POSTIE, INC. TERMS OF SERVICE

Last Updated: March 30, 2018

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 Service Agreement.

1.              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”).

2.              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.

3.              Free Accounts.  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 your account.

4.              Our Policies and Your Responsibilities.

4.1            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.

4.2            Removal of Data and Content.  Postie may remove data and content from the Services, and disable your account, without liability to you.

4.3            Suspension.  If you are in breach of these Terms, without limiting Postie’s other rights or remedies, Postie may suspend your use of the Services immediately.

4.4            Privacy Policy.  For more information on how we collect, store, use, process and share data, please visit our Privacy Policy.

4.5            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.

5.              Proprietary Rights and Licenses.

5.1            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.

5.2            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 confidence.

6.              Representations, Warranties, and Disclaimers.

6.1            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.

6.2            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.

7.              Indemnification.

7.1            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.

8.              LIMITATION OF LIABILITY AND CLAIMS.

8.1            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.

8.2            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.

9.              Term and Termination.

9.1            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.

9.2            Surviving Provisions.  The following Sections will survive any termination or expiration of these Terms: 3, 4.2, 4.5, 5 through 10.

10.            General Provisions.

10.1         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.

10.2         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.  

10.3         Publicity.  Postie may publicize that you are a Postie client and display your name and logo on Postie’s website and marketing materials.

10.4         Relationship.  The parties are independent contractors. These Terms creates a partnership, joint venture, agency or employment relationship between the parties.

10.5         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.

10.6         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.

10.7         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.

10.8         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.

10.9         Construction.  Neither these Terms will be construed against the drafter.  Lists following “include”, “includes” or “include” are illustrative and not exhaustive.

10.10       Force Majeure.  Postie’s non-performance under these Terms will be excused to the extent due to a cause beyond its reasonable control.

10.11       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.

10.12       Dispute Resolution; Arbitration.

a)              If you have any dispute with Postie, you agree that before taking any formal action, you will contact Postie at legal@postie.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.

b)              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 PARTIES.

10.13       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.

10.14       Notices.  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 info@postie.com. Please send any questions or comments regarding these Terms to legal@postie.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: 578 Washington Boulevard, Suite 380, Marina del Rey, CA  90292. These notice requirements do not apply to legal service of process, which is instead governed by applicable law.