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Last updated: July 3, 2024
These Postilize Digital Assistant Platform Terms of Service (this “Agreement”) govern your or the company or entity on whose behalf you entered this Agreement or that is otherwise identified on the applicable Order Form (“Customer”) use of the Digital Assistant Services as made available by Postilize Inc. (“Postilize”). Postilize and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
1. AGREEMENT TO TERMS AND CONDITIONS.
This Agreement is effective, and you agree to be bound by this Agreement on the Order Form Date specified on the initial Order Form incorporating this Agreement (“Effective Date”). If you are accepting this Agreement on behalf of Customer, you represent and warrant that you have the authority to bind Customer to the terms and conditions of this Agreement.
2. DEFINITIONS.
(a) “Aggregate/Deidentified Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; (ii) Output; or (ii) Customer’s and/or its Authorized Users’ use of the Digital Assistant Services, including, without limitation, any usage data or trends with respect to the Digital Assistant Services.
(b) “App” means the application developed and offered by Postilize for access to the Digital Assistant Services.
(c) “Authorized Users” means employees authorized by Customer to use the Digital Assistant Services.
(d) “Postilize IP” means the Digital Assistant Services, the underlying software provided in conjunction with the Digital Assistant Services, algorithms, models (including those related to machine learning and artificial intelligence), interfaces, technology, databases, tools, know-how, processes, and methods used to provide or deliver the Digital Assistant Services and Documentation, and Aggregate/Deidentified Data (as defined below), all improvements, modifications, or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(e) “Documentation” means the documentation relating to the Digital Assistant Services if and as provided by Postilize to Customer (including any revised versions thereof), which may be updated from time to time upon notice to the customer.
(f) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(g) “Order Form” means a mutually executed order form or other mutually agreed upon ordering document which references this Agreement and sets forth the applicable Digital Assistant Services to be provided by Postilize.
(h) “Output” means any data, content, information, responses, suggestions, or other output generated by the Digital Assistant Services in connection with Customer’s use thereof.
(i) “Digital Assistant Services” means the online customer relationship management (CRM) platform and certain software tools incorporated therein, offered by Postilize as more particularly described or identified in the applicable Order Form, together with the App.
3. PRIVACY POLICY.
Please review Postilize’s Privacy Policy, available at https://www.postilize.com/privacy-policy which also governs how Postilize collects, uses, and shares Customer’s and Authorized Users’ information.
4. ACCESS AND USE.
(a) Digital Assistant Services. Subject to the terms and conditions of this Agreement, Postilize hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 14(b)) right to use (and permit Authorized Users to use) the Digital Assistant Services solely for Customer’s internal business purposes in accordance with the Documentation and the terms of this Agreement.
(b) Use Restrictions. Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly:
• (i) copy, modify or create any derivative work of any portion of the Digital Assistant Services or the Documentation;
• (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Digital Assistant Services, in whole or in part;
• (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Digital Assistant Services to any other person or entity, or otherwise allow any person or entity to use the Digital Assistant Services for any purpose other than for the benefit of Customer in accordance with this Agreement;
• (iv) use the Digital Assistant Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law;
• (v) interfere with, or disrupt the integrity or performance of, the Subscription Digital Assistant Services, or any data or content contained therein or transmitted thereby;
• (vi) access or search the Digital Assistant Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Digital Assistant Services features provided by Postilize for use expressly for such purposes;
• (vii) use the Digital Assistant Services, Documentation or any other Postilize Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could compete with the Digital Assistant Services;
• (viii) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
• (ix) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Digital Assistant Services to send altered, deceptive or false source-identifying information; or
• (x) impersonate or misrepresent your affiliation with any person or entity.
(c) Authorized Users. Customer may only permit Authorized Users to use the Digital Assistant Services, and only in accordance with the Documentation and the terms of this Agreement, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Digital Assistant Services and their compliance with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations and the restrictions set forth in Section 4(b). Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Digital Assistant Services in accordance with customary security protocols, and will promptly notify Postilize if Customer knows or reasonably suspects that any user name and/or password has been compromised.
(d) Ownership of Postilize IP. Subject to the limited rights expressly granted hereunder, Postilize reserves and, as between the Parties will solely own, the Postilize IP and all rights, title, and interest in and to the Postilize IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion, or otherwise) other than as expressly set forth herein.
(e) Feedback. From time to time Customer or its employees, contractors, representatives may provide Postilize with suggestions, comments, feedback or the like with regard to the Digital Assistant Services (collectively, “Feedback”). Customer hereby grants Postilize a perpetual, irrevocable, royalty-free, and fully-paid-up license to use and exploit all Feedback in connection with Postilize’s business purposes, including, without limitation, the testing, development, maintenance, and improvement of the Digital Assistant Services. For clarity, Feedback is not considered Confidential Information (as defined below).
(f) Third-Party Services. Certain features and functionalities within the Digital Assistant Services may allow Customer and its Authorized Users to integrate with, interface or interact with, access and/or use compatible third-party services, products, technology, and content (collectively, “Third-Party Services”). Postilize does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors, or bugs in the Digital Assistant Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.
5. FEES.
In payment for Customer’s access to the Digital Assistant Services during the Term, Customer shall pay Postilize the non-refundable fees set forth on the applicable Order Form (the “Fees”). Except as otherwise provided in the applicable Order Form, Postilize will issue monthly invoice(s) to Customer during the Term, and Customer will pay all amounts set forth on any such invoice in advance for the Term (e.g., Postilize may issue one invoice for full upfront payment during the initial Term, and one invoice for each renewal Term thereafter, each of which Customer will pay in full) no later than thirty (30) days after the date of such invoice. Postilize reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each then-current Term (including any renewal Term), upon sixty (60) days’ prior notice to Customer (which may be sent by email). If Customer has signed up for automatic billing, Postilize will charge Customer’s selected payment method (such as a credit card) for any Fees on the applicable payment date, including any applicable taxes. If Postilize cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Postilize will attempt to charge the payment method again
6. CUSTOMER MATERIALS. Customer hereby grants Postilize a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform and modify the Customer Materials and Output for the purpose of hosting, operating, providing, and improving the Digital Assistant Services, and to generate Aggregate/Deidentified Data. As between Customer and Postilize, Customer owns and retains all right, title and interest in and to all Customer Materials and Output (subject to Postilize’s rights in Postilize IP). “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Digital Assistant Services or to Postilize in connection with Customer’s use of the Digital Assistant Services, but excluding, for clarity, Aggregate/Deidentified Data and any other Postilize IP, including any information, data, data models, content or materials owned or controlled by Postilize and made available through or in connection with the Digital Assistant Services.
7. CONFIDENTIAL INFORMATION.
(a) Confidentiality. “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Digital Assistant Services, the Documentation, and the terms of each applicable Order Form will be deemed Confidential Information of Postilize. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Postilize may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate/Deidentified Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(b) Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.
8. PUBLICITY.
Either Party may, with the other Party’s prior written consent (which will not be unreasonably withheld), use or refer to the other Party’s name, trademarks, service marks, or logos in any marketing materials, business development activities, press releases or other publicity-related matter for the purpose of marketing, publicizing or promoting a Party’s business.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
(a) Mutual Representations. Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents.
(b) Customer Additional Representations. Customer represents and warrants that (i) it will maintain all rights, licenses, consents, and permissions necessary to provide and transmit Customer Materials via the Digital Assistant Services and to enable Postilize to use Customer Materials as contemplated by this Agreement; (ii) it will comply with all applicable law in connection with its use of the Digital Assistant Services; and (iii) Postilize’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or infringe or violate any intellectual property or other rights of any third party or cause a breach of any agreement or obligations between Customer and any third-party.
(c) Disclaimer. THE DIGITAL ASSISTANT SERVICES AND OTHER POSTILIZE IP ARE PROVIDED ON AN “AS IS” BASIS, AND POSTILIZE MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER OR TO ANY OTHER PARTY REGARDING THE POSTILIZE IP, THE DIGITAL ASSISTANT SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER.
(d) NO PROFESSIONAL ADVICE. NEITHER THE DIGITAL ASSISTANT SERVICES NOR ANY OUTPUT IS INTENDED TO BE RELIED UPON OR CONSTITUTE LEGAL, FINANCNIAL, MEDICAL, OR ANY OTHER FORM OF PROFESSIONAL ADVICE OR INFORMATION. THE DIGITAL ASSISTANT SERVICES AND ALL OUTPUT ARE PROVIDEDS FOR INFORMATION PURPOSES ONLY, AND WHILE POSTILIZE USES REASONABLE EFFORTS TO PROVIDE ACCURATE INFORMATION, NO ASSURANCE OR WARRANTIES ARE MADE BY POSTILIZE REGARDING THE ACCURACY, COMPLETENESS, OR SUITABILITY OF THE DIGITAL ASSISTANT SERVICES OR OUTPUT.
(e) AI/ML Disclaimer. DUE TO THE NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE, ANY OUTPUT MAY NOT BE UNIQUE AND THE DIGITAL ASSISTANT SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR CUSTOMER OR A THIRD PARTY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE DIGITAL ASSISTANT SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE CUSTOMER MATERIALS INPUTTED INTO THE DIGITAL ASSISTANT SERVICES AND CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, POSTILIZE WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR OR IN CONNECTION WITH ANY CUSTOMER MATERIALS OR OUTPUT, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER MATERIALS, OUTPUT, OR THEIR USE. CUSTOMER SHALL EVALUATE THE CONTENT, NATURE, TONE AND ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR THE APPLICABLE USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT.
10. TERM AND TERMINATION.
(a) Term. This Agreement shall commence on the Effective Date and will remain in effect as specified on the applicable Order Form (the “Term”).
(b) Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
(c) Survival. The following Sections will survive termination or expiration of this Agreement for any reason: Sections 2, 3, 4(b), 4(d), 4(e), 4(f), 5, 7, 9(c), 9(d), 9(e), 10(c), 10(d), 11, 12, and 14.
(d) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 4(a) and Section 8 will terminate and Customer will cease access to the Digital Assistant Services; and (ii) Customer will return or destroy, at Postilize’s sole option, all Postilize Confidential Information in its possession or control, including permanent removal of such Postilize Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Postilize’s request, certify in writing to Postilize that the Postilize Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
11. LIMITATION OF LIABILITY.
(a) Limitation of Liability. EXCEPT FOR (I) ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(b) Total Liability. IN NO EVENT WILL POSTILIZE’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO POSTILIZE IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL APPLY WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
12. INDEMNIFICATION
(a) Indemnification by Postilize. Subject to Section 12(b), Postilize will defend Customer against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Customer’s use of the Digital Assistant Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Postilize (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. Postilize’s obligations under Section 12(a) will not apply if the underlying Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Digital Assistant Services that have been provided by Postilize; (iv) modifications to the Digital Assistant Services by anyone other than Postilize; (v) continued use by Customer of a prior version of the Digital Assistant Services that has been superseded by a non-infringing version subsequently made available to Customer by Postilize; or (vi) combinations of the Digital Assistant Services with software, data or materials not provided by Postilize.
(c) Indemnification by Customer. Customer will defend, indemnify and hold harmless Postilize from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against Postilize, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against Postilize that: (i) the Customer Materials or its use by Postilize in accordance with this Agreement infringes, misappropriates or violates a third-party’s Intellectual Property Rights, or rights of publicity or privacy, or results in violation of applicable law or regulation; (ii) is based on Customer’s or an Authorized User’s use of the Digital Assistant Services or Documentation in a manner not authorized by this Agreement (including a breach of Section 4(b)); or (iii) is based on Customer’s own products or services.
13. TERMS APPLICABLE TO APPS
(a) App License. Subject to Customer’s compliance with this Agreement, Postilize grants to Customer a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on Customer’s computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for Customer’s internal business purposes in accordance with the license granted in Section 4(a). Except as expressly permitted in this Agreement, Customer may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
(b) Additional Information: Apple App Store. This Section 13(b) applies to any App that Customer acquires from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the App purchase price to Customer (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by Customer or any third party relating to the App or Customer’s possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that Customer’s possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon Customer’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as a third-party beneficiary thereof. Customer represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties. Customer must also comply with any applicable third-party terms of service when using the App.
14. GENERAL.
(a) Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties.
(b) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, Postilize may assign or transfer this Agreement to a third party that succeeds to all or substantially all of Postilize’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
(c) Notices. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by United States Postal Service Priority Express Mail, with delivery confirmation, postage prepaid, or sent by email, and if sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
If to Postilize:
Postilize Inc.
1 Collins Ave, Unit 207
Miami Beach, FL 33139
United States
Email: info@postilize.com
(d) Relationship of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
(e) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(f) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(g) Export Regulation. Customer will comply with all applicable export, sanctions and foreign corruption laws and regulations of the United States (“Trade Laws”) to ensure that the Digital Assistant Services are not: (i) exported or re-exported directly or indirectly in violation of Trade Laws; or (ii) used for any purposes prohibited by the Trade Laws.
(h) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Florida without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Miami-Dade County, Florida and the Parties irrevocably consent to the personal jurisdiction and venue therein.