Terms of Service
_Revised November 29th, 2018
1.1 This is a legal agreement. If you order services from Earth Class Mail that reference or include these Terms of Service, and we accept your order, your order and these Terms of Service are a legal agreement between us.
1.2 If you don’t agree to these Terms of Service, don’t use our services.
1.3 Don’t agree to these Terms of Service on behalf of a company unless you are authorized to sign contracts for that company. If you work for a company or other entity, you represent to Earth Class Mail that you are authorized by that entity to agree to these Terms of Service and buy the Plan you selected on behalf of that entity.
1.4 You must be at least 18 years old to buy services for yourself as an individual. If you agree to these Terms of Service as an individual, you represent to Earth Class Mail that you are at least 18 years old and that the rules of the US Postal Service or other carrier allow you to use our services.
2. Word Meanings
2.1 Agreement or agreement means these Earth Class Mail Terms of Service and the terms of the Plan you select.
2.2 ECM means Earth Class Mail, Inc.
2.3 We or we means Earth Class Mail, Inc.; Our and our refers to Earth Class Mail, Inc.
2.4 You or you means the customer, either a company or other business entity, or you as an individual if you own a sole proprietorship; Your and your refers to you.
2.5 Us or each of us means both you and Earth Class Mail, Inc.
2.6 Mail or mail means letters, mailers, magazines, packages, flats, parcels, and other items that we receive for you as part of the services.
2.7 Plan means the combination of services and related fees that are included in the description of a single “Plan” or other service option that we describe on our website or other materials.
3. We will provide these services to you, subject to the terms, conditions and restrictions stated in these Terms of Service and your Plan:
3.1 We will receive your mail from the US Postal Service and other delivery services covered by the Plan. Our offices will receive mail Monday – Friday, 9:00 a.m. – 5:00 p.m. in the time zone where they are located excluding ECM holidays, or for longer hours at our discretion. We will take deliveries of mail from the United States postal service, overnight couriers, UPS, Federal Express, and other carriers and couriers that are included in your Plan during these hours.
3.2 We will deliver your mail to your online account. For standard services we will post images of the envelope(s) and/ or other container(s) to your account and we may, at our option, either open and scan the contents of the mail or wait until we receive your instructions for your items (shred, forward to you, or open and scan). For premium services (including mailboxes at certain facilities), we will open and scan all of your mail that is reasonably scannable, and post the images to your account.
3.3 We may screen out advertisements. We may sort out and recycle or discard flyers, circulars, catalogs and similar mail classified by the US Postal Service as “Standard Mail”, “Bulk Mail”, or “Commercial Mail”.
3.4 We will forward your mail to you. If you have given us instructions to forward the physical mail items to you, we will place your mail items in a new container and send them to you at the address you have given us. We will forward your mail through the US Postal Service, Federal Express, or other shipping partner of our choice, unless you have made other arrangements with us. If your forwarding address is in a different country than your ECM address, see the additional legal terms in Section 4 (International Items) below.
3.5 We will deposit checks if you have purchased a plan that includes this service. If your Plan includes check deposits, we will endorse checks that we determine are properly payable to you and deposit them to your bank account in accordance with your instructions. We may send checks to your bank by physical or electronic means.
3.6 We may provide integrations with other technology services, but these integrations may stop working if the other technology changes. We may offer features that allow you to integrate with third party services, such as Quickbooks Online, Xero, Bill.com, Box, Google Drive, and Dropbox. We do not endorse any service for which we offer an integration feature, and make no commitments to you regarding those services. Our integration features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts our integration feature. We will use commercially reasonable efforts to modify our integration features to maintain compatibility with service provider’s APIs and services, but may discontinue an integration feature without liability to you if there is a change in the service that creates an unreasonable cost or operational burden to ECM. We may also discontinue an integration feature if there is a drop in demand for that feature. Your obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features.
3.7 We will use the security measures described in ECM’s Description of Security and Compliance. We will provide the service in accordance with our Description of Security and Compliance. On your request, we will provide you with access to our Description of Security and Compliance. You acknowledge that the Description of Security and Compliance is ECM’s sensitive Confidential Information and may be shared only with your personnel and professional advisors and consultants on a need-to-know basis.
3.8 We will use limited efforts to deliver insufficiently addressed items. If mail is addressed to two or more individual recipients authorized to receive mail on your account, we may deliver the item to any of them. If we are able to identify mail to an account, but not an individual recipient, we will deliver the item to your unassigned mail folder. If we are not able to identify the mail to an account, we may return it or hold it to see if it is claimed. If the mail is not claimed after 10 days, we may return it or open the mail and attempt to discover the recipient. We may destroy insufficiently addressed items if: (i) we are not able to discover the intended recipient after opening it, or (ii) your sender(s) repeatedly send insufficiently addressed mail and you fail to correct the issue with your senders on our request.
4. Services Restrictions/International Mail Items
4.1 We are not required to do any of these things:
4.1.1 Accept items that are postage due or COD (cash on delivery).
4.1.2 Violate the law or mail regulations. This includes US Postal Service regulations and other laws and regulations, such as https://www.usps.com/ship/shipping-restrictions.htm.
4.1.3 Scan, post or forward mail that violates our Acceptable Mail Policy. Our Acceptable Mail Policy (“AMP”) posted at https://www.earthclassmail.com/acceptable-mail-policy is part of these Terms of Service.
4.1.4 Handle bulky or heavy items unless you have made advance arrangements. If your item weighs more than 20 pounds, or is longer than 19″ on its longest size, 12” on its median side, or 14” on its shortest side, we may refuse delivery of the item or return it at your expense. We do not handle pallets and will refuse delivery of any pallet.
4.1.5 Handle items having a value of more than $5,000. If the value of an item is not clear, you agree that we may use our reasonable judgment to determine the value of item. This restriction does not apply to checks if you have purchased our check deposit services.
4.1.6 Scan currency. We are prohibited by law from scanning currency.
4.1.7 Provide services to you if you fail our compliance checks. If you fail our compliance check after your account has been provisioned, we will close your account, and refund any pre-paid fees less our reasonable compliance check fee.
4.1.8 Sign for or accept certified, registered or other “Restricted Delivery” mail unless you have authorized ECM to receive that mail in the USPS Form 1583.
4.2 Special terms apply to international items:
4.2.1 You must make special arrangements for packages shipped from outside the United States. We will not handle international packages unless you have made special arrangements in advance of receipt. We may refuse, return, or destroy packages sent to us from outside of the United States, without notice to you. We will handle international letters and flats as described in this Section.
4.2.2. We may open and inspect international items. We may open international items and inspect the contents if required to do so by applicable law, including international treaty law. International items are items that appear to contain material other than documents and that are shipped from an address outside of the country where received or that you ask us to forward or re-ship across national borders.
4.2.3 We will not modify any documents or information associated with your international packages. We will not modify any information that is part of or shipped with your international item. For example, we will not re-state the fair market value of an item shipped internationally for customs and duties even if you have supporting documentation.
4.2.4 We will not forward or re-ship items in violation of applicable law or regulation. See for example US Postal service regulations at https://about.usps.com/publications/pub141/standard-prohibited-and-restricted-items.htm. Except as provided in our Acceptable Mail Policy at https://www.earthclassmail.com/acceptable-mail-policy , we will notify you if we determine that we are unable to handle your international item as you request, and will work with you to make other arrangements for the item, such as returning the item or shipping it to an address in the United States. If you do not make acceptable arrangements, we may dispose of the international item as described in our Acceptable Mail Policy.
5. Interpretations of Restrictions and Policies
Our reasonable determination of our restrictions and policies controls. Reasonable minds can differ. If you dispute our interpretation of applicable law, our Acceptable Mail Policy, the service restrictions or international terms, or our determination that an item should be opened and inspected as permitted by law or any of these clauses, our interpretation or determination controls so long as it is reasonable, even if your dispute is also reasonable.
6. Service Warranty and Disclaimers
6.1 The services are covered by these warranties:
6.1.1 We will use commercially reasonable efforts to provide the services without error. You acknowledge that errors may occur and that an error does not constitute a violation of our agreement with you unless it is due to our failure to use commercially reasonable efforts.
6.1.2 We will use commercial reasonable efforts to keep your online account available 24 x 7 except for reasonable maintenance and emergencies. We will use reasonable efforts to keep your online account available 24 x 7, but your account may be unavailable due to systems maintenance or security emergencies. We will use reasonable efforts to notify you of planned downtime and to minimize downtime.
6.1.3 We will refund your base Plan fee for the billing cycle in which we materially failed to meet a warranty. However, you must give us notice of the facts and events that you think are evidence of our failure to use commercially reasonable efforts no later than 30 days following the end of the billing cycle in which the failure occurred. This refund is your sole and exclusive remedy for our failure to comply with these warranties.
6.2 EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY STATED IN THESE TERMS OF SERVICE WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY THAT MAY ARISE FROM A COURSE OF DEALING. WE DO NOT PROMISE THAT OUR SERVICES WILL BE ERROR FREE, UNINTERRUPTED, OR COMPLETELY SECURE.
For example, we are not responsible for:
6.2.1 USPS or other carriers or couriers. We are not responsible for problems that occur prior to the time that items are delivered to ECM. If we re-ship items to you as part of our services, our responsibility for the items ends when we have placed the items in the care of the postal service or other carrier. We are not responsible for delivery times, or damage or loss while items are in transit to or from our facilities, including the loss of checks, cash, or other valuable items.
6.2.2 Cash, checks, or other monetary instruments. We are not responsible for the loss of cash, checks, or other monetary instruments unless you have purchased a Plan that includes check deposit services and we have failed to provide the service as agreed. If you purchase a Plan that includes check deposit services, our liability with respect to this service is limited as stated in Section 16.1.
6.2.3 Security incidents that we could not have prevented by using the security measures we describe in our security materials. We do not promise to provide perfect security, only that we will use the security measures described in our security materials described in Section 3.7. You must decide for yourself if our security measures meet your business and regulatory requirements.
7. Your Obligations
7.1 You must complete the USPS Form 1583. Prior to using your ECM address, you must complete and submit US Postal Service Form 1583 (Application for Delivery of Mail Through Agent) and you must provide complete and accurate information as prompted by our sign-up process. We may refuse delivery of mail that we receive prior to the time that you have submitted your Form 1583 and fully completed the account set up process. If the information changes, you must update your Form 1583 and other online account information.
7.2 You must keep your account permissions and other information up to date. We may rely on the instructions of individuals you have authorized to manage your account as shown in our account records. For example, if your employee leaves your company and you do not disable their login on your account, we are not responsible to you for any harm that results from the ex-employee’s unauthorized use of your account. On our request, you must provide an alternative contact for your account who we can work with if we not able to reach any of the active administrators on your account.
7.3 You must pay fees and expenses on time. The fees and expenses for which you are responsible are stated in your Plan. Our invoicing and payment terms are stated in the Section 9 (Invoicing and Payment Terms).
7.4 You must use reasonable measures to protect the security of your account. You must require each individual who has access to your account to establish a unique log in name and password. Neither you, nor your users may disclose passwords to anyone who is not authorized to use your account. You must notify us if you suspect that an unauthorized person has access to your account or if your account is no longer secure for some other reason. You are responsible for the use of your account by individuals who you authorize as users, and by individuals who are not authorized users but who are able access your account because you have failed to use reasonable security measures.
7.5 You must give your senders the full ECM address; you must use the full ECM address everywhere that you print or publish it. Your full ECM address includes our ECM number, mailbox number, or other specific identifier we provide. For example:
123456 SW Gemini Dr.
Beaverton, OR 97006-7105
PO Box 1555 ECM 123456
Herndon VA 22071-2716
10 Main St Ste 11 ECM 123456
Herdon VA 22071 – 2716
If you publish your ECM address on your website, you must publish the full address. You must use the full address on your business card(s), stationery, marketing materials, and everywhere else you make your address available.
You must promptly correct any violation of this Section. You must promptly notify the sender of incorrectly addressed mail to correct the mailing address. Our responsibility for mail that is insufficiently addressed is described in Section 3.8 above.
7.6 You must tell us if you receive mail not addressed to you. If we deliver someone else’s mail to your account, you must notify us as soon as you discover the mistake. You may notify us by selecting the “not my mail” or similar option for that item in your online account, or by sending an email to [email protected].
7.7 You must not read mail delivered to you in error. You must not read or take any other action with respect to mail delivered to you in error, other than to notify us that you received the mail in error.
7.8 You must accept delivery of mail we forward to you even if you did not ask the sender to send you the mail. If you do not accept mail that we forward to you at your request, we may charge you our reasonable costs of accepting the returned mail.
7.9 You must not abuse our personnel. You may not threaten, yell, curse, or behave in other abusive ways when communicating with our personnel. Our personnel may terminate any communication with you immediately if they reasonably determine that you are being abusive.
7.10 You must not violate the law or the Acceptable Mail Policy. You may not use the services in a way that violates the law (including import/export laws) or the ECM Acceptable Mail Policy at https://www.earthclassmail.com/acceptable-mail-policy. You agree that we may disclose the existence of any Mail items to law enforcement if we have a reasonable suspicion that the item contains illegal materials or was transmitted as part of an illegal activity. You agree that we may cooperate with requests from law enforcement to inspect your mail items, without requiring a warrant or other legal process. We have no obligation to notify you if your items are inspected or seized by law enforcement. We may dispose of items that violate our Acceptable Mail Policy at your expense as described in the Acceptable Mail Policy.
7.11 You must not misrepresent the nature of your ECM mailbox address. You may not state or imply that your ECM address is a physical location where you, your personnel, or your operations are physically located. For example, you may not list your ECM address on your website next to a photo purporting to be your place of business.
7.12 You must tell us if you have been the subject of a criminal or regulatory investigation or conviction involving fraud or any activity that would violate our Acceptable Mail Policy. You represent to ECM that you have not been the target of any criminal or regulatory investigations or proceedings, and have not been convicted of any crime (felony or misdemeanor), in connection with an activity that would violate our Acceptable Mail Policy if you had used our services as part of that activity.
7.13 You may not resell our services unless you have signed our reseller agreement. Unless you have been admitted to our reseller program and signed our reseller agreement you may not sell our services to others or use our service for any purpose other than your internal business purposes.
7.14 You must respect our intellectual property rights. You may not use our service for the purpose of copying our proprietary technology. We reserve all rights in our intellectual property.
7.15 You must backup your mail content. We do not promise that we will maintain your mail content indefinitely or that our data backups systems will always work properly. You should create a backup of information that you wish to retain at reasonable intervals and store the backup in a reasonably secure location other than our services platform.
7.16 You may not use our services for PHI unless you notify us. If you are a covered entity or business associate under HIPAA, you may not use our services to receive mail that includes “protected health information” as that term is defined in HIPAA unless you have notified us in advance.
7.17 You may not use our services for the purpose of developing a competing service or gathering competitive intelligence.
7.18 Unless we have given our advance written consent, you may not use our service for the purpose of gathering data about service availability, performance, or other “benchmarking” purposes.
7.19 You must comply with applicable export/import laws. For example, you may not use the services in a U.S.-embargoed country; you may not authorize any person to use the services that is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC); you may not use or permit the use of the services to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State, or permit the use of the services by any person who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
7.20 You may not use our services as part of a high risk activity. You may not use our services as part of any activity where the failure of our services could result in the death or personal injury, or physical or environmental damage.
7.21 You may not try to pick up your mail at our physical locations.
7.22 You must comply with USPS Form 1583 (Application for Delivery of Mail Through Agent) and other carrier rules and agreements.
8.1 Initial Term. The initial term of your Plan will be one or more billing cycles, depending on your Plan choice. If your Plan does not state an initial term, the initial term is one billing cycle.
8.2 Your Plan automatically renews. Your Plan will renew automatically for renewal terms of the same length as your initial Plan term unless one of us give the other a notice of non-renewal at least 30 days prior to the expiration of the initial term, or the then-current renewal term, as applicable.
8.3 If you want to downgrade your Plan or terminate your services, see Sections 10 and 11.
8.4 We may terminate your Plan or services at any time. The Cancellation Terms at Section 11 apply unless we terminate your services for your breach of this Agreement. Section 14 describes our obligations if we terminate your service for breach.
9. Invoicing and Payment Terms
9.1 Monthly fees are based on your “billing cycle.” Monthly fees are calculated on a “billing cycle” basis unless otherwise stated in the Plan. Your “billing cycle” begins on your services activation date and continues for one month. For example, if your services are activated on January 15, your first billing cycle will begin on January 15th and end on February 14, and your billing cycles will continue from the 15th of each month to the 14th of the following month for the term of your Plan. If your service activation date is the 29th, 30th or 31st day of a month, your billing cycle will end on the last day of the calendar month that has fewer days than your service activation month. For example, if your service activation date is January 31st, your billing cycles will end on February 28, March 31, April 30, etc.
9.2 Fees may be billed in advance. Unless you have made other arrangements, we may bill monthly Plans in advance of each billing cycle and annual Plans in advance for 12 billing cycles. If your Plan includes set-up fees or other non-recurring fees, we may bill those fees in advance of Plan activation or later.
9.3. The Cancelation Fee may be billed when we receive your notice of cancelation. We may charge the cancelation fee described in our cancelation policy at any time on or after the day we receive your notice of cancelation.
9.4. Usage fees and other charges are billed on or after the time incurred.
9.45 Plan allowances do not roll forward. The unused part of any Plan limit does not roll forward. For example, if your Plan includes a maximum number of items per billing cycle and you do not use the maximum, the unused items do not carry forward to subsequent billing cycles.
9.6 Fees must be paid in United States Dollars.
9.7 We may add sales tax to your fees. The stated fees do not include any sales, use, VAT or like taxes. If we reasonably determine that we are required to collect any of those types of taxes by law, we may invoice you for these and you must pay them.
9.8 You must pay via payment card. Unless you have made other arrangements, you must authorize and maintain a current valid means to pay your fees via payment card. For recurring fees we may charge your card or account on or after the invoice date, but no earlier than ten (10) days before the billing cycle(s) covered by the invoice. We may charge other fees on or after the invoice date. If we have agreed that you may pay fees by means other than payment card fees, such as paper checks or ACH, fees are due thirty (30) days from the invoice date unless otherwise agreed in writing.
9.9 What happens if you don’t pay on time: We may suspend or terminate your services if our charge to your payment card or account is rejected or not timely paid for any reason. We may charge interest on overdue amounts at the lesser of 1.2% per month or the highest non-usurious amount permitted by applicable law. If we take legal action to collect an overdue amount, you must also pay our reasonable costs of collection, such as attorney fees and court costs. If we suspend your account for late payment, you must pay our reasonable reinstatement fee, not to exceed the minimum or base fee for one billing cycle for your Plan.
9.10 We may increase fees for renewals. We may increase fees for any renewal term by giving you reasonable advance notice of the increase. If you do not accept the fee increase you may give us your notice of non-renewal as provided in Section 8.4 above, provided that, if our notice of the fee increase is given less than 45 days prior to your next renewal date, the 30 day notice period required by Section 8.4 is inapplicable, and you may elect not to renew by giving written notice of non-renewal at any time prior to the renewal date.
9.11 Plan fees are non-refundable. Plan fees are non-refundable, unless you terminate your services because we violated the agreement.
10. Plan Changes and Service Cancellations
10.1 You may upgrade your Plan at any time and we will apply prepaid fees to the upgraded Plan. If you upgrade your Plan we will apply prepaid fees for the remaining unused part of your existing Plan to the upgrade Plan.
10.2 You may downgrade your Plan or cancel your services by giving at least 30 days advance notice. You may downgrade your Plan or cancel your service by contacting [email protected]. We will contact you to confirm your downgrade or cancellation. Your request to downgrade your Plan or cancel your services will become effective as of the last day of the billing cycle that ends 30 days after you give your notice of downgrade or termination. You remain responsible for Plan fees for your existing Plan through the effective date of downgrade or termination.
10.3 You remain responsible for base fees for your Plan term. In addition to the fees for services through the date of termination as described in Section 10.2 above, you remain responsible for the base fees for remaining part of the Plan term if your Plan term is longer than 1 billing cycle, except where the termination is by you for our violation of the agreement as described in Section 14 below. For example, if you purchase an annual plan that begins March 1, 2019 and you downgrade to a less expensive Plan by giving written notice on April 15, 2019, we will convert you to the less expensive plan on March 1, 2020.
10.4 If we discontinue your Plan, we may move you to the closest Plan that we continue to offer. We will give you notice if we are going to discontinue your Plan. Our notice will describe your other Plan options. We may move you to the Plan that corresponds most closely to the discontinued Plan (in our reasonable judgment) unless you give us notice that you select a different Plan or wish to terminate your account.
10.5 We may terminate your service at any time in our sole discretion. We may terminate your services at any time in our sole discretion. If we terminate your services, we will manage your account in accordance with our Cancellation Terms described in Section 11 below unless you are in violation of the Agreement.
11. Cancellation Terms
11.1 On termination of your Plan, you must immediately stop using your address. You must not give your ECM address to new senders, must stop using the address on your website, business cards, stationery, etc., and must notify your existing senders of your new address. You must do this as promptly as practical and no later than 5 days after these Cancellation Terms become effective.
11.2 You may not file a Change of Address notice with the US Postal Service. As stated in the USPS Form 1583 you signed when you set up your account with ECM, you may not file a change of address for your ECM address with the US Postal Service. You are responsible for changing your address with your senders and for making arrangements with ECM to receive your mail.
11.3 We will continue to receive your US Postal Service mail following Plan termination for 6 months or other time required by postal regulations. We will continue to receive your USPS mail following termination for as long as required by applicable regulation – currently 6 months. We are not required to continue receiving non-US Postal Service mail after Plan termination. We may elect to receive and may refuse/return those items, at our option, unless you have paid applicable post-termination fees in accordance with our then-current policies.
11.4 We will process and post your mail following Plan termination if your cancellation fee is paid. If you pay our cancellation fee in accordance with our then-current policies, we will receive your mail and post it to your online account in accordance with our then-current policies. We are not required to forward your mail items to you after Plan termination unless you ask us to and pay any applicable forwarding fees.
11.5 We may destroy your mail at any time following the end of the 6 month or other required period. Unless we are legally required to maintain your mail or account information after the end of the 6 months from termination, we may destroy your mail and information at any time following the end of the 6 months.
11.6 These Terms of Service remain in effect. These Terms of Service remain in effect for as long as we handle mail for you, even if your Plan, online account, or services have been terminated.
11.7 We may require you to pay Plan fees for the lapsed period to reinstate. If we agree to reinstate your Plan after expiration or termination, we may require you to pay standard Plan fees covering the lapsed period as a condition to reinstatement.
12. Confidential Information and Data Privacy
12.1 Your mail content and account data are your confidential information. Your “mail content” is any information that is part of the mail we receive for you as part of the services, such as addresses, return addresses, contents of the mail, and the nature of the materials that comprise your mail. Your “account data” is information that you provide about yourself and your personnel to set up and manage your account, such as your name, address and other contact information, and the names and contact information of your personnel. Your mail content and account data are your “Confidential Information.”
12.2 Unless a specific exception applies, we will use and disclose your Confidential Information only to provide our services to you. Unless a specific exception listed below applies, we will not use your Confidential Information for any purpose other than providing services to you, and we will not disclose your Confidential Information outside of ECM.
- to the USPS and other carriers as necessary to comply with applicable laws and regulations and provide the services to you;
- as permitted by the Acceptable Mail Policy at https://www.earthclassmail.com/acceptable-mail-policy
- as permitted by Section 12.5 for subpoenas and other legal requests;
- to our subcontractors and service providers that meet the requirements stated in Section 19.6; and
- credit reporting agencies, anti-fraud services, and like services.
12.3 Your personal data is private. Personal data is any information about an identified natural person or identifiable natural person that we receive, about you or your personnel, or that is part of your mail. Your personal data is your “Confidential Information” that is covered by the other commitments in this Section. We will protect your personal data from unauthorized use, disclosure, access, corruption and destruction as described in our security materials described in Section 3.6. We will require our subcontractors to comply with privacy and security obligations at least as stringent as the requirements applicable to ECM. We will notify you within ten (10) business days if we discover an unauthorized use or disclosure of your personal data, and will cooperate with your reasonable requests for information in connection with an unauthorized use or disclosure.
If you need additional legal commitments from ECM to comply with the European Union’s General Data Protection Regulation or other special regulatory schemes, please contact ECM support.
12.4 We may use system data and de-identified aggregate data. We may use system generated data about your use of our services, and numerical or financial data about the amount of mail we process for you to analyze and improve our services, so long as it is collected and maintained in aggregate, de-identified form. We may share aggregate de-identified data outside of ECM to participate in industry anti-fraud and similar initiatives.
12.5 Subpoenas and other legal requests.
12.5.1 Law Enforcement, Regulatory. We will respond to government or law enforcement requests as described in the Acceptable Mail Policy.
12.5.2 Civil Action. If we get a subpoena or other request to disclose or save your mail or other Confidential Information as part of a civil action, we will give you notice of the request prior to disclosure, but may disclose the information unless you take steps to legally prohibit or restrict the disclosure. You agree that unless you take steps to prohibit disclosure, we may, at our discretion, respond to subpoenas issues by any court, government agency or office, or other tribunal having jurisdiction in the United States, any State, territory or possession or the United States (even if ECM does not have an office in that place), or the place you have listed as your physical address in our account records (even if ECM does not have an office in that place). You must pay our reasonable costs of responding to a subpoena, including attorney fees if we hire an attorney in connection with the request.
We may suspend your access to your account if we reasonably believe that you have violated the agreement. We will give you notice of a suspension. During a suspension we will continue to receive your mail, but we are not required to process your mail or make it available to you online.
Either of us may terminate the agreement if the other is in violation of the agreement, if we have first given the other a chance to correct the problem. If we have not met our obligations to you under the agreement, you may terminate the services without liability, if you first give us notice of the problem using your online account and we fail to correct the problem within 10 days. If you properly terminate the agreement for our violation of the agreement, we will refund to you any fees you pre-paid for the remaining unused part of your Plan. We may terminate the agreement if you are in violation of the agreement and do not correct the violation within a reasonable period of time, after we give you notice of the violation. We may suspend your account during the time that you are correcting a violation in response to our notice. If you violate the agreement more than once in the same way, or three or more times in any way, we may terminate your services without giving you an opportunity to correct the problem. If we terminate the agreement under this paragraph, we are not required to refund fees to you, and are not required to handle your mail items except as required by law. See Section 10.2.
15.1 We may change your ECM address. We may change your mailbox address by giving you written notice of the change if the address is no longer available for reasons beyond our control, or if we have to make changes to ensure the commercial viability of our business. You must notify your senders promptly of a change in your mail address.
15.2 We may change the ECM Plan or services. We may modify any of our services offerings at any time. If a modification or suspension materially and adversely affects your use of the services, you may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change, and receive a refund of any prepaid fees as your sole and exclusive remedy.
15.3 ECM may change these Terms of Service. ECM may change these Terms of Service at any time in its sole discretion. Any amendment will become effective as of the first day of the Plan renewal that follows the publication of the amendment by at least fifteen (15) days. If the amendment materially and adversely impacts your use of the services, you may terminate the services by giving written notice no later than fifteen (15) days following the date the amendment is published, and receive a refund of prepaid fees for unused services as your sole and exclusive remedy.
16. ECM’s liability to you is limited even if ECM is at fault. You agree that our liability to you is limited as follows:
16.1 Lost or damaged checks or other financial instruments: We are not responsible for any lost or damaged checks, currency, or other financial instruments except for reasonable stop check fees and, if you have purchased a Plan that includes check deposit services, a refund of fees you have paid for the services for the billing cycle in which the loss occurred.
16.2 Unavailability of Online Account: We are not responsible for unavailability of your online account unless we have failed to use reasonable efforts to keep the account available, but in any case our liability to you is limited to a refund of a pro-rata portion of your fees based on the number of hours that the unavailability exceeded 10 hours in any billing cycle.
16.3 IN ALL OTHER CASES, YOU AGREE THAT THE MAXIMUM TOTAL AMOUNT OF MONEY YOU CAN RECOVER FROM ANY OF ECM OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR SUPPLIERS, INDIVIDUALLY AND IN THE AGGREGATE, FOR ANY CLAIM YOU MAY HAVE AGAINST ANY OF THEM IN CONNECTION WITH THE SUBJECT MATTER OF THE AGREEMENT IS LIMITED TO THE AMOUNT OF FEES YOU HAVE PAID OR THAT ARE PAYABLE FOR SERVICES FOR THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, UNLESS THE CLAIM IS BASED ON ECM’S INTENTIONAL MISCONDUCT OR IS FOR PERSONAL INJURY OR DEATH RESULTING FROM THE NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT OF ECM. IN ADDITION, YOU AGREE THAT IN NO EVENT ARE YOU ENTITLED TO RECOVER ANY LOST REVENUE, LOST PROFITS, DAMAGES FOR LOST DATA, OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES OR ANY KIND.
16.4 You acknowledge that ECM has set its fees in reliance on the limitations of remedies and liability stated in these Terms of Service, and that these limitations reflect an agreed allocation of risk between you and ECM. The limitations stated in this Section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
You will pay ECM’s costs of defending and resolving a legal claim against ECM that arises from or is related to your use of our services or your violation of the agreement. If someone (other than you) asserts a legal claim against ECM or any of its officers, members, managers, employees, staff, personnel, agents, licensors or suppliers (the “ECM Persons“) arising from or related to your use of the services or your violation of this agreement, you will pay the reasonable costs incurred by the ECM Persons to defend the claim, including reasonable attorney fees, and any damages awarded to the claimant by a court or other tribunal with jurisdiction, or paid to the claimant by the ECM Persons to settle the claim. You agree that ECM may control the defense of the claim at its option, or may require you to defend the claim directly. If ECM elects to control the defense of the claim, you will reimburse ECM for its reasonable defense costs and expenses as incurred. Your obligations under this Section include claims arising as part of a dispute over control of your account, injury to our personnel, investigations by government agencies, and all other claims. You agree that if there is a dispute over control of your account, ECM may suspend access to the online account and file an action with a court naming as defendants you and the other party to the dispute, and that you will pay the costs to bring and resolve this claim as provided in this Section.
18.1 The agreement is governed by the laws of the State of Texas and the United States of America, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. Each of us expressly and irrevocably disclaims and waives the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Act.
18.2 Each of us agrees to try to resolve a dispute informally before making a legal claim. Each of us agrees to give notice of a dispute to the other and to make a good faith effort to resolve the dispute before filing a legal claim.
18.3 Each of us agrees to submit disputes to binding arbitration in San Antonio, Texas, unless the claim is the type of claim that agreement allows to be brought in a court, such as a request for a restraining order, or other equitable relief as described below. The arbitration shall be conducted by one arbitrator in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in person unless each of us agrees to a telephonic or written submissions procedure. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. Each party waives any right to a trial by jury. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees not to bring a claim related to the subject matter of this agreement more than two years after the time that the claim accrued. Except as may be required by law, neither of us nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
18.4 Each of us may seek injunctive relief to address certain situations without the need to attempt an informal resolution or submit to arbitration. The agreement does not prohibit, condition, or delay a party’s right to seek injunctive relief in any court of competent jurisdiction to address the other party’s infringement or misappropriation of its intellectual property, the other party’s breach of its confidentiality obligations under this agreement or, as to ECM, to address a risk arising from your violation of the agreement.
19.1 We may use your name and logo on our Website and in other publicity unless you tell us not to. Unless you tell us not to, by sending a message to [email protected], we may identify you and use your name, logo and other trademarks in our marketing and sales materials on an appropriate area of our website and marketing materials. We may not state or imply that you endorse the ECM services. We will use and display your trademarks in accordance with your trademark usage guidelines communicated to us. Any goodwill accruing from our use of your trademarks shall accrue to you.
19.2 We reserve all rights in our intellectual property. Except for rights expressly granted in this Agreement, ECM retains all right, title and interest in and to its services, technology, and information and all related intellectual property rights. No rights in intellectual property may arise by implication or estoppel.
19.3 You hereby license to ECM any feedback or suggestions that you provide regarding the services or ECM’s other existing or proposed products or services. The license is perpetual, irrevocable, royalty free, worldwide, unconditional, fully sublicensable and transferable, and includes the right to make, have made, use, sell, offer to sell, import, copy, display, perform, modify, distribute in modified or unmodified form, and commercialize any intellectual property, without accounting to you. You agree that you will not assert, or authorize, assist, or encourage any third party to assert, against ECM or any of its affiliates, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding the service or any of our other products or services that you use.
19.4 Legal notices must be given in a specific way. Your legal notices must be sent by electronic mail to [email protected], and must also send your notice via first class United States mail to ECM’s physical address appearing on its site on the day the notice is transmitted electronically. ECM’s legal notices to you must be sent by electronic mail to the email address for your primary contact on ECM’s account records, and copied via first class United States mail to your physical notice address, or if your physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.
19.5 Except for your payment obligations, neither of us is in violation of the agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.
19.6 Neither of us may assign any rights or obligations under this agreement, whether by operation of law or otherwise, without the other’s prior written consent (not to be unreasonably withheld); provided, however, either of us may assign this agreement in its entirety without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. You and the assignee must comply with ECM’s policies for account assignment before ECM will transfer control of your account, including signing ECM’s reasonable assignment and assumption form. This Agreement will bind successors and permitted assigns of each of us.
19.7 We may use third parties to help provide the services to you. We are responsible for the compliance by the third parties with the agreement. On your request, we will identify the third parties that we use to provide services to you.
19.8 Each of us is an independent contractor. Neither of us is the agent of the other, and neither of us is authorized to make any representations, contract, or commitment on behalf of the other. The use of the words “partner” or “partnership” in this agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide.
19.9 These interpretations will be given to certain words in the agreement: In calculating any period of time under this agreement, the day of the act, event or default from which the designated period of time begins to run is not be included. The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The word “personnel” refers to a person’s employees and individual contractors who are under the person’s direct supervision. The word “affiliate” refers to an individual or entity that controls, is controlled by, or is under common control with the person referred to, where control means ownership of the majority of voting interests of an entity or the right to control the policies of the entity by means of a controlling number of seats on the entity’s governing body. The use of the word “including” should be read to mean “including, without limitation.” All references to monetary amounts mean United States Dollars. The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement. For notice purposes, the words “business day,” “business hours,” or the like means Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Central Time, excluding federal public holidays in the United States. A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. All software and other technology provided for your use is licensed and not sold; any references to a sale or purchase of software or other technology means the sale or purchase of a subscription. Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular imply the plural as indicated by the context, and pronouns that are gender specific refer to either gender. The Section captions in this Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of this Agreement.
19.10 There are no other third-party beneficiaries under this Agreement.
19.11 Invalid terms may be removed. If one or more of the terms of the agreement is adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret the agreement as if those terms had not been included, or may reform those terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the agreement.
19.12 The Agreement is the entire agreement between you and ECM regarding your use of services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of the Plan or these Terms of Service will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any business form is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Plan terms, and (2) these Terms of Service. Your use of the services, both during any free use period and any paid period is subject to all of the terms, conditions, and restrictions stated in these Terms of Service.