Postcart Terms of Service
Welcome to Postcart, a product of Postcart. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at email@example.com or 415-275-2134 or 45 Hallam St., San Francisco, CA 94103.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on Postcart.com, and/or by sending you an email and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at firstname.lastname@example.org.
What are the basics of using Postcart?
You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own internal, personal and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- Infringes or violates the intellectual property rights or any other rights of anyone else (including Company);
- Violates any law or regulation;
- Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of your Company account or anyone else’s (such as allowing someone else to log on as you on the Services);
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes;
- Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “Crawls,” “scrapes,” or “spiders” any page, data or portion of or relating to the Services or Content (through use of manual or automated means);
- Copies or stores any significant portion of the Content;
- Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are other features Postcart has to offer?
In order to list and sell certain products using Postcart as a venue, Merchants are first required to register for and create an account with Stripe, Postcart’s third party payment processor partner. Please visit the Stripe Help Center if you have any questions regarding how Stripe works.
Postcart reserves the right to issue refunds to customers in its sole discretion. If you are customer and would like to request a refund, please contact Postcart at email@example.com.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Company’s) rights.
You understand that Company owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), creative derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply—they do!
Do I have to grant any licenses to Company or to other users?
For all User Submissions, you hereby grant Company a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view (a “Public User Submission”), then you grant Company the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Company users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise for any purpose, provided that Company will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Services. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide.
Finally, you understand and agree that Company, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and any of the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Company, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click the link at the top of this page. To learn more about the DMCA, click here.
Who is responsible for what I see and do on the Services?
Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all information that you provide to us accurate and current. You are responsible for all your activity in connection with the Services.
Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Company will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Company, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
Will Company ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Does Postcart cost anything?
Company reserves the right to charge for certain or all Services. If you wish to use Company Services, you must pay all applicable fees for such Services. Note that Company Services do not include transactions using Postcart Venue and these Terms do not govern payments for such transactions.
What if I want to stop using Postcart?
Company is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Company has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
I use the Company App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including the [iPhone and iPad] applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
- Both you and Company acknowledge that the Terms are concluded between you and Company only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Company acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.
What else do I need to know?
Waranty Disclaimer. Company does not make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Company or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL COMPANY BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO COMPANY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold Company, its affiliates, officers, agents, employees, and partners harmless for and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), if you have an account, we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Company’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California.
Miscellaneous. You will be responsible for paying withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Company may, in its sole discretion do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Company agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Company, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all modifications to these Terms must be in a writing signed by both parties (except as otherwise provided herein). No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Company in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application, you and Company agree there are no third party beneficiaries intended under this Agreement.
Content means any content (including without limitation any text, photographs, videos, and text) Merchant or any of its salespersons, employees, contractors, or agents uploads, posts, transmits, or otherwise disseminates (or is posted, transmitted, or otherwise disseminated on behalf of Merchant) to users through the Website and which is publicly available to such users.
Effective Date means the date Merchant accepts this Agreement.
Service(s) means access to certain features provided by Postcart in connection with the Postcart Services. The Services consist of the features described at Postcart.com to which you subscribe.
Website means the www.postcart.co website and domain name and all other websites and domain names affiliated with Postcart and any other linked pages, features, content, or application services (including without limitation mobile application services) offered in connection therewith by Postcart.
2. Service; PROPRIETARY RIGHTS.
2.1 Service. Subject to Merchant’s compliance with all terms and conditions of this Agreement, Postcart will make the Service available to Merchant as of the Effective Date.
2.2 Service License. Subject to Merchant’s compliance with all terms and conditions in this Agreement, Postcart grants Merchant for the term of this Agreement a limited, personal, nonexclusive, non-sublicensable, royalty-free, nontransferable (except as provided in this Agreement) license to access and use the Website, only in connection with the Services and only within the United States. Except as expressly and unambiguously granted herein, no right or license is granted.
2.3 Content License. Merchant hereby grants Postcart a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and transferable right to display the Content on the Website. Postcart reserves the right to (a) remove any Content at any time, for any reason, including, without limitation, if it believes, in its sole discretion, that such Content violates this Agreement in any manner and (b) reformat the Content in order to make it compatible with the Service. Merchant represents, warrants, and covenants that it (x) has all necessary rights to grant the foregoing license, and to use, and allow Postcart to use the name, likeness, and identifying information of any identifiable person in the Content in the manner contemplated by this Agreement and (y) that it will pay all royalties and other amounts owed to any third party due to its use of the Content, if any. Postcart reserves the right to change the features offered as part of the Services, or the features offered for any Subscription Level (as defined below), at any time, upon thirty (30) days’ notice to Merchant.
2.4 Feedback. Merchant may, at its discretion, provide feedback, suggestions, improvements, enhancements, and/or feature requests to Postcart with respect to its use of the Service (“Feedback”). Merchant shall and hereby does assign all right, title, and interest in and to Feedback to Postcart.
2.5 Use of Name. In addition to any rights granted with respect to Content under Section 2.2, Postcart may use Merchant’s name and logo for the purposes of identifying Merchant as a Postcart customer.
Merchant shall not directly or indirectly (a) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Service (except to the extent that such a prohibition would be prohibited by law), (b) use the Service in any manner that, or contribute any Content that, infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party, (c) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any part of the Service, (d) use the Service in any manner that, or contribute any Content that, is harmful, fraudulent, deceptive, threatening, abusive, obscene, libelous, or otherwise objectionable, or that violates any law, statute, ordinance, or regulation, (e) contribute any Content that contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program, or (f) permit any third party to engage in any of the foregoing proscribed acts. Merchant is solely responsible for all Content.
4. EMPLOYEES AND CONTRACTORS
4.1 Merchant shall ensure that its salespersons, employees, contractors and agents comply with all of Merchant’s obligations under this Agreement, and shall be responsible and liable for their acts and omissions in breach thereof.
4.2 Merchant shall ensure that only its salespersons, employees, contractors and agents who Merchant has authorized to use Merchant’s Postcart account will use the Services.
Each party (the “Receiving Party”) may receive business, technical, financial or other proprietary information, materials, and/or ideas from the other party (the “Disclosing Party”) during the term of this Agreement (“Confidential Information”). Postcart’s Confidential Information shall include, without limitation, details about the Services and its features and about potential pricing of paid services and the terms of this Agreement. The Receiving Party agrees to hold in confidence and not use (except to exercise its rights or fulfill its obligations hereunder) or disclose the Disclosing Party’s Confidential Information. Confidential Information shall not include: (a) information that is or becomes publicly available through no fault of Receiving Party, (b) was in Receiving Party’s possession or known by it without restriction prior to receipt from the Disclosing Party, (c) was rightfully disclosed to Receiving Party by a third party without restriction, or (d) was independently developed by Receiving Party without use of any Confidential Information of the Disclosing Party. The Receiving Party may make disclosures of Disclosing Party’s Confidential Information required by law or court order provided it uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order for the Confidential Information.
Merchant will indemnify and hold Postcart, its parents, subsidiaries, affiliates, officers, and employees harmless (including without limitation from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand due to or arising out of Merchant’s or its salespersons’, employees’, subcontractors’, or agents’ breach of this Agreement.
Postcart email-based support. Merchant may contact Postcart support at firstname.lastname@example.org. Postcart will use commercially reasonable efforts to assist Merchant with any problems Merchant may be having with the Services, but Postcart does not make any promises regarding response times, that it will be able to fix any such problems, or that the Services will be uninterrupted or error-free. Any suggestions by Postcart regarding use of the Services shall not be construed as a warranty.
8. PAYMENT; TAXES.
8.1 Beginning on the Effective Date and throughout the term of the Agreement, Merchant shall pay Postcart the monthly subscription fee, if any, for the level of service Merchant has selected during the registration period (such fee, the “Subscription Fee,” and such level, the “Subscription Level”). The Subscription Fees for each Subscription Level are available at Postcart Pricing. Postcart reserves the right to change the Subscription Fees for Merchant’s selected Subscription Level at any time upon thirty (30) days prior notice to Merchant.
8.2 On the Effective Date and thereafter on the same day of each subsequent calendar month, Postcart will bill the Subscription Fee to the credit card provided by Merchant upon registration for the fees due to Postcart for the subsequent calendar month. Merchant will receive a confirmation email receipt upon each credit card charge to the email address Merchant provided upon registration. All payments shall be made in U.S. Dollars. If the credit card information Merchant has provided is incorrect, incomplete, or Postcart is otherwise unable to complete a credit card transaction due to Merchant’s error or omission, Merchant shall pay a late fee on all amounts not paid at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.
8.3 Merchant may change its Subscription Level at any time. If Merchant chooses to upgrade to a more-expensive Subscription Level at any time during the term of this Agreement, the increase in cost will be prorated over the remainder of the month during which such upgrade becomes effective, and such increased cost will be charged to Merchant’s credit card immediately. If Merchant chooses to downgrade to a less-expensive Subscription Level at any time, [no refunds will be awarded for the current month paid and ]the new lower cost will be charged effective the next month’s billing cycle.
8.4 Except as otherwise provided in Section 8.5, if this Agreement is terminated by either party for any reason other than Merchant’s breach, Postcart will grant Merchant a pro-rata refund of Subscription Fees for the month during which such termination becomes effective. If this Agreement is terminated by Postcart for Merchant’s breach, no refunds will be awarded.
8.5 Limited Money-Back Offer. If at any time during the initial thirty (30) days after the Effective Date, Merchant is dissatisfied with the Services for any reason, Merchant may terminate this Agreement within that 30-day period with ten (10) days written notice to Postcart, and Merchant will be refunded any Subscription Fees actually paid for the Services during the term of the Agreement. THE FOREGOING SHALL NOT BE CONSTRUED AS A WARRANTY OF ANY KIND.
8.6 Merchant shall bear and be responsible for any applicable federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes) relating to the subject matter hereunder, excluding taxes based upon Postcart’s net income.
9. Warranty Disclaimer.
THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NEITHER SHOPSEEN NOR ITS SUPPLIERS WARRANTS THAT THE SERVICE WILL MEET MERCHANT'S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, SHOPSEEN HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
10. Limitation of Liability.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, In no event shall SHOPSEEN (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY of data, loss or interruption OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICE, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, AND TRADING AND INVESTMENT LOSSES, OR (D) damages, IN THE AGGREGATE, in excess of the greater of $1000 or the fees paid by merchant hereunder in the TWELVE (12) monthS preceding the applicable claim, EVEN IF SHOPSEEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
11. Term and Termination.
11.1 Term. This Agreement shall commence on the Effective Date, and shall continue in effect unless terminated as permitted herein.
A. [Except as otherwise provided in Section [8.5,]] This Agreement may be terminated by either party at any time without cause with thirty (30) days prior written notice.
B. Postcart may immediately terminate this Agreement, and/or suspend any and all features of the Service, and/or Merchant’s access thereto, without prior notice or liability, if Merchant (or any of its salespersons, employees, subcontractors or agents) breaches any of the terms or conditions of this Agreement.
11.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that the following provisions shall survive: Section 2.3, the second sentence of Section 2.4, Sections 4.1, 5, 6, and 8-12 (inclusive).
12. General Provisions.
12.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. Unless waived by Postcart in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in San Francisco, California, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
12.3 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified above, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
12.4 Assignment. Merchant shall not assign this Agreement without Postcart’s consent. Postcart may freely assign or transfer this Agreement (in whole or in part) without consent.
12.5 No Agency. Notwithstanding anything else, the parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture.
12.6 Headings. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement.
Postcart has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Postcart’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section.
It is Postcart’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone on whose behalf you are authorized to act), please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Postcart is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law;
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
Upon receipt of a proper notice of copyright infringement, we reserve the right to:
- remove or disable access to the infringing material;
- notify the content provider, member or user that it has removed or disabled access to the material;
- terminate such content provider’s, member’s or user’s access to the Services if he is she is a repeat offender.
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the content provider, member or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider, member, or user has the right to send a counter-notice containing the following information to the Designated Agent listed below:
- A physical or electronic signature of the content provider, member or user;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Content provider’s, member’s or user’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or, if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Postcart is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Postcart may send a copy of the counter-notice to the original complaining party informing that person that Postcart may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Postcart’s discretion.