Postscript Plus – Terms and Conditions
Version Date: September 29, 2021
BY USING THE PROFESSIONAL SERVICES OR INDICATING ITS ACCEPTANCE OF THIS AGREEMENT, YOU (“YOU” OR “CUSTOMER”) AGREE TO THESE TERMS. IF YOU ARE USING THE PROFESSIONAL SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A COMPANY, CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THESE TERMS, AND YOU REPRESENT AND WARRANT THAT YOU HAVE SUCH AUTHORITY. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE THE AFOREMENTIONED AUTHORITY OR DO NOT AGREE WITH THESE TERMS, THEY MAY NOT USE THE PROFESSIONAL SERVICES.
1.1. Appointment as Agent. Customer hereby appoints Customer as its agent to perform the services indicated in the applicable Service Order or Change Order (collectively, the “Professional Services”). The Professional Services exclude all Third Party Integrations.
1.2. Performance of Professional Services. Postscript accepts the foregoing appointment and will use commercially reasonable efforts to perform the Professional Services. Postscript may perform the Professional Services in a way it determines in its sole discretion is best suited to accomplish the objectives of the Professional Services. Customer acknowledges and agrees that if it indicates its desire to receive the “Campaign Send and Schedule” Professional Services, Postscript will, on behalf of Customer, schedule and send text messages to Customer’s end users in a manner and with content determined by Postscript.
1.3. Access; Cooperation. During the Term, to the extent Postscript needs access to Customer’s log-in credentials to Customer’s Shopify account or Third Party Integrations to perform the Professional Services, Customer shall always keep Postscript informed of such credentials. Customer acknowledges that its timely provision of cooperation, complete and accurate information and data are essential to Postscript’s performance of the Professional Services and that Postscript’s obligation to complete the Professional Services is dependent upon same. Customer’s failure to timely perform any of its obligations under this Agreement shall relieve Postscript of its dependent obligations to the full extent of such delay.
1.4. Third-Party Integrations. Third Party Integrations may be used in connection with the Professional Services to the extent approved as set forth in the applicable Service Order or Change Order. The procurement of any Third Party Integration is solely between Customer and the applicable third party and Postscript shall have no liability for any such Third Party Integration. Postscript cannot guarantee the continued availability of the interoperation between the Professional Services and any Third Party Integration and may cease providing any Third Party Integration without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Integration ceases to make such Third Party Integration available for interoperation in a manner acceptable to Postscript or if Postscript determines such Third Party Integration breaches Applicable Laws (as defined below). Customer grants Postscript, its Affiliates (as defined below) and its applicable contractors a worldwide, limited license during the Term to host, copy, use, transit, and display any Third Party Integration as appropriate for Postscript to provide and ensure proper operation of the Professional Services.
2. Fees; Billing Procedures.
2.1. Customer shall pay Postscript for the Professional Services in accordance with the fee schedule set forth in the applicable Service Order or Change Order. Unless otherwise specified in an applicable Service Order or Change Order, Customer shall pay invoices in full, in U.S. currency, within thirty (30) days after the date of Postscript’s invoice. All past due amounts will incur interest at a rate equal to the lesser of 1.5% per month or the highest rate permitted by law.
2.2. Within fifteen (15) days after Postscript submits an invoice to Customer, Customer shall reimburse Postscript for all expenses actually incurred in connection with the Postscript’s provision of the Professional Services.
3. Intellectual Property; Data
3.1. Customer Intellectual Property. As between the parties, Customer shall own and retain all Intellectual Property Rights in the Content and Customer Lists, subject to the rights and licenses granted below. Customer hereby grants Postscript a nonexclusive, royalty-free, worldwide right and license during the term of this Agreement to use, reproduce, perform, display, transmit, operate, maintain, modify, and prepare derivative works of the Content and Customer Lists for the sole purpose of providing the Professional Services. Notwithstanding anything else, after the Term, Postscript may hold and use certain information associated with the Customer Lists to comply with applicable laws (including, without limitation, the TCPA) and industry best practices.
3.2. Postscript Intellectual Property. As between the parties, Customer shall own and retain all Intellectual Property Rights in the Platform, subjects to the rights and licenses granted in the Customer Agreement. Notwithstanding anything else, Postscript and its licensees may fully use, share, and otherwise exploit Generic Language.
3.3. Data Processing. In connection with the Professional Services, Postscript may process personal information on behalf of Customer. Accordingly, each party acknowledges and agrees that Postscript is a service provider for the purposes of the CCPA and is receiving personal information from Customer pursuant to the Agreement for a business purpose. Postscript shall not sell any such personal information. Postscript shall not retain, use or disclose any personal information provided by Customer pursuant to the Agreement except as necessary for the specific purpose of performing the services for Customer pursuant to the Agreement, to comply with applicable laws (including, without limitation, the TCPA), or otherwise as set forth in the Agreement or as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. Postscript certifies that it understands the restrictions of this Section 4.3.
3.4. Section 3 Definitions.
(a) “CCPA” means the California Consumer Privacy Act and its implementing rules and regulations.
(b) “Content” means text content, graphics, artwork, photographs, videos, and sound recordings provided by either Customer or Postscript to the other party in connection with the Professional Services and delivered to Customer’s end users via the text messaging functionality of the Platform.
(c) “Customer Lists” means the lists of names and phone numbers of Customer’s end users compiled by Customer or Postscript and used in connection with the Professional Services.
(d) “Generic Language” means text message content created by Postscript but excluding any specific reference to Customer’s name, brands, products, services, or Confidential Information.
(e) “Intellectual Property Rights” means, on a worldwide basis, any and all: (i) rights associated with works of authorship, including copyrights, moral rights, database rights and mask works; (ii) trademarks; (iii) trade secret rights; (iv) patents, designs, algorithms and other industrial property rights; (v) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vi) registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
(f) “TCPA” means the Telephone Consumer Protection Act and its implementing rules and regulations.
4. Confidential Information. Each party (the “Receiving Party”) will keep confidential and not disclose to any other party or use (except as authorized by this Agreement) confidential and proprietary information (“Confidential Information”) obtained from the other party (the “Disclosing Party”). Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can demonstrate: (i) at the time of disclosure is publicly available or becomes publicly available through no act or omission of the Receiving Party, (ii) has been disclosed to the Receiving Party by a third party who is not under, and to whom the Receiving Party does not owe, an obligation of confidentiality with respect thereto, or (iii) has been independently acquired or developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party gives reasonable notice to the Disclosing Party to contest such order or requirement.
5. Representations and Warranties.
5.1. Mutual Warranties. Each party represents and warrants that: (i) it has the legal power to enter into the Agreement; (ii) the signatory hereto has the authority to bind such party; and (iii) when executed, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with the terms listed hereto.
5.2. Customer Warranties. Customer represents, warrants and covenants that: (i) when collecting and maintaining phone numbers for its Customer Lists, it has complied and will comply with all applicable federal, state, and local laws, regulations, and rules governing such text messages, including, without limitation, the TCPA, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, and state and local equivalents (collectively, “Applicable Laws”) and industry best practices; (ii) it will only direct Postscript to send text messages to individuals that have provided Customer (or Postscript) with the legally required consent to receive such text messages and that have not revoked such consent, and (iii) it will immediately notify Postscript of all requests made by individuals to stop receiving text messages.
6. Warranty Disclaimer.
6.1. General Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5 (REPRESENTATIONS AND WARRANTIES), POSTSCRIPT (FOR ITSELF AND ITS LICENSORS) DISCLAIMS ALL WARRANTIES RELATING TO THE PROFESSIONAL SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT CREATED BY POSTSCRIPT OR CUSTOMER LIST), AND ANY OTHER SUBJECT MATTER UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM ERRORS, CORRECTNESS, ACCURACY, AND RELIABILITY, AND ALL WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
6.2. ROI Target Disclaimer. WITHOUT LIMITING SECTION 6.1, POSTSCRIPT DISCLAIMS ALL WARRANTIES RELATING TO THE ROI TARGET AND MAKES NO GUARANTEES OR ASSURANCES THAT THE ROI WILL EVER EQUAL OR EXCEED THE ROI TARGET. CUSTOMER ACKNOWLEDGES AND AGREES THAT ITS SOLE REMEDY, AND POSTSCRIPT’S SOLE LIABILITY, FOR ANY FAILURE OF THE ROI TO EQUAL OR EXCEED THE ROI TARGET SHALL BE THE DOWNGRADE PROVISIONS SET FORTH IN THE SUPPLEMENTAL ORDER TERMS.
6.3. Third Party Integrations Disclaimer. CUSTOMER IS SOLELY RESPONSIBLE FOR PROCURING ANY AND ALL RIGHTS NECESSARY FOR CUSTOMER AND POSTSCRIPT TO ACCESS ANY AND ALL THIRD PARTY INTEGRATIONS AND FOR COMPLYING WITH ANY APPLICABLE TERMS OR CONDITIONS THEREOF. POSTSCRIPT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR OFFER ANY SUPPORT WITH RESPECT TO THE SERVICES OR TECHNOLOGY PROVIDED BY ANY THIRD PARTY INTEGRATION OR ANY THIRD PARTY PROVIDER. ANY EXCHANGE OF DATA OR OTHER INTERACTION BETWEEN CUSTOMER AND ANY THIRD PARTY INTEGRATION IS SOLELY BETWEEN CUSTOMER AND THE THIRD PARTY PROVIDING SUCH THIRD PARTY INTEGRATION AND IS GOVERNED BY SUCH THIRD PARTY’S TERMS AND CONDITIONS.
7.1. Postscript Indemnification. Customer shall indemnify, hold harmless, and defend Postscript and its officers, directors, employees, or affiliates (“Affiliates”) against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party (including reasonable attorneys’ fees) actually incurred as a result of such third-party claims, demands, or causes of action (collectively, “Losses”) that arise out of: (i) any breach of its representations and warranties set forth in Section 5.2; (ii) infringement by the Content or the Third Party Integrations of any third party Intellectual Property Right; (iii) any allegation that the Professional Services or text messages sent in connection with the Professional Services violates Applicable Laws; (iv) Customer’s products, services, and promotions marketed in connection with the Professional Services; and (v) the Third Party Integrations.
8. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE, EXCLUDING THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, POSTSCRIPT SHALL NOT HAVE ANY (X) LIABILITY TOWARDS CUSTOMER FOR ANY DAMAGES ARISING FROM THE PROFESSIONAL SERVICES, WHETHER THE CAUSE OF ACTION BE BASED ON TORT, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, PUNITIVE, ACTUAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR DUE TO ANY CAUSE OF ANY NATURE OR (Y) TOTAL LIABILITY UNDER THIS AGREEMENT IN EXCESS OF THE TOTAL FEES PAID BY CUSTOMER TO POSTSCRIPT IN THE TWELVE (12) MONTH PERIOD PRECEEDING THE CLAIM OR ACTION GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Term; Termination.
9.1. Term. Unless otherwise specified in an applicable Service Order or Change Order, the term of this Agreement will be the term indicated in the applicable Service Order or Change Order and shall renew (if at all) as set forth in an applicable Service Order or Change Order (collectively, the "Term"). Notwithstanding anything to the contrary in the Customer Agreement, if the Customer Agreement expires as a result of either party’s failure to renew it, at Postscript’s option, the term of the Customer Agreement shall automatically be extended to terminate as of the last date of the Term.
9.2. Termination for Breach. Either party may terminate this Agreement for the other party’s material breach that remains uncured thirty (30) days after the terminating party provides the breaching party notice of such breach. Except in the case of any Customer Agreement Extension, this Agreement shall terminate immediately upon the termination of the Customer Agreement.
9.3. Survival. All outstanding payment obligations and Section 3 (Intellectual Property; Data), Section 4 (Confidential Information), Section 6 (Warranty Disclaimer), Section 7 (Indemnification), Section 8 (Limitation of Liability), this Section 9.4, Section 10 (Dispute Resolution), and Section 11 (Miscellaneous) shall survive the termination or expiration of this Agreement.
10. Dispute Resolution.
10.1. General. In the interest of resolving disputes between Customer and Postscript in the most expedient and cost effective manner, Customer and Postscript agree that any dispute arising out of or in any way related to this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND POSTSCRIPT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
10.2. Exceptions. Notwithstanding Section 10.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
10.3. Arbitrator. Any arbitration between Customer and Postscript will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Postscript. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
10.4. 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 11.5. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice is received, Customer or Postscript may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer or Postscript must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Customer’s favor with a monetary award that exceeds the last written settlement amount offered by Postscript prior to selection of an arbitrator, Postscript will pay Customer the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Postscript in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
10.5. Fees. If Customer commence arbitration in accordance with this Agreement, Postscript will reimburse Customer for Customer’s payment of the filing fee, unless Customer’s claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, Customer may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Customer’s billing address. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Customer agree to reimburse Postscript for all monies previously disbursed by it that are otherwise Customer’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits. Notwithstanding anything in this Agreement to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 10.
10.6. No Class Actions. CUSTOMER AND POSTSCRIPT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Postscript agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
10.7. Modifications to this Arbitration Provision. Except as otherwise provided in this Agreement, if Postscript makes any future change to this arbitration provision, other than a change to Postscript’s address for Notice, Customer may reject the change by sending us written notice within thirty (30) days of the change to Postscript’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes Customer rejected, will continue to govern any disputes between Customer and Postscript.
10.8. Enforceability. If Section 10.6 is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
11.1. Force Majeure. Postscript shall not be liable in damages or have the right to terminate this Agreement for any delay or default that is caused by conditions beyond its control, including, but not limited to, acts of God, earthquakes, fire, flood, epidemics, labor disputes, changes in law, regulations or government policy, government restrictions (including the denial or cancellation of any export or other necessary license), riots, wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including transportation difficulties, acts or omissions of vendors or suppliers (including, without limitation, Shopify and Third Party Integrations), or mechanical, electronic, internet service provider, or communications failure).
11.2. Assignment. Customer may not assign or transfer its rights or delegate any obligations pursuant to this Agreement without the express prior written consent of Postscript. Any assignment by Customer without the prior written consent of Postscript shall be null and void. Postscript may assign its rights or obligations pursuant to this Agreement without providing notice to Customer and without Customer’s prior consent, provided, however, that the Professional Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s successors and assigns.
11.3. Independent Contractor Relationship. Neither Customer nor Postscript shall be deemed to be an agent of the other and the relationship of Customer and Postscript shall be that of independent contractors. Except as expressly provided under this Agreement, neither Customer nor Postscript shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
11.4. Notices. Any notice or report required or permitted to be given or made under this Agreement by either party will be in English, in writing, and be deemed to have been fully given and received (a) when delivered personally; (b) when sent by confirmed facsimile; (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) one (1) business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (e) to the extent expressly permitted in this Agreement, one (1) business day after being sent via email. Notices will be sent to the parties at the addresses set forth in this Agreement or such other address as a party may specify in writing to the other. All notices to Postscript must be made to the address listed below and all notices to Customer must be made to the mailing or email address of Customer’s primary contact with Postscript.
Postscript Notice Address:
Stodge Inc. d/b/a Postscript
ATTN: Legal Department #251
3370 North Hayden Road Ste 123
Scottsdale AZ 85251
11.5. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.7. Modifications. Any modifications of this Agreement must be in writing (for example, as evidenced by a Change Order) signed by a duly authorized representative of each party.
11.8. Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.