Terms of Service
Updated: October 1, 2021
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 Inc. 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 or accepting a Service Order 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.
By accepting this Agreement, Customer and Postscript each waive the right to a trial by jury or to participate in a class action, as set forth in Section 11.
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 services described on the applicable Service Order, which may include the online customer management services presently being offered by Postscript and/or Postscript’s text messaging transaction offering. These customer management services may, as applicable, 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 is required to pay to utilize the Services as set forth in a Service Order. The Subscription Fees applicable to this Agreement are the periodic fees that allow a certain capacity of SMS & MMS messages to be sent through the Services during each billing period as set forth in an applicable Service Order.
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 solely responsible for ensuring that all End Users who are engaged by Customer through the Postscript Platform are required to agree to enforceable Terms of Service related to the sending of SMS/MMS messages that include certain provisions that are intended to protect Postscript, as described below.
22.214.171.124 Postscript Dynamic Terms or Model End User Terms. At all times during the Term, at the time and place in which Customer collects approval from its end users to subscribe to text message marketing, Customer shall either, at Postscript’s direction, link to: (i) Postscript’s hosted dynamic end user terms for Customer or (ii) Customer’s end user terms that contain the provisions set forth in the Postscript model end user terms available here(collectively, (i) and (ii), the “End User Terms”). Customer shall display the links to the applicable End User Terms in a style and manner as requested by Postscript from time to time.
126.96.36.199 Postscript makes no representation or warranty regarding the End User Terms, and you expressly agree that Postscript is not providing legal advice and no attorney-client relationship is created by the use of the End User Terms. You further agree that you accept full legal responsibility for the End User Terms and have been advised to obtain independent legal counsel before implementing the End User Terms or any variation thereof.
188.8.131.52 Customers who would like to request any updates to these End User Terms must contact Postscript at firstname.lastname@example.org and provide all suggested modifications to the End User Terms to Postscript via written notice at least thirty (30) calendar days before such modifications go into effect. Postscript will use commercially reasonable efforts to accommodate any such requested changes, provided that Postscript, and not Customer, will have the final say with regard to any changes on the End User Terms.
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:
184.108.40.206 Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
220.127.116.11 Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
18.104.22.168 Pirated computer programs, viruses, spyware, worms, Trojan horses, or other harmful code;
22.214.171.124 Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
126.96.36.199 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 and capable of forming a binding contract with Postscript, and not otherwise barred from using the Services under applicable law. Customer also agrees that it will not permit an End User under the age of eighteen (18) years to use the Postscript Platform without parental consent. Customer shall be solely responsible for any such collection of parental consent and any underage End Users’ use of the Services.
2.2 Communications Equipment. Customer is solely 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.
2.4 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 and accounts. 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.
2.5 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, certain features and functionality, 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 Termination of Service. Postscript shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Postscript Platform and/or its Services, at Postscript’s sole discretion, at any time, including without limitation in the event (a) that Postscript determines, in its sole discretion, that the Postscript Platform or its Services are being used in violation of applicable federal, state or local law or ordinance, this Agreement, or any agreement applicable to the Postscript Platform or the Services; (b) Postscript, in its sole discretion, determines that the Postscript Platform and/or its Services are being used in an unauthorized, inappropriate, or fraudulent manner; (c) Postscript determines that the use of the Postscript Platform and/or its Services adversely affect Postscript’s equipment or service to others; (d) Postscript is prohibited by an order of a court or other governmental agency from providing the Postscript Platform or its Services; (e) of a denial of service attack or any other event which Postscript determines, in its sole discretion, may create a risk to the Postscript Platform and/or its Services or to any other customers if Customer’s access to the Postscript Platform and/or its Services were not suspended; or (f) of a security incident or other disaster that impacts the Postscript Platform and/or its Services or the security of Customer Data. In addition, Postscript shall have the right to immediately deny or suspend Customer’s access to the Postscript Platform or its Services in the event (a) Postscript, or, if applicable, an Authorized Reseller, is not paid any amount due in connection with the Services; or (b) Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors by written notice; or (c) Customer’s breach or alleged breach of this Agreement. Postscript shall have no liability for any damages, liabilities, or losses as a result of any suspension, limitation, or termination of Customer’s right to use the Postscript Platform and/or its Services in accordance with this Agreement, and any suspension, limitation, or termination of Customer’s right to use the Postscript Platform and/or its Services shall be in addition to and not in lieu of any equitable remedies available to Postscript.
2.7 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.
2.8 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 reference and is subject to the terms and conditions of this Agreement. Except as otherwise provided by specific reference to the applicable provisions of this Agreement, in the event of conflict with the terms contained in any Service Order, the terms contained in this Agreement shall control. Any terms or conditions proposed by Customer in any Customer-issued order form or similar document which are different from or in addition to this Agreement shall be deemed rejected by Postscript and will be null and of no effect.
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 and each renewal thereof, regardless of Customer’s cancellation date. Unless specified otherwise in an applicable Service Order, at the beginning of each Subscription Term and each renewal thereof, Customer shall pay all Subscription Fees and all applicable taxes and other charges (collectively, “Fees”) for such period on or prior to the start date of such period, at the then-current rates.
3.2.2. Unless provided otherwise in an applicable Service Order, Postscript will charge Customer’s selected payment method (such as a credit card, debit card, or other method) for any Fees on the applicable payment date. If Postscript cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Postscript will attempt to charge the payment method again as Customer may update its payment method information. In accordance with applicable law, Postscript may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
3.3. Payment Processing. Postscript, Postscript’s third party payment processor, 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 or Postscript’s third party payment processor 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 for Self-Serve Customers. Postscript will provide a refund to any Self-Serve Customer (as defined below) up to 30 days after the start of the initial Subscription Term if the Postscript Platform or Services do not meet such Self-Serve Customer’s expectations. Refunds will be for the full amount of the subscription minus the proportional cost of any used credits. AFTER THAT, SUCH SELF-SERVE CUSTOMER’S PURCHASE IS FINAL AND SUCH SELF-SERVE CUSTOMER WILL NOT BE ABLE TO RECEIVE A REFUND OF ITS SUBSCRIPTION FEES AT ANY TIME. But if something unexpected happens in the course of completing a sales transaction through the Platform, Postscript reserves the right to cancel such transaction for any reason; if Postscript cancels such transaction, Postscript will refund any payment you have already remitted to us for such transaction. A “Self-Serve Customer” is a Customer that enters into a self-serve, click-through Service Order via Postscript’s website without any modification to Postscript’s terms and conditions. For the avoidance of doubt, a Self-Serve Customer shall not include any Customer that negotiates and signs a Service Order with 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. 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:
188.8.131.52. 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;
184.108.40.206. Customer violates and/or fails to comply with any of the terms and conditions set forth in this Agreement.
220.127.116.11. A third party vendor (including, without limitation, Twilio and similar communication platforms and cellular network carriers) restricts or prohibits Customer (or Postscript on behalf of Customer) from delivering text messages through the Services.
3.9.3. Cancellation by Customer. Customer may cancel its subscription of the Services 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, with such cancellation effective as of the end of the then-current Subscription Term. Customer will continue to have access to the Services through the end of such Subscription Term and all Fees for such period shall remain due and payable. POSTSCRIPT DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY CANCELLATIONS EXCEPT AS PROVIDED IN SECTION 3.5. 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, as applicable; (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 (d) 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, the 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 Customer 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 Customer grants Postscript a perpetual, non-exclusive, non-transferable, royalty-free, worldwide right and license to use all Customer Submissions for any purpose. Customer acknowledges and agrees that in accordance with the license granted to Postscript in this Section 4.5.3, all Submissions 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 and the parties’ relationship 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. Notwithstanding anything else, Confidential Information shall not include any information that the Receiving Party (as defined below) can demonstrate: (i) at the time of disclosure is publicly available or becomes publicly available through no act or omission of the Receiving Party, (ii) has been disclosed to the Receiving Party by a third party who is not under, and to whom the Receiving Party does not owe, an obligation of confidentiality with respect thereto, or (iii) has been independently acquired or developed by the Receiving Party without use of the Confidential Information of Disclosing Party (as defined below).
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 represents and 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. For clarity, the programs, data, information and content referenced in the preceding sentence are Customer Data. In addition, Customer warrants that Customer 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 and agrees that Postscript may: (a) compile aggregated and/or de-identified information in connection with providing the Postscript Platform and Services provided that such information cannot reasonably be used to identify Customer or any End User to whom Customer Data relates (“Aggregated and/or De-Identified Data”); and (b) use Aggregated and/or De-Identified Data for its lawful business purposes. Postscript owns all right, title, and interest in and to Aggregated and/or De-Identified Data. 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.
6.2 End Customer Data. In connection with Postscript’s performance of its Services, Postscript may process online data from Customer through the Postscript Platform regarding Customer’s End Users (the “End User Data”). Further, Customer acknowledges that such End User Data may include personal information of Customer’s End Users, as well as data relating to End User Communications. Customer acknowledges and agrees that it is a “business”, “controller” or other similar term of End User Data under applicable privacy laws. Postscript is a “service provider”, “processor” or other similar term of End User Data under applicable privacy laws and will not use such End User Data for any purpose other than to provide the Postscript Platform and its Services to Customer and to improve the Postscript Platform and its Services generally. If Customer cancels its account with Postscript or becomes inactive due to past-due amounts, Customer agrees that Postscript may delete all End User Data after a period of four (4) years. Customer agrees that it may be necessary for Postscript to access End User Data to respond to Customer’s request for assistance with any technical problems and/or queries. Customer shall hold Postscript, its subcontractors, suppliers, and licensors harmless from any and all privacy or data protection claims relating to such access. Postscript may transfer End User Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of Postscript’s stock or assets or business to which this Agreement applies.
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), POSTSCRIPT MAKES NO REPRESENTATIONS OR WARRANTIES TO CUSTOMER. WITHOUT LIMITING THE FOREGOING, THE POSTSCRIPT PLATFORM, SERVICES, ACCESS THERETO, AND THE DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, THE END USER TERMS, 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 THE POSTSCRIPT PLATFORM AND SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH THE POSTSCRIPT PLATFORM OR ANY SERVICES 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 THE POSTSCRIPT PLATFORM, THE SERVICES, DOCUMENTATION, OR ANY OTHER SERVICES PROVIDED BY POSTSCRIPT TO CUSTOMER. 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.
18.104.22.168 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, rule or regulation; (b) any of Customer’s acts or omissions related to this Agreement, (c) any claim that Customer’s Data infringes or misappropriates the intellectual property, proprietary, or privacy rights of a third party; or (d) the End User Terms, as may be updated from time to time.
22.214.171.124 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, a defect in the Postscript Platform or its Services, or the content of any End User Terms.
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:
126.96.36.199 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;
188.8.131.52 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
184.108.40.206 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:
220.127.116.11 includes an unconditional release of Postscript from all liability arising out of such claim;
18.104.22.168 does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Postscript; and
22.214.171.124 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:
126.96.36.199 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
188.8.131.52 such settlement, compromise or consent:
184.108.40.206.1 includes an unconditional release of Customer from all liability arising out of such claim;
220.127.116.11.2 does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Customer; and
18.104.22.168.3 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, INCLUDING, BUT NOT LIMITED TO, PROVIDING AND/OR HOSTING THE END USER TERMS, 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. POSTSCRIPT’S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO POSTSCRIPT IN THE TWELVE (12) MONTH PERIOD PRECEEDING THE CLAIM OR ACTION GIVING RISE TO THE LIABILITY.
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 General. In the interest of resolving disputes between Customer and Postscript in the most expedient and cost effective manner, Customer and Postscript agree that any dispute arising out of or in any way related to this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND POSTSCRIPT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
11.2 Exceptions. Notwithstanding Section 11.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
11.3 Arbitrator. Any arbitration between Customer and Postscript will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Postscript. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
11.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Postscript’s address for Notice is set forth in Section 12.4. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice is received, Customer or Postscript may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer or Postscript must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Customer’s favor with a monetary award that exceeds the last written settlement amount offered by Postscript prior to selection of an arbitrator, Postscript will pay Customer the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Postscript in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
11.5 Fees. If Customer commence arbitration in accordance with this Agreement, Postscript will reimburse Customer for Customer’s payment of the filing fee, unless Customer’s claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, Customer may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Customer’s billing address. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Customer agree to reimburse Postscript for all monies previously disbursed by it that are otherwise Customer’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits. Notwithstanding anything in this Agreement to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 11.
11.6 No Class Actions. CUSTOMER AND POSTSCRIPT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Postscript agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
11.7. Modifications to this Arbitration Provision. Except as otherwise provided in this Agreement, if Postscript makes any future change to this arbitration provision, other than a change to Postscript’s address for Notice, Customer may reject the change by sending us written notice within thirty (30) days of the change to Postscript’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes Customer rejected, will continue to govern any disputes between Customer and Postscript.
11.8. Enforceability. If Section 11.6 is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void.
11.9 Third Party Disputes. Any dispute Customer has with any third party in connection with its use of the Services is solely between Customer and such third party. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER HEREBY IRREVOCABLY RELEASES POSTSCRIPT AND ITS AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
12.1 Force Majeure. Postscript shall not be liable in damages 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 or transfer its rights or delegate any obligations pursuant to this Agreement without the express prior written consent of Postscript. Any assignment or transfer by Customer without the prior written consent of Postscript shall be null and void. Postscript may assign or transfer 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 permitted 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 Inc. 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 Inc. d/b/a Postscript
ATTN: Legal Department
3370 North Hayden Road Ste 123
Scottsdale AZ 85251
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 1 (Definitions), Section 3 (Service Order, Subscription Term, Subscription Fees, and Payment), Section 4 (Proprietary Rights), 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.