TERMS OF SERVICE
Last Updated: February 4, 2019
Welcome to Postie! These Postie Terms of
Service (the “Terms”) are entered into between Postie, Inc. (“Postie” “Postie”
“Postie” or “we”) and the person, entity or organization that agrees to these
Terms (“you”). Postie, Inc. operates this website (the “Site”). By accessing
this Site or accepting these Terms, you agree to these Terms. These Terms
contain a binding arbitration clause and waiver of class actions. In addition,
Postie offers a marketing platform on a paid basis through the Site, your use
of such platform is subject to you entering into a separate Postie Master
Use of Services. Unless explicitly stated otherwise,
these Terms govern your use of this Site and the content and services available
on the Site (collectively with the Site, the “Services”).
Acceptance of Terms; Eligibility. If you are using
the Services on behalf of an entity or organization, “you” means that entity or
organization. By using the Services on behalf of any entity or organization,
you are representing and warranting to us that you are an authorized
representative of that entity or organization, you are of legal age and
competence to agree to these Terms on behalf of that entity or organization,
and that your access of the Services or acceptance of these Terms constitutes
such entity’s or organization’s agreement to these Terms. If you are an
advertising agency using the Services on behalf of a client, the term “you”
means both your agency and the client. You represent and warrant that your
agreement to and compliance with these Terms does not and will not breach or
conflict with any other agreement or arrangement you have with someone else or
otherwise violate the law. If you have previously been prohibited from
accessing the Services, you are not permitted to access the Services.
To use any Services, you will need to create a user account (an “Account”). You
agree to provide true, accurate, current and complete information about
yourself, and you will update that information as it changes. You agree not to
share your user name or password with any third party. You may not transfer
your Account to a third party without our written permission. You are solely
responsible for maintaining the secrecy of your user name and password, and you
will use reasonable measures to prevent unauthorized access to your Account.
You are solely responsible for use of the Services through your Account. You
will be responsible for all users of your Account (your “Users”), and you will
be liable for any act or omission of a User that is a breach of these Terms.
The term “you” includes your Users. You will notify us immediately in writing
if you discover or suspect that an unauthorized user has accessed or may access
Our Policies and Your Responsibilities.
Usage Restrictions. You agree to use the Services only as
permitted in these Terms and in compliance with applicable laws. You will not
(a) make any Services available to, or use any Services for the benefit of,
anyone other than you, for compensation or otherwise, (b) use a Service to
store or send infringing, libelous or otherwise unlawful, harassing, abusive,
threatening, vulgar, obscene or otherwise objectionable material, or material
that is harmful to minors in any way, (c) use a Service 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
(“Malicious Code”) to the Service, (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 a Service, 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, or (l) harvest or collect information or data regarding other
users of the Services.
Removal of Data and Content. Postie may remove data and
content from the Services, and disable your account, without liability to you.
Suspension. If you are in breach of these Terms, without
limiting Postie’s other rights or remedies, Postie may suspend your use of the
Confidentiality of the Services. You acknowledge and
agree that information made available on the Services or otherwise by us is our
confidential information. You agree to limit access to such information to your
employees and contractors who need that access for purposes consistent with
these Terms and who have signed confidentiality agreements regarding such
information or are otherwise obligated to hold such information in confidence. You
agree not to disclose such information to any third party other than your
contractors, attorneys and accountants who need that access for purposes
consistent with these Terms and who have signed confidentiality agreements
regarding such information or are otherwise obligated to hold such information
in confidence. You will be responsible for your employee’s,
contractor’s, attorney’s and accountant’s compliance with this Section 4.5.
Proprietary Rights and Licenses.
Reservation of Rights. Subject to the limited rights
expressly granted hereunder, Postie and its licensors reserve all of their
right, title and interest in and to the Services, including all of their
related intellectual property rights. No rights are granted to you
other than as expressly set forth in these Terms.
License by You to Use Feedback. You grant to Postie and
its affiliates a worldwide, non-exclusive, perpetual, irrevocable,
royalty-free, transferable, sublicensable license to use and incorporate into
the Services any suggestion, enhancement request, recommendation, correction or
other feedback provided by you relating to the Services. Postie will
not be obligated to credit you for such feedback or hold any such feedback in
Representations, Warranties, and Disclaimers.
Your Warranties. You warrant that (a) if you are an
entity or organization, you are a duly formed entity (e.g., corporation or
limited liability company) or organization in good standing under the laws of
the state of your incorporation or organization; (b) you are qualified to
transact business in all states where the ownership of your properties or
nature of your operations requires such qualification; (c) you have full power
and authority to enter into and perform these Terms; (d) the execution and
delivery of these Terms have been duly authorized; and (e) you will comply with
all applicable laws in your use of the Services.
DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, POSTIE DOES
NOT MAKE ANY REPRESENTATION, WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, AND POSTIE 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. POSTIE DOES NOT REPRESENT OR WARRANT
THAT (A) THE SERVICES WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE, ACCURATE,
COMPLETE OR COMPLETELY SECURE, (B) MALICIOUS CODE WILL NOT BE TRANSMITTED TO
YOU IN YOUR USE OF THE SERVICES, (C) ALL DEFECTS IN THE SERVICES WILL BE
CORRECTED, (D) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (E)
YOU WILL INCREASE SALES OR ACHIEVE ANY PARTICULAR RESULT. ANY USE OR RELIANCE
UPON THE SERVICES BY END USER SHALL BE AT ITS OWN RISK. POSTIE WILL NOT BE
LIABLE IN ANY WAY RELATED TO ANY THIRD-PARTY CONTENT, DATA OR
APPLICATION. POSTIE DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES
CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
Indemnification by You. You will defend Postie against
all claims, demands, suits and proceedings made or brought against Postie by a
third party alleging (a) your use of any Service in breach of these Terms,
violates, infringes or misappropriates such third party’s intellectual
property, privacy, personality or other rights, or violates applicable law, (b)
facts that, if true, would constitute (i) a breach of these Terms by you, or (ii)
other unlawful acts or omissions by you (collectively, a “Claim Against
Postie”), and will indemnify Postie from all damages, attorney fees and costs
finally awarded against Postie as a result of, or for any amounts paid or
payable by Postie under a court-approved settlement of, a Claim Against Postie,
provided Postie (i) promptly gives you written notice of the Claim Against
Postie, (ii) gives you sole control of the defense and settlement of the Claim
Against Postie (except that you may not settle any Claim Against Postie unless
it unconditionally releases Postie of all liability), and (iii) gives you all
reasonable assistance, at your expense.
LIMITATION OF LIABILITY AND CLAIMS.
LIMITATION OF LIABILITY. POSTIE WILL NOT BE LIABLE UNDER
THESE TERMS 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
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER FOR TORT
(INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY OR ANY OTHER CAUSE OF
ACTION OR THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNT YOU PAID TO POSTIE TO
WHICH THE CLAIM RELATES. THE LIMITATIONS HEREIN WILL APPLY EVEN IF A REMEDY
FAILS OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS
HEREIN ARE REASONABLE AND A BASIS OF THE BARGAIN, AND THAT POSTIE WOULD NOT
ENTER INTO THESE TERMS WITHOUT YOUR AGREEMENT TO SUCH LIMITATIONS.
LIMITATION ON TIME TO FILE CLAIMS. YOU MUST FILE ANY CLAIM
ARISING FROM OR RELATED TO THESE TERMS WITHIN ONE YEAR AFTER THE CLAIM AROSE,
OR THE CLAIM WILL BE FORFEITED AND FOREVER BARRED.
Term and Termination.
Term and Termination. These Terms remain in effect until
terminated by either party in writing at any time and you must cease using the
Site, unless you elect to use Postie’s marketing platform on a paid basis and
you enter into a Postie Master Service Agreement, the Postie Master Service
Agreement shall supersede these Terms.
Surviving Provisions. The following Sections will survive
any termination or expiration of these Terms: 3, 4.2, 4.5, 5 through 10.
Export Compliance. The Services, and derivatives thereof,
may be subject to export laws and regulations of the United States and other
jurisdictions. You represent that it is not named on any U.S. government
denied-party list. You 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.
Entire Agreement; Order of Precedence. These Terms
contain the entire agreement between Postie and you regarding the use of the
Site (excluding the paid portions of the marketing platform) and supersede all
prior and contemporaneous agreements, proposals or representations, written or
oral, concerning their subject matter. No amendment of these Terms will be
effective unless in writing and signed by both parties.
Publicity. Postie may publicize that you are a Postie
client and display your name and logo on Postie’s website and marketing
Relationship. The parties are independent contractors. These
Terms creates a partnership, joint venture, agency or employment relationship
between the parties.
Third-Party Beneficiaries. Postie’s data and content
licensors will have the benefit of Postie’s rights and protections hereunder
with respect to the applicable data and content. There are no other
third-party beneficiaries of these Terms.
Injunctive Relief. Your breach of these Terms related to
confidential information or intellectual property rights would cause Postie
irreparable harm for which the recovery of money damages would be inadequate.
Therefore, if you breach or threaten to breach these Terms related to Postie’s
confidential Information or intellectual property rights, Postie will be entitled
to obtain injunctive relief, without the need to post a bond or prove actual
monetary damages, to protect its rights under these Terms, in addition to any
and all remedies available at law.
Waiver. No failure or delay by either party in exercising
any right under these Terms will constitute a waiver of that right. A party
can enforce a waiver only if the other party made the waiver in writing.
Severability. If any provision of these Terms 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 these
Terms if that is impermissible), and the remaining provisions of these Terms
will remain in effect.
Construction. Neither these Terms will be construed
against the drafter. Lists following “include”, “includes” or
“include” are illustrative and not exhaustive.
Force Majeure. Postie’s non-performance under these Terms
will be excused to the extent due to a cause beyond its reasonable control.
Successors and Assigns; Subcontracting. These Terms will
bind and inure to the benefit of the parties and their respective successors
and assigns. Postie may subcontract its performance of the Services.
Dispute Resolution; Arbitration.
If you have any dispute with Postie, you agree that before taking
any formal action, you will contact Postie at email@example.com, provide a
brief, written description of the dispute and your contact information, and
allow thirty (30) days to pass, during which the parties will attempt to reach
an amicable settlement of any issue. If the parties cannot resolve
the dispute within thirty (30) days, either party may submit the claim to
arbitration on the terms and conditions below; neither party will file a
lawsuit in court except as permitted below. These Terms and each of
its parts evidence a transaction involving interstate commerce, and the United
States Arbitration Act applies in all cases and governs the interpretation and
enforcement of the arbitration rules and arbitration proceedings. ANY
CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS MUST BE ASSERTED INDIVIDUALLY
IN BINDING ARBITRATION. Such arbitration will be administered in accordance
with JAMS Streamlined Arbitration Rules and Procedures (including, without
limitation, utilizing desk, phone or video conference proceedings where
appropriate and permitted to mitigate costs of travel) and the JAMS Policy on
Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of
Procedural Fairness (which will prevail over any inconsistent terms in this
Section 10.12). One arbitrator will conduct the arbitration. The arbitrator
will not conduct any form of class or collective arbitration nor join or
consolidate claims by or for individuals. The arbitrator, and not
any federal, state or local court or agency, will have exclusive authority to
resolve any dispute relating to the interpretation, applicability,
enforceability or formation of these Terms, including without limitation any
claim that all or any part of these Terms is void or voidable or a particular
claim is subject to arbitration. Judgment on the award rendered by the
arbitrator may be entered in any court of competent jurisdiction.
BY AGREEING TO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY
RIGHT YOU MAY HAVE TO A COURT TRIAL OR TO SERVE AS A REPRESENTATIVE, AS A
PRIVATE ATTORNEY GENERAL OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO
PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR
OTHER PROCEEDING FILED AGAINST ANY POSTIE, ITS LICENSORS OR RELATED THIRD
Governing Law. These Terms, and any disputes arising out
of or related thereto, will be governed exclusively by the internal laws of the
State of California, without regard to its conflicts of laws rules.
We may deliver notice to you by e-mail, posting a notice on the Services or any
other method we choose, and such notice will be effective on
dispatch. Please direct your questions, comments, feedback, requests
for technical support and other communications relating to the Services to our
customer service representative at firstname.lastname@example.org. Please send any questions
or comments regarding these Terms to email@example.com. If you give notice to
us, it will be effective when received and you must use the appropriate email
address above or the following physical address: 371 Rose Avenue, Venice, CA 90291.
These notice requirements do not apply to legal service of
process, which is instead governed by applicable law.