Terms
Anti Spam Policy
Postal Parrot has a strict policy against spam. If you try, we will immediately close your Postal Parrot account. You will not get any refund.
While we do allow you to purchase leads and send emails to these contacts, we do expect you to follow the Can Spam Act (http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business) and any other regulations set forth by the FTC regarding electronic communication. It is your responsibility to remain aware of spam policies and failure to follow any policy set by PostalParrot or by other federal or government agencies will result in your account being canceled without refund.
Things You May Not Do With Postal Parrot
Send email to people who have not specifically requested that information from you or have not opted in to your email list.
Send emails to people who have requested to be unsubscribed or have already unsubscribed from your list.
Send emails that are untrue or misleading regarding your company, your products or services, or any entity or individual in your company.
Remove or attempt to remove the unsubscribe / opt out link in your emails.
Alter the “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address. These must be accurate and identify the person or business who initiated the message.
Not sure if we'd consider something to be spam? Contact us and find out!
What Happens If I Spam, Or Try To Spam?
If we find that you are spamming, or trying to spam, with your Postal Parrot account:
What will definitely happen:
We will immediately terminate your account.
We will refuse to refund your account.
What might happen:
We might charge you money if your spamming causes any interruptions in our ability to service other customers.
We might pursue legal action against you. (Spamming violates our service agreement.)
Think you are being spammed through Postal Parrot?
If you believe you have received spam from a Postal Parrot user, forward the email you received to us at production@apogeeinvent.com.
Please include the headers of the email when you forward it, and briefly tell us why you believe the message is spam. We take all spam complaints seriously and will investigate promptly
Privacy Policy
This "Privacy Policy" is incorporated by reference in ApogeeInvent's end user services agreement posted at www.PostalParrot.com ("EUSA"). We have created this Privacy Policy to demonstrate our firm commitment to your privacy and the protection of your information. This Privacy Policy applies to information that we collect and maintain about you when you visit www.postalparrot.com ("Site") and when you use our services, and information collected from other sources, such as information you provide at tradeshows or seminars or to our business partners.
Data Collected
Generally, we collect and maintain three categories of data: a) account information generated when an individual or entity activates our services - which generally includes contact information and payment information (we call this "Customer Information"); b) data provided by our customers about individuals or entities who consented to our customers transmittal to them of email messages or other types of communications (we call this "Customer Recipient Data"); and c) data about visitors to our Site who may or may not also be our customers.
Although the majority of our customers are businesses, some of the account information submitted to us, and maintained by us, could be used to identify or relate to an individual ("personal data") rather than a business.
What We Do With the Data Collected on Our Site
As explained above, our services are intended for businesses, not individuals (although individuals may choose to use the system). If you have provided your contact information (which may include personal data) to us, we may use such information to contact you for marketing purposes by various means, including regular mail, email or telephone. When you activate a Postal Parrot account (including a trial account), you expressly consent to receive marketing communications about all ApogeeInvent's services via direct mail, email (at the email address you provided when you activated your account), telephone (at the number you provided when you activated your account), pre-recorded messages (at the number you provided when you activated your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods. We may also use personal and non-personal (e.g., business-related) data for other purposes, including, but not limited to: 1) providing the services you request; and 2) providing technical support.
In accordance with the applicable terms and conditions set forth in the EUSA, we do not disclose, sell or rent Customer Information or Customer Recipient Data without your prior consent or unless we are required to disclose such information by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Such data is available: 1) to you after you sign up for our service offering(s); 2) to ApogeeInvent employees who access and manage this information in connection with our services; and 3) to our service providers for purposes of providing functions or services related to our services and customers' accounts (for example, billing functions). Our data retention policy is described in the EUSA and in the termination policy which is posted on the Site.
We use technical, administrative, and physical security measures to protect against the loss, misuse and alteration of data used by our system. Also, we provide each customer with a unique user name and password that must be entered each time a customer logs in to its account. No data transmissions over the Internet, however, are guaranteed to be completely secure. While we strive to protect your data from unauthorized use or disclosure, Apogee does not warrant or guarantee the security of the data that you provide to us.
PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CUSTOMER") AND POSTAL PARROT PARENT COMPANY APOGEE DESIGN INC ("APOGEE" OR "WE") WITH RESPECT TO YOUR USE OF APOGEE’S ON DEMAND SOFTWARE AND SERVICES AND APPLICATIONS (THE "SERVICES"). BY USING THE SERVICES, YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU WILL NOT BE ALLOWED TO USE THE SERVICES.
Services. The Services assist customers to distribute electronically customer-created content to customers' lists of subscribers, each of whom must have consented previously to the receipt of such content ("Recipients") OR that follows any laws regarding email distribution. While Customer retains Apogee to assist with the transmittal of content to its Recipients, Customer acknowledges that Apogee does not actually send Customer content to Recipients on Customer's behalf. The Services comprise primarily of a web-based technology platform through which such content is delivered once Customer sends such content. Among other things, Apogee provides customer support and formatting assistance for the electronic content Customer desires to distribute. In all cases, Apogee simply acts as agent for Customer with its authorization. Customer agrees that the Services are used only for Customer's business purposes. If Customer does not intend to use the Services for business purposes, Customer must contact us at production@apogeeinvent.com.
Site and Policies. During the Term (as defined below) and subject to the terms and conditions set forth herein and in any guidelines, rules or operating policies that Apogee may establish and post from time to time on www.postalparrot.com and www.apogeeinvent.com (the "Sites"), including, without limitation, Apogee's anti-spam policy, privacy policy and prohibited content and commerce statement, each of which is incorporated herein by reference (collectively, the "Policies"), Apogee agrees to use commercially reasonable efforts to provide Customer with the Services. From time to time, Apogee may modify the terms and conditions set forth in this Agreement and/or in the Policies. All such changes shall become effective once posted on the Sites, and Customer's use of the Services thereafter shall be subject thereto. In the event of any conflict between any term or condition set forth in this Agreement and in a Policy, the former shall govern. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by Apogee with respect to future functionality or features.
Professional Services. In addition to the Services, Customer may purchase certain custom services by making its selection therefore in accordance with the instructions posted at www.apogeeinvent.com or www.postalparrot.com (the "Professional Services"), which Professional Services may be customized pursuant to a mutually agreed upon written statement of work provided to Customer upon the earlier of its request or its selection of desired Professional Services (each, a "Statement of Work"). The Professional Services are provided by Apogee separate and distinct from the Services and are not required for Customer's use or enjoyment of the Services. In the event of any conflict between any term or condition set forth in this Agreement and in a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly agree otherwise in such Statement of Work. Any Statement of Work may be modified or amended only with the written consent of each of Apogee and Customer.
Free Trial Period. Apogee may elect to offer a trial period or trial email send limits. In the event Customer elects to use the Services on a trial basis, Customer will not be billed for such use for the specified number of “trial days” indicated on the landing page, beginning on the date on which Customer first subscribes to use the Services and indicates its agreement with the terms and conditions set forth in this Agreement (the "Trial Period"). During the Trial Period, Customer may use the Services as they see fit in accordance with all terms and policies found on the www.postalparrot.com website. Apogee may offer trial email limits, instead of a trial period. The subscriber level and email send limits for the Trial Period are subject to change at any time. Once Customer completes its free trial period or exceeds any such limit (even if Customer manually removes names from its Recipient list), whichever occurs first, the Trial Period will terminate. Upon such termination, Customer will be billed for the Services in accordance with the pricing set forth on www.postalparrot.com website. Customer's access to the Services may be disabled until payment therefor is received. Apogee reserves the sole and exclusive right to modify the duration of the Trial Period.
Purchase. Pricing for the Services is based upon the number of unique contacts emailed per month. Customer can view the current pricing on the landing page through which Customer subscribes to use the Service, or in a negotiated sales order, as the case may be (in either case, the "Sales Order"). The Sales Order records Customer's monthly fee, payment method and other account information. Customer will be billed automatically to a credit card on file at the beginning of each month for the previous month’s usage of Services. A statement will be sent to the Customer each month, if requested.
Fees and Payment. In consideration for the Services to be provided by Apogee, Customer agrees to pay the monthly fees set forth in the Sales Order (the "Monthly Fees"). Paid Monthly Fees are non-refundable. Customer acknowledges that from time to time, delivery of email messages sent using the Services may be blocked or prevented at destination email servers. Customer's payment obligation set forth herein continues regardless of whether delivery of such email messages is prevented or blocked. In consideration for the Professional Services to be provided by Apogee, if any, Customer agrees to pay the fees posted at www.apogeeinvent.com, www.postalparrot.com, set forth in the Statement of Work or as otherwise provided to Customer by Apogee, (the "Professional Fees," together with the Monthly Fees, the "Fees"). Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be charged immediately upon receipt of invoice to the credit card on file; or may be pre-paid in advance; or otherwise may be paid pursuant to the terms set forth in the Sales Order. The Fees shall include all applicable foreign, federal, state and local taxes payable with respect to this Agreement. If Customer is paying for the Services by credit card and such credit card is declined, Apogee will send Customer notice thereof to Customer's email address on record. If Customer misses a payment, Apogee may notify Customer by phone or mail, but has no obligation to do so. Any payment due and not received by Apogee by the due date may be subject, at Apogee's sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue until paid in full. In the event Customer fails to make timely payments when due, Apogee may, at its election, discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein. For amounts outstanding after ninety (90) days from its receipt of the invoice therefor, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, court and attorneys' fees and expenses. From time to time, and at any time, Apogee may require reasonable credit guarantees before continuing its provision of the Services or the Professional Services hereunder.
Customer's Recipient Data. In offering the Services, we may collect personal information about Recipients. Apogee will not own any data, information or material that Customer submits to Apogee in connection with the Services ("Customer Recipient Data"). Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Recipient Data, and Customer is responsible for maintaining, securing and storing all Customer Recipient Data in accordance with applicable law. Upon any termination or expiration of this Agreement, and Customer's payment of all unpaid and outstanding Fees, and Customer's written request received by Apogee within thirty (30) days of such expiration or termination, Apogee will provide Customer with an electronic file of the Customer Recipient Data. Customer acknowledges and agrees that after the thirtieth (30th) day following any such termination or expiration, Apogee has no obligation to retain the Customer Recipient Data and may delete and destroy such Customer Recipient Data without providing Customer with notice of such deletion. If Customer uses the Services during a Trial Period and fails to convert its account to a standard paid customer account upon the expiration or other termination thereof, Apogee has no obligation to retain the Customer Recipient Data after the date of such expiration or termination. Apogee will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Recipient Data.
Customer Information. Apogee collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information and payment information (the "Customer Information"). Apogee collects such information in order to provide the Services or the Professional Services, as the case may be, and related technical support. If you have provided your Customer Information, Apogee may contact you for marketing purposes by various means, including, but not limited to, regular mail, email or telephone. When you activate an Apogee account (including during the Trial Period), you expressly consent to receive marketing communications via direct mail, email (at the email address you provided when you activated your account), telephone (at the number you provided when you activated your account), pre-recorded messages (at the number you provided when you activated your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods.
Data Disclosures. Except as otherwise set forth herein, Apogee does not disclose, sell or rent Customer Recipient Data or Customer Information (collectively, the "Data"), without Customer's prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits Apogee to disclose the Data to: (i) Apogee personnel who access and manage the Data in connection with the Services; (ii) service providers for purposes of providing functions or services related to the Services and Apogee's customers' accounts; and (iii) Apogee marketing partners through which Customer purchased the Services, if any. Except as otherwise set forth herein, Apogee will not provide any Data to any third party without Customer's authorization and will use commercially reasonable efforts to prohibit any third party that receives any such Data from selling or redistributing such Data without Customer's authorization.
Passwords. In connection with Apogee's provision of the Services, Apogee will send to Customer's email address (as designated by Customer at the time an account is established), information such as user-IDs and/or passwords which will enable Customer to access the Services (the "Passwords"). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify Apogee promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer's negligence or intentional misconduct. Any unauthorized use of the Passwords by Customer will constitute a material breach of this Agreement.
Proprietary Rights. This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services, the Professional Services, and in any applications developed, owned or controlled by Apogee (as applicable) (the "Software"), and the Services, are and shall remain the sole and exclusive property of Apogee. Accordingly, Customer acknowledges that, as between Apogee and Customer, Apogee owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of Apogee. Customer will not take any actions inconsistent with Apogee's ownership of each of Apogee's rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by Apogee. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
Use of Services. Customer acknowledges and agrees that it will use the Services (and the Professional Services as the case may be) only to access, employ, utilize, or display the Software solely for Customer's "internal business purposes" by Customer's employees or by independent contractors hired by Customer. For the avoidance of doubt, the term "internal business purposes," as used herein, does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (iv) use the Services (and the Professional Services as the case may be) in any other manner which violates any Policy or any applicable law. Customer agrees to report immediately to Apogee, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 12 or in any of the Policies. In the event of any suspected violation of any term, condition or restriction set forth in this Section 12 or in any Policy, or in the event Apogee otherwise reasonably objects to any inappropriate or improper content uploaded by Customer in connection with its use of the Service, Apogee may immediately disable Customer's access to the Services and suspend its provision thereof.
No Tampering. Each email message that is sent using the Services must contain an "unsubscribe" link that allows Recipients to remove themselves from Customer's mailing list and a link to Apogee's Policies. Customer agrees that it will not remove, disable, modify or attempt to remove, disable or modify either link. Further, each such email message may contain an automatic identifying footer such as "Powered by Apogee." Except as otherwise expressly permitted in writing by Apogee, Customer agrees that it will not remove, disable or modify or attempt to remove, disable or modify such footer.
Confidential Information. Each of Apogee and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). For purposes hereof, "Confidential Information" means any information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that relates to such Disclosing Party's business affairs, internal operations, personnel, subscribers, customers, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party's possession prior to receipt of the same hereunder, as evidenced by the Receiving Party's prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; (iv) can be proven by competent written evidence to have been independently developed by the Receiving Party; or (v) is approved in writing for release by the Disclosing Party. For purposes hereof, Customer Recipient Data and Customer Information are considered Customer's Confidential Information. Nothing set forth herein shall be construed to prohibit Apogee from disclosing Customer's Confidential Information to any third party that has a need to know such information in connection with its performance of the Services. From time to time, Apogee may be required to disclose Customer's Confidential Information by order or other requirement of a court, administrative agency, or other governmental body or applicable law, as determined by Apogee or its legal counsel. In such event, Customer hereby permits Apogee to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 14.
Representations, Warranties and Covenants. Customer represents, warrants and covenants to Apogee that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Sales Order and that will be provided it during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Customer Recipient Data, the Services and the Professional Services, including, without limitation, its right to email Recipients, is and will at all times be in accordance with the terms and conditions set forth in this Agreement, the Policies and all applicable laws, rules and regulations, and without infringement or misappropriation of any intellectual property right or other right of a third party; (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services; and (vii) neither Customer nor any of its officers, directors or personnel is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department's listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States.
Third Party Products and Services. From time to time, certain third parties may offer products and services related to the Services (and the Professional Services, as applicable). Any subsequent business relationship, exchange of data or other interaction between Customer and such a third party, and/or any purchase, download or use by Customer of any product or service offered by such third party, is solely between Customer and such third party. Regardless of any recommendation by Apogee or use of such third party products or services, Apogee does not make any representations, warranties or guarantees with respect to any such third parties or any of their products or services. While Apogee may rely on data or information provided or generated by such third party products and services in the course of providing the Services (and the Professional Services, as applicable), Customer hereby acknowledges that Apogee specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that Apogee shall not be liable for any acts or omissions based on its reliance thereon. Accordingly, Customer hereby releases and holds harmless Apogee from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising therefrom.
Open Source Software. Customer acknowledges and understands that certain open source code may be incorporated into the Service (the "Source Code"). Except as otherwise set forth in the applicable Source Code license therefor, the Source Code is provided "as is," and without representation or warranty of any kind. Customer hereby releases and holds harmless Apogee from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising therefrom.
Disclaimer of Warranties. THE SERVICES (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APOGEE AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, AGENTS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE "REPRESENTATIVES") DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES OR THE PROFESSIONAL SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER'S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES OR THE PROFESSIONAL SERVICES.
Limitation of Liability. IN NO EVENT WILL APOGEE OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF APOGEE OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL APOGEE OR ANY REPRESENTATIVE'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICES, OR THE PROFESSIONAL SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO APOGEE FOR THE SERVICES DURING THE TWELVE (12)- MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM, LOSS, OR DAMAGE. No claim may be asserted by Customer against Apogee more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or Apogee’s non-provision, of the Services (or the Professional Services as the case may be), Customer's sole and exclusive remedy shall be for Apogee to use commercially reasonable efforts to repair or provide the Services (or the Professional Services as the case may be).
Indemnification. Customer agrees to indemnify, defend and hold harmless Apogee, the Representatives, and its and their respective affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising from: (i) Customer's acts or omissions; (ii) Customer's violation of any applicable law, including, without limitation, the United States CAN SPAM Act and Canada's Fighting Internet and Wireless Spam Act, or the Policies; (iii) Customer's breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer's breach of any of its representations or warranties set forth herein; and/or (v) Customer's infringement or misappropriation of any intellectual property rights or other rights of any person or entity.
Term and Termination. Unless otherwise stated in The Sales Order, cessation of services for a 90 day period shall indicate a termination of this agreement. You will be billed for the Fees for any usage of Services. Customer acknowledges that allowing a credit card to expire or failing to submit payment by check does not constitute a Valid Termination Notice. Any Customer termination request that occurs in the middle of a payment term (whether monthly, quarterly or annually, as set forth in the Sales Order) will be made effective on the final day of such term. If Customer wishes to terminate only the Professional Services, it should contact its account manager prior to such services being performed. Apogee may terminate this Agreement immediately effective upon delivery to Customer of notice thereof. Such right to terminate this Agreement shall include Apogee's right to terminate its provision of the Services and/or the Professional Services (as applicable) and to pursue all available equitable and legal remedies (in the event Customer breaches any term or condition, or any of its representations or warranties set forth herein). Upon termination of this Agreement for any reason, all Customer Recipient Data may be destroyed and deleted in accordance with the terms and conditions set forth in Section 8 above. Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay Apogee Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.
Governing Law. This Agreement will be governed by the laws of the State of Idaho as applied to agreements entered into and performed entirely within the State of Idaho, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in the location mutually agreed upon by both parties. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, Apogee shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of Idaho, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
Relationship. This Agreement does not create a partnership, joint venture or agency relationship between Apogee and Customer. Customer does not have any right, power, or authority to act as a legal representative of Apogee.
Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Apogee. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
Entire Agreement. This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between Apogee and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between Apogee and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements with Apogee which are subject, expressly or otherwise, to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the term or condition which most favors Apogee, as determined by Apogee, shall govern.
No Waivers. Apogee's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
Notice. Apogee may provide Customer with general notice by electronic mail to Customer's e-mail address of record, or by written communication sent by first class mail or pre-paid post to Customer's address of record, or to such other address designated by Customer and communicated to Apogee in accordance with the notice delivery provisions of this Section 30. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to Apogee (such notice shall be deemed given when received by Apogee) by using one of the following means: (i) letter delivered by a nationally recognized overnight delivery service; or (ii) by first class postage, return receipt requested, prepaid mail to Apogee; in either event, to the following address: Apogee Design Inc., 105 W Park St., American Falls, ID 83211. Either Customer or Apogee may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with the notice delivery provisions of this Section 30.
Consent to Use of Electronic Signatures and Records. As a convenience and courtesy to you, Apogee provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking "I Agree" or "I Accept" anywhere on the Site, by using the Services, or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Site:
you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto;
you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and
you agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
If you wish to withdraw this consent, please contact us at production@apogeeinvent.com, in which case Apogee shall have the right to terminate your use of the Services.
Export Restrictions. Customer acknowledges that the Services may be subject to U.S. or other countries' export control laws and regulations. Customer agrees not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any U.S. or other applicable export control laws and regulations.
Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by Apogee and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.
