Terms of Service
Updated: December 31, 2018
IMPORTANT: This Terms of Service Agreement (the “Agreement”), together with any on-line or written order form for the purchase of the Services as herein defined (each, a “Service Order”), collectively are binding and enforceable between you (“Customer”) and Stodge, LLC d/b/a Postscript (“Postscript” or “Supplier”). This Agreement also applies if you purchase a right to use the Services as herein defined pursuant to a Service Order entered into between you and an Authorized Reseller.
“You” refers to the entity or organization using the Services described in this Agreement. By downloading the Postscript Platform, using the Postscript Platform and Postscript’s Services, or signing an order form to use the Services, you, the Customer, are accepting and agreeing to be bound by this Agreement in full. Your use of the Services of Postscript is an express acknowledgement that you have read and are bound by this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SERVICES.
GENERAL TERMS AND CONDITIONS
1.1. “Authorized Reseller” means a Postscript-authorized agent, vendor, or reseller of the Postscript Platform and Postscript’s Services, including, but not limited to, Shopify Inc. (“Shopify”).
1.2. “Confidential Information” means all confidential information disclosed by or otherwise obtained from a party to or by the other party, whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information also includes all Customer Data and End User Communications submitted to Postscript or collected through Customer’s use of the Postscript Platform or its Services.
1.3. “Customer Data” means the data created or inputted by Customer or its End Users for the purpose of using the Services of Postscript or facilitating Customer’s use of the Services.
1.4. “Postscript Platform” means the software program supplied by Postscript to Customer, including when obtained as an application from the Shopify App Store.
1.5. “Services” means the online customer management services presently being offered by Postscript. These customer management services include using Postscript software to retrieve End User information from End User Communications, viewing data available from the End User Communications, and using Postscript’s marketing platform to send messages to End Users through SMS and MMS messages.
1.6. “Submissions” means any type of communication that might be sent by Customer or any End User.
1.7. “End User” means an individual who interacts with Customer, its Affiliates, and/or its Agents through the Services.
1.8. “End User Communications” mean the End User emails, SMS and MMS messages, and information submitted through the Services.
1.9. “Subscription Fees” are the fees that Customer pays to utilize the Services. The Subscription Fees applicable to this Agreement are monthly fees that allow a certain capacity of SMS & MMS messages to be sent through the Services during each monthly period.
2. GENERAL RULES FOR POSTSCRIPT PLATFORM & SERVICES
2.1 Acceptable Use Policy – Postscript Platform & Services.
2.1.1 Generally. Customer may not, and may not permit any third party to, use the Postscript Platform or Services in violation of (a) the CTIA Messaging Principles and Best Practices Guidelines; (b) the CTIA Short Code Monitoring Handbook; or (c) any other applicable laws, rules, and regulations, including, but not limited to, the Telephone Consumer Protection Act and those laws, rules, and regulations applicable to data privacy and use and consumer protection.
2.1.2 Programs. Customer shall be responsible for ensuring that all programs used in conjunction with the Postscript Platform or Services (including advertising or promotional campaigns, contests, drawing, raffles, lotteries, etc.) (“Programs”), including the administration thereof, comply with all applicable laws, rules, and regulations.
2.1.3 Enforceable Terms of Service. Customer shall be responsible for ensuring that all End Users who are engaged by Customer through the Postscript Platform are required to agree to the Customer’s Terms of Service (the “End User Terms of Service”) and that Customer at all times has in effect an enforceable Terms of Service related to the sending of SMS/MMS messages that include certain provisions that are intended to protect Postscript.
22.214.171.124 The Customer has the option to utilize model End User Terms of Service provided by Postscript as a starting point for developing its own End User Terms of Service. These model End User Terms of Service are provided by Postscript as a courtesy and Postscript makes no representation or warranty regarding the model End User Terms of Service. Postscript is not providing legal advice and no attorney-client relationship is created by the use of the model End User Terms of Services. You agree that you accept full legal responsibility for the End User Terms of Service and have been advised to obtain independent legal counsel before implementing the model End User Terms of Service or any variation thereof.
126.96.36.199 Whether the Customer utilizes the model End User Terms of Service or elects to draft its own End User Terms of Service, the End User Terms of Service must be provided to Postscript via written notice prior to receiving access to the Postscript Platform and its Services. In the event Customer desires to modify its End User Terms of Service, all provisions of the modified End User Terms of Service must be provided to Postscript via written notice at least thirty (30) calendar days before they go into effect. At all times, Customer’s End User Terms of Service shall contain at least the following provisions:
a. An express representation and warranty that the End User is supplying his or her own phone number, and not someone else’s, to Customer, and that the End User agrees to provide Customer with notice if he or she is no longer the primary user of that number;
b. A dispute resolution and/or jurisdiction provision expressly providing that End User waives the right to any class action litigation and/or jury trials and expressly providing that End User agrees to resolve all disputes via confidential arbitration in which the arbitrator will apply the substantive law of the Federal Judicial Circuit in which the Customer’s principle place of business is located for any and all TCPA related claims;
c. An opt-out provision expressly providing that the End User agrees to opt-out of receiving any further messages on the Postscript Platform via one or more explicitly designed methods, which, at a minimum, shall include the following: (a) any of the opt-out keywords that are universally recognized, including but not limited to STOP, UNSUBSCRIBE, CANCEL, END, or QUIT; and (b) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by the Customer for the purpose of opting-out End Users. The opt-out provision must also expressly stipulate that any opt-out method not expressly provided in the Customer’s opt-out provision is unreasonable;
d. A provision expressly providing that Postscript is a third-party beneficiary of the Customer’s arbitration, class action, and jury waiver provisions;
e. An age restriction provision expressly providing that the End User may not use or engage with the Postscript Platform if the End User is under thirteen (13) years of age and that, if the End User is between the ages of thirteen (13) and eighteen (18) years of age, End User must have his or her parent’s or legal guardian’s permission to use or engage with the Postscript Platform; and
f. A prohibited content provision expressly providing that the End User is prohibited from using the Postscript Platform or its Services in connection with any of the following types of content:
1. Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
2. Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
3. Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
4. Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
5. Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act.
2.1.4 Telephone Consumer Protection Act (“TCPA”). Customer is solely responsible and liable for ensuring that its use of the Postscript Platform or its Services comply with the TCPA, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, including, without limitation, ensuring that all phone numbers and other personal information used in connection with the Postscript Platform or its Services have been collected in accordance with the TCPA, ensuring that sufficient notice and consent has been received and maintained by Customer in connection with its use of the Postscript Platform or its Services under the Agreement, and for the preparation and distribution of all messages, content, and other materials delivered to the Customer’s End Users and other recipients by and through the Postscript Platform or its Services.
2.1.5 Controlling the Assault of Non-Solicited Pornography and Marketing Acts (“CAN-SPAM”). Customer is solely responsible and liable for ensuring that its use of the Postscript Platform or its Services comply with the CAN-SPAM Act, 15 U.S.C. §§7701-7713.
2.1.6 Prohibited Content. Customer acknowledges and agrees to not hold Postscript liable for any prohibited content that it or its End Users send over the Postscript Platform or via Postscript’s Services, including, but not limited to, content that may be obscene, indecent, misleading, fraudulent, racist, intolerant, harmful, or otherwise objectionable. In addition to, and without limitation to, the terms listed above, Customer acknowledges that Postscript prohibits any use of the Postscript Platform or its Services in connection with any of the following types of content:
188.8.131.52 Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
184.108.40.206 Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
220.127.116.11 Pirated computer programs, viruses, spyware, worms, Trojan horses, or other harmful code;
18.104.22.168 Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
22.214.171.124 Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).
2.1.7 Age Restriction. In order to use the Postscript Platform and/or its Services, Customer must be eighteen (18) years of age or older. Customer acknowledges and agrees that Customer is not under the age of eighteen (18) years and is of adult age in Customer’s jurisdiction and is permitted by that jurisdiction’s Applicable Law to use the Postscript Platform and its Services. Customer also agrees that it will not knowingly permit an End User under the age of eighteen (18) years to use the Postscript Platform without parental consent.
2.2 Communications Equipment. Customer is responsible for obtaining and maintaining all of the appliances, hardware, software, and services that Customer may need to access and use the Postscript Platform and its Services. Without limiting the foregoing, Customer must obtain and maintain, and pay all charges, taxes, and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the Postscript Platform and its Services.
2.3 Passwords. Customer is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Customer IDs, or other credentials and login information (collectively, “Passwords”) that have been provided to Customer or that are generated in connection with Customer’s use of the Postscript Platform and its Services. Customer will not disclose or make available any Passwords other than to Customer authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords, the Postscript Platform, or its Services. Customer is solely and fully responsible for all activities that occur in connection with Customer’s Passwords. Without limiting the foregoing, Customer is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Customer’s account on the Postscript Platform. In the event Customer believes the Passwords have been compromised, Customer is solely responsible for notifying Postscript immediately by emailing such notice to email@example.com.
2.4 Changes to Service. Postscript has the right to change, modify, update, add to, discontinue, or retire any aspect or feature of the Postscript Platform or its Services including, but not limited to, hours of availability, equipment needed for access or use, and the type and size of files that can be stored or transmitted. Postscript may provide notice of material changes to the Postscript Platform or its Services by posting them on the Postscript Website. It is Customer’s responsibility to check the Postscript Website periodically to be informed of any changes. You understand and agree that Postscript may change the telephone number(s) and/or the credit card payment processing system. You agree that Postscript will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort, or other grounds.
2.6 Refusal of Service. Postscript reserves the right to refuse service to any person or entity for any reason which Postscript, in its sole discretion, deems to be appropriate.
2.7 Reservation of Rights. Postscript reserves the right to determine any violation of the General Rules listed in Section 2 at its sole discretion.
3. SERVICE ORDER, SUBSCRIPTION TERM, SUBSCRIPTION FEES, AND PAYMENT
3.1. Service Order. Each Service Order is hereby incorporated into this Agreement by this reference and is subject to the terms and conditions of this Agreement; provided, however, that in the event of conflict with the terms contained in any Service Order, the terms contained in this Agreement shall control. In the event of any conflict between the terms and conditions of this Agreement or a Service Order and any Customer-issued order form or purchase order, the terms and conditions of this Agreement and the applicable Service Order shall control.
3.2. Subscription Term.
3.2.1. Customer acknowledges and agrees to be held responsible for all Subscription Fees for the period specified on the applicable Service Order (“Subscription Term”) and acknowledges and agrees to pay all Subscription Fees for the Subscription Term, regardless of Customer’s cancellation date.
3.2.2. All Subscriptions Fees for the Postscript Platform and its Services will continue and renew automatically for so long as Customer’s subscription is in place and all applicable fees are timely paid or until Customer provides Postscript with notice of its decision to cancel its subscription renewal, as described in Section 3.7.3.
3.3. Payment Processing. Postscript, or, if applicable, the Authorized Reseller, will charge Customer the Subscription Fees and applicable taxes for the Postscript Platform and Services rendered in advance of each billing period on or after the first day of such billing period. If Customer is paying by credit card or electronic check, (a) Customer hereby irrevocably authorizes Postscript, or, if applicable, the Authorized Reseller, to charge the credit card or other payment method provided for any such amounts when due; (b) amounts due will be automatically charged in advance; and (c) if Customer’s credit card expires or is declined, Customer hereby gives Postscript, or, if applicable, the Authorized Reseller, permission to submit the credit card charge with a later expiration date and/or suspend Customer’s access to the Postscript Platform and its Services until a new method of payment is provided. Postscript, or, if applicable, the Authorized Reseller, reserves the right to have Customer complete a credit application to determine Customer’s creditworthiness as a condition of receiving further Services.
3.4 Recurring Billing. By starting its Postscript subscription and providing or designating a Payment Method, Customer authorizes Postscript to charge Customer a subscription fee at the then-current rate, and any other charges Customer may incur in connection with its use of the Postscript subscription service to Customer’s Payment Method. Customer acknowledges that the amount billed each period may vary for reasons that may include differing amounts due to promotional offers, including VIP Code redemption and promotional code redemption, and/or changing or adding a plan, and Customer authorizes Postscript to charge its Payment Method for such varying amounts.
3.5. 30-day Money Back Guarantee. Postscript will provide a refund to the Customer up to 30 days after the original purchase if Postscript does not meet Customer’s expectations. Refunds will be for the full amount of the subscription minus the proportional cost of any used credits. At any time, and for any reason, Postscript may provide a refund, discount, or other consideration to some or all of Postscript’s customers. The amount and form of such credits, and the decision to provide them, are at the sole and absolute discretion of Postscript.
3.6. Billing Disputes. In the event Customer would like to dispute any bill it received from Postscript, Customer acknowledges and agrees to provide Postscript with written notice within fourteen (14) calendar days of delivery of the billing statement. If any issues or disputes are not received within this timeframe, Customer waives its right to said dispute. Any billing dispute is further governed by Section 11 (Dispute Resolution).
3.7. Late Payments. Late payments, including those resulting from credit card declines that the Customer fails to resolve within five (5) business days of being informed of the decline, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
3.8. Collection of Subscription Fees Owed. If Postscript, or, if applicable, the Authorized Reseller, must initiate a collection process to recover Subscription Fees due and payable hereunder, Postscript, or, if applicable, the Authorized Reseller, shall be entitled to recover from Customer all costs associated with such collection efforts, including, but not limited to, reasonable attorneys’ fees.
3.9.1. Cancellation by Postscript. Postscript may immediately cancel Customer’s Subscription Term without notification to Customer under the following circumstances:
126.96.36.199. Customer’s credit card expires, is canceled, or is otherwise terminated, and Postscript is not immediately provided with another valid credit card or alternative form of payment by Customer;
188.8.131.52. Customer violates and/or fails to comply with any of the terms and conditions set forth in this Agreement.
3.9.2. Cancellation by Postscript Without Cause: Upon Postscript canceling Customer’s subscription to the Postscript Platform and its Services without cause, Customer may be entitled to a pro-rata refund of any pre-paid and unused Subscription Fees advanced to Postscript.
3.9.3. Cancellation by Customer. Customer may cancel its subscription at any time through the Postscript Platform or by providing written notice to Postscript at least five (5) business days prior to the expiration of the then-current Subscription Term. Customer will continue to have access to the Postscript subscription service through the end of its billing period. POSTSCRIPT DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY CANCELLATIONS THAT OCCUR BEYOND THE INITIAL 30 DAYS. To cancel, email your account representative.
4. PROPRIETARY RIGHTS
4.1 License. Subject to the terms and conditions of this Agreement, Postscript grants to Customer a non-exclusive, non-transferable, revocable license during the Subscription Term, without the right to sublicense, to use the Postscript Platform solely for the purposes of accessing and using the Services. Except for the limited license granted hereunder, Postscript reserves all rights not expressly granted and no such additional rights may be implied.
4.2 Ownership. Customer acknowledges that (a) all right, title, and interest in and to the Postscript Platform and its Services, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and other proprietary and intellectual property rights embodied therein or associated therewith, are and shall remain with Postscript or its third-party licensors; (b) no right or interest in the Postscript Platform or its Services is conveyed other than the limited license granted hereunder; (c) the Postscript Platform and its Services are protected by copyright and other intellectual property laws; and (iv) Postscript asserts that the Postscript Platform and its Services embody valuable confidential and secret information of Postscript and/or its third-party licensors, the development of which required the expenditure of considerable time and money.
4.3 Restrictions. Unless Postscript grants Customer permission, Customer shall not, and shall not permit any third party to: (a) sell, transfer, lend, provide or otherwise make available, or disclose to third parties the Postscript Platform, its Services, or any components thereof; (b) obscure, alter, or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained with the Postscript Platform, its Services, or any documentation or Postscript materials related thereto; (c) modify or alter, copy, publish, exchange, trade, broadcast, or create derivative works based on the Postscript Platform or Postscript’s Services; (d) “frame” or “mirror” any content forming part of the Postscript Platform or Postscript’s Services; (e) reverse engineer, decompile, disassemble, decode, or otherwise attempt to discover the source code of the Postscript Platform; (f) bypass, delete, or disable any copy protection mechanisms or any security mechanisms on the Postscript Platform; or (g) access the Postscript Platform or Postscript’s Services in order to (i) build a competitive product or service, (ii) translate the Postscript Platform or otherwise attempt to learn the source code, structure, algorithms, or internal ideas underlying the Postscript Platform, or (iii) copy any ideas, features, functions, or graphics of the Postscript Platform or Postscript’s Services. In addition to these restrictions, Customer shall take all reasonable precautions to prevent unauthorized or improper use of the Postscript Platform or its Services.
4.4 Non-Assertion of Intellectual Property Infringement Claims. Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Postscript or any Authorized Reseller, any patent infringement or other intellectual property infringement claim with respect to the Postscript Platform, its services, or any documentation or Postscript materials related thereto.
4.5 License to Customer Marketing Content and Submissions.
4.5.1 Pursuant to Customer’s use of the Postscript Platform and its Services, Customer grants Postscript, its Authorized Resellers, and any third-party partner website(s) a non-exclusive, transferable, royalty-free license during and after the Subscription Term to use Customer’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and all other marketing or promotional content provided by Customer to Postscript (“Customer Marketing Content”) in connection with the advertising, promotion, and sale of Customer’s products, services, or business, and to sublicense such Customer Marketing Content to third parties in connection with the provision of such Services. Customer further acknowledges and agrees that Postscript or its sublicensees may modify Customer Marketing Content in order to effectively provide the Services ordered in Postscript’s reasonable discretion, provided that no modifications shall materially alter the terms of any Offer without Customer’s prior written consent.
4.5.2 Customer grants Postscript a perpetual, non-exclusive, non-transferable, royalty-free, worldwide right and license to use Customer Marketing Content on the Postscript Website and to identify Customer on the Postscript Website as one of its partners. In addition, Customer grants to Postscript the right to use Customer Marketing Content and any performance data related to Customer’s use of the Postscript Platform and its Services in case studies, slide decks, and any other marketing materials.
4.5.3 All Customer Submissions become the property of Postscript and may be published (except personal information) by Postscript in any manner that Postscript deems to be appropriate, including via all forms of media and publication. Customer is solely responsible for the content of all Submissions, including any violation of copyright, privacy, fraud or other Applicable Laws and regulations. Customer acknowledges and agree to hold Postscript harmless and to defend and indemnify Postscript in accordance with Section 8 (Indemnification) from any civil actions filed or threatened to be filed by any third party or entity who alleges that Customer’s Submissions support a legal cause of action.
4.6 Publicity. Either Postscript or Customer may publicize the availability of the Services through press releases, media interviews, and other public statements, provided that any press release will be provided to the other party in writing and at least forty-eight (48) hours before publication for the other party’s approval, which shall not be unreasonably withheld. Either Postscript or Customer may include the other party’s name and logo in marketing materials featuring or referencing the availability of the Postscript Platform and/or its Services, provided that each party will comply with the other party’s trademark usage guidelines in doing so.
5.1 Confidential Information - Definition.
5.1.1 Customer’s Confidential Information includes Customer Data and End User Communications. Postscript’s Confidential Information includes the Postscript Platform, all documentation related to and the product of all Services, and Postscript’s financial, security, architectural, or similar information. The Confidential Information of each party shall include the terms and conditions of this Agreement and any revised Agreement entered into, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by or on behalf of such party.
5.2 Protection of Confidential Information.
5.2.1 Each party agrees to maintain Confidential Information in confidence and not to disclose it or any portion of it, except to its and its Affiliates’ employees and consultants who have a need to know such Confidential Information and are bound by obligations of confidentiality similar to those herein, for a period of three (3) years after the expiration or termination of this Agreement, using the same care and discretion to avoid disclosure, publication, or dissemination of the Confidential Information as it uses with its own confidential or proprietary information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party shall have liability to the other with regard to any Confidential Information that is required to be disclosed by law or court order, provided that the party that received the Confidential Information (“Receiving Party”) shall provide reasonable advance notice to enable the party that provided the Confidential Information (“Disclosing Party”) to seek a protective order or otherwise prevent such disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6. CUSTOMER DATA
6.1 Customer Data. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to Postscript, all programs, data, information and other content transmitted via the Postscript Platform and hosted through its Services, including, without limitation, End User Data (as defined below) and the Customer Marketing Content (collectively, the “Customer Data”) and has the full authority to transmit and store the Customer Data through the Postscript Platform and its Services. Customer hereby authorizes the storage of Customer Data by Postscript through the Postscript Platform and its Services. Customer acknowledges that Customer bears sole responsibility for adequate security, protection, and backup of Customer’s Data on Customer’s equipment. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions, and other causes, which might result in Customer restoring files that are no longer usable. Without limiting the generality of Section 6, Postscript will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction, or loss of any Customer Data on Customer’s equipment.
7. WARRANTIES AND DISCLAIMERS
7.1 Mutual Warranties.
7.1.1 Each party represents and warrants that: (a) it has the legal power to enter into the Agreement; (b) the signatory hereto has the authority to bind the Customer; and (c) when executed, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with the terms listed hereto.
7.2 Customer Warranties.
7.3.1 EXCEPT AS SET FORTH IN SECTION 7.1 (Mutual Warranties), EACH APPLICATION, ACCESS THERETO, THE DOCUMENTATION, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND POSTSCRIPT AND ITS AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO ANY APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH ANY APPLICATION IS ACCURATE, COMPLETE, OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; AND (C) SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN, OR LOSS, INJURY, OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS, OR INTERRUPTIONS OF ANY APPLICATION, DOCUMENTATION, OR SERVICES. IF ANY WARRANTY DISCLAIMER IN THIS SECTION IS INVALID, ILLEGAL, OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY, ILLEGALITY, OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER WARRANTY DISCLAIMER OR PROVISION OF THIS SECTION OR INVALIDATE OR RENDER UNENFORCEABLE SUCH WARRANTY DISCLAIMER IN ANY OTHER JURISDICTION.
8.1 Indemnification by Customer.
184.108.40.206 Customer shall indemnify, hold harmless, and defend Postscript and any of its officers, directors, employees, or affiliates against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that Postscript may incur as a result of such third-party claims, demands, or causes of action (collectively, “Losses”) that relate to or arise out of (a) Customer’s use of the Postscript Platform or Services in alleged violation of this Agreement or applicable law; (b) any of Customer’s acts or omissions related to this Agreement, or (c) any claim that Customer’s Data infringes or misappropriates the intellectual property rights of a third party.
220.127.116.11 Subject to the allocation provisions of Section 8.2, Customer’s indemnification obligations in this Section 8.1 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including but not limited to claims relating to the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of Postscript or a defect in the Postscript Platform or its Services.
8.1.2 Postscript’s Notice of Third-Party Claims. Postscript shall give Customer prompt written notice (a “Claim Notice”) of any Losses or discovery of facts on which Postscript intends to base a request for indemnification under Section 8.1. Postscript’s failure to provide a Claim Notice to Customer under this Section 8.1.2 does not relieve Customer of any liability that Customer may have to Postscript, but in no event shall Customer be liable for any Losses that result directly from a delay in providing a Claim Notice, which delay materially prejudices the defense of the related third-party claim. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). Postscript shall furnish promptly to Customer copies of all papers and official documents received in respect of any Losses. Customer’s duty to defend applies immediately, regardless of whether Postscript has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
8.1.3 Customer Control of Defense. Customer may assume control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section 8.1 (an “Indemnified Claim”) by sending written notice of the assumption to Postscript on or before seven (7) business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing (which Postscript shall find reasonably satisfactory) and at Customer’s sole cost and expense, the settlement or defense thereof.
8.1.4 Postscript’s Obligations Regarding Customer’s Control of Defense. If Customer assumes control of the defense under Section 8.1.3, Postscript shall fully cooperate with Customer in connection therewith; and may employ, at any time, separate counsel to represent it, provided that Postscript is solely responsible for the costs and expenses of any such separate counsel.
8.1.5 Postscript’s Control of Defense. Notwithstanding anything to the contrary in Section 8.1, upon giving written notice to Customer, Postscript may take control of its defense to an Indemnified Claim with counsel of its choosing if:
18.104.22.168 the Indemnified Claim is one for which Postscript properly gave Customer a Claim Notice under Section 8.1.2, and Customer fails to timely assume the defense or refuses to defend the Indemnified Claim under Section 8.1.3;
22.214.171.124 the Indemnified Claim seeks an injunction or other equitable relief against Postscript that has a reasonable potential of impacting, directly or indirectly, customers of Postscript other than Customer; or
126.96.36.199 Postscript reasonably determines that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Customer and that counsel for Customer may not fully or adequately represent the interests of Postscript.
8.1.6 Customer’s Obligations Regarding Postscript’s Control of Defense. If Postscript assumes control of the defense under Section 8.1.5, Customer shall reimburse Postscript promptly and periodically for the costs properly incurred in defending against the Indemnified Claim (including its attorneys’ fees and expenses) and remain responsible to Postscript for any Losses indemnified under Section 8.1.
8.1.7 Settlement of Indemnified Claims by Customer. Customer shall give prompt written notice to Postscript of any proposed settlement of an Indemnified Claim. Customer may not, without Postscript’s prior written consent, settle or compromise any indemnification-related claim or consent to the entry of any indemnification-related judgment unless such settlement, compromise, or consent:
188.8.131.52 includes an unconditional release of Postscript from all liability arising out of such claim;
184.108.40.206 does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Postscript; and
220.127.116.11 does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Postscript.
8.1.8 Settlement of Indemnified Claims by Postscript. Postscript may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of Customer, which Customer shall not unreasonably withhold, condition, or delay, unless:
18.104.22.168 the Indemnified Claim is one for which Postscript properly gave Customer a Claim Notice under Section 8.1.2, and Customer failed to assume the defense or refused to defend the Indemnified Claim under Section 8.1.3; or
22.214.171.124 such settlement, compromise or consent:
126.96.36.199.1 includes an unconditional release of Customer from all liability arising out of such claim;
188.8.131.52.2 does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Customer; and
184.108.40.206.3 does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Customer.
8.2 Allocation of Liability for Certain Judgments or Awards. In the event a final judgment or award is entered against both Customer and Postscript and such judgment or award includes a finding that Postscript is liable in whole or in part for any enhanced, exemplary, or punitive damages because of reckless, wanton, or willful misconduct, then the parties’ respective liability shall be as follows:
8.2.1 In the event that only Postscript is found to have engaged in conduct that is determined to be reckless, wanton, or willful, Customer shall have no obligation to indemnify Postscript for any such judgments or awards.
8.2.2 In the event that both Postscript and Customer are found to have engaged in conduct that is determined to be reckless, wanton, or willful, Postscript’s sole obligation shall be to contribute to the payment of any enhanced, exemplary, or punitive damages in an amount proportional to its fault. Customer’s duty under Section 8.1 to defend and indemnify Postscript for all liability that would have resulted from acts deemed to be negligent shall not be affected by this Section 8.2.
9. LIMITATION OF LIABILITY
9.1 Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, POSTSCRIPT WILL NOT HAVE ANY LIABILITY TOWARDS CUSTOMER FOR ANY DAMAGES ARISING FROM CUSTOMER’S USE OF THE POSTSCRIPT PLATFORM AND/OR SERVICES THAT POSTSCRIPT PROVIDES TO CUSTOMER, WHETHER THE CAUSE OF ACTION BE BASED ON TORT, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, PUNITIVE, ACTUAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR DUE TO ANY CAUSE OF ANY NATURE. BY ENTERING INTO THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES TO HOLD POSTSCRIPT HARMLESS FROM ANY LOSS OR HARM OF ANY NATURE DUE TO CUSTOMER’S USAGE OF THE POSTSCRIPT PLATFORM AND/OR SERVICES THAT POSTSCRIPT PROVIDES TO CUSTOMER, WHETHER DIRECTLY OR INDIRECTLY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.1 Customer shall, at its own cost and expense, procure and maintain in full force and effect during the Term of this Agreement, policies of insurance, of the types and in the minimum amounts reasonably necessary and appropriate in its industry to perform its obligations under this Agreement, with a responsible insurance carrier duly qualified in those states (locations) where the Postscript Platform and its Services are to be performed or used. Unless Postscript otherwise agrees in writing, a complying policy will include a coverage rider expressly providing for coverage of TCPA claims and will include a “most favored jurisdiction” provision. Upon Postscript’s request, Customer will provide its certificate of insurance.
11. DISPUTE RESOLUTION
11.1 Exclusive Dispute Resolution Mechanism. The parties shall resolve any and all disputes, controversies, or claims arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), under the provisions of Sections 11.1 through 11.3. The procedures set forth in Sections 11.1 through 11.3 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time, and Sections 11.1 through 11.3 are express conditions precedent to binding arbitration of the Dispute.
11.2 Negotiations. A party shall send written notice to the other party of any Dispute (“Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including at least one negotiation session attended by the party’s Chief Operations Officer, his/her designee, or a party’s representative with sufficient authority to negotiate and settle the Dispute on behalf of the corresponding party.
If the Parties cannot resolve any Dispute via the negotiation process for any reason, including, but not limited to, the failure of either party to agree to any settlement, within thirty (30) calendar days after the negotiations under this Section started, either Party may commence binding arbitration in accordance with the provisions of the following Section 11.3.
11.3 Arbitration. If the negotiations mentioned in the previous Section 11.2 do not resolve the Dispute, the parties agree to submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of Arizona, without regard to its conflict of laws rules. The venue of any such arbitration shall be in Arizona. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the Dispute. If the parties do not agree on an arbitrator within thirty (30) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in Section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration, or the papers, documents, or evidence related thereto, without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a Dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial.
12.1 Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default that is caused by conditions beyond its control, including, but not limited to, acts of God, earthquakes, fire, flood, epidemics, labor disputes, changes in law, regulations or government policy, government restrictions (including the denial or cancellation of any export or other necessary license), riots, wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including transportation difficulties, acts or omissions of vendors or suppliers, or mechanical, electronic, internet service provider, or communications failure). Postscript and Authorized Resellers are not responsible for server downtimes under any circumstances. If the force majeure continues for more than thirty (30) calendar days, either party may terminate this Agreement for convenience upon written notice to the other party.
12.2 Assignment. Customer may not assign its rights or delegate any obligations pursuant to this Agreement without the express prior written consent of Postscript. Any assignment by Customer without the prior written consent of Postscript shall be null and void. Postscript may assign its rights or obligations pursuant to this Agreement without providing notice to Customer and without Customer’s prior consent, provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s successors and assigns.
12.3 Independent Contractor Relationship. Neither Customer nor Postscript shall be deemed to be an agent of the other and the relationship of Customer and Postscript shall be that of independent contractors. Neither Customer nor Postscript shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
12.4 Notices. Any notice or report required or permitted to be given or made under this Agreement by either party will be in English, in writing, and be deemed to have been fully given and received (a) when delivered personally; (b) when sent by confirmed facsimile; (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) one (1) business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (e) to the extent expressly permitted in this Agreement, one (1) business day after being sent via email. Notices will be sent to the parties at the addresses set forth in this Agreement or such other address as a party may specify in writing to the other. All notices to Stodge, LLC d/b/a Postscript must be made to the address listed below and all notices to Customer must be made to the mailing or email address of Customer’s primary contact with Postscript.
Postscript Notice Address:
Stodge, LLC d/b/a Postscript
8136 E. Sheridan St.
Scottsdale AZ 85257
ATTN: Legal Department
Postscript may broadcast notices or messages through the Postscript Platform or by posting notices or messages on the Postscript Website to inform Customer of changes to the Postscript Platform and/or its Services or other matters of importance; Postscript may also inform Customer of such broadcast by e-mail or surface mail.
12.5 Support. For Customer support, please email firstname.lastname@example.org. In providing support, Postscript or a Postscript agent may use a variety of tools to aid in the process of resolving Customer issues and may request that Customer provide additional information in order to resolve these issues. Customer hereby grants Postscript and such agent the right to use those tools and any information Customer provides to Postscript in order to provide Customer with support.
12.6 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.9 Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
12.10 Survival. Section 3 (Service Order, Subscription Term, Subscription Fees, and Payment), Section 5 (Confidentiality), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 11 (Dispute Resolution), and Section 12 (General) shall survive the termination or expiration of this Agreement.