1. ACCEPTANCE OF THESE TERMS

Welcome to Execuseller! This website, (Terms) (the “Site”, including all subdomains), is a copyrighted work belonging to 3P Aid LLC (“Company”). These terms of service (the “Terms”) govern your (“You” or “Client”) access to and use of the services available on this Site (the “Services”). By accepting Services, Client agrees to be bound by these Terms.

2. DEFINITIONS

2.1. “Additional Fees” means the monies due from you to Company for (i) Your use of Services outside of the scope identified in the Statement of Work (“SOW”) pursuant to these Terms, and/or (ii) any additional work requested by you beyond the scope set forth in the SOW.

2.2. “Amazon” means Amazon.com, Inc. and its affiliates.

2.3. “API” means the application programming interface made available to You by Amazon that facilitates the provision of Services to You.

2.4. “Approved Claim” means a Discrepancy identified in a FBA Audit that Company submitted to Amazon, resulting in approval of that Eligible Claim by Amazon, and potentially leading to favorable adjustment to Client’s Amazon Seller Account. A favorable adjustment by Amazon is typically in the form of money or product credited to the Seller Account.

2.5. “Client Data” means any and all information, data, reports, materials, works, expressions, documentation, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Client for processing by or through the Services, or (b) collected, downloaded, or otherwise received by Company for or from Client or third party pursuant to the Terms or at the written request or instruction of Client, including, without limitation, invoices, packing slips, information regarding FBA Inbound Shipments, Discrepancies, supplier information, Product Information and any other documentation of Client’s shipments and Products.

2.6. “Confidential Information” means confidential or proprietary information disclosed or made available by one Party to the other, including but not limited to, business plans, financial reports, financial data, employee data, Client lists, designs, specifications, drawings, diagrams, computer code and programs, trade secrets, discoveries, ideas, concepts, know-how, techniques, Service processes, Service workflows, and other technical and business information. Confidential Information shall include copies, notes, abstracts and other tangible embodiments made by the receiving Party that are based on or contain any of such information.

2.7. “Discrepancy” or “Discrepancies” means certain actions or inactions by Amazon regarding the FBA logistics network that may or may not be considered Eligible Claims, including but not limited to the following:(a) Products Lost, Damaged, Disposed of
(b) Returned without 20% restocking fee
(c) Inaccurate charge
(d) Refunded but never returned
(e) Commission wrongfully charged (f) Replacements over 45 days
(g) Missing items from Inbound
(h) The wrong item returned and scanned
(i) Chargeback not refunded
(j) Returns damaged by carrier or Amazon.com
(k) Submission and management of Eligible Claims
(l) Any additional services related to Client’s Products, financial transactions, and inventory that Company may provide in the future.

2.8. “Effective Date” means the date of the final signature of the SOW by either Company or Client.

2.9. “Eligible Claim” means a Discrepancy identified by Company and submitted to Amazon for approval, without respect as to whether or not the submitted claim is or will be an Approved Claim. The factors that disqualify a Discrepancy from being categorized as an Eligible Claim are, including but not limited to: (a) Blocked and/or deactivated ASINS (b) Non-FBA orders or shipments (c) Outdated, incorrect, or otherwise invalid return addresses (d) Expired claim window (e) Product Recall (f) Product Defect (g) Product violation of Amazon policies.

2.10. “FBA” means the service that Amazon offers to merchants called Fulfillment By Amazon which provides access to Amazon’s logistics network.

2.11. “FBA Audit” means Company’s analysis of FBA transactions within Client’s Seller Account to discover if Discrepancies exist which may be eligible for monetary recovery via the claims process.

2.12. “Fees” means the monies due from Client to Company in U.S. dollars equal to a mutually agreed upon percentage of the reimbursement value of each Approved Claim (“Commission”) as outlined in each applicable SOW and/or Amendment. For the avoidance of doubt, any and all Commissions and/or Additional Fees due and payable to Company will be considered Fees under these Terms and any SOW, and such Fees shall be invoiced accordingly

.2.13. “Insolvency Event” means, in relation to either Party, any of the following events: (a) the company commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws; (b) anyone commences an involuntary case against the company under title 11 of the United States Code or the corresponding provisions of any successor laws and either (i) the case is not dismissed by midnight at the end of the 60th day after commencement or (ii) the court before which the case is pending issues an order for relief or similar order approving the case; (c) a court of competent jurisdiction appoints, or the company makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code or the corresponding provisions of any successor laws) for the company or all or substantially all of its assets; or (d) the company fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.

2.14. “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trademarks (including Marks), trade names, rights in domain names, rights in inventions, database rights, rights in know-how, and confidential information as described herein, and all other intellectual property and all pending applications for any of the foregoing and including all renewals, extensions, revivals and all accrued rights of action.

2.15. “License” means the licenses or sublicenses expressly granted herein by Company to Client or by Client to Company regarding Client’s receipt of Services.

2.16. “Marks” means any word, symbol or device, or any combination thereof, used or intended to be used by a Party to identify and distinguish the Party’s or its third-party licensor’s products or services from the products or services of others, including without limitation trade names, trademarks, service marks, and logos. “Client Marks” refer to any Marks of Client and include the third-party marks Client may provide to Company or that are incorporated in Product Information. “Company Marks” refers to Marks of Company and includes third-party marks Company may provide to Client. 2.17. “Party” or, collectively, “Parties” means Company and you, the Client.

2.18. “Product” means the Client Products (ASINs or SKUs) identified and selected by Client regarding the Services pursuant to these Terms and any SOW bound by these Terms. For the avoidance of doubt, only FBA and not FBM (fulfilled by merchant) products are included in the Services.

2.19. “Product Information” means all information and materials specifically related to Client Products that Client provides to Company in order for Company to perform the Services, or that Client directs Company to collect on Client’s behalf, including without limitation image files, text, templates, designs, Product photographs, Product descriptions, Product and Packaging dimensions and weight, Product prices, Client Marks, URLs, and any other related information that Company may reasonably request

.2.20. “Representative(s)” collectively means the affiliates, directors, officers, shareholders, members, employees, subcontractors, permitted assigns, and agents of a Party.

2.21. “Security Obligation” means responsibility for maintaining the security of Seller Account login information.

2.22. “Seller Account” means an account with Amazon which enables merchants to market and sell their products on the Amazon marketplace(s). For the avoidance of doubt, Company will require access to all Seller Accounts for which Client expects Services to be rendered, including but not limited to international Seller Accounts on any online Amazon marketplace.

2.23. “Service” or “Services” means the services to be provided by Company, including, without limitation, FBA Audits and/or reimbursement case management services. Services shall also include any additional Services by Company as identified in any SOW or Amendment.

2.24. “Statement of Work” or “SOW” means a document titled “Statement of Work to Execuseller Terms” executed by Parties describing the details of Services to be provided and the applicable Fees.

2.25. “Technology” means, collectively, credentials, documentation, functionality, URLs, and integrations that enable access to Seller Accounts, Services, analytics, transaction information, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports that are necessary and provided or used by Company in connection with the Services and any software or technology necessary for the provision of Services, expressly excluding Client Data, Product Information, and Client Marks unless otherwise stated in a writing signed by the parties.

3. TERMS OF SERVICE

These Services may only be used by individuals who can form legally binding contracts under applicable law. These Services are not available to children (persons under the age of 18). By utilizing these Services, Client represents and warrants that Client and signatory are at least 18 years old and that Client has the right, authority and capacity to enter into and abide by these Terms. Client further represents and warrants regarding its eligibility to receive the Services that: (a) Client has had an active Seller Account for over twelve (12) months; (b) Client’s Seller Account(s) are in good standing and can maintain an account health rating of at least 200; (c) Client’s Seller Account(s) have and can maintain an Amazon inventory performance index of at least 400; (d) Client’s Seller Account(s) have and can maintain a Standard Amazon shipment performance rating.

Company access to the Client's Seller Account(s) is required to begin, perform, and complete the Services. Promptly after the acceptance of these Terms and execution of any SOW, and as a prerequisite to any work by Company, Client shall provide Company with the appropriate access to the Seller Account(s). Typically, in the Amazon Seller Account, view and edit access to every category is required for Company to perform the Services. Such access shall be granted to Company and shall remain continuously through the FBA Audit(s), filing of Eligible Claims, final response from Amazon on each Eligible Claim filed in connection with the FBA Audit, and until Client pays Company for all Fees from Approved Claims as outlined in the applicable SOW. Client waives all claims against Company and Company will not be held liable for any cost, damages, loss, or expenses that may arise in the event the security of Client’s Seller Account(s) has been compromised, especially due to the failure by Client to maintain the security of Client’s login credentials. In the event there is a breach of security through Client’s account, Client must immediately change Client’s password and provide written notification to Company regarding the updated password for the purposes of providing Services under the Terms and any particular SOW.

Subject to these Terms and on an as needed basis, as determined solely by Company, Company shall perform an FBA Audit. Company may review Client Data and other material to determine if there are Discrepancies. If Company finds Discrepancies, the Client will have ten (10) days (“Waiting Period”) after the shipment closing date (provided by Amazon or other third-party logistics providers) to notify Company of any changes, corrections, or updates to the Discrepancies found by Company. After the Waiting Period, Company may file Eligible Claims on the Discrepancies that the Client has not notified Company to change, correct, or update. In the event that either Client or third party (including Amazon) notifies Company of an error in a submitted Eligible Claim, and such claim is still open, Company will close the claim if it is eligible to be closed. Company shall summarize the potential claims opportunity, if any, to Client. Approved Claims, including their dollar amount, are visible within the Seller Account. Approved Claims from the FBA Audit, whether claims were submitted by Company or others, shall be the financial basis for calculating Client’s payment Fee to Company.

In its sole discretion, Company may discontinue offering the Service, in whole or in part, or modify any content of the Service, at any time, for any reason or no reason, with or without notice to Client. If any discontinuance or modification of a material part of the Services, materially and adversely impacts Company’s provision of the Services or Technology, as determined by Company, in its sole discretion, Client’s sole and exclusive remedy is to terminate Services pursuant to the guidelines established in Section 5 of this Terms. Any new features provided by Company which augment or enhance the current Service and/or Technology, including the release of new resources or updates by Company, may result in Additional Fees to Client which shall be due and payable by the Client pursuant to a mutually executed Amendment to the SOW. Company in its sole discretion reserves the right to discontinue Services, including filing claims, if the Client can no longer maintain its eligibility to receive the Services as outlined in section 3.1 of these Terms. For the avoidance of doubt, and in the event that Company discontinues the provision of its Services pursuant to the terms of this Paragraph, Company will relinquish any and all access to Client’s Seller Account(s) and will erase or destroy any credentials required for access, including but not limited to usernames and passwords.

From time to time, the provision of Additional Services not included in the scope of work outlined in an initial SOW (“Additional Services”) may be required. In such cases, the Parties may enter into a written amendment to the SOW which modifies the scope of work to accommodate Company’s provision of Additional Services to Client, and such written amendment may also include Additional Fees due and payable upon execution of that written amendment (“Amendment”).

4. CLIENT OBLIGATIONS

The Client is responsible for promptly providing any Product Information necessary and/or requested by Company for the performance of Services. Within thirty (30) days from the Effective Date hereof, Client will provide to Company all requested Product Information, including but not limited to FBA package dimensions regarding Product(s). The Client represents that all such Product Information supplied to Company is true, accurate, and complete, and does not infringe on the Intellectual Property Rights of any third parties, or violate any of Client’s obligations to any third parties, including but not limited to Amazon.

The Client is responsible for fulfilling all of its customers’ orders. Client agrees to ship all products within a commercially reasonable time after Client has received payment for the products. As between Company and Client, title and risk of loss for Client’s products remain with Client at all times. Client is solely responsible for maintaining inventory levels sufficient to support its sales of Products and comply with the Federal Trade Commission (FTC) “Mail or Telephone Order Merchandise Rule” set forth in 16 CFR Part 435 as updated from time to time. The Client is responsible for identifying the products that it offers that are subject to sales, use, VAT, GST, and/or similar taxes and providing the applicable rates and information to Company. Client shall apply, or advise Company to apply, the rates required by applicable laws, rules and regulations, foreign law, treaties, and conventions, and Client shall determine and pay all taxes, including without limitation any sales, use or ad valorem taxes. The Client shall reimburse Company for any taxes, interest, and penalties levied against Company if the Client fails to remit such taxes, interest, and/or penalties. The Client is responsible for providing Company its main tax location where the Client will receive the Services. Where obligated by applicable law, Company will, for the benefit of the Client, collect all applicable local, state, national or international taxes that are owed as a result of Client’s use of the Company Service, and remit collected taxes to the appropriate taxing authority based on Client’s main billing address of record.

Throughout the duration of Services, Client shall have the right to, and shall permit Company to access and use for Client’s benefit, Client’s order fulfillment systems, shipment creation management systems, Seller Account(s), and any other system, platform, or portal that Company deems access to be reasonably necessary in order to provide Services in accordance with the Terms (such systems, platforms, and portals hereinafter referred to as “Shipment Solutions Software” or “SSS.”) Company will maintain the confidentiality and security of the login credentials used to access the SSS. Company will not transfer, share, disclose or resell such login credentials, or otherwise share or transfer access to the SSS to any third-party except as otherwise stated in these Terms or with the express written consent of Client. Client will provide access to SSS within fifteen (15) business days from the Effective Date hereof.

Within fifteen (15) days from the Effective Date hereof, or from the date requested by Company, Client shall be responsible for ensuring that Company is provided with all necessary records and information deemed reasonably necessary by Company to provide Services in accordance with the Terms. Such records may include, but shall not be limited to, Product purchase orders, packing slips, Product commercial invoices, customs entry documents, proof of delivery documents, bills of lading, and records associated with specific orders as requested.

Within fifteen (15) days of receipt of a Missing Items From Inbound (MIFI) request by Company, Client will sign any documents requested by Company for the purpose of providing Services to ensure Eligible Claims are approved, including but not limited to packing lists, proofs of delivery, and any other documentation requiring Client signature for the FBA Audit process.

5. PAYMENT

Client shall pay Fees to Company in U.S. dollars equal to a mutually agreed upon percentage of the reimbursement value of each Approved Claim (“Commission”) as outlined in each applicable SOW. All Fees, including but not limited to Commissions and Additional Fees (if applicable), will be outlined in the applicable SOW or any subsequent Amendment and invoiced accordingly.

All Fees, including but not limited to Commissions and Additional Fees (if applicable), shall be invoiced pursuant to these Terms and the applicable SOW, and such invoices shall include Fees due and payable to Company for Services rendered in the preceding calendar month. All invoices are due and payable within thirty (30) days from the date of invoice via ACH to the account listed on the invoice (or any alternate method approved by Company). Client will notify Company of any invoice disputes within five (5) business days of receipt. The Parties agree to investigate and work to resolve any invoice disputes within twenty (20) calendar days.

All rights of the Client herein are conditioned on Company’s receipt of full payment. In addition, Company may suspend performance of Services until all amounts due are paid. Late payments shall accrue interest at the rate of either 10% per annum or the maximum default interest rate permitted under Texas law, whichever is higher. Company shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys.

Unless otherwise stated, Company charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Client is responsible for paying Taxes except those assessable against Company based on its income. Company will invoice Client for such Taxes if Company believes there is a legal obligation to do so.

In its sole discretion, Company reserves the right to modify its Fees in any manner (Client to be advised by electronic communication, such as email). To avoid liability for any such modified Fees, Client must terminate the applicable SOW prior to the expiration of thirty (30) calendar days after such modification of Fees.

Client will bear the responsibility of paying any credit card fees, banking fees or charges, and transaction charges associated with payment of any invoice. Company will include the fees outlined in this paragraph as a separate line item on any applicable invoice, and such fees will be due and payable in accordance with the payment terms outlined in this Terms.

6. TERM AND TERMINATION

These Terms will remain for twelve (12) months starting on the Effective Date identified in the SOW, and will automatically renew for successive twelve (12) month terms unless otherwise terminated in accordance with these Terms.

Company may end providing Services and/or terminate any SOW with cause immediately (a) upon Client’s failure to pay Fees when due, (b) upon Client’s breach of Sections 3.1, 3.2, 4, 5, 7, 8, 9.1, 10.2, 13, 14.2 and 14.3 of this Terms, or (c) upon Client’s material breach of any other provision of the Terms or SOW.

Either party may terminate the Services and/or any SOW, upon written notice, without cause, upon thirty (30) days’ notice and such termination shall be effective thirty (30) days after such notice, except that Company may continue pursuing and/or collecting on Eligible Claims made prior to the effective date of such termination. For the avoidance of doubt, Commission on Eligible Claims filed prior to termination, whether approved and become Approved Claims before or after termination, remain due and payable in accordance with the terms of this Terms.

Upon expiration or termination of the Terms, the License(s) granted to Client under this Terms shall terminate immediately. The following sections of the Terms of Service survive its expiration or termination: 3.4, 5.3, 5.4, 8, 12, 14.2, 14.3, 14.12, 14.13, and any other provision or partial provision which by its nature would reasonably survive the termination of the Terms.

7. INTELLECTUAL PROPERTY AND LICENSING

All Intellectual Property Rights regarding Company’s provision of Services shall be owned by Company absolutely and in their entirety. These rights include service model concepts, database rights, copyright, design, rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth regarding Company’s Service are the property of their respective owners. Client acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by Client to Company are non-confidential and shall become the sole property of Company. Company shall own exclusive rights, including all Intellectual Property Rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to Client.

All rights, title and interest in and to the Services and Company Marks (including without limitation all Intellectual Property Rights in the Services, Company Marks, and and all modifications, extensions, customizations, reiterations or other derivative works of thereof provided or developed by Company) are owned exclusively by Company. The rights granted to Client do not convey any rights, express or implied, or ownership to the Service, Company Marks, and or any Intellectual Property rights thereto.

The Client owns all rights, titles, and interests in the Product Information, Client Data, and Client Marks. Client acknowledges and agrees that, in connection with the provision of the Services, Company may store and maintain Client Data and Product Information for a period of time consistent with Company’s standard business practices for the Services. Client grants Company a limited, revocable, non-exclusive, non-transferable (except in connection with an assignment of the Services), sublicensable license to use, access, store and process the Client Data and Product Information to the extent necessary to provide the Services and otherwise fulfill its rights and obligations under the Terms. Client grants Company a royalty-free, worldwide, perpetual, irrevocable, right to use, modify, distribute, publish, display, and incorporate into the Services any alterations related to the operation or functionality of the Service. Following expiration or termination of the Services or Client’s SOW, Company may terminate the applicable Client’s account regarding Company’s provision of these Services and delete any data, including Client Data and Product Information, associated therewith. Furthermore, upon termination of the Services or any applicable SOW, Company will relinquish any and all access to Client’s Seller Account(s) and will erase or destroy any credentials required for such access, including but not limited to usernames and passwords. Notwithstanding the foregoing, nothing in these Terms is intended to prevent Company from using the Technology and/or Client Data for purposes of providing, measuring and improving Company’s Services; provided, however, that Company shall not disclose to any third party unless compelled by law or with Client’s permission, or otherwise, any information that is identifiable as Client Data.

Client hereby grants to Company a limited, non-exclusive, non-assignable, non-transferable license, without the right to sublicense, to use its Marks in connection with the Services, and for publicity, advertising, and marketing. Company may not alter Client Marks in any manner or use Client Marks in any manner that may dilute, diminish, or otherwise damage Client’s rights and goodwill in its Marks. Any usage of Client Marks by Company will be a reproduction of exact copies and all use of the Marks is subject to the Client’s usage guidelines, if applicable, as revised from time to time and made available to Company from Client.

Client hereby grants Company a non-exclusive, worldwide, royalty-free license to collect and/or use the Client’s data, including Client’s brand(s) and logo(s), in aggregated, anonymized, and/or statistical form (“Aggregated Data”) for Company’s own business purpose(s) during the Services, including analysis, research, reporting, and marketing. Client understands that Aggregated Data will not contain any personally identifiable information or any confidential or proprietary information belonging to the Client, and Client understands that any personally identifiable information will remain confidential and will not be used without the Client’s express, written consent. Client shall retain all rights to its brand(s) and logo(s), and the use of the brand(s) and logo(s) will be limited to the context of Aggregated Data. Any rights to all Aggregated Data. Company may use and/or disclose the Aggregated Data. Company shall make reasonable efforts to ensure that Client’s brand(s) and logo(s) are used in a manner that does not reflect negatively on the Client. If the Client has specific restrictions or requirements related to the use of its brand(s) and log(s)o, such restrictions or requirements should be communicated to Company in writing.

Client may not, and agrees not to or enable others to, copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Services provided by Company, or any part thereof (except and only to the extent any foregoing restriction is prohibited by applicable law).

8. CONFIDENTIALITY

Each Party acknowledges that in connection with this Terms, one party (the “Receiving Party”) may from time to time receive Confidential Information from the other Party (the “Disclosing Party”). The Parties agree that: a) the Receiving Party shall not disclose to others nor authorize any of its employees, agents, contractors, consultants or representatives to disclose to others any of the Disclosing Party’s Confidential Information, except as expressly permitted under this Terms, b) the Receiving Party shall use the Disclosing Party’s Confidential Information solely for the purpose of carrying out its responsibilities and obligations or exercising its rights under the Terms (the “Purpose”), and c) the Receiving Party shall use the same degree of care to protect the confidential nature of the Disclosing Party’s Confidential Information that the Receiving Party takes to protect its own Confidential Information of a similar nature and value, but in no event less than reasonable care, including industry standard controls. The Receiving Party shall limit its own use and/or distribution of the Disclosing Party’s Confidential Information to the Receiving Party’s own employees, agents, consultants, contractors, or representatives on a “need to know” basis who have been advised of the obligations of confidentiality and have agreed to be bound by them or, alternatively, are under pre-existing obligations of confidentiality substantially as protective as those set forth in the Terms. The Receiving Party further acknowledges that the Disclosing Party’s Confidential Information is and shall remain the sole property of the Disclosing Party (including any intellectual property rights therein). The Receiving Party will not, without first obtaining the written consent of the Disclosing Party, or as otherwise permitted hereunder, disclose to any person, firm or enterprise, or use for its own benefit, any of the Disclosing Party’s Confidential Information except as permitted under these Terms. This paragraph shall in no way prevent a Party from disclosing any information in response to a lawful subpoena or court order requiring disclosure of information or in court proceedings or alternative dispute resolution activities seeking to enforce such party’s rights under the Terms. If the Receiving Party must disclose the Disclosing Party’s Confidential Information pursuant to a validly issued order of a court, administrative agency or other governmental body with jurisdiction over the Parties hereto, or as required by law or regulation, or in response to an audit, inquiry, request or other investigation by a governmental agency, the Receiving Party will, to the extent that it may legally do so, first provide the Disclosing Party with prompt written notice of such disclosure and take reasonable steps to allow the Disclosing Party, at its sole option and expense, to object to such disclosure, seek a protective order with respect to the confidentiality of the information to be disclosed or take such other action as it deems appropriate to protect its Confidential Information and disclose only reasonably related portions of the Disclosing Party’s Confidential Information. Disclosure of Confidential Information by one Party to the other Party pursuant to these Terms does not convey, grant, transfer or otherwise create any option, license or other rights or interests beyond those licenses expressly granted in these Terms. The Receiving Party will not copy, decompile, modify, reverse engineer, or create derivative works out of any Confidential Information without the Disclosing Party’s consent. For the avoidance of doubt, written correspondence, including cases opened with Amazon as part of Services, are considered Company’s copyrighted material.

Company may disclose certain Confidential Information, including but not limited to business operations data, sales data, and order fulfillment data, with third-party services as Company deems reasonably necessary to provide Services to Client, establish any necessary accounts with Client and/or third-party services, and conduct FBA Audits on customer orders and fulfillment records. Client waives their right to bring any claim against 3P Aid LLC and its affiliates, or any third-party services related to such disclosures, unless in the event of gross negligence or willful misconduct arising from Company sharing such Confidential Information about Client with third-party services outside the scope of Services outlined in the Terms. Company agrees to use reasonable controls (but in all events at least the same degree of care and controls that Recipient uses to protect its own Confidential Information and proprietary data of similar importance) to prevent the unauthorized use, disclosure or availability of Confidential Information. In addition to the foregoing, Company shall take the appropriate steps to (a) protect the security and confidentiality of the Confidential Information, (b) protect against any anticipated threats or hazards to the security or integrity of such Confidential Information, (c) protect against unauthorized access to or use of such Confidential Information that could result in harm or inconvenience to Client or Client’s customers and (d) ensure the proper disposal of such Confidential Information as may be required by applicable law. Except as expressly provided herein or with Client’s prior written consent, Recipient agrees (a) that it will hold all Confidential Information in confidence and (b) that it will not disclose any Confidential Information to third-parties other than any applicable regulatory authorities and/or auditors as required by law.

9. REPRESENTATIONS, WARRANTIES, & DISCLAIMERS

(a) the Services may contain links to, or otherwise may allow Client to connect to and use certain marketplaces, third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Company’s Service, including but not limited to Amazon.com, Inc. and its affiliates. If Client decides to access and use such Other Services, be advised that Client’s use of those Services is governed solely by the terms and conditions of such Other Services, and Company does not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Client’s data, or Client’s failure to comply with the terms and conditions of such Other Services. Company is not liable for any damage or loss caused or alleged to be caused by or in connection with Client’s access or use of any such Other Services, or Client’s reliance on the privacy practices or other policies of such Other Services.
(b) Client is responsible for any breaches of its Security Obligations or of security that occur through Client’s access or login credentials including as a result of Client’s sharing such access or login credentials, or failure by Client to adequately safeguard the same. Company shall not be liable for any loss or damage caused by the Client’s failure to comply with the Security Obligation.
(c) the Product Information and Client Data (i) is owned (or validly licensed for all uses required under this Terms) by Client or is in the public domain, (ii) does not constitute defamation, libel, or obscenity, (iii) does not result in any consumer fraud, product liability, or breach of contract, or cause injury to any third party, (iv) does not contain, and will not introduce into the Technology and/or Service, any viruses, Trojan horses, worms, spyware, time bombs or other forms of malware, malicious code or computer programming routines which may interfere with or disrupt the Services; (v) is accurate, current and complete; (vi) is not misleading or false; (vii) does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy rights of any third party; and (viii) does not contain any protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or similar federal or state laws, rules or regulations or other medical or health information identifiable with a particular individual;
(d) Client will comply with all applicable laws, rules and regulations, foreign law, treaties, and conventions as updated from time to time, related to the Client’s performance of its obligations under the Terms and activities that Client undertakes in connection with its use of the Technology and/or Services including without limitation those governing the online sale of goods and services, those governing anti-bribery and anti-corruption, including without limitation the U.K. Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), respectively, and U.S. export controls and trade sanctions and economic embargoes.

The following disclaimers are made on behalf of Company, its affiliates, subsidiaries, parents, contractors, successors and assigns, and each of its respective officers, directors, employees, agents, and shareholders:(a) Company does not issue reimbursements directly to Client for mistakes made by Amazon and/or Discrepancies identified by Company which have resulted in Approved Claims. The Company Service submits Eligible Claims to Amazon on Client’s behalf, to have Amazon research potentially missing reimbursements, and to have Amazon potentially disburse reimbursements directly to Client’s Amazon Seller account based on the Approved Claim(s).
(b) Company does not warrant that Client’s use of and access to the Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet Client’s requirements. Company disclaims liability for, and no warrant is made with respect to, connectivity and availability of the Services.
(c) Company shall not be liable for any loss, damage, penalties, or fees arising from Client’s or third party’s errors, misrepresentations, inaccuracies, or incompleteness of Client Data, Discrepancies, or Eligible Claims. Client is solely responsible for the accuracy and completion of all Client Data, including without limitation, documents, and information representing Client’s fulfillment, shipment, inventory and taxes, reports, Discrepancies, and Eligible Claims.
(d) Company is not responsible for acts, services, or content posted or provided by persons or entities other than Company (including but not limited to Amazon), for Client’s exposure to such content, or for actions Client takes in reliance on that content. Company has no liability to Client for failures based on services not provided by Company.
(e) Company shall not, under any circumstances, be liable for any loss, delay, or interception of Client Data whether that be through general use, hacking or server failure, or any loss, corruption, or failure of the daily backups or otherwise. Client acknowledges that: (a) the technical processing and transmission of Client Data is fundamentally necessary to use the Service; (b) Client Data will be subject to transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Company; (c) Client Data may be subject to transmission over the internet in various countries outside of the United States, and (d) Client acknowledges that Client Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means.
(f) Company shall not be liable for the verification of Client’s information submitted by Client to Amazon, or any third parties, and thereafter retrieved or utilized by Company in the course of providing Services, regardless of what form the information is received.

10. ASSUMED RISKS

10.1. Except as otherwise expressly stated in these Terms, Client agrees to use the Service and/or the Technology at Client’s own risk. Company shall not be liable for any actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, admiralty or equity, unless expressly stated otherwise in the Terms.

10.2. Client is solely responsible for all selection of parties with whom Client does business (including but not limited to Amazon), and for Client’s agreements with those parties.

10.3. Company has no responsibility for the quality or availability of goods or services provided by Client, any of Client’s customers’ ability to pay, any third party’s compliance with the terms of a transaction, Client’s compliance with the terms of any agreement with any third parties, or for any injury, loss, or damage caused or alleged to have been caused by the goods or services sold by Client.

UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR: LOSS OF REVENUE; LOSS OF DATA; ERRORS IN CLIENT DATA; DISCREPANCIES OR ELIGIBLE CLAIMS; ERRORS IN DISCREPANCIES OR ELIGIBLE CLAIMS; ERRORS IN PRODUCT INFORMATION; CLIENT’S FAILURE TO PROVIDE SUFFICIENT OR TIMELY CLIENT DATA; INCOMPLETE, INACCURATE, MISLEADING, FALSE OR FRAUDULENT CLIENT DATA, PRODUCT INFORMATION OR OTHER DOCUMENTATION OR OTHER INFORMATION PROVIDED BY CLIENT; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE, OR CORRUPTION OF DATA, OR CONSEQUENTIAL OR INDIRECT LOSS OR SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR DAMAGE ALREADY LISTED), WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY CLIENT OR ANY THIRD PARTY ARISING OUT OF ANY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR OTHER TERM, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. COMPANY IS NOT LIABLE TO THE CLIENT OR ANY THIRD PARTY FOR THE FAILURE OF A PERSON TO ENTER INTO A TRANSACTION OR OBTAIN ANY PARTICULAR RESULT BY MEANS OF THE CLIENT’S USE OF THE COMPANY SERVICE, TECHNOLOGY, ANY MODULE (OR OTHER LICENSE), OR THE SERVICES. COMPANY IS NOT LIABLE FOR ANY LOSS, DAMAGE, PENALTIES, OR FEES SUSTAINED BY, OR ACTIONS TAKEN OR CLAIMS MADE AGAINST CLIENT OR ANY THIRD PARTY, ARISING DIRECTLY OR INDIRECTLY, FROM ANY SUSPENSION OR POTENTIAL SUSPENSION BY AMAZON OR ANY THIRD PARTY, INCLUDING CLIENT’S BREACH OF CONTRACT WITH AMAZON OR ANY THIRD PARTY RESULTING FROM CLIENT’S USE OF COMPANY’S SERVICES, REGARDLESS OF THE REASON, DURATION OF, OR WHETHER THERE WAS NOTICE OF A SUSPENSION OR POTENTIAL SUSPENSION.

NOTWITHSTANDING THE FORM OR NATURE (E.G., CONTRACT, TORT, STATUTORY, COMMON LAW, DIRECT LIABILITY OR INDEMNIFICATION, INFRINGEMENT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY CLIENT OR THIRD PARTY, IN NO EVENT WILL COMPANY BE LIABLE FOR DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES TO CLIENT AND/OR THIRD PARTIES, THAT EXCEED, IN THE AGGREGATE, TWO (2) TIMES THE TOTAL AMOUNTS PAID OR PAYABLE TO COMPANY BY CLIENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES TO CLIENT AND/OR THIRD PARTIES (“LIABILITY CAP”). Some States do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Client. IN THESE STATES, COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. Such Liability Cap is a maximum and shall not be used, control or be considered if: (i) Company’s liability or obligations are in amounts which would be or are below the Liability Cap either pursuant to this Terms or otherwise or (ii) if Company has no liability either otherwise or pursuant to disclaimers in this Terms including, but not limited to, sections 9, 10 and 11 of the Terms.

12. INDEMNIFICATION

Subject to Section 12.3, Client shall indemnify, defend and hold harmless Company and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including attorney’s fees), of whatever type or nature incurred by Company by reason of a third party claim or assertion brought against Company or its Representatives arising out of or related to:(a) Client’s failure to comply with or breach of the Terms,
(b) Client Data, Client Marks, ad content, and Product Information or Client’s products listed, supplied or sold, including, without limitation, Intellectual Property infringement claims and product liability claims, and any misleading, false, inaccurate, fraudulent or incomplete Client Data, Product Information, or other documentation or information supplied by Client, or any failure by Client to provide sufficient or timely, accurate and complete Client Data, Product Information, or other documentation or any errors in Discrepancies or Eligible Claims,
(c) any negligence, recklessness, or misconduct of Client or its Representatives,
(d) the death or bodily injury of any agent, employee, Client, business invitee, or business visitor or other person caused by Client’s conduct, or that of Client’s agent or employee;
(e) Client’s acts or omissions or those of Client’s employees, agents, contractors, successors and permitted assigns; and/or
(f) any third party claim resulting from Client’s acceptance of, or Company’s provision of, Services outlined in these Terms. Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Client agrees to cooperate with any requests to assist Company’s defense of such matter and Client shall reimburse Company or pay in advance, as requested in Company’s sole discretion, all costs, and expenses (including attorney’s fees).

Unless Company has no liability either otherwise or pursuant to disclaimers in this Terms including, but not limited to, sections 9, 10, and 11 and subject to Section 12.3 of the Terms, Company shall indemnify, defend and hold harmless Client and its Representatives in the aggregate lesser amount of (i) the Liability Cap, or (ii) Company’s liability or obligations which are in amounts which would be or are below the Liability Cap either pursuant to the Terms or otherwise, from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) of whatever type or nature which are incurred by Client by reason of a third party claim or assertion brought against Client and/or its Representatives, arising out of or related to any gross negligence or willful misconduct of Company or its Representatives in the course of providing the Services to Client.

In order for the indemnification obligations of the indemnifying parties to apply, the indemnified parties must promptly provide the indemnifying party with notice in writing of any claim, promptly tender the control of the defense, and settlement of any claim to the indemnifying party (at the indemnifying party’s expense and with indemnifying party’s choice of counsel), and cooperate fully with the indemnifying party (at the indemnifying party’s request and expense) in defending or settling the claim including without limitation providing any information or materials necessary for the defense. The indemnifying party shall only be liable to the indemnified party for the amount of damages as determined in a final, non-appealable order of a court of competent jurisdiction, binding arbitration, or paid by way of settlement, but the indemnifying party shall have no liability for any settlement made by an indemnified party without the indemnifying party’s prior written consent, which may not be unreasonably withheld. The indemnifying party will not enter into any settlement or compromise of any claim without the indemnified party’s prior consent if the settlement would require an admission of fault or payment by the indemnified party.

13. DATA PROTECTION

If Client is processing data obtained from a European Union (“EU”) data source, Client must be in compliance with the General Data Protection Regulation (“GDPR”). Client represents and warrants that Client is fully compliant with all GDPR provisions, including but not limited to the provisions for mandatory standard contractual requirements, data processing records, breach notification process, right to erasure, data privacy policy, fair processing notices, and data protection requirements for employee contracts. Client represents and warrants that any data given or shared with Company that is from an EU data source, such information will be processed and handled using the applicable GDPR provisions. If Client becomes non-compliant with the GDPR, Client will immediately notify Company.

Client acknowledges that Client’s information and Client’s Data (personal or otherwise) may be transmitted inside and/or outside the United States as a result of Company providing the Services.

As a condition to using the Technology and/or Company Services, the Client must:
(a) have and enforce a privacy policy that complies with all applicable laws, rules and regulations, foreign law, treaties, and conventions, including without limitation the treatment of all personal information in accordance with Federal and state laws of the United States, and European and non-U.S. governing authorities to the extent that Client sells into international marketplaces or otherwise is subject to the laws of those authorities;
(b) secure Client Data and not allow Client Data to be disclosed except in accordance with Client’s privacy policy and all applicable laws, rules and regulations, foreign law, treaties, and conventions, and at least as restrictive as industry standards, but no less than reasonable care; and
(c) ensure that the Client’s privacy statement discloses the use of “cookies” or similar technologies that may be used by the Client or a third party (including Company) to track browsing and purchasing habits, and such use of “cookies” complies with all applicable laws, rules, and regulations, foreign law, treaties, and conventions, including any opt-in and opt-out requirement.

14. GENERAL PROVISIONS

Nothing in these Terms will be deemed to limit or restrict Company from entering into any other agreements similar hereto with any other third parties. Client acknowledges and agrees that (i) Company has and will continue to provide similar Services to third parties; (ii) Company can engage in transactions with third parties, or undertake its own activities, whether or not similar to the services and transactions provided or contemplated by the Terms or which may be competitive with Client’s business or Client Products; (iii) Company has no obligation to inform Client of its relationship with such third parties or the nature of the services provided to such third parties; (iv) Company has no obligation to limit or modify its relationship with such third parties or the nature of the services provided to such third parties; and (v) the relationships with and services provided to such third parties do not interfere with Company’s relationship with Client or Company’s performance of the Service or create a conflict of interest between Company and Client.

Neither Party will make any disparaging, negative or untrue statements about the other party, including (without limitation) any statements about a Party’s services, business affairs or operations, officers, directors, employees or contractors, as applicable.

Client agrees that, during the Services and for the twelve (12) month period following the termination of Services, Client will not, directly or indirectly, for any reason solicit or hire away, or attempt to solicit or hire away any person who was employed or engaged by Company or Company affiliates in connection with the Services, either for the benefit of Client or any other person or entity, except by means of a general advertising campaign not targeting specifically such persons so employed or engaged by Client or Client affiliates.

Company reserves the right to amend, modify, or revise the Terms and/or SOW at any time, for any reason, and without prior notice to Client. By continuing to use the Services after changes to the Terms and/or SOW are made, Client acknowledges and agrees to be bound by the updated terms and conditions. If Client does not agree with any change(s) made to the Terms and/or SOW, Client has the right to terminate its use of the Services, in accordance with the termination provisions outlined in the Terms. Company may, but is not obligated to, notify Client of any significant changes, but it is Client’s responsibility to review the Terms and/or SOW periodically.

Headings used in the Terms are for reference purposes only and shall not be deemed a part of the Terms.

The Client may not assign the Services without Company’s prior written consent.

The parties are independent contractors. Acceptance of the Terms and/or Services does not create any joint venture, partnership, agency, or employment relationship between the parties.

These Terms and the SOW constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or collateral negotiations, proposals, terms, and understandings, whether oral or written, relating to the subject matter of the Terms. Any representation, warranty, course of dealing, or trade usage not expressly stated in the Terms shall not be binding. Except as otherwise stated in the Terms, any amendments to the Terms must be in writing and executed by the parties. To the extent the terms of subsequent writing signed by the parties conflict with the terms of the Terms, the terms of the Terms will prevail.

If any provision of the Terms is held or made invalid or unenforceable for any reason, the invalidity will not affect the remainder of the Terms and the severed provision shall be interpreted to be consistent with the Terms.

The failure of either party at any time to enforce or require performance of any provision shall not waive or affect such party’s right to enforce any such provision at a later time.

Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees, and/or assurances of the other party that is NOT otherwise expressly contained in the Terms.

The laws of the State of Texas, without recourse to its conflicts of laws provisions, govern the Terms. Each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the applicable courts located in Travis County, Texas, for purposes of any action, suit, or proceeding arising out of or relating to the Terms. Any and all disputes, claims or controversies arising out of or related to the Terms or any other agreement executed and delivered pursuant to this Terms, including any SOW, or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby and thereby that are not resolved by mutual agreement shall be resolved solely and exclusively by final and binding arbitration in Austin, Travis County, Texas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”), by one or more arbitrators chosen in accordance with the Rules. The decision of the arbitrator(s) shall be final, conclusive and binding on the Parties and judgment may be entered thereon in the District Court of Travis County, Texas to enforce the decision.

THE CLIENT HEREBY WAIVES, AND COVENANTS THAT THE CLIENT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THE TERMS, THE SUBJECT MATTER HEREOF OR ANY DOCUMENT RELATING HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR IN TORT OR OTHERWISE. THE CLIENT ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING ALL THE TERMS OF THE TERMS, INCLUDING THIS SECTION, THAT IT FULLY UNDERSTANDS THE TERMS HEREOF, THE CONTENT AND EFFECT, AND THAT IT VOLUNTARILY AND KNOWINGLY AGREES TO THE TERMS HEREOF, AND THAT IN THE EVENT OF ANY AMBIGUITY IN THE TERMS, ANY PRESUMPTION THAT SUCH AMBIGUITY SHALL BE CONSTRUED AGAINST THE DRAFTER OF THE Terms SHALL NOT APPLY TO THIS Terms.

Neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the Terms other than payment if, and to the extent that, the failure or delay is caused by events beyond its reasonable control including without limitation acts of the public enemy or governmental body in its sovereign or contractual capacity, war, fire, floods, strikes, epidemics, pandemics, quarantine restrictions, unavailability of the Internet, protracted mass power failure, civil unrest or riots, acts of terrorism, transportation delays, freight embargoes or unusually severe weather. The affected party shall use commercially reasonable efforts to avoid or remove the causes of non-performance or delay, and shall continue performance whenever the causes are removed.