Terms & Conditions for Mail Center Operators
Last Revision: January 5, 2021
THESE TERMS & CONDITIONS FORM A BINDING AGREEMENT; PLEASE REVIEW THEM CAREFULLY
BUGO, LLC, A NEVADA LLC D.B.A. ANYTIME MAILBOX (“ATMB”) OFFERS A SUITE OF SOFTWARE AND SERVICES THAT ENABLES ONLINE MAIL MANAGEMENT SERVICES FOR THOSE INDIVIDUALS AND ENTITIES (REFERRED TO HEREIN AS “RENTERS”) THAT HAVE THEIR POSTAL MAIL SENT TO MAILING ADDRESSES THAT ARE PROVIDED BY SHIPPING STORES, COMMERCIAL MAILBOX PROVIDERS, OR OTHER COMPANIES THAT OFFER MAIL RECEIPT AND OTHER MAILBOX SERVICES (COLLECTIVELY, “MAIL CENTER OPERATORS”). THIS DIGITAL MAILBOX OPERATOR AGREEMENT (THIS “AGREEMENT”) SETS FORTH THE TERMS APPLICABLE TO MAIL CENTER OPERATORS THAT WANT TO OFFER ATMB’S SOFTWARE AND SERVICES TO THEIR RENTERS; IN ORDER TO HAVE THE RIGHT TO OFFER THE ATMB SOFTWARE AND SERVICES TO ITS CUSTOMERS, A MAIL CENTER OPERATOR MUST AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. AS USED IN THIS AGREEMENT, THE “SERVICES” REFER TO ATMB’S ONLINE MAIL MANAGEMENT SERVICES, WHICH ARE DESCRIBED IN MORE DETAIL BELOW, TOGETHER WITH THE ANYTIMEMAILBOX.COM WEBSITE AND ANY OTHER WEBSITE OWNED OR CONTROLLED BY ATMB ON WHICH THIS AGREEMENT APPEARS (COLLECTIVELY, THE “SITE”), AND “OPERATOR” REFERS TO THE SPECIFIC MAIL CENTER OPERATOR THAT EXECUTES THIS AGREEMENT (OR HAS THIS AGREEMENT PROPERLY EXECUTED ON ITS BEHALF) AND PROCEEDS TO REGISTER FOR THE SERVICES IN ACCORDANCE WITH THE TERMS HEREOF.
ANY MAIL CENTER OPERATOR THAT DESIRES TO OFFER THE SERVICES TO ITS CUSTOMERS OR TO PROSPECTIVE RENTERS NEEDING A PHYSICAL MAILING ADDRESS IN ORDER TO ACCESS THE SERVICES MUST AFFIRMATIVELY INDICATE ITS ACCEPTANCE OF THIS AGREEMENT BEFORE CONTINUING WITH THE REGISTRATION PROCESS. BY INDICATING ITS ACCEPTANCE AND PROCEEDING TO REGISTER AS AN AUTHORIZED ATMB OPERATOR, OPERATOR IS AGREEING TO ALL OF THE TERMS OF THIS AGREEMENT. ATMB IS NOT WILLING TO LICENSE THE SERVICES TO ANY MAIL CENTER OPERATOR THAT IS UNWILLING OR UNABLE TO AGREE TO ALL OF THE TERMS OF THIS AGREEMENT; ANY MAIL CENTER OPERATOR WHO CANNOT OR WILL NOT AGREE TO ALL TERMS HEREIN MUST EXIT OUT OF THE AGREEMENT REVIEW AND ACCEPTANCE PROCESS IMMEDIATELY, AND THEREAFTER MAY NOT CONTINUE TO USE OR OFFER ANY ATMB SERVICES COVERED BY THIS AGREEMENT WITHOUT FIRST AGREEING TO ALL OF THE TERMS SET FORTH HEREIN.
IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF SOMEONE ELSE, WHETHER AN EMPLOYER, A CUSTOMER, A CLIENT OR ANY OTHER THIRD PARTY, YOU MUST BE PREPARED TO DEMONSTRATE TO ATMB THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF AND ACCEPT THIS AGREEMENT FOR THAT THIRD PARTY AS THE OPERATOR; PROVIDED, THAT ATMB IS NOT UNDER ANY OBLIGATION TO REQUEST SUCH PROOF, AND ATMB WILL BE ENTITLED TO ASSUME THAT IF YOU ACCEPT THIS AGREEMENT ON AN OPERATOR’S BEHALF YOU HAVE BEEN AUTHORIZED TO DO SO, AND YOU HAVE THE RIGHT AND ABILITY TO BIND THE OPERATOR TO THE TERMS OF THIS AGREEMENT.
This Agreement, which sets forth the terms by which Operator can access and use the Services, and offer the Services to Operator’s Renters, is effective as of the date that this Agreement is accepted by Operator or on Operator’s behalf (the “Effective Date”). Operator, by accepting this Agreement, agrees as follows:
1. Background on the Services.
1.1 Role of Mail Center Operators. ATMB provides the Services via a software platform that enables Renters to view and manage their mail online; however, in order for a Renter’s mail to be accessible online, it must be scanned and uploaded by a Mail Center Operator that is authorized to use the Services, to receive physical mail on behalf of its Renters and to provide the Services to its Renters. For the avoidance of doubt, ATMB does not take any part whatsoever in the physical handling of any mail, and ATMB has no control over the receipt, delivery and distribution of physical mail, its assignment to mailboxes, or its scanning or other handling for purposes of the Services. Operator acknowledges that in cases where mail is not properly assigned, scanned, or otherwise handled, ATMB is not and will not be liable whatsoever to Operator, the Renter, or any third party. The specific mail-related services that ATMB offers are identified in Section 3 below.
1.2 Additional Services. From time to time during the Term of this Agreement, ATMB may expand or modify the Services by offering new, additional or modified products or services (“Additional Services”) that ATMB is including as part of the Services. Occasionally, these Additional Services will be subject to additional terms and conditions of use (“Additional Terms”), and ATMB will present any such Additional Terms in conjunction with its introduction of the applicable Additional Services, and unless the Additional Services are optional (in which case Operator will be required to separately accept the Additional Terms prior to any use of these optional Additional Services), any Additional Terms that ATMB promulgates will automatically be binding on Operator, and will hereby be deemed incorporated into this Agreement (and the Additional Services will similarly be deemed incorporated into the definition of “Services” as used herein) by this reference. If Operator does not agree to the Additional Terms, then Operator’s sole recourse will be to terminate this Agreement and cease all use of the Services.
1.3 Changes to Services. Operator also understands and agrees that ATMB reserves the right, at any time and without liability, to change the features and functionality of the Services, which changes might include, without limitation and by way of example only, changing or removing features, products or Service items, or changing the fees charged for certain features of the Services. ATMB will use commercially reasonable efforts to provide Operator with prior notice of any such changes made during the Term hereof, but will have no liability to Operator for any failure to do so. Where Operator does not agree to a particular change, ATMB will use reasonable efforts to continue to provide the Services to Operator without such change; however, if removing such change from the Services provided hereunder is not feasible for ATMB, the Operator’s sole course of action will be to stop using the Services and terminate this Agreement in its entirety under Section 2.1 below. Notwithstanding the foregoing, ATMB will give Operator 30 day’s prior notice of any increase to the fees that ATMB charges hereunder, by continuing to use the Services more than 30 days after ATMB provides such notice, Operator will be deemed to have accepted and agreed to ATMB’s increased fees.
2. Term and Termination.
The term of this Agreement (the “Term”) will begin on the Effective Date and continue until terminated as set forth herein; provided, that in addition to and without limiting the parties’ termination and related rights set forth below, ATMB may, without prior notice to Operator, suspend Operator’s access to and use of the Services at any time if ATMB believes that Operator or Operator’s use of the Services poses a security risk or violates, misappropriates or infringes the rights of ATMB or any third party. Upon any such suspension, Operator will cooperate in good faith with ATMB to identify the cause of the issue giving rise to the suspension, and (without limiting any of ATMB’s other rights, including but not limited to any termination rights set forth below) no suspension will be lifted until Operator can demonstrate to ATMB’s reasonable satisfaction that Operator has removed or otherwise remedied the issue or issues giving rise to the suspension.
2.1 Termination by Operator. Operator may terminate this Agreement at any time by providing ATMB with at least 30 days’ prior written notice of termination; Operator understands that ATMB requires not less than 30 days’ prior notice of termination in order to allow for the transition of Renters to another Mail Center Operator, and Operator acknowledges that ATMB and its Renters will be immediately and materially harmed by any termination of this Agreement by Operator on less than 30 days’ prior notice. In addition, notwithstanding the timing of any notice to terminate by Operator hereunder, termination of this Agreement will not be final until Operator has, to ATMB’s satisfaction, confirmed Operator’s intent to terminate the account, as well as the identity and authorization of Operator’s representative who is requesting the termination. Once ATMB notifies Operator of termination or otherwise approves Operator’s notice of termination (including, without limitation, by indicating such termination within or using such means as may be available from the Services), Operator’s account will go into “Closed” status. Operator will no longer incur periodic charges once its account is in “Closed” status. In the event that Operator should attempt to terminate this Agreement on less than 30 days’ prior notice, then in addition to any and all other amounts that may be due to ATMB hereunder upon such termination (including, without limitation and for the avoidance of doubt, any Early Terminated Mailbox Fees or other Miscellaneous Charges, as such terms are defined in Section 3.2 below, that may be or become payable as a result of the timing of Operator’s termination), Operator will be obligated to pay ATMB, as liquidated damages and not as a penalty, a $5,000 early termination fee, which ATMB will charge to Operator in accordance with Section 3 below.
2.2 Termination by ATMB. ATMB may, at its sole discretion, suspend Operator’s access to and use of the Services, or cancel the Services and terminate this Agreement in its entirety, immediately (subject only to the cure period provided under clause 2.2(e) below) at any time for any or no reason, and termination will be effective immediately upon delivery of notice of termination. Without limiting the foregoing, ATMB may terminate or suspend Operator’s or any Renter’s right to use the Services for the following reasons (as applicable):
- (a) Operator fails to provide (or ATMB is unable to validate) correct and accurate contact and personal information and any supporting documentation that ATMB requires of all Operators and Renters, or complete and accurate responses to all information required during the account registration process, or at any time thereafter while this Agreement remains in effect;
- (b) Operator’s behavior (including the behavior of any Operator employees, contractors, agents or other representatives) towards ATMB employees, Renters or any related third parties is offensive, abusive, violent, threatening or disruptive;
- (c) Operator fails to cooperate or provide information in connection with any investigation undertaken by or on behalf of a local, state or federal governmental agency;
- (d) Operator violates any provision of this Agreement, which will include a breach of any representations or warranties made by Operator hereunder as well as any failure to pay fees due hereunder (as described in more detail below), or Operator at any time fails to adhere to any other terms and conditions posted by ATMB from time to time during the Term hereof;
- (e) Operator misrepresents amounts due to ATMB hereunder (whether by inaccurately reporting mailboxes assigned to Renters, incorrectly accounting for other Services provided, or otherwise), or fails to pay any fees owed hereunder when due, which nonpayment continues for more than two business days after ATMB provides Operator with written notice thereof; or
- (f) Operator fails to abide by the laws of its local postal agencies, government agencies or other applicable regulatory or supervisory bodies, or violates any other laws applicable to Operator’s operation as a Mail Center Operator.
2.3 Effect of Termination. If ATMB terminates or suspends Operator’s right to use the Services for any of the specific reasons identified above, Operator will not be entitled to any credit or refund of unused balance in its account, and Operator may be obligated to make additional payments to ATMB as a result of such termination, such as (by way of example only) any liquidated damages that may be due under Section 2.1 or Section 6.2) . In addition to terminating or suspending Operator’s account (whether for reasons identified above or for any other reason), ATMB reserves its right to take appropriate legal action and seek all available remedies, including without limitation civil, criminal, and injunctive redress. Where ATMB has required a Security Deposit (as defined in Section 3.7 below), retainer or other form of deposit or prepayment intended to secure Operator’s performance of this Agreement or protect ATMB against any Operator breach or default hereunder, ATMB will be entitled to apply such Security Deposit or other payment against any amounts owed by Operator upon or as a result of termination of this Agreement, and against any losses, expenses, damages or other costs incurred by ATMB in connection with or as a result of any breach or default by Operator hereunder.
2.4 Renter Terminations. Without limiting any of Operator’s obligations to ATMB with respect to Renter terminations under Section 3 below, Operator understands and agrees that Operator (and, for clarity, not ATMB) will be obligated to retain (and will in fact retain) secure copies of the identification materials and verification information that Operator is required to obtain from each Renter, as described in more detail in Section 6.1 below.
3. Services and Fees.
3.1 Notice and Acknowledgement of Fees. In the ATMB email to Operator that provided access to ATMB’s Mail Center Operator registration process (which email may have included links to ATMB’s signup and/or “quick start” web pages), ATMB also notified Operator of the applicable Subscription Fee, Mailbox Fees and applicable processing fees for each Assigned Mailbox (as such terms are defined below). By entering into this Agreement, Operator is confirming its receipt and understanding of, and its agreement to, those fees, and Operator will be responsible for paying ATMB fees for all digital mailboxes assigned to its Renters, and for Operator’s and its Renters’ use of other Services, as set forth in this Section 3.
- (a) “Assigned Mailbox” means a digital mailbox on ATMB’s platform that has been assigned to a Renter.
- (b) “ATMB Merchant Services” means those merchant processing services used by ATMB that enable ATMB to securely accept transaction payments from its customers (including, for the avoidance of doubt, its Mail Center Operator customers) via credit card, debit card or other available means. ATMB may, in its sole discretion, provide written approval (email to suffice) for Operator to use its own merchant services; absent such approval, however Operator will be obligated to use the ATMB Merchant Services for collection of all Renter payments hereunder; provided, that if Operator is approved to use its own merchant services, Operator will be subject to those additional terms set forth in Section 3.6 below.
- (c) “ATMB Renter” means each Renter that (a) registers for the Services directly with ATMB (e.g., through a link provided on ATMB’s or an ATMB affiliate’s website, or by responding to an ATMB email or advertisement), and (b) in the Renter registration process, selects a location operated by Operator for the Renter’s physical mailbox and/or postal mailing address. By contrast, “Operator Renter” means each Renter that receives access to the Services and/or has an ATMB digital mailbox assigned by Operator or directly from any website, portal or other means of online access owned or controlled by Operator.
- (d) “Early Terminated Mailbox” refers to an Assigned Mailbox that has been assigned to an ATMB Renter and does not remain assigned to that ATMB Renter for at least the Minimum Mailbox Term.
- (e) “Early Terminated Mailbox Fee” means the amount that will be payable by Operator for an Early Terminated Mailbox, and will be determined by multiplying the Mailbox Fee by the number of full calendar months that the Early Terminated Mailbox was assigned to its Renter, and then subtracting that amount from the Annual Mailbox Fee.
- (f) “Mailbox Fee” means the monthly fee payable by Operator hereunder for each Assigned Mailbox, and the “Annual Mailbox Fee” means the Mailbox Fee multiplied by 12. Mailbox Fees charged to Operator will be pro-rated by ATMB for each Assigned Mailbox (if any) that was not assigned to a Renter for the entire calendar month for which the Mailbox Fee is due. ATMB’s Mailbox Fees are subject to change during the Term hereof, as described in Section 1.3 above and in Section 9.4 below.
- (g) “Minimum Mailbox Term” means, with respect to each Assigned Mailbox, a period of six months from the first date that the Assigned Mailbox is assigned to a Renter, or if longer, the initial term of a Renter’s agreement for the Services (as set forth under the applicable terms and conditions described in Section 5.5 below).
- (h) “Miscellaneous Charges” means, with respect to any calendar month during the Term, any applicable Renter Refunds or Early Terminated Mailbox Fees, together with any and all other fees, charges, or costs (i.e., other than the Mailbox Fees and the Subscription Fee) that may be due to ATMB under the terms of this Agreement, including, without limitation and for the avoidance of doubt, any liquidated damages that ATMB may be entitled to charge and collect hereunder.
- (i) “Monthly Statement” means an earnings statement that ATMB will prepare on a monthly basis during the Term hereof, showing the total revenue collected and actually received by ATMB from Renters since ATMB’s previous Monthly Statement, together with the applicable monthly processing fee (as described in clause (ii) of Section 3.2(j) below, and as identified to Operator in the ATMB notice described in Section 3.1 above).
- (j) “Net Earnings” means ATMB’s total monthly revenue collected and actually received from Renters, as reflected on the applicable Monthly Statement, less (i) the amount set forth on that month’s Operator Invoice, (ii) the monthly processing fee for ATMB’s collection and processing of Mailbox Fees and other Renter payments, and (iii) any Miscellaneous Charges incurred by Operator in the previous month. In the event that the Net Earnings for any calendar month should equal less than zero, that shortfall (i.e., the amount by which the Operator Invoice, the processing fee and any Miscellaneous Charges exceed the total revenue collected) is referred to herein as a “Net Earnings Deficit.”
- (k) “Non-Paying Renter” means any Renter who has its credit card declined when ATMB (or, if applicable under Section 3.6(a) below, Operator) attempts to collect payment for an Assigned Mailbox or other Services by charging such Renter’s credit card, following ATMB’s submission of invoices Renters under Section 3.4(a) below, as well as any other Renter who fails to timely pay for Services when due hereunder.
- (l) “Operator Invoice” means a monthly invoice that ATMB will generate and submit to Operator on the first day of each calendar month during the Term, and that will reflect the monthly Subscription Fee and the total Mailbox Fees due to ATMB for all Assigned Mailboxes active at any point during the previous month.
- (m) “Subscription Fee” means the monthly subscription fee that Operator pays for its access to and use of the Services, as such fee was originally identified to Operator in the ATMB notice described in Section 3.1 above.
- (n) “Renter Refunds” has the meaning given to it in Section 3.5(a)below.
3.3 Fees Generally.
- (a) Fees to ATMB. ATMB’s compensation for the Services provided to Operator and its Renters hereunder consists of: the aggregate monthly Mailbox Fees for all Assigned Mailboxes (determined on the first day of each calendar month and charged to Operator in accordance with the terms hereof); the monthly Subscription Fee; any applicable monthly processing fee; and the Miscellaneous Charges (if any). In connection with its acceptance of this Agreement and its access and use of the Services, Operator has provided ATMB with an Operator credit card or other electronic payment information, which Operator will ensure remains active during the Term and with a credit limit or balance sufficient to pay all amounts that Operator is obligated or may become obligated to pay hereunder, and which Operator hereby expressly authorizes ATMB to charge when such amounts are due and payable by Operator in accordance with the terms hereof.
- (b) Fees to Operator. As consideration for entering into this Agreement and providing the Services to its Renters in accordance with the terms hereof, Operator will be paid each month’s Net Earnings (if any) by ATMB, calculated as described in Section 3.4(c) below, and Operator will also be entitled to retain (subject to any applicable Miscellaneous Charges that may be owed to ATMB from time to time) any and all amounts that Renters pay directly to Operator for products or services that Operator sells or provides to those Renters independent of the Services provided under this Agreement.
- (c) Currency; Taxes; Partial Months. Unless otherwise noted, all fees are in U.S. dollars. Operator will be liable for all taxes on the Services provided under this Agreement (excluding only those taxes that are based on ATMB’s net income). Where applicable, fees for partial calendar months will be charged on a prorated basis.
- (d) Certain Other Renter Revenue. In the event that ATMB’s total monthly revenue collected from Renters should include payments for additional services charged by Operator (which services might include, without limitation, storage, remailing, photocopying or any other Mail Center Operator services that Operator may offer to its Renters), then such revenue will be reflected on the applicable Monthly Statement and included in ATMB’s calculation of Net Earnings related thereto; provided, that where ATMB collects payment from Renters for any such additional services offered by Operator: (i) the fees charged by Operator for such additional services will be reasonable and consistent with industry standards and amounts charged by other Mail Center Operators for the same or similar services; (ii) Operator will be responsible for payment of any refunds, chargebacks, discounts, credits or other fee reversals or deductions made to a Renter who disputes Operator’s charge for any such additional services; and (iii) ATMB will be entitled to retain a reasonable amount of the fees paid by Renters for these additional services, as a reserve that ATMB will be entitled to use in the event of any such Renter disputes, which amounts held in reserve will be released to Operator from time to time, as Renters who paid for the additional services are no longer able (or in ATMB’s reasonable opinion, no longer likely) to challenge the charges. In addition, ATMB will be entitled (where applicable) to apply its processing fee when collecting this additional revenue from Renters for payment to Operator.
- (e) No Refunds. To the maximum extent permitted by law, all Renter fees, once paid, will be nonrefundable; however, ATMB may elect in its sole discretion to grant a refund or credit in extenuating circumstances (for example, to correct any errors made by ATMB), and any such refund or credit granted by ATMB will be subject to ATMB’s recoupment rights under Section 3.5 below.
3.4 Invoicing and Collection of Fees; Payments to Operator.
- (a) Invoices. On the first day of each calendar month, ATMB will: (i) generate and submit an invoice to each Renter for the fees payable by such Renter for use of and access to its digital mailbox (billed and payable in advance) and for any fees owed by such Renter for ancillary services provided in the previous calendar month (billed and payable in arrears); and (ii) submit the Operator Invoice to Operator; provided, that if Operator has deactivated ATMB’s Renter billing process (which deactivation will require ATMB’s prior approval, to be given in its sole discretion) for one or more Renters (such Renters, the “Non-Invoiced Renters”), then those Non-Invoiced Renters will not be invoiced and charged by ATMB, and instead Operator will be responsible for all payments due to ATMB from such Non-Invoiced Renters, and ATMB will only generate and submit invoices to, and collect payments from, Operator for the Services used by Non-Invoiced Renters.
- (b) Collection of Fees. ATMB will charge the credit cards of all Renters on a monthly basis, excluding only the Non-Invoiced Renters, if any (for whom Operator will be responsible for invoicing and collections, as described above), and each Renter’s credit card will be charged (in accordance with Section 3.4(a)(i) above) for the Renter’s Assigned Mailbox(es) and for any other Services purchased by such Renter (including any ancillary fees and charges for Operator services, as well as all applicable taxes). If Operator is using the ATMB Merchant Services, then ATMB will be responsible for collecting payments from Renters, and ATMB will pay Operator its share of such amounts on a monthly basis in accordance with Section 3.4(e) below. If, on the other hand, ATMB has approved Operator’s use of its own merchant services, then Operator (and not ATMB) will be responsible for processing Renters’ credit cards and collecting fees from Operator’s Renters, Operator will pay ATMB the amount due on each Operator Invoice provided under Section 3.3(a) above, and ATMB will not be obligated to make any payments to Operator hereunder. In addition, and without limiting the foregoing, if Operator has deactivated ATMB’s Renter billing process and is responsible for payments from Non-Invoiced Renters in accordance with Section 3.4(a) above, then (without limiting Operator’s obligation to pay Mailbox Fees for all Assigned Mailboxes, as reflected on the applicable Operator Invoice) ATMB will not collect fees from Non-Invoiced Renters (but only from Operator and those Renters, if any, who are not Non-Invoiced Renters), and Operator will be responsible for paying ATMB all fees due from the Non-Invoiced Renters, and Operator will bear all risk of nonpayment or default by such Non-Invoiced Renters.
- (c) Terminated Renters. Operator will be responsible for removing (or “unassigning”) Assigned Mailboxes from Renters when they terminate their use of the Services or otherwise no longer are entitled to access their Assigned Mailboxes, and, except as is otherwise expressly set forth in Section 3.5(b) below, Operator will be responsible for the payment of Mailbox Fees for all Assigned Mailboxes (including, for clarity, any and all inactive Assigned Mailboxes that Operator failed to timely unassign in accordance with the terms hereof), whether or not Operator is using the ATMB Merchant Services, whether or not Operator has deactivated ATMB’s Renter billing process, and irrespective of whether and to what extent Operator has collected and actually received payment from any Non-Invoiced Renters or other Renters from whom Operator is responsible for collecting payment hereunder.
- (d) Monthly Statements and Net Earnings. ATMB will use commercially reasonable efforts to prepare the Monthly Statement within ten business days after the end of the applicable calendar month, and will then use the Monthly Statement as the basis for determining the Net Earnings for that month. Once ATMB has prepared the Monthly Statement and determined the Net Earnings, ATMB will notify Operator of the Net Earnings to be paid to Operator for that calendar month (or, if applicable, of the amount of the Net Earnings Deficit), and ATMB will provide Operator with the Monthly Statement and with reasonable documentation of ATMB’s Net Earnings calculations; provided, that if Operator is not using the ATMB Merchant Services, then ATMB will not provide Operator with a Monthly Statement or a calculation of Net Earnings, and each month Operator will instead be obligated to pay to ATMB the amount of that month’s applicable Operator Invoice.
- (e) Payments, Deficits and Disputes.
- (i) Payments. After providing Operator with the Monthly Statement and Net Earnings calculations described in Section 3.4(d), above, unless there is a Net Earnings Deficit (in which case ATMB will proceed as set forth in Section 3.4(e)(ii) below), ATMB will make an electronic payment to Operator for the Net Earnings amount. ATMB will exercise commercially reasonable efforts to make this payment on or prior to the 15th day of each calendar month during the Term. Operator will be solely responsible for ensuring that its electronic payment information and applicable bank account(s) remain current at all times during the Term, and ATMB will not be responsible for any delay or other errors in payment that result from Operator’s failure to do so. The foregoing notwithstanding, if Operator is not using the ATMB Merchant Services, then (as noted above), Operator will not receive a Monthly Statement or a calculation of Net Earnings, and Operator will be obligated to make payment to ATMB of (and Operator hereby authorizes ATMB to charge Operator’s credit card for) the amount of each month’s Operator Invoice, which is due and payable upon receipt,
- (ii) Deficits. In the event of any Net Earnings Deficit, ATMB will, at its sole election and upon notice to Operator of such election, either charge the credit card on Operator’s account for the amount of the Net Earnings Deficit (and Operator hereby authorizes ATMB to charge Operator’s credit card for such amount), or use such amount to offset and reduce any Net Earnings payable in a subsequent month.
- (iii) Disputes. Operator will have ten days after its receipt of each Monthly Statement hereunder in which to notify ATMB in writing of any objection, disagreement or other dispute regarding the Monthly Statement or its applicable Net Earnings calculations, otherwise Operator will be deemed to have accepted the Monthly Statement and Net Earnings calculations and will have irrevocably waived any objections thereto.
- (f) Payment Terms and Late Fees. If Operator is not using the ATMB Merchant Services, then each Operator Invoice hereunder will be due and payable upon receipt, and Operator authorizes ATMB to charge Operator’s credit card for the amount of each Operator Invoice. All other amounts payable by Operator hereunder (which, if Operator is using the ATMB Merchant Services, will be all amounts payable by Operator hereunder) will be due five calendar days after the end of the applicable month, and Operator authorizes ATMB to charge Operator’s credit card for any amount that has not been paid by Operator on or before the fifth day after the end of such applicable month. In the event that ATMB is unable to charge Operator’s credit card for any unpaid amount hereunder, the unpaid amount will become past due on the sixth day after the end of such applicable month, and will begin to accrue interest at a rate of one and a half percent (1.5%) per month (or the highest rate allowed by law, if lower), beginning from the date first due until paid in full. Operator will pay all collections costs, including without limitation reasonable attorney’s fees and costs, incurred by ATMB as a result of any nonpayment or late payment by Operator hereunder. All Operator payments will be applied first to any past due amounts, including, but not limited to, late fees, collection costs and attorney’s fees and costs; second, to any Services billed in arrears or advance for which payment is then due; and finally, to any other fees or Services that have been incurred during the billing cycle.
3.5 Renter Disputes, Refunds and Grace Periods.
The provisions of this Section 3.5 will only apply if Operator is using the ATMB Merchant Services, and will immediately and automatically cease to apply to Operator if ATMB should approve Operator’s use of its own merchant services. In addition, the provisions of this Section 3.5 will not under any circumstances apply to disputes or nonpayment by any Non-Invoiced Renters, all of which will be Operator’s sole responsibility.
- (a) Renter Disputed Charges. From time to time, where a Renter (via its credit card company) is able to successfully dispute a transaction that already had been approved and paid (and therefore included in prior Net Earnings calculations), the credit card company will withdraw the amount paid for the disputed transaction (the “Renter Refund”) from ATMB’s bank account. In the event of any such Renter Refund affecting amounts previously included in ATMB’s calculation of Net Earnings, ATMB will notify Operator of the dispute, and will include the Renter Refund as a Miscellaneous Charge for purposes of ATMB’s next calculation of Net Earnings under Section 3.4(c) above.
- (b) Non-Paying Renters; Grace Periods. Each month, ATMB will notify Operator of any Non-Paying Renters, and ATMB will use commercially reasonable efforts to provide Operator with such notice within five business days after ATMB determines that a Renter has become a Non-Paying Renter. If the Non-Paying Renter is an Operator Renter, Operator may determine in its sole discretion (and will have sole responsibility and liability for such determination) whether and when to unassign such Non-Paying Renter’s Assigned Mailbox; however, if the Non-Paying Renter is an ATMB Renter, Operator will ensure that the Non-Paying Renter’s Assigned Mailbox remains assigned to such Non-Paying Renter for a period 60 days from the date that payment was due; provided, that the Non-Paying Renter will not be entitled to access the Assigned Mailbox or any other Services unless the Non-Paying Renter should make payment in full of its unpaid balance (including any accrued interest, late fees, or other amounts) prior to expiration of this 60-day period. Operator will continue to be charged (and will remain obligated to pay) the Mailbox Fee for the Assigned Mailbox during this 60-day period; however, upon expiration of this 60-day period, if the Non-Paying Renter has not cured its default by making payment in full of its unpaid balance, then ATMB will credit to Operator the two months of Mailbox Fees that were paid by Operator during the 60-day period.
3.6 Operator Merchant Services. As noted in Section 3.2(b) above, where ATMB has given Operator written approval to use Operator’s own merchant services, such use will be expressly conditioned on the following additional terms, conditions, and restrictions:
- (a) Collection of Renter Fees and Management of Assigned Mailboxes. If Operator is using its own merchant services, then Operator will be responsible for administering the assignment of digital mailboxes to Renters, invoicing and collecting fees from Renters, and managing Renter terminations (including timely removal of Assigned Mailboxes in order to avoid unnecessary Mailbox Fee charges under Section 3.4 above). Operator understands that by using its own merchant services, Operator will bear all payment risk for Assigned Mailboxes; as described above, ATMB will charge Operator the Mailbox Fee for every Assigned Mailbox, and Operator will be obligated to pay this Mailbox Fee in full whether or not Operator has received payment from all Renters.
- (b) No Refunds or Credits. By using its own merchant account, Operator will not receive, and will not be entitled to receive, any refunds or credits for disputes that may arise hereunder, or as the result of any disputes between ATMB and a Renter, or between Operator and a Renter, and to the extent that ATMB should receive any such credits or refunds, ATMB will have no obligation to share such credits or refunds, or otherwise provide Operator with any credit, refund or payment as a result thereof.
- (c) Renter Dispute and Refund Provisions Not Applicable. As noted above in Section 3.5, Sections 3.5(a) and 3.5(b) will not apply to any Operator that has been approved to use its own merchant services, or to any Non-Invoiced Renters under any circumstances.
3.7 Security Deposit; Personal Guarantee; Certain Ancillary Fees.
- (a) ATMB may require that Operator provide a security deposit (the “Security Deposit”), in order to initiate the Services hereunder, to be held by ATMB as security for Operator’s faithful and timely performance of its obligations under this Agreement. In addition, ATMB may require that Operator provide a Security Deposit (or an increase to the Security Deposit then held by ATMB) at any time during the Term (including, for the avoidance of doubt, where Operator was not previously required to provide any Security Deposit), where ATMB has reasonable concerns regarding, or reasonable doubt about, Operator’s ability to continue to meet its payment obligations under this Agreement. ATMB will notify Operator in writing of any such requirement for a new Security Deposit or an increase to Operator’s Security Deposit amount, and Operator will promptly provide ATMB with the requested amount.
- (b) If Operator fails to pay any amounts due to ATMB hereunder, or otherwise defaults under this Agreement, ATMB may use, apply or retain all or any portion of Operator’s Security Deposit for the payment of any amount due to ATMB, or to reimburse or compensate ATMB for any liability, expense, loss or damage which ATMB may suffer or incur by reason thereof. If ATMB uses or applies all or any portion of the Security Deposit, then Operator will, within 10 days after ATMB’s written request therefor, provide ATMB with money sufficient to restore the Security Deposit to the full amount then required by ATMB.
- (c) Within 30 days after the expiration or termination of this Agreement, ATMB will return to Operator that portion (if any) of the Security Deposit not used or applied by ATMB as permitted hereunder, including (without limitation) against any amounts then due from Operator. No part of the Security Deposit will be considered to be held in trust, to bear interest or to be prepayment for any monies to be paid by ATMB under this Agreement.
- (d) In addition to and without limiting the foregoing, where Operator is owned and operated by a corporation, limited liability company or other business entity, ATMB may require (by written notice provided to Operator at or any time after the Effective Date hereof) that Operator’s payment obligations hereunder be personally guaranteed in writing by one or more individuals having at least a 5% ownership interest in Operator.
4. Intellectual Property Rights.
4.1 Ownership. All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “ATMB Materials”) that Operator accesses, sees, reads or otherwise uses in connection with the Services are owned by ATMB or its licensors. The ATMB Materials are protected in all forms, media and technologies, whether now known or hereinafter developed. Except as may be required by or incidental to its use of the Services, Operator may not copy, download, use, redesign, reconfigure, or retransmit any ATMB Materials without ATMB’s express prior written consent. Any use of ATMB Materials, other than as permitted herein, is expressly prohibited without the prior written consent of ATMB. The service marks and trademarks of ATMB, including without limitation ATMB’s name and the ATMB logos, are trademarks owned by ATMB. Any other trademarks, service marks, logos and/or trade names appearing via the Services are the property of their respective owners. Excluding any reproduction that may be automatic and incidental to use of the Services, Operator may not copy or use any of these marks, logos or trade names without the express prior written consent of their owner. The ATMB Materials will include any marketing or promotional materials for ATMB’s digital mailboxes and other online mail management services (the “ATMB Marketing Materials,” including, where applicable, any such materials that have been customized or otherwise tailored for Operator) that Operator publishes on its website or in any of its marketing materials in order to promote that is Operator offering digital mailboxes or other online mail management services.
4.2 License Rights. Subject to Operator’s continued compliance with all of the terms and conditions of this Agreement, ATMB grants Operator the right and license during the Term to access and use the Services, including any ATMB dashboard or other interface provided by ATMB to enable or otherwise facilitate Operator’s access to and use of the Services for purposes of providing digital mailboxes and other online mail management services to its Renters. This Agreement does not: (a) provide Operator with any right or license (whether expressly, by implication, by estoppel, or otherwise) under any of ATMB’s intellectual property rights other than to access and use the Services during the Term solely in the manner and solely to the extent authorized herein; or (b) impair, restrict or in any way limit the right of ATMB to develop, make, use, procure, protect, market and/or exploit any products or services, or to provide such products or services to other Mail Center Operators and their Renters. ATMB reserves all rights not expressly granted to Operator herein.
4.3 Feedback. Operator may, but is not obligated to, provide ATMB 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) ATMB will have no obligation to review, consider, or implement any Feedback that Operator provides; and (c) ATMB and its successors and assigns will have, and Operator hereby irrevocably grants and agrees to grant to ATMB 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 ATMB or by any third party.
4.4 Confidentiality. Operator will protect and preserve as confidential the non-public terms of this Agreement, as well as the Services and pricing provided to Operator and its Renters hereunder, and ATMB will preserve the confidentiality of any identity verification submitted by Operator as required by law, as well as all digital mail delivered to Renters or otherwise processed on any Renter’s behalf. ATMB also requires its Mail Service Operators to comply with all legal requirements relating to the confidentiality and handling of mail; in the event of Operator’s violation of those requirements, a Renter’s sole recourse will be against the Operator directly, and not against ATMB or any of its officers, managers, members, employees, contractors, affiliates, parents, subsidiaries, assigns, representatives or agents. Operator further understands and agrees that ATMB will cooperate with law enforcement and governmental authorities, and that ATMB may be required or otherwise deem it necessary or advisable to disclose Operator’s or a Renter’s confidential information in response to any subpoena, order, demand or other request therefor.
5. Certain Obligations and Rights of the Parties.
5.1 Suspicious Activities; Unauthorized Mail. Operator must immediately notify ATMB in writing of any fraudulent, unauthorized, illegal or suspicious use of the Services or any other breach of security or unauthorized or illegal activity that Operator reasonably suspects. In the event that postal mail content belonging to a Renter outside of Operator’s or its Renters’ accounts appears in Operator’s account (or in the account of any of Operator’s Renters) by means other than a transfer from the addressed user (hereafter “Unauthorized Mail”), Operator agrees not to request any action with respect to such mail, and not to perform or enable any Renter request with respect to such mail, other than to alert ATMB at email@example.com that Operator has received Unauthorized Mail. Operator further agrees not to view, read, copy, print, or otherwise distribute, disseminate, disclose, or use for any purpose any content or other information on or within a piece of Unauthorized Mail. Operator agrees that violation of this Agreement may expose Operator to legal liability, both criminal and civil, and monetary damages, as well as termination of this Agreement.
5.2 Service Errors. In the event that Operator should become aware of any incorrectly delivered mail, or any other error that arises from the Services or from ATMB’s platform (a “Service Error”), Operator will promptly notify ATMB and provide ATMB with a reasonably detailed description of the Service Error, so that ATMB can investigate and begin steps to address the Service Error (where the Service Error arises from ATMB’s systems or any systems within ATMB’s control). Similarly, ATMB will promptly notify Operator should ATMB become aware of any Service Error arising from ATMB’s systems or any systems within ATMB’s control, and will inform Operator of the steps that ATMB will be taking to address the Service Error, as well as (if known) an estimate for when the Services Error will be resolved.
5.3 Assigned Mailbox Exclusivity. If Operator is promoting or at any time during the Term hereof has used any ATMB Marketing Materials to promote digital mailboxes or other online mail management services to Operator’s customers, Operator will ensure that all of Operator’s Renters are assigned only to digital mailboxes on ATMB’s platform, and not to digital mailboxes provided by any third party. Operator understands and specifically agrees that it will be a material breach of this Agreement, obligating Operator to pay ATMB, as liquidated damages and not as a penalty, the amounts set forth in Section 6.2 below, should Operator, while using or after having used any ATMB Marketing Materials, assign any Renter to any third-party digital or virtual mailbox.
5.4 Service of Process. In certain circumstances, such as (by way of example only) where permitted by applicable law or where requested or authorized (whether lawfully or not) by a Renter, a process server may attempt to serve Operator or a Renter by mail, or to serve ATMB as a “mail agent” on Operator’s or a Renter’s behalf. Operator will be entitled to decide, in its sole discretion, whether or not to agree to accept such service for itself or on any Renter’s behalf; however, ATMB does not authorize Operator to accept service on ATMB under any circumstances, and ATMB will have no liability whatsoever for any acceptance or deemed acceptance of service of process by Operator, and Operator agrees to release, and (as set forth in more detail in Section 8 below) to indemnify and hold ATMB harmless from any and all claims arising out of such attempted or accepted service.
5.5 Terms and Conditions, Privacy Rights and Compliance Obligations.
5.6 ATMB Rights and Remedies. . If ATMB reasonably suspects that any Renter’s contact information or payment method is fraudulent, or that Operator or any Renter is using or attempting to use the Services for any unlawful, fraudulent, or illegal activities, or for any activities prohibited by ATMB’s Digital Mailbox Renter Agreement, ATMB may immediately suspend or terminate the Renter’s account or access to the Services, or (where Operator is responsible for or complicit in any such activities) suspend or terminate this Agreement and Operator’s access to the Services without refund. ATMB may also turn over information concerning the Renter or Operator (as applicable) 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 ATMB harmless from and against any and all liability, claims, damages, losses or cause of action arising from ATMB or Operator’s inspection of a Renter’s mail or from the release of information regarding a Renter or a Renter’s use of the Services to such authorities, or otherwise as required by law.
6. Representations and Warranties; Disclaimers.
6.1 Representations and Warranties. Operator represents, warrants, and covenants to ATMB as follows, and acknowledges that any breach of the following representations, warranties or covenants shall entitle ATMB to seek injunctive relief (in any instance where monetary damages will not provide a sufficient remedy), as well as available monetary damages and payment of ATMB’s attorneys’ fees and costs, at ATMB’s sole discretion:
- (a) Operator has the legal right and authority to enter into this Agreement, the person executing this Agreement on behalf of Operator is authorized to do so, and Operator’s entry into and performance of this 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, all information that Operator provides to ATMB and to any Renter will be accurate and complete in all material respects, and Operator will ensure that each Renter’s contact and billing information is correct at all times during the Term;
- (c) Operator is approved as a Commercial Mail Receiving Agency by the United States Postal Service (or “USPS”) (if Operator is based in the United States or any jurisdiction subject to U.S. federal law), or otherwise has all necessary approvals, licenses, permits and/or other legal rights required by the laws of Operator’s jurisdiction in order to receive, process, and manage mail on behalf of Renters, and Operator is and during the Term will remain in good standing with the USPS or under the laws of Operator’s jurisdiction;
- (d) Operator requires each Renter to provide, and Operator obtains from each Renter, the following materials, which Operator submits (together with any and all other forms or documentation that Operator may be required to submit as a Mail Center Operator) to governmental or regulatory authorities in accordance with applicable law: (i) proof of the Renter’s identity (including a photograph of Renter) on at least one type of verifiable identification, or such greater number as may be required by applicable law; (ii) the Renter’s completed application and/or authorization to use Operator’s address, consistent with the legal requirements applicable to Operator and the jurisdiction in which Operator will be receiving the Renter’s physical mail (e.g., USPS Form 1583, “Application for Delivery of Mail Through Agent,” if Operator is based in the United States or any jurisdiction subject to U.S. federal law); and (iii) all other information and documentation that may be required by any legal requirements (whether under applicable laws, statutes, regulations, rules, manuals, or otherwise) applicable to the Renter or to Operator in its capacity as the designated recipient of the Renter’s physical mail;
- (e) Operator will retain secure digital copies (which copies will promptly be made available to ATMB upon request and to governmental or regulatory authorities when validly requested or required by applicable law) of all forms of identification provided to it by Renters, and will also record, identify by the Renter’s name, and separately retain information that is sufficient to identify the primary and secondary forms of identification provided by such Renter (the “ID Verification,” which could be, by way of example only, a driver’s license number or passport number, if a driver’s license or passport is provided as a form of identification);
- (f) If Operator is required to obtain USPS Form 1583 from any or all of its Renters, then Operator will: (i) ensure that each Form 1583 includes the complete postal address that will be used by the Renter to receive physical mail at Operator’s location, as well as ID Verification information for the Renter’s forms of identification; (ii) securely maintain duplicate copies of all completed Forms 1583 on file at Operator’s business location; (iii) upon termination of a Renter’s use of Operator’s services, write the date of termination on Operator’s copy of such Renter’s Form 1583 (which Operator will remain obligated to continue to securely maintain); and (iv) ensure that Operator’s Forms 1583, forms of identification received from Renters, and ID Verification information relevant thereto are available at all times for examination by postal representatives and postal inspectors;
- (g) After a Renter terminates its use of Operator’s services, Operator will remail or retain (if the Renter has not provided remailing information) all mail received for such Renter for at least six months after the date of such Renter’s termination; at the end of such six-month period, Operator may return to the USPS any mail addressed to such Renter that Operator is permitted by USPS regulations or applicable law to return;
- (h) Operator is not accessing or using, and will not access or use or attempt to access or use the Services for any illegal purpose or to violate any provisions of this Agreement, Operator will not disrupt, interfere with, or access in an unauthorized manner the Services or any ATMB servers, Operator is and will remain in full compliance with all applicable laws, statutes, regulations, rules and manuals, including but not limited to all local postal service regulations, in Operator’s use of the Services and performance of this Agreement, and Operator expressly authorizes ATMB to take steps necessary or advisable for its own compliance with all applicable laws, statutes, regulations, rules or manuals;
- (j) Operator is the authorized user and (if applicable) signatory to the payment mechanism used to open and maintain its account, and agrees that it is and will be responsible for any use, activity, and charges incurred by Operator and all users under its account, whether or not specifically authorized by Operator.
6.2 Liquidated Damages. Operator acknowledges that ATMB expends extensive and valuable resources and efforts in order to attract and retain ATMB Renters, and Operator will not take any actions, directly or indirectly, that are intended or that would reasonably be expected to have the effect of removing an ATMB Renter from the Services, which includes, without limitation and for the avoidance of doubt, any actions that result in an ATMB Renter becoming an Operator Renter or leaving the Services entirely. In the event of any violation of this paragraph, and in addition to and without limiting any Early Terminated Mailbox Fees or other Miscellaneous Charges that may also be due under this Agreement as a result Operator’s violation of this paragraph, or any amounts that Operator may be obligated to pay under Section 2.1 for terminating or seeking to terminate this Agreement on less than 30 days’ prior notice, Operator agrees that it will pay ATMB a fee of $100 for each ATMB Renter that changes its status or departs the Services as a result of Operator’s actions, which fee the parties are will be paid as liquidated damages and not as a penalty, and will be payable whether or not demanded, unless expressly waived in writing by ATMB.
- (a) Disclaimer of Warranties. OPERATOR UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND THAT ALL USE OF THE SERVICES IS AND WILL BE ENTIRELY AT OPERATOR’S AND ITS RENTERS’ OWN RISK. ATMB MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ATMB DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ANY OF OPERATOR’S OR ITS RENTERS’ EXPECTATIONS OR REQUIREMENTS OR THAT THE SERVICES OR ACCESS THERETO ARE PROVIDED SECURELY OR WITHOUT ERRORS OR INTERRUPTIONS. THE SERVICES ARE PROVIDED ON AN “AS AVAILABLE” BASIS AND ATMB MAKES NO WARRANTIES THAT THE SERVICES WILL BE TIMELY, ACCURATE, AVAILABLE AT ALL TIMES, OR FOR A PARTICULAR PERIOD OF TIME WITHOUT INTERRUPTIONS. ATMB IS NOT RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS RESULTING FROM USE OF THE SERVICES.
- (b) Disclaimer of Results and Performance. ATMB DOES NOT WARRANT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OF THE SERVICES, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICES. ATMB ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM ACCESS TO AND USE OF THE SERVICES, OR (III) ANY UNAUTHORIZED ACCESS TO OR USE OF ATMB’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. ATMB DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
- (c) Disclaimer of Responsibility for Conduct. ATMB IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. ATMB CANNOT AND DOES NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY OPERATOR OR BY ANY RENTER WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR ACCESSED AND USED BY OTHERS, WITHOUT PERMISSION OR AUTHORIZATION.
7. Limitation of Liability.
Operator acknowledges and agrees that ATMB is only willing to provide the Services if Operator agrees to certain limitations on ATMB’s liability to Operator and third parties, as follows:
7.1 NEITHER ATMB NOR ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, OWNERS OR AFFILIATES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, KNOWN OR UNKNOWN, RELATING TO OPERATOR’S OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICES (INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY RENTER OR OTHER USER, OR ANY DESTRUCTION OF OPERATOR’S OR ANY RENTER’S INFORMATION) WHETHER ARISING IN AN ACTION FOR BREACH OF CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY.
7.2 ATMB SHALL NOT BE LIABLE TO OPERATOR OR ANY THIRD PARTY FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY NEGLIGENT ACTS OR OMISSIONS IN COMPILING, COLLECTING, PROCESSING, COMMUNICATING OR DELIVERING MAIL OR HANDLING PHYSICAL OR DIGITAL DOCUMENTS, DIRECTLY OR INDIRECTLY. ATMB IS NOT AND WILL NOT BE RESPONSIBLE FOR MAIL FOR WHICH THE SERVICES HAVE NO RECORD OF RECEIPT.
7.3 OPERATOR ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL AMOUNT OF ATMB’S LIABILITY, IF ANY, FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, DAMAGES, OR JUDGMENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES SHALL NOT EXCEED $100.00 WITHOUT REGARD TO THE NATURE OF THE CLAIM, LOSSES OR DAMAGES INCURRED. BEYOND THAT, ATMB SHALL NOT BE LIABLE FOR ANY OTHER LOSS, CLAIM, DAMAGE, OR INJURY ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE PROVISION OF ANY SERVICES PURSUANT TO THIS AGREEMENT. IN THE EVENT OF ANY LIMIT ON OR UNENFORCEABILITY OF THE FOREGOING LIMITATION, UNDER NO CIRCUMSTANCES WILL ATMB’S LIABILITY TO OPERATOR UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY OPERATOR TO ATMB PURSUANT TO THE TERMS HEREOF.
8.1 Operator will protect, indemnify, defend, and hold harmless ATMB, its officers, managers, members, owners, employees, contractors, affiliates, parents, subsidiaries, assigns, representatives and agents (collectively, “Indemnitees”) from and against any and all claims, demands, damages, losses, judgments, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to: (a) Operator’s breach or threatened breach of this Agreement (including, without limitation, any failure by any of Operator’s employees, contractors, end users, affiliates, agents or representatives to comply with any of the terms and conditions of this Agreement); (b) Operator’s or any Renter’s use of and access to (or inability to use or access) the Services; (c) Operator’s receipt, handling and other processing of any Renter’s physical mail, including (without limitation) any failure by Operator, regardless of Operator’s reason or rationale, to conduct such handling or processing, and further including (without limitation) any loss, damage or destruction of any Renter’s mail by any cause whatsoever whether or not attributable to ATMB’s negligence or intentional act; (d) Operator’s or any Renter’s communications or transactions with any third parties in connection with any Third-Party Offers or any correspondence related thereto; or (e) the failure of any third party, USPS or any commercial delivery service to provide delivery services accurately and on time.
8.2 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 without the prior written consent of such Indemnitee, which consent will not be unreasonably withheld. 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 an 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.
9.1 Assignment. This Agreement is personal to Operator, and Operator may not assign or transfer this Agreement (or any of Operator’s rights or obligations under this Agreement) to any third party without the prior written consent of ATMB, to be given or withheld in ATMB’s sole discretion. Any attempted assignment or transfer without ATMB’s express consent will be void. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and permitted assigns.
9.3 Force Majeure. ATMB will not be responsible for any delay or failure in performance to the extent such delay or failure is caused by fire, explosion, acts of God, war, civil disturbance, acts of terrorism, pandemic, public health emergency, orders of any governmental authority, or other causes beyond ATMB’s reasonable control; provided, that (a) ATMB is without fault in causing such delay or failure, and (b) such delay or failure could not have been prevented by reasonable foresight or reasonable precautions and cannot reasonably be circumvented by ATMB through the use of alternate sources or workaround plans. ATMB will take commercially reasonable steps to eliminate as soon as practicable any delay or failure caused by any occurrence or event described in this paragraph.
9.5 Governing Law and Venue. This Agreement is to be governed by and construed in accordance with the laws of the State of Nevada, United States of America, excluding its conflict of law principles, and all claims arising out of or relating to this Agreement or the Services will be governed by U.S. Federal law and by Nevada law, without reference to any conflict of law rules, except to the extent that Nevada law is contrary to or preempted by U.S. Federal law; provided, however, that notwithstanding the foregoing, Operator’s performance of this Agreement will also be subject to and governed by the laws of the jurisdiction or jurisdictions in which Operator’s physical location or locations are located (collectively, Operator’s “Local Jurisdictions”), and if deemed necessary or appropriate by ATMB, ATMB will be entitled to enforce this Agreement under the laws of and in the courts or other adjudicatory authorities of any and all Local Jurisdictions. As further provided in Section 9.6 below (and subject to any exceptions set forth therein), all claims by Operator arising out of or relating to this Agreement 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 Henderson, Nevada, in accordance with the JAMS Streamlined Arbitration Rules & Procedures, and by executing this Agreement and 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 are expressly superseded and replaced by U.S. Federal law, Nevada law and the laws of Local Jurisdictions, as set forth above.
9.6 Dispute Resolution.
- (a) Arbitration of Disputes. ATMB 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 this Agreement. 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 9.5 above; provided, that an arbitrator will have exclusive jurisdiction to finally resolve claims not within the jurisdiction of any such small claims court.
- (b) 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”). 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 9.7 below) the Dispute Notice.
- (c) 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 Henderson, Nevada 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 9.6(b) 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.
- (d) 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 ATMB users or Operators. OPERATOR AND ATMB 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.
9.7 Notices. To be valid, all notices permitted or required under this Agreement 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 ATMB expressly acknowledges and confirms receipt. In addition, and without limiting the foregoing, ATMB will be entitled to give notice to Operator hereunder via delivery of the notice to the email address provided when Operator registered for the Service (or any subsequent email address provided by Operator when updating its contact information via the Service), and any such notice so given will be deemed delivered upon sending of the email Operator’s email address; notices given by other means will be deemed given (a) on the date delivered, if delivered by hand, (b) on the next day, if delivered by overnight courier, or (c) three business days after sending by certified or registered mail (in each case, return receipt requested, postage pre-paid). ATMB will send notices to Operator’s email or postal address on file with ATMB, and Operator will send notices to ATMB’s then-current addresses identified on the “Contact Us” page of the ATMB website or as accessible via the Services. By using the Services, Operator consents to receiving electronic communications from ATMB for any communications required or permitted under this Agreement, including notices about Operator’s and its Renters’ accounts, and information concerning the Services. Operator agrees that any notice, agreements, disclosure or other communications ATMB sends to Operator or its Renters electronically will satisfy any legal requirements for written communication.
9.8 Further Assurances. Operator agrees and covenants that at any time and from time to time it will promptly execute and deliver to ATMB such further instruments and documents and take such further action as ATMB may reasonably require (such as, by way of example only, by providing a current identification documents or any acknowledgement form related to service of process) in order to carry out the full intent and purpose of this Agreement and deliver the Services to Operator and Operator’s Renters in a lawful manner hereunder.
9.9 Relationship. There are no intended third-party beneficiaries hereunder, and this Agreement does not confer beneficiary rights on any third-party (including, for the avoidance of doubt and without limitation, on any of Operator’s Renters), nor does it 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.
9.10 Severability, Waiver, and Interpretation. If any provision of this Agreement is found to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement 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 this Agreement will constitute a waiver of any other breach. In construing or interpreting the terms of this Agreement: (a) the headings in this Agreement 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 this Agreement.
BY TAKING ANY REQUIRED ACTION TO INDICATE ACCEPTANCE OF THIS AGREEMENT, OPERATOR (OR OPERATOR’S REPRESENTATIVE) IS ACKNOWLEDGING ITS UNDERSTANDING OF THIS AGREEMENT, AND THAT OPERATOR WILL BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.