This Agreement (the “Agreement”) is entered into by and between instaRefund (“instaRefund”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date you agree to the Terms of Service and click the Sign Up button on the instaRefund Sign Up form (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the Sign Up button on the Sign Up Form. This Agreement governs Customer’s access to and use of the Services defined below.

Services:

1.1. Generally. Customer is engaged in business that requires the use of shipping or transportation services and nstaRefund provides services to audit shipment delivery and claim refunds for the Customer during the Term of this Agreement, including but not limited to identifying late shipments and filing claims for refunds on these shipments. Customer will have access to their instaRefund account via the email and password they signed up with during the term of the service.

1.2. Facilities. instaRefund will use and adhere to reasonable security standards to safeguard Customer’s data. instaRefund has implemented systems and procedures to ensure the security and confidentiality of Customer data, protect against anticipated threats or hazards to the security or integrity of Customer data, and protect against unauthorized access to or use of Customer data.

1.3. Modifications.

1. a. To the Services. instaRefund may make modifications to the Service, or particular components of the Service, from time to time.
2. b. To Applicable Terms. instaRefund may make material changes to its terms and conditions from time to time. instaRefund will notify Customer by either sending an email to the email address on file or alerting Customer via an online notice. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer can decide to close his iinstaRefund Account at any point after receiving notice of the change. If Customer continues to utilize the Service after the new terms go into effect, it will indicate Customer’s acceptance of the revised terms and conditions.

1.4. Customer Account Ownership. Prior to providing the Services, instaRefund may verify that Customer owns the Shipper Account(s) that they have registered in instaRefund. If Customer does not own the Account, or does not provide the appropriate access to their Shipper Account(s),  instaRefund will have no obligation to provide Customer with the Services.

1.5. Privacy Policies. instaRefund will comply with the Privacy Policy. Changes to the Privacy Policy and the Privacy Notice will be made as stated in the applicable policy.

1.6. Data Transfer. As part of providing the Service, instaRefund may store and process Customer Data in the United States or any other country in which instaRefund or its agents maintain facilities. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.

Customer Obligations:

2.1 Compliance with the Agreement. Customer will comply with the Agreement, and will use best efforts to ensure its Users do the same. instaRefund may make additional applications, features or functionality available from time to time through the Service, the use of which may be contingent upon Customer’s agreement to additional terms.

2.2  Customer agrees to grant instaRefund during the term of this Agreement, non-exclusive access to Customer’s shipping, invoicing and tracking data as required in a convenient form, whether through the carriers’ websites or APIs, online invoices, exported flat files or other means.This access may require providing instaRefund the customer’s API access credentials to the appropriate Shipper’s API. In addition, Customer grants instaRefund the permission to create a non-administrative online Shipper Account to file the claims for the qualified claims if needed.  instaRefund agrees to use the data solely for the purpose of auditing the shipments and claiming refunds or credits.

2.3 Unauthorized Use. Customer will use all commercially reasonable efforts to prevent unauthorized use of the Service, and to terminate any unauthorized use. Customer will promptly notify instaRefund of any unauthorized use of, or access to, the Services of which it becomes aware.

Service Term:

3.1 Term. The Term of this Agreement is month to month, starting with the the day of Sign Up, and is  renewed automatically for each month unless terminated by instaRefund or Customer. Customer may cancel the Service at any time, and will only be responsible for payments on claims filed through the end of the month in which they cancelled. instaRefund may terminate its services to the Customer at any time, and may change its pricing with at least thirty (30) days prior written notice to Customer, including by email, effective for the following term.

3.2 Automatic Renewal. The default setting for the Services is auto renewal of the Customer’s Account for an additional term. After any initial term, the  Customer Account will automatically renew at the end of the month for an additional one month term.

Payments:

4.1 Payment. Customer will be invoiced for payment due on a monthly basis in the native currency of the Customer’s country, unless noted otherwise on the invoice.Payment is due in 10 days, or otherwise as noted on invoice and are considered delinquent thirty days after the date of the applicable invoice.

4.2 Forms of Payment: Payment is accepted via PayPal or Wire, and the Customer is responsible for any fees that they incur to make payment on an invoice.

4.2 Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by instaRefund in collecting delinquent amounts, except where such delinquent amounts are due to instaRefund’s billing inaccuracies.

4.3 Taxes. Customer is responsible for any Taxes, and Customer will pay instaRefund for the Services without any reduction for such amounts. If instaRefund is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides instaRefund with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to instaRefund, Customer must provide instaRefund with an official tax receipt or other appropriate documentation to support such payments.

Refunds:

5.1 Refunds on Fees: There is no refund of instaRefund fees for Services already delivered. instaRefund does not charge cancellation fees, and does not provide any prorated refunds for service termination prior to the end of the Term.

Support Services:

6.1 instaRefund will respond to any issues related to shipment refunds or invoices via email sent to our Support email, within a reasonable time frame (usually a  day), unless the issue requires additional research or investigation. InstaRefund does not guarantee that a refund will be obtained on any claim, as the the shipping carrier ultimately makes this decision based on their specific rules and guidelines.

Suspension:

7.1 Suspension. instaRefund can suspend the Services If: (i) Customer materially violates this Agreement; (ii) instaRefund provides Customer with commercially reasonable notice of this violation (which may be by email to the Notification Email Address); (iii) instaRefund uses commercially reasonable efforts to discuss and resolve the violation with Customer; and (iv) despite the foregoing, the violation is not resolved to instaRefund’ reasonable satisfaction, then instaRefund reserves the right to Suspend administrative access to the Service, or to particular components of the Service. If, after all of the foregoing, Customer still has not cured a violation within thirty days of the commencement of a suspension under this Section, then instaRefund may immediately terminate the Services for cause.

Confidential Information:

8.1 Obligations. Each party will for the Term of the Agreement and a period of three (3) years therafter: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section.

8.2 Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.

8.3 Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

Intellectual Property Rights:

9.1 IP Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and instaRefund owns all Intellectual Property Rights in its Services.

Restrictions on Use.

10. 1 Restrictions. Unless instaRefund specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) alter the Service Pages; (b) share content or documentation provided by instaRefund to Customer as a part of instaRefund’ provision of the Services with any third party; (c) except as expressly authorized in the Agreement, sell, resell, lease, or the functional equivalent, the Services to a third party; (e) attempt to reverse engineer the Services or any component of the Services; (d) attempt to create a substitute or similar service through use of, or access to, the Services; or (e) use the Services for High Risk Activities.

Publicity:

11.1 Publicity. Customer hereby consents to instaRefund’s inclusion of Customer’s name in a customer list, but only if Customer is not the only customer appearing on the list. Customer explicitly grants permission for instaRefund to use Customer’s name for legitimate publicity purposes.

Representations and Disclaimers:

12.1 Representations. Each party represents that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.

12.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. INSTAREFUND MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE, AND NO REPRESENTATIONS OR WARRANTIES RELATIVE TO THE SHIPPING CARRIERS UTILIZED BY THE CUSTOMER.

Termination:

13.1 Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.

13.2 Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately; (ii) instaRefund will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at instaRefund’ then-current rates for the applicable Service; and (iii) upon request Customer will destroy all Confidential Information of instaRefund.

Indemnification:

14.1 By Customer. Customer will indemnify, defend, and hold harmless instaRefund from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding Customer or End User Data.

14.2 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

Limitation of Liability

15.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.

15.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO INSTARFUND DURING THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

15.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.

Miscellaneous:

16.1 Notices. All notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.

16.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.

16.3 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.

16.4 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.

16.5 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.

16.6 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.

16.7 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

16.8 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

16.9 Governing Law. This Agreement is governed by California law, excluding that state’s choice of law rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN ORANGE COUNTY, CALIFORNIA.

16.10 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.

16.11 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.

16.12 Entire Agreement. This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.

16.13 Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.