Archived - Master Services Agreement

Master Services Agreement

This Master Services Agreement (the “Agreement”) is executed between PostGrid Inc., a Delaware corporation (“PostGrid”) and the Customer. The Customer is the entity you represent in accepting this Agreement. If you (the “Customer’s Representative”) are accepting of behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement and (iii) you agree to this Agreement on behalf f the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click “I agree” (or similar button or checkbox).

This Agreement is entered into as of the date Customer’s Representative first clicks “I agree” (or similar button or checkbox) when ordering a Product or accessing a free product or service from the PostGrid website or when the Customer Representative first signs an order form referencing this Agreement (the “Effective Date”). This Agreement does not have to signed in order to be binding. The Customer’s Representative indicates his or her assent to this Agreement by clicking “I agree” (or similar button or checkbox) at the time he or she purchases a Product or access a free product or service or signs an order form (any of these being an “Order”) or creates an account on the PostGrid website.

Order and Services: Subject to Customer’s payment of all applicable fees, PostGrid will provide (i) the services (“Services”) consisting of the cloud-based delivery of one or more products (“Product(s)”) specified in one or more Orders. Any software, APIs, Documentation, instructions or other ancillary materials (collectively the “PostGrid Materials”) and subsequent updates and upgrades which are distributed or otherwise provided to Customer under this Agreement are deemed a part of the Products and subject to all of the terms and conditions of this Agreement.
PostGrid will use commercially reasonable efforts to provide the Services and Products in accordance with the service level policy as set out in https://www.postgrid.ca/legal/
Use of the Products and Services: Subject to Customer’s compliance with the terms and conditions of this Agreement. PostGrid grants Customer the non-exclusive, non-transferable, non-sublicensable right to use the Products specified in such Order during the applicable Term (as defined below) for the internal business purposes of Customer as set out in this Agreement and in only in accordance with any applicable official user documentation for such Product provided by PostGrid (the “Documentation”).
Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Customer represents and warrants that it will not use or allow any third-party to use the Services in a manner that violates
(i) any local, state, national and foreign laws, treaties and regulations in connection applicable to Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), or
(ii) the Acceptable Use Policy as set out at https://www.postgrid.ca/legal/ and
(iii) any third party intellectual property, contractual or other proprietary rights.
PostGrid reserves the right, in its sole discretion and in accordance with and if permissible by applicable laws and regulations, to monitor any and all Customer Data without prior notice to ensure that it conforms to the usage guidelines or policies including the Acceptable Use Policy.
Restriction on Use: Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly:
(i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of any Product (except to the extent applicable laws specifically prohibit such restriction);
(ii) modify, translate, or create derivative works based on any Product
(iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to any Product.
(iv) use any Product for the benefit of a third party.
(v) remove or otherwise alter any proprietary notices or labels from any Product or any portion thereof.
(vi) use any Product to build an application, product or service that is competitive with any PostGrid product or service.
(vii) interfere or attempt to interfere with the proper working of any Product or any activities conducted on any Product; or
(viii) bypass any measures PostGrid may use to prevent or restrict access to any Product (or other accounts, computer systems or networks connected to any Product); or
(ix) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of any Product.
Ownership and licensing of the Products and Services: As between the parties, PostGrid retains all right, title, and interest in and to the Products, including any enhancements, updates and upgrades to such Products, and all software, products, works, and other intellectual property and moral rights related to the Products or created, used, or provided by PostGrid for the purposes of this Agreement No rights or licenses are granted except as explicitly set forth in this Agreement.
Subject to Customer’s compliance with the terms and conditions of this Agreement, PostGrid hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to the PostGrid Materials to install, copy and use the PostGrid Materials in connection with and necessary for the Customer’s use of the Services and Products, solely in accordance with the terms and conditions of the Agreement.
Customer Data: For purposes of this Agreement, “Customer Data” shall mean any data, information, logos, trademarks or other material uploaded, or submitted by or by its users, employees, contractors, agents or customers to the Products in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not PostGrid, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use, of all Customer Data.
Customer represents and warrants that (i) it has the necessary rights and licenses, consents, permissions, waivers and releases to use and display the Customer Data, (ii) that the Customer Data does not (a) violate, misappropriate or infringe any rights of PostGrid or any third party, (b) constitutes defamation, invasion of privacy or publicity or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age, (d) contain any harmful components.
Notwithstanding anything to the contrary, Customer acknowledges and agrees that PostGrid may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for PostGrid’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing PostGrid’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by PostGrid in connection with Customer’s use of the Services, but only in aggregate, anonymized form which (x) does not incorporate any personally identifiable information, and (y) can in no way be linked specifically to, or otherwise be used to identify, Customer or to any of Customer’s users, employees, contractors, agents or customers.
Security: PostGrid shall use commercially reasonable efforts to maintain the security of the Services and the security and privacy of Customer Data in accordance with PostGrid’s Data Processing and Security Terms hosted at https://www.postgrid.com/legal/. PostGrid is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services except to the extent that such access is due to PostGrid’s negligence or willful misconduct
Payment of Fees: Customer shall pay PostGrid the fees for the Services as set forth in each Order (“Fees”). Orders are non-cancelable. Invoices will be payable as set out in the Order. Past due invoices are subject to interest on any outstanding balance of the lesser of 1% per month or the maximum amount permitted by law. Customer is responsible for all taxes associated with the Services (excluding taxes based on PostGrid’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order, then (i) PostGrid shall invoice Customer for such usage at the overage rates set forth on the Order (or if no overage rates are set forth on the Order, at PostGrid’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Initial Term or then-current Order Renewal Term (as applicable).
Third Party Services: The Services integrate with, interoperate with, provide Customer with access to, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by third parties (collectively, “Third Party Services”). Third Party Services may include, without limitation, eCommerce, print services, address verification services, as well as any related data provided by such services. Third Party Services are not under PostGrid’s control, and Customer acknowledges that PostGrid is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of Third Party Services. To the extent that Customer directs PostGrid to integrate the Products with any Third Party Services, Customer represents and warrants that such integration will not cause any conflict with or infringement of any third party rights (including without limitation any terms and conditions applicable to such Third Party Services).
Confidentiality: “Confidential Information” means all trade secrets, know-how, software, pricing, and other financial, business or technical information disclosed by or for a party in relation to this Agreement that is designated as confidential or which a reasonable person would understand as confidential or proprietary given its nature and the circumstances surrounding disclosure. Confidential Information does not include any information the receiving party can demonstrate is (a) already known by it or rightfully furnished to it by a third party without restriction, (b) generally available to the public without breach of this Agreement, or (c) independently developed without reference to the disclosing party’s Confidential Information. Except for the specific rights granted by this Agreement, neither party shall use or disclose any of the other party’s Confidential Information without its prior written consent. A party receiving Confidential Information shall use reasonable care to protect it. If required by law, the receiving party may disclose Confidential Information of the disclosing party but will give adequate prior notice of such disclosure to permit the disclosing party to intervene and request protective orders or other confidential treatment for the Confidential Information. Customer may (but is not obligated to) provide suggestions, comments or other feedback to PostGrid with respect to the Products (“Feedback”). Feedback is not considered Confidential Information. PostGrid acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to PostGrid a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
Indemnification: Customer shall defend PostGrid, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from and indemnify them for all liabilities, claims, and expenses paid or payable (including reasonable attorneys’ fees) that have been finally awarded by a court of competent jurisdiction or as part of an approved settlement (“Losses”), arising from
(i) Customer’s use of the Services in a manner not authorized in this Agreement and/or in violation of the the Acceptable Use Policy and/or applicable law any claim that
(ii) the Customer Data, including but not limited to any claim involving infringement or misappropriation of third-party rights.
PostGrid will defend Customer, its affiliate and each of its affiliates’ employees, contractors, directors, suppliers and representatives from and indemnify them for Losses arising from a third-party claim that the Services or any Products infringe or misappropriate a third-party’s intellectual property rights in the Canada or United States. The foregoing obligations of PostGrid do not apply with respect to the Services or Products to the extent (i) not created or provided by PostGrid (ii) combined with other produces, processes or materials not provided by PostGrid (iii) modified after delivery by PostGrid; (iv) where Customer continues using the allegedly infringing Service or Product after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) Customer’s use of the Services is not strictly in accordance with this Agreement.
Each indemnifying party’s indemnification obligations under this Agreement is conditioned upon the indemnified party providing the indemnifying party with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the indemnifying party of its indemnity obligations it is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the indemnified party may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the indemnifying party’s expense).
Disclaimer: Except as expressly set forth herein, the services and products are provided “as is” and “as available” and are without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance, usage of trade or course of dealing, all of which are expressly disclaimed. Postgrid does not warrant that the services or products will function as described, will be uninterrupted or error free, free of harmful components or that the data you store within the services will be secure or not otherwise lost or damaged. Postgrid is not responsible for any service interruptions, no advice or information obtained by you from any third party or through the services shall create any warranty that is not expressly stated in this agreement.
Limitation of liability: To the extent permitted by law, in no event shall either party, nor its directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the subject matter of this agreement (i) for any lost profits, unauthorized access to or loss of data, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) the fees paid by customer to postgrid hereunder in the three (3) months prior to the event giving rise to a claim hereunder.
Term and Termination: The term of this Agreement (the “Term”) shall commence as of the Effective Date. Upon execution of an Order, the Term shall continue, and shall last until the expiration of all Order Terms. For each Order, unless otherwise specified therein, the “Order Term” shall begin as of the effective date set forth on such Order, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order (the “Order Initial Term”), and (y) following the Order Initial Term, shall automatically renew for additional successive periods of one year each (each, an “Order Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than sixty (60) days prior to the expiration of the Order Initial Term or then-current Order Renewal Term, as applicable.
In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, PostGrid may suspend or limit Customer’s access to or use of a Service if (i) Customer’s account is more than thirty (30) days past due, or (ii) Customer’s use of such Service results in (or is reasonably likely to result in) damage to or material degradation of such Services which interferes with PostGrid’s ability to provide access to such Services to other customers. Either party may terminate this Agreement immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty days of filing. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
In the case of expiration or termination of this Agreement, upon request by Customer made before, or within sixty (60) days after, the effective date of expiration or termination, PostGrid shall make available to Customer a complete download of all Customer Data in a file or database format in PostGrid’s discretion. For clarity, any services provided by PostGrid to Customer, including the downloading set out above, and any assistance in exporting the Customer Data, shall be billable at PostGrid’s standard rates then in effect.
Publicity: Customer consents to the identification of Customer as a customer of PostGrid on PostGrid’s websites, and in other marketing and investor materials distributed by PostGrid (which may include emails and other web and print materials) (collectively, “PostGrid Marketing Materials”). Subject to prior approval of Customer, Customer also agrees to be referred in press releases, case studies prepared by PostGrid (collectively “PostGrid Press Materials”). In connection with such activities PostGrid may also display Customer’s trademark, service marks, and/or logos (collectively the “Customer Marks”) in PostGrid Marketing Material and PostGrid Press Materials. Customer hereby grants PostGrid a limited, non-exclusive, non-sublicensable license to use the Customer Marks for the purposes as set out in this section. The Parties agree that such license and consent shall terminate upon termination of Customer’s subscription to all Services.
Entire Agreement: This Agreement represents the entire agreement between Customer and PostGrid with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and PostGrid with respect thereto (including, without limitation, any nondisclosure agreement entered into by the parties in the course of negotiating or entering into this Agreement).
Governing Law and Jurisdiction: The Agreement shall be governed by and construed in accordance with the laws of Delaware, USA, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction in the courts located in the Delaware, USA.
Notices: All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the signature blocks below. Either party may update its address giving notice in accordance with this section.
Amendment and Waiver: Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party.
Force Majeure: Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; pandemics and epidemics, acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
Assignment: Neither party may assign any of its rights or obligations under this Agreement without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) PostGrid may utilize subcontractors in the performance of its obligations under this Agreement.
Independent Contractors: No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
Recovering Costs: In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
Severance and waiver: If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.