Terms & Conditions
1. LICENSE GRANT
1.1 In consideration of Licensee’s payment of the applicable service fees and usage fees set forth on the MyMailHouse website, and subject to the Terms, MCDS grants to Licensee a limited, non-exclusive, non-transferrable and non-sublicensable license to use the Solutions as instructed by MCDS to send Licensee’s Documents to Recipients via U.S. Postal Service solely for your internal business purposes or personal use. “Document” as used herein means Licensee's letter correspondence as formatted and sent to MCDS by Licensee for delivery to a Recipient. “Recipient” means the Licensee- designated addressee or intended entity to whom MCDS sends a Document on behalf of Licensee. This license includes the right to download and install specified computer software used in connection with MyMailHouse as applicable. In the event Licensee has installed any such software, Licensee has the right to make a reasonable number of copies of it for backup, archival and disaster recovery purposes.
1.2 The license begins on the date specified in our Registration Form and will terminate if any required service or usage fee is not paid when due, or otherwise terminated as provided herein.
1.3 MCDS shall provide Licensee with a username and password that will grant Licensee access to MyMailHouse upon Licensee’s proper registration and payment. Each MyMailHouse username and password is considered the confidential information of MCDS. Licensee and/or its representatives are responsible for undertaking safeguards to prevent unauthorized disclosure of any MyMailHouse username or password issued to it or any of its users and recognize that this confidential information must remain under Licensee’s control at all times.
1.4 Other than the rights expressly licensed hereunder to Licensee, no other rights or interest whatsoever in the Solutions are granted to Licensee.
2. FEES AND PAYMENT
2.1 All applicable fees are debited from the total amount of Licensee’s purchased MyMailHouse Solutions during the term. “Usage Fees” are the per Document fees and do not include taxes, if any, which are charged separately.
2.2 Documents that Licensee subsequently requests not be delivered and Undeliverable Documents are both subject to Usage Fees and the cost of postage, if applicable. “Undeliverable Document” means a Document that MCDS is not able to deliver through no fault of its own.
3. LICENSEE’S OTHER OBLIGATIONS
3.1 Licensee agrees: (a) to protect the confidential and proprietary nature of the Solutions to at least the same degree it protects its own confidential information of the highest sensitivity; (b) not to decompile, disassemble, reverse translate, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, or programming or interoperability interfaces of the Solutions, nor allow or enable any third party to do so; (c) not to adapt, develop, improve, translate, modify or create derivative works based upon the Solutions; and, (d) and not to otherwise convey, display or make available to any third party the Solutions, in whole or in part, or any rights therein.
3.2 Licensee is solely responsible for utilizing MyMailHouse pursuant to all applicable local, state, federal, and foreign laws and regulations, including but not limited to laws and regulations pertaining to personal data privacy. Licensee acknowledges and agrees that the advertisement of goods, services, or real property via the transmission of unsolicited mail may be in violation of state and federal laws and regulations and may subject the advertiser to penalties. Licensee will include its name and address on each Document and comply with any “do not send” or “do not call” request as applicable to the Documents. Alleged or actual breach of this provision can result in the immediate suspension of any and all MyMailHouse services for Licensee or termination of this agreement, at MCDS’ sole option.
3.3 Licensee agrees that neither it nor any of its representatives or agents shall transmit to MCDS any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. MCDS will fully cooperate with any law enforcement authorities or court order requesting or directing MCDS to disclose the identity of anyone transmitting or posting any such information or materials.
3.4 Licensee agrees that it is Licensee’s sole responsibility to confirm the name(s) and address(es) of the recipient(s) (including spelling) and content of the Documents prior to submittal to MCDS and that MCDS has no obligation to do so.
3.5 Licensee is responsible for adopting reasonable measures to limit its exposure with respect to the potential loss and damage of its Documents, including (without limitation) examination and confirmation of Document format prior to Licensee’s use of MyMailHouse, provision for the identification and correction of errors and omissions, preparation and storage of backup data, replacement of lost or damaged data or media, and reconstruction of data.
4. MCDS’S OBLIGATIONS
4.1 In the United States of America, when MCDS provides hosted postal mail services and it receives Licensee’s mail Documents by 3:00 P.M. Mountain Time, MCDS will use its reasonable commercial efforts to deliver such Documents to a mail collection location the next MCDS business day provided Licensee’s Documents are received by MCDS in their entirety and properly formatted. All mail Documents are subject to local postal holidays. Postage rates are a) charged separate from the Usage Fees, b) subject to change without notice and c) charged to Licensee at the actual current postage rate for the class of service chosen by the Licensee on the day of posting..
4.3 Although MCDS may from time-to-time monitor or review Documents, MCDS is under no obligation to do so and assumes neither responsibility nor liability arising from the content of any such Documents. MCDS shall neither modify the content nor the format of any Document unless otherwise agreed to in writing by both Licensee and MCDS.
4.4 MCDS may make changes from time-to-time in its standards and procedures for performing the MyMailHouse services at any time without notice. MCDS will attempt to schedule maintenance to its systems during nonpeak usage hours. Any scheduled maintenance that may result in MyMailHouse being unavailable will be communicated to Licensee’s Technical Contacts and/or notice will be posted on the MyMailHouse website prior to the commencement of the maintenance unless maintenance is being conducted due to an emergency. MCDS may subcontract any component of MyMailHouse to one of its licensed providers
5. CONFIDENTIAL INFORMATION
5.1 “Confidential Information” as used herein means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information shall not include information (a) already lawfully known to the receiving party without obligation of confidentiality, (b) disclosed in published materials without fault of the receiving party, (c) generally known to the public without fault of the receiving party, (d) lawfully obtained from a third party not under any obligation to maintain the confidentiality of either party, (e) required by applicable law or regulations to be released, or (f) independently developed by receiving party, provided the person or persons developing the same have not had access to relevant proprietary information of disclosing party.
5.2 MCDS acknowledges that Licensee’s Documents may contain proprietary and Confidential Information. MCDS agrees to keep the Documents in confidence and to take commercially reasonable precautions to ensure that no unauthorized persons have access to the Documents and that no unauthorized copies are made.
5.3 Each party agrees that it shall not disclose to any third party any Confidential Information of the other party, which it learns during the course of its performance of this Agreement, without the prior written consent of such other party. Notwithstanding the foregoing, the receiving party may make disclosures required by court order, provided the receiving party uses reasonable efforts to limit disclosure and to obtain confidential treatment or protective order and has allowed the disclosing party to participate in the proceeding.
5.4 All of the Confidential Information provided by the disclosing party under this Agreement, including any copies or reproduction thereof, remains the exclusive property of the disclosing party. Immediately upon a request by the disclosing party at any time, the receiving party will turn over to the disclosing party all Confidential Information of the disclosing party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof. In lieu of the return of such items, the disclosing party, at its sole option, may request the receiving party destroy all tangible items containing the Confidential Information and provide written certification of such destruction to the disclosing party.
5.5 Both parties shall have, in addition to other legal remedies that may be available, the right to seek equitable and injunctive relief to prevent any such unauthorized use or disclosure of Confidential Information. In the event MCDS seeks relief and is successful in obtaining it, Licensee agrees to be responsible for paying all MCDS’ expenses in seeking such relief, including all costs of bringing suit and all reasonable attorney’s fees. Obligations and rights under this section shall survive any expiration or termination of the Agreement for any reason whatsoever
6.1 Licensee acknowledges that MCDS and its applicable licensors exclusively own and retain all rights, title and interest in and to the Solutions, and in any and all portions or copies thereof, including any and all intellectual property rights, and that the Solutions contain valuable trade secrets and proprietary information of MCDS.
7. DISCLAIMER OF WARRANTIES
7.1 MYMAILHOUSE AND ALL SOLUTIONS LICENSED HEREIN ARE PROVIDED “AS IS”, AND MCDS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, IN LAW OR IN EQUITY TO LICENSEE REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF, AND ASSUMES NO RESPONSIBLITIES WHATSOEVER WITH RESPECT TO THE USE OF THE SOLUTIONS PROVIDED HEREIN, OR ANY PART THEREOF, OR ANY DATA DISPLAYED OR GENERATED BY THE SOLUTIONS, OR INTERPRETATIONS, RECOMMENDATIONS, OR ACTIONS, OF ANY KIND, TAKEN OR NOT TAKEN THAT ARE BASED UPON SUCH DATA OR INTERPRETATIONS, BY LICENSEE OR THIRD PARTIES. MCDS DOES NOT WARRANT THAT ACCESS TO OR USE OF MYMAILHOUSE WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT MYMAILHOUSE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. MCDS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, OR ACCURACY.
7.2 Because internet connections between Licensee and MCDS are the property and responsibility of a third party, MCDS does not warrant the continuity and the quality of such internet connections and no warranty herein shall be applicable to the continuity and quality of the provision thereof. Communication connections are subject to suspension without notice for an undeterminable amount of time due to events beyond MCDS’ control and not due to its fault or negligence.
8. LIMITATION OF LIABILITY
LICENSEE’S USE OF MYMAILHOUSE IS AT ITS OWN RISK. LICENSEE ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM LICENSEE’S DOWNLOAD AND/OR USE OF FILES OR OTHER MATERIAL (INCLUDING ANY MCDS PRODUCT) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM MCDS. LICENSEE ACKNOWLEDGES THAT USE OF MYMAILHOUSE PRESENTS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA WHICH MAY GIVE RISE TO LOSS OR DAMAGE. ACCORDINGLY, LICENSEE AGREES THAT UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, AND STRICT LIABILITY) OR OTHERWISE, SHALL MCDS OR MCDS’S AFFILIATES, LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFIT, ANTICIPATED PROFITS, ANTICIPATED SAVINGS, LOSS OF GODDWILL, LOSS OF USE OF EQUIPMENT, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, DATA PROTECTION, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MCDS FOR ANY CLAIMS, DIRECT LOSSES, OR DIRECT DAMAGES (“LOSSES AND DAMAGES”) ARISING UNDER THESE TERMS FOR THE SOFTWARE, APPLICATIONS AND SERVICES PERFORMED HEREUNDER EXCEED THE USAGE FEE (PRINTING COST AND POSTAGE) FOR THE DOCUMENTS THAT WERE THE SUBJECT OR CAUSE OF THE LOSSES OR DAMAGES EVEN IF MCDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS, OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. LICENSEE HEREBY RELEASES MCDS AND EACH OF ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE AFOREMENTIONED LIMITATION.
9.1 Licensee shall indemnify and hold MCDS, its subsidiaries, affiliates, officers and representatives harmless from and against any and all liabilities, expenses, damages, or penalties (including without limitation reasonable attorneys’ fees) arising from claims based upon use of Licensee’s MyMailHouse account, including any violation of this Agreement by Licensee or any person using Licensee’s account. Such indemnification shall include claims of: (a) libel, (b) defamation, (c) violation of privacy or publicity laws and rights, (d) any loss of service by other MyMailHouse customers, (e) any infringement of intellectual property rights by Licensee or any person using Licensee’s account, (f) any violation of any laws or regulations prohibiting the transmission of unsolicited mail, (g) use, operation, or combination of MyMailHouse with non-MCDS recommended programs, data, equipment, or documentation if such infringement would have been avoided but for such use, operation or combination, or (h) Licensee or Licensee’s agent’s activities after MCDS has notified Licensee that MCDS believes such activities may result in infringement.
9.2 MCDS will indemnify and hold Licensee harmless against any damages, arising out of any claim asserting that any Solution supplied to Licensee hereunder infringes any U.S. trademark, copyright, patent, trade secret, or proprietary right (“Infringement Claim”). MCDS’ indemnification obligation in this section 9 shall be effective only if: (a) Licensee is not in default of its payment obligations; (b) Licensee has given prompt notice of the Infringement Claim; (c) Licensee has given sole control of the defense of the Infringement Claim and all related settlement negotiations to MCDS; (d) Licensee has made no admission(s) or has in any other way prejudiced MCDS’ defense of the Infringement Claim; and (e) Licensee has reasonably cooperated with MCDS in the defense and settlement of the Infringement Claim.
9.3 If a preliminary or final judgment shall be obtained against Licensee’s use of a Solution as allowed herein, or any part thereof, by reason of any Infringement Claim, or if, in MCDS’ sole opinion, such Solution is likely to become subject to an Infringement Claim, or if, a Claim is made and MCDS reasonably believes such Solution may be held to infringe a third party’s rights, MCDS shall, at its sole expense and discretion, either: (a) procure for Licensee the right to continue using such affected Solution, or any part thereof; or (b) replace or modify the affected Solution or any part thereof, so that it becomes non-infringing, but only if the modification or replacement is functionally equivalent and does not adversely affect rights to use same as specified herein; or (c) terminate this Agreement.
9.4 MCDS’ satisfaction of any of the above options, along with MCDS’ performance of its indemnity obligations under this section 9 with respect to Infringement Claims, will satisfy MCDS’ liability to Licensee for any intellectual property or proprietary rights infringement and will be Licensee’s sole and exclusive remedy for any such infringement.
9.5 Notwithstanding anything herein to the contrary, MCDS will have no liability to indemnify Licensee under this section 9 to the extent any Infringement Claim arises from (a) use of the Solutions and/or MyMailHouse in combination with other software or hardware not authorized by MCDS to the extent such infringement would not have occurred but for such combination; (b) modification of the Solutions made by Licensee, its affiliates or any third party to the extent such infringement would not have occurred but for such modification; (c) use of the Solutions and/or MyMailHouse beyond the scope of the licenses expressly granted under the Terms; or (d) use of other than the latest update of the Solutions to the extent such update has been provided by MCDS to Licensee.
10. GENERAL PROVISIONS
10.1 Headings. Headings and titles of sections and clauses herein are for reference purposes only and are not part hereof and are not intended to be used in the interpretation hereof.
Notices. Except as otherwise noted herein, all notices, requests, reports, and other communications permitted or required to be given under the Terms shall be deemed to have been duly given if such notice or communication is in writing and delivered the parties at their addresses set forth below by one of the following methods: in person, United States certified mail (return receipt requested), or by overnight express carrier. Notice to MCDS shall be at the following address: Mortgage Connect Document Solutions, 260 Airside Drive, Moon Township, PA 15108
10.2 MCDS may notify Licensee at the address provided for Licensee’s MyMailHouse account.
10.3 No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach shall not prevent a subsequent exercise of such right or be deemed a relinquishment or waiver of any subsequent breach of the same or any other term of this agreement.
10.4 Assignment. MCDS may freely assign this agreement or otherwise transfer its rights or delegate its obligations hereunder. Licensee may not assign or otherwise transfer its rights or delegate its obligations under this agreement without MCDS’ express written consent. Notwithstanding the foregoing, Licensee may assign this agreement pursuant to the sale, transfer, or merger of Licensee’s business, or that portion of its business corresponding to the Solutions licensed hereunder; provided that the assignee agrees to be bound by all of the provisions of the Terms. Licensee shall provide MCDS written notice at least thirty (30) days prior to any proposed assignment or encumbrance. Any attempted assignment of rights or delegation of duties to a competitor of the other party is prohibited and shall be null and void.
10.5 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of the Terms and neither party has any authority of any kind to bind the other in any respect whatsoever or to take any action which shall be binding on the other, except as provided herein or authorized in writing by the party to be bound.
10.6 Severability. If any provision of the Terms shall be held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, then such provision shall be enforced to the fullest extent permitted by applicable law, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
10.7 Force Majeure. Neither party shall be deemed in default of the Terms to the extent that performance of their obligation or attempts to cure any breach are delayed or rendered impossible by reason of any act of God, war, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other reason where failure to perform or cure is beyond the control of such party (“Force Majeure”).
10.8 Export Control Laws. Each party agrees to comply with all laws and regulations of the United States and any other country as appropriate concerning or controlling the import, export and use of the Solutions, and any technical data related thereto. If Licensee is located in a country that requires registration of software licenses with government authorities, Licensee shall be responsible for registration and meeting all requirements of such registration. Licensee acknowledges that failure to comply with such registration requirements may prevent MCDS from providing the Solutions or related services hereunder until Licensee complies with such registration requirements.
10.9 Governing Law & Venue. This Agreement shall be deemed to have been entered into and shall be construed, governed, and interpreted in accordance with the laws of the State of Pennsylvania, without giving effect to principles of conflict of law. No provision or ambiguity shall be strictly construed against any party by virtue of having drafted or prepared the same. Licensee irrevocably consents to submit to the exclusive jurisdiction and venue of the federal and state courts in Allegheny County, Pennsylvania with respect to all disputes in connection with this Agreement.
10.10 U.S. Government Restricted Rights. If the Solutions are accessed or used by any department, agency or other entity of the U.S. Government, then use, duplication, reproduction, modification, release, performance, display or disclosure of the Solutions and any accompanying materials is restricted in accordance with Federal Acquisition Regulations (“FAR”) Section 52.227-19 for civilian agencies and Department of Defense Supplement to the Federal Acquisition Regulations (“DFAR”) Section 227.7202 for military agencies or any successor regulations thereto. The Solutions constitute commercial computer software under FAR 12.212 and their use is further restricted in accordance with the Terms.
10.11 No Third Party Beneficiaries. MCDS and Licensee do not intend that this Agreement benefit or create any right or cause of action in any third person.
10.12 Dispute Resolution. All disputes arising out of or relating to this Agreement will be submitted to binding arbitration under the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”). One impartial arbitrator will conduct the arbitration by mutual agreement. The proceedings will be held in Pittsburgh, Pennsylvania. A court reporter will record the arbitration hearing, and the reporter’s transcript will be the official transcript of the proceeding. The arbitrator will have no power to add or detract from the agreements of the parties and may not make any ruling or award that does not conform to the terms and conditions of this Agreement. The award of the arbitrator will include a written explanation of the decision and specify the basis for any damage award and the types of damages awarded. The decision of the arbitrator will be final and binding on the parties and may be entered and enforced in any court of competent jurisdiction by either party. The foregoing, however, will not prevent nor limit MCDS’ right to apply to a court of competent jurisdiction for a temporary restraining order, preliminary or permanent injunction, or other similar equitable relief. If MCDS is successful in obtaining injunctive relief, Licensee agrees to be responsible for paying all MCDS’ expenses in seeking such relief, including all costs of bringing suit and all reasonable attorneys’ fees.
10.13 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER OR NOT RELATING TO OR ARISING OUT OF THIS AGREEMENT). ANY LITIGATION ARISING OUT OF ANY DISPUTE OR CONTROVERSY BETWEEN THE PARTIES TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR FROM THE FIRST DATE SUCH ACTION COULD HAVE BEEN BROUGHT. IF A LONGER PERIOD IS PROVIDED BY STATUTE, THE PARTIES HEREBY EXPRESSLY WAIVE IT.
10.14 Survival. The following Sections, along with any other Sections that by their nature survive expiration or termination of this Agreement, will survive expiration or termination: 3, 5-9,10.9, and 10.12-15. Termination or expiration shall not relieve either party of the obligation to pay any amount due to the other party.
10.15 Entire Agreement. The Terms state the entire agreement between the parties on this subject and supersedes all prior negotiations, understandings and agreements between the parties concerning the subject matter. The Terms contains all of MCDS’ and Licensee’s agreements, warranties, understandings, conditions, covenants, and representations with respect to the subject matter. Neither Licensee nor MCDS shall be liable for any agreements, warranties, understandings, conditions, covenants, or representations not expressly set forth or referenced in the Terms. MCDS may amend or modify these Terms from time to time in its discretion by posting any such amendment or modification on the website and/or notifying Licensee. All Solutions supplied pursuant to these Terms will supersede and override any and all preprinted terms and conditions on any documents provided by Licensee in connection with its obligations hereunder.
10.16 Termination of License. MCDS may terminate, without cause, the Solutions license and Licensee’s use and access to the Solutions software, application and services upon providing Licensee thirty (30) days advance written notice wherein all prepaid amount for services not rendered will be refunded back to Licensee.