Last Updated: December 29, 2020
Mistro, Inc. dba Stable (hereinafter, "Stable") (a) owns and operates the Stable proprietary software platform that enables users to register and manage a virtual business address and manage certain remote digital mailbox services (the "Platform"); and (b) provides certain virtual business address services and, through Stable's authorized Commercial Mail Receiving Agency (CMRA) providers (the "Authorized Providers"), certain mail handling services, each as further described herein (collectively, the "Services"). This Terms of Service Agreement (this "Agreement") governs the access and use of the Platform, Services and any related services, content and/or materials provided and/or made available by Stable and/or its Authorized Providers in connection with the use of the Platform and/or Services (collectively, the "Stable Service").
IMPORTANT — PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS GOVERNING ACCESS AND USE OF THE STABLE SERVICE. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT TO ARBITRATE WHICH WILL REQUIRE THE CUSTOMER (AS DEFINED BELOW) TO SUBMIT CLAIMS AGAINST STABLE TO BINDING AND FINAL ARBITRATION AND A WAIVER OF CUSTOMER'S RIGHT TO PARTICIPATE IN CLASS ACTIONS AS SET FORTH IN, AND SUBJECT TO, SECTION 16.
BY CREATING AN ACCOUNT FOR SERVICES, AND/OR USING OR ACCESSING THE STABLE SERVICE (OR ANY PART THEREOF) IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, ACCESSING OR USING THE PLATFORM:
(1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW);
(2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), ON BEHALF OF THE ENTITY OR PERSON IN RESPECT OF WHOM ACCESS AND USE OF THE STABLE SERVICE WAS OBTAINED (SUCH ENTITY OR PERSON, THE "CUSTOMER"); AND
(3) YOU AGREE THAT CUSTOMER IS ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH MISTRO, INC. DBA STABLE.
IF YOU AND/OR THE CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AS SET FORTH ABOVE, DO NOT CREATE AN ACCOUNT OR ACCESS OR USE THE STABLE SERVICE (OR ANY PART THEREOF).
1. ACCESS AND USE OF THE STABLE SERVICE
1.1. Accounts. Customer must register an account to access and use the Stable Service ("Account"). Customer represents and warrants that all information provided to Stable through or in connection with Customer's Account and/or in connection with the access and use of the Stable Service, and at all times will be, true, accurate, current, up to date, and complete. In addition, Customer agrees that Customer will not (a) create an Account using a false identity or fictitious name or information, and/or (b) create an Account or use the Stable Service if Customer has been previously removed or banned by Stable from use of the Stable Service, or any part thereof. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting Customer's password and/or login credentials related to the Account. Customer is solely responsible for any activity originating from the Account, regardless of whether such activity is authorized by Customer. Customer agrees to notify Stable immediately of any unauthorized use of the Account. Stable reserves the right to limit the number of Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual Account.
1.2. Subscriptions. Subject to the terms of this Agreement, Stable will provide access to the Stable Service on a subscription license basis in accordance with the subscription plan purchased by Customer from Stable (the "Subscription Plan"). Each Subscription Plan shall begin on the date Customer purchased the Subscription Plan, or on the start date specified in the applicable order form entered into by Customer and Stable for the purchase of a Subscription Plan, and continue for the applicable subscription period (e.g., monthly or annually) selected by Customer for such Subscription Plan (the "Subscription Term"). The Subscription Term shall automatically renew for successive periods equal to the initial Subscription Term, unless Customer provides Stable with written notice of non-renewal or termination prior to the expiration of Customer's then-current Subscription Term.
1.3. Business Address Services. Subject to the terms and conditions of this Agreement, Stable will provide Customer with the permanent address or addresses requested by Customer that Customer may use as its permanent business address (hereinafter, the "Customer Business Address"). Customer acknowledges and agrees that neither Stable nor any Authorized Provider is liable for changes in the availability of the Customer Business Address, and Customer's sole recourse other than termination, is to notify its contacts and mailers that Customer's business address has changed to a different Customer Business Address. Customer agrees not to represent or suggest by any method, including but not limited to placement on a website of photos purporting to depict Customer's place of business at the Customer Business Address or by any invitation to anyone to visit the Customer Business Address, or that the Customer Business Address is a physical address at which third parties can find Customer or which they may physically visit.
1.4. Mail Services. In addition, subject to the terms and conditions of this Agreement (including, without limitation, the payment of applicable fees), Stable, through its Authorized Provider's, will use commercially reasonable efforts to provide Customer the remote mail management services, including, without limitation, receiving, scanning, shredding and/or forwarding of mail (the "Mail Services"), requested by Customer, as further described in Section 2 below, with respect to mail and/or packages that are addressed to, and received at, Customer's Business Address, including letters, flats, packages, and parcels, from any carrier or by any mode of delivery, (such mail and/or packages, hereinafter, "Customer Mail"). Customer agrees that Customer will not, and shall not permit any third party, to modify or alter the format of the Customer Business Address. Customer acknowledges and agrees that neither Stable nor its Authorized Providers has any responsibility for Customer Mail that is not properly addressed according to the format Stable and/or its Authorized Providers provide, to USPS specifications, or otherwise in accordance with this Agreement. At Stable and/or any Authorized Provider's request, Customer will promptly notify third parties to update their address information on file to reflect the Customer Business Address.
1.5. Access to the Platform. Subject to the terms of this Agreement, Stable hereby grants Customer a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited right during the Subscription Term to access and use, and permit Authorized Users (defined in Section 3.2 below) to access and use, the Platform, over the internet, through the Customer portal designated and/or generated by Stable for Customer, solely for Customer's internal business purposes and in accordance with the terms of this Agreement and subject to the permitted user seats and/or other applicable usage limits of the Subscription Plan and/or or any other restrictions specified in the user manuals or documentation, applicable order form, or in writing by Stable regarding the scope of use of the Stable Service by Customer and/or its Authorized Users (collectively, the "Usage Parameters").
1.6. Restrictions and Prohibited Uses. Customer agrees that Customer will not, and it will not permit any third party (including, without limitation, any Authorized User) to: (a) modify, adapt, translate or create derivative works based on the Stable Service (or any part thereof), or any related documentation; (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform; (c) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Stable Service (or any part thereof), or any related documentation; (d) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Stable or its suppliers on or within the Platform and/or related documentation; (e) interfere with or disrupt the integrity or performance of the Stable Service (or any part therefor), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Stable Service; (f) attempt to gain unauthorized access to the Stable Service (or any part thereof), or its related systems or networks; (g) frame or utilize framing techniques to enclose the Platform or any portion thereof; (h) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Platform, content, or the personal information of others without Stable's prior written permission or authorization; (i) use the Stable Service (or any part thereof) to hack, spam, or phish Stable or Stable's other users; (j) use the Stable Service to store or transmit any malicious or unsolicited code or software, or store, transmit or upload any material and/or content that is false, inaccurate, illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, infringing, libelous, tortious, or otherwise objectionable in Stable's reasonable opinion, or to store, transmit or upload any material or content that violates any third party's intellectual property rights and/or privacy rights; (k) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer's affiliation with any person or entity; (l) access or use the Stable Service to build a competitive product or service; or (m) access or use the Stable Service (or any part thereof) for any illegal, fraudulent, or unlawful purpose, or otherwise violate any applicable local, state, national or international law (including, without limitation, United States Postal Service ("USPS") laws, rules, codes, and/or regulations, and/or any U.S. and foreign export laws concerning the transmission of technical data and other regulated materials) the use of the Stable Service.
1.8. Third Party Integrations. The Platform may allow Customer to integrate with and/or connect to and/or use certain third party products, services or software (including, without limitation, data products and services), which are subject to separate terms and conditions (collectively, "Third Party Integrations"). If Customer decides to access and use such Third Party Integrations, Customer's use is of Third Party Integrations is governed solely by the terms and conditions of such Third Party Integrations, and Stable does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle Customer's data. Stable is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer's access or use of any such Third Party Integrations, or Customer's reliance on the privacy practices or other policies of such Third Party Integrations. STABLE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY INTEGRATIONS CONNECTED TO THE SERVICE), OR ANY HYPERLINKED WEBSITE OR SERVICE, AND STABLE WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES AND/OR THIRD PARTY INTEGRATIONS.
1.9. Changes and Modifications. Stable reserves the rights to either temporarily or permanently modify, suspend or discontinue the Stable Service (or any part thereof) with or without notice. Customer agrees that Stable will not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Stable Service (or any part thereof).
2. MAIL SERVICES
2.1. Authorization. BY ACCESSING AND/OR USING THE STABLE SERVICE, CUSTOMER HEREBY GRANTS PERMISSION TO, AND EXPRESSLY AUTHORIZES, STABLE AND/OR ITS AUTHORIZED PROVIDERS TO TAKE THE FOLLOWING ACTIONS WITH RESPECT TO CUSTOMER MAIL AS REQUESTED BY CUSTOMER THROUGH CUSTOMER'S ACCOUNT; (A) SCAN AND/OR PHOTOGRAPH THE OUTSIDE OF CUSTOMER MAIL; (B) OPEN CUSTOMER MAIL; (C) SCAN AND/OR PHOTOGRAPH THE INTERNAL CONTENTS OF CUSTOMER MAIL; (D) FORWARD CUSTOMER MAIL TO CUSTOMER'S DESIGNATED FORWARDING ADDRESS; (E) STORE CUSTOMER MAIL; AND/OR (F) SHRED AND/OR DESTROY CUSTOMER MAIL. PLEASE NOTE THAT BY REQUESTING MAIL SERVICES THROUGH THE ACCOUNT OR OTHERWISE, CUSTOMER IS GIVING EXPRESS AND LEGALLY BINDING AUTHORIZATION TO STABLE AND/OR ITS AUTHORIZED PROVIDERS, AS APPLICABLE, TO PERFORM THE APPLICABLE MAIL SERVICES.
2.2. Receiving Mail
(a) USPS Regulations. Upon Customer's completion of registration for Mail Services, including, without limitation, completion and submission of the USPS Form 1583 through the user interface of the Stable Service, the Authorized Provider selected by Customer, or otherwise designated by Stable, agrees to act as Customer's designated agent for receipt of Customer Mail. Customer acknowledges and agrees that the Authorized Provide will not be able, and will have no obligation to, receive any Customer Mail, and neither Stable nor any Authorized Provider will have any liability or obligations whatsoever with respect to any Customer Mail, unless and until Customer has completed all applicable registration requirements specified by Stable for Mail Services. Customer Mail received prior to Customer's completion of all applicable registration requirements as set forth above, may be charged a fee and stamped "Return to Sender."
(b) Restricted Mail. Authorized Providers will not accept restricted delivery Customer Mail, on Customer's behalf unless Customer specifically authorizes Stable and its Authorized Providers to do so on Item 5 of the USPS Form 1583. Customer acknowledges and agrees, Authorized Providers can only accept Customer Mail that is certified, registered, or, subject to Customer's authorization as set forth above, restricted-delivery at the Authorized Provider's designated street address, when an employee of an Authorized Provider is present to receive such Customer Mail. Such Customer Mail may not be accepted at PO boxes. Subject to Customer's proper authorization set forth in Item 5 of USPS Form 1583, Customer's designated Authorized Provider will sign for any and all restricted Customer Mail addressed to Customer that is received at the Customer Business Address.
(c) Standard Mail. Unless otherwise expressly agreed by Customer and Stable in writing, Customer hereby authorizes Stable and/or its Authorized Providers to discard or recycle Customer's Standard Mail, as that term is defined by the USPS, which is commonly referred to as "junk mail," such as flyers, circulars, advertising and catalogues. Standard Mail will not be scanned or made available through Customer's Account. Standard Mail includes any items postmarked "Standard," "Std," "Std Pre-sort," "non-profit," or other markings used by the USPS to identify Standard Mail.
(d) COD Mail. Authorized Providers will not accept postage due or collect on delivery ("COD") mail on Customer's behalf under any circumstances.
(e) Service of Process. Where provided by law, a process server may attempt to serve Customer by mail or to serve Customer's Authorized Provider as Customer's "mail agent" on Customer's behalf. Neither Stable nor any Authorized Provider assumes any liability should Customer be deemed to have accepted service of process as a result of use of the Stable Service and Customer agrees indemnify, defend and hold Stable and its Authorized Providers, and their respective officers, directors, shareholders, employees, contractors, agents, successors and assigns harmless from and against any and all liability, claims, damages, losses or cause of action arising from arising out of such actual or attempted service.
(f) Size Restrictions. Stable and/or its Authorized Providers reserve the right to refuse delivery of any Customer Mail package that exceeds 24 inches by 24 inches by 24 inches in dimension, and shall be returned to the sender. If Customer has a special request for package reception, please contact Stable at hello@useStable.com.
2.3. Scanning Mail; Unauthorized Mail
(a) Scanning Mail. Subject to the terms of this Agreement, including, without limitation, payment of applicable fees, Stable and/or its Authorized Provider will scan Customer Mail and make a digital copy of each Customer Mail item available for viewing in Customer's Account. Customer acknowledges and agrees that Stable and/or its Authorized Providers may decline and/or refuse to scan the outside and/or contents of any Customer Mail that, in Stable's and/or its Authorized Providers' sole discretion, is deemed to be obscene, an incitement to hate or violence or contrary to law. In addition, Customer acknowledges and agrees that Stable and/or its Authorized Providers may decline and/or refuse to scan the outside and/or contents of any Customer Mail, where such scanning and/or photographing is, or would be, in Stable's and/or its Authorized Providers' sole discretion, unduly or excessively burdensome (e.g., catalogs, magazines, and books).
(b) Unauthorized Mail. In the event that mail, or its content, belonging to a user that is not an Authorized User of Customer is delivered to Customer's Account ("Unauthorized Mail"), Customer shall immediately notify Stable thereof, and Customer agrees not to request any action with respect to such Unauthorized Mail. Customer 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. Customer agrees that any violation of this Section 2.3(b) may expose Customer to legal liability, both criminal and civil, and monetary damages, as well as immediate suspension and/or termination of Customer's Account by Stable. Notwithstanding the foregoing, or anything to the contrary herein, neither Stable nor its Authorized Providers represent or warrant that Customer Mail will never be mistakenly assigned to another user's account, and Customer acknowledges and agrees that in such cases neither Stable nor its Authorized Providers are liable to Customer or the intended recipient. As Customer's sole and exclusive remedy, and Stable and its Authorized Provider's sole and exclusive obligations and liability, Stable will use reasonable efforts to notify both the intended recipient and the unintended recipient, immediately upon discovery of any error, and to remove the item from the unintended recipient's account.
2.4. Forwarding Mail
(a) General. Subject to the terms of this Agreement, including, without limitation, payment of applicable fees, Stable will forward Customer Mail pursuant to Customer's request made through the Customer portal of the Stable Service. Customer agrees that upon placement of the forwarded Customer Mail in the care of the USPS or other mail-carrying service (e.g., UPS, FedEx), such Customer Mail shall be deemed delivered, any and all of Stable and its Authorized Provider's responsibilities with respect to such Customer Mail shall terminate. Customer further acknowledges and agrees that upon placement of the Customer Mail in the care of the USPS or other mail-carrying service (e.g., UPS, FedEx), neither Stable nor any Authorized Provider is responsible for such Customer Mail, its arrival, and/or the speed of its delivery.
(b) Customer Refusal of Forward Mail. If Customer fails or refuses to accept Customer Mail forwarded by Stable and/or any Authorized Provider pursuant to this Agreement, Customer will bear any and all costs of return shipping and re-processing of the Customer Mail by Stable and/or its Authorized Providers. At Stable's request, Customer must sign for or otherwise acknowledge acceptance in writing of all Customer Mail forwarded to Customer.
2.5. Destruction & Storage
(a) Destruction. Upon Customer's request through Customer's Account authorizing the destruction and/or shredding of a specific item or items of Customer Mail, Customer's designated Authorized Provider will securely destroy (e.g., via shredding or other secure destruction process), the physical item of Customer Mail.
(b) Storage. Customer Mail will be stored at the facility of Customer's designated Authorized Providers for thirty (30) days from receipt; provided that, Customer acknowledges and agrees that Stable and/or is Authorized Providers reserve the right to charge Customer additional fees (at then-current rates) for the storage of Customer Mail contained in packages, parcels and/or oversized envelopes, beyond such thirty (30) day period set forth above. Customer acknowledges and agrees that any Customer Mail in storage at the designated Authorized Provider's facility that Customer has not requested forwarded or destroyed prior to the end of such thirty (30) day period may be destroyed, and neither Stable nor any Authorized provider shall have any liability whatsoever for continued storage and/or any destruction of such Customer Mail in storage beyond such thirty (30) day period.
3. CUSTOMER OBLIGATIONS
3.1. Action Items. Customer is responsible for all directions, orders, notifications, and requests Customer and/or any of its Authorized Users made through Customer's Account, including, without limitation, any and all expenses incurred or other actions that may occur through use of Customer's Account. Neither Stable nor any Authorized Provider will be responsible (whether to Customer or to any third party) for items that are recycled or shredded as a result of Customer's request or direction, or for the results of any other action items that are taken pursuant to Customer's instructions or at Customer's direction with respect to Mail Services (each, an "Action Item"), and by using the Stable Service to request performance of any Action Item, Customer is giving its express and legally binding authorization to Stable and its Authorized Providers to perform such Action Items. Without limiting any of the foregoing, Customer understands and agrees that Customer will be solely responsible for confirming and otherwise ensuring that an Authorized Provider has the complete, up-to-date and otherwise accurate information required for the Authorized Provider to perform any Action Item, including, without limitation, any subsequent or follow-up actions, instructions or directions related thereto requested by Customer. Customer must immediately notify Stable of any fraudulent, unauthorized, illegal or suspicious use of the Stable Service, including, without limitation, any unauthorized or incorrect or mistaken requests made thorough Customer's Account with respect to the Mail Services, or any other breach of security or unauthorized or illegal activity that Customer reasonably suspects.
3.2. Administrators and Permissions. Customer may designate an administrator or administrators (each, an "Administrator") to administer and manage Customer's Account, which includes, without limitation, the right to (a) direct Stable and/or its Authorized Provider to take actions regarding Customer Mail, and (b) invite Customer's employees, contractors, and/or agents, to access and use the Stable Service as an authorized user under Customer's Account ("Authorized User"). For the avoidance of doubt, the term "Authorized Users" as used in this Agreement, includes Administrators. In addition, subject to Customer's Subscription Plan, an Administrator may set certain permissions and access rights to each Authorized User ("Permissions"). Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may (i) subsequently invite or enable other users to access Customer's Account, and such additional users will be deemed "Authorized Users" of the Account, (ii) have the ability to set Permissions for Authorized Users, (iii) have the ability to view Customer Data that is connected to the Account, and/or (iv) have the ability to view and/or direct actions taken with respect to Customer Mail in connection with the Mail Services. Customer acknowledges and agrees that Customer is solely responsible and liable for designating Administrators, inviting Authorized Users, and the Permissions granted to Authorized Users by the Administrator(s) of the Account.
3.3. Responsibility for Authorized Users. Customer shall not permit any person other than Authorized Users to access and use the Service, and shall ensure that Authorized Users use the Stable Service solely in accordance with this Agreement. Customer acknowledges and agrees that Customer is solely responsible for the use of the Stable Service by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Customer. Customer agrees that it shall not permit any person other than Authorized Users to access and use the Stable Service and will ensure that its Authorized Users use the Stable Service solely in accordance with this Agreement. Customer acknowledges and agrees that Customer is solely responsible for the use of the Stable Service by Authorized Users, and any breach of this Agreement and/or the Acceptable Use Policy by any Authorized User will be deemed a breach by Customer.
4. FEES; PAYMENT TERMS
4.1. Subscription Fees. Customer shall pay the applicable fees for the Subscription Plan purchased by Customer (the "Subscription Fees") set forth in in Stable's then current Pricing Schedule available here https://www.usestable.com/pricing (the "Pricing Schedule"). Except as otherwise set forth in this Agreement, the Subscription Fees will remain fixed during the Subscription Term unless Customer (a) upgrades the Subscription Plan and/or increases the Usage Parameters, and/or (b) subscribes to additional features or products provided by Stable on a subscription basis. In the event a price change applies, Customer will be charged at the start of the next billing cycle for such additional fees. For the avoidance of doubt, Customer acknowledges and agrees that any downgrade to the Subscription shall not take effect until the next renewal date of the applicable Subscription Term, regardless of Customer's billing cycle for such Subscription (i.e. for monthly Subscriptions, prior to the start of the next month, and for annual Subscriptions, prior to the start of the next year). Subscription Plans shall renew at Stable's then-current pricing for such Subscription.
4.2. Add-On Fees. In addition, Customer shall pay any additional fees for optional one-time add-on Services requested by Customer and/or any Authorized Users not included in or above the included limits of the applicable Subscription Plan, including, without limitation, mail forwarding and storage fees, and other add-on fees specified in the then-current Pricing Schedule (collectively, "Add-on Fees").
4.3. Payment Terms. All Subscription Fees and Add-on Fees (collectively, the "Fees") are due and payable by Customer in advance, unless otherwise set forth on the then-current Pricing Schedule or expressly agreed to by Stable in writing. Customer expressly agrees that Stable is permitted to bill Customer the applicable Fees, any applicable tax and any other charges Customer may incur with Stable in connection with Customer's and its Authorized Users' access and use of the Stable Service, including, without limitation, any requested Services, and Customer hereby authorizes Stable to charge the Fees to the credit card or other payment method Customer has on file in Customer's Account, in accordance with the billing terms in effect at the time a fee or charge is due and payable. If payment is not received or cannot be charged to Customer for any reason in advance, Stable reserves the right to suspend or terminate Customer's and its Authorized User's access to the Stable Service, suspend the performance of any Services, downgrade the Subscription and/or terminate this Agreement. All fees are non-refundable and non-cancellable.
4.4. Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on Stable's income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Stable Service, or performance of any services by or on behalf Stable hereunder.
5. TERM; TERMINATION
5.1. Term. The term of this Agreement commences on the date this Agreement is accepted by or on behalf of Customer and will remain in effect during the Subscription Term (including any renewal thereof), or until terminated in accordance with this Agreement (whichever is sooner). Each Subscription Term shall automatically renew as set forth in Section 1.2.
5.2. Termination; Suspension. Customer may terminate this Agreement and/or any Subscription by providing Stable written notice of such termination at hello@useStable.com. Customer acknowledges and agrees that notwithstanding any termination of this Agreement, the Subscription fees are non-refundable and non-cancellable. At any time, Stable may (a) suspend or terminate Customer's and/or any Authorized User's right to access or use the Stable Service (or any part thereof), or (b) terminate this Agreement with respect to Customer if Stable, in good faith, believes that Customer has used the Stable Service (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules. In addition, without limitation to any other remedies Stable may have, Stable reserves the right to immediately suspend services and/or terminate the agreement if Stable and/or any Authorized Provider determines the Customer Business Address is being used in connection with possible fraudulent activity or activity potentially in violation of laws or governmental regulations.
5.3. Effect of Termination
(a) Payment of Fees; Access to the Stable Services. Upon termination of this Agreement for any reason, all outstanding fees immediately becoming due and payable, including, without limitation, any Subscription fees due and payable for the remainder of the then-current Subscription Term, and Customer's and its Authorized Users' right to access and use the Stable Service will automatically terminate.
(b) Handling of Customer Mail Upon Termination. By entering into this Agreement, Customer is expressly electing and providing Stable and its Authorized Providers with "Do Not Forward Mail" instructions. Unless and only to the extent that Customer and its designated Authorized Provider expressly agree in writing to the contrary, Customer will be deemed to have elected to maintain these instructions following termination of this Agreement, such that Customer's mail will thereafter be handled in accordance with the USPS DMM 508 Section 1.8.3. For the avoidance of doubt, the provisions of this Agreement (and Customer's agreement thereto) are intended to constitute "written instructions" to the Authorized Provider (as Customer's CMRA) under USPS DMM 508 Section 1.8.3 that Customer's mail not be re-mailed upon termination of the relationship between Customer and the Authorized Provider. Customer understands and agrees that any change to its "Do Not Forward Mail" instructions, as described in this Section will require a separate writing signed by Customer and its Authorized Provider and an advance payment of any postage and other applicable fees, typically to cover a period of at least six months after termination (as such amount shall be determined by the Authorized Provider in its sole and absolute discretion).
(c) Survival. The following Sections will survive any termination or expiration of this Agreement: 1.1, 1.6, 1.7, 1.8, 1.9, 2.1, 2.2(e); 2.3(b), 2.24, 2.5(b), 3, 4, 5.3 and 6 through 18 (inclusive).
6. ADDITIONAL STABLE RIGHTS AND REMEDIES. If Stable reasonably suspects that Customer's contact information or payment method is fraudulent, or that Customer is using or attempting to use the Stable Service (or any part thereof) for any unlawful, fraudulent, or illegal activities, Stable may immediately suspend Customer's Account and/or terminate this Agreement and Customer's access to the Stable Services without refund. Stable may also turn over information concerning Customer to the USPS Office of the Postal Inspector, the U.S. Federal Bureau of Investigation, an applicable State Attorney General or Embassy with jurisdiction, or other local and national law enforcement authorities. Customer agrees to indemnify and hold Stable and its Authorized Providers, and their respective officers, directors, shareholders, employees, contractors, agents, successors and assigns harmless from and against any and all liability, claims, damages, losses or cause of action arising from Stable or any Authorized Provider's inspection of Customer's mail or from the release of information regarding Customer or Customer's use of the Stable Service to such authorities, or otherwise as required by law.
7. STABLE PROPRIETARY RIGHTS
7.1. Ownership. Stable and/or its licensors shall retain all rights, title, interest, in and to and ownership of the Stable Service, including, without limitation, the Platform, any Beta Versions and Features, and any accompanying user manuals or documentation (the "Documentation"), and any text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Stable Service, but excluding Customer Mail and Customer Data, and any improved, updated, modified or additional parts thereof, and all copyright, patent, trade secret, trademark and other intellectual property and proprietary rights in and to any and all of the foregoing. All rights that are not explicitly granted in this Agreement are reserved by Stable and its licensors.
7.2. Operational Metrics. Stable monitors and collects anonymized statistics, metrics, analytics, and data regarding the performance and operation of the Platform in connection with the use of the Platform, and other operational and technical metrics necessary to manage and perform Platform (collectively, "Operational Metrics"). Customer grants to Stable a non-exclusive, irrevocable, transferable, worldwide, and royalty-free license to collect, analyze and use Operational Metrics relating to Stable's delivery, and/or Customer's and its Authorized Users' use, of the Platform, including Operational Metrics that may be derived from Customer Data, for Stable's business purposes, including, but not limited to, improving, testing, and maintaining the Platform, developing additional products and services, and generating reports for internal, external, and public use. Stable may only publicly distribute Operational Metrics in aggregate, non-personally identifiable form that cannot be used to identify Customer or any individual Authorized User.
7.3. Feedback. To the extent that Customer and/or any Authorized Users provide or submit to Stable any ideas, suggestions, improvements and/or other feedback regarding any aspect of the Services, Platform, Documentation and/or any other materials and/or content provided by Stable hereunder, including, without limitation, the functioning, features, and other characteristics thereof (collectively, "Feedback"), Customer hereby grants Stable, its subsidiaries, affiliates and partners a worldwide, irrevocable, perpetual, royalty free, non-exclusive, sublicensable and transferable license under all Customer's intellectual property rights in the Feedback to exploit and use for any purpose, without compensation or attribution.
8. INDEMNIFICATION. Customer shall indemnify, defend, and hold Stable and its affiliates and subsidiaries, and their respective officers, directors, shareholders, employees, contractors, agents, successors and assigns (collectively, "Stable Indemnified Parties"), harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys' fees), demands or damages of any kind, arising out of or related to (a) Customer's or any Authorized User's breach of this Agreement (including, without limitation, any representations and warranties herein) or any license or other agreement applicable to any Third Party Integrations; (b) Authorized User claims; (c) allegations that any Customer Mail, or Customer's activities in connection with, or use of, the Stable Service (or any part thereof), violate any applicable laws, rules or regulations (including, without limitation, and USPS Regulations), or infringe or misappropriate the intellectual property rights of any third party; (d) Customer Data or a violation of any applicable privacy law, rule or regulation by Customer; (e) Customer's or its Authorized Users' use of the Stable Service; and/or (f) Customer's gross negligence, fraudulent misrepresentation or willful misconduct. Stable shall promptly notify Customer in writing of such action, give Customer sole control of the defense thereof and any related settlement negotiations, and, at Customer's reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of any Stable Indemnified Party or requires any Stable Indemnified Party to contribute to the settlement without Stable's prior written consent. Stable and any Stable Indemnified Party may participate and retain its own counsel at its own expense.
9. DISCLAIMER. THE STABLE SERVICE AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY STABLE, ARE PROVIDED "AS IS" AND "AS AVAILABLE". STABLE AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. NEITHER STABLE NOR ANY OF ITS LICENSORS, AUTHORIZED PROVIDERS, AND/OR SUPPLIERS WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE STABLE SERVICES (OR ANY PART THEREOF), OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY STABLE OR CONTENT MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE STABLE SERVICE: (A) WILL MEET CUSTOMER'S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER'S NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY INTEGRATIONS; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE, TIMELY, OR RELIABLE. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE STABLE SERVICE, AND ALL RESULTS OF SUCH USE IS SOLELY AT CUSTOMER'S OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM STABLE, ANY AUTHORIZED PROVIDER OR OTHER THIRD PARTY, OR THROUGH THE STABLE SERVICE, SHALL CREATE ANY WARRANTY.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL STABLE BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE STABLE SERVICE (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY STABLE, EVEN IF STABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY AND SOLELY FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF STABLE, AND (B) IN NO EVENT SHALL STABLE'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE STABLE SERVICE (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY STABLE EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE TO STABLE BY CUSTOMER HEREUNDER DURING THE THREE (3) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION. STABLE DISCLAIMS ALL LIABILITY OF ANY KIND OF STABLE'S LICENSORS, AUTHORIZED PROVIDERS AND SUPPLIERS.
11. APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 9 and 10 above may not apply to Customer if Customer is a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to Customer as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where Customer is located.
12. BASIS OF THE BARGAIN. The warranty disclaimer and limitation of liability set forth above in Section 9 and 10 are fundamental elements of the basis of the agreement between Stable and Customer. Stable would not be able to provide the Stable Service on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Stable's suppliers.
13. EXCLUSIONS. Notwithstanding anything in this Agreement to the contrary, Stable will have no responsibility or liability of any kind under this Agreement or otherwise, arising or resulting from: (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Stable; (b) nonconformities resulting from Customer's or any Authorized User's, or any third party's misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Stable Service, or other services provided hereunder by Stable; (c) modification, amendment, revision, or change to the Stable Service, or any part thereof, by any person other than Stable; or (d) any other factor outside of Stable's reasonable control.
14. AVAILABILITY OF THE SERVICES. Information describing the Stable Service is accessible worldwide but this does not mean the Stable Service, or certain portions thereof, are available in Customer's city, county, state, and/or country. Stable may restrict access to the Stable Service, or portions thereof, in certain countries in its sole discretion. It is Customer's responsibility to make sure Customer's use of the Stable Service is legal in Customer's city, county, state and/or country of residence. the Stable Service may not be available or accessible in all languages.
15. ELECTRONIC COMMUNICATIONS. By using the Stable Service, Customer consents to receiving electronic communications from Stable. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to Customer's use of the Stable Service. These electronic communications are part of Customer's relationship with Stable and Customer receive them as part of Customer's access and use of the Stable Service. Customer agrees that any notices, agreements, disclosures or other communications that Stable sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
16. GOVERNING LAW AND DISPUTE RESOLUTION
16.1. Governing Law. This Agreement will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement. Furthermore, this Agreement (including without limitation, the Platform and any software and services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
16.2. Disputes. Except as otherwise set forth in this Agreement, Customer agrees that any dispute between Customer and Stable arising out of or relating to this Agreement, the Stable Service, or any part thereof (collectively, "Disputes") shall be governed by the provisions set forth in this Section.
16.3. Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, Customer agrees to first contact Stable directly at hello@useStable.com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, Customer or Stable may institute arbitration in accordance with the procedures set forth in this Section.
16.4. Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 16.3 above shall be resolved exclusively through final, binding and confidential arbitration and shall take place in San Francisco, California unless otherwise mutually agreed to by the parties. The arbitration shall be conducted by the American Arbitration Association (AAA) in accordance with the arbitration rules then in effect, provided that the arbitrator and the parties shall comply with the following: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.
16.5. Exception to Arbitration. Notwithstanding anything in this Agreement to the contrary to the extent Customer and/or any Authorized User has in any manner violated or threatened to violate any of Stable's intellectual property rights, Stable may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and Customer hereby consents to the personal jurisdiction and exclusive venue in such courts.
17. ADDITIONAL TERMS; MODIFICATIONS TO THIS AGREEMENT
17.1. Additional Terms. When using particular services or materials through or in connection with the Stable Service, Customer will be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in this Agreement ("Additional Terms"). All such Additional Terms are hereby incorporated by reference into this Agreement. In the event the provisions of any Additional Terms conflict with this Agreement, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms
17.2. Modifications to this Agreement. Stable reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on Stable's website located at https://www.usestable.com/terms (the "Site"). All updates and modifications to this Agreement will be effective from the day they are posted on the Site (except as otherwise stated in this Section 17.2). If Stable makes any material changes to this Agreement, Stable will notify Customer of these changes by sending a notification to the email address Stable has on file for Customer, or, if Stable does not have an email address on file, by posting a notice of the changes on the Site and through the user interface of the Platform. It is Customer's responsibility to regularly visit and review this Agreement. If Customer does not agree to any updates or modifications to this Agreement, Customer may terminate its Account and cease access and use of the Stable Service. Customer's continued use of the Stable Service after Stable has posted the updated Agreement, or, in the event of material changes, ten (10) days following the date Stable first notified Customer of such material changes either through email or the date Stable posted the notice of such changes on the Site or through the user interface of the Platform, signifies Customer's acknowledgment and agreement to be bound by the revised Agreement.
19. QUESTIONS AND ADDITIONAL INFORMATION. Please feel free to contact Stable at email@example.com if you have any questions about this Agreement.
© 2020 Mistro, Inc. dba Stable. All rights reserved.