Postscript Terms of Service
Last Updated: March 1, 2022
These Postscript Terms of Service (“Platform Terms”) are a binding and enforceable agreement between you and Stodge Inc. d/b/a Postscript (“Postscript”). By using the Platform Services, or by signing a Service Order for Platform Services, you accept and agree to be bound by these Platform Terms. If you do not agree to these Platform Terms, you may not use the Platform Services.
Postscript may update these Platform Terms at any time, in its sole discretion. Postscript will notify you of changes to these Platform Terms by posting the changes to the Postscript Website, by email, or through other communications. If you continue to use the Platform Services after Postscript posts updated Platform Terms, you agree to be bound by those updated terms.
SECTION 12 “DISPUTE RESOLUTION” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS.
1. Definitions
“Applicable Laws” means all applicable laws, rules, and regulations, including the Telephone Consumer Protection Act (TCPA), the Controlling the Assault of Non-Solicited Pornography and Marketing Acts (CAN-SPAM), and all applicable laws, rules, and regulations relating to data privacy and consumer protection.
“Confidential Information” means all confidential information disclosed by a party to 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 circumstances. Confidential Information includes business and marketing plans, technology and technical information, product plans and designs, pricing information, and business processes. For clarity, the Platform Services are Postscript’s Confidential Information.
“CTIA Policies” means the policies and rules of the Wireless Association (CTIA), including the CTIA Messaging Principles and Best Practices Guidelines, and the CTIA Short Code Monitoring Handbook, and any similar generally accepted industry policies or rules adopted by carriers, or other practices enforced by carriers.
“Customer” or “you” refers to the individual or entity using the Platform Services.
“Customer Data” means any data, information (including personal information), Subscriber Lists, content (including marketing and promotions), or other materials submitted, posted, transmitted, or otherwise provided by or on behalf of a Customer, its service providers, or its End Users in connection with the Platform Services and related Postscript services. For clarity, Customer Data excludes in all cases the Platform Services.
“End User” means an individual who interacts with Customer, its affiliates, or agents in connection with the Platform Services.
“End User Data” means personal information of your End Users that is included in your Customer Data.
“End User Terms” means either: (a) Postscript’s hosted dynamic end user terms for Customers; or (b) Customer’s end user terms that contain the provisions set forth in the Postscript model end user terms available here and are at least as protective of Postscript as these Platform Terms.
“Fees” means all fees related to your purchase and use of the Platform Services, as set forth in your account or in a relevant Service Order.
“Intellectual Property Rights” means, on a worldwide basis, any and all: (a) rights associated with works of authorship, including copyrights, moral rights, database rights and mask works; (b) trademarks; (c) trade secret rights; (d) patents, designs, algorithms and other industrial property rights; (e) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (f) registrations, initial applications, renewals, extensions, continuations, divisions or reissues of the foregoing.
“Payment Information” means the payment information provided through your Postscript account, which may include your credit card number, the expiration date of your credit card, your email and postal addresses for billing and notification, and additional information to verify your identity.
“Payment Method” means the credit card, bank account, or other payment method represented by your Payment Information.
“Platform Services” means the Postscript Website, the Postscript software and services provided via the Postscript Website or the Shopify App Store, related documentation, and any additional services related to the foregoing as set forth in a Service Order (for example, online customer management services). For clarity, the Platform Services exclude Professional Services (as defined in the Postscript Plus Terms and Conditions).
“Postscript Website” means the website located at https://www.postscript.io/.
“Service Order” means a written order form for the purchase of Platform Services executed by Postscript and a Customer.
“Subscriber List” means information about individuals which may be used for SMS messaging, including names, phone numbers, and whether the individual has opted in or out.
“Taxes” means any taxes, levies, duties, or similar governmental assessments of any nature (including, for example, value-added, sales, use, or withholding taxes) assessable by any applicable taxing authorities.
Under these Platform Terms and any relevant Service Order, the words “include” and “including” mean “including but not limited to.”
2. Accessing the Platform Services
2.1 Eligibility. To use the Platform Services, you must be 18 years of age or older, capable of forming a binding contract with Postscript, and not otherwise barred from using the Platform Services under Applicable Laws. If you do not meet the requirements set forth in this Section, you may not use the Platform Services. If you access or use the Platform Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity to these Platform Terms, and that by accepting these Platform Terms, you are doing so on behalf of that entity. If you act as an agency on behalf of a Shopify merchant, any act or omission of that merchant that would be a breach of these Platform Terms will be deemed a breach by you, and you will enter a written agreement with such merchant that is at least as protective of Postscript as these Platform Terms.
2.2 Your Account. You must register and create an account to access some of the Platform Services. You are responsible for ensuring that your account information is accurate and up-to-date, and for protecting and safeguarding your account credentials. You will not permit anyone to use your account other than your authorized employees, and you will use commercially reasonable efforts to prevent unauthorized access to your account. You are responsible for all activities that occur in connection with your account. If you believe that your account has been compromised, you will notify Postscript immediately by emailing support@postscript.io. Any personal information that you provide us in connection with your account is subject to the Postscript Privacy Policy.
3. Use of the Platform Services
3.1 Your Compliance with Applicable Laws. You will comply with all Applicable Laws, CTIA Policies, and the Postscript Content Policy in connection with your use of the Platform Services, including, for the avoidance of doubt, the TCPA and CAN-SPAM, and all relevant implementing rules, orders, and regulations of the Federal Trade Commission and Federal Communications Commission. You are solely responsible for: (a) collecting and maintaining your Subscriber Lists and other Customer Data in accordance with Applicable Laws and CTIA Policies; (b) providing notice and obtaining consent from your End Users as required under Applicable Laws for your use of the Platform Services, including sending text messages; and (c) ensuring that all marketing and promotional activities that you conduct through the Platform Services comply with Applicable Laws, CTIA Policies, and the Postscript Content Policy, including the content of your messages and campaigns, and any contests, raffles, sweepstakes, or similar activities. To the extent Postscript provides advice, guidance, templates, or suggestions via the Postscript Website or otherwise, the foregoing are provided solely for convenience and Postscript does not assume any responsibility for your obligations under this Section, and you remain solely responsible for your own compliance. You should confer with your own independent legal counsel to determine whether marketing activities and content are sufficient for your purposes and meet your obligations under Applicable Laws. If Postscript reasonably determines that a Customer may be in breach of this Section, Customer will promptly (and no later than within twenty-four (24) hours of receipt of notice) make available Customer leadership for a meeting with Postscript to discuss the issue.
3.2 End User Terms. At all times while you are using the Platform Services, you will publicly post End User Terms. You will be solely responsible for ensuring that all of your End Users agree to such End User Terms before interacting via the Platform Services. You will link to the End User Terms at each time and place in which you collect approval for your End Users to subscribe to text message marketing, and you will display those links in a style and manner that complies with Applicable Laws and any other reasonable requirements communicated by Postscript. Postscript makes no representation or warranty regarding the End User Terms. YOU EXPRESSLY AGREE THAT POSTSCRIPT IS NOT PROVIDING LEGAL ADVICE AND NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED BY YOUR USE OF THE END USER TERMS. You further accept full legal responsibility for the End User Terms and acknowledge that you have been advised to obtain independent legal counsel before implementing the End User Terms. If you would like to request updates to the form of End User Terms provided by Postscript, you will provide all suggested modifications by written notice at least thirty (30) days before such modifications go into effect. Postscript will use commercially reasonable efforts to accommodate any such requested modifications, provided that Postscript may reject any modifications that Postscript reasonably determines would create a legal risk to Postscript or its other customers.
3.3 Insurance. At all times while these Platform Terms are in effect, you will, at your own cost and expense, maintain an insurance policy of the type and in the minimum amounts reasonably necessary and appropriate for your marketing and promotional activities with a reputable insurance carrier duly qualified in all relevant jurisdictions. Upon Postscript’s request, you will provide a certificate of insurance. You acknowledge that the best practice for Customers is to obtain a policy with a coverage rider expressly providing for the coverage of TCPA claims and a “most favored jurisdiction” provision.
3.4 Third-Party Services and Integrations. You may not use the Platform Services in connection with a third-party integration unless it is officially supported by Postscript, as described on the Postscript Website. Please contact Postscript support if you have questions about other third-party integrations. If you use the Platform Services in connection with a third-party service, whether through an integration offered by Postscript or otherwise, you are solely responsible for your use of such third-party service, including any disclosure or other processing of your Customer Data in connection with such third-party service. Any use of a third-party service is at your own risk. Postscript will have no liability for your use of any third-party service in connection with the Platform Services, and disclaims all responsibility for the functionality, security, availability, and operation of any third-party service. You will provide advance written notice to Postscript if you require assistance with suspending or terminating an integration between a third-party service and the Platform Services.
3.5 Updates to the Platform Services. Postscript may, in its sole discretion, at any time, with or without notice, and without liability to you, make updates to the Platform Services, and change or discontinue the availability of some or all functionality of the Platform Services. Postscript may provide notice of material changes to the Platform Services by posting to the Postscript Website or by email. It is your responsibility to check the Postscript Website periodically to be informed of any changes. Your continued use of the Platform Services following any update or change will be deemed your acceptance of such modifications.
3.6 Beta Features. Postscript may, in its sole discretion, invite you to use pre-release or beta features that are not yet generally available. Access to such features may be conditioned upon additional terms and conditions. Any beta features will be considered Postscript’s Confidential Information. POSTSCRIPT MAKES NO REPRESENTATIONS OR WARRANTIES THAT BETA FEATURES WILL FUNCTION, AND ANY USE OF BETA FEATURES WILL BE AT OUR OWN RISK.
3.7 Restrictions. In connection with Customer’s use of the Platform Services, Customer will not, and will not authorize or encourage any third party to, directly or indirectly:
Violate Applicable Laws, CTIA Policies, or the Postscript Content Policy;
Operate, administrate, run, or distribute materials related to an illegal lottery or other promotion in violation of Applicable Laws regarding gambling, contests, sweepstakes, and gaming;
Permit any End User under the age of 18 years old to use the Platform Services;
Engage in any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Distribute spyware, adware, or other harmful programs;
Sell, transfer, lease, sublicense, loan, distribute, or otherwise transfer to third parties the Platform Services or any portion thereof;
Obscure, alter, or remove any notice of Intellectual Property Rights or other proprietary rights appearing on or contained in the Platform Services;
Modify, alter, copy, adapt, translate, or create derivative works based on the Platform Services;
“Frame” or “mirror” any content forming part of the Platform Services;
Reverse engineer, decompile, disassemble, decode, or otherwise attempt to derive or determine the source code of the Platform Services, except to the extent expressly permitted by Applicable Laws and then only upon advance written notice to Postscript;
Bypass, delete, or disable any copy protection mechanisms or security mechanisms of the Platform Services;
Attempt to gain unauthorized access to, or disrupt the integrity, performance, or security of the Platform Services;
Use or access to Platform Services to monitor the availability, performance, or functionality of the Platform Services, Postscript’s other products or services, or any portion of the foregoing, or for any similar benchmarking purposes;
Access the Platform Services to build a competitive product or service.
3.8 Usage Information. The Platform Services may automatically collect information about your usage of the Platform Services. You agree that Postscript may use information about your usage of the Platform Services internally for any purpose, including to improve its products and services. You agree that Postscript may use aggregated or deidentified information about your usage of the Platform Services in our marketing and promotional materials, provided that such information cannot reasonably be used to identify you or any End User.
4. Fees and Payment Terms
4.1 Fees Generally. You are responsible for and will pay all Fees incurred under your account and, if applicable, all Fees set forth in a Service Order. The applicable Fees for your use of the Platform Services will be set forth in your account, unless otherwise set forth in a Service Order. Postscript may update or modify the applicable Fees and rates for the Platform Services unless otherwise set forth in a Service Order, and provided that Postscript will provide reasonable advance notice of such changes.
4.2 Subscriptions. Postscript may make the Platform Services available on a subscription basis. By purchasing a subscription, you agree that your subscription will automatically renew until canceled in accordance with these Platform Terms, and that you will pay all recurring Fees for your subscription until it is canceled. Unless otherwise set forth in a Service Order, you may upgrade, downgrade, or cancel your subscription as set forth in your account. Certain subscription packages may only be available to Customers who enter a Service Order, and changes to those packages may only be requested by contacting Postscript support. Cancellations and downgrades will not take effect until the start of the following subscription period. Requests for cancellation or downgrade made by contacting Postscript support must be initiated at least five (5) days before the end of the current subscription period. If you cancel your subscription as set forth in this Section, you will continue to have access to the Platform Services until the end of the final subscription period.
4.3 Transaction-Based Fees. Certain features of the Platform Services may require Postscript to remit payments to you. The Fees for such features may be determined as a percentage of the relevant transaction, and may also include relevant third-party payment processor fees, as further set forth in your account or a relevant Service Order. If you use such features, you will provide all Payment Information required to enable Postscript to transfer relevant payments to you. Postscript will not be responsible for any consequences if you fail to provide the required Payment Information. Postscript may use a third-party payment processor for all transfers of payments to you. Before using relevant features of the Platform Services, you are required to agree to such third-party payment processor’s terms of service. You authorize such third-party payment processor to directly remit to Postscript any Fees owed for the relevant transactions and then pay the remainder to you. You further agree that Postscript has no responsibility for any errors, negligence, or misconduct of such third-party payment processor, and that you will release and hold Postscript harmless from the foregoing.
4.4 Promotions and Discounts. Postscript may make available promotions and discounts from time to time. All promotions and discounts are subject to any terms and conditions communicated to you at the time of purchase or in a Service Order, and do not automatically renew or roll over. Following the expiration of a promotion or discount, regular Fees and billing terms will apply.
4.5 Your Payment Method. Postscript may ask you to provide Payment Information through your account. At all times, you will ensure that your Payment Information and Payment Method are correct, up to date, and valid, and you are solely responsible for your failure to do so, including if you incur overdraft fees or fees related to a declined payment. You may make changes to your Payment Information and update your Payment Method through your account. In accordance with Applicable Laws, Postscript may update your Payment Information if such information is provided by your financial institution.
4.6 Payment Processing. Postscript will charge you for Fees on the billing cycle described in your account using the Payment Method you provide through your account, unless otherwise set forth in a Service Order. Postscript may use a third-party payment processor. By providing your Payment Information through your account: (a) you authorize Postscript and its third-party payment processor to charge your Payment Method for all relevant Fees when due, including for any recurring Fees for your subscription and when you reach your charge cap; (b) you agree that Postscript’s third-party payment processor may store your Payment Information; and (c) you agree that Postscript’s third-party payment processor may authenticate your Payment Information and Payment Method, including by running one or more payment authorization checks (for example, by charging an amount less than one dollar and reversing that amount). If Postscript and its third-party payment processor are unable to charge you using the Payment Method associated with your account for any reason (including expiration or insufficient funds), you remain responsible for any uncollected amounts, and Postscript may attempt to charge your Payment Method again, as you may update your Payment Information.
4.7 Refunds. TO THE EXTENT PERMITTED BY LAW, YOUR PURCHASE IS FINAL AND POSTSCRIPT HAS NO OBLIGATION TO ISSUE A REFUND. IF YOU CANCEL OR CHANGE YOUR SUBSCRIPTION AS PERMITTED IN THIS SECTION, YOU WILL BE RESPONSIBLE FOR ALL FEES INCURRED FOR THE THEN-CURRENT SUBSCRIPTION PERIOD. Without limiting the foregoing, if something unexpected happens in the course of completing a transaction, we reserve the right to cancel that transaction for any reason. If we cancel a transaction, we will refund any payment you have already remitted to us for that transaction. We recognize that exceptional situations may occur, and we reserve the right to issue refunds in our sole discretion.
4.8 Late Payments. Late Fee payments will accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If your Payment Method is declined and you fail to resolve the issue within five (5) business days after Postscript informs you, your payment will begin to accrue interest under this Section. If Postscript must initiate a collections process to recover unpaid Fees, then Postscript will be entitled to recover from Customer all costs of such collections process, including reasonable attorney’s fees.
4.9 Taxes. The Fees do not include Taxes. You are responsible for paying all Taxes associated with your use of the Platform Services. If Postscript has the legal obligation to pay or collect Taxes for which you are responsible, then Postscript will invoice you and you will pay for that amount, unless you provide Postscript with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Postscript is solely responsible for Taxes assessable against Postscript based on its income, property, and employees.
4.10 Free Trial. Postscript may make certain Platform Services available to you for evaluation purposes free of charge. Such free trial is subject to any terms and conditions communicated to you at the time you initiate the free trial, including any limitations on total messaging or other features. Unless otherwise set forth in a Service Order, Postscript may terminate a free trial at any time in its sole discretion.
4.11 Billing Disputes. If you would like to dispute any invoice or charge received from Postscript, you must provide Postscript with written notice within fourteen (14) days of delivery of the relevant invoice or billing statement. If you fail to notify Postscript of a billing issue or dispute as required under this Section, you waive your right to such dispute. Any billing dispute is further governed by Section 12 (Dispute Resolution).
5. Intellectual Property Rights
5.1 License to Use the Platform Services. Subject to these Platform Terms, Postscript grants you a limited, revocable, personal, non-sublicensable, non-transferable, non-exclusive license to use the Platform Services solely for your own marketing and promotional activities, and solely in the manner permitted under these Platform Terms. This license will immediately terminate upon termination of your account or these Platform Terms.
5.2 License to Customer Data. Customer grants Postscript a non-exclusive, non-transferable (except as set forth in Section 13.3 (Assignment)), worldwide, royalty-free license to host, copy, process, transmit, and otherwise use Customer Data for the purpose of providing the Platform Services and as otherwise expressly permitted under these Platform Terms.
5.3 Marketing and Publicity Rights. Postscript may use your name and logo to identify you as a Postscript customer in Postscript marketing and promotional materials, including on the Postscript Website and in case studies. In addition, Postscript may use examples of messages and other marketing content from you or your End Users in Postscript’s marketing and promotional materials, provided that such examples could not reasonably be used to identify any End User. If you object to a particular use of your name or branding and notify Postscript in writing, Postscript will use commercially reasonable efforts to accommodate your requests to change or remove the relevant use. Any use of your name and marks will inure to your benefit.
5.4 Reservation of Rights. Postscript owns all right, title, and interest, including all Intellectual Property Rights, in and to the Platform Services and all other Postscript products, services, and marks and branding. As between you and Postscript, you own all right, title, and interest, including all Intellectual Property Rights, in and to your Customer Data. Except as expressly set forth in this Section, no rights are granted in or to either party’s Intellectual Property Rights.
5.5 Feedback. If you provide any feedback regarding the Platform Services or other Postscript products or services, you agree that Postscript will be free to use such feedback for any purpose, including to improve the Platform Services and other Postscript products and services, and to develop new products and services.
6. Customer Data
6.1 Compliance of Customer Data with Applicable Laws. You will only upload, transmit, store, and otherwise process Customer Data in connection with the Platform Services if: (a) such activities comply with all Applicable Laws and CTIA Policies; (b) all consents required by Applicable Laws and CTIA Policies have been obtained by you or on your behalf; and (c) you have all other rights, permissions, and consents required for your and Postscript’s use of Customer Data as contemplated by these Platform Terms and any relevant Service Order. With respect to any Subscriber List or portion of a Subscriber List collected or obtained outside of the Platform Services, Postscript may require that you certify and provide supporting materials that such Subscriber List was collected in compliance with Applicable Laws and CTIA Policies before it is uploaded or used in connection with the Platform Services. You will implement all opt out requests of End Users (including requests received by email, integration partners, or other channels), and you will immediately convey any such opt out requests to Postscript. In addition, you will maintain an internal “do not call” list documenting all End Users who have opted out of your marketing. If you determine that an End User opt out request was not immediately provided to Postscript, you will notify Postscript and promptly provide all details and logs reasonably requested by Postscript.
6.2 End User Data. Your Customer Data may include End User Data. You acknowledge and agree that, with respect to End User Data, you are a “business,” “controller”, or other similar term under Applicable Laws, and Postscript is a “service provider”, “processor”, or other similar term under Applicable Laws. Postscript will only process End User Data for the purpose of providing the Platform Services and to improve Postscript’s own products and services. You will at all times make available to End Users a privacy policy that complies with all Applicable Laws prior to the provision of any End User Data to you. You are solely responsible for responding to End User requests to exercise their rights under Applicable Laws related to their personal information, including requests to delete End User Data. Customers may contact Postscript support to request assistance with requests related to End User Data stored through the Platform Services.
6.3 Retention of Customer Data. After your account is terminated or you otherwise stop using the Platform Services, Postscript may retain Customer Data including End User Data as long as required to comply with Applicable Laws and CTIA Policies. Provided such termination was not due to your breach of these Platform Terms or a Service Order, you may contact Postscript support within thirty (30) days following termination and Postscript will provide reasonable assistance in obtaining a copy of your Subscriber Lists from Postscript’s systems. Notwithstanding anything in this Section or otherwise, Postscript has no obligation to store or backup your Customer Data following termination of your account, and you are solely responsible for backing up your Customer Data.
6.4 Prohibited Data. Customer Data may not include any of the following categories of data, and you will not upload, transmit, store, or otherwise process any data in connection with the Platform Services in violation of this Section: (a) sensitive personal information as defined under the California Privacy Rights Act (CPRA) or other Applicable Laws; (b) personal health information as defined under the Health Insurance Portability and Accountability Act (HIPAA) or Health Information Technology for Economic and Clinical Health Act; (c) personal information of children as defined under the Children’s Online Privacy Protection Rule (COPPA) or similar Applicable Laws related to children’s privacy and data; (d) nonpublic personal information subject to the Gramm-Leach-Bliley Act (GLBA) or similar Applicable Laws related to financial privacy and data; and (e) government identifiers that uniquely identify a natural person such as a social security number or passport number. The Platform Services are not intended for processing any of the foregoing prohibited data categories.
7. Confidential Information
7.1 Protection of Confidential Information. Each party agrees to maintain Confidential Information in confidence and not to disclose it or any portion of it, except to its employees, consultants, and affiliates who have a need to know such Confidential Information and are bound by obligations of confidentiality similar to these Platform Terms. Each party will use 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. Each party may only use the Confidential Information of the other party to perform its obligations and exercise its rights under these Platform Terms. Neither party will 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”) will provide reasonable advance notice (to the extent legally permitted) to enable the party that provided the Confidential Information (“disclosing party”) to seek a protective order or otherwise prevent such disclosure.
7.2 Exclusions. Notwithstanding anything else, Confidential Information will not include any information that the receiving party can demonstrate: (a) at the time of disclosure is publicly available or becomes publicly available through no act or omission of the receiving party; (b) 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 (c) has been independently acquired or developed by the receiving party without use of the Confidential Information of the disclosing party.
8. Representations and Warranties
8.1 Mutual Warranties. Each party represents and warrants that: (a) it has the right, power, and authority to enter into these Platform Terms and any relevant Service Order; and (b) entering these Platform Terms and the performance of the obligations and duties hereunder does not and will not violate any agreement to which it is a party or is otherwise bound.
8.2 Customer Warranties. Customer represents and warrants that: (a) Customer will comply with all Applicable Laws and CTIA Policies in connection with its use of the Platform Services, including sending text messages and conducting marketing and promotional activities; (b) Customer Data, including the content of all campaigns and all information about End Users, will not violate any third-party Intellectual Property Rights, publicity rights, or privacy rights; and (c) Customer has all rights, permissions, and consents required to upload, transmit, store, and otherwise process Customer Data in connection with its use of the Platform Services, and to grant Postscript the rights expressly set forth these Platform Terms.
9. Indemnification
9.1 Customer Indemnification. To the extent permitted by Applicable Law, you will indemnify, hold harmless, and defend at your expense, Postscript and any of its officers, directors, employees, contractors, agents, and affiliates, from any and all third-party claims, actions, proceedings, and suits brought against any of the foregoing indemnified parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses), or other losses incurred by the indemnified parties, arising out of or relating to: (a) your breach of these Platform Terms, including any use of the Platform Services in violation of these Platform Terms; (b) your violation of Applicable Laws, CTIA Policies, or any third-party Intellectual Property Rights, publicity rights, or privacy rights in connection with the Platform Services; (c) Customer Data that is uploaded, transmitted, stored, or otherwise processed by you or on your behalf in connection with the Platform Services; and (d) your End User Terms, as updated from time to time. You will not compromise or settle any indemnified claim in any manner, nor make any admission of liability, without Postscript’s prior written consent, which Postscript may provide in its sole discretion. Postscript reserves the right, at its own expense, to participate in the defense and control of any matter subject to indemnification by you; provided, however, that if Postscript reasonably determines that Customer is unwilling or unable to defend Postscript or another indemnified party’s interests, then Postscript may assume the defense against any claims at Customer’s sole expense.
9.2 Carrier Fines. Notwithstanding anything to the contrary in these Platform Terms, Customer agrees that if Postscript is fined by a carrier or regulatory body as a result of Customer’s failure to comply with Applicable Laws or CTIA Policies, Postscript may charge Customer for, and Customer will pay, the amount of such fine.
10. Disclaimer of Warranties; Limitation of Liability
THE TERMS OF THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
10.1 DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 (REPRESENTATIONS AND WARRANTIES), THE PLATFORM SERVICES AND END USER TERMS ARE PROVIDED “AS IS”, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CUSTOMER MAY NOT RELY UPON THE PROVISION OF THE END USER TERMS OR ANY OTHER TEMPLATES VIA THE PLATFORM SERVICES AS A REPRESENTATION THAT THE END USER TERMS OR SUCH OTHER TEMPLATES ARE SUFFICIENT FOR CUSTOMER’S PURPOSES OR MEET CUSTOMER’S OBLIGATIONS UNDER APPLICABLE LAWS. POSTSCRIPT MAKES NO WARRANTY THAT THE PLATFORM SERVICES WILL ALWAYS BE UNINTERRUPTED, SECURE, OR ERROR-FREE, OR THAT THE PLATFORM SERVICES WILL MEET YOUR REQUIREMENTS. POSTSCRIPT TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR CUSTOMER DATA, OR LOSS OF DATA OR DAMAGE TO YOUR COMPUTER OR OTHER SYSTEMS THAT RESULTS FROM YOUR USE OF THE PLATFORM SERVICES. CUSTOMERS ARE SOLELY RESPONSIBLE FOR BACKING UP CUSTOMER DATA.
10.2 LIMITATION OF LIABILITY. POSTSCRIPT WILL HAVE NO LIABILITY FOR YOUR LOST REVENUES OR PROFITS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES RESULTING FROM YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE PLATFORM SERVICES OR THE END USER TERMS PROVIDED OR HOSTED BY POSTSCRIPT, OR OTHERWISE IN CONNECTION WITH THESE PLATFORM TERMS, EVEN IF POSTSCRIPT HAS BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A LIMITED REMEDY SET FORTH THESE PLATFORM TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. POSTSCRIPT’S TOTAL CUMULATIVE LIABILITY TO YOU FOR ALL CLAIMS RELATING TO THE PLATFORM SERVICES OR THESE PLATFORM TERMS WILL NOT EXCEED THE TOTAL FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.
10.3 Third-Party Disputes. Postscript has no responsibility for any dispute between a Customer and its End Users. Postscript will have no liability for any damages of any kind, under any theory of law, that relate to a Customer’s relationship with its End Users, even if Postscript has been advised of the possibility of such damages.
11. Termination
11.1 Termination by Postscript. Unless otherwise expressly set forth in a Service Order, Postscript may immediately limit, terminate, or suspend your access to the Platform Services, or terminate these Platform Terms, at any time, without liability to you, and at Postscript’s sole discretion. Without limiting the foregoing and notwithstanding anything to the contrary, Postscript may terminate your right to use the Platform Services or these Platform Terms at any time, without liability to you, if Postscript determines in its sole discretion that: (a) you are in breach of these Platform Terms or a Service Order, including your payment obligations; (b) you fail to provide up-to-date Payment Information and a valid Payment Method and Postscript is unable to charge you for Fees due and payable for your use of the Platform Services; (c) a carrier or third-party aggregator of carrier services prohibits or restricts Postscript from providing the Platform Services to you, including if a carrier determines that you have violated the carrier’s content policies; (d) your use of the Platform Services poses a security or legal risk to Postscript or its other customers; or (e) you have filed for bankruptcy, you are dissolving your business, or you are engaging in a similar legal process. If your account is terminated by Postscript under this Section, all relevant Service Orders then in effect will also be terminated.
11.2 Consequences of Termination. Upon termination of these Platform Terms or your account, all rights and licenses granted to you by Postscript hereunder will immediately terminate, you will immediately cease use of the Platform Services and return or destroy all Confidential Information of Postscript in your possession or control. In addition, all Fees owed pursuant to Section 4 (Fees and Payment Terms) will become immediately due and payable.
11.3 Survival. This Section and any Sections which by their nature are intended to survive, will survive termination, including: 3 (Use of the Platform Services), 4 (Fees and Payment Terms), 5.3 (Marketing and Publicity Rights), 5.4 (Reservation of Rights), 5.5 (Feedback), 6.3 (Retention of Customer Data), 7 (Confidential Information), 8 (Representations and Warranties), 9 (Indemnification), 10 (Disclaimer of Warranties; Limitation of Liability), 12 (Dispute Resolution), and 13 (General).
12. Dispute Resolution
12.1 General. In the interest of resolving disputes between you and Postscript in the most expedient and cost effective manner, you and Postscript agree that any dispute arising out of or in any way related to these Platform Terms or a relevant Service Order 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 these Terms, 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 these Platform Terms or a relevant Service Order. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE PLATFORM TERMS, YOU AND POSTSCRIPT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THESE PLATFORM TERMS AND ANY RELEVANT SERVICE ORDER WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
12.2 Exceptions. Notwithstanding Section 12.1, nothing in these Platform Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (d) to file suit in a court of law to address an intellectual property infringement claim.
12.3 Arbitrator. Any arbitration between you 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 these Platform Terms, 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.
12.4 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 13. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) 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, you or Postscript may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Postscript must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
12.5 Fees. If you commence arbitration in accordance with these Platform Terms, Postscript will reimburse you for your payment of the filing fee, unless your 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, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your 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, you agree to reimburse Postscript for all monies previously disbursed by it that are otherwise your 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 these Platform Terms 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 12.
12.6 No Class Actions. YOU AND POSTSCRIPT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you 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.
12.7 Modifications. Except as otherwise provided in these Platform Terms, if Postscript makes any future change to this arbitration provision, other than a change to Postscript’s address for Notice, you 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 you rejected, will continue to govern any disputes between you and Postscript.
12.8 Enforceability. If Section 12.6 (No Class Actions) is found to be unenforceable, then the entirety of this Section 12 will be null and void.
13. General
13.1 Entire Agreement. These Platform Terms together with any relevant Service Order represent the entire agreement between Customer and Postscript regarding your use of the Platform Services, and supersede and replace any and all prior written or oral understandings or agreements between Customer and Postscript, regarding your use of the Platform Services. To the extent these Platform Terms conflict with a Service Order, these Platform Terms will govern, unless the Service Order expressly states that a relevant term will supersede. All Service Orders for the purchase of Platform Services are subject to these Platform Terms unless expressly set forth otherwise in the Service Order. For clarity, the Postscript Plus Terms and Conditions govern any Service Order for the purchase of Professional Services (as defined therein), and will control with respect to the subject matter thereof in the event of a conflict with these Platform Terms. Any terms or conditions proposed by Customer in any Customer-issued order form or similar document which are different from or in addition to these Platform Terms will be deemed rejected by Postscript and will be null and of no effect. Except as otherwise set forth in these Platform Terms, these Platform Terms and any relevant Service Order may only be modified or amended by a writing signed by both Postscript and Customer.
13.2 Notice. Any notice required or permitted to be made under these Platform Terms will be in English and in writing. Notice will be deemed to have been fully given and received: (a) when delivered personally; (b) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) one business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (d) to the extent email notice is expressly permitted in these Platform Terms, when delivered. All notices to Customer may be made to the mailing or email address associated with Customer’s account or as set forth in a relevant Service Order. Postscript may also provide notices or messages about the Platform Services or these Platform Terms by posting to the Postscript Website. All notices to Postscript will be made to: Stodge Inc. d/b/a Postscript, ATTN: Legal Department, 3370 N Hayden Road, Suite 123-251, Scottsdale AZ 85251, with a copy via email to legal@postscript.io.
13.3 Assignment. You may not assign or transfer any of your rights or obligations under these Platform Terms without Postscript’s prior written consent. Any attempt by you to assign or transfer these Platform Terms without such consent will be null and void. Postscript may freely assign or transfer any of its rights or obligations under these Platform Terms without restriction; provided, however, that the Platform Services will continue to operate as specified in these Platform Terms. Subject to the foregoing, these Platform Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
13.4 Governing Law. These Platform Terms will be governed by and construed under the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York without regard to its conflict of laws principles. Except as otherwise set forth in Section 12 (Dispute Resolution), the exclusive jurisdiction for all disputes that you and Postscript are not required to arbitrate will be the state and federal courts located in New York, New York, and you and Postscript agree to waive all rights to challenge the foregoing.
13.5 Severability. If any term or condition of these Platform Terms is declared illegal or otherwise unenforceable, it will be severed from the remainder of these Platform Terms without affecting the legality or enforceability of the remaining portions.
13.6 Waiver. Postscript’s failure to enforce any right or provision of these Platform Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Postscript. Except as expressly set forth in these Platform Terms, the exercise by either party of any of its remedies under these Platform Terms will be without prejudice to its other remedies under these Platform Terms or otherwise.
13.7 Force Majeure. Without limiting any other provision in these Platform Terms, Postscript is not responsible or liable to Customer for delay or failure to perform its obligations in the event that any of Postscript’s operations or activities are affected by any cause or event beyond the sole and reasonable control of Postscript (as determined by Postscript in its sole discretion), including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, internet service failure, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.
13.8 Independent Contractors. Neither you nor Postscript will be deemed an agent of the other, and the relationship between you and Postscript is that of independent contractors.
13.9 Support. For Customer support, please email support@postscript.io.