Postcart Terms of Service

Last revised September 28, 2017

THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE POSTCART SERVICES. PLEASE READ THEM CAREFULLY, TOGETHER WITH THE POSTCART PRIVACY POLICY.

The Postcart website, mobile application, and ecommerce services (collectively, “Postcart” or “we”, “us”, or “our”) are operated by POSTCART Co., a Delaware corporation. By visiting or using the Postcart website (postcart.co) or registering for or using any Postcart products or services available via our mobile application (each a "Service" and collectively, the "Services"), you agree to be bound by these terms and conditions (the "Terms of Service") and the Postcart Privacy Policy (the "Privacy Policy") whether you are a "Visitor" (which means that you simply browse Services) or are a "Member" (an individual who is legally eligible to use the Services, and who has properly completed the registration process). The term "User" refers to a Visitor or a Member. All of the terms and conditions contained in the Rules and the Privacy Policy are deemed incorporated into these Terms of Service by this reference. In case of a conflict between the Terms of Service or Privacy Policy the Terms of Service shall govern.


Postcart may, at its sole discretion, update or make changes to these Terms of Service and the Privacy Policy without prior notice and at any time. Any changes to these provisions will be incorporated into revised Terms of Service that we will post on the Services. Changes shall be effective when they are posted. You should regularly check these Terms of Service and the Privacy Policy. If you do not agree with any of the terms and conditions of the Terms of Service or Privacy Policy then you are not authorized to access or use the Services, and your sole remedy is to stop accessing and using the Services. Use of the Services shall automatically be deemed your acceptance of the then-current Terms of Service and Privacy Policy

1. ELIGIBILITY REQUIREMENTS; ABILITY TO ACCEPT TERMS OF SERVICE

a. You affirm that you are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. Your membership may be terminated, without warning, if we believe that you are under 18 years of age. Furthermore, you represent that you are not barred from receiving the Services due to laws in your jurisdiction or third party contracts or obligations. Services are void where prohibited by law.

b. To use our Services you must complete a registration process to establish a Postcart Account (the “Account”). We may request multiple pieces of information from you to establish an Account including but not limited to: your legal name, your current mailing address, your current phone number and a valid email address. You represent that the information you provide to Postcart is truthful, accurate and complete and you agree to keep this information current. We may refuse to grant you an Account or terminate your Account at our discretion at any time and for any reason.


2. ACCOUNT CREATION AND THIRD PARTY SERVICES

a. During the process of creating your Account you will be asked to connect your Account to one or more third party social media services (for example Instagram, Facebook, Twitter, etc.) (collectively “Social Media Services”). You agree that the Social Media Services you connect to your Account have been established by you and you have the right to link the Social Media Services to our Service. You agree the relationship between you and the Social Media Services is exclusive and unique to you and is in no way associated with Postcart.

b. During the process of creating your Account you will be asked to connect your Account to one or more third party payment gateways including, but not limited to, gateways owned by PayPal Incorporated and Stripe Incorporated (collectively, “Payment Providers”). You agree that it is your sole responsibility to activate, manage and if necessary terminate your relationship with these Payment Providers. You agree the relationship between you and the Payment Providers is exclusive and unique to you and is in no way associated with Postcart.

c. We may refuse to grant you, and you agree not to utilize on the Service, a User Name or Store Name that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is already in current use, is vulgar or otherwise offensive, may cause confusion, or for any other reason as determined by us in our sole discretion.

d. During the use of the Services there may be links to and/or communication from third party websites, tools or content (collectively “Third Party Services”). Postcart does not control and of these Third Party Services. By use of the Services you agree that Postcart is not responsible or liable for any Third Party Services that you may interact with on the Services. YOUR INTERACTIONS AND BUSINESS DEALINGS WITH THIRD PARTY SERVICES FOUND THROUGH POSTCART ARE SOLELY BETWEEN YOU AND THE THIRD PARTY SERVICE.

3. GENERAL CONDITIONS FOR USE OF THE SERVICES

a. You are solely responsible for maintaining the confidentiality of the email and password you use to establish your Account. We are not liable for any loss or damage resulting from you failing to maintain the confidentiality your password.

b. You are responsible for all data uploaded to your Account including without limitation, text, images, audio and video (the “Content”). You represent and warrant that you own, or are licensed to use, any Content you upload to the Service. Furthermore you represent and warrant that use of your Content does not infringe on the intellectual property rights of others including but not limited to: rights of publicity, trademarks, copyrights, or privacy rights.

c. You are responsible for all goods and services posted to and offered via your Account (the “Items”). You represent and warrant that you own, or are licensed to offer, any Items you upload to the Service. Furthermore you represent and warrant that use of your Items does not infringe on the intellectual property rights of others including but not limited to: rights of publicity, trademarks, copyrights, or privacy rights. Additionally, you represent and warrant that you will not offer or display items which are illegal in the jurisdiction where you operate or conduct business.

d. You agree that Postcart is not responsible for the conduct of any User of the Services. Any disputes between you and another User of the Service are between you and that user and you, not Postcart, are responsible for resolutions.

e. Postcart reserves the right but not the obligation to record, review, and archive transactions you conduct via the Services.

f. You agree to not interrupt, disrupt, or interfere with the operation of Postcart and its related Services. Such interruptions, disruptions, and interference can include but are not limited to: browser code injection, use of private Postcart APIs (ie APIs utilized by Postcart that are not exposed to the general public via a published, public, licensed API), spyware, malware, phishing, worms, or ransomware.

g. You agree not to scrape the contents of the site via any means including but not limited to scripts, bots, and spiders.

h. You agree to not create accounts via automated methods and you agree to not create multiple accounts unless you have received express written permission for multiple accounts from Postcart.

i. Subject to the terms of these Terms of Service and the Privacy Policy you acknowledge and agree that the Services are for your personal use. You shall not create derivative works of the Services in any manner. You shall not attempt to or otherwise authorize, encourage or support others' attempts to, circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Services in any manner.

j. You are responsible for obtaining, maintaining and paying for all costs and fees associated with obtaining and maintaining all computer hardware, wireless devices, Internet access services, text and data services and other equipment or services needed to access and use the Services. You shall provide all equipment and software necessary to connect to the Services. You shall ensure that your equipment and/or software necessary to access and use the Services does not disturb or interfere with Postcart’s operations. If any upgrade in or to the Services requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated in writing by Postcart, any new or additional features of the Services, including the release of new products and Services, shall be subject to these Terms of Service.


4. POSTCART RIGHTS

a. Postcart may, at its sole discretion, modify, suspend, or terminate the Services at any time, without any notice.

b. Postcart may, at its sole discretion, refuse service to any User, suspend or terminate any User and/or Account at any time for any reason, including but not limited Users who violate our Prohibited Use policy.

c. Postcart may, at its sole discretion, transfer the ownership of an Account if we determine that the User who created the Account does not have rights to the Content and/or Items posted to the Account. If we are unable to determine rights ownership Postcart may suspend the Account in question until it is able to determine ownership rights.


5. POSTCART ACCEPTABLE USE POLICY

a. Postcart does not allow the posting of certain types of Content and Items within the Services. The following is a list of unacceptable Content and Items. This list of prohibited Content and Items may be updated from time to time at the sole discretion of Postcart:

i. Content and/or Items that are not owned by you and infringe on the intellectual property rights of others.

ii. Content and/or Items that are considered by Postcart to be hateful including Content that condones violence against someone because of their race, ethnicity, sexual orientation, religion, gender, age, disability, or other reason.

iii. Content and/or Items that offer goods or services that are illegal in the jurisdiction where you operate or conduct business.

iv. Content and/or Items that contains the personal and confidential information of others.

v. Content and/or Items that Postcart considers to be spam.

vi. Content and/ or Items that are or contain pornography or mature content, including content that Postcart deems to be violent in nature.

vii. Content and/or Items containing firearms or items which are accessories to firearms, weapons or hazardous goods.

viii. Content and/or Items that are animals, animal remains or human remains.


6. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY

THE SERVICES OFFERED BY POSTCART ARE PROVIDED TO YOU ON AN "AS-IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAW, POSTCART MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR AVAILABLE IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, POSTCART DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, COMPLETENESS, QUALITY OR MISDELIVERY OF THE SERVICES OR INFORMATION TRANSMITTED VIA THE SERVICES, NOR THE SAFETY, SECURITY, RELIABILITY, TITLE, TIMELINESS, MERCHANTABILITY, CONFORMITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THE SERVICES, INFORMATION TRANSMITTED VIA THE SERVICE. IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS, COMPLETENESS SAFETY, SECURITY, RELIABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, POSTCART MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SERVICES ARE FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.

IN NO EVENT SHALL POSTCART OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS, REPRESENTATIVES, PARTNERS, LICENSORS, SUPPLIERS AND AFFILIATES BE RESPONSIBLE, OR LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOSS OF PROFIT, GOODWILL, REVENUE OR BUSINESS, PROCUREMENT COSTS, LOSS OF USE, OR ANY OTHER INTANGIBLE LOSS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THESE TERMS OF SERVICE, THE PRIVACY POLICY, ANY APPLICABLE RULES, OR THE LAW; (II) YOUR ACCESS OR USE OF THE SERVICES; (III) ANY THIRD PARTY'S ACCESS OR USE OF THE SERVICES UNDER YOUR USER NAME OR PASSWORD; (IV) YOUR INABILITY TO ACCESS OR USE THE SERVICES FOR ANY REASON OR FOR ANY PERIOD OF TIME; (V) YOUR DOWNLOADING OF ANY SOFTWARE OR CONTENT; (VI) YOUR RELIANCE UPON OR USE OF ANY CONTENT, INFORMATION, MATERIALS, PRODUCTS OR SERVICES; (VII) THE BREACH OF POSTCART’S SECURITY; OR (VIII) THE UNAUTHORIZED DISCLOSURE OF YOUR PERSONAL INFORMATION; EVEN IF POSTCART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, POSTCART’S LIABILITY IS LIMITED TO YOUR ACTUAL DIRECT DAMAGES NOT IN EXCESS OF THE AMOUNTS PAID, IF ANY, BY YOU TO POSTCART FOR USE OF THE SITE AND SERVICES.

Without limiting the foregoing, Postcart is not responsible for any damage to any User's equipment, computer, software, or wireless device due to using the Services or downloading of any software or information necessary to use the Services. There is no express or implied guaranteed service level for Postcart, and the Services may be interrupted from time to time, and may not always be virus or error-free. Under no circumstances will Postcart be responsible for errors in transmission, lost or unavailable network connections, telephone connections, wireless phone connections, website, Internet, or ISP availability, unauthorized human intervention, traffic congestion, incomplete or inaccurate capture of entry information (regardless of cause) or failed, incomplete, garbled, jumbled or delayed transmissions in connection with the Services.

Some state laws do not allow limitations on certain warranties or damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you.


7. INTELLECTUAL PROPERTY RIGHTS

a. Content published by Postcart, including, without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like, and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Postcart, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on Postcart is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Postcart reserves all rights not expressly granted in and to the Site and Content. You agree not to engage in the use, copying, or distribution of any of the Content other than expressly permitted herein. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of Postcart or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Postcart or the Content therein.

b. Postcart does not claim rights to Content and/or Items you upload to the Services and you may remove any Content and/or Items at any time via Account management tools provided by Postcart or by deleting your Account.

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.

c. You agree to not utilize a User Name or Store Name that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is already in current use, is vulgar or otherwise offensive or may cause confusion

d. You agree not to upload Content or offer Items that impersonate someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive or may cause confusion. Additionally, you agree to not post Content and/or Items that violate our Prohibited Use policy.

e. You agree to allow other Users to view Content posted to your Postcart Account and you grant Postcart a non-exclusive, royalty free, fully paid, transferable, sublicensable, worldwide right to use the Store Name, User Name, Content, trademarks, service marks, logos, photos, text descriptions and anything else you upload to your Account.

f. You agree to not change, modify, adapt or alter the Services or change, modify, adapt or alter another internet site, mobile application or any other item or service to falsely imply that it is associated with the Services or Postcart.


8. PAYMENTS TO POSTCART, ACCOUNT CANCELLATION

a. You agree to pay all fees due to Postcart. These fees will vary depending on the type of Account you possess and will include one of the following: a monthly fee for your use of the Services, a yearly fee for your use of the Services (collectively “Subscription Fees”) and/or a per transaction fee for use of the Services (a “Transaction Fee”). These fees are in addition to fees that may be charged by Payment Providers you have authenticated for use with your Account.

b. You agree to keep a valid credit card on file with the Services to allow Postcart to charge Subscription Fees and/or Transaction Fees. All charges from Postcart will be denominated in U.S. Dollars.

c. You have the ability to cancel any recurring charges at any time by logging into your Account, navigating to Settings > Billing and choosing “Cancel Plan”. Postcart does not offer full or prorated refunds for payments made to Postcart. If you wish to delete your Account first cancel your plan as described above, then send an email to delete@postcart.co with your deletion request. The email must originate from the email account used to establish your Postcart Account. Once this request is processed you will no longer have access to any Content you uploaded to Postcart and you will not have the ability to access your Account. Upon cancellation, all licenses and other rights granted to you in these Terms of Service will immediately cease.

9. YOUR INDEMNIFICATION OF POSTCART

a. You agree that you shall defend, indemnify and hold harmless Postcart and its officers, directors, shareholders, employees, independent contractors, agents, representatives, partners, licensors, suppliers and affiliates and other Users of the Services from and against all claims, actions, demands, liabilities, settlements and expenses, including, but not limited to, attorneys' fees and costs, arising out of, or related to: (i) any breach or violation of these Terms of Service, the Privacy Policy or law by you; (ii) your failure to provide accurate, complete, non-misleading and current Account data; (iii) your access or use of the Services; (iv) any third party's access or use of the Services under your user name and password.


10. INJUNCTIVE RELIEF

a. You acknowledge that Postcart will be irreparably damaged if these Terms of Service or the Privacy Policy are not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of these Terms of Service or the Privacy by you, Postcart shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of these Terms of Service or Privacy Policy. For purposes of this section, you agree that any action or proceeding with regard to an injunction in connection with the Terms of Service or the Privacy Policy shall be brought exclusively in the state courts of record for Portland, Oregon, or the United States District Court, located in Portland, Oregon. You consent to the jurisdiction of such court and waive any objection to the laying of the venue for such action or proceeding in Portland, Oregon. You agree that service of any court paper may be affected on you by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.

11. GOVERNING LAW, VENUE AND JURISDICTION; ARBITRATION

a. These Terms of Service and the Privacy Policy are governed by and shall be construed in accordance with the internal laws of the State of Oregon, without regard for conflicts of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any civil action, claim, dispute or proceeding arising out of or relating to the Services, these Terms of Service, or the Privacy Policy, except for an injunctive action (as discussed above), shall be referred to final and binding arbitration, before three arbitrators, under the commercial arbitration rules of the American Arbitration Association in Seattle, Washington. You and Postcart shall select the arbitrators, and if you and Postcart are unable to reach agreement on selection of the arbitrators within thirty (30) days after the notice of arbitration is served, then you and Postcart shall each select an arbitrator, and the two arbitrators selected will pick the third arbitrator. Arbitration shall not commence until the party requesting arbitration has deposited Three Thousand Dollars ($3,000.00) with the arbitrators for the arbitrators' fees and costs. The party requesting arbitration shall advance such sums as are required from time to time by the arbitrators to pay the arbitrators' fees and costs until the prevailing party is determined or the parties have agreed in writing to an alternate allocation of fees and costs.

b. Judgment upon any award rendered by the arbitrator shall be final, binding and conclusive upon you and Postcart and your and Postcart’s respective administrators, executors, legal representatives, heirs, successors and assigns, and may only be entered in the state courts of record for Portland, Oregon, or the United States District Court located in Portland, Oregon. The jurisdiction and venue for any action brought for purposes of injunctive relief or compelling arbitration or enforcing an arbitration award arising from, under or connected the Services, these Terms of Service, or the Privacy Policy shall be exclusively in the state and/or federal courts in and for Portland, Oregon, and each party hereby waives any objection to such jurisdiction and venue based upon forum non conveniens or otherwise.


12. MISCELLANEOUS

a. Users may only access those portions of the Site specifically made available to Users. Under no circumstances are Users permitted to use or attempt to use the Site or any portion thereof to violate its security or the security of systems accessible through it.

b. If any part of these Terms of Service or the Privacy Policy are deemed by a court of competent jurisdiction to be unlawful, void or unenforceable, the Terms of Service and Privacy Policy as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of the Terms of Service or Privacy Policy that is unlawful, void or unenforceable shall be stricken or revised, if possible, to retain the intent thereof.

c. The headings contained in these Terms of Service and the Privacy Policy are for convenience of reference only, are not to be considered a part of these Terms of Service or the Privacy Policy and shall not limit or otherwise affect in any way the meaning or interpretation of these Terms and Conditions or the Privacy Policy.

d. No waiver of any portion of these Terms of Service or the Privacy Policy shall be effective against Postcart unless it is in writing and signed by an authorized representative of Postcart. The failure of Postcart to require performance of any obligation of these Terms of Service or the Privacy Policy shall not affect Postcart’s right to enforce any provision of these Terms of Service or the Privacy Policy at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.

e. All covenants, agreements, representations and warranties made by you in these Terms of Service or the Privacy Policy shall survive the termination of these Terms of Service or the Privacy Policy, and the termination of your use of the Services.


13. DMCA AND COPYRIGHT INFRINGEMENT NOTICES

a. It is Postcart's policy to respond expeditiously to claims of intellectual property infringement. Postcart will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. If you believe that a Postcart User is infringing on your intellectual property rights you may send notice detailing the infringement to:

POSTCART Co.
ATTN: DMCA AGENT
1355 NW Everett St
Portland, OR 97209

Upon receiving notice we may disable or remove access to portions of the Services displaying disputed Content. Users will be provided with the option of replying to the takedown notice if they believe the complaint is invalid. The original complainant has 14 business days to provide a Court Order restraining the User from engaging in the infringing activity. If such an Order is not provided to Postcart we may restoring the Content that is the subject of the complaint.