Terms of Service

Welcome to Simpler Postage, Inc. (d/b/a EasyPost) and its subsidiaries, affiliates and other related entities (“EasyPost,” “we,” “our,” or “us”). These Terms of Service (“Terms” or “Agreement”) govern your use of our application programming interfaces (“APIs”) for the EasyPost products and services (or features of such products and services), your use of the our software applications, architecture, and platforms, and systems and data facilities (the “Network”), including any other websites, subdomains, or services owned or controlled by EasyPost that provide you with access to the APIs, the Software, the Network, and any related applications, as well as any professional services provided to you by EasyPost in connection with the same (collectively, the “EasyPost Products and Services”).

To access the EasyPost Products and Services, you must at all times agree to and abide by these Terms.

These Terms constitute a legal contract between you, either an individual or a company, organization, partnership, or other legal entity (“you,” “your,” or “Customer”), and EasyPost regarding your use of the EasyPost Products and Services. EasyPost may have different roles with respect to different types of end users of the EasyPost Products and Services, and “you” as used in these Terms will apply to the appropriate type of end user of the EasyPost Products and Services under the circumstances.

Please carefully read these Terms. By accessing, downloading, and/or using the EasyPost Products and Services, you signify that you have read, understood, and agree to be bound by the Terms, which hereby incorporate the following:

• The provisions of these Terms of Service;
• The EasyPost Privacy Policy (the “Privacy Policy”)
• Any order form, services agreement, or other written agreement that has been issued by EasyPost and executed by you (hereinafter, referred to as an “Order”);
• Any statement of work for professional services that has been issued by EasyPost and executed by you (hereinafter, referred to as an “SOW”);
• To the extent you use EasyPost Shipping Insurance, the Shipping Insurance Terms;
• To the extent you use EcoPost (EasyPost’s Carbon Offset API), the EcoPost Terms of Service; and
• Any additional documentation or guidelines and any future modification to any of the foregoing that may be issued by EasyPost from time to time.

If you are using EasyPost Products or Services or opening an account with EasyPost on behalf of a company, organization, partnership, or other legal entity (collectively, the “Subscribing Organization”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; (ii) have read and understand these Terms; and (iii) agree to these Terms on behalf of such Subscribing Organization.

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS CLASS ACTION AND JURY TRIAL WAIVER PROVISIONS. THESE PROVISIONS REQUIRE YOU TO WAIVE YOUR RIGHT TO A JURY TRIAL AND REQUIRE YOU TO BRING ANY CLAIM ON AN INDIVIDUAL BASIS, RATHER THAN ON BEHALF OF A CLASS. IN ADDITION, THIS AGREEMENT LIMITS THE AMOUNT OF TIME YOU HAVE TO BRING ANY CLAIM.

1. Definitions.  The following terms shall have the meanings set forth below when used in this Agreement:

1.1. “Carrier Charges” means any postage, label fees, and other charges, penalties, or fees, as well as any applicable taxes or surcharges, charged by a third-party shipping carrier in connection with the purchase of shipping labels and other services from such carrier via the EasyPost APIs.‍

1.2. “Customer Applications” means a software application(s) or website that interfaces with the EasyPost Products and Services and includes any services (web-based or other services) made available by Customer in connection with that software application.

1.3. “Customer Data” means data and other information made available to EasyPost through the use of the EasyPost Products and Services under this Agreement, including Customer’s Confidential Information (as defined below) and information related to End Users.

1.4. “Customer Marks” means the various trademarks, service marks, names and designations used in connection with the Customer’s products and services, including, without limitation, the Customer Application(s).

1.5. “Documentation” means all of the instructions, code samples, on-line help files and technical documentation made available by EasyPost for the EasyPost Products and Services.

1.6. “EasyPost APIs” means the application programming interfaces for the EasyPost Products and Services (or features of the EasyPost Products and Services) provided to Customer by EasyPost, including, without limitation, Shipping APIs (Label, Rating and Tracking APIs), Address Verification APIs, and the SmartRate API.

1.7. “EasyPost Marks” means the various trademarks, service marks, names, and designations used in connection with the EasyPost Products and Services, including, without limitation, the marks “EasyPost,” “EcoPost,” “Elevate,” and “Ship/FX.”

1.8. “EasyPost Products and Services” means collectively EasyPost’s proprietary software products and services offered to third-party customers, including but not limited to the EasyPost APIs, the Software, the Network and any related software solutions and platforms used for the provision of shipping, label, tracking, and address verification services and other logistic services, which may be modified or changed from time to time by EasyPost.‍

1.9. “EasyPost Technology” means the EasyPost Products and Services as well as all systems and other technology owned or licensed by EasyPost, including all Documentation, improvements, updates, upgrades, additions developed by or for EasyPost for use in the EasyPost Products and Services, including all associated Intellectual Property and Intellectual Property Rights therein.‍

1.10. “EasyPost Wallet” means the Customer’s account in which Customer may deposit funds for purchases through the EasyPost APIs, including for the payment of Service Fees (as defined below), Carrier Charges, and other fees.

1.11. “Effective Date” means the date on which Customer creates an Account (as defined below) or as otherwise defined in the applicable Order and/or SOW.

1.12. “End User” means an individual user of the Customer Application(s) whose information is received by EasyPost from or on behalf of Customer.‍

1.13. “Intellectual Property” means all algorithms, application programming interfaces, software code (in any form including source code and executable or object code), user interfaces, concepts, databases and data collections, designs, diagrams, documentation, drawings, flowcharts, formulas, ideas, discoveries and inventions (whether or not patentable or reduced to practice) and all enhancements, modifications and derivatives thereof, know-how, research and development plans, methods, models, network configurations and architectures, assemblers, applets, compilers, procedures, processes, protocols, schematics, specifications, subroutines, techniques, tools, and other forms of technology.

1.14. “Intellectual Property Rights” mean all intellectual and industrial property rights of every kind and description anywhere in the world, whether recorded or registered in any manner, or otherwise, including without limitation or prejudice to the foregoing generality, all U.S. and non-U.S. (a) rights in or to trademarks and service marks (whether or not recorded or registered in any manner), design rights, business names, trade names, brand names, domain names and other designations of source of origin, together with all goodwill related to the foregoing, (b) patents and patent applications, (c) rights in or to copyrights, (d) rights in or to trade secrets and confidential information, including, without limitation, know-how, technology methods, ideas and inventions, (e) rights in database and software, mask works, and computer code (whether in source code, object code or any other form), (f) all applications and registrations of any of the foregoing, and (g) all other legal rights anywhere in the world protecting such intangible property.

1.15. “Term” means (a) the Initial Service Term, which shall be one (1) year from the Effective Date of this Agreement or as otherwise defined in any applicable Order or SOW; and (b) each Additional Term (as defined below), where applicable, unless the Agreement is terminated earlier in accordance with these Terms or the applicable Order or SOW.

2. EasyPost Products and Services.

    2.1. Products and Services.  Subject to the terms and conditions of these Terms and the applicable Order and/or SOW, EasyPost shall use commercially reasonable efforts to provide you with the EasyPost Products and Services.

    2.2. License Grant.  Subject to the terms and conditions of these Terms and the applicable Order and/or SOW, EasyPost hereby grants you a limited, personal, non-transferable, non-sublicensable, and fully revocable license during the Term to: (a) use and access the EasyPost Products and Services in the manner contemplated by these Terms, any applicable Order or SOW, and the Documentation; (b) access the EasyPost APIs and Documentation to the extent needed to develop, test, and support integration of the Customer Application(s); and (c) offer the EasyPost Products and Services to End Users through the Customer Application(s), in accordance with the Terms and the Documentation.

    2.3. Customer Usage.  You shall be solely responsible for all use (whether or not such use was authorized by you) of the EasyPost Products and Services and Documentation through your account and/or any subaccounts you create, including but not limited to: (a) all Service Fees and Overage Fees (as defined below); (b) all charges incurred in connection with the purchase of postage and labels as well as any and all fees, penalties, surcharges, or other charges imposed by any third-party shipping carriers in connection with any purchase; and (c) the quality of the Customer Data and each Customer Application.

    2.4. Features. You acknowledge that the features and functions of the EasyPost Products and Services, including, without limitation, the EasyPost APIs, may change over time. It is your responsibility to ensure that any integration, calls, or requests made to the EasyPost Products and Services are compatible with the then-current EasyPost APIs. Although EasyPost endeavors to avoid changes to the EasyPost APIs that are not backwards compatible, if any such changes become necessary, then EasyPost will use reasonable efforts to notify you prior to implementation.

    2.5. Professional Services.  You may contract with EasyPost to perform professional services (the “Professional Services”). The specific details of the professional services to be performed will be determined on a per-project basis and will be described in the applicable Order or SOW. You may request in writing that reasonable revisions be made with respect to a mutually-executed Order or SOW. Such change requests must be submitted or reduced to writing (“Change Request”). If either you or EasyPost determines that such Change Request will affect EasyPost’s Fees (either the total amount or the basis for calculating the fees) or the schedule for completion, then EasyPost will submit its change response and in good faith will specify the components and amounts by which its Fees, the schedule and/or any other material terms of the Order or SOW would change (“Change Order”). Customer shall accept or reject any Change Order, as applicable, in a reasonably prompt manner. If Customer accepts a Change Order, such Change Order shall become part of this Agreement and will prevail over any inconsistent terms of the applicable Order or SOW.

    2.6. Third-Party Agreements.  In addition to these Terms, your relationship(s) with any third-party shipping carriers (e.g., the United States Postal Service (“USPS”), Federal Express (“FedEx”), United Parcel Service (“UPS”), etc.) and any other specific third-party provider (e.g., third-party payment platforms, including Stripe, Inc.) will be subject to separate terms and conditions applicable to each carrier or provider. All such third-party carrier and provider agreements, available upon request, supplement these Terms and are hereby incorporated by reference. Further, you will be subject to all guidelines, rules, and rates as set by any third-party carriers or providers, which may result in additional fees, charges, or penalties in the event such guidelines or rules are not followed. All such guidelines, rules, and rates are hereby incorporated by reference into these Terms. EASYPOST MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER, AND DOES NOT PROVIDE ANY INDEMNIFICATION, IN RELATION TO THIRD-PARTY CARRIERS OR PROVIDERS, THEIR PRODUCTS AND SERVICES, OR THEIR SYSTEMS. YOUR USE OF ANY THIRD-PARTY PRODUCTS OR SERVICES IS AT YOUR OWN RISK. EASYPOST ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR DAMAGE INCURRED RESULTING FROM THE USE OF ANY THIRD-PARTY PRODUCT OR SERVICE (INCLUDING BUT NOT LIMITED TO THE AVAILABILITY OR OPERATION OF THE SERVICES TO THE EXTENT SUCH AVAILABILITY AND OPERATION IS DEPENDENT UPON A THIRD-PARTY CARRIER OR PROVIDER), REGARDLESS OF WHETHER EASYPOST IS A RESELLER OF, OR REFERRAL AGENT FOR, SUCH PRODUCT OR SERVICE.‍

    2.7. Modification of the Terms.  EasyPost reserves the right, at its sole discretion, to change, supplement, or remove all or part of these Terms at any time. You agree to review these Terms periodically for changes. When we change the Terms in a material manner, we will update the “last modified” date at the top of this page. If any such revision is unacceptable to you, your only remedy is to terminate your use of the EasyPost Products and Services. Your continued use of the EasyPost Products and Services following any revision to these Terms will mean you accept all of the updated terms and conditions.

    2.8. Support. EasyPost provides support services via requests sent to support@magiclogic.com. Additional support services may be available to you upon payment of applicable fees, as specified in any applicable Order or SOW. Any support services are subject to these Terms. EasyPost may also provide onboarding, deployment and other services under this Agreement. The scope, pricing, and other terms for these additional services will be set forth in the applicable Order or SOW. EasyPost’s ability to deliver any support services will depend on your reasonable and timely cooperation and the accuracy and completeness of any information from you needed to deliver the service.

3. Service Fees for EasyPost APIs; Developer Plan Pricing.

    3.1. Service Fees.  EasyPost shall charge service fees based upon your use of the EasyPost APIs (the “Service Fees”). Service Fees shall be equal to either a fee per each label purchased or a subscription fee based upon an annual quantity estimate provided by you. The Service Fees shall include: (a) one (1) free Tracker API call per label purchased; (b) one (1) free Address Verification API call per label purchased; and (c) the creation of up to three (3) free Rating API calls per label purchased (i.e., up to a 3:1 ratio of Rating API calls to label purchased). In the event your usage exceeds the annual quantity estimate provided by you for a quoted subscription fee by more than 125%, EasyPost reserves the right to amend such subscription fee based upon the increased usage.

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    3.2. Overage Fees.  To the extent that your usage of the EasyPost APIs exceeds what is included with the Service Fees, as set forth in Section 3.1, EasyPost shall charge overage fees (the “Overage Fees”) as follows: (a) two cents ($0.02) per each additional Tracker API call; (b) two cents ($0.02) per each additional Address Verification API call for addresses located in the United States; (c) six cents ($0.06) per each additional Address Verification API call for addresses located outside of the United States; and (d) two cents ($0.02) per each additional Rating API call in excess of the 3:1 ratio set forth above.

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    3.3. SmartRate API Service Fees.  EasyPost shall charge a service fee equal to three cents ($0.03) per Smart Rate API call via the EasyPost APIs (the “SmartRate Service Fees”). EasyPost agrees to waive the SmartRate Services Fees for the first five hundred (500) calls to the SmartRate API by you.

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    3.4. Developer Plan Pricing.  Where you have not entered into a separate Order with EasyPost or where a prior Order has been terminated or expired, EasyPost shall charge you in accordance with the following Developer Plan Pricing for use of the EasyPost APIs:

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            3.4.1. Service Fees.  The Service Fees under the Developer Plan shall be equal to five cents ($0.05) per each label purchased via the EasyPost APIs.

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            3.4.2. Waiver of Service Fees. EasyPost agrees to waive the Service Fees under the Developer Plan for the first one hundred twenty thousand (120,000) labels purchased via the EasyPost APIs in any consecutive, twelve-month period, up to a maximum of ten thousand (10,000) labels purchased per month. The Overage Fees set forth in Section 3.2 shall still apply. This waiver of Service Fees is applied based upon the aggregate number of labels purchased by the Subscribing Organization as well as any purchases by related subsidiaries, affiliates, employees, agents, and contractors. The creation of multiple Accounts by or at the direction of the Subscribing Organization is expressly prohibited absent the written consent of EasyPost, and if any Subscribing Organization attempts to do so, EasyPost reserves the right to revoke the waiver of Services Fees set forth in this Section 3.3.2.

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            3.4.3. Shipping Insurance.  You shall be enrolled automatically for EasyPost Shipping Insurance and may purchase insurance for a fee of twenty-five cents ($0.25) for fifty dollars ($50.00) of insurance coverage per shipment, with the option to purchase additional insurance coverage for a fee equal to one-half of one percent (0.5%) of any insured shipment’s value. If Customer fails to provide a shipment value at the time of label purchase, the insurance policy will be issued with a fifty dollar ($50.00) coverage limitation. You may unenroll from the EasyPost Shipping Insurance by submitting a request through your dashboard or to EasyPost Support.

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    3.5. Payment of Service Fees and Carrier Charges.  All Service Fees and any applicable Carrier Charges shall be due at the time of the transaction or as set forth in the applicable Order. Overage Fees and SmartRate Services Fees shall be charged on a monthly basis. Any additional Carrier Charges or other fees will be charged when such information is made available by the applicable carrier. All Fees (as defined below) for the use of the EasyPost APIs shall be paid via Customer’s EasyPost Wallet or as set forth in the applicable Order.

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    3.6. New Account Promotions.  EasyPost may offer a promotional credit to new customers upon completion of the creation of an Account (as defined below) and EasyPost’s verification of Customer information and eligibility. If a Customer has multiple Accounts, then the promotional credit will be provided to one Account only. Any such promotional credit shall be deposited in Customer’s EasyPost Wallet to be used exclusively for future purchases of EasyPost Products and Services. Such credit shall not be refundable to Customer under any circumstances. For the avoidance of doubt, any Customer (including subsidiaries, affiliates, employees, or agents) that has previously opened an Account shall be ineligible to receive any promotional credit, and EasyPost reserves the right to revoke the credit if such credit was wrongfully delivered to an ineligible Customer. Any promotion may be terminated by EasyPost at any time and at EasyPost’s sole discretion.

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4. Payment Terms.

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    4.1. Fees.  You agree to pay all fees set forth in the applicable Order and/or SOW or in accordance with the Developer Plan Pricing above, and any other amounts payable under this Agreement, including all applicable Carrier Charges and other fees or charges (together, the “Fees”). Except as otherwise provided herein or in an executed Order and/or SOW, all Fees are non-cancelable and nonrefundable. In the event that you do not utilize the EasyPost Products and Services during the Term, you shall not have the right to any refund of the Fees or to carry forward any unused EasyPost Products or Services to a future Term. If your use of the EasyPost Products and Services exceeds any capacity limitations set forth in the applicable Order or otherwise requires the payment of additional Fees (per the terms of this Agreement), EasyPost will charge you for such additional usage, and you agrees to pay the additional Fees in the manner provided herein. Unless otherwise stated in the applicable Order or SOW, all Fees are exclusive of applicable federal, state, or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, import fees and taxes, license fees and surcharges, whether charged to or against EasyPost, and all such taxes, fees, and charges will be the sole responsibility of and payable by Customer. Customer will not withhold any taxes or other charges from any amounts due to EasyPost.

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    4.2. Payment Terms.  You agree to pay all Fees in accordance with the terms and on the schedule described in the applicable Order and/or SOW or otherwise in the Terms. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all expenses of collection including but not limited to reasonable attorneys’ fees. If you fail to pay timely any Fees due hereunder, EasyPost will (without limiting its other rights) be entitled to suspend the EasyPost Products and Services associated with your Account(s) without prior notice to you. If payment is not thereafter rendered within thirty (30) days of delivery of notice to Customer of such failure, EasyPost may immediately terminate this Agreement. EasyPost will not have any liability whatsoever for any damage, liabilities, losses (including any lost profits) or any other consequences that Customer may incur with respect to any suspension or termination of the EasyPost Products and Services in accordance with the Terms. EasyPost reserves the right to increase all recurring subscription, support, and/or maintenance fees upon ninety (90) days’ written notice; if you do not consent to such change, you may terminate the applicable service. If you use the EasyPost Wallet or a designated credit card or ACH (from a bank account acceptable by EasyPost) for payment of the Fees and other charges, including all postage and Carrier Charges, you authorize the card issuer to pay all such amounts and authorizes EasyPost (or its billing agent) to charge the credit card and/or account during the Term; provided that if payment is not received through the credit card and/or account, you agree to pay all amounts due upon demand. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer will be responsible to pay. If Customer’s payment method choice is a credit card for any given payment, a standard convenience fee of three and three-quarters percent (3.75%) will apply.

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    4.3. Future Functionality. Customer’s purchases of the EasyPost Products and Services are not contingent on the development or delivery of any future functionality or features, or dependent on any oral or written comments made by EasyPost regarding future functionality or features.

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    4.4. Disputes.  Customer will notify EasyPost in writing in the event Customer disputes any portion of any Fees paid or payable by Customer under this Agreement. Customer will provide such notice to EasyPost within thirty (30) days of the applicable charge, and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the thirty-day (30-day) period described in this Section 4.4, Customer will not be entitled, and hereby waives any right, to dispute any Fees paid or payable by Customer. Customer agrees to pay all costs of collection, including attorneys’ fees and costs, on any outstanding balance owed to EasyPost.

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    4.5. Refunds.  Customer agrees to and acknowledges the following with regard to requests for refunds:

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            4.5.1. Return of Deposits in EasyPost Wallet.  All unused deposits in Customer’s EasyPost Wallet are refundable upon request. To initiate a refund request, Customer must submit the request in writing to EasyPost Support.

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            4.5.2. Unused Labels.  Customer may request refunds for unused labels purchased from USPS or through the EasyPost-FedEx by Default account or a UPS DAP account, subject to the requirements set forth herein and the terms and the conditions of the applicable carrier. Requests for refunds must be made within thirty (30) days of purchase of the respective label and must be submitted to EasyPost Support. No refunds for unused labels will be provided in the event Customer fails to make a request prior to the expiration of the thirty-day deadline. Refunds will be deposited in Customer’s EasyPost Wallet only if and when the applicable carrier issues payment to EasyPost. Requests for refunds for unused labels purchased through Customer’s owned and managed carrier accounts must be submitted directly to the applicable carrier.

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            4.5.3. Insurance Premiums.  Payments made for EasyPost Shipping Insurance are not refundable, except in connection with requests made regarding unused labels as set forth in Section 4.5.2.

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            4.5.4. Fees.  Except as set forth in the applicable Order or SOW, all other Fees, including Service Fees, Overage Fees, and SmartRate Service Fees paid to EasyPost, are not refundable.

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5. Restrictions and Responsibilities.

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    5.1. Customer Accounts.  To use certain EasyPost Products and Services, you must register and create an account (“Account”) with EasyPost. When creating your Account, you agree to provide true, accurate, current, and complete information and to maintain and update your Account information as needed. You are responsible for implementing generally accepted security measures to protect your Account, including maintaining the confidentiality of your Account username, password, and any API keys provided, and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your Account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the EasyPost Products and Services through your Account with or without your permission, including through the sharing of your Account information or your API key. The person who first completes the registration on behalf of any Subscribing Organization is the initial “Administrator” for purposes of such Subscribing Organization’s use and shall exercise certain options to determine the level of access, subaccounts, and other operations for the Account.

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    5.2. Use Restrictions.  Except as expressly permitted in Section 2 above or in the applicable Order or SOW, you are not permitted, and you will not permit any of your affiliates or any third parties, to: (a) transfer, sell, resell, rent, lease, license, sublicense, distribute, or otherwise permit third parties to access or use the EasyPost Products and Services; (b) use the EasyPost Products and Services in connection with the provision of services to third parties; (c) copy, reproduce, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the EasyPost Products and Services or any software Documentation or data related to the EasyPost Products and Services; (d) modify, translate, or create derivative works based on the EasyPost Products or Services; (e) circumvent or disable any security or other technological features or measures of the EasyPost Products and Services, or attempt to probe, scan, or test the vulnerability of a network or system, breach security or authentication measures, or gain unauthorized access to any service, system, or network; (f) upload or provide for processing, or use the EasyPost Products and Services to store, display, or transmit any information or material that is illegal, defamatory, offensive, abusive, obscene, or tortious, or that violates privacy or intellectual property rights; (g) use the EasyPost Products and Services to harm, threaten, or harass another person or organization or in any way that violates applicable laws or regulations; (h) use the EasyPost Products and Services to create, send, store, run, or distribute any viruses, worms, Trojan horses, or other disabling code, malware component, or code or program harmful to a network or system; or (i) alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the EasyPost Products and Services. Customer will ensure that the EasyPost Products and Services are used in accordance with all applicable laws, regulations, third-party rights, and the terms of this Agreement. In addition, Customer is required to alert EasyPost of any and all use of the EasyPost APIs within highly regulated (federal, state or local) industries, including, without limitation, the labeling of hazardous materials and cannabis-related products.

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    5.3. Protection Against Unauthorized Use.  You will, and you will ensure that your affiliates and permitted third parties, use reasonable efforts to prevent any unauthorized use of the EasyPost Products and Services, and you will notify EasyPost in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Easypost Products and Services directly or indirectly through your Account, you will be responsible for all such unauthorized use and any resulting damages and will take all steps reasonably necessary to terminate the unauthorized use. Customer will assist and cooperate with EasyPost with any actions taken to prevent or terminate unauthorized use of the EasyPost Products and Services. EasyPost has no obligation to monitor Customer’s use of the EasyPost Products and Services; provided, however, Customer grants EasyPost full rights to, in its sole discretion, monitor Customer’s use of the EasyPost Products and Services and the Customer Application(s) to ensure there is no violation of this Agreement. EasyPost may prohibit any use of the EasyPost Products and Services by Customer or any End User that EasyPost believes may be (or is alleged to be) in violation of the foregoing or any other terms of this Agreement.

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    5.4. Equipment Maintenance. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the EasyPost Products and Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and any other equipment necessary to facilitate the EasyPost Products and Services (collectively, the “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, customer’s account and password (including, but not limited to, administrative and user passwords), and Customer files.

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    5.5. Restrictions on Use and Unlawful Activity.  You agree not to do any of the following, or permit any of your End Users, employees, contractors, agents or any third party to use the EasyPost Products and Services for any of the following:

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• For any purpose that is unlawful or is restricted by any governmental authority or body or is otherwise prohibited by these Terms;
• In or for the benefit of any state, local, or federal governments, embassy, foreign consulate, or other foreign governments, except with written consent of EasyPost;
• In or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanction lists identified by the United States Office of Foreign Asset Control (OFAC), available at https://ofac.treasury.gov;
• Sale of goods or services that are counterfeit or illegally imported or exported;
• Sale of regulated or illegal products and services, including, but not limited to, cannabis and related businesses;
• Use of any misleading or incorrect names, addresses, email addresses, telephone numbers, or other information;
• Use that in our sole discretion could damage, disable, overburden, impair, adversely affect, or impact the security of the EasyPost Products and Services; or
• Access for any competitive purposes (including to build an application or product that is competitive with the EasyPost Products and Services).

6. Confidentiality; Intellectual Property Rights.

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    6.1. Definition.  “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed (directly or indirectly) by either party (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment) and is marked or otherwise designated as “Confidential” or “Proprietary” or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure.

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    6.2. Exceptions.  Confidential Information does not include any information which: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by the disclosing party to the receiving party; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by the disclosing party to the receiving party through no wrongful action or inaction of receiving party; (iii) is in the rightful possession of the receiving party without confidentiality obligations at the time of disclosure by the disclosing party to the receiving party as shown by the receiving party’s then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by the receiving party from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.

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    6.3. Non-Disclosure.  Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may only disclose the Confidential Information of the other party, in whole or in part, to its officers, employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential either (i) per the terms of this Section, or (ii) by other written agreement with terms that are no less stringent than the terms of this Section. Either party may disclose the Confidential Information of the other party as required by applicable law, regulation, order, or other legal process, upon prior written notice to the other party (where such notice is permitted); provided that such party will use its reasonable efforts to minimize such disclosure to that portion of the Confidential Information that is legally required to be disclosed and is permitted by applicable law.

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    6.4. Return; Destroy; Protect.  On the disclosing party’s request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than: (a) records the receiving party has a separate legal right or obligation to retain or as otherwise permitted under the Agreement or as required by the applicable third-party shipping carrier; and (b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains information disclosed by the disclosing party, the receiving party will continue to protect such information in accordance with Section 6.3: (x) for so long as it meets the definition of Confidential Information above; (y) if it constitutes a trade secret, for so long as required under applicable law, and/or (z) if it constitutes personal data relating to an End User received from the disclosing party, for so long as required by applicable law.

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    6.5. Customer Data.  Customer Data is Customer’s property and, as between Customer and EasyPost, Customer retains exclusive ownership of all right, title and interest in and to Customer Data. Notwithstanding anything to the contrary in this Agreement, EasyPost shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the EasyPost Products and Services and related systems and technologies (including, without limitation, Customer Data and data and information derived therefrom), and Customer grants EasyPost a non-exclusive, worldwide, royalty-free license to use, copy, transmit, store, aggregate, publish, distribute and display, during and after the Term: (a) Customer Data as required to provide the EasyPost Products and Services and account management services; (b) use Customer Data and other information received from Customer to improve and enhance the EasyPost Products and Services and for other development, diagnostic and corrective purposes in connection with the EasyPost Products and Services; and (c) disclose such Customer Data solely in aggregate or other de-identified form in connection with its business, provided that any such data is not publicly identified or identifiable as originating with Customer or any individual person or End User. Customer is responsible for the content, accuracy, availability, appropriateness, and legality of Customer Data and any other information Customer may access or provide to EasyPost using the EasyPost Products and Services.

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    6.6. As between the parties, EasyPost exclusively owns and reserves all right, title and interest, including all related Intellectual Property Rights, in and to the EasyPost Products and Services, the EasyPost Technology, the EasyPost Marks, the EasyPost Confidential Information, and any deliverables created by EasyPost as part of the EasyPost Products and Services or other Professional Services, together with all modifications, updates, customizations, enhancements, and improvements. Customer agrees that it will not, directly or indirectly, challenge or contest the validity of the EasyPost’s Intellectual Property Rights, or any registrations thereof and/or applications therefore in any jurisdiction, or the right, title and interest of EasyPost therein and thereto, nor will it claim or register any interest in the various service offerings made available for subscription from time to time by EasyPost.

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    6.7. As between the parties, Customer exclusively owns and reserves all right, title and interest in and to the Customer Applications, the Customer Marks, and the Customer Confidential Information, and all related Intellectual Property Rights. EasyPost agrees that it will not, directly or indirectly, challenge or contest the validity of the Customer’s Intellectual Property Rights, or any registrations thereof and/or applications therefore in any jurisdiction, or the right, title and interest of Customer therein and thereto, nor will it claim or register any interest in the various service offerings made available for subscription from time to time by Customer.

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    6.8. Subject to the terms of this Agreement, each party (the “Licensor”) grants to the other party (the “Licensee”) the right to use and display Licensor’s name and marks (the “Licensor Marks”) on its website and in other promotional materials, whether on a website or in other public or private communications with existing or potential developers and customers, solely in connection with its activities under this Agreement. All such use of the Licensor Marks will be in accordance with the Licensor’s standard trademark usage guidelines and will inure to the benefit of Licensor. Licensee will not use, register or take other action with respect to any of the Licensor Marks, except to the extent authorized in advance by Licensor in writing. In its efforts, Licensee will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Licensee will not, at any time, misrepresent its relationship with Licensor. The license described in this Section will terminate automatically in the event of any termination or expiration of this Agreement.

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    6.9. Feedback.  Customer and its affiliates and/or other permitted third parties may, on an entirely voluntary basis, submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the operations, functionality, or features of the Products and Services or other EasyPost products or services (collectively, “Feedback”). Customer grants EasyPost a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, incorporate into the EasyPost Products and Services, copy, modify, publish, perform, translate, creative derivative works from, sublicense, distribute, and otherwise exploit Feedback without restriction. Feedback is not Customer’s Confidential information.

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7. Term; Termination.

 

    7.1. Term.  The Term of this Agreement will commence on the Effective Date of the Agreement and continue through the Initial Service Term and shall be automatically renewed for additional periods of one (1) year (each, an “Additional Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term.

 

    7.2. Termination.  EasyPost may terminate this Agreement for any reason upon thirty (30) days’ prior written notice to Customer. In addition to any other remedies it may have, either party may terminate this Agreement or an applicable Order or SOWs upon written notice (or without notice in the case of nonpayment), if the other party (a) materially breaches any of the terms or conditions of this Agreement, or the applicable Order or SOW, and fails to cure such breach within 30 days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets. In addition, EasyPost may suspend or terminate the EasyPost Products and Services upon notice for cause if: (x) there is an unusual spike or increase in Customer’s use of the EasyPost Products and Services for which there is reason to believe such traffic or use is fraudulent or unauthorized or is negatively impacting the operating capacity of the EasyPost Products and Services; or (y) EasyPost determines, in its sole discretion, that its provision of any of the EasyPost Products and Services is prohibited by applicable law or has become impractical or unfeasible for any legal or regulatory reason. In the event that Customer continues to use the EasyPost APIs after the termination or expiration of this Agreement, the pricing for the use of the EasyPost APIs will be as set forth in EasyPost’s Developer Plan.

 

    7.3. Effect of Termination; Survival.  Upon termination or expiration of this Agreement and except as set forth in the applicable Order and/or SOW, EasyPost has no obligation to provide any EasyPost Products or Services, all payments owed to EasyPost shall immediately become due and payable, and all rights and licenses granted to Customer will immediately terminate. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment or other liabilities, confidentiality obligations, warranty disclaimers, and limitations of liability.

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8. Third-Party Shipping Carriers.

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    8.1. Carrier Accounts. In the event that Customer decides to purchase labels from third-party shipping carriers, including USPS, FedEx, and UPS, via the EasyPost APIs, Customer is required to acknowledge and accept the respective carrier’s terms of service and may be required to sign up for applicable carrier account(s). Customer is responsible for Customer’s compliance with all such carriers’ terms of service. In addition, Customer is responsible for all charges imposed by such carrier for purchases made on Customer’s account (whether authorized or unauthorized), including any and all fees for postage, labels, overages, penalties, taxes and other surcharges.

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    8.2. USPS Terms

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            8.2.1. In the event Customer purchases and creates USPS labels, Customer agrees that (i) Customer bears full responsibility and liability for obtaining authorization to reproduce and otherwise use the label as created (including, without limitation, any trademarks, slogans, likenesses or copyrighted material contained in the image); (ii) Customer has the legal authority to reproduce and otherwise use the label as proposed; (iii) Customer understands that images or other matter is not provided, approved, or endorsed in any way by the USPS; (iv) Customer agrees to and will comply with the USPS Postage Discrepancy Policy; and (v) Customer agrees to and will comply with any other applicable terms, conditions, or requirements set forth by the USPS in connection with the purchase of the USPS labels.

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            8.2.2. To the extent Customer purchases and creates USPS labels, pursuant to the USPS Postage Discrepancy Policy, EasyPost reserves the right to charge Customer an Automated Package Verification processing fee (“APV Fee”) for use of the EasyPost APIs for processing transactions between the USPS and Customer where there was an overpayment(s) and/or underpayment(s) for USPS postage. The APV Fee will be directly added to or deducted from all APV transactions. Upon written request, EasyPost shall provide Customer with a statement showing the APV transactions and APV Fees for the previous thirty- (30) day period.

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            8.2.3. In the event Customer purchases and create USPS labels, Customer acknowledges and agrees to the following USPS Privacy Act Statement governing the collection of information by the USPS:

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Privacy Act Statement: Your information will be used to facilitate the purchase of USPS postage and fulfill transactional reporting requirements for USPS postage systems. Collection is authorized by 39 U.S.C. 401, 403, and 404. Providing the information is voluntary, but if not provided, your transaction may not be processed. The Postal Service does not disclose your information to third parties without your consent, except to facilitate the transaction, to act on your behalf or request, or as legally required. This includes the following limited circumstances: to a congressional office on your behalf; to financial entities regarding financial transaction issues; to a US Postal Service (USPS) auditor; to entities, including law enforcement, as required by law or in legal proceedings; and to contractors and other entities aiding us to fulfill the service (service providers). For more information regarding our privacy policies, visit www.usps.com/privacypolicy.

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            8.2.4. In the event that Customer or Customer’s End User(s) fails to comply with any applicable requirement of the USPS or is found to be noncompliant by the USPS, EasyPost reserves the right to suspend or terminate the provision of the EasyPost Products and Services to Customer.

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    8.3. FedEx by Default Terms.

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            8.3.1. In the event that Customer purchases and creates FedEx labels using the FedEx by Default Account offered by EasyPost, the following terms and conditions shall apply:

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                8.3.1.1. Each shipment made with FedEx is subject to the country of origin location’s terms and conditions of carriage and the FedEx Service Guide in effect at the time of shipment, which terms are incorporated into this Agreement by reference. FedEx reserves the right to modify the FedEx Service Guide, including a modification of the published transportation rates, at any time without notice. Customer is directed to the FedEx website for changes in the FedEx Service Guide.

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                8.3.1.2. Customer may not under any circumstances sell, assign, or transfer (including but not limited to, through third party billing) the benefit of pricing to any other party.

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                8.3.1.3. Customer acknowledges and agrees that their identity, contact information, account information and FedEx shipping information and data may be provided by FedEx to EasyPost and by EasyPost to FedEx. FedEx shall use and protect the aforementioned information in accordance with the FedEx Data Privacy Policy.

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                8.3.1.4. Claims for loss, damage, misdelivery, non-delivery, misinformation, non-information or processing of a package transported via FedEx Express and FedEx Ground pursuant to this Agreement, must be filed with FedEx directly and solely by EasyPost, and will be paid directly and solely to EasyPost, in accordance with the FedEx Service Guide. FedEx shall have no liability to Customer for any claims.

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                8.3.1.5. Customer cannot ship alcohol, firearms, or other items or commodities that may be prohibited by law. Such commodities require a separate agreement.

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    8.4. UPS DAP Terms.   

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            8.4.1. In the event Customer purchases and creates labels using a UPS Digital Access Program (“UPS DAP”) account, the following terms and conditions shall apply:

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                8.4.1.1. Customer will be required to create an account directly with UPS and agree to abide by all applicable terms and conditions. UPS will create a single shipper number for each Subscribing Organization. Only Customers that do not have an existing UPS account (or an individual shipper number) are eligible to enroll in the UPS DAP program via the EasyPost APIs. All decisions regarding eligibility requirements and participation in the UPS DAP program are within the sole discretion of UPS.

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                8.4.1.2. Each shipment made with UPS is subject to the terms and conditions set forth in the UPS Service Guide in effect at the time of shipment, which terms are incorporated into this Agreement by reference. UPS reserves the right to modify the UPS service Guide, including a modification of the published transportation rates, at any time without notice. Customer is directed to the UPS website for changes to the UPS Service Guide. Customer is not permitted to increase or mark up the rates provided by UPS for purposes of reselling labels to another entity or End User.

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                8.4.1.3. Customer shall be restricted from shipping pharmaceutical products through the UPS DAP account. Any such shipments of pharmaceutical products must be through any individual account created by Customer with UPS.

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                8.4.1.4. UPS reserves the right to audit any package and/or invoice to verify service selection, package dimensions or weight and applicable of any charges. As part of that audit, UPS may weigh and measure any package tendered to UPS using any method UPS deems appropriate, including, but not limited to, multidimensional measuring devices. If any aspect of the shipment information provided by Customer is incomplete or incorrect as determined by UPS in its sole and unlimited discretion, UPS may in its sole and unlimited discretion adjust charges at any time and such adjustments will be charged to Customer’s EasyPost Wallet.

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                8.4.1.5. Any Customer operating as a platform, reseller, or distributor is not permitted to enroll their End Users in the UPS DAP program without first entering into an agreement with UPS and obtaining the express written consent of UPS. EasyPost will not enable or permit any third party (including but not limited to a platform, distributor, provider, channel partner, or other entity acting other than for its own internal purpose) to serve as an intermediary to the shipper utilizing the UPS services, without the prior written approval of UPS.

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9. Representations; Warranties; and Disclaimers.

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    9.1. Authority.  Each of EasyPost and Customer represents and warrants that (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person entering into this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.

 

    9.2. Services Warranty.  EasyPost shall use reasonable efforts consistent with prevailing industry standards to maintain the EasyPost Products and Services in a manner which minimizes errors and interruptions in such EasyPost Products and Services and shall perform implementation, support, and Professional Services in a professional and workmanlike manner. EasyPost Products and Services (or features of the EasyPost Products and Services) may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by EasyPost or by third-party shipping carriers or providers, or because of other causes beyond EasyPost’s reasonable control.

 

    9.3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EASYPOST HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. EASYPOST DOES NOT WARRANT THAT THE EASYPOST PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, NOR DOES EASYPOST MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE EASYPOST PRODUCTS AND SERVICES. EASYPOST DOES NOT MAKE ANY REPRESENTATIONS WITH REGARD TO SERVICES PROVIDED BY OR THE SYSTEMS OF ANY THIRD-PARTY CARRIERS OR PROVIDERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE APPLICABLE ORDER OR SOW, THE EASYPOST PRODUCTS AND SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” TO THE FULLEST EXTENT PERMITTED BY LAW.

 

10. Indemnification.

 

    10.1. Each Party (the “Indemnifying Party”) will indemnify and hold the other party, the other party’s affiliates, and its and their respective officers, directors, employees and agents (collectively, “Indemnified Parties”), from any third-party claim, suit, or proceeding brought against any of the Indemnified Parties arising out of or related to (i) infringement by the Indemnifying Party’s service of any third-party Intellectual Property Rights, or (ii) the Indemnifying Party’s gross negligence or willful misconduct (collectively, “Claims”), and shall pay those amounts (including damages, interest, costs, and attorneys’ fees) finally awarded by a court of competent jurisdiction against the Indemnified Parties or payable pursuant to a settlement agreed to by the Indemnifying Party with respect to such Claim.

    10.2. The Indemnified Parties shall give the Indemnifying Party prompt notice of any Claim, provided that the failure to provide such notice shall only excuse the Indemnifying Party of its indemnification obligations to the extent such failure causes actual prejudice. The Indemnifying Party shall control the defense of any Claim, including appeals, negotiations, and any settlement or compromise thereof. The other party shall reasonably cooperate and assist the Indemnifying Party with respect to the negotiation, defense or settlement of any Claim at the Indemnifying Party’s reasonable request and expense. Notwithstanding the foregoing, the Indemnified Parties may employ their own counsel, at their own option and expense. The Indemnifying Party shall not enter into any settlement that imposes obligations or restrictions on any Indemnified Party without such Indemnified Party’s prior written consent, such consent not to be unreasonably withheld, delayed or conditioned. The Indemnifying Party shall not be liable for any settlement amounts entered into by any Indemnified Party without the Indemnifying Party’s prior written approval.

11. Limitation of Liability.

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    11.1. NO CONSEQUENTIAL DAMAGES.  TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS AND SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND REPRESENTATIVES) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION ANY LOSSES OR LIABILITY ARISING FROM (I) LOSS OF USE, INTERRUPTION OF BUSINESS, THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR COSTS OF DELAY, (II) LOSS OF PROFITS, GOODWILL, REPUTATIONAL HARM, SALES, BUSINESS, OR REVENUE, OR (II) LOSS OF DATA, DATA USE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

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    11.2. LIMITATION ON DAMAGES.  TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE PURSUANT TO THIS AGREEMENT FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE SERVICE FEES PAID OR PAYABLE BY CUSTOMER TO EASYPOST DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM OR TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS GREATER.

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    11.3. THE PROVISIONS OF THIS SECTION SHALL NOT LIMIT EITHER PARTY’S LIABILITY FOR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4.

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    11.4. YOU ACKNOWLEDGE AND AGREE THAT EASYPOST HAS OFFERED THE EASYPOST PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND EASYPOST.

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    11.5. THE PROVISIONS OF THIS SECTION WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN SUCH CASES, LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE.

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12. Governing Law and Disputes; Class Action / Jury Trial Waiver.

 

    12.1. Governing Law.  These Terms shall be governed by the laws of the State of Utah, exclusive of its rules governing conflicts of laws. The parties agree to submit to the exclusive jurisdiction of the federal and state courts located in Salt Lake County, Utah for any actions arising in connection with these Terms. You irrevocably waive objection to the venue of any proceeding in such court or that such court constitutes an inappropriate forum.The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

 

    12.2. Class Action and Jury Trial Waiver.  WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE EASYPOST PRODUCTS AND SERVICES FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING. IN ADDITION, THE PARTIES AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM RELATING TO OR ARISING FROM THE AGREEMENT OR CUSTOMER’S USE OF THE EASYPOST PRODUCTS AND SERVICES. YOU AGREE AND REPRESENT THAT YOU UNDERSTAND THAT, BY ENTERING INTO THIS AGREEMENT AND/OR USING THE EASYPOST PRODUCTS AND SERVICES, YOU AND EASYPOST ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

 

12.3. Claims.  CUSTOMER AGREES THAT ANY CAUSE OF ACTION CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE USE OF THE EASYPOST PRODUCTS AND SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

13. Miscellaneous

    13.1. Assignment.  This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assignees. Customer may not assign or otherwise transfer this Agreement without the prior written consent of EasyPost, which shall not be unreasonably withheld or delayed. EasyPost may assign or otherwise transfer this Agreement upon written notice to Customer. Any other purported assignment shall be void.

    13.2. No Agency.  No agency, partnership, joint venture, franchise, or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.

    13.3. Notices.  All notices under this Agreement must be in writing and will be deemed to have been duly given: (i) upon receipt, if personally delivered; (ii) upon transmission, if provided by email to legal@easypost.com (if to EasyPost) or to the email address provided by Customer in creating the Account or as provided in the most recent Order or SOW (if to Customer): (iii) the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested to each party at its respective address provided in creating the Account or in the applicable Order or SOW.

    13.4. Remote Access.  In certain instances, EasyPost may best be able to assist you or provide updates to the EasyPost Products and Services by using a remote access support tool through which we obtain access to your computer or systems. If you do not want us to have this access, you should not consent to support through the remote access tool, and we will assist you through other means. EasyPost disclaims any liability or responsibility for any damage or loss resulting from use of a remote access tool or to access being granted to EasyPost through such a tool. In the event of any conflict between these Terms and other information provided by EasyPost Support, these Terms will control.

    13.5. Pre–Release Features.  If any feature, product, or service is a pre-commercial release or beta version (“Pre-Release Feature”), then this Section applies. The Pre-Release Feature is a pre-release version, does not represent a final product from EasyPost, and may contain bugs, errors, and other problems that could cause system or other failures and data loss and may only be used for testing purposes. EasyPost may decide never to release the Pre-Release Feature commercially. EasyPost may alter features, licensing terms, or other characteristics of any version of the Pre-Release Feature that it makes available. If you received the Pre-Release Feature pursuant to a separate written agreement (“Test Agreement”), your use is also governed by the Test Agreement. If there is a conflict between the Terms and the Test Agreement, the Test Agreement controls. YOUR USE OF A PRE-RELEASE FEATURE IS AT YOUR OWN RISK. THE SECTIONS RELATED TO WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS ALSO APPLY TO THE PRE-RELEASE FEATURE.

    13.6. Enforceability.  If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.

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    13.7. Location of the EasyPost Products and Services; Export Compliance. The EasyPost Products and Services are controlled and operated from our facilities in the United States. You acknowledge that Customer Data may be accessed, stored, or processed in the United States or other countries outside of where you live, and that it may be accessible to law enforcement and national security authorities of the United States and other countries. The EasyPost Products and Services are subject to United States export laws and regulations and may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the EasyPost Products and Services may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to the use of the EasyPost Products and Services. You may not use or access the EasyPost Products and Services if you are located in a country embargoed by the United States or are a foreign person or entity blocked or denied by the United States government. You acknowledge and agree that EasyPost may suspend all or any part of the EasyPost Products and Services immediately without notice if EasyPost reasonably believes you are accessing or using the EasyPost Products and Services in violation of any applicable law, including any applicable U.S., local, or foreign export laws or regulations.

    13.8. Compliance with Laws.  Each party shall perform all of its obligations under this Agreement in compliance with all foreign, federal, state, and local statutes, orders and regulations, including those relating to privacy and data protection, at all times.

    13.9. Force Majeure.  EasyPost is not liable under this Agreement for non-performance caused by events or conditions beyond EasyPost’s reasonable control (each, a “Force Majeure Event”) if EasyPost makes reasonable efforts to perform and provides immediate notice to Customer. A Force Majeure Event is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent, including, without limitation, (a) riot, states of emergency, war or acts of terrorism; (b) natural disasters like earthquakes, flood, or wildfires; (c) material industrial and labor disputes or strikes’ (d) epidemics, pandemics, or other-disease-related events; (e) failure of electrical service, denial-of-service attacks, or severe internet service provider or third party hosting provider glitches; and (f) other acts of God that materially affect the ability for EasyPost to perform. EasyPost may terminate this Agreement immediately, upon providing written notice to the other party, if a Force Majeure Event continues for more than thirty (30) consecutive days.

    13.10. This Agreement is the complete statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. This Agreement shall supersede the terms of any agreement or other business form executed prior to the Effective Date of the Agreement.

    13.11. Amendment; Counterparts.  No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.