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):
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.
3.3 Fees Generally.
3.4 Invoicing and Collection of Fees; Payments to Operator.
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.
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:
3.7 Security Deposit; Personal Guarantee; Certain Ancillary Fees.
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:
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.
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.
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.