Last Updated: 7/22/2024
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, registered agent services, and, through Stable's authorized third party Commercial Mail Receiving Agency (CMRA) providers and Remote Deposit Capture service providers (the "Authorized Providers"), certain mail handling services, each as further described herein (all of the foregoing, 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 IN SECTION 18 OF THIS AGREEMENT WHICH WILL REQUIRE THE CUSTOMER (AS DEFINED BELOW) TO SUBMIT CLAIMS AGAINST STABLE TO BINDING AND FINAL ARBITRATION.
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. Registered Agent Services. If Customer, as part of Customer’s Subscription Plan and/or as an add-on service, has purchased registered agent services as further described here (the “Registered Agent Services”), then subject to the terms and conditions of this Agreement (including, without limitation, the payment of applicable fees), Stable will use commercially reasonable efforts to provide Customer the Registered Agent Services as further described and in accordance with Section 3 below. Customer acknowledges and agrees that Stable may work with, utilize, and/or use third-party providers and/or subcontractors to provide some or all of the Registered Agent Services.
1.6. Check Deposit Service. Subject to the terms of this Agreement (including, without limitation, the payment of applicable fees), a limited agency is established between Customer and Stable, and/or its Authorized Providers, in order to facilitate deposits of checks received in Customer Mail, as further described in Section 4 below. Customer acknowledges and agrees that Stable, and/or its Authorized Providers will use commercially reasonable efforts execute the permissions granted by such limited agency. Customer also acknowledges and agrees that additional responsibilities and information sharing shall be required in order to facilitate check deposits on their behalf, and Customer will provide such information to Stable and/or any Authorized Provider’s at their request, including Representations and Warranties, Deposit Account Identifying Information, and any other information required to facilitate deposits on Customer’s behalf.
1.7. 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 5.3 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").
1.8. 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.
1.9. Customer Data. Customer understands and agrees that Stable may collect data and information, which may include personally identifiable information in connection with Customer's and/or its Authorized User's use of the Stable Service (collectively, "Customer Data"). Customer Data does not include Operational Metrics (as defined in Section 9.2 below). Customer grants to Stable a non-exclusive, royalty-free, fully-paid, worldwide license to use and process Customer Data as reasonably necessary for Stable to provide Customer the Stable Service hereunder. Customer acknowledges and agrees that as between Customer and Stable, Customer is the data controller and Stable is merely a data processor and/or service provider as such terms are defined pursuant to applicable data protection laws. Any personally identifiable information provided or collected through or in connection with Services shall only be used in accordance with this Agreement and the Stable's Privacy Policy. Customer represents and warrants that, with respect to any Customer Data (including, without limitation, any personally identifiable data), transmitted, hosted, stored or processed, or otherwise provided by Customer to Stable in connection with Customer's and its Authorized Users' use of the Stable Service: (a) Customer has all the rights necessary to grant the Stable the licenses granted herein in and to Customer Data; (b) Customer is in compliance with all applicable data laws, and (c) Customer has made all disclosures to, and obtained all permissions and/or approvals from, each applicable data source as may be necessary or required to transmit such data through the Stable Service. Customer shall retain all right, title, and interest in and to Customer Data.
1.10. 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.
1.11. 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. REGISTERED AGENT SERVICES
3.1. Registered Agent Appointment. Stable can prepare and file change of registered agent forms appointing Stable and/or its designated third party provider as Customer’s registered agent in the applicable U.S. jurisdictions (the “Registered Agent”) where Customer is incorporated or qualified to do business as designated by Customer. It is Customer’s sole responsibility to keep the Registered Agent informed as to any changes in address, or of changes of persons authorized to receive notifications, reports, processes and/or other legal matters from Stable and/or the Registered Agent.
3.2. Authorization & Instructions. Customer may from time to time communicate instructions to the Registered Agent through an attorney-in-fact or through such other third party who shall have the “usual” or “ostensible” authority to give instructions; and neither Stable nor the Registered Agent shall have any liability in respect of or arising out of any action or inaction by Stable and/or the Registered Agent that is in accordance with such instructions. Since the forms involved with switching the registered agent are administrative and to the extent Customer purchases and/or requests services that requires Customer’s or its designee’s signature, Customer hereby grants the Registered Agent and its employees, contractors and agents (a) the authority to sign and file any reports or documents with the applicable states (i) as “Special Secretary” or “Special Manager” on behalf of the applicable entity, or (ii) to the extent required by applicable state law, in the name of the Secretary then listed in Customer’s Account for the applicable entity, unless Customer notifies Stable in writing otherwise and (b) a Limited Power of Attorney to sign reports and documents in such office and with such authority as is required to file such forms and documents with the applicable states.
3.3. Receiving Service of Process & Other Legal Documents. Customer hereby authorizes Stable and/or the Registered Agent to receive service of process and legal documents of any kind (“Legal Documents”) and further agrees that Stable and/or the Registered Agent can open, scan, upload and transmit the Legal Documents into Customer’s Account in connection with providing the Registered Agent Services to Customer hereunder. Registered Agent Services are limited to the receipt of service of process as well as the receipt and forwarding of Legal Documents, and do not include the receipt of any general or regular mail or other items. Accordingly, Stable does not assume liability to Customer, or any third party, for loss of mail or other items which are not Legal Documents, unless Customer has purchased Mail Services.
4. CHECK DEPOSIT SERVICE
4.1 Authorization. BY REQUESTING AND ACCESSING DEPOSIT SERVICES THROUGH THE ACCOUNT OR OTHERWISE, CUSTOMER IS GIVING EXPRESS AND LEGALLY BINDING AUTHORIZATION TO STABLE AND/OR ITS AUTHORIZED PROVIDERS, AS APPLICABLE, TO ACT AS CUSTOMER’S AGENT TO PERFORM THE APPLICABLE DEPOSIT SERVICES.
4.2 Mail-In Deposits. Upon Customer’s request, and subject to the terms of this Agreement, Stable will provide Customer Mail-In Deposit service to process and deposit checks received through Mail Service, to Customer’s financial accounts. Customer hereby grants permission to, and expressly authorizes, Stable to take the following actions with respect to checks received by mail as requested by customer through Customer's account; (a) endorse the check using the appropriate restrictive endorsement; (b) repackage the check for mail; (c) physically forward customer check to a financial institution branch associated with the Customer's designated deposit account; and/or (d) if necessary, include with the check any additional deposit information as required by the financial institution.
4.3 Virtual Lockbox. Remote deposit capture (“RDC”) is a technology-based method that lets financial institutions accept checks for deposit using electronic images. Upon Customer’s request, and subject to the terms of this Agreement, Stable will facilitate RDC through its RDC provider, Stripe, Inc. (“Stripe” and such RDC services, the “Stripe RDC”) pursuant to the Stripe Treasury - Platform Terms (“Stripe Treasury - Platform Terms”), and subject to Customer’s compliance with the associated terms and conditions of the Stripe Treasury Remote Deposit Capture Services (“Stripe RDC Terms”). By using Stripe RDC, Customer hereby expressly acknowledges and agrees that it has reviewed, accepted and shall comply with the Stripe RDC Terms, and grants Stable permission, and expressly authorizes Stable, to upload the scan or photograph of the endorsed check received through Stable’s Mail Service, for upload to the Stripe RDC for remote deposit.
4.4 Representations. Customer represents and warrants with respect to all Mail-In Deposit and/or Stripe RDC requests that (a) Customer is a signer or account owner of the financial account to make deposits to, and (b) each Check submitted for deposit is in all other respects properly authorized. Customer also understands that Stable, and its Authorized Providers, may rely solely on identifying numbers provided by or on behalf of Customer to determine the financial institution and account even if the numbers identify a financial institution or account holder different from the one identified by or on behalf of Customer by name. Without limitation to any other rights or remedies of Stable under this Agreement, or in law or equity, Customer agrees to indemnify Stable for any losses, liabilities, costs or expenses suffered or incurred as a result of the breach of these representations and warranties.
4.5 Regulatory Compliance. These deposit transactions will be placed through Customer’s designated financial institution who will act as the Originating Depository Financial Institution (“ODFI”). The terms and conditions of this Agreement do not limit Customer’s obligation to comply with the Operating Rules (“Rules”) of the National Automated Clearing House Association (“NACHA”) and applicable Federal regulations (“Regulations”) governing deposit transactions.
4.6 Notice of Unauthorized or Erroneous Transfers. Customer agrees to promptly and regularly review all entries and other communication received from Stable and to immediately notify Stable if there are any discrepancies between Customer’s records and those provided by Stable, the ODFI or the Customer’s financial institution, or with respect to any transfer not authorized by Customer. If Customer fails to notify Stable, and or its Authorized Providers, within 10 business days of the date Stable, or its Authorized Providers, sent the confirmation deposit email or other report of activity, then the Customer will be responsible for all losses or other costs associated with any erroneous or unauthorized transfer.
4.7 Responsibility in Accepting Transactions. Stable, or its Authorized Providers, will only be responsible for processing deposit requests that have been sent in proper format and on a timely basis. Stable, and/or its Authorized Providers will advise Customer of any applicable cut-off time. Customer does not have the right to cancel or amend any entry after the request has been processed and submitted for deposit.
4.8 Responsibility in Originating Transactions. Stable, and/or its Authorized Providers, will use the information provided by Customer to process the deposit request and send it to the designated financial institution. Customer acknowledges that Stable, or its Authorized Providers, may reject checks for any reason permitted or required in this Agreement or the Stripe RDC. Customer also understands that a check may be rejected if the check would cause Stable, or its Authorized Providers to violate any Federal Reserve or other regulatory risk control program or any other law or regulation.
4.9 Responsibility for Account Balances. Customer is solely responsible for ensuring and maintaining Customer’s adequate financial account balances in connection with the use of Stripe RDC at all times, and Customer expressly acknowledges and agrees that Customer shall immediately add funds to its Stripe RDC account upon notice of a negative account balance from Stable and/or Stripe. Customer’s failure to comply with this Section 4.9 shall be deemed a material breach and, notwithstanding anything to the contrary herein, Stable may immediately suspend or terminate Customer’s access to the Stripe RDC or the Stable Service with or without notice.
4.10 Disputed Deposits, Chargebacks, and Negative Account Balances. As a condition to using Stripe RDC, Customer shall be solely responsible for any and all amounts, fees, charges, liabilities, losses, fines, damages, costs, expenses and/or penalties arising from disputed deposits, chargebacks and/or negative account balances initiated by Customer or otherwise arising from Customer’s use of Stripe RDC (collectively, “Deposit Penalties”). Customer acknowledges and agrees that Stable shall have the right to invoice Customer for any such Deposit Penalties, which Customer shall pay within five (5) days of the invoice date, and Customer shall otherwise indemnify and hold Stable harmless against, any Deposit Penalties incurred by or assessed against Stable arising from Customer’s use of Stripe RDC.
4.11 Limits of Liability. Stable, and its Authorized Providers, will be responsible for its performance as the limited agent for Customer accordance with the terms of this Agreement and the Stripe RDC Terms. Stable, and its Authorized Providers will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, financial institution communication common carriers, or the clearing houses through which checks may be and/or originated. Stable, and/or its Authorized Providers, will not be responsible for any loss, liability, or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, labor disputes, failures in communication networks, legal constraints or other events beyond the control of Stable, or its Authorized Providers.
5. CUSTOMER OBLIGATIONS
5.1. 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 or Registered Agent will be responsible (whether to Customer or to any third party) for items, including, without limitation, any Customer Mail and/or Legal Documents, 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 the Services (each, an "Action Item"). By using the Stable Service to request performance of any Action Item, Customer acknowledges and agrees that Customer is giving its express and legally binding authorization to Stable and its Authorized Providers and/or the Registered Agents to perform such Action Items.
5.2. Customer Assistance. Without limiting any of the foregoing, Customer understands and agrees that Customer will be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer’s information and for confirming and otherwise ensuring that Stable, its designated Authorized Provider and/or the Registered Agent has the complete, up-to-date and otherwise accurate information required for Stable, the designated Authorized Provider, and/or the Registered Agent, to provide the Services to Customer and 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 Services, or any other breach of security or unauthorized or illegal activity that Customer reasonably suspects. Stable shall have no liability for deficiencies in the Services or the Stable Service resulting from any act or omission of Customer, or any of their respective employees, contractors, or agents.
5.3. 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 and/or the Registered Agent to take actions regarding the Services, including, without limitation, with respect to Customer Mail and/or Legal Documents, 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.
5.4. 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 by any Authorized User will be deemed a breach by Customer.
6. FEES; PAYMENT TERMS
6.1. 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.
6.2. 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").
6.3. 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.
6.4. 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.
7. TERM; TERMINATION
7.1. 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.
7.2. 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.
7.3. 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) Handling of Legal Documents Upon Termination of Registered Agent Status. Upon termination or expiration of this Agreement and/or the Registered Agent Services, Stable and/or its third party providers shall no longer be deemed Customer’s Registered Agent. Customer expressly acknowledges and agrees that neither Stable nor its third party providers shall have any further obligation to forward or remail Legal Documents that are received by Stable and/or its third party providers after Customer’s Registered Agent Services have been terminated, except as expressly set forth in this Agreement.
(d) Survival. The following Sections will survive any termination or expiration of this Agreement: 1.1, 1.8, 1.9, 1.10, 1.11, 2.1, 2.2(e); 2.3(b), 2.4, 2.5(b), 4, 5, 6, 7.3 and 8 through 20 (inclusive).
8. 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.
9. STABLE PROPRIETARY RIGHTS
9.1. 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.
9.2. 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.
9.3. 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.
10. INDEMNIFICATION. Customer shall indemnify, defend, and hold Stable and its affiliates and subsidiaries, and its Authorized Providers, and its and their respective officers, directors, shareholders, employees, contractors, agents, subcontractors, service providers, successors and assigns (each, a "Stable Party"), 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; (f) Stable and/or any of its subcontractors being named as a defendant in an action based on Stable’s and/or its subcontractor’s status as Customer’s registered agent; (g) a delay or failure of Customer to receive Legal Documents after Customer’s Registered Agent Services have been terminated; (h) Customer’s or its Authorized Users’ breach or violation of, or any act or omission of Customer or any Authorized User that causes or results in Stable’s breach or violation of, any laws, rules, or regulations, or other terms, conditions, agreements or policies applicable to Customer’s use of the check deposit and/or RDC services described in Section 4, including, but not limited to, any terms and conditions of the ODFI, the NACHA Rules, Regulations governing deposit transaction, the Stripe Treasury - Platform Terms and/or the Stripe RDC Terms, and/or (h) 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 Party or requires any Stable Party to contribute to the settlement without Stable's prior written consent. Stable and any Stable Party may participate and retain its own counsel at its own expense.
11. DISCLAIMER. NEITHER STABLE NOR ANY OF ITS SERVICE PROVIDERS IS A LAW FIRM OR AN ATTORNEY AND DOES NOT PROVIDE LEGAL ADVICE, NOR IS ENGAGED IN RENDERING LEGAL OR OTHER PROFESSIONAL SERVICES. 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, SERVICE 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.
12. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL STABLE (WHICH, FOR PURPOSES OF THIS SECTION 12 INCLUDES STABLE AND ITS AFFILIATES, EMPLOYEES, CONTRACTORS, DIRECTORS, OFFICERS, AUTHORIZED PROVIDERS, SERVICE PROVIDERS, AND AGENTS) BE LIABLE FOR ANY 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, SERVICE PROVIDERS, AND SUPPLIERS.
13. 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 11 and 12 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.
14. BASIS OF THE BARGAIN. The warranty disclaimer and limitation of liability set forth above in Section 11 and 12 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.
15. 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; (d) the failure of any third party, including but not limited to the United States Postal Service or any commercial delivery or courier service, to provide delivery or courier services accurately and on time; or (e) any other factor outside of Stable's reasonable control.
16. 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.
17. 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.
18. GOVERNING LAW AND DISPUTE RESOLUTION
18.1. 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.
18.2. 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.
18.3. 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.
18.4. Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 18.3 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.
18.5. 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.
19. ADDITIONAL TERMS; MODIFICATIONS TO THIS AGREEMENT
19.1. 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
19.2. 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 19.2). If Stable makes any material changes to this Agreement, Stable will provide Customer reasonable prior notice 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 the applicable effective of the updated Agreement, signifies Customer's acknowledgment and agreement to be bound by the revised Agreement.
20. GENERAL. Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in this Agreement. The parties acknowledge and agree that a limited agency is established between Stable and Customer only for the permissions explicitly granted in Section 4, and except for that limited authority and responsibility, they are dealing with each other as independent contractors and that no other provision in this Agreement and its performance shall be construed as creating a joint venture or agency between Stable and Customer. This Agreement is not intended to grant rights to anyone except Customer and Stable, and in no event shall this Agreement create any third party beneficiary rights. Stable may delegate the performance of any services hereunder to its affiliates, contractors, and third party subcontractors and/or service providers, including, without limitation, the Authorized Providers. This Agreement, the Privacy Policy, any Additional Terms, and any other policies or terms and condition referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to Customer may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to." Customer agrees that this Agreement will not be construed against Stable by virtue of having drafted them. The official text of this Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language. Any delay in performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.
21. QUESTIONS AND ADDITIONAL INFORMATION. Please feel free to contact Stable at hello@usestable.com if you have any questions about this Agreement.
