Subscription Terms & Conditions

Customer desires to engage YellowBird Holdings, Inc. (“YellowBird”) to provide certain professional services, more particularly described below (“Professional Services”), through professionals engaged by YellowBird through the YellowBird platform (the “Professionals”).

YellowBird is willing to provide such Professional Services¹ on the terms set forth in this Agreement.   

1. Services. YellowBird will provide Customer the Professional Services described on LINK.
   
   
2. Fees.
   
   a. Payment of Fees.  Customer will pay YellowBird the fees on a monthly basis set forth on LINK. Customer will provide YellowBird with an appropriate means of automatic payment (ACH, credit card, or debit card), and Customer hereby authorizes YellowBird to automatically apply such means of payment to satisfy amounts owed under all invoices.  
   
   b. Late Payment.  YellowBird may suspend any Professional Services immediately upon notice if Customer fails to pay any amounts timely hereunder within seven (7) days after the applicable due date. If YellowBird is unable to collect any amounts owed by Customer, YellowBird may engage in collection efforts to recover such amounts from Customer and Customer will reimburse YellowBird, on demand, for its costs of collection, including attorney’s fees.
   
   c. Taxes.  Except for taxes on YellowBird’s income and gross receipts or where YellowBird is otherwise required to collect taxes, Customer is solely responsible for paying any applicable taxes that arise under this Agreement.
   
   
3. Professional Services.  YellowBird warrants that its Professionals will perform the Professional consistent with the professional skill and care ordinarily provided by similar professionals practicing in the same or similar locality, under the same or similar circumstances.  If Customer provides evidence reasonably satisfactory to YellowBird that a Professional has not performed in a manner consistent with the professional skill and care ordinarily provided by similar professionals practicing in the same or similar locality, under the same or similar circumstances, Customer shall be entitled to a reperformance, at no cost to Customer, of the Professional Services at issue. The foregoing shall be Customer’s sole and exclusive remedy for any breach of warranty under this Agreement.
   
   
4. Certain Limitations and Disclaimers. 
   
   a. EXCEPT AS TO THE EXPRESS WARRANTIES PROVIDED FOR IN SECTION 3, THE SERVICES PROVIDED BY US ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
   
   b. UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE JOB ORDER AND ITS RELATED INVOICE(S) DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
   
   
5. Term; Termination.
   
   a. Term.  The term of this Agreement will commence on the subscription purchase date and continue for twelve (12) months unless terminated in accordance with Section 5(b). Thereafter, this Agreement will be renewed for successive twelve (12) month periods unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. Unless otherwise agreed by the parties, all fees will increase by 5% at the beginning of each renewal term.    
   
   b. Termination.  Each party may terminate this Agreement upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within sixty (60) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
   
   c. Survival.  Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including YellowBird’s rights to payment hereunder and the general provisions below.
   
   
6. Miscellaneous.
   
   a. YellowBird Terms of Use. YellowBird’s terms of use, as the same may change from time to time (the “Terms of Use”), are incorporated into this Agreement by reference. The current version of the Terms of Use is set forth at https://goyellowbird.com/terms/.
   
   b. Publicity.  Customer agrees that YellowBird may refer to Customer’s name and trademarks in YellowBird’s marketing materials and website; however, YellowBird will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
   
   c. Assignment; Delegation.  Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
   
   d. Amendment; Waiver.  No amendment or modification to this Agreement, nor any waiver of any rights hereunder or thereunder, will be effective unless assented to in writing by both you and us.  Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
   
   e. Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
   
   f. Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
   
   g. Governing Law.  Any dispute arising from this Agreement will be governed by and construed and enforced in accordance with the laws of the State of Arizona, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of the State of Arizona or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of Arizona and the United States, respectively, sitting in Maricopa County, Arizona.
   
   h. Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to the parties must be sent to the respective address set forth in the signature blocks below.
   
   i. Entire Agreement.  This Agreement and any applicable Invoice(s) comprises of the entire agreement between Customer and YellowBird with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by YellowBird, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

¹ Unused services may not be rolled over to a later period or renewal term (for example, services to be provided in one month or calendar quarter may not be rolled over into the following month or calendar quarter, as applicable).