Terms Proof Approval v1.4

1. Approving your proof
Yellow Letter HQ, LLC (“YLHQ”) provides a proof for each order before production. Customer first accepts these Terms at checkout by checking the terms box before placing the order. Customer approves a proof only by checking the approval box on YLHQ’s proof page and clicking Approve while logged in to Customer’s account. That approval is Customer’s final acceptance of the order and of these Terms, including spelling, grammar, names, addresses, personalization and mail-merge fields, layout, color, imagery, design, paper stock, envelope, format, quantities, mail or drop date, and ownership of all content as set out in Section 6. YLHQ produces and mails the order exactly as approved. No refund, reprint or remail at no charge is owed for any error in an approved proof. No approval is inferred from silence. Declining or requesting changes is not an approval.

2. Electronic signature and records
Customer agrees to do business electronically. Checking the terms box at checkout and the approval box at proof approval are each Customer’s electronic signature and have the same effect as a handwritten signature (Cal. Civ. Code § 1633.7). At checkout and at approval, YLHQ records the account and login used, the date and time, the IP address, the version of these Terms shown, and, at approval, the proof approved. If the Terms change between checkout and approval, the version accepted at approval controls. Every version of these Terms stays posted at its own link on YLHQ’s website, so Customer can view it at any time. Customer agrees these records are evidence of Customer’s approval.

3. Who can approve
Customer controls access to its account. Anyone who approves a proof using Customer’s account, or whom Customer allows to review or approve proofs, including employees, contractors and virtual assistants, is Customer’s authorized agent. Their approval binds Customer as if Customer approved personally.

4. Indemnification and defense
Customer will defend, indemnify and hold harmless YLHQ and its owners, officers, employees and agents (“YLHQ Parties”) from all claims, damages, losses and costs, including reasonable attorneys’ fees, arising from any claim that Customer’s content, or any design Customer selected, approved or used, infringes or violates a third party’s rights. The duty to defend begins when a claim is asserted and does not depend on its outcome. If a YLHQ Party is named in an action arising from such content or design, YLHQ may join Customer in that action to enforce this Section. This Section does not cover liability caused by a YLHQ Party’s own fraud or willful misconduct.

4A. Claims involving Customer’s content
If YLHQ is sued over Customer’s content or a design Customer approved, YLHQ may notify Customer by email to the address on Customer’s account, and that notice starts Customer’s duty to defend. Customer agrees it can be joined in whatever court YLHQ is sued, and won’t object that the court lacks jurisdiction over it or that YLHQ waited too long to bring it in, at any stage of the case. Customer will keep its records on where the content came from, help YLHQ identify which of its orders used the content at issue, and help with the defense. If YLHQ has to enforce this Section against Customer, Customer pays YLHQ’s reasonable attorneys’ fees for doing so.

4B. YLHQ’s choice
YLHQ decides whether and when to use Sections 4 and 4A. YLHQ may defend and settle any claim itself, on reasonable terms, without Customer’s consent. YLHQ may ask Customer to repay its defense costs and any reasonable settlement at any time, during or after the claim, including costs incurred before YLHQ gave notice. Waiting, or choosing not to use these rights, is not a waiver of them. YLHQ may enforce Sections 4, 4A and 4B in a separate lawsuit, during or after the claim, whether or not Customer was brought into the original case. YLHQ’s right to repayment arises when YLHQ pays defense costs, a settlement or a judgment. Customer’s obligations under these Sections continue after the order is complete and after Customer stops doing business with YLHQ.

5. Limitation of liability
YLHQ’s total liability for any order will not exceed the amount Customer paid for that order, except for YLHQ’s gross negligence, willful misconduct or fraud. YLHQ is not liable for indirect, incidental, consequential or punitive damages, or for third-party claims relating to Customer content, except where the law does not allow this exclusion. This Section limits only YLHQ’s liability. It does not limit anything Customer owes YLHQ, including payment, indemnity, collection costs and attorneys’ fees.

6. Content and ownership
Proofs, templates and designs YLHQ provides, whether based on Customer’s content, made at Customer’s direction or selected from YLHQ’s template library, are for Customer’s review of layout, wording, personalization and production details only. They are not a check of intellectual property rights. Customer represents that it owns or has the right to use every element of its order, whatever the source, and that its use will not infringe anyone’s rights. YLHQ relies on that representation. Reference material Customer supplies is used only for Customer’s order. YLHQ reviews any credible infringement notice and will revise or stop using a design where warranted.

7. Service terms

Data and lists: Customer is responsible for the accuracy and lawful sourcing of data it provides. YLHQ mails as furnished.
No results guarantee: YLHQ provides production and mailing only and does not guarantee response rates, leads, deals or return on investment.
No refunds: Fees are earned at production. No refund or chargeback once an order is produced or tendered for mailing.
Mail delivery: After tender to USPS, delivery timing is in USPS’s control. Mail dates are estimates. Tracking shows entry into the mail stream, not delivery.
Print variance: Differences between an on-screen proof and the printed piece are not a defect.
Force majeure: YLHQ is not liable for delays beyond its reasonable control.
Data security: YLHQ uses commercially reasonable measures to protect Customer data but cannot guarantee against breach.

7A. Payment and late payment
Payment is due in full when the order is placed unless YLHQ agrees in writing to other terms. If YLHQ produces or mails an order before full payment, or otherwise extends credit, the unpaid amount is due within 15 days of the invoice date. Any amount not paid when due accrues a finance charge of 1.5% per month (18% per year), or the highest rate allowed by law if lower, on the unpaid balance from the due date until paid. Customer also pays a one-time late charge of 5% of the past-due amount (minimum $25), which the parties agree is a reasonable estimate of YLHQ’s administrative costs from late payment, since those costs are hard to calculate. Payments apply first to collection costs, then to late charges and finance charges, then to the oldest unpaid balance. A returned payment incurs a service charge of $25 for the first and $35 for each later one, plus any bank fees. A chargeback or payment dispute on an order YLHQ produced is a breach of these Terms, and the full order amount remains due, along with YLHQ’s costs of responding to it.

7B. Remedies for nonpayment
If any amount is past due, YLHQ may, without further notice and in addition to any other right it has: declare everything Customer owes immediately due; hold, suspend or cancel any pending order; stop any mail not yet tendered to USPS; withhold print files, proofs, lists, data and finished pieces; require prepayment or a deposit on future orders; apply any store credit, deposit, refund or other amount YLHQ holds for Customer against what Customer owes; and charge any payment method on file, which Customer authorizes YLHQ to do for any past-due amount. Customer pays all costs of collecting past-due amounts, including reasonable attorneys’ fees, collection agency fees, court costs and the costs of enforcing any judgment. YLHQ may refer or assign past-due accounts to a collection agency or attorney. Customer authorizes YLHQ to obtain business and personal credit information to evaluate credit and to collect past-due amounts. Customer’s payment obligations continue after the order is complete and after Customer stops doing business with YLHQ.

7C. Security interest and lien
To secure payment of everything Customer owes YLHQ, now or later, Customer grants YLHQ a security interest in and lien on: all printed pieces, materials, files, lists and data related to Customer’s orders, wherever located; all of Customer’s accounts, inventory, equipment and general intangibles; and all proceeds of any of these. YLHQ also has a possessory lien on everything related to Customer’s orders that is in YLHQ’s possession, and may keep it until Customer pays in full. Customer authorizes YLHQ to file UCC financing statements describing this collateral, including as “all assets,” in any jurisdiction. If Customer does not pay within 30 days after YLHQ’s written notice, YLHQ may exercise all rights of a secured party under the California Commercial Code, including selling or otherwise disposing of collateral and applying the proceeds to what Customer owes, and Customer remains liable for any shortfall. This Section does not cover property used primarily for personal, family or household purposes.

7D. Personal guarantee
If Customer is a business, then in exchange for YLHQ doing business with Customer, including producing or mailing orders before full payment and extending credit, the individual who accepts these Terms for Customer at checkout or proof approval (“Guarantor”) personally, absolutely and unconditionally guarantees full and prompt payment of everything Customer owes YLHQ, now or later, including order amounts, finance charges, late charges, returned-payment fees, chargeback amounts, collection costs and attorneys’ fees. This is a guarantee of payment, not of collection: YLHQ may collect from Guarantor without first demanding payment from Customer, pursuing Customer, or enforcing any collateral. If more than one person guarantees, each is fully liable for the whole amount, jointly and severally.
This is a continuing guarantee under California Civil Code section 2814. It covers all future orders and balances until Guarantor revokes it by written notice to YLHQ, and revocation does not affect anything Customer owes when YLHQ receives the notice. Guarantor’s obligations are not reduced or released by any extension of time, change in payment terms, new orders, release or impairment of collateral, settlement with Customer, Customer’s bankruptcy, insolvency, dissolution, merger or change of ownership, or any other act or delay by YLHQ. If any payment to YLHQ is later recovered, returned or set aside, including in a bankruptcy, Guarantor’s obligation for that amount is reinstated.
To the extent California law allows, Guarantor waives notice of acceptance, nonpayment, default and demand; any right to require YLHQ to proceed first against Customer, any collateral or any other person; and the rights and defenses available to a guarantor under California Civil Code sections 2787 through 2855, as Civil Code section 2856 permits. Guarantor pays all costs of enforcing this guarantee, including reasonable attorneys’ fees, consents to the courts named in Section 8, and authorizes YLHQ to obtain Guarantor’s personal credit information to evaluate credit and collect amounts owed. Guarantor confirms they are authorized to act for Customer and have read this guarantee. This guarantee binds Guarantor’s heirs, estate, successors and assigns, and is accepted electronically under Section 2.

How the guarantee is given
Guarantor gives this guarantee by checking the box to accept these Terms at checkout or proof approval while logged in to Customer’s account. By doing so, Guarantor agrees to be personally responsible, not just Customer, and YLHQ can collect from Guarantor directly. Once given, it covers that order and every order after it until Guarantor revokes it in writing.

8. General
California law governs. Exclusive venue is the state or federal courts in San Diego County, California. If any provision is unenforceable, the rest remains in effect. Provisions that by their nature should survive will survive completion of the order. YLHQ may update these Terms. A new version applies only to proofs approved after it is posted, and Customer accepts it by checking the box on that approval.