribute information provided through the Platform and Postie will distribute Campaigns to those Platform Audiences as set forth above. As between Postie and Customer, all Platform Audiences are owned by Postie and its licensors. Postie takes reasonable measures to license high quality data for its customers’ direct mail marketing campaigns, including the names and addresses that comprise Platform Audiences and the demographic data used to select those Platform Audiences; however, no dataset is entirely accurate and neither Postie nor its licensors guarantee the accuracy, completeness, or applicability of any Platform Audience. While Postie will distribute Campaigns to Platform Audiences, Postie will not provide Customer with access to any Personal Data (as defined in the DPA) included in or comprising any Platform Audience. Customer agrees that it will not, and that it will not permit any third party to: (a) use any Platform Audience for any purpose other than Postie’s distribution of Campaigns on Customer’s behalf; (b) download, capture, extract, or otherwise remove any Platform Audience from the Platform; (c) combine, merge, link, or layer any Platform Audience with any other data or datasets, whether or not provided by Postie; or (d) re-identify or attempt to re-identify or link any de-identified individual person, household or device.
5. CUSTOMER RESPONSIBILITIES.
5.1 Customer Data. As between Customer and Postie, Customer owns all data, information, and content that it may upload to the Platform or otherwise provide to Postie (collectively, “Customer Data”), including (a) all Customer Audiences, (b) all data, information, content, and marketing creative comprising Customer’s Ads; and (c) all data collected through the use of the Pixel on Customer’s website (the “Customer Website”) or any other integration method. Customer is solely responsible for, and assumes all risks associated with all Customer Data. Postie is under no obligation to review any Customer Data, but Postie has the right to review any Customer Data and take appropriate action, including removal or modification of Customer Data, if deemed necessary by Postie to prevent any damage, injury, or harm to Postie, the Postie Technology, any Postie customer, or any third party. Customer acknowledges that certain Customer Data may be available from other sources, and nothing in this Agreement shall limit Postie’s rights as to data or information obtained from any source other than Customer. Customer grants to Postie a nonexclusive, royalty-free, fully paid up license to utilize all Customer Data solely as necessary to perform Postie’s obligations under this Agreement. Customer further authorizes Postie to aggregate a de-identified version of Customer Data with similar data from other Postie customers and third parties to create datasets to further develop the Postie’s offerings (“Training Datasets”), provided that the Training Datasets shall not identify Customer or include any Personal Data (as defined in the DPA). As between the parties, Postie owns all Training Data it creates. Customer commits to Postie that neither the Customer Data nor Postie’s use of the Customer Data as permitted by this Agreement will: (1) violate this Agreement or any applicable Laws; (2) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (3) constitute an infringement or misappropriation of the IPR or other rights of any third party; (4) be illegal in any way or advocate illegal activity; or (5) be false, misleading, or inaccurate. Postie is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any Customer Data and Customer is solely responsible for creating and maintaining adequate backups of all Customer Data as deemed reasonable by Customer. Customer represents and warrants to Postie that it has all rights, permissions, and consents necessary to grant Postie each of the foregoing rights set forth in this Section. Postie may remove Customer Data from the Services if Postie has a good faith belief that the Customer Data violates any of the restrictions set forth in this Section.
5.2 Additional Responsibilities. Customer is solely responsible for: (a) its Pixel use decisions, its use of Ad server tags, and its Ad targeting decisions; (b) any Customer Website and any other website to which an Ad directs its targeted recipients; (c) products and services advertised in the Ads or on Customer Website, and any other Customer products and/or services; and (d) providing for and maintaining any systems, software, hardware, web browser and Internet service necessary to access and use the Services.
6. Postie Technology. Customer acknowledges that the Services, including the Platform, Postie Data, Pixel, API, and server integrations, and all software, hardware, data, datasets, information, all other technology used by or on behalf of Postie to provide the foregoing, and any updates, upgrades, new versions, modifications, or enhancements to any of the foregoing (collectively the “Postie Technology”), constitute the valuable IPR of Postie. For purposes of this Agreement, the “Postie Data” means, with the exception of Customer Data and Customer Confidential Information, all information, data, and datasets (including the structure, organization, selection, coordination, and arrangements thereof), all other content, and all reports and other materials, generated on the Platform or otherwise provided by or on behalf of Postie, including all Platform Audiences. As an express condition to the rights granted to Customer under this Agreement, and in addition to the other conditions in this Agreement, Customer will not and will not permit any third party to: (1) use or access any Postie Technology or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, revise, translate, or create derivatives (including derivative works) from any Postie Technology; (3) sublicense, distribute, sell, rent, lend, loan, lease, convey, sublicense, assign, pledge, or otherwise transfer or in any way encumber any Postie Technology or any portion thereof; (4) use any Postie Technology for the benefit of any third party or make any Postie Technology available to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for any Postie Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Postie Technology; (7) access or utilize any Postie Technology for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation or hosting of any Postie Technology or attempt to gain unauthorized access to any Postie Technology; (9) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on any Postie Technology; or (10) access or use the Postie Technology or any component thereof in order to build a competitive product or service. All use of all Postie Technology will be in accordance with any documentation for the applicable Postie Technology provided by Postie. As used in this Agreement, “IPR” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, and any other legal rights protecting data or information. All rights and restrictions in this Agreement applicable to any Postie Data apply to all data, information, and other elements comprising the Postie Data, including any enhancements, corrections, or other updates provided by Postie from time to time. Except as expressly stated in Section 4 (Postie Services), Postie grants Customer no rights or licenses in or to the Postie Technology, whether by implication, estoppel, or otherwise.
7. OWNERSHIP AND RIGHTS. Postie and its licensors own and will continue to retain all right, title, and interest, including all IPR, in and relating to the Postie Technology. If Customer makes, acquires, creates, or conceives any developments, modifications, or improvements (“Improvements”) to the Postie Technology, Customer agrees to and hereby does assign to Postie any and all right, title and interest in and to such Improvements, including all IPR therein or relating thereto. Except as set forth in this Agreement, Customer is granted no licenses or rights in or to any Postie Technology, or any IPR therein or related thereto.
8. FEES AND PAYMENT.
8.1 Fees. Customer shall pay all fees specified in each Order (“Fees”) as and when due. The Fees may include a fee to access and use the Platform (the “Platform License Fee”), a fee for Postie’s Campaign distribution Services, based upon the type of record(s) mailed (“Campaign Fees”), and a fee for each record mailed to a Platform Audience member (the “Platform Audience Fees”). If the applicable Fees are not specified in the Order, Customer shall pay Postie’s then-current rates for the applicable Services. Except for Campaign Fees, all Fees will remain fixed during the term of the applicable Order. Because Campaign Fees are priced, in part, on assumptions regarding existing United States Postal Service (“USPS”) postage rates and other factors outside Postie’s control, Customer agrees that Postie may increase the Campaign Fees at any point if Postie’s actual cost to provide the Services increases due to factors outside Postie’s control, including increases in USPS postage rates or other surcharges and fees levied by federal, state, county, other governmental agencies. Postie will limit such increase to the increase in Postie’s actual costs, and, at Customer’s written request, will provide Customer with documentation supporting such increase. Information regarding upcoming USPS postage rate increases is available at usps.com.
8.2 Payment. Unless specified in an applicable Order, Customer will pay (a) all Platform License Fees annually in advance, within 30 days of the date of Postie’s invoice; and (b) all Campaign Fees and Platform Audience Fees within 30 days of the date of Postie’s invoice and, in any event, prior to Postie’s deployment of the applicable Campaign, unless otherwise agreed in writing by the parties. Postie shall not be liable for any delay in Campaign deployment caused by Customer’s late payment. If Customer has specified credit card, debit card, online payment account, mobile services account, or other payment method as an applicable payment mechanism for the Services under this Agreement, Customer hereby grants Postie and its payment processors the right to charge the applicable payment account Customer provided to Postie for all Fees incurred under this Agreement. Except as set forth herein, all Fees are non-refundable once paid. Amounts not paid when due will be subject to a late charge of 1.5% per month or any applicable legal maximum, whichever is less. If Postie requires use of collection agencies, attorneys, or courts of law for collection of any past-due Fees, Customer will be responsible for those expenses. Customer agrees to pay any taxes and other fees and charges imposed by any government entity on Customer’s use of the Services or arising from this Agreement, excluding taxes based on Postie’s net income.
9. TERMINATION AND EFFECT.
9.1 Termination. This Agreement and any Order may be terminated by either party if the other party materially breaches any provision of this Agreement or such Order and fails to cure such breach within 30 days after receiving notice thereof from the non-breaching party.
9.2 Effect of Termination. Termination of this Agreement will automatically terminate any Order under this Agreement but will not relieve either party of any rights or obligations accruing prior to such termination, including with respect to any Campaigns approved prior to termination. Upon any termination of this Agreement or any Order: (a) all Fees owed under this Agreement prior to such termination will be immediately due and payable (including, at minimum, the Fees due under this Agreement pro-rated based on Services provided by Postie prior to termination and any Fees attributable to non-cancelable commitments entered into by Postie prior to such termination); (b) Postie may cease providing all access to the Services under this Agreement or such Order; (c) all rights and licenses granted to Customer with respect to any Services will terminate and Customer will cease all access and use of the Services; and (d) except as may be expressly permitted under this Agreement, including Section
9.3 (Removal of Customer Data), each party will return to the other party or, at the option of the other party, permanently destroy any Confidential Information of the other party in such party’s possession or control, including any Postie Data and Customer Data. At the request of the other party, each party will certify in writing to its compliance with this Section.
9.3 Removal of Customer Data. The Platform includes functionality allowing Customer to delete its Customer Data from the Platform. Customer may access and use such functionality during the Term of this Agreement and for 30 days following termination of this Agreement. Postie will delete Customer Data (a) automatically, when delete features within the Platform are utilized by Customer and (b) in any event, within 182 days following termination of this Agreement, in accordance with Postie’s standard procedures.
9.4 Survival. The following Sections will survive termination of this Agreement for any reason: 1, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, and 22.
10. SUSPENSION OR DISCONTINUATION. Postie reserves the right to immediately suspend Customer’s access to the Services where: (1) Customer is past due on any payment obligation hereunder and fails to pay all amounts owed within 10 days after receiving notice thereof from Postie; or (2) Postie reasonably believes that Customer’s use of the Services may be in violation of this Agreement or applicable Law or present a risk of harm, loss, or liability to Postie or any other customer or third party. In such cases, without limiting its obligations under subsection (1) of the preceding sentence, Postie will use commercially reasonable efforts to (a) limit the extent and duration of any suspension, (b) notify Customer of any suspension (in advance if possible), and (c) reinstate any suspended Services as soon as possible.
11. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
11.1 General. Each party represents, warrants and covenants to the other party that: (a) such party has full power and authority to enter into this Agreement; (b) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; and (c) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms.
11.2 Compliance. Each party represents, warrants and covenants to the other party that: (a) such party will comply with all laws, rules, and regulations applicable to such party in connection with such party’s performance under this Agreement, including all data privacy and security laws (“Laws”); and (b) such party’s performance under this Agreement will not cause the other party to violate any Laws applicable to such party.
11.3 No Viruses. Each party represents, warrants, and covenants to the other that it has taken commercially reasonable measures to test all data and materials provided to the other party under this Agreement, including all Customer Data and Postie Technology, for the presence of any viruses, trojan horses, or other devices which would disable or impair the other party’s networks, systems, data, or software and to the best of its knowledge, no such devices are present in such data and materials.
11.4 Services. During the term of this Agreement, Postie will use commercially reasonable efforts to provide the Services as specified in each applicable Order. As Customer’s sole remedy, and Postie’s sole obligation, for any failure by Postie to comply with the foregoing sentence, Postie will at its option: (a) correct, re-perform, or re-provide the applicable Services; or (b) credit Customer the portion of any License Fees actually paid for the applicable Services. This limited warranty will not apply to Ads or Campaigns that Customer has reviewed and approved through its Account on the Platform or to the extent the nonconformity was caused by Customer’s abuse or misuse of the Services. To receive the foregoing remedies, Customer must notify Postie in writing of the non-conformity within 30 days after Postie provides the applicable Services.
12. DISCLAIMER. EACH PARTY ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL POSTIE TECHNOLOGY IS PROVIDED BY POSTIE AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND. POSTIE EXPRESSLY DISCLAIMS, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESSED OR IMPLIED, REGARDING THIS AGREEMENT AND ANY SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESSS CONFIRMED IN WRITING BY SUCH PARTY AS AN AMENDMENT TO THIS AGREEMENT.
13.1 By Customer. Customer will indemnify and hold harmless Postie, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all losses, liabilities, costs, judgments, awards, settlements, penalties, damages, fines, expenses, costs and fees (including attorneys’ fees and costs of collection) (“Losses”) incurred in connection with any claim, allegation, action, or suit (“Claims”) brought against any of them by a third party insofar as the Claim arises out of or relates to (a) the Customer Data, the Customer Website, or Postie’s permitted use of the foregoing, infringing, misappropriating, or violating any IPR, privacy right, or contract right; or (b) Customer’s Ads, products, services, or other offerings.
13.2 By Postie. Postie will indemnify and hold harmless Customer, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all Losses incurred in connection with any Claims brought against any of them by a third party insofar as the Claim arises out of or relates to the Services or Customer’s permitted use of the Services infringing, misappropriating, or violating the third party’s IPR. Should any Claim relating to the Services infringing, misappropriating or violating a third party’s IPR be made, or in Postie’s reasonable opinion be likely to be made, in addition to Postie’s indemnification obligations under this Section, Postie may, at its option and expense: (a) procure for Customer the right to continue using the applicable Services; (b) replace or modify the applicable Services so as to no longer infringe; or (c) terminate the applicable Order and/or this Agreement. Postie’s obligations under this Section will not extend to, and Postie shall have no liability under this Section for, any Claim based on, arising out of, or relating to any: (i) failure by Customer to comply with the terms of this Agreement or any documentation or instructions provided by Postie; (ii) Customer Data or Customer Website; (iii) any specifications or instructions provided by Customer; (iv) any additions, changes, or modifications to the Postie Technology, unless provided by Postie; (v) any products, services, or other offerings not provided by Postie; or (vi) any systems, networks, databases, hardware, and software provided under any license or agreement other than this Agreement. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND POSTIE’S ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT AND THE SERVICES.
13.3 Conditions. As a condition to obtaining indemnification from the other party under this Section, each party will: (a) give the other party prompt notice of any claim for indemnification, provided however that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that such indemnifying party is materially prejudiced by such failure; (b) grant to the other party sole control of the defense or settlement of any resulting legal proceedings, provided that any settlement that involves more than the payment of money and a full release of the indemnified party will require the indemnified party’s written consent; and (c) provide the other party with reasonable cooperation and, at the other party’s request and expense, assistance in the defense or settlement of any claim for indemnification. Notwithstanding the foregoing, the indemnified party may participate in any defense, settlement, or other legal proceedings relating to any such indemnification at such party’s expense through counsel of such party’s choice.
14. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF PROFIT, REVENUE, BUSINESS INTERRUPTION, TIME OPPORTUNITY, OR GOODWILL. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES, IN AN AMOUNT NOT TO EXCEED THE PLATFORM LICENSE FEES PAID BY CUSTOMER TO POSTIE IN THE 12 MONTHS PRECEDING THE LIABILITY. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION WILL NOT APPLY AS TO ANY DAMAGES OR OTHER LIABILITY BASED ON OR RESULTING FROM: (1) A PARTY’S OBLIGATIONS UNDER SECTION 13 (INDEMNIFICATION); (2) A PARTY’S BREACH OF SECTION 5.1 (CUSTOMER DATA), 6 (POSTIE TECHNOLOGY), OR 15 (CONFIDENTIALITY); (3) A PARTY’S INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF THE OTHER PARTY’S IPR; (4) THE BAD FAITH OR WILLFUL MISCONDUCT OF A PARTY; OR (5) A PARTY’S PAYMENT OBLIGATIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF POSTIE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. CONFIDENTIALITY. Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care, and to only use the Discloser’s Confidential Information as is necessary to perform its obligations and exercise its rights under this Agreement. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The terms and conditions of this Agreement shall constitute the Confidential Information of each of the parties. The Customer Data shall constitute Customer’s Confidential Information and the Postie Data shall constitute Postie’s Confidential Information. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose the Confidential Information: (i) to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (ii) to its affiliates in connection with its corporate and financial reporting requirements. If Customer provides any feedback, comments, or ideas to Postie regarding the Postie Technology or improvements thereto, Customer agrees that Postie will be free to use, disclose, and exercise any rights in the same in connection with its products and services with no financial, credit, confidentiality, or other obligation to Customer. Except as set forth in Section 9.3 (Removal of Customer Data), upon Discloser’s written request, Recipient will promptly return to Discloser, or destroy (if requested), all the Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information. Recipient’s obligations under this Section 15 shall continue for 3 years after the termination of this Agreement, except such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable Laws.
16. DATA PROTECTION. In the course of performing the Services for Customer, Postie may receive and store Personal Data (as defined in the DPA). Postie shall safeguard Personal Data in accordance with the Postie Data Processing Addendum, available at www.postie.com/DPA, and will not access or use such Personal Data other than as necessary to perform its obligations or exercise its rights under this Agreement.
17. EXPORT CONTROLS. The Services may be subject to U.S. export control Laws and may be subject to export or import regulations in other countries. Customer agrees to strictly comply with all such Laws and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. Customer will indemnify and hold Postie harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by Customer of its obligations under this Section.
18. DISPUTE RESOLUTION. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in Section 20 (Irreparable Harm), if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration by JAMS under its Streamlined Arbitration Rules and Procedures then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted confidentially at a site specified by Postie in Los Angeles, California. The arbitrator will apply the Law set forth in Section 19 (Choice of Laws; Venue) to any such arbitration and shall have the power to award any remedy available at Law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator may not require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
19. CHOICE OF LAWS; VENUE. This Agreement will be governed by the Laws of the State of California, without regard to conflicts of Law principles thereof. Subject to Section 18, the federal and state courts located in Los Angeles County, California will have sole and exclusive jurisdiction over any disputes arising hereunder and the parties hereby irrevocably submit to the personal jurisdiction of such courts.
20. Irreparable Harm. Each party acknowledges and agrees that the other party will be irreparably harmed in the event that such party breaches Section 6 or Section 15 and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereby agrees that the non-breaching party shall be entitled to injunctive relief to prevent or stop breaches of such provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, without the requirement of posting any bond.
21. NOTICES. All notices, consents, and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) reputable overnight mail service; (3) certified mail, return receipt requested, to the other party; or (4) facsimile transmission, provided that an original copy of a transmission will be delivered by some other means permitted under this Agreement. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused). Either party may change its address for notice by giving notice of the new address to the other party.
22. ADDITIONAL TERMS. With the exception of any monetary obligations under this Agreement, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of God or any governmental body, war or national emergency, riots or insurrection, epidemic, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power or telecommunications under third-party control. This Agreement includes the documents referenced herein and each Order entered into hereunder, each of which is incorporated in and made a part of this Agreement. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all oral or written agreements or understandings, whether written or verbal, between the parties as to the subject matter of the Agreement. Except as noted herein, this Agreement may be amended or changed only by a writing signed by both parties. Neither party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement to a successor who acquires substantially all of its assets or equity through purchase, merger or other transaction without the other party’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable Law. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable Law and the remaining provisions of this Agreement will continue in full force and effect. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. The words “include,” “includes” and “including” will mean “include,” “includes,” or “including,” in each case, “without limitation.” This Agreement may be executed simultaneously in one or more counterparts (including by electronic signature), each of which when executed will be deemed to be an original, but all of which will constitute one and the same agreement.