1. Certain Definitions
1.1. The following terms, when used in this Agreement will have the following meanings:
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Postal Services” means the SaaS-based platform for managing and sending mailings provided by Postal to you (including the Postal APIs, Documentation and technical support that may be made available by Postal to you in connection with such services), and subsequent updates or upgrades of any of the foregoing made generally available by Postal.
“Customer Content” means content and other material supplied or made available to Postal by you (or, if you are an agency, your clients for which you are an agency of record) through the use of or access to the Postal Services.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Postal for the Postal Services.
2.1. These Terms. Postal may revise these Terms from time to time. If Postal does revise these Terms, the revised Terms will supersede prior versions. Unless Postal says otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. Postal will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Postal has on file. For other revisions, Postal will update the effective date of these Terms at the top of the page. You are responsible for checking for revisions to these Terms whenever you visit Postal’s website or account portal. Your continued access or use of the Postal Services on or after the effective date of any revision to these Terms constitutes your acceptance of any such revisions. If you don’t agree to the revisions, you must stop using the Postal Services immediately and Postal is not obligated to provide you with the Postal Services.
2.2. Postal Services.You acknowledge that Postal may change, deprecate or republish Postal APIs for any Postal Services or feature of the Postal Services from time to time, and that it is your responsibility to ensure that calls or requests you make to the Postal Services are compatible with then-current Postal APIs for the Postal Services. Although Postal endeavors to avoid changes to the Postal APIs or Postal Services that are not backwards compatible, if any such changes become necessary Postal will endeavor to notify you at least thirty (30) days prior to Postal’s implementation of any such incompatible changes to the Postal Service of which it becomes aware.
3. Postal Services
3.1. Provision of Services. Subject to the terms and conditions of this Agreement and the Postal Acceptable Use Policy (the “AUP”), Postal will use commercially reasonable efforts to make the Postal Services available to you pursuant to this Agreement, and hereby grants you a non-exclusive right to access and use the Postal Services to manage Customer Content, including the right to write and execute software applications or websites (“Customer Applications”) that interface with the Postal Services. If Customer is an agency, such rights may, as agreed by the parties, be restricted to access and use on behalf of only certain Customer clients.
3.2. Restrictions. The rights granted herein are subject to the following restrictions (the “License Restrictions”):
(a) You will not reverse engineer, decompile, disassemble , modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Postal Services;
(b) Except for Customer Applications that use the Postal Services, you will not transfer, distribute, resell, lease, license, or assign Postal Services or otherwise offer the Postal Services on a standalone basis, and, without limiting the foregoing, if Customer is an agency, you will only use the Postal Services on behalf of your clients of which you are an agency of record and which have authorized you to use the Postal Services on behalf of such clients within the scope of your other bona fide agency responsibilities for such clients;
(c) You will not (nor will it permit any third party to) use Postal Services in any manner that violates Postal’s AUP (or any other term of this Agreement);
(d) You will not otherwise use the Postal Services outside the scope expressly permitted hereunder;
(e) You will ensure that you and your users do not use temporary email addresses or share user accounts among multiple individuals, and you will permit Postal to terminate the accounts of any users that violate this Agreement or the AUP.
3.3. Account Registration; Other Customer Responsibilities.
(a) To use the Postal Services, you will be asked to create an account. As part of the account creation process, you will be asked to provide your email address and create a password. Until you apply for an account, your access to the Postal Services will be limited to what is available to the general public. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also keep that information true, accurate, current and complete after you create your account.
(b) You will (i) be responsible for all use of the Postal Services and Documentation under your account (whether or not authorized), (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and Customer Application(s), (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Postal Services and Documentation and notify Postal promptly of any such unauthorized access or use and (iv) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Postal Services, including as set forth in the Documentation. You will be solely responsible for your failure to maintain such equipment, software and services, or to use the current version of the APIs made available by Postal or, if you choose to use any of the SDKs made separately available by Postal, the current version of such SDKs, and Postal will have no liability for such failure. With your permission (which may be by email or other reasonable means), Postal may log into user accounts in order to debug the Postal Services.
3.4. Postal Platform
(a)Platform. You may use the Postal Services to purchase goods or services on the Postal platform (“Platform”). We may add to, terminate, and/or change the features of the Platform and the goods and services available for purchase on the Platform at any time, with or without notice to you.
(b) Platform Credit. You may purchase virtual credit for you or an authorized user of your account to use on the Platform to purchase goods and services (“Credit”). By purchasing Credit, you authorize Postal (or our service provider) to charge your selected payment method for the amount of the Credit requested, plus applicable fees if any, on or after the date you request to purchase Credit. When you purchase Credit, your Credit will be made available to you in your account on the Platform. Credit may be used only to make purchases on the Platform. Credit is subject to expiration if you do not use it within 5 years from the date you purchase the Credit. Credit may refunded and/or be transferred to another person, including by operation of law (such as by inheritance or bankruptcy). If we, in our sole discretion, determine that you have engaged in abuse, misuse, or fraud in connection with purchasing or spending Credit or that you attempt to do so, we may take any action, including: (i) take away any Credit in your account; (ii) temporarily suspend your ability to purchase or use Credit previously purchased; (iii) terminate your use of the Postal Services and Platform; and/or (v) cancel your online account.
(c) Transactions with Postal on Platform. By requesting or authorizing a purchase on the Platform using your Credit, you authorize Postal (or our service provider) to debit the purchase price of the transaction, plus applicable fees if any, from your Credit balance.
(d) Transactions with Participating Merchants. We may permit you to use the Platform to purchase goods and services from our participating third-party providers (“Merchants”). Except as specifically set forth herein, all matters between you and any Merchant, including but not limited to delivery and merchantability of goods and services, returns, and the honoring of warranties are solely and strictly between you and the applicable Merchant. You acknowledge that we do not endorse or warrant any Merchant nor the goods or services that they provide. To the maximum extent permitted by law, Postal has no liability for the goods or services underlying the transaction. All purchase transactions you make with a Merchant on the Platform are final unless required by law or as specified in the Merchant’s return policy. We are not a selling agent in connection with any sale or purchase by you of goods or services to a Merchant or any other person. We have no control over and, to the maximum extent permitted by law, disclaim all responsibility for the quality, fitness, safety, reliability, legality, or any other aspect of any good or service that you may purchase through the Service from a Merchant.
(e) Transaction Limitations. You are responsible for ensuring that you have sufficient Credit to complete each transaction. If you do not have sufficient Credit to cover the purchase price plus applicable fees, it may cause the transaction to be declined. Subject to applicable law, we may delay, suspend, limit or reject transactions made with your account or your Credit to the extent and for a period of time we deem necessary to protect us or other users including without limitation if (a) we, our partners, or our service providers are subject to financial, legal, or regulatory risk, (b) you have violated any term of this Agreement or applicable law, (c) any dispute exists involving your account, Credit or transactions conducted on the Platform, (d) needed to protect the security of our systems or the systems of our partners or our service providers, (e) we suspect the transaction is unauthorized, fraudulent, suspicious or unlawful, or (e) required by law, court order, or payment network rules, or if otherwise requested by law enforcement, any governmental entity, or payment network. You agree that you will at all times adhere to all law applicable to your use of the Service. Without limiting the foregoing, you may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Service on behalf of any third party, including without limitation the handling, processing, and transmission of funds for any third party. .
(f) Dormant Accounts. If there is no activity (as determined by us) on your account for the period of time set forth in the applicable unclaimed property laws and you have a Credit balance, we may notify you by sending an email to the email address we have on file for you, and give you the option of keeping your account open and maintaining or using the balance of Credit as permitted by this Agreement. We may also provide notice via U.S. mail. If you do not respond to our notice(s) within the time period specified in the notice(s), we may automatically close your account and report and/or deliver the Credit or any other value remaining in our dormant account to your state of residency as determined from your primary address, or another state with jurisdiction over the unclaimed property, as required by applicable law, laws with or without notice to you.
4.1. Fees. To the extent the Postal Services or any portion thereof are made available for any fee, you agree to pay all applicable fees, including subscription fees, additional usage fees and other fees set forth in Postal’s standard schedule of fees, as may be updated from time to time, or any other order forms for the Postal Services ordered by you and accepted in writing by Postal. Except as provided in this Agreement or as otherwise mutually agreed upon in writing, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
4.2. Subscription Fees. The Customer hereby authorizes Postal to bill the payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until the Customer terminates its account, and the Customer further agree to pay any charges so incurred. Postal reserves the right to change Postal’s prices. If Postal does change prices, Postal will provide notice of the change on the Site or in email to the Customer, at Postal’s option, at least 30 days before the change is to take effect.
4.3. Payment. The Customer hereby authorizes Postal to bill the payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until the Customer terminates its account, and the Customer further agree to pay any charges so incurred. Postal reserves the right to change Postal’s prices. If Postal does change prices, Postal will provide notice of the change on the Site or in email to the Customer, at Postal’s option, at least 30 days before the change is to take effect.
4.4. Fee Disputes. You must notify Postal in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to Postal within sixty (60) days of the applicable charge and Postal will work together with you to resolve the applicable dispute promptly. If you do not provide Postal with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.
4.5. Suspension. If your use of the Postal Services exceeds the Credit balance you have available for use on the Platform, or if you fail to pay any amounts due by you, Postal may suspend your account without prior notice to you. Postal will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of your account pursuant to this section.
4.6. Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by you. You will not withhold any taxes from any amounts due to Postal.
5. Proprietary Rights and Confidentiality
5.1. Postal’s Ownership Rights. As between the parties, Postal exclusively owns all right, title and interest in and to the Postal Services. Except for the express rights granted hereunder, Postal reserves all rights, title and interests in and to the Postal Services and Postal’s Confidential Information.
5.2. Postal Marks. Postal hereby grants you a non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Postal (each, a “Postal Mark”) for the purpose of promoting or advertising that you use the Postal Services. In using Postal Marks, you may not: (a) display a Postal Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Postal; (b) use Postal Marks to disparage Postal or its products or services; or (c) display a Postal Mark on a site that violates any law or regulation. Furthermore, Postal may modify any Postal Marks at any time, and upon notice, you will use only the updated Postal Marks. Other than as permitted in this Section, you may not use any Postal Marks without prior written consent. All use of the Postal Marks will be subject to any trademark usage guidelines that Postal may provide from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of Postal.
5.3. Feedback. Customer may from time to time provide Postal suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Postal Services. Postal will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Postal will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.4. Customer Content. As between the parties, the Customer Content and Customer Applications will be owned by you (or, if Customer is an agency, Customer’s client(s)). You hereby grant to Postal a non-exclusive, worldwide license to copy, distribute and use Customer Content only in connection with providing the Postal Services.
5.5. Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5.6. Aggregated Information. Notwithstanding anything to the contrary, Postal shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Postal Services and shall be free (during and after the term hereof) to (a) use such data and other information to develop and improve the Postal Services and other Postal offerings, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify you or any individual.
6. Warranties and Disclaimers
6.2. DISCLAIMER. THE POSTAL SERVICES, ANY BETA SERVICES (AS DEFINED BELOW), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. POSTAL HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE POSTAL SERVICES AND BETA SERVICES. WITHOUT LIMITING THE FOREGOING, POSTAL DOES NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
6.3. BETA SERVICES. FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH POSTAL WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY POSTAL. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. YOU OR POSTAL MAY TERMINATE YOUR ACCESS TO THE BETA SERVICES AT ANY TIME.
You will defend, indemnify and hold Postal and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the provision of any Customer Application (“Claim”). Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. Postal and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. Postal reserves the right, at your expense, to retain separate counsel for themselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section. You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Postal in connection with any Claim. You will also be liable to Postal for any costs and attorneys’ fees Postal incurs to successfully establish or enforce Postal’s right to indemnification under this Section.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL POSTAL BE LIABLE TO YOU FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF POSTAL HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR (II) DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “WARRANTIES AND DISCLAIMERS” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
9. Termination and Suspension
9.1. Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.
9.2. Termination and Suspension. As a Subscription Customer, your subscription will automatically renew for additional terms of length equal to your initial subscription term unless you provide notice of your intent not to renew at least ten (10) days prior to the end of the then current subscription term. Postal may terminate or suspend your account in the event you commit any material breach of any provision of these Terms and fail to fix that breach within five (5) days after written notice of that breach. Postal may also terminate or suspend your account immediately for cause if: (a) you violate (or give Postal reason to believe you have violated) the AUP; (b) there is reason to believe the traffic created from your use of the Postal Services or your use of the Postal Services is fraudulent or negatively impacting the operating capability of Postal Services; (c) Postal determines, in its sole discretion, that providing the Postal Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Postal Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If Postal suspends your account, Postal will make a reasonable attempt to notify you. Note that no refund will be provided in the event of any suspension or termination of your account.
9.3. Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
10.1. Export Controls. The Postal Services, including any software Postal may provide in connection with the Postal Services, may be subject to applicable export control laws and economic sanctions regulations. In receiving this software or the Postal Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and the Postal Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Postal Services. These laws include restrictions on destinations, users and end use. Without limitation, you may not transfer any such software or other aspect of the Postal Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of Postal’s software and the Postal Service if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
10.2. Publicity. You agree that Postal may refer to your name and trademarks in Postal’s marketing materials and website; however, Postal will not use your name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without your prior written consent (which may be by email).
10.3. Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. In addition, you agree that Postal may have any of its obligations performed through an affiliate of Postal, provided that Postal will remain responsible for its obligations hereunder and will be liable for such affiliate’s performance hereunder as if it were Postal hereunder. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4. Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5. Amendment. Postal may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. Postal will notify you via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 days from the sending of such notice, such non-objection may be relied upon by Postal as your consent to such amendment. Postal will inform you about its right to object and the consequences of non-objection in such notice. If you object to such amendment, you must do so in writing by written notice to Postal delivered within such 30-day notice period, in which case Postal may elect by written notice (which may be sent by email) to either (a) consider the amendment request rejected and have this Agreement continue without such amendment or (b) terminate this Agreement immediately. Subject to the foregoing, no amendment or modification to this Agreement will be effective unless assented to in writing by both parties.
10.6. Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.7. Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.8. Governing Law. The enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from such arbitration provisions, this Agreement will be governed by the laws of the State of California, USA, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of Los Angeles County, California, USA, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.9. Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to you must be sent to your email or other address as set forth in your account information. Notices to Postal must be sent to the following address: Postal.io, Inc., 75 S. Higuera St. Suite 240, San Luis Obispo, CA 93401, Attn: Mike dePaschalis.
10.11. Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.12. Government Terms. Postal provides the Postal Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If you (or any of your customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Postal Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Postal Services were developed fully at private expense.
10.13. Interpretation. For purposes hereof, “including” means “including without limitation”. All dates and times set forth in this Agreement or any related document are in relation to Greenwich Mean Time (GMT), unless otherwise specified.
11. Agreement to Arbitrate
11.1. First Try Customer Support. If you have any issues with the Postal Services or Postal, you must try to resolve the issue first through Postal customer support
11.3. Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Postal and its affiliates on the other hand, agree that the parties will go to court to resolve disputes relating to (a) your, your affiliate’s, Postal’s or Postal’s affiliates intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or (b) your violation of the AUP. Also, either party can bring a claim in small claims court either in San Luis Obispo, California, or the county where you live, or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
11.4. Details of Arbitration Procedure.
(a) Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (“AAA”), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.
(b) Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(c) The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
(d) Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
11.5. Class Action Waiver. Both you and your affiliates, on one hand, and Postal and its affiliates on the other hand, agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Postal and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Postal customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of the Terms will still apply.