Customer Terms of Service

Last Modified:  5 June 2024

Please note: If you signed up for the PostPilot Services before June 5, 2024, the prior PostPilot Customer Terms will continue to apply to you until the earlier of: (i) the date on which we provide you with email notice of these new Customer Terms, or (ii) August 1, 2024.

Looking for the terms for our new PostPilot AI feature? Click here.

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By accessing or using our Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Customer Terms, whether or not you are a registered user of our Service.

‍Please read these Customer Terms carefully to ensure you understand each provision. These Customer Terms contain a jury trial waiver provision and a mandatory arbitration provision.

If you subscribe to, or access or use the Services, create an organization, invite users to that organization, or use or allow use of that organization after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Agreement and agree to the Agreement on behalf of Customer. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.

Table of Contents

1. General Provisions
2. Service Usage Restrictions
‍3. Shipping
4. Payment Obligations
‍5. Term and Termination
6. Copyright Policy
‍7. Additional Terms for Particular Types of Customers
‍8. Representations; Disclaimer of Warranties
9. Limitation of Liability
‍10. Indemnification
‍11. Confidentiality
‍12. Additional PostPilot Products
‍13. Miscellaneous
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1.         General Provisions

         1.1.  Customers, Authorized Users, and Customer Content

“Customer” or “you” is either you, or the organization that you represent in agreeing to the Agreement. If you signed up for a subscription plan using your corporate email domain or are otherwise entering into a subscription plan on behalf of a business entity or other organization, the business entity or other organization on whose behalf you signed up is the Customer. By signing up on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to the Agreement.

Individuals authorized by Customer to access the Services (each an “Authorized User”) may submit content or information to the Services or to PostPilot’s representatives, which includes information about an identifiable individual (“Customer Personal Data”) and User Content (defined below) (collectively with Customer Personal Data, “Customer Content”), and Customer will have the sole right and responsibility for managing Customer’s use of it. Customer will be solely responsible for all of the acts and omissions of its Authorized Users in relation to the Services and the Agreement. The Services are not intended for and should not be used by anyone under the age of 13. Customer must ensure that all Authorized Users are over 13 years old.

Customer will (i) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Content; and (ii) obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in the Agreement and for the lawful use and transmission of Customer Content and the operation of the Services.

         1.2. Subscriptions

A subscription allows Customer and its Authorized Users to access the Services. A subscription may be procured through the Services dashboard interface, (the “Dashboard”). Subscriptions commence when we make them available to Customer and continue for the term specified in Section 5.2 (the “Subscription Period”). 

         1.3. Beta Products

Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for other Services.

         1.4. Feedback

Customer and its Authorized Users may choose to, or we may invite them to, submit comments or ideas about the Services, including about how to improve the Services or our products (“Ideas”). By submitting any Idea, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation, whether to Customer, the Authorized User, or anyone else, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of the submission, we do not waive any rights to use similar or related Ideas previously known to us, or developed by our personnel, or obtained from sources other than Customer or its Authorized Users.

          1.5. Privacy Policy and Protection of Personal Data ‍

By using the Services, you understand and acknowledge that your personal information will be collected, used, disclosed, and otherwise processed as set forth in our Privacy Policy. To the extent User Content includes Customer Personal Data subject to Data Protection Laws (as defined in the DPA), such Customer Personal Data will be collected, used, disclosed, and otherwise processed in accordance with the terms set forth in the PostPilot Data Processing Addendum (“DPA”), which is available to you at www.postpilot.com/dpa and is hereby incorporated by reference.

We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information, or any personal information of others that you make available through the Services, at your own risk.

2.        Service Usage Restrictions

         2.1.  Our License to Customer

                (a) Ownership of the Services, Documentation and Company Data

We own and will continue to own our Services and Documentation (defined below), including all related intellectual property and other proprietary rights related thereto. Further, Customer acknowledges and agrees that we may collect data relating to Customer’s and its Authorized Users’ usage of the Services (“Usage Data”) and collect, analyze, and use data derived from Customer Content that has been aggregated and/or anonymized such that it does not identify Customer or any identifiable individual person (“Derivative Data” and, collectively with Usage Data, “Company Data”). All Company Data will be owned solely and exclusively by us and we may use the Company Data in perpetuity for any purpose permitted by applicable law.

We may, from time to time, make available certain third-party products services and data ("Third-Party Products") for use in connection with the Services. Such Third-Party Products may be made available under separate or additional terms and conditions, including open source licenses, which we will make available to you as necessary. The Third-Party Product terms available at www.postpilot.com/TPPT (“Third-Party Provider Terms") are hereby incorporated by reference.

                 (b) Licenses to the Services and Documentation

During the Subscription Period, we grant the Customer a non-exclusive, non-transferable license to access and use, and to permit Authorized Users to access and use the Services, in accordance with the Agreement, for the Customer’s own internal business purposes.

To the extent that we may make downloadable software components available, via app stores or other channels, as part of the Services, during the Subscription Period, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services. Minor updates, bug fixes, and the like to such downloadable software components will be included under this license for the duration of the subscription.

From time to time we may make available product documentation for the Services (the “Documentation”) via a method of our choosing (e.g., via the Services). During the Subscription Period, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the Documentation to support Customer’s and its Authorized Users’ use of the Services.

All rights and licenses granted herein are subject to you and your Authorized Users’ full compliance with all of the terms and conditions of the Agreement. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.

         2.2. Customer's Licenses to Us.

                (a) Ownership of Customer Content

As between the Parties, Customer will own all Customer Content, including, for purposes of clarity, Customer Personal Data and User Content. 

                 (b) License to Customer Personal Data

Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users) grants PostPilot and its subcontractors and service providers a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Personal Data, only as reasonably necessary (i) to provide and maintain the Services; (ii) to prevent or address service, security, support or technical issues; (iii) as required by law; and (iv) as expressly permitted in writing by Customer, including in any applicable order. Customer represents and warrants that it has secured all rights in and to Customer Personal Data from its Authorized Users and customers or any third parties as may be necessary to grant this license.

Notwithstanding the foregoing, Customer agrees that we may collect, analyze, use and disclose, during or after the Subscription Period, data derived from Customer Personal Data, which is anonymized and/or aggregated in a manner, that makes the identification of Customer or any Authorized User or third party impossible, for any business purpose, including to operate, analyze, improve, and market the Services and our other products and services and share such anonymized data with our affiliates and business partners. Customer further agrees that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such derived data.

              (c) License to User Content

With respect to that portion of Customer Content that consists of videos, images, music, designs, comments, questions, documents, spreadsheets, and any other content submitted, or otherwise made available by Customer and its Authorized Users through the Services or to PostPilot's representatives ("User Content"), by submitting, storing, or otherwise making such User Content available through the Services or to PostPilot's representatives, Customer grants, and represents and warrants that it has all rights necessary to grant (including any necessary consents and authorizations from individual persons identified in the User Content and licenses from third parties whose content is included in the User Content), to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, list information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content, and the names, voice, and/or likeness contained in the User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with (i) our provision of the Services as described in the Agreement, (ii) marketing or promotional campaigns conducted by PostPilot, and (iii) our product documentation.

To the extent permitted under applicable law, we take no responsibility and assume no liability for any User Content that Customer or any Authorized User or third party submits or otherwise makes available in connection with the Services. As between Customer and us, Customer shall be fully responsible for the User Content and the consequences of submitting or otherwise making it available via the Services. We are acting only as a passive conduit for Customer's and its Authorized Users' distribution of such User Content.

          2.3. Use of the Services

Customer must comply with the Agreement and ensure that its Authorized Users comply with the Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by Customer's removal of certain Customer Content, we will, in most cases, ask Customer to take direct action rather than intervene. However, to the extent legally permissible, we reserve the right to take further appropriate action, when we deem it reasonably appropriate if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.

         2.4. Free Trial Account and Services

In addition to free subscription plans, we offer paid subscription plans which provide discounts on orders ("Paid Service Accounts"). We may offer a free trial, promotional offer, or other type of limited offer for use of our Paid Service Accounts on our Dashboard (a "Free Trial"). The duration of the Free Trial will be specified at sign-up. If you register for a Free Trial, you may be presented with additional terms and conditions when registering your account, and any such additional terms and conditions are hereby incorporated into these Customer Terms by reference and are legally binding. The Free Trial may not include access to all of the features or functions of the Dashboard or our Services. Any data that you enter into the Free Trial may be permanently lost at the end of the trial period unless you (i) purchase a subscription plan for the Services, or (ii) export such data before the end of the trial period.

At the time you sign up for a Free Trial, you must provide a valid payment method in order to access the Free Trial. Your payment method will not be charged during the Free Trial. UNLESS YOU CANCEL YOUR FREE TRIAL PRIOR TO EXPIRATION, YOUR ACCOUNT WILL AUTOMATICALLY BE SUBSCRIBED FOR PAID SERVICES PURSUANT TO THESE CUSTOMER TERMS UPON EXPIRATION OF THE FREE TRIAL, AND A SUBSCRIPTION FEE FOR THE SERVICES WILL BE CHARGED TO YOUR PAYMENT METHOD. FOR MORE INFORMATION ABOUT CANCELLATION AND HOW YOU CAN CANCEL YOUR ACCOUNT, PLEASE REVIEW SECTION 5 OF THESE CUSTOMER TERMS.

Notwithstanding any other provision of these Customer Terms, including any service-specific terms and conditions applicable to any portion of the PostPilot Dashboard or the Services, during a Free Trial, the Services are provided "AS IS" and "as available" without any warranty, and POSTPILOT DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND POSTPILOT'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO YOUR USE OF THE FREE TRIAL IS $100.00. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.

         2.5. Acceptable Use

The Acceptable Use Policy available at www.postpilot.com/acceptable-use-policy (“Acceptable Use Policy") is hereby incorporated by reference.

3.         Shipping

         3.1. Delivery Times

Average, estimated delivery times are displayed on the Dashboard. 

         3.2. Transfer of Title and Risk of Loss

All products that may be purchased via the Services are transported and delivered to the locations provided by Customer by an independent carrier not affiliated with, or controlled by, PostPilot. Title to products and risk of loss pass to you upon tender of such products to the independent carrier in charge of transporting such products (“Carrier”). 

         3.3. Damaged or Missing Products

Customer acknowledges that due to the nature of the products offered by PostPilot, damage could occur to the products as a result of the delivery provided by Carriers. If you have any questions or concerns regarding damaged products, please contact support@postpilot.com. 

4.         Payment Obligations

         4.1. Payment Terms

Customers may set up a free account or a Paid Service Account which offers varying levels of discounts on orders pursuant to our Pricing Page. For Customers that purchase a subscription to a Paid Service Account to use our Services, fees are specified through the Dashboard— and must be paid in advance, unless otherwise agreed by the parties. Payment obligations are non-cancelable and, except as expressly stated in the Agreement, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial Subscription Period. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date, unless otherwise specified on the invoice. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, ”Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.

         4.2. Billing Policies

If you elect to purchase a subscription to use our Services, or certain other paid aspects of the Services, Customer agrees to the pricing communicated to you by us. We may add new services for additional fees and charges, or add or amend fees and charges for existing Services, at any time in our sole discretion, by giving to the Customer at least 7 days’ written notice, such increase is to take effect at the beginning of the next billing cycle; provided that, however, in the event that a Carrier increases postage rates, we may increase our pricing immediately without notice. If the Customer is unhappy with the increase, the Customer may give notice to terminate the Agreement, by giving at least 30 days’ written notice to us, such notice to expire no later than the end of the then-current billing cycle. The fees will not increase during the notice period; otherwise, any change to such pricing shall become effective in the billing cycle following notice of such change as provided under the Agreement.

         4.3. Payment Information

We accept various payment methods through Stripe, including Mastercard, Visa, and American Express. By using our Services, you agree to be bound by Stripe’s Services Agreement available at https://stripe.com/us/legal to process payments you make in connection with the Services. Please see Stripe’s privacy statement available on its website for information on how Stripe collects and uses personal information. Payment must be received by Stripe before our acceptance of an order, and must use one of the payment methods accepted by the Stripe. We do not view or store your full credit card or other payment method information. For all payments, Stripe will collect your payment method details and charge your chosen payment method in connection with an order. You acknowledge and agree that we are not responsible for any breaches of credit card or other payment method security or privacy.

You represent and warrant that: (i) the account, order, and payment method information you supply to us or Stripe, as applicable, is true, correct, and complete; (ii) you are duly authorized to use such payment method; (iii) you will pay any charges that you incur in connection with the Services, including any applicable taxes; (iv) charges incurred by you will be honored by your payment method company; (v) you will pay all charges incurred by you at the posted prices, including all applicable taxes, if any; (vi) you will not allow anyone else to use your subscription; (vii) you will not transfer your subscription or password to anyone else; and (viii) you will report to us any unauthorized or prohibited access or use of your subscription or password.

If any of your account, order, or payment method information changes, you agree to promptly update this information, so that we or Stripe may complete your transactions and contact you as needed. We are not liable for any unauthorized use of your credit card, debit card, or other payment method by a third party in connection with your use of the Services or your subscription.

5.         Term and Termination

         5.1. Agreement Term

As further described below, a free subscription continues until terminated, while a paid subscription has a Subscription Period that may expire or be terminated. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all subscriptions.

         5.2. Auto-Renewal

Unless otherwise set forth in your Dashboard (i) all subscriptions automatically renew for additional periods equal to one (1) year for annual subscriptions, and one (1) month for month-to-month subscriptions, or the preceding Subscription Period, whichever is shorter; and (ii) the per-unit pricing during any automatic renewal Subscription Period will be the then-current price communicated to you by us. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a Subscription Period to stop a subscription from automatically renewing.

         5.3. Termination for Cause

We or Customer may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of the Agreement caused by its Authorized Users. We may terminate the Agreement immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.

         5.4. Termination Without Cause

Customer may terminate its free subscriptions immediately without cause. We may also terminate the Agreement without cause, but we will provide Customer with thirty (30) days prior written notice.

         5.5. Effect of Termination

Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the Subscription Period after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the Subscription Period after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

6.          Copyright Policy

Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

     1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;

     2. Identification of the copyrighted work that you claim has been infringed;

     3. Identification of the material that is claimed to be infringing and where it is located on the Service;

     4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;

     5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and

     6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA agent:

Attn: DMCA Notice

  PostPilot. Inc.

Addr.: 110 Commercial Rd, STE C

            Spartanburg, SC 29303

Tel.:   +1 (854) 888-9179

Email: legal@postpilot.com

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, Customers and Authorized Users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate subscriptions of any Customer or Authorized User who infringes any intellectual property rights of others, whether or not there is any repeat infringement.

7.         Additional Terms for Particular Types of Customers

         7.1. U.S. Government Customers

If Customer is a U.S. government or U.S. public entity (or use of the Services is for the U.S. Government), the terms in this section apply.

                 (a) Use By or For the U.S. Government. The Services are a “commercial item,” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related Documentation is provided to end users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

                 (b) Indemnification, Auto-Renewal, Venue, Legal Fees. The sections in the contract titled “Governing Law,” “Auto-renewal,” “Venue; Waiver of Jury Trial; Fees,” and “Customer’s Indemnification of Us” are hereby waived to the extent they are inconsistent with federal law.

                 (c) No Endorsement. We agree that Customer’s seals, trademarks, logos, service marks, trade names, and the fact that Customer has a presence on one of our websites and uses our Services, will not be used by us in such a manner as to state or imply that our products or services are endorsed, sponsored or recommended by Customer or by any other element of the U.S. Government, or are considered by Customer or the U.S. Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Customer, or for links to or promotion of such pages, we agree not to display any Customer or government seals, trademarks, logos, service marks, and trade names on our homepage or elsewhere on one of our hosted sites unless permission to do so has been granted by Customer or by other relevant federal government authority. We may list Customer’s name in a publicly available customer list on a website or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third-party name.

         7.2. State or Local Government Customers

If Customer is a state or local government, the terms in this section apply, but only to the extent the Services are being used in an Authorized User’s official capacity as a state or local government official. The sections in the contract titled “Governing Law,” “Venue; Waiver of Jury Trial; Fees,” and “Customer’s Indemnification of Us” will not apply to Customer only to the extent Customer’s jurisdiction’s laws prohibit Customer from accepting the requirements in those sections.

         7.3. Healthcare Customers

If Customer is a covered entity as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), unless Customer has entered into a written agreement with us to the contrary, Customer acknowledges that we are not a business associate or subcontractor (as defined in HIPAA) and that the Services are not HIPAA compliant. Customer must not submit, collect or use any “personal health information” as defined in 45 CFR §160.103 (“PHI”), with or to the Services. Further, we suggest that Customer advise Authorized Users directly that they should not transmit PHI through the Services. Customer agrees that we have no liability for PHI received from Customer, notwithstanding anything to the contrary herein.

         7.4. Education Professional Customers

If Customer is a school or educator in the United States and wants its students, who are over the age of 13, to use the Services, Customer is responsible for complying with the U.S. Family Educational Rights and Privacy Act (“FERPA”) and all other law, rules, and regulations protecting the privacy of student data which may be applicable to Customer. Unless otherwise agreed to in writing, Customer may not submit Customer Personal Data which contains personal information from a student’s educational record, as defined by FERPA. Customer is responsible for obtaining all necessary consents, if applicable, before permitting its users to submit information through the Services.

8.         Representations; Disclaimer of Warranties

Customer represents and warrants that it has validly entered into the Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of the Agreement. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

ANY INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY US, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9.          Limitation of Liability

IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE "PAYMENT TERMS" SECTION ABOVE.

IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well as the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third-party logging into and accessing the Services.

The limitations under this "Limitation of Liability" section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this "Limitation of Liability" section allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Services.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10.         Indemnification

Customer will defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorney's fees) arising from: (i) Customer's and any Authorized User's use of and access to the Services, including any Customer Content or other content transmitted or received by Customer or any Authorized User; (ii) your violation of any term of the Agreement, including any breach of Customer's representations and warranties above; (iii) Customer's or any Authorized User's violation of any third-party right, including any right of privacy or intellectual property rights; (iv) Customer's or any Authorized User's violation of any applicable law, rule or regulation; (v) Customer Content or any content that is submitted via Customer's or any Authorized User's account, including misleading, false, or inaccurate information; (vi) Customer's or any Authorized User's gross negligence, fraud, or willful misconduct; (vii) any other party's access and use of the Services with Customer's or any Authorized User's unique username, password or other appropriate security code (provided that such access and use was not our fault); (viii) an allegation that Customer did not or does not possess the appropriate legal rights to license or make available AI Training and Supplemental Data to PostPilot as set forth in these Customer Terms, provided that Customer shall have no indemnification obligations whatsoever for a claim related to the use of AI Training and Supplemental Data in violation of these Customer Terms or in violation of any applicable law or regulation that is unrelated to Customer's intellectual property rights in and to the AI Training and Supplemental Data or a claim that PostPilot's use of AI Training and Supplemental Data as set forth herein infringes upon any third party right or violates any state or federal law, rule or regulation; or (ix) Customer's use of the data it licenses from the PostPilot AI Database in violation of applicable laws or regulations.

11.         Confidentiality

         11.1. Definition

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Content. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (i) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

         11.2. Protection and Use of Confidential Information

The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (ii) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Agreement.

         11.3. Compelled Access or Disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

12.         Additional PostPilot Products

         12.1. License. In furtherance of the additional products above, subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users) grants PostPilot and its subcontractors and service providers a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Personal Data for its and their business purposes. 

         12.2 MailMatch. If you request PostPilot to append or supplement your data pertaining to your customers with data from PostPilot or our third-party service providers for purposes of reverse email append services ("Third-Party Reverse Email Append Licensed Data") to be used by PostPilot on your behalf in connection with a campaign you agree that, In addition to the Third-Party Provider Terms and Acceptable Use and Content Restrictions Policy you are subject to these supplemental terms for reverse email append services ("Reverse Email Append Service Terms").

               (a) License and Authorized to Use

Subject to the terms and conditions of these Customer Terms, you, or PostPilot on your behalf, are hereby granted a nonexclusive, limited, nontransferable license to use the Third-Party Reverse Email Append Licensed Data in connection with one (1) campaign for your marketing programs or services only through the PostPilot Services and not those of another party and for no other purpose. Third-Party Reverse Email Append Licensed Data may not be used in connection with other data collected online using cookies, web beacons, online advertising networks, or other similar online tracking tools.

               (b) Customer Database

You will deliver to a compilation of records, each consisting of an email address of a customer (the “Customer Database”).

         12.3. Prospecting Data; Scoring or Ranking

               (a) Third Party Licensed Data

In addition to the Third-Party Provider Terms and Acceptable Use and Content Restrictions Policy, you understand and agree that your use of the data licensed by third parties ("Third-Party Licensed Data") must fully comply with all applicable laws and regulations. All advertising and promotional material used in connection with any Third-Party Licensed Data must fully comply with any and all applicable laws, regulations, and industry guidelines and standards.

         12.4. SiteMatch

               (a) Subject to the terms and conditions of the Agreement, your full compliance with the Third-Party Provider Terms and Acceptable Use and Content Restrictions Policy, PostPilot grants to Customer a limited, non-exclusive, non-transferable license to use the PostPilot Pixel Service provided by PostPilot's third-party partner solely for Customer's legitimate business purpose of identifying targets for re-marketing.

              (b) If you place a PostPilot Pixel on your website, you represent, warrant and covenant that you have all rights, consents, or permissions necessary for PostPilot and its third-party partner to process your data in connection with the applicable Services. You represent, warrant and covenant that your use of any data or information collected by PostPilot and its third-party partner in connection with the Services shall comply with all applicable laws, rules, orders, and regulations, including all applicable privacy and data protection laws, rules, and regulations.

         12.5. PostPilot AI

             (a) Opt-Out. Participation in the PostPilot AI Service (“PostPilot AI”) is automatic upon account creation or, if you are an existing Customer when PostPilot AI launches, when PostPilot AI becomes available to you. If you do not wish to participate in PostPilot AI, you must affirmatively opt out by going to your account and clicking on the PostPilot AI opt-out link within the following time periods: (i) if you are a new Customer, within 15 days from account creation, or (ii) if you are an existing Customer, within the time period provided to you in the notice mechanism informing you PostPilot AI is now available to you (both (i) and (ii), the "Opt Out Period"). PostPilot will begin using AI Training and Supplemental Data (excluding any data on non-U.S. consumers) as part of PostPilot AI upon expiration of the Opt Out Period. If you do not opt out, this means that you consent to participate in PostPilot AI. Unless otherwise notified by PostPilot, only Customers that have the Shopify integration enabled can participate PostPilot AI. You can also opt out at any time following the Opt Out Period.

             (b) Following an opt out of PostPilot AI, or expiration or termination of these Customer Terms, PostPilot shall stop using AI Training and Supplemental Data for the purposes of PostPilot AI within reasonable time (typically within one business day). If the opt out happens after the Opt Out Period, we may retain certain aggregate metrics that cannot be linked to you, such as aggregate purchasing behavior PostPilot shall continue to adhere to all relevant data protection and privacy laws governing the retention and processing of such data.

             (c) Using certain PostPilot AI features may come with an extra charge.

               (d) Definitions

                   (i) "AI Training and Supplemental Data" means Customer Content that is provided or made available to PostPilot to be used for PostPilot AI.

               (e) Data

                   (i) Customer agrees to the PostPilot use of the AI Training and Supplemental Data for PostPilot AI, as further specified in this Section 12.5. For the purposes of this Section 12.5, AI Training and Supplemental Data will only be used for PostPilot AI features, which will only be leveraged by other PostPilot customers who have opted in to PostPilot AI (“Participant”).

                   (ii) Only for the purposes of operating, maintaining, enhancing, and improving PostPilot AI as set forth in these Customer Terms, Customer hereby grants PostPilot a perpetual, irrevocable, fully paid-up, royalty-free, sublicensable, transferable right and license to use, distribute, reproduce, and create derivative works of AI Training and Supplemental Data. Without limiting the foregoing, Customer hereby authorizes PostPilot to use the AI Training and Supplemental Data to improve PostPilot AI by training, refining, and fine-tuning artificial intelligence and machine learning models used in connection with PostPilot AI.

                   (iii) PostPilot will not permit Customer to use, and Customer may not use, PostPilot AI to target marketing to the end customers of other PostPilot AI Customers specifically identified by Customer. For clarity, it is not possible or permitted for Customer to use PostPilot AI to target marketing to a specific, identified PostPilot AI Customer.

                   (iv) In the event Customer provides PostPilot with data through a third-party integration, such data will be considered AI Training and Supplemental Data for the purposes of this Section 12.5. PostPilot reserves the right, in its sole reasonable discretion, to suspend or disqualify Customer from further PostPilot AI participation for any reason, in its sole discretion, including, without limitation, if Customer’s integration between PostPilot and Shopify becomes inactive.  

               (f) PostPilot Representations and Warranties

                   (i) PostPilot represents and warrants that it will take reasonable efforts to not make available data of any kind to any Participant in a format that would allow the Participant to trace any particular data back to Customer. For clarity, AI Training and Supplemental Data will not be disclosed to other Participants. PostPilot acknowledges that AI Training and Supplemental Data is Customer's property during and after these Customer Terms.

                   (ii) PostPilot affirmatively represents and warrants that: (A) Participants have represented that each has collected all of the data used for PostPilot AI in compliance with all applicable laws and regulations; and (B) it has all necessary legal, right and authority to provide Customer with the licensed PostPilot AI data as set forth herein.

                   (iii) Customer is not permitted to use PostPilot AI to target marketing to the end customers of other PostPilot AI Customers specifically identified by Customer. For example, Customer is not permitted to use PostPilot AI to target marketing to a specific, identified PostPilot AI Customer.

               (g) Customer Representations and Warranties

                   (i) Customer represents and warrants that (A) it has obtained all consents and provided all required notices under applicable privacy laws and has all rights necessary to grant, all rights and licenses to the AI Training and Supplemental Data required for PostPilot and its subcontractors and service providers to provide PostPilot AI and (B) AI Training and Supplemental Data has been collected in compliance with applicable state and federal laws, rules and regulations, including in relation to privacy and consumer protection.

               (h) Intellectual Property

                   (i) Except for the rights and licenses expressly granted herein, Customer retains all right, title and interest (including without limitation all intellectual property rights) in and to the AI Training and Supplemental Data.

                   (ii) Subject to Customer's ownership of AI Training and Supplemental Data, Customer agrees that PostPilot shall be the sole and exclusive owner of the PostPilot AI feature, techniques, processes, data analyses, and statistical models used by PostPilot in the operation of PostPilot AI. Customer agrees that all techniques, processes, data analysis, and statistical models used by PostPilot in the operation of PostPilot AI are confidential and proprietary to PostPilot. Except for the rights and licenses expressly granted herein, PostPilot retains all right, title and interest (including without limitation all intellectual property rights) in and to tangible and intangible property of PostPilot.

13.          Miscellaneous

         13.1. Compliance with Laws

Customer shall comply with all federal, state, and local laws, statutes, rules, regulations, and ordinances applicable to it.

         13.2. Publicity ‍

You may not publicly use the other party’s company name, logo, or other trademarks for any purpose without the other party’s prior written consent. However, PostPilot may identify you as a customer in our promotional materials.

         13.3. Third-Party Products, Links and Information

The Services may integrate with, or contain, third-party products, services, materials, or information, or links thereto that are not owned or controlled by us (“Third-Party Materials”). We do not endorse or assume any responsibility for any such Third-Party Materials. If Customer or any Authorized User accesses any third-party website or service, it does so at its own risk, and Customer acknowledges and agrees that the Agreement and our Privacy Policy do not apply to Customer or any Authorized User’s use of such sites or services. Customer expressly relieves us from any and all liability arising from its or its Authorized User’s use of any Third-Party Materials.

         13.4. Force Majeure

Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

         13.5. Relationship of the Parties; No Third-Party Beneficiaries

The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any applicable law.

         13.6. Email Communications

Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to support@postpilot.com. Notices will be deemed to have been duly given (i) the business day after it is sent, in the case of notices through email; and (ii) the same day, in the case of notices through the Services.

         13.7. Modifications

We may change these Customer Terms and the other components of the Agreement in accordance with this section. If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.

         13.8. Waivers

No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

         13.9. Severability

The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

         13.10. Assignment

Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

         13.11. Governing Law

The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that the Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of the Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).

         13.12. Venue; Waiver of Jury Trials; Fees

The state and federal courts located in New Castle County, Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.

         13.13. Arbitration

Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us. For any dispute with us, you agree to first contact us at legal@postpilot.com and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to the Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in New Castle County, Delaware, unless we agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.

If you are a new user, you can reject and opt-out of this arbitration agreement within thirty (30) days of accepting these Customer Terms by emailing PostPilot at legal@postpilot.com with your full legal name and stating your intent to opt-out of this arbitration agreement. Note that opting out of this arbitration agreement does not affect any other part of these Customer Terms, including the provisions regarding controlling law or the courts in which any disputes must be brought.

         13.14. Entire Agreement

The Agreement, including these Customer Terms and all referenced pages and, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (i) the Data Processing Addendum; (ii) the terms on the Dashboard (if any), (iii) these Customer Terms; and (iv) any other documents or pages referenced in these Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.

         13.15. Interpretation ‍

The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

         13.16. Survival

Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including sections 1.4, 2.2, 2.3, 4, 5.5, and 6 through 14.

         13.17. Contacting Us

Please also feel free to contact us if you have any questions about the Customer Terms or any other part of the Agreement. You may contact us at legal@postpilot.com or at our mailing address set forth in Section 6 above.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.