Anytime Postage Terms of Purchase and Use
Last Revision: December 2023
THESE TERMS FORM A BINDING AGREEMENT; PLEASE REVIEW THEM CAREFULLY
Thank you for choosing Anytime Postage products and services. These Terms of Purchase and Use (these “Terms”) are a legal agreement between Anytime Postage, LLC (“Anytime Postage” or “ATP”) and you, as a current or prospective owner and operator of Anytime Postage’s hardware, software, or services (collectively, the “Services”), , and govern your use of those Services, which may include without limitation the anytimepostage.com website (the “Site”), the Anytime Postage self-service shipping kiosk (the “Kiosk”), as well as any other equipment or devices offered by Anytime Postage (the “Products”), and any mobile applications, online platform, or other software provided by Anytime Postage (the “Software”).
By accessing or using any of the Services, you are agreeing to all of these Terms and any policies referenced in these Terms (the “Policies”) to the extent they are applicable to your use of the Services, including the ATP Privacy Notice (available at https://www.anytimepostage.com/privacy-policy/, described in more detail below), Anytime Postage’s Product return policy (available at https://www.anytimepostage.com/refund_returns/) and one-year Product warranty (available at https://www.anytimepostage.com/warranty/).
You should read all of our Terms and Policies carefully, and if you are not able to agree to all of the terms and conditions set forth therein, then you are not permitted to use any of the Services and you must immediately cease any and all use thereof.
It is also your responsibility to review these Terms periodically. ATP’s business and technology are continually evolving, and so from time to time we may decide to make revisions to these Terms (which, to be clear, we will have the right to do in our sole discretion). You must review these Terms periodically to make sure you remain in agreement with them. Our Site (and often our Software and Products as well) will always include a link to our most up-to-date Terms, and we include a date at the top of these Terms, so you can quickly see when they were last updated. Your continued use of any Services following any revisions to these Terms will constitute your acceptance of such revisions and your agreement to continue be bound by these Terms. If you do not agree to any revisions to these Terms, your sole remedy will be to discontinue your use of the Services.
You represent and warrant that you are at least 18 years of age and have the legal authority to accept these Terms. If you are using the Services on behalf of a business, then you represent to us that you have authority to bind the business or entity to these Terms, and that the business accepts these Terms. As used in these Terms, “Operator” refers to the person or entity that is purchasing Products or Services and that will be using and operating those Products and Services itself and/or making those Products and Services available for use by its employees, agents, customers and other end users (each such end user being referred to herein as a “Customer”), as well as anyone acting on Operator’s behalf or at Operator’s direction.
- Product Purchase Terms
1.1 Purchases Generally. These Product purchase terms (these “Purchase Terms”) apply to any ATP Products that are purchased via the Site or by using any other Services; provided, that if a purchase is made pursuant to a separate written agreement between Operator and Anytime Postage, then the terms of that written agreement will take precedence over any conflicting terms and conditions set forth in these Purchase Terms. Products purchased from ATP under these Terms are intended for ownership and use by Operator, and Products are not authorized for resale to or operation and monetization by any third party without ATP’s express authorization, to be given or withheld in ATP’s sole discretion. ATP reserves the right to refuse or cancel an order if ATP suspects any Products are being purchased for resale or for ownership by any person or entity other than Operator. Title for Products purchased from ATP passes to Operator at the time that Operator takes delivery of those Products.
1.2 Pricing and Taxes. Prices are subject to change at any time, and ATP reserves the right to alter, modify, redesign or discontinue the Products, change the Services, and modify its returns, warranty, support or other Policies at any time and from time to time, without notice and without any obligation to Operator. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under these Terms (collectively, “Taxes”). Any Taxes related to the Products or any Services purchased pursuant to these Terms are the responsibility of Operator (excluding, for the avoidance of doubt, taxes based on ATP’s net income), unless Operator presents an exemption certificate acceptable to ATP and any applicable taxing authorities. In the event ATP is required to pay any Taxes that are the responsibility of Operator, Operator will be responsible for reimbursing ATP for those Taxes. If any exemption certificate presented by Operator should be held to be invalid, then Operator will immediately pay ATP the amount of the Taxes and any penalties and interest related thereto.
1.3 Delivery and Shipping. ATP will deliver or make available the Products within a reasonable time after receiving payment from Operator for its purchased Products, subject to their availability. Any delivery date provided by ATP for the Products will be an estimate and will be based upon prompt receipt of all necessary information from Operator. ATP will use commercially reasonable efforts to make shipments as scheduled, and ATP will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on ATP’s part. If Operator causes ATP to delay shipment of the Products, ATP will be entitled to recover from Operator any and all extra costs and expenses resulting from the delay.
1.4 Exports. If any ordered Products are to be exported from the United States, then any quoted shipping dates will be subject to ATP’s receipt of all required export documents and authorizations. Regardless of ultimate destination, the prices quoted will be based on packing for domestic shipment unless otherwise stated in writing. Operator agrees to provide ATP with written notice of the ultimate destination, as well as its end-use and identity of the ultimate owner or operator at the time the order is placed if the Products are to be exported. ATP reserves the right to choose the freight forwarder, carrier, and/or broker. Operator acknowledges and agrees that it is solely responsible for complying with applicable US export laws and that it will be responsible for compliance with any registration or importation requirements of any country into which it seeks to import the Products. ATP will not be the importer of record and will not be responsible for compliance with importation requirements of any country to which the Products are shipped.
1.5 Fourteen Day Returns Policy; One-Year Warranty Period. ATP Products are sold with a 14-day trial period and “no questions asked” return policy, which can be reviewed at https://www.anytimepostage.com/refund_returns/, and with a one-year limited Product warranty, which can be reviewed at https://www.anytimepostage.com/warranty/. ATP reserves the right to alter or terminate these Policies at any time; ATP’s current returns and warranty Policies will always be accessible via the links set forth in this paragraph. It will be Operator’s responsibility to inspect Products upon receipt, to notify ATP promptly in writing if any items received are different from those purchased, and (upon confirmation by ATP of the error) to return the nonconforming Products at ATP’s expense. Upon receipt of the nonconforming Products, ATP will replace them with the Products actually ordered by Operator.
1.6 Cancellation. No Products may be returned without ATP’s prior written approval. Orders for Products placed with and accepted by ATP may not be canceled except with ATP’s written consent prior to shipment and with Operator’s acceptance of ATP’s cancellation charges, if any. ATP reserves the right to cancel any sale of Products hereunder prior to delivery in ATP’s sole discretion without liability to Operator (except for refund of monies already paid).
- Operator’s Responsibilities
2.1 Account Creation, Maintenance and Use. In order to execute certain transactions or enable Customers to execute transactions using the Services, Operator will be required to have an account (the “Account”) with ATP – the specific type of Account that Operator needs will be indicated for the Services or the transactions Operator is seeking to execute. Operator must use its own Account only; Operator may not use anyone else’s account to access or use the Services, and Operator must not permit anyone else to access or use any Services with Operator’s Account. For clarity, when using any Product owned by Operator, a Customer must either have their own account or elect to continue as a guest in order to use Operator’s Products or Services; a Customer should never be using Operator’s Account in order to execute any transactions for the benefit of that Customer. When signing up for an Account, it will be Operator’s responsibility to ensure that all of the information that Operator provides, or that an Account provides on Operator’s behalf, is complete and accurate and is kept up to date in the event of any changes.
The individual identified for Account access in Operator’s registration materials or purchase confirmation is the initial sole authorized user of Operator’s Account and has been or will be provided with instructions on how to create an Account and access the Services, and how to add additional authorized users to the Account. Operator will be entirely responsible for maintaining the confidentiality of Operator’s Account information, including all user IDs, passwords and other access or verification information. Operator will be solely and fully responsible for all activities that occur under Operator’s name or Account, or with the use of Operator’s login information or password, and ATP will not be liable for any loss that Operator incurs as a result of someone else using Operator’s Account, either with or without Operator’s knowledge. ATP has no control over the use of any user account and expressly disclaims any liability derived therefrom. If Operator suspects suspect that any unauthorized party may be using Operator’s Account, or that there has been any other breach of security relating to the Services or Operator’s access thereto, Operator must contact ATP immediately and fully cooperate with ATP in any investigation into such unauthorized access or use.
2.2 Consent to ATP Emails. By agreeing to these Terms, registering for an Account and providing ATP with an email address and other contact information, and subject to any applicable rights provided to Operator under any Policy, Operator is providing ATP with Operator’s permission and authorization to contact Operator by email for transactional and business reasons related to Operator’s Account and use of the Services, as well as for purposes of providing Operator with marketing and promotional email messages that ATP believes may be of interest to its operators and other customers.
2.3 System Requirements. It is Operator’s responsibility to review the system requirements applicable to the Products, and to confirm before purchasing any Product that Operator has and will be able provide at least the minimum system requirements applicable to that Product. For example, ATP’s self-service kiosk requires stable Internet access (either via Wi-Fi or ethernet) in order to operate, and if Operator is not able to provide that Internet access to an installed kiosk, then the kiosk will not function. ATP will not be responsible for any failure of a Product to function as intended where such failure results from Operator’s failure to provide the necessary minimum system requirements or otherwise comply with requirements and instructions applicable to such Product.
2.4 Suspension of Access. ATP may, in its reasonable discretion and without prior notice to Operator, suspend Operator’s Account or access to and use of the Services at any time if ATP believes that (a) Operator is in breach of any obligations under this Agreement; (b) Operator’s use of the Services poses a security risk; (c) Operator’s use of the Services violates, misappropriates, or infringes the rights of ATP or a third party; or (d) Operator’s use of the Services imposes unexpected or excessive demands on ATP, on any ATP business partner, or on other users of the Services. Upon any such suspension, Operator and ATP will cooperate in good faith to identify the cause of the issue giving rise to the suspension, and without limiting any of ATP’s other rights, no suspension will be lifted until Operator can demonstrate to ATP’s reasonable satisfaction that Operator has removed or otherwise remedied the issue or issues giving rise to the suspension. Without limiting the foregoing, Operator will immediately notify ATP of any suspected or actual fraudulent, unauthorized, illegal, improper or suspicious use of any Services, as well as of any other breach of security or unauthorized or illegal activity that Operator reasonably suspects to be occurring in connection with the Services. In addition, ATP reserves the right to suspend or terminate the account of anyone who is found to have used a fake, inaccurate or misleading name, email, mobile phone number or other identifying information on their account, permitted other operators or users to access and use their account, or used the account of any other operator or user.
2.5 Compliance. Operator will at all times and at its own expense: (a) strictly comply with all applicable laws, rules, regulations, ordinances and governmental orders, now or hereafter in effect, relating to its use of the Products and Services, including, without limitation, export and import laws and regulations; (b) pay all fees and other charges required by such laws, rules, regulations and orders; and (c) maintain in full force and effect all licenses, permits, certifications, authorizations, registrations and qualifications from all applicable governmental departments and agencies to the extent necessary to perform its obligations hereunder.
(a) Export Controls. Operator understands that Products, Services and/or technical information provided under these Terms may be subject to U.S. export controls and the trade laws of other countries, and Operator agrees to comply with all applicable export control regulations and to obtain any required licenses or item classification to export, re-export, or import deliverables. If requested by ATP, Operator will sign written assurances and other export or import related documents, as may be required under applicable export or import laws and regulations.
(b) Local Certification. Operator understands that the Kiosk has an integrated scale component, and that state and/or local laws may require that scales used for the commercial purchase or sale of goods be certified, licensed or registered by applicable state or local authorities. Under no circumstances will ATP be responsible for obtaining any certifications, licenses or registrations (collectively, “Certifications”) for the Kiosk or its scale, or for any other Kiosk component, or for providing Operator with any information, advice or assistance related to such Certifications. Instead, it will be solely and entirely Operator’s responsibility to identify and obtain any and all Certifications that may be required for use and operation of the Kiosk and other Products and Services by Operator, Operator’s Customers and/or Operator’s other end users. Operator’s failure to obtain or maintain any required Certifications will be a breach of these Terms for which Operator will be obligated to indemnify ATP and any other Indemnitees (as defined below) under Section 7.6 below.
2.6 Carrier Requirements. It will be Operator’s obligation to ensure that all transactions completed with the Services comply with all applicable laws and with the regulations and requirements of any carrier or carriers selected by Operator or its Customers, and all transactions must comply with the applicable carrier’s or carriers’ legal requirements (as the same will be highlighted during the purchase or checkout process). All shipping transactions completed with the Services will require Operator’s or its Customer’s acceptance of the applicable carrier’s terms, and will reflect an agreement between Operator or the applicable Customer and such carrier, to which ATP is not and will not be deemed to be a party. Operator and not ATP or any ATP affiliate or business partner will be solely responsible for any Customer’s failure to comply with this paragraph, and for any and all illegal acts or omissions by a Customer in connection with or arising out of such Customer’s use of the Services.
2.7 Adjustments to Customer Charges. Operator understands and agrees that the Kiosk’s integrated scale is provided for Customer convenience and for reference purposes only, and that ATP provides no guarantee or warranties regarding the accuracy of the scale. Accordingly, it will be each Customer’s obligation to independently determine and confirm the accuracy of the weight and dimensions of any package that is shipped using a Kiosk (and it will be Operator’s obligation to ensure that Customers are given clear notice of this obligation), and if the actual weight or dimensions of any such package (which, to be clear, will be determined by the Customer’s chosen carrier for such package, and not by ATP) should be different than the weight or dimensions that the Customer indicated in preparing the shipment, then the Customer’s incorrect weight or measurement may result in additional charges from Customer’s chosen carrier (i.e., fees for shipping may be higher than indicated at the time the Customer checked out using the Kiosk); if ATP is notified of any such additional charges, ATP will automatically charge the Customer’s credit card or other payment method for the additional fees or other charges that result from the incorrect weight or measurement. In addition, where a Customer fails to make payment to ATP for any such additional charges, ATP will have the right to collect such unpaid amounts from Operator, who will then be entitled (if Operator so elects) to pursue Customer for satisfaction of such amounts.
2.8 Changes to Services. Operator understands and agrees that ATP reserves the right, at any time and without liability, to change its pricing as well as the features and functionality of the Services, which changes might include, without limitation and by way of example only, adding or removing carriers or types of shipping services, or changing the fees charged for certain features of the Services. If Operator does not agree to any such changes, Operator’s sole course of action will be to stop using the Services. Without limiting the foregoing, ATP expressly reserves for itself the right to determine which carriers and other shippers and shipping services are available to Customers and other Kiosk users, and ATP will have the right, exercisable at any time upon notice to Operator, to require that all shipping purchased and processed via the Kiosk is done using ATP’s carrier accounts, and to prevent the use of any Operator, Customer or third-party accounts in connection with any letter, parcel or package for which shipping is arranged via the Kiosk.
- Intellectual Property Rights
3.1 Services Access and Use. Anytime Postage grants Operator a limited license to access and use the Services subject to and conditioned upon Operator’s compliance with these Terms, the Privacy Notice and our other Policies, and any other rules and requirements communicated to Operator by Anytime Postage, including payment of any applicable fees. Operator understands and agrees (as described in more detail below) that Anytime Postage may modify, update, and otherwise change the Services and these Terms at any time and in its sole discretion.
3.2 Limitations. These Terms do not: (a) provide Operator with any right or license (whether expressly, by implication, by estoppel, or otherwise) under any of ATP’s intellectual property rights other than to use the Services during the Term solely in the manner and solely to the extent authorized herein; or (b) impair or in any way limit the right of ATP to develop, make, use, procure, protect, market and/or exploit any products or services. ATP reserves all rights not expressly granted to Operator.
3.3 Trademarks. ANYTIME POSTAGE and the ATP logo are trademarks of Anytime Postage, LLC, and ATP’s Products and Services, and ATP’s underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. All rights reserved. Operator is not granted, by implication or otherwise, any license or right to use any marks appearing on, or used or displayed in connection with, the Services. The Services may also contain or refer to third-party trademarks, trade names, product names, and logos that may be registered trademarks of their respective owners. Under no circumstances will Operator use or copy any of the trademarks appearing on or used in connection with the Services, and nothing herein should be construed as granting any license or right to use any trademarks displayed in connection with the Services without ATP’s express written permission.
3.4 Feedback. Operator may, but is not obligated to, provide ATP with feedback, comments, or suggestions regarding the Services (collectively, “Feedback”). Operator understands and agrees that: (a) any Feedback will be provided on a non-confidential basis; (b) ATP will have no obligation to review, consider, or implement any Feedback that Operator provides; and (c) ATP and its successors and assigns will have, and Operator hereby irrevocably grants and agrees to grant to ATP and its successors and assigns, perpetual and unlimited permission to use, reproduce, modify, distribute, display, and perform any Feedback and any derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback, whether in whole or in part, and whether as provided by Operator or as subsequently modified by ATP or by any third party.
3.5 Confidentiality and Use Restrictions.
(a) Confidentiality. Operator agrees to treat all nonpublic information received from ATP or otherwise learned by Operator regarding the Services (including, without limitation, information regarding pricing, ATP’s planned product and service offerings, and the design, composition and operation of the Kiosk) as confidential, and Operator will not disclose such confidential information to any third party (including but not limited to Operator’s Customers) without ATP’s prior written consent.
(b) Restrictions. Operator will not at any time, directly or indirectly, and will not permit any third-party to: (i) use or permit any use of the Services for any purposes beyond the rights granted in these Terms; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software or hardware, in whole or in part, contained in any Kiosk or otherwise provided as part of the Services; (iii) copy, modify, or create derivative works of the Services, in whole or in part; or (iv) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person (including but not limited to web scraping), or that otherwise violates any law, regulation, or other legal requirement.
(c) Non-Circumvention. It will be a breach of these Terms for Operator to use any confidential or other proprietary information of ATP (including any such information that may be learned by Operator or its personnel as a result of access to or use of the Kiosk or other ATP Services) to create or seek to create any device or system that circumvents or is intended to circumvent in any way any of the Services or any features offered by the Kiosk or to serve as a replacement for the Kiosk.
(b) Operator acknowledges and agrees to the collection, processing and international transfer of personal data and information related to the business relationship between Operator and ATP (“Data”) for ATP’s general business purposes. To the maximum extent permitted by applicable law, ATP will be the owner of all such Data. ATP may anonymize or de-identify Data so subjects are not readily identifiable (the “De-Identified Data”), and ATP will have the right and ability to use such De-Identified Data for ATP’s general business purposes. In the event ATP does not own or is unable to own the De-Identified Data as a result of applicable law, or contractual commitments or obligations, Operator grants ATP a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived the De-Identified Data for ATP’s general business purposes.
(c) ATP may collect and process information regarding usage of the Services, and Operator consents to ATP’s collection and use of such information, as well as the sharing of such information with third-party service providers for purposes of providing, marketing, and improving the Services, and any other reason described in the Privacy Notice.
- Representations and Warranties; Disclaimers
4.1 Operator represents, warrants and covenants to ATP as follows:
(a) Operator has the legal right and authority to accept these Terms and enter into the agreement made hereby, and Operator’s entry into and performance of such agreement do not and will not violate any other agreement to which Operator is or becomes a party;
(b) Operator has not falsely identified itself, nor provided any false information to gain access to the Services or any Products, and all information that Operator provides to ATP will be accurate and complete in all material respects, and Operator will ensure that Operator’s contact and billing information remains correct and up to date at all times applicable to these Terms and Operator’s use of the Services;
(c) Operator will not use or attempt to use the Services for any illegal or contractually prohibited purpose (including, for clarity, for shipping or attempting to ship any illegal or otherwise prohibited materials), and Operator will fully comply with all applicable laws, statutes, regulations, rules and manuals, in Operator’s use of the Products and Services, and Operator expressly authorizes ATP to take steps necessary or advisable for its own compliance with all applicable laws, statutes, regulations, rules or manuals; and
(d) Operator will be responsible for ensuring that its Customers and other end users do not use or attempt to use the Services for any illegal or contractually prohibited purpose (including, for clarity, for shipping or attempting to ship any illegal or otherwise prohibited materials), and Operator will be responsible for all actions of its Customers and other end users in connection with their use of the Services.
4.2 Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, ATP IS PROVIDING OPERATOR WITH ACCESS TO AND USE OF THE PRODUCTS AND SERVICES ON AN “AS IS” BASIS AND WITHOUT WARRANTIES OF ANY KIND, AND OPERATOR’S AND ITS CUSTOMERS’ AND OTHER END USERS’ ACCESS TO AND USE OF THE PRODUCTS AND SERVICES WILL AT ALL TIMES BE AT OPERATOR’S SOLE RISK. ATP AND ITS BUSINESS PARTNERS DO NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL BE SUITABLE FOR OPERATOR’S OR ITS CUSTOMERS’ OR OTHER END USERS’ SPECIFIC REQUIREMENTS (WHETHER RELATED TO SHIPPING OR OTHERWISE), AND UNDER NO CIRCUMSTANCES WILL ATP BE LIABLE FOR ANY LOST, STOLEN OR DAMAGED ITEMS SENT USING THE SERVICES, OR FOR ANY ILLEGAL OR OTHER PROHIBITED USE OF THE SERVICES. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, IN ANY OF THE POLICIES, OR UNDER ANY SEPARATE WRITTEN AGREEMENT BETWEEN ATP AND OPERATOR REGARDING THE PRODUCTS OR SERVICES, TO THE GREATEST EXTENT PERMITTED BY LAW, ATP AND ITS AGENTS, AFFILIATES AND BUSINESS PARTNERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE PRODUCTS, THE SERVICES OR ANY ASPECT THEREOF.
- Limitation of Liability
5.1 Limitation of Liability. ATP AND ITS CUSTOMERS, BUSINESS PARTNERS AND OTHER OPERATORS WILL NOT BE LIABLE TO OPERATOR UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF ATP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL ATP’S LIABILITY TO OPERATOR FOR ANY ACT OR OMISSION ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF $500.00 OR THE TOTAL FEES ACTUALLY RECEIVED BY ATP FROM OPERATOR AS A RESULT OF OR IN CONNECTION WITH THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.
5.2 THE FOREGOING LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Dispute Resolution
6.1 Arbitration of Disputes. ATP and Operator agree to arbitrate all disputes and claims between them, where the dispute arises out of or relates in any way to the Services or these Terms. This agreement to arbitrate is intended to be broadly interpreted and to cover any and all disputes arising hereunder to the maximum extent permitted by law; provided, that agreement to arbitrate disputes does not preclude any party from seeking an individualized preliminary injunction or temporary restraining order until a claim is arbitrated, or from bringing an individualized action in any small claims court that has jurisdiction pursuant to Section 7.7 below; provided, that an arbitrator will have exclusive jurisdiction to finally resolve claims not within the jurisdiction of any such small claims court.
6.2 Dispute Notice. Where a party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing (a “Dispute Notice”) at least 30 days before initiating any arbitration proceeding hereunder. If the parties are unable or unwilling to resolve the dispute within 30 days after a Dispute Notice is given, the dispute will be resolved by arbitration upon one party sending the other party or parties and JAMS a demand for arbitration. For the avoidance of doubt, no arbitration demand may be submitted until at least 30 days after all parties to the dispute have received or are deemed to have received (in accordance with Section 7.8 below) the Dispute Notice.
6.3 Arbitration Procedures. Any dispute that cannot be resolved within 30 days after a Dispute Notice is received will be determined by an arbitration proceeding in Wilmington, Delaware before a sole arbitrator and administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). After expiration of the 30-day period required by Section 6.2 above, any party to the dispute may submit a written demand for arbitration to the other party or parties to the dispute, and within ten days after the demand for arbitration is given, the parties will select a single neutral arbitrator to preside over the arbitration proceeding. If the parties fail to select an arbitrator within such ten-day period, the arbitrator will be chosen pursuant to the JAMS Rules. In addition to the powers conferred by the JAMS Rules, the arbitrator will have authority to order such other discovery as he or she deems appropriate for a full and fair hearing of the case. The arbitrator’s decision will be final and binding and the award so rendered may be filed in any court having jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.
6.4 No Class or Representative Arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim without affecting other ATP operators or any Customers. OPERATOR AND ATP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one Operator’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
7.1 Assignment. The agreement set forth in these Terms is personal to Operator, and Operator may not assign or transfer its rights or obligations under these Terms to any third party without the prior written consent of ATP, to be given or withheld in its sole discretion. Any attempted assignment or transfer without ATP’s express consent will be void. These Terms inure to the benefit of and are binding upon the parties and their respective legal representatives, successors, and permitted assigns.
7.2 Entire Agreement. These Terms supersede any and all prior discussions and writings regarding, and constitute the entire agreement between ATP and Operator with respect to, Operator’s access to and use of the Services. Operator understands and agrees that no employee, agent, or other representative of ATP or its business partners will have any authority to bind ATP with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement or in a separate writing that has been signed by Operator and by an authorized representative of ATP.
7.3 Force Majeure. ATP will not be liable nor in breach or default of its obligations under these Terms or any other agreement with Operator if ATP is prevented from, or delayed in, performing its obligations under to Operator or carrying on its business by acts, omissions or events outside its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes, acts of God, war, riot, civil unrest, malicious damage, compliance with any law or governmental order, rule, regulation or direction, breakdown to plant or machinery, fire, flood or storm. Upon the occurrence of a force majeure or other excusable delay, ATP’s performance or delivery date shall be extended for a period equal to the duration of the force majeure event or time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay.
7.4 Amendments. ATP reserves the right, at its sole and absolute discretion, to revise, modify, add to, supplement, delete or otherwise change any of the terms and conditions of these Terms (including, for the avoidance of doubt, any terms of the Privacy Notice or any other Policy) at any time, effective with or without prior notice to Operator and without any liability to ATP. ATP will endeavor to notify Operator of any such changes, but will not be liable for any failure to do so. If any such changes to this Agreement are unacceptable to Operator, then Operator may no longer use the Services and must immediately stop all use of the Services. Operator’s continued use the Services following any changes to these Terms will constitute Operator’s acceptance of and agreement to any and all such changes. These Terms may not otherwise be modified as between ATP and Operator, except and only to the limited extent of any written amendment that specifically references these Terms and that has been signed by Operator and by an authorized representative of ATP.
7.5 Certain ATP Rights and Remedies. If ATP reasonably suspects that Operator’s contact information or payment method is fraudulent, or that Operator or any Operator Customer or other end user is using or intending or attempting to use the Services for any unlawful, fraudulent, or illegal activities, or for shipping or attempting to ship any illegal or otherwise prohibited materials, ATP may immediately terminate or suspend Operator’s access to and use of the Services. ATP may also turn over information concerning Operator and/or its Customers or other end users to the U.S. Federal Bureau of Investigation (and/or any appropriate counterpart bureau or agency operating in Operator’s jurisdiction), an applicable State Attorney General or Embassy with jurisdiction, or other local and national law enforcement authorities. Operator agrees to indemnify and hold ATP harmless from and against any and all liability, claims, damages, losses or cause of action arising from any release of information by ATP or by any third party acting on ATP’s behalf or at ATP’s direction regarding Operator or Operator’s use of the Services to such authorities, or otherwise as required by law.
7.6 Indemnification. Without limiting any other indemnification obligations of Operator that may be set forth elsewhere in these Terms, Operator will indemnify, defend, and hold harmless ATP and its business partners, and each of their respective officers, directors, managers, members, employees, contractors and agents (collectively, “Indemnitees”) from and against any and all claims, demands, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to: (a) Operator’s access to and use of the Services; or (b) Operator’s breach or threatened breach of these Terms (including, without limitation, any failure by any of Operator’s employees, contractors, Customers or other end users, affiliates, associates, relatives or other acquaintances to comply with any of the terms and conditions hereof). An Indemnitee will use commercially reasonable efforts to provide Operator with prompt notification of any claim for which it seeks indemnification hereunder, but any failure to provide such notice will not limit Operator’s obligation to indemnify an Indemnitee except to the extent that Operator can demonstrate material harm as a result of such failure to provide prompt notice. Indemnitees will cooperate in Operator’s defense of any claim, at Operator’s sole expense. Operator may not settle any claim against an Indemnitee in a manner that adversely affects such Indemnitee without the prior written consent of such Indemnitee, which consent will not be unreasonably withheld or delayed. An Indemnitee may participate in the defense of a claim through counsel of its own choice at its own expense; provided, however, that if Operator is unwilling, or if an Indemnitee reasonably determines that Operator is unable to defend the Indemnitee’s interests, then such Indemnitee may assume the defense against any claims at Operator’s expense. An Indemnitee will not settle any claim for which Operator has an indemnification obligation hereunder without Operator’s prior written consent, which consent will not be unreasonably withheld or delayed.
7.7 Governing Law and Venue. These Terms will be governed by and construed in accordance with the laws of the State of Delaware, United States of America, excluding its conflict of law principles, and all claims arising out of or relating to these Terms or the Services will be governed by U.S. Federal law and by Delaware law, without reference to any conflict of law rules, except to the extent that Delaware law is contrary to or preempted by U.S. Federal law; provided, however, that notwithstanding the foregoing, Operator’s compliance with these Terms will also be subject to and governed by the laws of the jurisdiction in which Operator is located or is using or offering its Customers the Services, as well as (if different) the laws of the jurisdiction in which Operator resides or is legally deemed to be operating (collectively, Operator’s “Local Jurisdictions”), and if deemed necessary or appropriate by ATP, ATP will be entitled to enforce these Terms under the laws of and in the courts or other adjudicatory authorities of any and all Local Jurisdictions. As further provided in Section 6 above (and subject to any exceptions set forth therein), all claims by Operator arising out of or relating to these Terms or the Services that cannot be resolved by good faith negotiations between the parties will be resolved by binding arbitration before a single arbitrator, such arbitration to be held exclusively in Wilmington, Delaware, in accordance with the JAMS Streamlined Arbitration Rules & Procedures, and by accepting these Terms and/or using the Services, Operator is agreeing to the arbitration agreement set forth herein, and is waiving its rights to a trial by jury or to participate in a class or representative action. For the avoidance of doubt, the United Nations Convention for the International Sale of Goods and any other United Nations laws or other international laws that purport to apply or could potentially apply to this Agreement shall not apply, and all of the foregoing are expressly superseded and replaced by U.S. Federal law, Delaware law and the laws of Local Jurisdictions, as set forth above.
7.8 Notices. To be valid, all notices permitted or required under these Terms must in writing and delivered by hand, by email, by overnight courier, or via certified mail; provided, that email notices from Operator will only be valid where ATP expressly acknowledges and confirms receipt. Notices hereunder will be deemed given (a) on the date delivered, if delivered by hand or if sent (where permitted) by email, and (b) on the next day, if delivered by overnight courier. ATP will send notices to Operator’s email or postal address on file with ATP, and Operator will send notices to ATP’s then-current addresses identified on the “Contact Us” page of the ATP website or as accessible via the Services.
7.9 Relationship of the Parties. These Terms do not confer any third-party beneficiary rights and do not create a joint venture, agency, partnership, or other form of joint enterprise between the parties. Except as expressly provided herein, neither party has the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other. There are no intended third-party beneficiaries of these Terms.
7.10 Severability, Waiver and Interpretation. If any provision of these Terms is found to be unenforceable or invalid, such unenforceability or invalidity will not render these Terms unenforceable or invalid as a whole and, in such event, such provision is to be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. No waiver of any breach of these Terms will constitute a waiver of any other breach. In construing or interpreting these Terms: (a) the headings in these Terms are for convenience only, and are not to be considered, and (b) no presumption is to operate in either party’s favor as a result of its counsel’s role in drafting or negotiating these Terms.
- Additional Terms Applicable to Certain Operators
8.1 Notice for California Users. Under California Civil Code Section 1789.3, California users of the Services are entitled to the following specific consumer rights notice:
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
8.2 Federal Government End Use Restrictions. If Operator is a U.S. federal government department or agency or is contracting on behalf of such department or agency, the Services are “Commercial Products” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Products are sold and Services are licensed to Operator with only those rights as provided under the terms and conditions of this Agreement.
BY TAKING ANY REQUIRED ACTION TO INDICATE ACCEPTANCE OF THESE TERMS (INCLUDING, WITHOUT LIMITATION, BY PURCHASING ANY PRODUCT OR USING ANY OF THE SERVICES), OPERATOR (OR IF APPLICABLE OPERATOR’S REPRESENTATIVE) IS ACKNOWLEDGING ITS UNDERSTANDING OF THESE TERMS AND THE BINDING AGREEMENT CREATED HEREBY, AND THAT OPERATOR WILL BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.