Last Modified: January 25, 2022
This Service Agreement (this “Service Agreement”), by and between Postalytics Inc. (“Postalytics” or “we” or “our”) and the customer (“Customer” or “you” or “your”) who electronically accepts this Agreement or who is identified on a mutually executed order document (“Order Form”) that references this Service Agreement and shall be effective upon the earlier of date of electronic acceptance or the latest date set forth on the signature page of the first Order Form (“Effective Date”). Customer and Postalytics may be referred to in the Agreement individually as a “Party” and collectively as the “Parties.”
This Service Agreement, all Order Forms, supplemental terms referenced below, and all statements of work that reference this Service Agreement (collectively, this “Agreement”) govern Customer’s access to and use of Postalytics’ platform (and all content, templates and data provided therein by Postalytics or its licensors) accessible via a website or an API provided by Postalytics and used to create, deploy, and manage marketing campaigns (the “Services”). Any Services provided at no charge or on a trial basis are referred to hereunder as a “Free Plan”.
- Acceptance and Modifications
THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN POSTALYTICS AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING TO INDICATE ACCEPTANCE ONLINE, OR ACCESSING OR USING ANY POSTALYTICS SERVICE. BY SIGNING AN ORDER FORM, OR ACCESSING OR USING ANY POSTALYTICS SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, POSTALYTICS’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY POSTALYTICS SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S CONSENT TO THIS AGREEMENT.
Postalytics reserves the right to update and change the Agreement from time to time without notice. Postalytics may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to the Postalytics website. Customer’s use of the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) the Services. In addition, Postalytics may occasionally notify you of changes or modifications to this Agreement by email. Postalytics assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, Postalytics may terminate Customer’s or any End User’s use of Services for any violation or breach of any of the terms of this Agreement. POSTALYTICS RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THE SERVICES, INCLUDING WITHOUT LIMITATION FEES FOR THE SAME, AT ANY TIME.
- Grant of Access
Subject to the terms and conditions of this Agreement, Postalytics hereby grants to Customer the non-exclusive, non-transferable right for its employees, representatives, consultants, contractors, agents or other individuals who are authorized by Customer to use the Service (“End Users”) to access and use the Service for internal use solely during the Term in accordance with the limitations in this Agreement. Postalytics may provide some or all elements of the Service through third party service providers.
If Customer’s use of the Service exceeds the entitlements applicable to its then-current plan of the Service, Postalytics may (i) require Customer to upgrade to a different plan of the Service and pay any fees associated therewith; or (ii) terminate the Service.
- Customer Responsibility
Customer must use, and ensure its End Users use, reasonable security measures to access the Service, and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service. Postalytics reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Service (e.g., by temporarily suspending access).
Customer must notify Postalytics promptly upon becoming aware of, and make a reasonable effort to stop (i) any breach or suspected breach of this section, (ii) any unauthorized use of any End User password or account (or any other breach of security of the Service) and (iii), any unauthorized copying, distribution or other misuse of any aspect of the Service.
Customer agrees to pay all fees and charges in accordance with this Agreement. Unless otherwise set forth in an Order Form, fees for the Service may be comprised of recurring payments, on demand payments, prepaid credits, and any other payment structure provided by Postalytics and ordered by Customer or an End User in the Service. Postalytics reserves the right to modify or increase fees at any time. If Customer does not agree to a fee modification or increase, it may cancel the Agreement or change its plan in accordance with the below. In the event Customer or an End User prepays for credits for mailings, such credits have no cash value and must be used within twelve (12) months of purchase. All fees are nonrefundable, must be paid in U.S. or Canadian Dollars as requested by Postalytics at the time of ordering, are exclusive of taxes, levies, or duties imposed by taxing authorities. Customer is solely responsible for payment of all such taxes, levies, and duties.
If Customer is paying by credit card, Customer authorizes Postalytics to charge its credit card or bank account for all fees payable during the Term. Customer further authorizes Postalytics to use a third party to process payments, and consent to the disclosure of your payment information to such third party. If Customer is paying by invoice, Postalytics will invoice Customer on a monthly basis commencing upon the start of the Term. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form. Customer agrees to keep its contact information, billing information and credit card information (where applicable) up to date.
- Term and Termination
Unless otherwise set forth in an Order Form, the term begins when you sign up for Postalytics and continues until you or Postalytics cancels the Agreement (the “Term”). You may cancel or change your account plan by using the cancellation or change account feature on your account page in the Service so long as you are current with all payments due to Postalytics. Postalytics may cancel your account by providing you with notice. Postalytics may also suspend the Service at any time and for any reason. If Customer’s or an End User’s account is inactive for twenty-four (24) consecutive months, Postalytics may terminate the applicable account. Upon cancellation, Customer acknowledges and agrees that Postalytics will promptly delete all Customer Data from the Service. This information cannot be recovered.
- Customer Data
All information and content created, uploaded, or posted on the Service or otherwise provided to Postalytics by or on behalf of Customer is collectively deemed “Customer Data”. Postalytics does not pre-screen Customer Data, so Customer is solely responsible for the accuracy, quality, and legality of Customer Data. Customer shall not provide any data or information to Postalytics for which it lacks sufficient ownership, consent, or other rights. Postalytics and its designees have the right (but not the obligation), in their sole discretion, to refuse or remove any Customer Data from the Service.
Customer agrees that Postalytics may store, access and process Customer Data as necessary to provide the Service, including monitoring use of the Service, improving or enhancing the Service, and otherwise meeting Postalytics’ obligations under the Agreement, and as otherwise instructed by Customer of such Customer Data. Without limitation of the foregoing, Postalytics may view, copy, and internally distribute Customer Data from Customer’s campaigns and account to create algorithms and programs that help Postalytics spot problem accounts or to improve the Service or provide Professional Services.
- Compliance With Law
Customer must comply with all law applicable to its use of the Service, including, without limitation, all applicable privacy and intellectual property law. Applicable law may include the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), the U.S Telephone Consumer Protection Act of 1991, the California Consumer Privacy Act (CCPA) and the Do-Not-Call Implementation Act of 2003. Without limitation of the foregoing, Customer is responsible for the means by which it acquired the Customer Data, any associated consents and notice required by applicable law in connection therewith, and for providing Postalytics with lawful instructions for processing of Customer Data. Customer agrees not take any action in connection with using the Service that places Postalytics in non-compliance with applicable law, such as by storing any protected cardholder data in any custom fields, mailing lists, or campaign content not specific designated for protected cardholder data. Postalytics makes no representation or warranty that the Services are appropriate in every country or jurisdiction, and access to and use of the Services from countries or jurisdictions where its content is illegal is prohibited.
Except for any protected cardholder data, which may only be provided to Postalytics in the designated payment fields in the Service, you will not provide Postalytics with any government issued identification numbers (such as Social Security numbers), biometric information, personal health information, personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under applicable law relating to privacy and data protection excluding protected cardholder data (collectively, “Sensitive Data”). CUSTOMER ACKNOWLEDGES THAT THE SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE DATA AND ACCORDINGLY YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE DATA. POSTALYTICS WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT, PROCESS, OR MANAGE SENSITIVE DATA.
In the performance of this Agreement, each Party may have access to non-public, confidential, proprietary or trade secret information owned or provided by or on behalf of the other Party (“Confidential Information”). Confidential Information includes, without limitation, software computer programs, object code, source code, marketing plans, business plans, financial information, payment information, specifications, flow charts and other similar data. All Confidential Information supplied by one party to another pursuant to this Agreement shall remain the exclusive property of the disclosing party. The receiving party shall (i) protect the confidentiality of the Confidential Information of the disclosing party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care; (ii) use such Confidential Information only for the purposes of this Agreement; and (iii) shall not copy, disclose, convey or transfer any of the Confidential Information or any part thereof to any third party, except where necessary by Postalytics to provide the Services (and subject to confidentiality restrictions no less protective than this Agreement). Neither Party shall have any obligation with respect to Confidential Information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (ii) was previously known to a receiving party or rightly received by a receiving party from a third party; or (iii) is independently developed by or a receiving party. Upon notice to the other party, the either Party may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process. The receiving party shall promptly notify the disclosing party upon learning of actual or suspected unauthorized use, access, or disclosure of Confidential Information and shall reasonably cooperate to regain access and prevent further dissemination of such information.
- Intellectual Property
This is an Agreement for access to and use of the Service, and Customer is not granted a license to any software by this Agreement. The Service and Professional Services, exclusive of Customer Data, belong to and are the property of Postalytics or its licensors. Postalytics and its licensors retain any and all rights, title and interest in and to the Service, including all copies, modifications, extensions, feedback (even if provided by Customer) and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and/or the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by Postalytics and its licensors.
Customer agrees (i) not to copy, rent, lease, sell, distribute, or create derivative works based on the Services or the Professional Services in whole or in part, by any means, except as expressly authorized in writing by Postalytics and (ii) not to reverse engineer the Service.
- Warranties and Disclaimers
Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that: (i) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (iii) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other legally binding agreement.
Postalytics further warrants that: (i) the Service and Professional Services will be provided in a manner consistent with generally accepted industry standards, and (ii) Postalytics will not knowingly introduce any viruses or other forms of malicious code into the Service; provided however, this warranty will not apply if you only use the Free Plan. In the event of non-conformance with this warranty, Postalytics will use commercially reasonable efforts to correct such non-conformance within a reasonable time.
- Warranty Disclaimers
Postalytics will not have any obligation or liability under the above warranty section if the non-conformance is caused by or based on: (i) any combination of the Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Service by anyone other than Postalytics, or (iii) use of the Service in violation of or outside the scope of this Agreement. Postalytics does not warrant that (i) the service will meet Customer’s specific requirements, (ii) the Service will be uninterrupted, timely, secure, or error-free, (iii) the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, and (iv) any errors in the Service will be corrected.
WITHOUT LIMITATION OF THE FOREGOING, AND EXCEPT AS SET FORTH ABOVE, POSTALYTICS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SERVICE AND PROFESSIONAL SERVICES. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICE AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. POSTALYTICS DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE AND THE PROFESSIONAL SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL POSTALYTICS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
IF POSTALYTICS IS DETERMINED TO HAVE ANY LIABILITY TO CUSTOMER, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF POSTALYTICS WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO CUSTOMERS THAT ONLY USE THE FREE PLAN, AND IN THIS CASE, IF POSTALYTICS IS DETERMINED TO HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING FROM CUSTOMER’S USE OF THE FREE PLAN, THEN POSTALYTICS’ AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED ($100) U.S. DOLLARS.
POSTALYTICS DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS AND SERVICES THAT CUSTOMER USES. POSTALYTICS’ LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT ITS AGREEMENT TO THIS LIMITATION OF LIABILITY, POSTALYTICS WOULD NOT PROVIDE THE SERVICE TO CUSTOMER.
Customer agrees to protect, defend, indemnify and hold harmless Postalytics and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Postalytics directly or indirectly arising from (i) Customer’s and/or its End User’s use of and access to the Services; (ii) Customer’s violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) Customer’s violation of any third-party right, including without limitation any intellectual property, privacy, or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement.
Customer grants Postalytics the right to add Customer’s name and company logo to its website and customer list. Upon request, Customer agrees to work with Postalytics on joint marketing ventures to highlight successes via cases studies, white papers, testimonials, videos, social media, etc. Except for the foregoing, neither Party may use the other Party’s name or logo without the other Party’s prior written consent.
- Domain Purchasing Service
Postalytics has created an interface into Amazon Web Services to facilitate domain name purchasing from within the Service (“Domain Name Registration Services”). You agree to use the Domain Name Registration Service only in compliance with terms specified in the Postalytics Domain Name Registration Agreement (“DNRA”), which in such case are hereby incorporated into this Service Agreement. Postalytics does not control the content, messages or information found in the Domain Purchasing Service. Postalytics will not have any liability with regards to the Domain Purchasing Service and any actions resulting from Customer’s use of the Domain Purchasing Service.
- Professional Services
If Customer purchases any implementation, consulting, training, configuration, website branding, or other professional services (“Professional Services”) from Postalytics, the Parties must enter into a statement of work (“SOW”) describing those Professional Services and the fees associated therewith.
Postalytics may provide notice to Customer under this Agreement by: (i) posting a notice in the Service; or (i) sending a message to the email address then associated with Customer’s account. Notices provided by posting in the Service will be effective upon posting and notices provided by email will be effective when emailed. Customer is responsible to keep its contact information current. Customer will be deemed to have received any email sent to the email address then associated with its account when emailed, whether or not it actually receives the email.
Customer may provide notice to Postalytics under this Agreement by: (i) by email to support@Postalytics.com; or (ii) by personal delivery, overnight courier or registered or certified mail to Postalytics, Inc., 55 Accord Park Drive, Rockland, MA 02370, Attn: Legal. Postalytics may update the email or physical address for notices by posting a notice in the Service. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one (1) business day after sent. Notices provided registered or certified mail will be effective three (3) business days after sent.
- Force Majeure
If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure“), the affected Party’s performance will be excused for the resulting period of delay or inability to perform. The affected Party must, however, (i) give the other Party prompt written notice of the nature and expected duration of such Force Majeure, (ii) use commercially reasonable efforts to mitigate the delay and other effects, (iii) periodically notify the other Party of significant changes in the status of the Force Majeure, and (iv) notify the other Party promptly when the Force Majeure ends.
- Governing Law. The Agreement is governed by Massachusetts law and controlling United States federal law, without regard to conflicts of law provisions of any jurisdiction. The Service is a service, not a good, and is not subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act, or the United Nations Convention on the International Sale of Goods.
- Disputes. Any legal controversy or legal claim arising out of or relating to this Agreement or the Services, excluding legal action taken by Postalytics to collect or recover damages for, or obtain any injunction relating to, non-payment of fees or a breach of Postalytics’ proprietary rights, shall be settled solely by binding arbitration in accordance with the commercial arbitration rules of JAMS. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Massachusetts, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Nothing in this section shall preclude either Party from seeking any interim or preliminary relief from a court of competent jurisdiction in Massachusetts necessary to protect the rights or property of you and us pending the completion of arbitration. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS and all of its own legal costs at all times.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of Parties. The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with the Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.
- Assignment. Customer may not assign, sublicense or otherwise transfer (by operation of law or otherwise) the Agreement, or any of a its rights or obligations under the Agreement, to any third party without Postalytics’ prior written consent.
- No Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- Anti-Bribery. Each Party acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any employee, representative or agent of the other Party in connection with the Agreement. Each Party will use reasonable efforts to promptly notify the other Party if it becomes aware of any circumstances that are contrary to this acknowledgment.
- Survival. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive.
You’ve done it! Thanks for taking the time to read and understand the Agreement associated with use of the Postalytics Service.