This contract for the purchase of FedEx Value Added Shipping Services (“Agreement”), by and between All Pro Shipping, Inc. (“Seller”) of 9220 Teddy Lane Unit 2000 Lone Tree CO 80124 and the registered purchasing party (“Buyer”), is entered into and becomes immediately effective on the date this transaction is completed and validated through acquiescence and acknowledgment of acceptance of the Terms & Conditions of this Agreement as verified, evidenced and affirmed by the application of Buyer’s digital or written signature as applied to this Agreement.
In consideration of the covenants and conditions contained herein, the parties agree as follows:
1. Definitions
1. FedEx. FedEx Corporation
2. Seller. All Pro Shipping, Inc…
3. Buyer. Term used to define the individual that provides/applies his or her digital-signature-confirmation to the Terms & Conditions and the individual that pays for The Package.
4. Reservation. Terms used to define Buyers purchase of FedEx value-added shipping services from Seller.
5. Parcel. Term used to define any item shipped through FedEx, with suitable packaging, per the terms and conditions of this Agreement.
6. The Package. Phrase used to describe the FedEx shipping services purchased from Seller by Buyer.
2. Conditions of Sale
1. Services Provided. In exchange for valuable consideration received, Seller agrees to provide the following services (“The Package”), subject to change at Seller’s sole and exclusive discretion:
1. Shipping. Seller is an independent, outside FedEx value-added shipping services agent, and Seller, in no way, is associated to or involved with the business dealings or practices of FedEx. Working under this premise, Seller agrees to provide FedEx value-added shipping services to Buyer.
2. FedEx Facilitation. In so signing, Buyer agrees to allow Seller to facilitate shipping arrangements between Buyer and FedEx, via FedEx pick-up or FedEx drop-box, including but not limited to: (1) allowing Seller to provide FedEx with Buyers address; (2) allowing Seller to provide FedEx with Buyers relevant personal information; (3) allowing Seller to provide FedEx with pickup and delivery times for Buyer; (4) allowing Seller to purchase FedEx shipping on Buyers behalf; and (5) allowing Seller to pay for FedEx shipping services provided to Buyer.
3. Billing. Seller agrees to provide Buyer with detailed FedEx billing analysis, which includes, but is not necessarily limited to, billing history analysis and review and billing manipulation.
4. Returns. Seller agrees to facilitate returns for Buyer, when necessary and appropriate.
5. Discounts. Seller agrees to provide discounted FedEx shipping rates to Buyer, with said rate applied per the conditions set forth in Sellers “Discount Proposal” to Buyer. At Sellers sole discretion, Seller reserves the right to review Buyers discount on a weekly basis, and, based on an eight (8) week rolling average, adjust Buyers discount rate based on Buyers previous eight (8) weeks of billing.
6. Call Service. Seller agrees to provide Buyer with a call service program with regard to Buyers FedEx shipping needs such that if Buyer requires FedEx account service, or other pertinent needs relevant to FedEx shipping services, Buyer will contact Seller who will then contact and facilitate communication with FedEx on Buyers behalf. Sellers call service may assist with, or facilitate, Buyer needs including, but not necessarily limited to, lost parcel issues, damaged parcel issues, refund issues, insurance issues, cancellation issues, delivery issues, driver issues and other relevant Buyer concerns.
7. Special Services - Reptile Shipping. Buyer undertakes of this Agreement for good and valuable consideration received in that Seller has arranged and negotiated with FedEx, a contractual relationship that will allow Buyer to ship non-venomous reptiles via FedEx. Buyer acknowledges that the Seller is providing a good and valuable service to Buyer.
2. Terms of The Package
1. Purchasing. FedEx value-added shipping services will be sold on a continual basis. Reservations will be accepted at all times, accept that pick-up of parcels is limited and subject to FedEx hours of operation which includes FedEx closures for the evening, weekends, or holidays and FedEx terms and conditions. Buyers are required to order their shipping through Seller in order to receive the benefits defined in The Package. Reservations made through FedEx will prevent said purchaser from receiving The Package.
2. Reservation Procedure. Buyer will make reservations for FedEx value-added shipping services by ordering said service through Seller’s website. Seller’s website will provide adequate prompts and directions such that Buyer will complete the payment and reservation portion of Buyer’s acquisition of the Package, through Seller’s website.
3. Payment Terms. At the time of sale, Buyer will be billed, via credit card, by Seller per the terms defined in the Discount Proposal and subject to relevant state and local taxes.
4. Product Pickup. After purchasing the Package from Seller, Buyer will then be obligated to shipment via FedEx. Buyer will be prompted as to the proper FedEx pickup times, pickup windows and locations. Buyer agrees to be obligated to these conditions without recourse.
5. Service Fees. There simply are no service fees. Seller, as a provider of FedEx value-added shipping services, at all times, will make best efforts to provide discounted FedEx shipping rates to Buyer.
6. Cancellation/Refund Policy. Buyer may cancel or void reservations, but said cancellation or voidance is subject to a discretionary $4.95 service charge by Seller.
7. Rate Adjustment. Rates are subject to discretionary and reasonable adjustment for reasons including, but not necessarily limited to: i) Buyer providing the wrong address(es); (ii) Buyer improperly packaging a parcel(s); and (iii) Buyer does not comply with FedEx and/or Sellers terms and conditions.
8. Assignment of Right. Buyer shall not be entitled to assign Buyer’s interest in this reservation to a third party.
9. Duration. The terms of this contract shall be self-renewing on a weekly basis.
10. Cancellation. If, at any time, Buyer chooses to terminate their relationship with Seller, Buyer must provide written notification of such cancellation and pay all debts owing to Seller. Seller may cancel this Agreement at any time and for any reason.
3. Seller’s Reservation of Right. Seller reserves the right, at any time, to change, postpone or abandon all or any part of The Package and to adjust or change the terms when reasonable, advisable or necessary. In the case of such change, Seller will not be responsible for any losses or expenses incurred or caused by reason of such change, postponement or abandonment. Buyer acknowledges that unforeseen circumstances may arise which may lead to the cancellation of certain terms or conditions. As such, Seller reserves the right to change, postpone or abandon any term or condition should it become reasonably necessary.
3. Zero Tolerance Policies
1. Controlled Substances. Seller has a zero tolerance policy regarding the illegal use, possession, purchase or distribution of controlled substances. Any violation of this policy will result in the revocation of any service provided under The Package, including but not limited to, revocation of shipping privileges and termination of reservations. Seller will not be responsible for losses and damages incurred as a result of actions taken pursuant to this policy.
2. Discrimination Against Protected Classes. Seller has a zero tolerance policy regarding discrimination against anyone, including protected classes. Any violation of this policy will result in the revocation of any service provided under The Package, including but not limited to, revocation of shipping privileges and termination of reservations. Seller will not be responsible for losses and damages incurred as a result of actions taken pursuant to this policy.
3. Shipping of Venomous or Dangerous Reptiles or Animals. Seller has a zero tolerance policy regarding the shipment of venomous or dangerous reptiles or animals. Any violation of this policy will result in the revocation of any service provided under The Package, including but not limited to, revocation of value-added shipping privileges and termination of reservations. Seller will not be responsible for losses and damages incurred as a result of actions taken pursuant to this policy.
4. Indemnity and Waiver from Suit
1. FedEx. Buyer knowingly undertakes of the terms of this Agreement with the informed knowledge that Seller is an independent, outside FedEx value-added shipping services agent, and that Seller, in no way, is associated to or involved with the business dealings or practices of FedEx. As such, upon information and knowledge, Buyer consents to the following:
1. Personal Responsibility. Buyer indemnifies, and Seller accepts no responsibility, whatsoever, for any and all actions of FedEx, its employees or representatives, including, but not limited to, actions by delivery men or women employed by or associated to FedEx, and Buyers dealings with them. Buyer understands that it is the sole responsibility of Buyer to deal with FedEx in a professional manner, and that Buyer undertakes a duty to notify Seller of any issues Buyer might have with their FedEx shipping arrangement.
2. Commencement of Action. In the event Buyer commences an action against FedEx, or FedEx commences an action against Buyer, including but not limited to a negligence action against FedEx for failure to provide safe shipping accommodations, liability of buyers for damage to or theft of parcels, personal property damage, delays in or inability to reserve shipping, unforeseen circumstances at FedEx, or any other cause of action owing to FedEx’s or Buyer’s negligence or failure to perform, including but not limited to any breach of FedEx’s duty of care, Buyer provides Seller with complete immunity and indemnity from suit in the event such action commences.
3. Buyers Knowing Assumption of Risk. Upon agreeing to the terms and conditions of this Agreement, Buyer also agrees to comply with the terms and conditions set forth by FedEx for parties shipping packages using FedEx services. Buyer makes special note of the fact, and accepts the inherent risk associated thereto, that FedEx does not, nor does Seller, guarantee the live arrival of animals or reptiles delivered via FedEx. Buyer knowingly assumes the risk that, in the case of non-compliance with the terms and conditions of shipping as set forth independently by FedEx, Buyer may be asked to terminate their reservation. In the event that Buyer is asked to terminate their reservation with FedEx prior to the date they are due to ship or other relevant reasons, Buyer indemnifies Seller against any such action(s) commencing therefrom.
2. Complete Release of Liability. Buyer voluntarily and knowingly assumes all risks associated to or involving:
1. Buyer’s shipment(s) of parcels through FedEx, including, but not necessarily limited to, Buyer’s duty to package their parcels suitably,
2. Any errors or omissions regarding credit card or payment transactions,
3. Buyer’s or Seller’s cancellation or non-compliance with FedEx terms and conditions, and
4. all other actions resulting from or taken by Buyer, Seller, or FedEx in relation to Buyer’s purchase of The Package.
3. Buyer’s Covenant Not to Sue Seller. Buyer will not bring suit in law or equity against Seller, any of its officers, directors, stockholders, employees, agents, affiliates, or any other person or entity on grounds, including but not limited to, libel, slander, invasion of privacy, personal injury, death, negligence, property damage or attorney’s fees which may occur at a location or as a result of their purchase of The Package. Buyer further affirms and agrees that Seller is providing service assistance regarding, but not limited to, shipping delivery guarantees, FedEx tracking, damaged product or non-delivery reimbursement, and other services, as an inclusive component of The Package, however, Buyer will not bring suit in law or equity against Seller, any of its officers, directors, stockholders, employees, agents, affiliates, or any other person or entity on grounds related to FedEx error. Seller agrees that this release shall be binding upon Seller, and seller’s heirs, next of kin, executor(s) and personal representative(s).
5. Revocation of Acceptance
1. If the Buyer accepts the terms tendered under this Agreement, the Buyer will have no right to revoke his or her acceptance, and after such acceptance the Buyer shall have no remedy against the Seller nor right to revoke such acceptance for any reason.
6. Excuse of Performance
1. Excuse of Performance by Substitute Performance. Where, without fault of either party, the agreed manner of performance becomes commercially impracticable, impossible or otherwise difficult to perform, including, but not limited to instances such as: (1) the bankruptcy of FedEx, (2) force majeure, or (3) condemnation, closure or irreparable damage to facilities relevant to this Agreement, parties agree that Seller may, at Seller’s sole discretion, provide a commercially reasonable substitute if available, and that if substitute performance is tendered it must be accepted.
2. Complete Excuse of Performance. Where, without fault of either party, the agreed manner of performance becomes commercially impracticable, impossible or otherwise difficult to perform including, but not limited to instances such as: (1) the bankruptcy of FedEx, (2) force majeure, or (3) condemnation, closure or irreparable damage to facilities relevant to this Agreement, parties agree that, should Seller be unable to provide reasonable and comparable substitute performance, Buyer agrees to excuse said performance and releases Seller from all liability resulting therefrom.
7. Breach
1. Buyer Breach. Buyer shall be considered in breach of his or her obligations under this Agreement in circumstances including, but not limited to, when:
1. Buyer wrongfully rejects the services provided; or
2. Buyer wrongfully attempts to reject or revoke acceptance of the terms; or
3. Buyer fails to make a payment due; or
4. Buyer repudiates; or
5. Buyer violates the Terms or Conditions of Seller; or
6. Buyer violates the Terms or Conditions of FedEx; or
7. Buyer wrongfully fails to perform, or is in violation of an obligation, undertaken per the terms of this Agreement.
2. Remedy for Breach. If the Buyer breaches, then with respect to any sales directly affected and, if the breach is of the whole Agreement, then also with respect to the whole undelivered balance, the Seller may take the following actions inclusive of, but not limited to:
1. cancelling the Agreement; or
2. withholding services provided under The Package; or
3. cancelling reservations made on Buyers behalf; or
4. recovering damages for non-acceptance, repudiation or breach.
3. Measure of Damages. The measure of damages shall be the full contract value unless it is determined by a competent court of law that the measure of damages shall be the difference between the market price at the time and place for tender and the unpaid portion of the Agreement, together with any incidental damages, but less expenses saved in consequence of the Buyer’s breach.
8. Right to Resell
1. In the event Buyer breaches, Seller may resell or donate the same service package, at public or private sale, at any time upon breach, and recover from Buyer, as liquidated damages thereon, the difference between the above purchase price thereof (plus compounded interest on such purchase price from due date thereof at 28% per annum) and the price obtained on resale or donation, if the latter be less than the former; also all incidental losses and expenses, including salesman’s time and expenses and demurrage, storage, cartage, reassigning occupancy and any relevant additional charges. Resale anywhere in the usual course of Seller’s business and resale at any terminal market, or at or near destination, shall always be proper and the price received conclusive unless bad faith is clearly proven.
9. Acceleration
1. Default in the payment of any installment when due shall, at the option of the Seller, render the total purchase price at once due and payable or shall entitle the Seller to immediate cancellation of the Agreement. Any money theretofore paid shall be retained by the Seller as damages, except as otherwise provided by law, time being hereby expressly made the essence of this Agreement.
10. No Oral Modifications
1. No modification to this Agreement shall be valid unless, and in the event, that such modification is written and signed by Seller and Buyer.
11. Attorney’s Fees
1. In the event Buyer commences an action against Seller arising from this Agreement, should Buyer drop the suit, settle or lose on the merits, Buyer agrees to pay reasonable attorney fees incurred by Seller in defense of the action.
12. Arbitration
1. The parties agree that all disputes and claims relating to this Agreement shall be settled by arbitrators in accordance with the rules of the American Arbitration Association. Upon the written application by either Seller or Buyer for the hearing and adjudication of a dispute or claim, the recipient of the application will proceed with arbitration hearings. The parties agree to abide by and be bound by the decision and award of the arbitrators, and that a judgment may be entered in a court upon the award made in pursuance of this submission. Parties agree to split the costs of arbitration, accept that Buyer agrees to pay the costs of arbitration in the case that judgment is awarded in favor of Seller.
13. Choice of Law
1. All disputes and matters related to this Agreement shall be governed by and adjudicated in the State of Colorado in accordance with the Terms & Conditions contained herein.
14. Digital Signature
1. The parties to this Agreement affirm that the digital signatures of the parties included in this Agreement, which signatures may include initials, a checkbox verification/confirmation or other relevant affirmations of self, are intended to authenticate this writing and that the digital signatures have the same force and legal effect as the use of manual signatures.
15. Merger
1. This Agreement represents the entire understanding between the parties. Buyer’s decision to purchase and pay Seller for The Package constitutes Buyers acknowledgment of and consent to all of the terms and conditions of the Agreement, including, but not limited to, the limitations of liability described herein.
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