Merchant Terms of Service

Last Updated:  July 10, 2023

Welcome to the Norton Shopping Guarantee with Package Protection, provided by Simpler Postage, Inc. (d/b/a EasyPost and d/b/a BuySafe) and its subsidiaries, affiliates and other related entities (“EasyPost ,” “we,” “our,” or “us”), in partnership with NortonLifeLock Inc. (“ Norton”).

These Merchant Terms of Service  (“Terms” or “Agreement”), together with any order form, services agreement, or other written agreement that has been issued by EasyPost and executed by you (the “ Order”), shall govern your use of the Norton Shopping Guarantee with Package Protection (the “Service”) as well as your use of our software applications, architecture, and platforms (the “ Software”), 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 the Service, the Software, or the Network.

These Terms incorporate by reference (a) the EasyPost Privacy Policy, available at www.easypost.com/privacy; (b) the Shopper Terms of Service, available at  norton.buysafe.com/for-shoppers/terms-conditions/  ; and (c) any Order executed between you and EasyPost.

To access and make available the Service, you must at all times agree to and abide by these Terms. If you do not agree to these Terms, do not use or access our Service, including the installation of the Norton Shopping Guarantee with Package Protection on your website.

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

Please carefully read these Terms. By accessing and making the Norton Shopping Guarantee with Package Protection available, you signify that you have read , understood, and agree to be bound by the Terms.

If you are deciding to use the Norton Shopping Guarantee with Package Protection on behalf of a company, organization, partnership, or other legal entity (collectively, the “Purchasing Organization ”), then you represent and warrant that you: (i) are an authorized representative of that Purchasing 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 Purchasing 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. Registration Process and Approval for Use of the Service.

1. The Service is available only to businesses in good standing, which shall be determined in our sole discretion, and approved by EasyPost to use the Service. At any time following your approval to use the Service, Service retains the right to terminate the Agreement upon thirty (30) days’ written notice.

2. You agree to provide us with all requested information about you and your company accurately and promptly. You agree never to impersonate any other person or entity, misrepresent your affiliation with another person or entity, or otherwise conceal your true identity from us. If any information that you provide to us changes, you agree to immediately notify us of such changes at our website via email or in writing pursuant to the notice provision set forth below. This information includes but is not limited to your name and address, telephone number, e-mail address, company name, billing contact name, and billing address. You represent that you are authorized to do business in accordance with the law.

3. You agree that we may make periodic checks to verify that the information you provided, or that we otherwise obtained, is correct. Your failure to respond to any inquiries by us or our authorized agents may lead to the suspension or revocation of the Service being provided to you. Additionally, we may provide information about you to one of your customers or end users in connection with a Problem (defined below), including your contact information, to enable direct communications between you and such buyer and your status as a Norton Shopping Guarantee merchant.

4. By applying to use the Service, you represent that you have requested use of the Service for business and commercial purposes and not for personal, family, household or other purposes.

5. If you wish to test the Service, you must sign a written Order with EasyPost.

6. Following your approval as a Merchant under the Terms, you will create a username and password that will enable you to access the merchant dashboard and obtain and provide information about your relationship with us. This username and password may not be transferred, sold or used by another party without our consent.

 

7. Following your approval as a Merchant under the Terms, you shall enable your website(s) and/or application(s) to allow for the purchase of the Service by your customers in accordance with the documentation provided by EasyPost. At all times, you shall notify your customers regarding the applicability of the Shopper Terms of Service to their purchase of the Service and require the acceptance of the Shopper Terms of Service at the time of purchase through the inclusion of a l ink to the Shopper Terms of Service .

8. These Terms shall govern the provision of the Service which enables you to display the Norton Shopping Guarantee with Package Protection graphical elements and provide your customers or other end users with the option to purchase the Service.

2. Identify Verification.  You agree that we may, directly or through third parties, make any inquiries we deem appropriate regarding you, including, but not limited to, obtaining information from consumer or credit reporting agencies and other third parties to help us identify you or for any other legally-permitted purposes. You also agree that we may order a credit report and perform other credit checks or otherwise in order to verify the information you provide against third-party databases.

3. Data Collection.  You agree that we may collect certain information from your site, from your customers in connection with their purchase of the Service and their submission of Problems and Claims, and from visitors to your site. Such information may include contact information, IP addresses, domain names, time and date stamps, purchase data, pages visited, and other usage data (together, “ Merchant Data”). Not withstanding anything to the contrary in this Agreement, EasyPost shall have the right to collect, analyze, and store Merchant Data, and you grant EasyPost a non-exclusive, worldwide, royalty-free license to use, copy, transmit, store, aggregate, publish, distribute and display, during and after the Term, as follows: (a) use Merchant Data as required to provide the Service and account management services, including for the investigation and processing of Claims; (b) use Merchant Data and other information received from you to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service and the development of other EasyPost offerings; and (c) disclose such Merchant Data solely in an aggregate or other de-identified form in connection with our business, provided that any such data is not publicly identified or identifiable as originating with Merchant or with any individual person, customer, or end user. You agree to post a privacy policy disclosing that third-party service providers may collect the information described above and that you will comply with all applicable laws and regulations relating to the collection of information from visitors, customers, and other end users.

4. Use of Graphical Elements. 

9. You agree to allow and enable the display of the Norton Shopping Guarantee with Package Protection graphical elements on your website. We may change the appearance of the graphical elements from time to time, and that such a change will be effective upon our posting of a notice at our website or via email notification to you. The graphical elements, which are posted electronically, will link to enable third parties to access the S hopper Terms of Service. 

10. You agree not to modify the graphical elements without permission, including the size, shape or color of the seal or other graphical elements, or to change the data contained within such elements. Except as expressly authorized in these Terms, any use, modification, reproduction, display or redistribution of the graphical elements, as well as any trademark or other intellectual property of ours, is expressly prohibited. You agree not to use or display any trademark or other intellectual property of ours in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to us or in a manner that impairs or negatively impacts our rights. We reserve the right to terminate or modify your license to reproduce and display the graphical elements at any time and to take action against any use of our brand that (a) does not conform to these Terms; (b) infringes any intellectual property or other right of ours; or (c) in our judgment, violates any applicable law. You agree not to register or attempt to register any intellectual property of ours in any jurisdiction. You agree that we are and will remain the sole and exclusive owner of the graphical elements.

11. You agree (a) not to do anything inconsistent with such ownership, (b) not to use the graphical elements to create a separate and distinct impression for any other service mark or trademark, (c) not to take any action that changes or reduces our rights, and that (d) all goodwill associated with the use of the Service and the graphical elements will be solely for our benefit.

5. Standards and Revocation.  You agree that we may suspend or revoke your use of the Service at any time and without notice, if: (a) you fail to keep the information you provide to us current, including your contact information; (b) you fail to display required graphical elements and related promotional information, as supplied by us, on all appropriate website pages; (c) you fail to follow our Dispute Resolution Process and Standards and Excluded Items sections below; (d) you fail to enable your customers to receive all the benefits of the Service; or (e) we receive complaints about your selling practices or standards. If your permission to use our program is suspended, revoked or terminated, you will no longer be entitled to use, reproduce or display the graphical elements, and you must immediately stop all such use.

6. Dispute Resolution Process.

12. Upon the purchase of the Service by any of your customers or other end users, you agree to participate in the following dispute resolution process as set forth below (the “Dispute  Resolution Process”):  

 

1. If your customer becomes dissatisfied with their transaction (each such reported event is a “Problem”), the customer may initiate the Dispute Resolution Process through our website. The Dispute Resolution Process is an automated online forum for helping you and your buyer come together to solve a Problem. Through this online forum, a customer may register with us, provide us some personal information, and then complete our benefit claim form. A customer’s completion of this form will enable you and your customer to communicate directly with each other, and if necessary, to enlist the aid of a neutral Problem Resolution Specialist.

2. When a buyer initiates the Dispute Resolution Process, you agree to use your good faith efforts to investigate and respond immediately to such Problem. Your good faith commitment means, among other things, an honest intention by you to resolve such Problem in a reasonable manner, if at all possible.

3. Upon our notification of a Problem by your customer, we will forward you a Problem initiation notice which shall include such customer’s Problem information. Thereafter, you must respond to such notice within three (3) business days in writing with full and complete information responding to such customer’s claims or else you may be deemed to admit that the claims made by such customer are true and correct.

4. If you respond to such notice and you are unable to reach a satisfactory solution with your customer through the Dispute Resolution Process within ninety (90) days of our receipt of the customer’s report of the Problem, then the Dispute Resolution Process will end and such buyer may take action according to his or her wishes, including the submission of a Claim as described below.

5. When a customer completes an online sale covered by the Service, we will provide to that customer a specific Guarantee Number for the benefit of the customer, along with instructions for making a benefit claim under the Service (a “ Claim”) in the event that a customer is unable to resolve any Problem using the Dispute Resolution Process.

7. Confidentiality; Intellectual Property Rights.

13. 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.

14. 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.

15. 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.

16. 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.

17. As between the parties, EasyPost exclusively owns and reserves all right, title and interest, including all related intellectual property rights, in and to the Service and all related technology, service marks, and EasyPost Confidential Information, together with all modifications, updates, customizations, enhancements, and improvements. Merchant 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.

18. As between the parties, Merchant exclusively owns and reserves all right, title and interest in and to the Merchant’s website and applications, service marks, and the Merchant’s Confidential Information, and all related intellectual property rights. EasyPost agrees that it will not, directly or indirectly, challenge or contest the validity of the Merchant’s intellectual property rights, or any registrations thereof and/or applications therefore in any jurisdiction, or the right, title and interest of Merchant 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 Merchant.

19. Feedback.  Merchant 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 Service or other EasyPost products or services (collectively, “ Feedback”). Merchant grants EasyPost a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, incorporate into the Services, copy, modify, publish, perform, translate, creative derivative works from, sublicense, distribute, and otherwise exploit Feedback without restriction. Feedback is not Merchant’s Confidential information.

8. Standards and Excluded Items.

6. You agree that you will not use the Service for any transaction involving pornography, gambling, real estate or any other transactions that do not involve the sale of either a tangible good (i.e. , items that can be shipped) or an explicitly-defined service (i.e., airline tickets, travel packages, subscription-based services, etc. ). Items that may be downloaded by the customer via your website or application(s) (i.e., digital content) may also be covered by the Service.

7. By electing to use the Service, you also agree to the following:

1. The Purchase Guarantee ensures that (a) if you do not perform in accordance with the terms and conditions of the sale, (b) your customer makes a claim within thirty (30) days from the date of purchase,  and ( c), you and your customer have failed to reach a resolution following the Dispute Resolution Process, then we may, in our sole discretion, resolve the Claim in favor of your customer and may may reimburse your customer for the amount of actual damage, not to exceed $1,000. Additional terms of the Purchase Guarantee can be found here . In the event of EasyPost’s payment for any Claim, you agree to identify and hold EasyPost harmless for all such amounts in accordance with the Terms.

2. The Identity Theft Protection will be provided to each customer who purchases the Service, with such coverage running for thirty (30) days from the date of purchase. Additional terms of the Identity Theft Protection can be found here .

3. The Lowest Price Guarantee protects the customer from any reduction in price for the same good through your website or application(s) within 30 days of the date of purchase. Additional terms of the Lowest Price Guarantee can be found here . 

4. Package Protection enables your customer to purchase shipping insurance on a per package basis, subject to the applicable terms and conditions found here

5. You agree to waive any and all claims or defenses as against EasyPost with respect to any coverage decision in connection with a Claim. You also agree to assign to EasyPost, upon request, any rights you may have to recover from any third parties.

9. Fees and Payments.

20. Fees.  Subject to the terms and conditions herein, EasyPost’s fees for the purchase of the Service shall be paid directly by your customer based upon the total purchase amount at the time of each transaction. You agree to configure your website and/or application(s) in order to list fees in accordance with EasyPost’s approved price list and collect such fees at the time of the transaction. EasyPost reserves the right to modify its price list upon thirty (30) days’ written notice to you; if you do not consent to such change, you may terminate the provision of the Service to your customers.

21. Payment Terms. You agree to pay all fees collected from your customers for the purchase of the Service in accordance with the Terms. EasyPost shall invoice you for all fees on a monthly basis, with payment due and payable within thirty (30) days of the date of invoice via check or ACH payment. 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 your 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. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which you will be responsible to pay.

22. Disputes.  You agree to notify EasyPost in writing in the event you dispute any portion of any fees paid or payable to EasyPost under this Agreement. You agree to provide such notice to EasyPost within sixty (60) days of receipt of the applicable invoice, and the parties will work together in good faith to resolve the dispute promptly. Upon expiration of the sixty-day (60-day) period described in this Section, you are that you will not be entitled to and hereby waive any right to dispute any fees paid or payable to EasyPost. If you fail to pay timely any undisputed fees due hereunder, EasyPost will (without limiting its other rights) be entitled to suspend the Service associated with your account upon written notice. EasyPost will not have any liability whatsoever for any damage, liabilities, losses (including any loss of profits) or any other consequences that you may incur with respect to any suspension of Service pursuant to this Section.

23. Refunds.  You agree to acknowledge the following with regard to requests for refunds of the fees for the Service:  All payments made for the Service are non-cancelable and non-refundable, except where your customer submits a request for a refund to CustomerSupport@nortonshoppingguarantee.com in connection with an order cancellation and prior to the fulfillment of the item purchased. If the request is not submitted prior to fulfillment by you, the fees paid are not refundable.

10. Term; Termination.

24. Term.  The term of this Agreement will commence on the Effective Date of the applicable Order and continue through the Initial Service Term (as defined in the Order) and shall automatically be renewed for additional periods of one (1) year (each, an “ Additional Term,” and together with the Initial Service Term, the “Term”).

25. Termination.  EasyPost may terminate this Agreement for any reason upon thirty (30) days’ prior written notice to you. In addition to any other remedies it may have, either party may terminate this Agreement or an applicable Order 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, and fails to cure such breach within thirty (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 Service upon notice for cause if: (x) there is an unusual spike or increase in use of the Service for which there is reason to believe such traffic or use is fraudulent or unauthorized or is negatively impacting the operating capacity of the Service; or (y) EasyPost determines, in its sole discretion, that its provision of any of the Service is prohibited by applicable law or has become impractical or unfeasible for any legal or regulatory reason.

26. Effect of Termination; Survival .  Upon termination or expiration of this Agreement and except as set forth in the applicable Order, EasyPost has no obligation to provide any Service, all payments owed to EasyPost shall immediately become due and payable, and all rights and licenses granted to you 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.

11. Restrictions on Use and Unlawful Activity

27. Use Restrictions.  Except as expressly permitted herein or in the applicable Order, 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 Services; (b) use the Service in connection with the provision of Service 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 Service or any software Documentation or data related to the Service; (d) modify, translate, or create derivative works based on the EasyPost Products or Service; (e) circumvent or disable any security or other technological features or measures of the Service, 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 Service 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 Service to harm, threaten, or harass another person or organization or in any way that violates applicable laws or regulations; (h) use the Service 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 Service. Merchant will ensure that the Service is used in accordance with all applicable laws, regulations, third-party rights, and the terms of this Agreement.

28. 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 Service, 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 Service 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. Merchant will assist and cooperate with EasyPost with any actions taken to prevent or terminate unauthorized use of the Service. EasyPost has no obligation to monitor Merchant’s use of the Service; provided, however, Merchant grants EasyPost full rights to, in its sole discretion, monitor Merchant’s use of the Service and the Merchant’s website and application(s) to ensure there is no violation of this Agreement. EasyPost may prohibit any use of the Service by Merchant or any customer or other end user that EasyPost believes may be (or is alleged to be) in violation of the foregoing or any other terms of this Agreement.

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

30. Restrictions on Use and  Unlawful Activity.  You agree not to do any of the following, or permit any of your Shoppers or other end users, employees, contractors, agents or any third party to use the Service for any of the following:

• 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;
• Any transaction involving pornography, gambling, or real estate;
• 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 Service; or
• Access for any competitive purposes (including to build an application or product that is competitive with the Service).

12. Indemnification.

31. EasyPost will indemnify, defend, and hold harmless Merchant, Merchant’s affiliates, and its respective officers, directors, employees and agents (collectively, the “Merchant  Indemnified Parties”), from any third-party claim, suit, or proceeding brought against any of the Merchant Indemnified Parties arising out of or related to (a) infringement by the Service of any third-party intellectual property rights, or (b) EasyPost’s gross negligence or willful misconduct, 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 EasyPost with respect to any claim.

32. Merchant will indemnify, defend, and hold harmless EasyPost, EasyPost’s affiliates, and its respective officers, directors, employees and agents (collectively, the “EasyPost  Indemnified Parties”), from any third-party claim, suit, or proceeding brought against any of the EasyPost Indemnified Parties arising out of or related to (a) infringement by Merchant’s website or applications of any third-party intellectual property rights; (b) any violation by you or your agents of these Terms or violation of state or federal laws or regulations; and (c) with regard to all transactions covered by the Service, Merchant agrees to indemnify EasyPost for all losses, expenses, damages and costs arising to or relating to the following:

• Any misstatements made to EasyPost, including any misstatements made during the registration and approval process and during the evaluation of any Claim; and
• Any amounts paid by EasyPost to your Customer in connection with any Claim under the Purchase Guarantee.

33. 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 Indemnified Parties 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.

13. Warranty Disclaimer.  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 SERVICE 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 SERVICE. 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 THESE TERMS, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” TO THE FULLEST EXTENT PERMITTED BY LAW.

 

14. Limitation of Liability.

8. 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.

9. 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 FEES PAID OR PAYABLE BY MERCHANT TO EASYPOST DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM OR TWENTY THOUSAND DOLLARS ($20,000), WHICHEVER IS GREATER.

10. THE PROVISIONS OF THIS SECTION SHALL NOT LIMIT EITHER PARTY’S LIABILITY FOR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR MERCHANT’S PAYMENT AND INDEMNITY OBLIGATIONS.

11. YOU ACKNOWLEDGE AND AGREE THAT EASYPOST HAS OFFERED THE EASYPOST SERVICE, 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.

12. 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.

15. Miscellaneous Terms Applicable to the Service.

34. 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.

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

13. 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.

14. Class Action and Jury Trial Waiver.  WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE 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 MERCHANT’S AND/OR ANY CUSTOMER’S USE OF THE SERVICE. YOU AGREE AND REPRESENT THAT YOU UNDERSTAND THAT, BY ENTERING INTO THIS AGREEMENT AND/OR USING THE SERVICE, 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.

15. Claims.  MERCHANT AGREES THAT ANY CAUSE OF ACTION MERCHANT MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE USE OF THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

36. Assignment.  This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assignees . Merchant 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 Merchant. Any other purported assignment shall be void.

 

37. 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.

 

38. 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 Merchant in creating the account or as provided in the most recent Order (if to Merchant): (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.

 

39. 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.

40. Location of the Service; Export Compliance . The Service is controlled and operated from our facilities in the United States. You acknowledge that your 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 Service is 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 Service 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 Service. You may not use or access the Service 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 Service immediately without notice if EasyPost reasonably believes you are accessing or using the Service in violation of any applicable law, including any applicable U.S., local, or foreign export laws or regulations.

 

41. 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.

42. 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.

 

43. Integration. 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. 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.