Terms and Conditions

WHEREAS, the Service Provider is an outsourcing e-commerce business agency and management company, which is in the business of building and managing fully automated, e-commerce stores on various website platforms, including but not limited to, Walmart, Shopify, Amazon, Facebook Marketplace, Etsy, and/or eBay (“Social Platform”); 
WHEREAS, the Client wishes to obtain Service Provider’s services, as described in Article 1 of this Agreement; 
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement and other good and valuable consideration, the parties hereto agree as follows:

Service Provider shall provide the following services to Client (the “Services”): 

Build-out, deliver and maintain a fully automated done-for-you E-Commerce Store on the Client’s chosen Social Platform including configuring the E-Commerce Store’s storefront and configuring the front and back-end systems necessary to manage the E-Commerce Store (“E-Commerce Store”);

Review, research, source, select and list products for the E-Commerce Store, including but not limited to: product research, market trends, product trends and advice on product sale ability, vendor research, vendor sourcing, terms finalization, product ordering and tracking;

Product cataloging and listing, including but not limited to: product content creation, e-commerce image designing, advance product listing, competitor analysis, product pricing recommendations, product category management, optimized product content); 

Marketing and Advertising, including but not limited to: Google, Facebook, and Instagram advertising, Sales funnel generation, price per click (“PPC”) and price per acquisition (“PPA”) conversion tracking, marketing optimization;

Customer account management and operations, including but not limited to: vendor services, order management, buyer-seller communication management, inventory management, claims handling, account health management, seller support communication, feedback improvement and negative feedback removal;

Respond to all phone and email inquiries in support of the E-Commerce Store; Service Provider shall exercise good faith efforts to resolve all E-Commerce Store customer inquiries, product returns, and billing matters;

Maintain oversight of the E-Commerce Store and its financial performance; however, Service Provider shall have no obligation to, and will not, provide financial advice to the Client concerning the operation of the E-Commerce Store (Client shall confer with its professional financial advisors concerning all financial inquiries);

Business analysis, including but not limited to: account analysis, sales trend insights, customer behavior insights, monthly sales reporting suggestions; and

Monthly payment reconciliation, including but not limited to: inventory management, refund return management, payments reconciliation across the various payment modes.

This Agreement shall commence on the Effective Date and shall continue for twelve (12) months (“Term”). 

Auto-Renewal. Upon the expiration of the Term, this Agreement will automatically renew month-to-month thereafter, unless either Party provides written notice of non-renewal to the other, at least twenty (20) calendar days before the next day that the Agreement is set to renew.

3.1.Initial Participation Payment. Client will pay to Service Provider the selected one-time payment stated in Schedule A (“Initial Participation Payment”) within seven (7) calendar days of the Effective Date.

There is no guarantee of Services until the Initial Participation Payment has been made in full.

All payments due to Service Provider shall be paid in full via wire transfer, ACH, credit/debit, or through Service Provider’s approved financing partners.

3.2.Participation Split. Client and Service Provider shall split the net profit of the E-Commerce Store in accordance with the percentage stated in Amendments (“Participation Split”). 

Company shall receive a monthly Participation Split for as long as the E-Commerce Store is in existence and is managed by Service Provider and/or Allied Contractor, as defined in Section 6.3.

Any modification to the Participation Split must be in writing, as mutually agreed upon by the parties.

3.3.Social Platform Payments.

Shopify. On the Social Platform, Shopify, the Service Provider shall receive the funds generated from the E-Commerce Store on or about the first (1st) day of the month and Service Provider shall make payment to Client in accordance with Section 3.03. 

Amazon, Walmart and Ebay. On the Social Platforms Amazon, Walmart and Ebay, respectively, the Social Platform shall pay funds generated from the E-Commerce Store to the Client directly. Service Provider shall invoice Client for amount owed of Service Provider’s Participation Split.

3.4. Payment. Client shall pay all invoiced amounts due to Service Provider within five (5) days after Client’s receipt of such invoice. 

3.5. Invoice Disputes. Client shall notify Service Provider in writing of any dispute with an invoice (along with a reasonably detailed description of the dispute) within three (3) days from the date of such invoice. Client will be deemed to have accepted all invoices for which Service Provider does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in Section 3.5. The Parties shall seek to resolve all such disputes expeditiously and in good faith. 

3.6. Late Payments. Except for invoiced payments that Client is disputing under Section 4.6, Client shall pay interest on all late payments. If such invoice is not paid by Client after fifteen (15) days, a late payment fee shall be assessed (the “Late Payment Fee”). The Late Payment Fee shall be calculated daily and compounded at the lesser of the rate 5% per month or the highest rate permissible under applicable Law. Client shall also reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

4.1.All services outside the scope of this Agreement that are requested by the Client and which Service Provider agrees to perform will be billed at a separate negotiated rate mutually agreed to in writing. Client may be given the opportunity to purchase additional services at package rates, in Service Provider’s sole discretion.

4.2. Company may offer to provide client with other streams of income to add or replace the store agreed upon in this contract. Company may choose to offer to provide these services at no cost to client, and thereby reduce any liable amount.

5.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:

It has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement;

The execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and

When executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

5.2. Client Representations and Warranties. The Client represents and warrants that the Client:

1. Has read and understood this Agreement and all related documents, and acknowledges and agrees to accept the risks set out therein;
2. Has the right to enter into and perform the obligations under this Agreement and to carry out the transactions contemplated by this Agreement;
3. Acknowledges and agrees that the Service Provider does not hold a United States Financial Services License and is not dealing in a financial product;
4. Acknowledges and agrees that the Service Provider has not made any warranty or promise as to the financial success of the E-Commerce Store 
5. Understands and acknowledges the inherent risk in participating in the development of internet assets and/or the E-Commerce Store.
6. Has the knowledge and experience in and of the E-Commerce Business that the Client is capable of evaluating the merits and risks of the E-Commerce Business; or has sought advice from a person who, if they were the Client, would satisfy this clause;
7. Has conducted an investigation into the E-Commerce Business and E-Commerce Stores, has made all reasonable enquiries, and is not relying on any statement or representation made by Service Provider in deciding to create the E-Commerce Store; 
8. Understands that there is no guarantee regarding the success of the E-Commerce Store and
9. Has taken, or has had the opportunity to take and has elected not to take, independent accounting and legal advice concerning the nature and effect of this Agreement and the Client’s personal circumstances.

5.3.Service Provider Representations and Warranties. The Service Provider represents and warrants that the Service Provider:

Is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization.

Will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

6.1. Service Provider Services. Service Provider shall use commercially reasonable efforts to provide to Client the Services

6.2. Time of the Essence. Subject to Client’s timely cooperation in accordance with Section 7.3, Service Provider acknowledges that time is of the essence with respect to Service Provider’s obligations hereunder and that prompt and timely performance of all such obligations is strictly required.

6.3.Service Provider Personnel. Service Provider retains the right to hire an outside contractor (the “Allied Contractor”), in the Service Provider’s sole discretion, without notifying Client, to assist in the operations of the E-Commerce Store. 

6.4.Service Provider shall: hire, supervise, direct, and discharge all employees and Allied Contractors (as defined in Section 6.6 below) (collectively, the “Service Provider Personnel”) necessary to perform the Services, each of whom shall be suitably skilled, experienced and qualified.

6.5.Service Provider shall comply with all applicable laws in its performance of the Services.

6.6.Allied Contractor. Service Provider, may, prior to entering into agreements with or otherwise, without the need of approval from Client, in Service Provider’s sole discretion, engage any person who is not a Service Provider employee, including any independent consultants, contractors, subcontractors, or affiliates of Service Provider (each such approved third party, a “Allied Contractor”), to provide any Services or deliverables to Client in connection with the E-Commerce Store. Service Provider shall remain fully responsible for the performance of each such Allied Contractor and its employees and for their compliance with all the terms and conditions of this Agreement as if they were Service Provider’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any Allied Contractor. 

6.7. Service Provider shall use its reasonable best efforts to provide all Services in strict accordance with this Agreement and with a high degree of care, skill, diligence, professional knowledge, judgment, and expertise according to sound work practices and accepted professional and industry standards, in a well-managed, organized, and efficient manner. There can be no guarantee that Client will be satisfied with the results of Service Provider’s performance, or that any particular results will be achieved, even if communicated to Service Provider. If Client is dissatisfied with Service Provider’s performance under this Agreement, Client’s sole remedy is to terminate this Agreement in accordance with the provisions hereof. .

6.8.Taxes. Service Provider shall be solely responsible for any and all taxes, Social Security contributions or payments, disability insurance, unemployment taxes, and other payroll type taxes applicable to such compensation.

7.1.Client shall: 

Provide to Service Provider the required intake information (including, but not limited to, active LLC information, DUNS number, liquid capital) as may be requested by Service Provider through email;

Obtain a valid, registered LLC, a business bank account, and sales tax exempt status; 

Maintain a minimum monthly inventory budget of $5000 for Ebay and $20000 for Walmart and/or Amazon.

7.2.In the event of a Terminated Account, per Section 12, Client acknowledges and agrees to:

Authorize Service Provider to set up a new Social Platform advertising account (“New Account”); 

Cooperate and assist the Service Provider, in reactivating the Terminated Account and/or setting up a New Account; and 

Adhere to and comply with the obligations and responsibilities stated in Section 7.3 and Section 7.4, respectively. 

7.3.Communication. Client agrees and acknowledges the importance of continuous and open communication. Client agrees to communicate with, and provide to, Service Provider with complete and accurate information as needed to. Accordingly, the Client agree to respond promptly within forty-eight (48) hours to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services in accordance with the requirements of this Agreement. operate and manage the E-Commerce Store..

7.4. Effect of Client Failure or Delay. Service Provider is not responsible or liable for any late delivery, delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. 

Upon thirty (30) days of event of any such delay or failure, Service Provider may, by written notice to Client, in Service Provider’s sole discretion, terminate the Agreement.

Upon the aforesaid event, all unpaid fees will be due and collectable at the time of termination. The foregoing is in addition to, and not in lieu of, all other remedies Service Provider may have for any such failure or delay by Client.

7.5. Non-Solicitation. Client acknowledges and agrees that in the course of performing his/her obligations under this Agreement, Client will be introduced to and work with employees, agents and representatives of Service Provider. Client acknowledges and agrees that employees, agents and representatives of Service Provider are valuable resources, in whom Service Provider has invested considerable time, effort and resources. Therefore, Client agrees that for the duration of this Agreement and for three (3) years thereafter, Client shall not directly or indirectly solicit, interfere with, entice away, hire or employ (whether as an employee, agent, representative, consultant, independent contractor or otherwise) any employee, agent or representative of Service Provider. In the event of a violation of this Section, Service Provider will be entitled to liquidated damages equal to the compensation paid by Service Provider to the applicable employee or contractor during the prior twelve (12) months.

7.6.Taxes. It is Client’s sole responsibility to determine whether, and to what extent, any taxes apply to any transactions Client conducts, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities. 

7.7.Non-Disparagement. Client agrees and covenants that the Client will not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Service Provider or any of its Representatives, personnel or related and/or other associated third parties. 

This Section does not, in any way, restrict or impede the Client from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order.

8.1.Service Provider makes no guarantee of any result or success of the E-Commerce Store.

Any example of successful results of Examples of results and/or returns of other clients of the Service Provider are strictly for demonstrative purposes and should not be construed by Client as indicative of any promised results or success

9.1.Client agrees to indemnify, defend, and hold harmless Service Provider and its Representatives from and against any claims, judgments, damages, liabilities, settlements, losses, costs, and expenses, including attorneys’ fees and disbursements, arising from or relating to any breach by Client of Client’s representations or warranties, or other obligations hereunder.

10.1.If the Client wishes to terminate the Services hereunder before the end of the Term, the Client must submit a written request to terminate, via email, to Service Provider at least thirty (30) calendar days prior to the desired date of termination. 

10.2.If Client chooses to terminate this Agreement prior to Expiration of the Term, the Client agrees to the following:

All monies owed to Service Provider by Client will be due immediately and will be automatically charged to the Client’s payment method on file;

Under no circumstances will Service Provider give refunds of the amount paid for the Services hereunder; and

Service Provider shall immediately retain control of E-Commerce Store and E-Commerce Store will be immediately taken offline. 

11.1. Client acknowledges and agrees that all right, title, and interest in and to all writings, works of authorship, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by Client individually or jointly with others during the Term and relate in any way to the business or contemplated business, products, activities, research, or development of the Service Provider or result from any work performed by Client for the Service Provider (in each case, regardless of when or where prepared or whose equipment or other resources is used in preparing the same), all rights and claims related to the foregoing, and all printed, physical and electronic copies, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to US and foreign (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights, all improvements thereto and all similar or equivalent rights or forms of protection in any part of the world (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Service Provider.

11.2.For purposes of this Agreement, Work Product includes, but is not limited to, Service Provider information, including plans, publications, research, strategies, techniques, Agreements, documents, contracts, terms of Agreements, negotiations, know-how, computer programs, computer applications, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, client information, customer lists, client lists, manufacturing information, marketing information, advertising information, and sales information.

11.3.No License. Client understands that this Agreement does not, and shall not be construed to, grant Client any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to Client by the Service Provider.

12.1.Client understands that the Social Platform’s terms of service and advertising policies are ever-changing, can be strict, and that the Social Platform can arbitrarily terminate the E-Commerce Store and/or the E-Commerce Store’s adverting account without rationale or reason. 

12.2.As such, Client agrees to hold Service Provider harmless in the event that Client’s E-Commerce Store and/or its advertising account is suspended and/or terminated (“Terminated Account”). 

12.3.In the event Client’s advertising account is terminated, Client agrees to cooperate and assist the Service Provider in accordance with Section 7.2. 

12.4.Service Provider provides no guarantees that efforts to re-activate the Terminated Account or set up the New Account will be successful. If Client is not able to get its Terminated Account reactivated or a New Account set up, or chooses not to do so, Client agrees to indemnify Service Provider and hold Service Provider harmless for any losses Client may suffer as a result, and Client understands and agrees that Client shall not be eligible for the Guarantee and will not receive any refund or compensation

13.1. Confidentiality. Service Provider and Client (the “Receiving Party”) shall hold in trust for the other party hereto (the “Disclosing Party”), shall not disclose to any person, firm or entity other than the Receiving Party’s employees and agents who have a need to know such information in order to fulfill its obligations under this Agreement, and shall not use in any way detrimental to the Disclosing Party, any confidential or proprietary information of the Disclosing Party (“Confidential Information”). Without limiting the generality of the foregoing, “Confidential Information” includes any and all information relating to the Disclosing Party’s products, services, research, development, trade secrets, marketing and business plans, strategies, customers, suppliers, employees, agents, management and personnel, but does not include information in the public domain other than by reason of a breach of this Agreement. In the event the Receiving Party receives a subpoena or court order to disclose any Confidential Information, the Receiving Party shall deliver prompt written notice to the Disclosing Party and shall co-operate with the Disclosing Party’s attempts to obtain a protective order or other similar protection for the Confidential Information. The obligation to maintain the confidentiality of Confidential Information shall survive termination and continue for ten (10) years. 

13.2.The Receiving Party shall be responsible for any breach of this Section 13 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall return all Confidential Information and copies thereof that it has received under this Agreement within two (2) business days.

14.1.Client hereby authorizes Service Provider and/or Allied Contractors, to charge to Client’s Credit Card for any and all payments due and/or overdue to Service Provider and/or Allied Contractors. Client further authorizes Client’s credit card Service Provider or bank to make payment(s) to Service Provider and/or Allied Contractors by method(s) indicated above and to post it on Client’s account. 

15.1.All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: 

When delivered by hand; 

When received by the addressee if sent by a nationally recognized overnight courier (receipt requested); 

On the date sent by email (with confirmation of transmission); or 

On the day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the parties at the respective addresses set forth on the first page of this agreement (or to such other address that may be designated by a party from time to time in accordance with this Section).

16.1.Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, on behalf of the Client shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

17.1.To the extent permitted by law:

All terms, conditions, warranties and statements, whether express, implied, written, oral, collateral, (statutory or otherwise) which are not expressly set out in this Agreement are excluded and, to the extent they cannot be excluded, the Service Provider disclaims all liability in relation to them; and

The Client must not make any claim under or in connection with this Agreement unless it is based solely on and limited to the express provisions of this Agreement.

Service Provider is not responsible for errors which result from faulty or incomplete information supplied to Service Provider by Client. Client also agrees to not seek damages more than the contractually agreed upon limitations directly or indirectly through suits by or against other parties. Service Provider shall not be liable to Client for any costs, damages or delays due to causes beyond its control, expressly including without limitation, unknown site characteristics; changes in policies, changes in terms of services, or termination by social media sites including without limitation social platforms; and viruses. 

17.2.The Service Provider disclaims all liability for a loss incurred by the Client in connection with a breach of a representation and warranty by the Service Provider under Section 5 (Representations and Warranties).

17.3. For completeness, to the extent permitted by law, the Service Provider will also have no liability to a Client, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity arising out of or in connection with this Agreement.

17.4. Subject to any applicable statute, the maximum total liability of the Service Provider to the Client for loss or damage of any kind, however caused, due to the Service Provider’s negligence, breach of contract, breach of any law, in equity, under indemnities or otherwise, arising out of all acts, omissions and events whenever occurring, is not to exceed in aggregate the value shall not exceed $1,000.00. Any action against us arising out of, resulting from, or related to the performance or breach of this Agreement shall be filed not later than twelve (12) months after the cause of action has accrued.

18.1.Handling of Disputes. 

Client request for return of Initial Participation Payment, or any Client request for return of monies. If Client cancels credit card payments (or files a chargeback) after the three day cancelation period permitted by law and outlined in this Agreement, this Agreement is immediately terminated, and Service Provider reserves the right to dispute such cancelation and pursue Client for monies owed to Service Provider for services already performed but unpaid by Client due to such credit card cancelation. Client agrees that, regardless of whether Client is ultimately successful in any credit card cancelation dispute, it is liable to pay Service Provider for the work already performed as of the time of the cancelation request, at an hourly rate of $200 per hour for all hours spend on Client’s project. Service Provider will provide Client with an itemization of hours spent within a reasonable time upon the request of the Client and payment will be expected in full within 30 days from the date such itemization is provided.

If Client does not pay for such hourly work upon Service Provider demand and within 30 days, Service Provider reserves the right to initiate an action in court for breach of contract, regardless of the previous outcome of any credit card cancelation dispute.

Additionally, if Service Provider is successful in any credit card cancelation dispute, Service Provider reserves the right to pursue Client for the costs Service Provider had incurred in disputing or defending such credit card cancelation, including but not limited to the lost business profits in the form of time. 

18.2.Mediation. 

In the event that any dispute arises from this Agreement, the Parties agree to participate in and equally bear the cost of mediation. If the Parties via mediation does not do resolve the dispute within 60 days, then a Party may commence litigation. 

The parties agree to refer any dispute or controversy under this agreement to mediation, with a mediator who is familiar with e-commerce transactions and E-Commerce Stores and otherwise mutually acceptable to the parties, before commencing any action, claim or proceeding hereunder in the above-referenced courts. 

18.3.Governing Law. This Agreement has been entered into and shall be constructed and governed in accordance with the laws of the state in which the party defending any action, claim or proceeding has its principal place of business. Service Provider and Client agree that state or federal courts located in such jurisdiction are the proper forum for the litigation of any dispute arising from this Agreement. Each party irrevocably consents to the jurisdiction and venue of the above-identified courts. 

19.1.Entire Agreement. This Agreement, together with the documents and agreements referred to herein, are the entire, final, and complete agreement of the parties pertaining to the purchase of services, and supersede and replace all written and oral agreements heretofore made or existing by and between the parties or their representatives.

19.2. Disclaimer of Warranties. Service Provider and its representatives make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the services or any content. Service provider and its representatives do not represent or warrant that (a) the use of the services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the services will meet Client requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by Client through the services will meet Client requirements or expectations, (e) errors or defects will be corrected, or (f) the services or the server(s) that make the services available are free of viruses or other harmful components. The services and all content is provided to Client strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, are hereby disclaimed to the maximum extent permitted by applicable law service provider and its representatives.

19.3. Use of Client Name, Likeness, and Information. Client hereby grants to Service Provider and its Representatives the right to use Client’s name, image, likeness, and biographical, professional, and other identifying information (including information Client provides to Service Provider and any other information about Client that is publicly available) (collectively, “Likeness”) in connection with the Legal Services, including to advertise and promote the same or any product or service, in whole or in part. Client waives the right to inspect or approve any use of Likeness as contemplated in this Agreement.

19.4. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court or arbiter may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

19.5.Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized Representative of each Party. 

19.6.Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

19.7.Assignment. Client may not assign, delegate or subcontract, in any manner, Client’s right, obligation, responsibilities or interest in or under this Agreement without Service Provider’s prior written consent, which may be withheld in Service Provider’s sole discretion, except for an assignment to a corporation or limited-liability Service Provider owned or controlled by Client upon written notice to Service Provider.

19.8.No Third-Party Beneficiary. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

19.9.Expenses. Each party shall pay its own expenses incident to this Agreement and the transactions evidenced hereby, including, but not limited to, all fees of its legal counsel and accountants, whether or not such transactions shall be consummated.

19.10.Succession. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, successors and assigns.

19.11.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

19.12.Attorney Fees. If any suit, action, or proceeding instituted to enforce or interpret this Agreement, the prevailing party shall be entitled to recover from the losing party, in addition to all expenses of litigation, whether or not provided under statute or rule, such sums as the court may adjudge reasonable for the prevailing party or parties’ attorney fees in such suit, action, or proceeding, or any appeal thereof.

19.13.Force Majeure. Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

19.14.No Exclusivity. Service Provider retains the right to perform the same or similar type of services for third parties in Client’s industry during the Term of this Agreement.

19.15.Internet delays. Service Provider’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Service Provider is not responsible for any delays, delivery failures, or other damage resulting from such problems.

19.16.Right to Contract. Each party hereto represents to the other that it is authorized to enter into this Agreement and to provide the services to be provided hereunder and that the exercise of the rights granted to the other party hereunder will not conflict with any commitments or agreements previously entered into between the party so representing and any other party.

19.17.Service Provider/Client Relationship. Service Provider’s performance of the Services hereunder shall be in the capacity as an independent contractor. Accordingly, nothing contained in this Agreement shall be construed as establishing an employer/employee, partnership or joint venture relationship between Service Provider and Client. Client shall solely be responsible for payment of all taxes on compensation received hereunder.