Terms and Conditions
PARCEL CONTROL AND REFUND RECOVERY SERVICE AGREEMENT
Statement of Acknowledgement and Agreement
You are stating your acknowledgement of and agreement to comply with and be bound by the terms of this Agreement when you: (i) engage Yellowshake LLC to provide Services to you; or (ii) use the website domains relating to parcel control and refund recovery services (the” Websites”). If you use the Websites or Services on behalf of your employer and/or in connection with your employment, this usage signifies your employer’s unconditional acceptance of this Agreement. This Agreement will continue until terminated by either party, or modified or amended as set forth herein.
This Agreement is made and entered into by and between Yellowshake LLC (“YELLOWSHAKE”) a New Jersey limited liability company and (“Client”) located at the address as completed on the Sign Up and Registration Form on the date of the date of submittal (“date”).
WHEREAS, Client finds that YELLOWSHAKE is willing to perform certain work hereinafter described in accordance with the provisions of this Agreement; And WHEREAS, YELLOWSHAKE is in the business of Parcel Auditing Services.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and intending to be legally bound, the parties hereto agree as follows:
1. SERVICES TO CLIENT
1.1 YELLOWSHAKE will provide small package (parcel) auditing services to the Client that will identify the Client’s United Parcel Service (UPS) and Federal Express (FedEx) shipments that have arrived late according to the terms and conditions of the carriers (“Services”). Client agrees to use YELLOWSHAKE as its exclusive provider of UPS and FedEx parcel auditing services as outlined in this agreement for the duration of this Agreement.
1.2. YELLOWSHAKE will provide Client with a weekly report that identifies the Client’s shipments that have been issued a refund/credit. Client is not responsible for using this weekly report to contact their carrier and claim the Client’s refund/credit unless other claiming procedures have been established between Client and YELLOWSHAKE.
2. PAYMENT AND INVOICING TERMS
2.1 Invoices will be submitted monthly by YELLOWSHAKE for payment by Client. Payment is due upon receipt and is past due 31 calendar days from receipt of invoice; however, in no event is Client obligated to pay any part of any invoice if credits/refunds have not been received from carrier(s). If Client has any valid reason for disputing any portion of an invoice, Client will so notify YELLOWSHAKE within 15 calendar days of receipt of invoice by Client. If payment of invoices is not current, YELLOWSHAKE may suspend performing further work. The invoices issued to the Client by YELLOWSHAKE will be at a service rate equal to 50% of the gross refund/credit actually issued to Client by their shipping carriers (FedEx / UPS) during the applicable invoice period or applicable rate negotiated through your group purchasing organization (GPO).
2.2 Client will receive all Invoices via electronic means (email) unless otherwise requested by Client.
3.1 Confidentiality and Non-Disclosure “Confidential Information” means nonpublic business operations, financial, shipping, customer and marketing information of either party (the “Disclosing Party) that is disclosed or made available to the other party (the “Receiving Party”). Confidential Information includes all tangible material containing any such information (i.e. shipping account information, weekly reports generated by YELLOWSHAKE for Client), regardless of the format, including without limitation written or printed documents and computer disks or tapes, whether machine or user readable. The parties will hold in confidence and not disclose any Confidential Information without express written consent of the other party except such information that (a) is or becomes publicly available other than as a result of an unauthorized disclosure by the Receiving Party or anyone to whom the Receiving Party provides such information, (b) was previously known to the Receiving Party or any of its employees, without restriction, prior to disclosure or becoming available to the Receiving Party, (c) was properly disclosed to the Receiving Party by another person without restriction and (d) is obligated to be produced under order of a court of competent jurisdiction, after notice to Disclosing Party and the opportunity for Disclosing Party to obtain the appropriate court order in order to protect its confidential information. YELLOWSHAKE shall include all officers and directors of YELLOWSHAKE as well as staff members assigned to or having access to the confidential information, all of whom shall be bound by this Paragraph 3.1. NO disclosure shall be made to an affiliate or subsidiary without the prior written consent of Client and such affiliate or subsidiary agrees to be bound by the terms herein as evidence by executing a copy of this agreement.
3.2 Termination Either party may terminate this Agreement at any time, for any reason or no reason at all, by giving no less than 30 days’ prior written notice to the other party. Following such notice, Client will pay the balance of all invoices not in dispute by the date of termination.
3.3 Independent Contractor YELLOWSHAKE is an independent contractor of Client. YELLOWSHAKE shall not have any authority to create, alter or amend any agreements or make representations on behalf of Client or to incur any liabilities for Client.
3.4 Inspection Rights YELLOWSHAKE will keep and maintain proper records relating to the Services outlined in this Agreement. Client may from time to time inspect such records to verify rendered statements once a mutually agreeable audit confidentiality agreement is executed between the parties, but not more than once in any twelve-month period.
3.5 Representations Each person executing this Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute this Agreement and to bind such party with respect to all of its obligations hereunder.
3.6 Cooperation Client will cooperate with YELLOWSHAKE in taking actions and executing documents in Client’s sole discretion and, as appropriate, to achieve the objectives of this Agreement. Client agrees that YELLOWSHAKE’s performance is dependent on Client’s timely and effective cooperation with YELLOWSHAKE.
3.7 Governing Law This Agreement shall not be amended except in a writing signed by both parties. The Agreement shall be governed by and construed in accordance with the laws of the New Jersey. Invalidity or unenforceability of any of the provisions of this Agreement or any terms thereof shall not affect the validity of this Agreement as a whole, which shall at all time remain in full force and effect.
3.8 General By accessing the website domains (the” Websites”), as part of the Yellowshake parcel control and refund recovery service, you warrant and represent to YELLOWSHAKE that you are legally entitled to do so and to make use of information made available via the Websites. Accessing the Websites constitute an agreement between you and YELLOWSHAKE regarding your use of the Websites and the services offered and performed by YELLOWSHAKE. Your use of the Websites and/or your engagement of the YELLOWSHAKE Services as a client (“Client”), constitute your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement. YELLOWSHAKE may change of modify this Agreement from time to time. At any time, you may review the most current Terms and Conditions at www.YELLOWSHAKE.com.
3.9 Trademarks The trademarks, names, logos and service marks (collectively “trademarks”) displayed on the Websites are registered and unregistered trademarks of YELLOWSHAKE or of the respective owners as noted. Nothing contained on the Websites should be construed as granting any license or right to use any trademark without the prior written permission of the trademark owner. FedEx ® and UPS ® are the registered trademarks of Federal Express Corporation and United Parcel Service of America, Inc., respectively. YELLOWSHAKE is not in any way affiliated with, sponsored by, or endorsed by these companies.
4.0 External Links External links may be provided for your convenience, but they are beyond the control of the YELLOWSHAKE and no representation is made as to their content. Use or reliance on any external links and the content thereon provided is at your own risk.
4.1 Warranties YELLOWSHAKE makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) regarding the Websites.
4.2 Disclaimer of Liability YELLOWSHAKE shall not be responsible for and disclaims all liability for any loss, liability, damage (whether direct, indirect or consequential), personal injury or expense of any nature whatsoever which may be suffered by you or any third party (including your company), as a result of or which may be attributable, directly or indirectly, to your access and use of the Websites, any information contained on the Websites, your or your company’s personal information or material and information transmitted over our system. In particular, neither YELLOWSHAKE nor any third party or data or content provider shall be liable in any way to you or to any other person, firm or corporation whatsoever for any loss, liability, damage (whether direct or consequential), personal injury or expense of any nature whatsoever arising from any delays, inaccuracies, errors in, or omission of any share price information or the transmission thereof, or for any actions taken in reliance thereon or occasioned thereby or by reason of non-performance or interruption, or termination thereof.
4.3 Indemnification YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS YELLOWSHAKE, FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS’ FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES OR THE WEBSITES, OR (B) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE (TO THE EXTENT PERMISSABLE) ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
4.4 Conflict of Terms If there is a conflict or contradiction between the provisions of these website terms and conditions and any other relevant terms and conditions, policies or notices, the other relevant terms and conditions, policies or notices which relate specifically to a particular section or module of the Websites shall prevail in respect of your use of the relevant section or module of the Websites.
4.5 Severability Any provision of any relevant terms and conditions, policies and notices, which is or becomes unenforceable in any jurisdiction, whether due to being void, invalidity, illegality, unlawfulness or for any reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as void and the remaining provisions of any relevant terms and conditions, policies and notices shall remain in full force and effect.
4.6 Entire Agreement This Agreement, including any Exhibits, states the entire Agreement between the parties and supersedes all previous contracts, proposals, oral or written, and all other communications between the parties respecting the subject matter hereof, and supersedes any and all prior understandings, representations, warranties, agreements or contracts (whether oral or written) between Client and YELLOWSHAKE respecting the subject matter hereof.
4.7 Force Majeure YELLOWSHAKE shall not be responsible for delays or failures (including any delay by YELLOWSHAKE to make progress in the prosecution of any Services) if such delay arises out of causes beyond its control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, and severe weather.