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Terms of Service

Last updated: January 11th, 2025

Please read these terms and conditions carefully before using Our Service.

  1. Obligations of LCDSWAP.
      LCDSWAP shall provide the services (the “Services”) described below. All Exhibits attached to or issued under this Agreement are hereby incorporated into and made a part of this Agreement.
      Services: Services shall include, without limitation, the provision of fulfillment services, and other related incidental services as determined by LCDSWAP in their sole discretion, and subject to change without prior notice to Client.
  2. Payment, Taxes and Duties.
    1. Exhibit A sets forth the compensation in USD due to LCDSWAP for completion of the Services described herein. Exhibit A also designates LCDSWAP and Client’s authorized representative for purposes of this Agreement. Client shall provide payment via LCDSWAP’s preferred choice of payment, which may change at LCDSWAP’s sole discretion without any notice to Client.
    2. LCDSWAP shall be responsible for invoicing Client for any applicable federal, state, and/or provincial taxes that are imposed by law on LCDSWAP in connection with: (1) the provision of the Services; and (2) the sale of any goods related to the provision of any service. Client shall be responsible for such taxes, customs or duties whether existing as of the Effective Date of the Agreement or increasing or becoming applicable during the term of the Agreement.
    3. Arrangements, costs and regulatory obligations associated with the cross-border movement of Client’s goods or property, if any, whether or not title has transferred to LCDSWAP, or its subsidiaries, will be the sole responsibility of Client, including without limitation, export packing, licensing, forwarding, import brokerage, duty, broker and/or forwarder fees, indirect taxes, filing of export and/or import declarations or entries in Client’s name, and LCDSWAP’s costs and related expenses, as well as other responsibilities identified in the Agreement.
    4. Notwithstanding anything to the contrary in this Agreement or the associated Exhibits, Client agrees to provide a pre-authorized credit card for LCDSWAP to hold on file (the “Credit Card”). Client hereby acknowledges and agrees that LCDSWAP may charge the Client’s Credit Card at LCDSWAP’s sole discretion, any time that the Client has an invoice or payment due. Client understands and agrees that LCDSWAP will not remove the Credit Card kept on file unless and until Client replaces the initial Credit Card with another valid Credit Card.
    5. Client agrees to the following conditional payment and invoicing provisions:
      1. In the event Client’s Services exceed $100,000 in any four-week period, LCDSWAP shall require Client deposit with LCDSWAP an amount equal to the Client’s largest monthly billing cycle (the “Deposit Amount”), to be held by LCDSWAP as collateral against any shortfall(s) in future billing. Client understands that the Deposit Amount shall be adjusted upwards to match the largest four-week period, should Client’s monthly billing cycles increase over time.
      2. In the event Client’s Services exceed $50,000 per four-week period, LCDSWAP shall bill Client weekly.
      3. Any pre-orders requested by Client shall require pre-payment, prior to shipping, of all costs borne by LCDSWAP related to the shipping of those pre-ordered items.
    6. Client further acknowledges and agrees that LCDSWAP may request payments be made in advance of providing services at any time in LCDSWAP’s sole discretion, which shall be due immediately.
  3. Invoicing.
    1. LCDSWAP shall invoice Client for all Services provided and for any expenses incurred for the purposes of providing the Services. Invoices will be presented to Client in accordance with the schedule set forth in Exhibit A and shall be due and payable seven (7) days after Client’s receipt of the invoice.
    2. Client must ensure that all outstanding invoices are paid prior to requesting further Services from LCDSWAP. LCDSWAP may choose, in LCDSWAP’s sole discretion, to refrain from providing further Services to Client until all outstanding invoices and amounts due are paid in full, without any liability to Client.
    3. LCDSWAP may submit invoices to Client for payment at any point in time, at LCDSWAP’s sole discretion. Further to this section, LCDSWAP may amend the billing cycle at LCDSWAP’s sole discretion without prior notice to Client. Client shall be notified within seven (7) business days of any changes to the billing cycle.
  4. Reimbursement of Expenses.
    1. Client shall reimburse LCDSWAP for any and all expenses stated in each invoice.
    2. Any expenses which require amendments or adjustments shall be re-billed to Client on the next applicable invoice, including without limitation, any adjustments from carriers for postage charges.
  5. Representations, Warranties and Covenants.
    1. Client represents, warrants and covenants that no part of the materials or products provided as part of the Services will violate or infringe upon the intellectual property rights or other statutory rights of any third party, including, without limitation, any rights relating to copyright, patent, trademark, trade secret, defamation, privacy or publicity (collectively “Intellectual Property Rights”).
    2. Client further represents and warrants that Client has reviewed the Service Level Agreements, this Agreement, and all associated Terms and Conditions available on LCDSWAP’s website (“https://shiphype.com/”).
    3. Client further represents, warrants and covenants that Client owns all materials or products provided as part of the Services, and that Client has obtained all permissions, releases, rights or licenses required to engage in this Agreement and for LCDSWAP to provide the Services without obtaining any further releases or consents.
    4. Client further represents and warrants that Client is the sole legal owner and has lawful possession or control of Client’s Property (defined below), and that Client has the sole legal right to store and direct the release and delivery of Client’s Property. Client further represents and warrants that Client’s Property does not contain any potential health, safety, or environmental hazards associated with the shipment, storage, or fulfillment of the Client’s Property and Services, and that Client’s Property complies with all applicable laws, does not contain any hazardous and dangerous materials, and does not violate LCDSWAP’s policies, which are subject to change without notice. Client shall strictly meet or exceed any compliance obligations contained herein and LCDSWAP may, in its sole discretion, reject Client’s Property which LCDSWAP reasonably determines may violate this section. Client acknowledges and agrees that Client may incur additional fees from LCDSWAP as a result of LCDSWAP refusing Client’s Property, which may result in a significant delay or non-shipment of Client’s Property, and Client agrees that LCDSWAP shall not be held liable for any associated loss or damage which may result.
    5. Client further represents, warrants, and acknowledges that LCDSWAP is not the merchant of record for Client’s Property (defined below).
    6. Client represents that he/she/it is not a competitor of LCDSWAP or, if it is a competitor of LCDSWAP, he/she/it has disclosed same to LCDSWAP.
    7. Each party represents, warrants and covenants that:
      1. It has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and
      2. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on its part.
  6. Term and Termination.
    1. This Agreement will commence on the Effective Date and continue in full force and effect for thirty (30) calendar days, unless extended in accordance with Section 6.2 or earlier terminated as set forth herein.
    2. This Agreement shall automatically renew for an additional term of thirty (30) days, each following the expiration of the original Agreement term. Client shall notify LCDSWAP of its election to terminate the Agreement term not less than one (1) day prior to the expiration of the original Agreement term or renewal term, as applicable.
    3. Client and LCDSWAP shall each have the right to terminate this Agreement in whole or in part, without cause, upon one (1) day prior written notice to the opposite party.
    4. The occurrence of any of the following shall constitute an “Event of Default” under this Agreement:
      1. Client defaults in any of its obligations under Section 7 concerning Confidential Information; or
      2. Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or
      3. Client becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or
      4. Any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Client and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
      5. Any representation or warranty made by Client in this Agreement, or any other document executed in connection herewith proves to have been incorrect in any material respect when made.
    5. Notwithstanding anything stated above, an occurrence of an Event of Default described in Section 6.4.2, or Section 6.4.3, or Section 6.4.4 shall effect an immediate termination of this Agreement without any notice requirement.
    6. If Client fails to make payment for any reason whatsoever, LCDSWAP may, in their sole discretion, consolidate the inventory provided by Client and prepare it to be sold as-is. The time used to consolidate such inventory will also be invoiced to the Client.
    7. Client acknowledges and agrees that Client is not permitted to dispute any transactions made with their credit card provider, including without limitation, issuing a charge back request for such transactions.
    8. Upon the occurrence of any other Event of Default, LCDSWAP may terminate this Agreement by written notice to Client stating the effective date of termination (which may be immediate) and, if the Agreement is not terminated in whole, the extent of termination.
    9. Upon the occurrence of an Event of Default, LCDSWAP may exercise any and all rights and pursue any and all remedies LCDSWAP may have by contract, at law or in equity in any jurisdiction where enforcement of this Agreement is sought.
    10. Upon termination of this Agreement, LCDSWAP shall discontinue Services on the effective date of termination. Upon termination, LCDSWAP shall be paid any and all amounts due for Services completed prior to the date of termination, including the costs and work associated with terminating the Agreement, including without limitation, the return of Client’s products or merchandise. Payment of such amount shall be made in accordance with the standard invoicing and payment procedures set forth in this Agreement. In addition, Client shall reimburse those expenses of LCDSWAP LLC. which were incurred prior to the effective date of termination or as a result of such termination.
    11. Upon termination of this Agreement, if Client has any outstanding invoices with LCDSWAP, Client shall ensure that such invoices are paid in full within seven (7) calendar days of termination. Failing which, LCDSWAP may, in LCDSWAP’s sole discretion, sell or dispose of any products, equipment, merchandise, etc. (“Client’s Property”), which are still in LCDSWAP’s possession, in order to recover LCDSWAP’s loss of revenue, which may be done without any prior notice to Client. LCDSWAP may pursue Client for any remainder which is owed and does not waive any rights by doing so.
    12. Upon termination of this Agreement, Client shall arrange to recover all of Client’s Property within seven (7) calendar days of termination, at Client’s sole expense. Failing which, LCDSWAP may, in LCDSWAP’s sole discretion, sell or dispose of Client’s Property, which may be done without any prior notice to Client. Client agrees to hold LCDSWAP harmless for any disposal of Client’s Property and acknowledges and agrees that it is Client’s duty to ensure that all invoices are paid, and Client’s Property is recovered in a timely manner.
    13. Notwithstanding any of the foregoing and for the sake of simplicity, LCDSWAP has the full discretion and right in LCDSWAP’s sole discretion to refuse to release Client’s Property, and to dispose of such Client’s Property in the manner that LCDSWAP sees fit in LCDSWAP’s sole discretion, if Client has any outstanding invoices or if LCDSWAP reasonably anticipates a breach of this Agreement.
    14. Further, upon termination of this Agreement, if full payment of all outstanding invoices has been made, Client shall ensure that Client’s Property is recovered within seven (7) calendar days of termination of this Agreement, failing which, LCDSWAP may dispose of Client’s Property in the manner that LCDSWAP sees fit in LCDSWAP’s sole discretion.
    15. If Client fails to make payments for a period greater than thirty (30) days, LCDSWAP may, in LCDSWAP’s sole discretion, terminate the Agreement, suspend all Services, and reclassify Client’s account as abandoned (“Abandoned Account”). Further, any Client account which remains unpaid for more than sixty (60) days shall automatically be deemed to be an Abandoned Account. If Client’s account becomes an Abandoned Account, Client shall forfeit all rights to ownership of Client’s Property and any balances, deposits, etc., held by LCDSWAP for Client, and Client shall solely assume all liability thereafter for Client’s Property. Client shall have no rights to the liquidation process or proceeds received by LCDSWAP in accordance with this section, and Client shall remain liable for any amounts due above those recovered by the sale of Client’s Property by LCDSWAP.
    16. Notwithstanding any of the foregoing, Client agrees to hold LCDSWAP harmless for any disposal of Client’s Property in accordance with any of the above sections.
  7. Confidentiality.
    1. Client agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing and special pricing (“Confidential Information”), strictly confidential and shall not disclose any part of this Agreement to any party, except for the purposes of seeking legal advice.
    2. Client acknowledges that the Confidential Information is important, material and confidential to LCDSWAP. Therefore, Client agrees that the remedy at law for any breach of this Agreement would be inadequate and that, in addition to any other remedies available, LCDSWAP shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or the need to post a bond. Such injunctive relief will not affect LCDSWAP’s right to seek monetary damages or any other remedies which may be available. The provisions of this Section 7 will survive the expiration or earlier termination of this Agreement.
    3. Client hereby grants LCDSWAP the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Client’s information collected or stored by or on behalf of LCDSWAP in connection with the Services (“Client’s Data”), as is deemed necessary in LCDSWAP’s sole discretion, for the purposes of providing the Services, (ii) to copy, modify, and use Client’s Data in connection with internal operations and functions, including without limitation, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing purposes.
    4. Client hereby further grants LCDSWAP the non-exclusive right and license to utilize Client’s proprietary property, including without limitation, Client’s logo’s, trademarks, reviews, pictures, etc., on LCDSWAP’s website and other promotional and non-promotional materials, for any reason whatsoever.
  8. Records, Right to Inspect, Electronic Discovery.
    1. During the term of this Agreement and for two (2) years thereafter, Client shall retain all data, books and records (in whatever form they may be kept, whether written, electronic or other) relating or pertaining to this Agreement (collectively “Records”). The Records shall be maintained in accordance with recognized accounting practices and in such a manner that they may be readily audited. The Records shall be available for direct inspection and copying by LCDSWAP, or its designated representatives, during normal business hours upon LCDSWAP’s request while this Agreement remains in force and for two (2) years after its expiration or termination. LCDSWAP or its designated representatives may use general audit software and other reporting tools against data files or databases. Client shall cooperate with LCDSWAP, or its designated representatives, in the conduct of such inspection. In the event LCDSWAP requires information in electronic format from Client in connection with a discovery process, lawful search warrant, court order, subpoena, or other valid legal, regulatory, or administrative process, Client agrees to take reasonable and immediate steps to meet LCDSWAP’s requirements at Client’s expense.
    2. LCDSWAP specifically retains the right to inspect any of Client’s Property held in LCDSWAP’s possession should LCDSWAP have cause to believe any items identified as Client’s Property are counterfeit; any inspection(s) of Client’s Property performed pursuant to this Agreement shall be performed by a third-party expert selected by LCDSWAP, in its sole discretion. The cost(s) of such third-party expert shall be borne entirely by the Client.
      1. In the event the expert retained by LCDSWAP determines that any item(s) identified as Client’s Property, after inspecting same, are counterfeit, LCDSWAP reserves the sole right to dispose of those counterfeit items in any manner LCDSWAP sees fit.
      2. In the event that the expert retained by LCDSWAP finds that one or more, but less than all, of Client’s Property are counterfeit, LCDSWAP reserves the right to assert control over the entirety of Client’s Property and, notwithstanding any provision to the contrary herein, immediately terminate any agreement(s) between LCDSWAP and Client.
  9. Work Product and Ownership Rights.
    1. Client hereby grants to LCDSWAP a limited, revocable, non-exclusive license to use the trademarks, logos, or artwork owned or licensed to the Client hereto (collectively referred to as the 'Licensed Marks'), for the purpose of displaying such Licensed Marks on packaging, invoices, customer service correspondence, LCDSWAP’s social media accounts, websites, and for any marketing or promotional purposes of LCDSWAP’s services, at LCDSWAP’s sole discretion. Other than as contemplated by this Agreement, LCDSWAP shall not make any other use of the Licensed Marks or any related marks or intellectual property of Client. Client hereby irrevocably waives the right to any written, audio, and/or video testimonials and permanently assigns any interests it may have therein to LCDSWAP.
    2. Client, in connection with the Services rendered pursuant to this Agreement, may become acquainted with Confidential Information and Trade Secrets of LCDSWAP. As used in this Agreement, Confidential Information and Trade Secrets (“Proprietary Information”) of LCDSWAP means any lists of the LCDSWAP’s clients and other information relating thereto, client records and histories, financial data, and plans, practices, price lists, supplier lists, marketing plans, promotional material and marketing strategies, financial information, contracts, or agreements with any person or entity, and all other compilations of information which relate to the business of LCDSWAP and/or which have not been disclosed by LCDSWAP to the public. The Client acknowledges that the Confidential Information and Trade Secrets of the LCDSWAP, as such may exist from time to time, are valuable, confidential, special, and unique assets of the LCDSWAP, expensive to produce and maintain and essential for the profitable operation of its business. All documents relating to the business of LCDSWAP, including all Proprietary Information, coming into the Client's possession, whether in original form or in duplicated or copied form, are the exclusive property of LCDSWAP and shall not be used for any purpose other than the Services contemplated herein. Client understands and agrees that any remedy(ies) at law will be inadequate to protect Client’s interests with respect to protecting LCDSWAP’s Confidential Information and Trade Secrets; as such, Client understands and agrees that LCDSWAP has the right to seek immediate injunctive relief to protect its Proprietary Information and waives any and all requirement(s), regardless of jurisdiction, that LCDSWAP post a bond to obtain same.
  10. Indemnification.
      Client shall indemnify, defend and hold LCDSWAP, its officers, directors, employees, parent, subsidiaries and affiliates, harmless from and against any and all claims, demands, causes of action, suits, proceedings, damages, judgments, fines, penalties, losses, liabilities, costs and expenses, including legal fees and in-house counsel fees, related to, in connection with, arising from or alleged to arise from, directly or indirectly, any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, in providing Services hereunder, including, but not limited to, claims for personal injury, death or property damage, business or employee claims, or claims alleging that any Materials, Created Works or Services supplied by Client hereunder infringe the Intellectual Property Rights of any third party. This indemnification provision shall also specifically include any action at law or equity initiated by a third-party related to the ownership or authenticity of Client’s Property. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
  11. Insurance.
    1. Client maintains the sole discretion to obtain and carry full insurance coverage for all activities reasonably connected with this Agreement. LCDSWAP shall not be liable for any damage whatsoever or howsoever caused to Client’s Property, including without limitation, due to Client’s failure to obtain or carry insurance, or due to LCDSWAP’s actions, omissions, or negligence.
    2. Nothing herein will limit or prohibit LCDSWAP from obtaining insurance for its own account and solely for LCDSWAP’s benefit, and any proceeds payable thereunder will be payable as provided in the underlying policy.
    3. LCDSWAP may request Client to furnish a certificate of insurance providing details and confirmation of commercial insurance coverage at any time, at LCDSWAP’s sole discretion. Client’s obligations throughout this section and this Agreement remain, regardless whether LCDSWAP makes this request or not.
    4. Client shall utilize their commercial insurance coverage for any losses, damages or otherwise sustained exceeding $1,000.00, and in accordance with LCDSWAP’s terms and conditions, policies, and procedures, inter alia, amended from time to time. Any and all payments made by LCDSWAP regarding a loss or damage claim shall not exceed $1,000.00 USD within any given month, or the amount paid on the Client’s most recent invoice, whichever is lesser.
  12. Independence of LCDSWAP.
      LCDSWAP is an independent contractor and neither LCDSWAP, nor any of its employees, independent contractors, subcontractors, or agents will be deemed to be an employee, agent, joint venturer, principal, or partner of Client. Neither LCDSWAP nor any employees or agents of LCDSWAP are employees or agents of Client. Client and LCDSWAP both acknowledge and agree that Client and LCDSWAP do not have authority to act for or bind either party.
  13. Limitation of Liability.
      Notwithstanding anything to the contrary, LCDSWAP shall not be liable to Client for special, incidental, indirect, punitive, exemplary, or consequential damages, or for lost profits or lost revenue. Any claims against LCDSWAP shall hereby be limited to the maximum of the monetary amount paid to LCDSWAP in accordance with this Agreement for the Services provided, or the maximum of the actual damages pertaining to the alleged loss suffered, whichever is lesser. Further, LCDSWAP shall not be liable for omissions, errors, damages, etc., which are caused due to any sort of software malfunction, telecommunications disruptions, or similar circumstances outside of LCDSWAP’s control.
  14. Compliance with Laws.
    1. Client shall comply and shall ensure that all independent contractors, subcontractors, or agents comply with all applicable laws of countries and regions in which they operate including, but not limited to, environmental, labour, child labour abuse, forced labour, working environment, anti-trust, unfair competition, consumer protection, and privacy laws and regulations.Client shall further ensure that all of Client’s Property complies with all applicable laws of countries and regions in which they operate.
    2. LCDSWAP shall notify Client in the event it receives a subpoena or court order (“Legal Proceedings”) related to Client’s Property within thirty (30) business days. Client shall then have three (3) business days to notify LCDSWAP, in writing, of its intention(s) with respect to any Legal Proceedings related to Client’s Property. In the event that Client either does not provide written notice or does not take any action with respect to any Legal Proceedings affecting Client’s Property within ten (10) business days of Client being notified of said Legal Proceedings, Client shall be deemed to have abandoned its rights to the Client Property subject to those Legal Proceedings and LCDSWAP shall have full authority to comply with any such subpoena(s) or court order(s). Client understands that this provision shall apply to any subpoena(s) or court order(s), regardless of whether Client is specifically named, provided that said subpoena(s) or court order(s) identifies Client Property.
    3. Client shall indemnify, defend, and hold LCDSWAP harmless against any claim, damage or loss arising from, or in connection with, Client’s breach of this Section 14.
    4. Without incurring any liability to Client, LCDSWAP may terminate this Agreement immediately upon written notice to Client, if LCDSWAP determines that Client’s breach of any of this Section 14 significantly undermines the brand image or goodwill of LCDSWAP.
    5. Remedies available to Client as mentioned in this Section 14 shall be cumulative and in addition to any other or further remedies implied or available at law, in equity or under this Agreement.
  15. Location of Warehouse and Client’s Property.
    1. Client’s Property will be stored at a warehouse chosen at LCDSWAP’s sole discretion (“Warehouse”).
    2. Under no circumstances shall Client be permitted to attend at the Warehouse. The location of the Warehouse is subject to change at LCDSWAP’s sole discretion, without any notice to Client. As Client’s Property may be commingled with the products of other clients, Client may not access Client’s Property while it is in the Warehouse or during transport.
    3. It is the Client’s sole responsibility to ensure that Client’s Property is received by LCDSWAP.
    4. Client acknowledges and agrees that each Stock Keeping Unit (“SKU”) will require its own storage space in the Warehouse and Client shall be invoiced accordingly for such SKU’s and space used. LCDSWAP shall determine, in their sole discretion, the type of storage spot assigned to each SKU.
    5. Client further acknowledges and agrees that all pallets provided shall not exceed a height of 55”. Any pallets which exceed 55” in height will have an additional fee applied. Client is required to request a quote for such fees directly from LCDSWAP prior to providing a pallet that exceeds the limit described herein, otherwise Client is not permitted to dispute the fee charged.
    6. Client hereby acknowledges that LCDSWAP is not involved with the transport, shipping, or handling or any of Client’s Property and is not responsible for any damages which Client’s Property may incur during such transport.
    7. LCDSWAP may refuse to accept shipments in LCDSWAP’s sole discretion, with the reason to be provided to the Client.
    8. Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to LCDSWAP, and that LCDSWAP shall not be held liable for, without limitation, any delay, mistake, omission, loss, damage, costs, etc., associated with the provision of any inaccurate information, and that it is not LCDSWAP’s responsibility to ensure or determine the accuracy of any information provided by Client to LCDSWAP. Further, LCDSWAP shall not be liable to Client for any damages of any kind, including without limitation, loss of income incurred by Client for any reason whatsoever, including without limitation, for any delays, errors, or mistakes caused either directly or indirectly by LCDSWAP.
    9. Client shall ensure that sufficient amount, quality, etc., of Client’s Property, are provided to LCDSWAP, and that timely requests are made to LCDSWAP, to ensure that LCDSWAP is able to meet its obligations under this Agreement, and that LCDSWAP is not liable to Client for any of Client’s failures to do so.
    10. The transport and return of any of Client’s Property shall be at Client’s sole expense and shall be paid in advance of such transport.
    11. LCDSWAP is not responsible for the damage, storage conditions, or preservation of any of Client’s Property, including without limitation, any perishable goods, or damage caused or alleged to be caused during the provision of any of the Services by LCDSWAP, or during transit to or from LCDSWAP. In the event that any of the Client’s Property is damaged or stolen in any way whatsoever, including without limitation, as a result of fire, flood, wildlife, an Act of God, natural disaster etc., Client is responsible for pursuing recovery via insurance, and holds LCDSWAP harmless, while releasing LCDSWAP of any liability which may or may not exist.
    12. LCDSWAP is not the importer of record for Client’s Property stored at the Warehouse, LCDSWAP shall not be held liable for complying with Client’s instructions to LCDSWAP. Client acknowledges and agrees that LCDSWAP does not inspect Client’s Property and does not assume any responsibility whatsoever for the business decisions Client makes or implements through LCDSWAP’s provision of the Services.
    13. LCDSWAP may, in its sole discretion, require Client to remove unsuitable or unsellable Client’s Property from its Warehouse or distribution centers. LCDSWAP will notify Client if any of Client’s Property requires removal. Applicable fees and expenses for the removal of Client’s Property may be assessed at LCDSWAP’s sole discretion. If Client fails to remove Client’s Property within thirty (30) days of receiving such notice, LCDSWAP may dispose of such Client’s Property listed in the notice, and Client agrees that Client shall not be entitled to any damages or reimbursement of the value or loss of profit associated with the disposal of Client’s Property in accordance with this section.
  16. Acknowledgements.
    1. Client understands that the operation of the Services may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to LCDSWAP’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, Client acknowledges and agrees that Client will bear the sole responsibility for ensuring adequate security, protection and backup of Client’s content, data, information, or protected works (“Content”). LCDSWAP shall have no liability to Client for any unauthorized access or use of any of Client’s Content, including without limitation, for any corruption, deletion, destruction, or loss of any of Client’s Content, and Client shall indemnify and hold LCDSWAP harmless for any claims, damages or liability associated or related in any way whatsoever to Client’s Content.
    2. Client acknowledges and agrees that it is Client’s sole responsibility to protect themselves from fraud, and that Client shall be liable for all fees and expenses due to LCDSWAP for the Services provided as per this Agreement, regardless of whether the request for Services is determined to be fraudulent, or if the Client’s Property is not delivered correctly or at all.
    3. Client acknowledges and agrees that international shipments which are not delivered are often returned by the shipping carrier and, without limitation, assessed return shipping, brokerage, and returns processing carrier fees, inter alia. These fees assessed by the shipping carrier are billed through to merchants, often without notice. LCDSWAP endeavors to work with Client to circumvent or reduce international returns or abandoned inventory at Client’s request, however, this is done on a reasonable efforts’ basis and LCDSWAP reserves the right to charge Client to recuperate LCDSWAP’s original shipping costs, including without limitation, all costs, and expenses due for the return of Client’s Property. If a tariff is not available, LCDSWAP will, in its sole discretion, either put orders on hold until tariff information is available or override the order with no liability to LCDSWAP.
    4. Client acknowledges and agrees that if it directs LCDSWAP to discard any of Client’s Property, LCDSWAP may dispose of Client's Property in any manner it sees fit, including the destruction of Client’s Property or selling of Client’s Property through any platform or sales channel(s). Should LCDSWAP determine to sell any items Client specifically discards, Client waives any right to the proceeds from the sale of those discarded items.
  17. Miscellaneous.
    1. Notices. All notices and correspondence pertaining to this Agreement will be delivered by e-mail, and be addressed as follows:

      If to LCDSWAP:
      E-mail: [email protected]

      If to Client:
      E-mail: _________________

      Notice will be effective only upon receipt by the party twenty-four (24) hours after being served. Each party is responsible for informing the other of any changes in his/her or its address by sending proper notice.
    2. Entire Agreement/Amendment. This Agreement, together with its attached Exhibits constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior expressions, whether written or oral. In the event of an inconsistency between the terms of the main body of this Agreement and any Exhibit, the terms of the main body of this Agreement control. Client acknowledges that it is not entering into this Agreement on the basis of any representations which are not expressly stated herein. LCDSWAP may, in its sole discretion, amend this Agreement unilaterally at any point. Notice of such amendments shall be provided to Client three (3) days prior to coming into effect.
    3. Policies and Procedures. Client and LCDSWAP shall be governed by this Agreement and by the policies and practices established by LCDSWAP. In the event that the terms of this Agreement differ from or are in conflict with LCDSWAP’s policies or practices, this Agreement shall control. Electronic links to LCDSWAP’s policies and procedures are included in Exhibit ‘B’ to this Agreement. All policies, procedures, and documentation contained within Exhibit ‘B’ to this Agreement and are subject to change at any time at LCDSWAP’s sole discretion without any notice to Client.
    4. Waiver. Upon a party's breach or default hereunder, the other party's failure, whether single or repeated, to exercise a right hereunder will not be deemed to be a waiver of that right as to any future breach or default.
    5. Severability. If any of the provisions of this Agreement are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court's ruling. All remaining portions of the Agreement will remain in full force and effect.
    6. Governing Law/Forum. The validity, interpretation and construction of this Agreement, and all other matters related to this Agreement, will be governed and interpreted by the laws of the State of California. Any litigation pertaining to the interpretation or enforcement of this Agreement will be filed in and heard by the court with jurisdiction to hear such disputes in the County of Los Angeles, State of California, and Client hereby submits to the jurisdiction of such courts.
    7. Force Majeure. Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to acts of God, public enemy, war, strikes or labour disputes, or any other cause beyond the party's reasonable control (each a 'Force Majeure'), it being understood that lack of financial resources shall not to be deemed a cause beyond a party's control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out this Agreement as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of this Agreement.
    8. Interpretation. Each party acknowledges it has participated in the negotiation and preparation of this Agreement and has reviewed this Agreement and had the opportunity to consult with its counsel and accountants with respect to its terms. Therefore, each Party agrees that the rule of construction to the effect that any ambiguities in a document shall be interpreted against the drafting party, will not be utilized in the interpretation, construction, or enforcement of this Agreement, and no consideration shall be given to the issue of which party hereto actually prepared, drafted or requested any term or condition of this Agreement or other instrument subject hereto.
    9. Assignment. This Agreement, and the rights, interests, benefits and obligations hereunder may be assigned, transferred, pledged or hypothecated by LCDSWAP to any successor in interest to LCDSWAP, whether by sale, transfer, merger, assignment or encumbrance or in any other manner as Company may direct, in LCDSWAP 's sole discretion. Therefore, Client agrees and acknowledges that, should LCDSWAP transfer or assign this Agreement to a successor, acquirer, affiliated party that may acquire LCDSWAP or some or all of its assets, or any subsequent party in interest, this Agreement shall remain in full force and effect.
    10. Legal Fees. Should either party institute or participate in a legal or equitable proceeding against the other to enforce or interpret this Agreement, the non-prevailing party shall pay the prevailing party's costs, expert and professional fees, legal fees, including in-house counsel expenses, and all other costs incurred by the prevailing party in preparation for the proceeding.
    11. Time. Time is of the essence in the performance of this Agreement.
    12. Paragraph Headings and Interpretation. The paragraph headings contained herein are for reference only and will not be considered substantive parts of this Agreement. The use of the singular or plural will include the other form.
    13. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM WITH RESPECT TO ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 17.13 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 17.13 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
    14. Third Party Beneficiaries. No provision of this Agreement will insure to the benefit of any third parties so as to constitute any such person a third-party beneficiary of this Agreement.
    15. Counterparts. This Agreement may be executed in two or more counterparts, and manually executed counterparts may be delivered by e-mail or other functionally equivalent electronic means of transmission, each of which (whether originally executed or such a faxed or scanned electronic document) shall be deemed an original, and all of which together shall constitute one and the same instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the Parties.
    16. Survival. Any terms of this Agreement which by their nature extend beyond its termination, cancellation or expiration remain in effect until fulfilled and apply to respective successors and permitted assignees.
  1. Obligations of LCDSWAP.
      LCDSWAP shall provide the services (the “Services”) described below. All Exhibits attached to or issued under this Agreement are hereby incorporated into and made a part of this Agreement.
      Services: Services shall include, without limitation, the provision of fulfillment services, and other related incidental services as determined by LCDSWAP in their sole discretion, and subject to change without prior notice to Client.
  2. Payment, Taxes and Duties.
    1. Exhibit A sets forth the compensation in USD due to LCDSWAP for completion of the Services described herein. Exhibit A also designates LCDSWAP and Client’s authorized representative for purposes of this Agreement. Client shall provide payment via LCDSWAP’s preferred choice of payment, which may change at LCDSWAP’s sole discretion without any notice to Client.
    2. LCDSWAP shall be responsible for invoicing Client for any applicable federal, state, and/or provincial taxes that are imposed by law on LCDSWAP in connection with: (1) the provision of the Services; and (2) the sale of any goods related to the provision of any service. Client shall be responsible for such taxes, customs or duties whether existing as of the Effective Date of the Agreement or increasing or becoming applicable during the term of the Agreement.
    3. Arrangements, costs and regulatory obligations associated with the cross-border movement of Client’s goods or property, if any, whether or not title has transferred to LCDSWAP, or its subsidiaries, will be the sole responsibility of Client, including without limitation, export packing, licensing, forwarding, import brokerage, duty, broker and/or forwarder fees, indirect taxes, filing of export and/or import declarations or entries in Client’s name, and LCDSWAP’s costs and related expenses, as well as other responsibilities identified in the Agreement.
    4. Notwithstanding anything to the contrary in this Agreement or the associated Exhibits, Client agrees to provide a pre-authorized credit card for LCDSWAP to hold on file (the “Credit Card”). Client hereby acknowledges and agrees that LCDSWAP may charge the Client’s Credit Card at LCDSWAP’s sole discretion, any time that the Client has an invoice or payment due. Client understands and agrees that LCDSWAP will not remove the Credit Card kept on file unless and until Client replaces the initial Credit Card with another valid Credit Card.
    5. Client agrees to the following conditional payment and invoicing provisions:
      1. In the event Client’s Services exceed $100,000 in any four-week period, LCDSWAP shall require Client deposit with LCDSWAP an amount equal to the Client’s largest monthly billing cycle (the “Deposit Amount”), to be held by LCDSWAP as collateral against any shortfall(s) in future billing. Client understands that the Deposit Amount shall be adjusted upwards to match the largest four-week period, should Client’s monthly billing cycles increase over time.
      2. In the event Client’s Services exceed $50,000 per four-week period, LCDSWAP shall bill Client weekly.
      3. Any pre-orders requested by Client shall require pre-payment, prior to shipping, of all costs borne by LCDSWAP related to the shipping of those pre-ordered items.
    6. Client further acknowledges and agrees that LCDSWAP may request payments be made in advance of providing services at any time in LCDSWAP’s sole discretion, which shall be due immediately.
  3. Invoicing.
    1. LCDSWAP shall invoice Client for all Services provided and for any expenses incurred for the purposes of providing the Services. Invoices will be presented to Client in accordance with the schedule set forth in Exhibit A and shall be due and payable seven (7) days after Client’s receipt of the invoice.
    2. Client must ensure that all outstanding invoices are paid prior to requesting further Services from LCDSWAP. LCDSWAP may choose, in LCDSWAP’s sole discretion, to refrain from providing further Services to Client until all outstanding invoices and amounts due are paid in full, without any liability to Client.
    3. LCDSWAP may submit invoices to Client for payment at any point in time, at LCDSWAP’s sole discretion. Further to this section, LCDSWAP may amend the billing cycle at LCDSWAP’s sole discretion without prior notice to Client. Client shall be notified within seven (7) business days of any changes to the billing cycle.
  4. Reimbursement of Expenses.
    1. Client shall reimburse LCDSWAP for any and all expenses stated in each invoice.
    2. Any expenses which require amendments or adjustments shall be re-billed to Client on the next applicable invoice, including without limitation, any adjustments from carriers for postage charges.
  5. Representations, Warranties and Covenants.
    1. Client represents, warrants and covenants that no part of the materials or products provided as part of the Services will violate or infringe upon the intellectual property rights or other statutory rights of any third party, including, without limitation, any rights relating to copyright, patent, trademark, trade secret, defamation, privacy or publicity (collectively “Intellectual Property Rights”).
    2. Client further represents and warrants that Client has reviewed the Service Level Agreements, this Agreement, and all associated Terms and Conditions available on LCDSWAP’s website (“https://shiphype.com/”).
    3. Client further represents, warrants and covenants that Client owns all materials or products provided as part of the Services, and that Client has obtained all permissions, releases, rights or licenses required to engage in this Agreement and for LCDSWAP to provide the Services without obtaining any further releases or consents.
    4. Client further represents and warrants that Client is the sole legal owner and has lawful possession or control of Client’s Property (defined below), and that Client has the sole legal right to store and direct the release and delivery of Client’s Property. Client further represents and warrants that Client’s Property does not contain any potential health, safety, or environmental hazards associated with the shipment, storage, or fulfillment of the Client’s Property and Services, and that Client’s Property complies with all applicable laws, does not contain any hazardous and dangerous materials, and does not violate LCDSWAP’s policies, which are subject to change without notice. Client shall strictly meet or exceed any compliance obligations contained herein and LCDSWAP may, in its sole discretion, reject Client’s Property which LCDSWAP reasonably determines may violate this section. Client acknowledges and agrees that Client may incur additional fees from LCDSWAP as a result of LCDSWAP refusing Client’s Property, which may result in a significant delay or non-shipment of Client’s Property, and Client agrees that LCDSWAP shall not be held liable for any associated loss or damage which may result.
    5. Client further represents, warrants, and acknowledges that LCDSWAP is not the merchant of record for Client’s Property (defined below).
    6. Client represents that he/she/it is not a competitor of LCDSWAP or, if it is a competitor of LCDSWAP, he/she/it has disclosed same to LCDSWAP.
    7. Each party represents, warrants and covenants that:
      1. It has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and
      2. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on its part.
  6. Term and Termination.
    1. This Agreement will commence on the Effective Date and continue in full force and effect for thirty (30) calendar days, unless extended in accordance with Section 6.2 or earlier terminated as set forth herein.
    2. This Agreement shall automatically renew for an additional term of thirty (30) days, each following the expiration of the original Agreement term. Client shall notify LCDSWAP of its election to terminate the Agreement term not less than one (1) day prior to the expiration of the original Agreement term or renewal term, as applicable.
    3. Client and LCDSWAP shall each have the right to terminate this Agreement in whole or in part, without cause, upon one (1) day prior written notice to the opposite party.
    4. The occurrence of any of the following shall constitute an “Event of Default” under this Agreement:
      1. Client defaults in any of its obligations under Section 7 concerning Confidential Information; or
      2. Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or
      3. Client becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or
      4. Any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Client and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
      5. Any representation or warranty made by Client in this Agreement, or any other document executed in connection herewith proves to have been incorrect in any material respect when made.
    5. Notwithstanding anything stated above, an occurrence of an Event of Default described in Section 6.4.2, or Section 6.4.3, or Section 6.4.4 shall effect an immediate termination of this Agreement without any notice requirement.
    6. If Client fails to make payment for any reason whatsoever, LCDSWAP may, in their sole discretion, consolidate the inventory provided by Client and prepare it to be sold as-is. The time used to consolidate such inventory will also be invoiced to the Client.
    7. Client acknowledges and agrees that Client is not permitted to dispute any transactions made with their credit card provider, including without limitation, issuing a charge back request for such transactions.
    8. Upon the occurrence of any other Event of Default, LCDSWAP may terminate this Agreement by written notice to Client stating the effective date of termination (which may be immediate) and, if the Agreement is not terminated in whole, the extent of termination.
    9. Upon the occurrence of an Event of Default, LCDSWAP may exercise any and all rights and pursue any and all remedies LCDSWAP may have by contract, at law or in equity in any jurisdiction where enforcement of this Agreement is sought.
    10. Upon termination of this Agreement, LCDSWAP shall discontinue Services on the effective date of termination. Upon termination, LCDSWAP shall be paid any and all amounts due for Services completed prior to the date of termination, including the costs and work associated with terminating the Agreement, including without limitation, the return of Client’s products or merchandise. Payment of such amount shall be made in accordance with the standard invoicing and payment procedures set forth in this Agreement. In addition, Client shall reimburse those expenses of LCDSWAP LLC. which were incurred prior to the effective date of termination or as a result of such termination.
    11. Upon termination of this Agreement, if Client has any outstanding invoices with LCDSWAP, Client shall ensure that such invoices are paid in full within seven (7) calendar days of termination. Failing which, LCDSWAP may, in LCDSWAP’s sole discretion, sell or dispose of any products, equipment, merchandise, etc. (“Client’s Property”), which are still in LCDSWAP’s possession, in order to recover LCDSWAP’s loss of revenue, which may be done without any prior notice to Client. LCDSWAP may pursue Client for any remainder which is owed and does not waive any rights by doing so.
    12. Upon termination of this Agreement, Client shall arrange to recover all of Client’s Property within seven (7) calendar days of termination, at Client’s sole expense. Failing which, LCDSWAP may, in LCDSWAP’s sole discretion, sell or dispose of Client’s Property, which may be done without any prior notice to Client. Client agrees to hold LCDSWAP harmless for any disposal of Client’s Property and acknowledges and agrees that it is Client’s duty to ensure that all invoices are paid, and Client’s Property is recovered in a timely manner.
    13. Notwithstanding any of the foregoing and for the sake of simplicity, LCDSWAP has the full discretion and right in LCDSWAP’s sole discretion to refuse to release Client’s Property, and to dispose of such Client’s Property in the manner that LCDSWAP sees fit in LCDSWAP’s sole discretion, if Client has any outstanding invoices or if LCDSWAP reasonably anticipates a breach of this Agreement.
    14. Further, upon termination of this Agreement, if full payment of all outstanding invoices has been made, Client shall ensure that Client’s Property is recovered within seven (7) calendar days of termination of this Agreement, failing which, LCDSWAP may dispose of Client’s Property in the manner that LCDSWAP sees fit in LCDSWAP’s sole discretion.
    15. If Client fails to make payments for a period greater than thirty (30) days, LCDSWAP may, in LCDSWAP’s sole discretion, terminate the Agreement, suspend all Services, and reclassify Client’s account as abandoned (“Abandoned Account”). Further, any Client account which remains unpaid for more than sixty (60) days shall automatically be deemed to be an Abandoned Account. If Client’s account becomes an Abandoned Account, Client shall forfeit all rights to ownership of Client’s Property and any balances, deposits, etc., held by LCDSWAP for Client, and Client shall solely assume all liability thereafter for Client’s Property. Client shall have no rights to the liquidation process or proceeds received by LCDSWAP in accordance with this section, and Client shall remain liable for any amounts due above those recovered by the sale of Client’s Property by LCDSWAP.
    16. Notwithstanding any of the foregoing, Client agrees to hold LCDSWAP harmless for any disposal of Client’s Property in accordance with any of the above sections.
  7. Confidentiality.
    1. Client agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing and special pricing (“Confidential Information”), strictly confidential and shall not disclose any part of this Agreement to any party, except for the purposes of seeking legal advice.
    2. Client acknowledges that the Confidential Information is important, material and confidential to LCDSWAP. Therefore, Client agrees that the remedy at law for any breach of this Agreement would be inadequate and that, in addition to any other remedies available, LCDSWAP shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or the need to post a bond. Such injunctive relief will not affect LCDSWAP’s right to seek monetary damages or any other remedies which may be available. The provisions of this Section 7 will survive the expiration or earlier termination of this Agreement.
    3. Client hereby grants LCDSWAP the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Client’s information collected or stored by or on behalf of LCDSWAP in connection with the Services (“Client’s Data”), as is deemed necessary in LCDSWAP’s sole discretion, for the purposes of providing the Services, (ii) to copy, modify, and use Client’s Data in connection with internal operations and functions, including without limitation, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing purposes.
    4. Client hereby further grants LCDSWAP the non-exclusive right and license to utilize Client’s proprietary property, including without limitation, Client’s logo’s, trademarks, reviews, pictures, etc., on LCDSWAP’s website and other promotional and non-promotional materials, for any reason whatsoever.
  8. Records, Right to Inspect, Electronic Discovery.
    1. During the term of this Agreement and for two (2) years thereafter, Client shall retain all data, books and records (in whatever form they may be kept, whether written, electronic or other) relating or pertaining to this Agreement (collectively “Records”). The Records shall be maintained in accordance with recognized accounting practices and in such a manner that they may be readily audited. The Records shall be available for direct inspection and copying by LCDSWAP, or its designated representatives, during normal business hours upon LCDSWAP’s request while this Agreement remains in force and for two (2) years after its expiration or termination. LCDSWAP or its designated representatives may use general audit software and other reporting tools against data files or databases. Client shall cooperate with LCDSWAP, or its designated representatives, in the conduct of such inspection. In the event LCDSWAP requires information in electronic format from Client in connection with a discovery process, lawful search warrant, court order, subpoena, or other valid legal, regulatory, or administrative process, Client agrees to take reasonable and immediate steps to meet LCDSWAP’s requirements at Client’s expense.
    2. LCDSWAP specifically retains the right to inspect any of Client’s Property held in LCDSWAP’s possession should LCDSWAP have cause to believe any items identified as Client’s Property are counterfeit; any inspection(s) of Client’s Property performed pursuant to this Agreement shall be performed by a third-party expert selected by LCDSWAP, in its sole discretion. The cost(s) of such third-party expert shall be borne entirely by the Client.
      1. In the event the expert retained by LCDSWAP determines that any item(s) identified as Client’s Property, after inspecting same, are counterfeit, LCDSWAP reserves the sole right to dispose of those counterfeit items in any manner LCDSWAP sees fit.
      2. In the event that the expert retained by LCDSWAP finds that one or more, but less than all, of Client’s Property are counterfeit, LCDSWAP reserves the right to assert control over the entirety of Client’s Property and, notwithstanding any provision to the contrary herein, immediately terminate any agreement(s) between LCDSWAP and Client.
  9. Work Product and Ownership Rights.
    1. Client hereby grants to LCDSWAP a limited, revocable, non-exclusive license to use the trademarks, logos, or artwork owned or licensed to the Client hereto (collectively referred to as the 'Licensed Marks'), for the purpose of displaying such Licensed Marks on packaging, invoices, customer service correspondence, LCDSWAP’s social media accounts, websites, and for any marketing or promotional purposes of LCDSWAP’s services, at LCDSWAP’s sole discretion. Other than as contemplated by this Agreement, LCDSWAP shall not make any other use of the Licensed Marks or any related marks or intellectual property of Client. Client hereby irrevocably waives the right to any written, audio, and/or video testimonials and permanently assigns any interests it may have therein to LCDSWAP.
    2. Client, in connection with the Services rendered pursuant to this Agreement, may become acquainted with Confidential Information and Trade Secrets of LCDSWAP. As used in this Agreement, Confidential Information and Trade Secrets (“Proprietary Information”) of LCDSWAP means any lists of the LCDSWAP’s clients and other information relating thereto, client records and histories, financial data, and plans, practices, price lists, supplier lists, marketing plans, promotional material and marketing strategies, financial information, contracts, or agreements with any person or entity, and all other compilations of information which relate to the business of LCDSWAP and/or which have not been disclosed by LCDSWAP to the public. The Client acknowledges that the Confidential Information and Trade Secrets of the LCDSWAP, as such may exist from time to time, are valuable, confidential, special, and unique assets of the LCDSWAP, expensive to produce and maintain and essential for the profitable operation of its business. All documents relating to the business of LCDSWAP, including all Proprietary Information, coming into the Client's possession, whether in original form or in duplicated or copied form, are the exclusive property of LCDSWAP and shall not be used for any purpose other than the Services contemplated herein. Client understands and agrees that any remedy(ies) at law will be inadequate to protect Client’s interests with respect to protecting LCDSWAP’s Confidential Information and Trade Secrets; as such, Client understands and agrees that LCDSWAP has the right to seek immediate injunctive relief to protect its Proprietary Information and waives any and all requirement(s), regardless of jurisdiction, that LCDSWAP post a bond to obtain same.
  10. Indemnification.
      Client shall indemnify, defend and hold LCDSWAP, its officers, directors, employees, parent, subsidiaries and affiliates, harmless from and against any and all claims, demands, causes of action, suits, proceedings, damages, judgments, fines, penalties, losses, liabilities, costs and expenses, including legal fees and in-house counsel fees, related to, in connection with, arising from or alleged to arise from, directly or indirectly, any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, in providing Services hereunder, including, but not limited to, claims for personal injury, death or property damage, business or employee claims, or claims alleging that any Materials, Created Works or Services supplied by Client hereunder infringe the Intellectual Property Rights of any third party. This indemnification provision shall also specifically include any action at law or equity initiated by a third-party related to the ownership or authenticity of Client’s Property. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
  11. Insurance.
    1. Client maintains the sole discretion to obtain and carry full insurance coverage for all activities reasonably connected with this Agreement. LCDSWAP shall not be liable for any damage whatsoever or howsoever caused to Client’s Property, including without limitation, due to Client’s failure to obtain or carry insurance, or due to LCDSWAP’s actions, omissions, or negligence.
    2. Nothing herein will limit or prohibit LCDSWAP from obtaining insurance for its own account and solely for LCDSWAP’s benefit, and any proceeds payable thereunder will be payable as provided in the underlying policy.
    3. LCDSWAP may request Client to furnish a certificate of insurance providing details and confirmation of commercial insurance coverage at any time, at LCDSWAP’s sole discretion. Client’s obligations throughout this section and this Agreement remain, regardless whether LCDSWAP makes this request or not.
    4. Client shall utilize their commercial insurance coverage for any losses, damages or otherwise sustained exceeding $1,000.00, and in accordance with LCDSWAP’s terms and conditions, policies, and procedures, inter alia, amended from time to time. Any and all payments made by LCDSWAP regarding a loss or damage claim shall not exceed $1,000.00 USD within any given month, or the amount paid on the Client’s most recent invoice, whichever is lesser.
  12. Independence of LCDSWAP.
      LCDSWAP is an independent contractor and neither LCDSWAP, nor any of its employees, independent contractors, subcontractors, or agents will be deemed to be an employee, agent, joint venturer, principal, or partner of Client. Neither LCDSWAP nor any employees or agents of LCDSWAP are employees or agents of Client. Client and LCDSWAP both acknowledge and agree that Client and LCDSWAP do not have authority to act for or bind either party.
  13. Limitation of Liability.
      Notwithstanding anything to the contrary, LCDSWAP shall not be liable to Client for special, incidental, indirect, punitive, exemplary, or consequential damages, or for lost profits or lost revenue. Any claims against LCDSWAP shall hereby be limited to the maximum of the monetary amount paid to LCDSWAP in accordance with this Agreement for the Services provided, or the maximum of the actual damages pertaining to the alleged loss suffered, whichever is lesser. Further, LCDSWAP shall not be liable for omissions, errors, damages, etc., which are caused due to any sort of software malfunction, telecommunications disruptions, or similar circumstances outside of LCDSWAP’s control.
  14. Compliance with Laws.
    1. Client shall comply and shall ensure that all independent contractors, subcontractors, or agents comply with all applicable laws of countries and regions in which they operate including, but not limited to, environmental, labour, child labour abuse, forced labour, working environment, anti-trust, unfair competition, consumer protection, and privacy laws and regulations.Client shall further ensure that all of Client’s Property complies with all applicable laws of countries and regions in which they operate.
    2. LCDSWAP shall notify Client in the event it receives a subpoena or court order (“Legal Proceedings”) related to Client’s Property within thirty (30) business days. Client shall then have three (3) business days to notify LCDSWAP, in writing, of its intention(s) with respect to any Legal Proceedings related to Client’s Property. In the event that Client either does not provide written notice or does not take any action with respect to any Legal Proceedings affecting Client’s Property within ten (10) business days of Client being notified of said Legal Proceedings, Client shall be deemed to have abandoned its rights to the Client Property subject to those Legal Proceedings and LCDSWAP shall have full authority to comply with any such subpoena(s) or court order(s). Client understands that this provision shall apply to any subpoena(s) or court order(s), regardless of whether Client is specifically named, provided that said subpoena(s) or court order(s) identifies Client Property.
    3. Client shall indemnify, defend, and hold LCDSWAP harmless against any claim, damage or loss arising from, or in connection with, Client’s breach of this Section 14.
    4. Without incurring any liability to Client, LCDSWAP may terminate this Agreement immediately upon written notice to Client, if LCDSWAP determines that Client’s breach of any of this Section 14 significantly undermines the brand image or goodwill of LCDSWAP.
    5. Remedies available to Client as mentioned in this Section 14 shall be cumulative and in addition to any other or further remedies implied or available at law, in equity or under this Agreement.
  15. Location of Warehouse and Client’s Property.
    1. Client’s Property will be stored at a warehouse chosen at LCDSWAP’s sole discretion (“Warehouse”).
    2. Under no circumstances shall Client be permitted to attend at the Warehouse. The location of the Warehouse is subject to change at LCDSWAP’s sole discretion, without any notice to Client. As Client’s Property may be commingled with the products of other clients, Client may not access Client’s Property while it is in the Warehouse or during transport.
    3. It is the Client’s sole responsibility to ensure that Client’s Property is received by LCDSWAP.
    4. Client acknowledges and agrees that each Stock Keeping Unit (“SKU”) will require its own storage space in the Warehouse and Client shall be invoiced accordingly for such SKU’s and space used. LCDSWAP shall determine, in their sole discretion, the type of storage spot assigned to each SKU.
    5. Client further acknowledges and agrees that all pallets provided shall not exceed a height of 55”. Any pallets which exceed 55” in height will have an additional fee applied. Client is required to request a quote for such fees directly from LCDSWAP prior to providing a pallet that exceeds the limit described herein, otherwise Client is not permitted to dispute the fee charged.
    6. Client hereby acknowledges that LCDSWAP is not involved with the transport, shipping, or handling or any of Client’s Property and is not responsible for any damages which Client’s Property may incur during such transport.
    7. LCDSWAP may refuse to accept shipments in LCDSWAP’s sole discretion, with the reason to be provided to the Client.
    8. Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to LCDSWAP, and that LCDSWAP shall not be held liable for, without limitation, any delay, mistake, omission, loss, damage, costs, etc., associated with the provision of any inaccurate information, and that it is not LCDSWAP’s responsibility to ensure or determine the accuracy of any information provided by Client to LCDSWAP. Further, LCDSWAP shall not be liable to Client for any damages of any kind, including without limitation, loss of income incurred by Client for any reason whatsoever, including without limitation, for any delays, errors, or mistakes caused either directly or indirectly by LCDSWAP.
    9. Client shall ensure that sufficient amount, quality, etc., of Client’s Property, are provided to LCDSWAP, and that timely requests are made to LCDSWAP, to ensure that LCDSWAP is able to meet its obligations under this Agreement, and that LCDSWAP is not liable to Client for any of Client’s failures to do so.
    10. The transport and return of any of Client’s Property shall be at Client’s sole expense and shall be paid in advance of such transport.
    11. LCDSWAP is not responsible for the damage, storage conditions, or preservation of any of Client’s Property, including without limitation, any perishable goods, or damage caused or alleged to be caused during the provision of any of the Services by LCDSWAP, or during transit to or from LCDSWAP. In the event that any of the Client’s Property is damaged or stolen in any way whatsoever, including without limitation, as a result of fire, flood, wildlife, an Act of God, natural disaster etc., Client is responsible for pursuing recovery via insurance, and holds LCDSWAP harmless, while releasing LCDSWAP of any liability which may or may not exist.
    12. LCDSWAP is not the importer of record for Client’s Property stored at the Warehouse, LCDSWAP shall not be held liable for complying with Client’s instructions to LCDSWAP. Client acknowledges and agrees that LCDSWAP does not inspect Client’s Property and does not assume any responsibility whatsoever for the business decisions Client makes or implements through LCDSWAP’s provision of the Services.
    13. LCDSWAP may, in its sole discretion, require Client to remove unsuitable or unsellable Client’s Property from its Warehouse or distribution centers. LCDSWAP will notify Client if any of Client’s Property requires removal. Applicable fees and expenses for the removal of Client’s Property may be assessed at LCDSWAP’s sole discretion. If Client fails to remove Client’s Property within thirty (30) days of receiving such notice, LCDSWAP may dispose of such Client’s Property listed in the notice, and Client agrees that Client shall not be entitled to any damages or reimbursement of the value or loss of profit associated with the disposal of Client’s Property in accordance with this section.
  16. Acknowledgements.
    1. Client understands that the operation of the Services may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to LCDSWAP’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, Client acknowledges and agrees that Client will bear the sole responsibility for ensuring adequate security, protection and backup of Client’s content, data, information, or protected works (“Content”). LCDSWAP shall have no liability to Client for any unauthorized access or use of any of Client’s Content, including without limitation, for any corruption, deletion, destruction, or loss of any of Client’s Content, and Client shall indemnify and hold LCDSWAP harmless for any claims, damages or liability associated or related in any way whatsoever to Client’s Content.
    2. Client acknowledges and agrees that it is Client’s sole responsibility to protect themselves from fraud, and that Client shall be liable for all fees and expenses due to LCDSWAP for the Services provided as per this Agreement, regardless of whether the request for Services is determined to be fraudulent, or if the Client’s Property is not delivered correctly or at all.
    3. Client acknowledges and agrees that international shipments which are not delivered are often returned by the shipping carrier and, without limitation, assessed return shipping, brokerage, and returns processing carrier fees, inter alia. These fees assessed by the shipping carrier are billed through to merchants, often without notice. LCDSWAP endeavors to work with Client to circumvent or reduce international returns or abandoned inventory at Client’s request, however, this is done on a reasonable efforts’ basis and LCDSWAP reserves the right to charge Client to recuperate LCDSWAP’s original shipping costs, including without limitation, all costs, and expenses due for the return of Client’s Property. If a tariff is not available, LCDSWAP will, in its sole discretion, either put orders on hold until tariff information is available or override the order with no liability to LCDSWAP.
    4. Client acknowledges and agrees that if it directs LCDSWAP to discard any of Client’s Property, LCDSWAP may dispose of Client's Property in any manner it sees fit, including the destruction of Client’s Property or selling of Client’s Property through any platform or sales channel(s). Should LCDSWAP determine to sell any items Client specifically discards, Client waives any right to the proceeds from the sale of those discarded items.
  17. Miscellaneous.
    1. Notices. All notices and correspondence pertaining to this Agreement will be delivered by e-mail, and be addressed as follows:

      If to LCDSWAP:
      E-mail: [email protected]

      If to Client:
      E-mail: _________________

      Notice will be effective only upon receipt by the party twenty-four (24) hours after being served. Each party is responsible for informing the other of any changes in his/her or its address by sending proper notice.
    2. Entire Agreement/Amendment. This Agreement, together with its attached Exhibits constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior expressions, whether written or oral. In the event of an inconsistency between the terms of the main body of this Agreement and any Exhibit, the terms of the main body of this Agreement control. Client acknowledges that it is not entering into this Agreement on the basis of any representations which are not expressly stated herein. LCDSWAP may, in its sole discretion, amend this Agreement unilaterally at any point. Notice of such amendments shall be provided to Client three (3) days prior to coming into effect.
    3. Policies and Procedures. Client and LCDSWAP shall be governed by this Agreement and by the policies and practices established by LCDSWAP. In the event that the terms of this Agreement differ from or are in conflict with LCDSWAP’s policies or practices, this Agreement shall control. Electronic links to LCDSWAP’s policies and procedures are included in Exhibit ‘B’ to this Agreement. All policies, procedures, and documentation contained within Exhibit ‘B’ to this Agreement and are subject to change at any time at LCDSWAP’s sole discretion without any notice to Client.
    4. Waiver. Upon a party's breach or default hereunder, the other party's failure, whether single or repeated, to exercise a right hereunder will not be deemed to be a waiver of that right as to any future breach or default.
    5. Severability. If any of the provisions of this Agreement are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court's ruling. All remaining portions of the Agreement will remain in full force and effect.
    6. Governing Law/Forum. The validity, interpretation and construction of this Agreement, and all other matters related to this Agreement, will be governed and interpreted by the laws of the State of New Jersey. Any litigation pertaining to the interpretation or enforcement of this Agreement will be filed in and heard by the court with jurisdiction to hear such disputes in the County of Bergen, State of New Jersey, and Client hereby submits to the jurisdiction of such courts.
    7. Force Majeure. Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to acts of God, public enemy, war, strikes or labour disputes, or any other cause beyond the party's reasonable control (each a 'Force Majeure'), it being understood that lack of financial resources shall not to be deemed a cause beyond a party's control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out this Agreement as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of this Agreement.
    8. Interpretation. Each party acknowledges it has participated in the negotiation and preparation of this Agreement and has reviewed this Agreement and had the opportunity to consult with its counsel and accountants with respect to its terms. Therefore, each Party agrees that the rule of construction to the effect that any ambiguities in a document shall be interpreted against the drafting party, will not be utilized in the interpretation, construction, or enforcement of this Agreement, and no consideration shall be given to the issue of which party hereto actually prepared, drafted or requested any term or condition of this Agreement or other instrument subject hereto.
    9. Assignment. This Agreement, and the rights, interests, benefits and obligations hereunder may be assigned, transferred, pledged or hypothecated by LCDSWAP to any successor in interest to LCDSWAP, whether by sale, transfer, merger, assignment or encumbrance or in any other manner as Company may direct, in LCDSWAP 's sole discretion. Therefore, Client agrees and acknowledges that, should LCDSWAP transfer or assign this Agreement to a successor, acquirer, affiliated party that may acquire LCDSWAP or some or all of its assets, or any subsequent party in interest, this Agreement shall remain in full force and effect.
    10. Legal Fees. Should either party institute or participate in a legal or equitable proceeding against the other to enforce or interpret this Agreement, the non-prevailing party shall pay the prevailing party's costs, expert and professional fees, legal fees, including in-house counsel expenses, and all other costs incurred by the prevailing party in preparation for the proceeding.
    11. Time. Time is of the essence in the performance of this Agreement.
    12. Paragraph Headings and Interpretation. The paragraph headings contained herein are for reference only and will not be considered substantive parts of this Agreement. The use of the singular or plural will include the other form.
    13. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM WITH RESPECT TO ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 17.13 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 17.13 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
    14. Third Party Beneficiaries. No provision of this Agreement will insure to the benefit of any third parties so as to constitute any such person a third-party beneficiary of this Agreement.
    15. Counterparts. This Agreement may be executed in two or more counterparts, and manually executed counterparts may be delivered by e-mail or other functionally equivalent electronic means of transmission, each of which (whether originally executed or such a faxed or scanned electronic document) shall be deemed an original, and all of which together shall constitute one and the same instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the Parties.
    16. Survival. Any terms of this Agreement which by their nature extend beyond its termination, cancellation or expiration remain in effect until fulfilled and apply to respective successors and permitted assignees.
  1. Obligations of LCDSWAP.
      LCDSWAP shall provide the services (the “Services”) described below. All Exhibits attached to or issued under this Agreement are hereby incorporated into and made a part of this Agreement.
      Services: Services shall include, without limitation, the provision of fulfillment services, and other related incidental services as determined by LCDSWAP in their sole discretion, and subject to change without prior notice to Client.
  2. Payment, Taxes and Duties.
    1. Exhibit A sets forth the compensation in USD due to LCDSWAP for completion of the Services described herein. Exhibit A also designates LCDSWAP and Client’s authorized representative for purposes of this Agreement. Client shall provide payment via LCDSWAP’s preferred choice of payment, which may change at LCDSWAP’s sole discretion without any notice to Client.
    2. LCDSWAP shall be responsible for invoicing Client for any applicable federal, state, and/or provincial taxes that are imposed by law on LCDSWAP in connection with: (1) the provision of the Services; and (2) the sale of any goods related to the provision of any service. Client shall be responsible for such taxes, customs or duties whether existing as of the Effective Date of the Agreement or increasing or becoming applicable during the term of the Agreement.
    3. Arrangements, costs and regulatory obligations associated with the cross-border movement of Client’s goods or property, if any, whether or not title has transferred to LCDSWAP, or its subsidiaries, will be the sole responsibility of Client, including without limitation, export packing, licensing, forwarding, import brokerage, duty, broker and/or forwarder fees, indirect taxes, filing of export and/or import declarations or entries in Client’s name, and LCDSWAP’s costs and related expenses, as well as other responsibilities identified in the Agreement.
    4. Notwithstanding anything to the contrary in this Agreement or the associated Exhibits, Client agrees to provide a pre-authorized credit card for LCDSWAP to hold on file (the “Credit Card”). Client hereby acknowledges and agrees that LCDSWAP may charge the Client’s Credit Card at LCDSWAP’s sole discretion, any time that the Client has an invoice or payment due. Client understands and agrees that LCDSWAP will not remove the Credit Card kept on file unless and until Client replaces the initial Credit Card with another valid Credit Card.
    5. Client agrees to the following conditional payment and invoicing provisions:
      1. In the event Client’s Services exceed $100,000 in any four-week period, LCDSWAP shall require Client deposit with LCDSWAP an amount equal to the Client’s largest monthly billing cycle (the “Deposit Amount”), to be held by LCDSWAP as collateral against any shortfall(s) in future billing. Client understands that the Deposit Amount shall be adjusted upwards to match the largest four-week period, should Client’s monthly billing cycles increase over time.
      2. In the event Client’s Services exceed $50,000 per four-week period, LCDSWAP shall bill Client weekly.
      3. Any pre-orders requested by Client shall require pre-payment, prior to shipping, of all costs borne by LCDSWAP related to the shipping of those pre-ordered items.
    6. Client further acknowledges and agrees that LCDSWAP may request payments be made in advance of providing services at any time in LCDSWAP’s sole discretion, which shall be due immediately.
  3. Invoicing.
    1. LCDSWAP shall invoice Client for all Services provided and for any expenses incurred for the purposes of providing the Services. Invoices will be presented to Client in accordance with the schedule set forth in Exhibit A and shall be due and payable seven (7) days after Client’s receipt of the invoice.
    2. Client must ensure that all outstanding invoices are paid prior to requesting further Services from LCDSWAP. LCDSWAP may choose, in LCDSWAP’s sole discretion, to refrain from providing further Services to Client until all outstanding invoices and amounts due are paid in full, without any liability to Client.
    3. LCDSWAP may submit invoices to Client for payment at any point in time, at LCDSWAP’s sole discretion. Further to this section, LCDSWAP may amend the billing cycle at LCDSWAP’s sole discretion without prior notice to Client. Client shall be notified within seven (7) business days of any changes to the billing cycle.
  4. Reimbursement of Expenses.
    1. Client shall reimburse LCDSWAP for any and all expenses stated in each invoice.
    2. Any expenses which require amendments or adjustments shall be re-billed to Client on the next applicable invoice, including without limitation, any adjustments from carriers for postage charges.
  5. Representations, Warranties and Covenants.
    1. Client represents, warrants and covenants that no part of the materials or products provided as part of the Services will violate or infringe upon the intellectual property rights or other statutory rights of any third party, including, without limitation, any rights relating to copyright, patent, trademark, trade secret, defamation, privacy or publicity (collectively “Intellectual Property Rights”).
    2. Client further represents and warrants that Client has reviewed the Service Level Agreements, this Agreement, and all associated Terms and Conditions available on LCDSWAP’s website (“https://shiphype.com/”).
    3. Client further represents, warrants and covenants that Client owns all materials or products provided as part of the Services, and that Client has obtained all permissions, releases, rights or licenses required to engage in this Agreement and for LCDSWAP to provide the Services without obtaining any further releases or consents.
    4. Client further represents and warrants that Client is the sole legal owner and has lawful possession or control of Client’s Property (defined below), and that Client has the sole legal right to store and direct the release and delivery of Client’s Property. Client further represents and warrants that Client’s Property does not contain any potential health, safety, or environmental hazards associated with the shipment, storage, or fulfillment of the Client’s Property and Services, and that Client’s Property complies with all applicable laws, does not contain any hazardous and dangerous materials, and does not violate LCDSWAP’s policies, which are subject to change without notice. Client shall strictly meet or exceed any compliance obligations contained herein and LCDSWAP may, in its sole discretion, reject Client’s Property which LCDSWAP reasonably determines may violate this section. Client acknowledges and agrees that Client may incur additional fees from LCDSWAP as a result of LCDSWAP refusing Client’s Property, which may result in a significant delay or non-shipment of Client’s Property, and Client agrees that LCDSWAP shall not be held liable for any associated loss or damage which may result.
    5. Client further represents, warrants, and acknowledges that LCDSWAP is not the merchant of record for Client’s Property (defined below).
    6. Client represents that he/she/it is not a competitor of LCDSWAP or, if it is a competitor of LCDSWAP, he/she/it has disclosed same to LCDSWAP.
    7. Each party represents, warrants and covenants that:
      1. It has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and
      2. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on its part.
  6. Term and Termination.
    1. This Agreement will commence on the Effective Date and continue in full force and effect for thirty (30) calendar days, unless extended in accordance with Section 6.2 or earlier terminated as set forth herein.
    2. This Agreement shall automatically renew for an additional term of thirty (30) days, each following the expiration of the original Agreement term. Client shall notify LCDSWAP of its election to terminate the Agreement term not less than one (1) day prior to the expiration of the original Agreement term or renewal term, as applicable.
    3. Client and LCDSWAP shall each have the right to terminate this Agreement in whole or in part, without cause, upon one (1) day prior written notice to the opposite party.
    4. The occurrence of any of the following shall constitute an “Event of Default” under this Agreement:
      1. Client defaults in any of its obligations under Section 7 concerning Confidential Information; or
      2. Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or
      3. Client becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or
      4. Any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Client and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
      5. Any representation or warranty made by Client in this Agreement, or any other document executed in connection herewith proves to have been incorrect in any material respect when made.
    5. Notwithstanding anything stated above, an occurrence of an Event of Default described in Section 6.4.2, or Section 6.4.3, or Section 6.4.4 shall effect an immediate termination of this Agreement without any notice requirement.
    6. If Client fails to make payment for any reason whatsoever, LCDSWAP may, in their sole discretion, consolidate the inventory provided by Client and prepare it to be sold as-is. The time used to consolidate such inventory will also be invoiced to the Client.
    7. Client acknowledges and agrees that Client is not permitted to dispute any transactions made with their credit card provider, including without limitation, issuing a charge back request for such transactions.
    8. Upon the occurrence of any other Event of Default, LCDSWAP may terminate this Agreement by written notice to Client stating the effective date of termination (which may be immediate) and, if the Agreement is not terminated in whole, the extent of termination.
    9. Upon the occurrence of an Event of Default, LCDSWAP may exercise any and all rights and pursue any and all remedies LCDSWAP may have by contract, at law or in equity in any jurisdiction where enforcement of this Agreement is sought.
    10. Upon termination of this Agreement, LCDSWAP shall discontinue Services on the effective date of termination. Upon termination, LCDSWAP shall be paid any and all amounts due for Services completed prior to the date of termination, including the costs and work associated with terminating the Agreement, including without limitation, the return of Client’s products or merchandise. Payment of such amount shall be made in accordance with the standard invoicing and payment procedures set forth in this Agreement. In addition, Client shall reimburse those expenses of LCDSWAP LLC. which were incurred prior to the effective date of termination or as a result of such termination.
    11. Upon termination of this Agreement, if Client has any outstanding invoices with LCDSWAP, Client shall ensure that such invoices are paid in full within seven (7) calendar days of termination. Failing which, LCDSWAP may, in LCDSWAP’s sole discretion, sell or dispose of any products, equipment, merchandise, etc. (“Client’s Property”), which are still in LCDSWAP’s possession, in order to recover LCDSWAP’s loss of revenue, which may be done without any prior notice to Client. LCDSWAP may pursue Client for any remainder which is owed and does not waive any rights by doing so.
    12. Upon termination of this Agreement, Client shall arrange to recover all of Client’s Property within seven (7) calendar days of termination, at Client’s sole expense. Failing which, LCDSWAP may, in LCDSWAP’s sole discretion, sell or dispose of Client’s Property, which may be done without any prior notice to Client. Client agrees to hold LCDSWAP harmless for any disposal of Client’s Property and acknowledges and agrees that it is Client’s duty to ensure that all invoices are paid, and Client’s Property is recovered in a timely manner.
    13. Notwithstanding any of the foregoing and for the sake of simplicity, LCDSWAP has the full discretion and right in LCDSWAP’s sole discretion to refuse to release Client’s Property, and to dispose of such Client’s Property in the manner that LCDSWAP sees fit in LCDSWAP’s sole discretion, if Client has any outstanding invoices or if LCDSWAP reasonably anticipates a breach of this Agreement.
    14. Further, upon termination of this Agreement, if full payment of all outstanding invoices has been made, Client shall ensure that Client’s Property is recovered within seven (7) calendar days of termination of this Agreement, failing which, LCDSWAP may dispose of Client’s Property in the manner that LCDSWAP sees fit in LCDSWAP’s sole discretion.
    15. If Client fails to make payments for a period greater than thirty (30) days, LCDSWAP may, in LCDSWAP’s sole discretion, terminate the Agreement, suspend all Services, and reclassify Client’s account as abandoned (“Abandoned Account”). Further, any Client account which remains unpaid for more than sixty (60) days shall automatically be deemed to be an Abandoned Account. If Client’s account becomes an Abandoned Account, Client shall forfeit all rights to ownership of Client’s Property and any balances, deposits, etc., held by LCDSWAP for Client, and Client shall solely assume all liability thereafter for Client’s Property. Client shall have no rights to the liquidation process or proceeds received by LCDSWAP in accordance with this section, and Client shall remain liable for any amounts due above those recovered by the sale of Client’s Property by LCDSWAP.
    16. Notwithstanding any of the foregoing, Client agrees to hold LCDSWAP harmless for any disposal of Client’s Property in accordance with any of the above sections.
  7. Confidentiality.
    1. Client agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing and special pricing (“Confidential Information”), strictly confidential and shall not disclose any part of this Agreement to any party, except for the purposes of seeking legal advice.
    2. Client acknowledges that the Confidential Information is important, material and confidential to LCDSWAP. Therefore, Client agrees that the remedy at law for any breach of this Agreement would be inadequate and that, in addition to any other remedies available, LCDSWAP shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or the need to post a bond. Such injunctive relief will not affect LCDSWAP’s right to seek monetary damages or any other remedies which may be available. The provisions of this Section 7 will survive the expiration or earlier termination of this Agreement.
    3. Client hereby grants LCDSWAP the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Client’s information collected or stored by or on behalf of LCDSWAP in connection with the Services (“Client’s Data”), as is deemed necessary in LCDSWAP’s sole discretion, for the purposes of providing the Services, (ii) to copy, modify, and use Client’s Data in connection with internal operations and functions, including without limitation, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing purposes.
    4. Client hereby further grants LCDSWAP the non-exclusive right and license to utilize Client’s proprietary property, including without limitation, Client’s logo’s, trademarks, reviews, pictures, etc., on LCDSWAP’s website and other promotional and non-promotional materials, for any reason whatsoever.
  8. Records, Right to Inspect, Electronic Discovery.
    1. During the term of this Agreement and for two (2) years thereafter, Client shall retain all data, books and records (in whatever form they may be kept, whether written, electronic or other) relating or pertaining to this Agreement (collectively “Records”). The Records shall be maintained in accordance with recognized accounting practices and in such a manner that they may be readily audited. The Records shall be available for direct inspection and copying by LCDSWAP, or its designated representatives, during normal business hours upon LCDSWAP’s request while this Agreement remains in force and for two (2) years after its expiration or termination. LCDSWAP or its designated representatives may use general audit software and other reporting tools against data files or databases. Client shall cooperate with LCDSWAP, or its designated representatives, in the conduct of such inspection. In the event LCDSWAP requires information in electronic format from Client in connection with a discovery process, lawful search warrant, court order, subpoena, or other valid legal, regulatory, or administrative process, Client agrees to take reasonable and immediate steps to meet LCDSWAP’s requirements at Client’s expense.
    2. LCDSWAP specifically retains the right to inspect any of Client’s Property held in LCDSWAP’s possession should LCDSWAP have cause to believe any items identified as Client’s Property are counterfeit; any inspection(s) of Client’s Property performed pursuant to this Agreement shall be performed by a third-party expert selected by LCDSWAP, in its sole discretion. The cost(s) of such third-party expert shall be borne entirely by the Client.
      1. In the event the expert retained by LCDSWAP determines that any item(s) identified as Client’s Property, after inspecting same, are counterfeit, LCDSWAP reserves the sole right to dispose of those counterfeit items in any manner LCDSWAP sees fit.
      2. In the event that the expert retained by LCDSWAP finds that one or more, but less than all, of Client’s Property are counterfeit, LCDSWAP reserves the right to assert control over the entirety of Client’s Property and, notwithstanding any provision to the contrary herein, immediately terminate any agreement(s) between LCDSWAP and Client.
  9. Work Product and Ownership Rights.
    1. Client hereby grants to LCDSWAP a limited, revocable, non-exclusive license to use the trademarks, logos, or artwork owned or licensed to the Client hereto (collectively referred to as the 'Licensed Marks'), for the purpose of displaying such Licensed Marks on packaging, invoices, customer service correspondence, LCDSWAP’s social media accounts, websites, and for any marketing or promotional purposes of LCDSWAP’s services, at LCDSWAP’s sole discretion. Other than as contemplated by this Agreement, LCDSWAP shall not make any other use of the Licensed Marks or any related marks or intellectual property of Client. Client hereby irrevocably waives the right to any written, audio, and/or video testimonials and permanently assigns any interests it may have therein to LCDSWAP.
    2. Client, in connection with the Services rendered pursuant to this Agreement, may become acquainted with Confidential Information and Trade Secrets of LCDSWAP. As used in this Agreement, Confidential Information and Trade Secrets (“Proprietary Information”) of LCDSWAP means any lists of the LCDSWAP’s clients and other information relating thereto, client records and histories, financial data, and plans, practices, price lists, supplier lists, marketing plans, promotional material and marketing strategies, financial information, contracts, or agreements with any person or entity, and all other compilations of information which relate to the business of LCDSWAP and/or which have not been disclosed by LCDSWAP to the public. The Client acknowledges that the Confidential Information and Trade Secrets of the LCDSWAP, as such may exist from time to time, are valuable, confidential, special, and unique assets of the LCDSWAP, expensive to produce and maintain and essential for the profitable operation of its business. All documents relating to the business of LCDSWAP, including all Proprietary Information, coming into the Client's possession, whether in original form or in duplicated or copied form, are the exclusive property of LCDSWAP and shall not be used for any purpose other than the Services contemplated herein. Client understands and agrees that any remedy(ies) at law will be inadequate to protect Client’s interests with respect to protecting LCDSWAP’s Confidential Information and Trade Secrets; as such, Client understands and agrees that LCDSWAP has the right to seek immediate injunctive relief to protect its Proprietary Information and waives any and all requirement(s), regardless of jurisdiction, that LCDSWAP post a bond to obtain same.
  10. Indemnification.
      Client shall indemnify, defend and hold LCDSWAP, its officers, directors, employees, parent, subsidiaries and affiliates, harmless from and against any and all claims, demands, causes of action, suits, proceedings, damages, judgments, fines, penalties, losses, liabilities, costs and expenses, including legal fees and in-house counsel fees, related to, in connection with, arising from or alleged to arise from, directly or indirectly, any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, in providing Services hereunder, including, but not limited to, claims for personal injury, death or property damage, business or employee claims, or claims alleging that any Materials, Created Works or Services supplied by Client hereunder infringe the Intellectual Property Rights of any third party. This indemnification provision shall also specifically include any action at law or equity initiated by a third-party related to the ownership or authenticity of Client’s Property. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
  11. Insurance.
    1. Client maintains the sole discretion to obtain and carry full insurance coverage for all activities reasonably connected with this Agreement. LCDSWAP shall not be liable for any damage whatsoever or howsoever caused to Client’s Property, including without limitation, due to Client’s failure to obtain or carry insurance, or due to LCDSWAP’s actions, omissions, or negligence.
    2. Nothing herein will limit or prohibit LCDSWAP from obtaining insurance for its own account and solely for LCDSWAP’s benefit, and any proceeds payable thereunder will be payable as provided in the underlying policy.
    3. LCDSWAP may request Client to furnish a certificate of insurance providing details and confirmation of commercial insurance coverage at any time, at LCDSWAP’s sole discretion. Client’s obligations throughout this section and this Agreement remain, regardless whether LCDSWAP makes this request or not.
    4. Client shall utilize their commercial insurance coverage for any losses, damages or otherwise sustained exceeding $1,000.00, and in accordance with LCDSWAP’s terms and conditions, policies, and procedures, inter alia, amended from time to time. Any and all payments made by LCDSWAP regarding a loss or damage claim shall not exceed $1,000.00 USD within any given month, or the amount paid on the Client’s most recent invoice, whichever is lesser.
  12. Independence of LCDSWAP.
      LCDSWAP is an independent contractor and neither LCDSWAP, nor any of its employees, independent contractors, subcontractors, or agents will be deemed to be an employee, agent, joint venturer, principal, or partner of Client. Neither LCDSWAP nor any employees or agents of LCDSWAP are employees or agents of Client. Client and LCDSWAP both acknowledge and agree that Client and LCDSWAP do not have authority to act for or bind either party.
  13. Limitation of Liability.
      Notwithstanding anything to the contrary, LCDSWAP shall not be liable to Client for special, incidental, indirect, punitive, exemplary, or consequential damages, or for lost profits or lost revenue. Any claims against LCDSWAP shall hereby be limited to the maximum of the monetary amount paid to LCDSWAP in accordance with this Agreement for the Services provided, or the maximum of the actual damages pertaining to the alleged loss suffered, whichever is lesser. Further, LCDSWAP shall not be liable for omissions, errors, damages, etc., which are caused due to any sort of software malfunction, telecommunications disruptions, or similar circumstances outside of LCDSWAP’s control.
  14. Compliance with Laws.
    1. Client shall comply and shall ensure that all independent contractors, subcontractors, or agents comply with all applicable laws of countries and regions in which they operate including, but not limited to, environmental, labour, child labour abuse, forced labour, working environment, anti-trust, unfair competition, consumer protection, and privacy laws and regulations.Client shall further ensure that all of Client’s Property complies with all applicable laws of countries and regions in which they operate.
    2. LCDSWAP shall notify Client in the event it receives a subpoena or court order (“Legal Proceedings”) related to Client’s Property within thirty (30) business days. Client shall then have three (3) business days to notify LCDSWAP, in writing, of its intention(s) with respect to any Legal Proceedings related to Client’s Property. In the event that Client either does not provide written notice or does not take any action with respect to any Legal Proceedings affecting Client’s Property within ten (10) business days of Client being notified of said Legal Proceedings, Client shall be deemed to have abandoned its rights to the Client Property subject to those Legal Proceedings and LCDSWAP shall have full authority to comply with any such subpoena(s) or court order(s). Client understands that this provision shall apply to any subpoena(s) or court order(s), regardless of whether Client is specifically named, provided that said subpoena(s) or court order(s) identifies Client Property.
    3. Client shall indemnify, defend, and hold LCDSWAP harmless against any claim, damage or loss arising from, or in connection with, Client’s breach of this Section 14.
    4. Without incurring any liability to Client, LCDSWAP may terminate this Agreement immediately upon written notice to Client, if LCDSWAP determines that Client’s breach of any of this Section 14 significantly undermines the brand image or goodwill of LCDSWAP.
    5. Remedies available to Client as mentioned in this Section 14 shall be cumulative and in addition to any other or further remedies implied or available at law, in equity or under this Agreement.
  15. Location of Warehouse and Client’s Property.
    1. Client’s Property will be stored at a warehouse chosen at LCDSWAP’s sole discretion (“Warehouse”).
    2. Under no circumstances shall Client be permitted to attend at the Warehouse. The location of the Warehouse is subject to change at LCDSWAP’s sole discretion, without any notice to Client. As Client’s Property may be commingled with the products of other clients, Client may not access Client’s Property while it is in the Warehouse or during transport.
    3. It is the Client’s sole responsibility to ensure that Client’s Property is received by LCDSWAP.
    4. Client acknowledges and agrees that each Stock Keeping Unit (“SKU”) will require its own storage space in the Warehouse and Client shall be invoiced accordingly for such SKU’s and space used. LCDSWAP shall determine, in their sole discretion, the type of storage spot assigned to each SKU.
    5. Client further acknowledges and agrees that all pallets provided shall not exceed a height of 55”. Any pallets which exceed 55” in height will have an additional fee applied. Client is required to request a quote for such fees directly from LCDSWAP prior to providing a pallet that exceeds the limit described herein, otherwise Client is not permitted to dispute the fee charged.
    6. Client hereby acknowledges that LCDSWAP is not involved with the transport, shipping, or handling or any of Client’s Property and is not responsible for any damages which Client’s Property may incur during such transport.
    7. LCDSWAP may refuse to accept shipments in LCDSWAP’s sole discretion, with the reason to be provided to the Client.
    8. Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to LCDSWAP, and that LCDSWAP shall not be held liable for, without limitation, any delay, mistake, omission, loss, damage, costs, etc., associated with the provision of any inaccurate information, and that it is not LCDSWAP’s responsibility to ensure or determine the accuracy of any information provided by Client to LCDSWAP. Further, LCDSWAP shall not be liable to Client for any damages of any kind, including without limitation, loss of income incurred by Client for any reason whatsoever, including without limitation, for any delays, errors, or mistakes caused either directly or indirectly by LCDSWAP.
    9. Client shall ensure that sufficient amount, quality, etc., of Client’s Property, are provided to LCDSWAP, and that timely requests are made to LCDSWAP, to ensure that LCDSWAP is able to meet its obligations under this Agreement, and that LCDSWAP is not liable to Client for any of Client’s failures to do so.
    10. The transport and return of any of Client’s Property shall be at Client’s sole expense and shall be paid in advance of such transport.
    11. LCDSWAP is not responsible for the damage, storage conditions, or preservation of any of Client’s Property, including without limitation, any perishable goods, or damage caused or alleged to be caused during the provision of any of the Services by LCDSWAP, or during transit to or from LCDSWAP. In the event that any of the Client’s Property is damaged or stolen in any way whatsoever, including without limitation, as a result of fire, flood, wildlife, an Act of God, natural disaster etc., Client is responsible for pursuing recovery via insurance, and holds LCDSWAP harmless, while releasing LCDSWAP of any liability which may or may not exist.
    12. LCDSWAP is not the importer of record for Client’s Property stored at the Warehouse, LCDSWAP shall not be held liable for complying with Client’s instructions to LCDSWAP. Client acknowledges and agrees that LCDSWAP does not inspect Client’s Property and does not assume any responsibility whatsoever for the business decisions Client makes or implements through LCDSWAP’s provision of the Services.
    13. LCDSWAP may, in its sole discretion, require Client to remove unsuitable or unsellable Client’s Property from its Warehouse or distribution centers. LCDSWAP will notify Client if any of Client’s Property requires removal. Applicable fees and expenses for the removal of Client’s Property may be assessed at LCDSWAP’s sole discretion. If Client fails to remove Client’s Property within thirty (30) days of receiving such notice, LCDSWAP may dispose of such Client’s Property listed in the notice, and Client agrees that Client shall not be entitled to any damages or reimbursement of the value or loss of profit associated with the disposal of Client’s Property in accordance with this section.
  16. Acknowledgements.
    1. Client understands that the operation of the Services may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to LCDSWAP’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, Client acknowledges and agrees that Client will bear the sole responsibility for ensuring adequate security, protection and backup of Client’s content, data, information, or protected works (“Content”). LCDSWAP shall have no liability to Client for any unauthorized access or use of any of Client’s Content, including without limitation, for any corruption, deletion, destruction, or loss of any of Client’s Content, and Client shall indemnify and hold LCDSWAP harmless for any claims, damages or liability associated or related in any way whatsoever to Client’s Content.
    2. Client acknowledges and agrees that it is Client’s sole responsibility to protect themselves from fraud, and that Client shall be liable for all fees and expenses due to LCDSWAP for the Services provided as per this Agreement, regardless of whether the request for Services is determined to be fraudulent, or if the Client’s Property is not delivered correctly or at all.
    3. Client acknowledges and agrees that international shipments which are not delivered are often returned by the shipping carrier and, without limitation, assessed return shipping, brokerage, and returns processing carrier fees, inter alia. These fees assessed by the shipping carrier are billed through to merchants, often without notice. LCDSWAP endeavors to work with Client to circumvent or reduce international returns or abandoned inventory at Client’s request, however, this is done on a reasonable efforts’ basis and LCDSWAP reserves the right to charge Client to recuperate LCDSWAP’s original shipping costs, including without limitation, all costs, and expenses due for the return of Client’s Property. If a tariff is not available, LCDSWAP will, in its sole discretion, either put orders on hold until tariff information is available or override the order with no liability to LCDSWAP.
    4. Client acknowledges and agrees that if it directs LCDSWAP to discard any of Client’s Property, LCDSWAP may dispose of Client's Property in any manner it sees fit, including the destruction of Client’s Property or selling of Client’s Property through any platform or sales channel(s). Should LCDSWAP determine to sell any items Client specifically discards, Client waives any right to the proceeds from the sale of those discarded items.
  17. Miscellaneous.
    1. Notices. All notices and correspondence pertaining to this Agreement will be delivered by e-mail, and be addressed as follows:

      If to LCDSWAP:
      E-mail: [email protected]

      If to Client:
      E-mail: _________________

      Notice will be effective only upon receipt by the party twenty-four (24) hours after being served. Each party is responsible for informing the other of any changes in his/her or its address by sending proper notice.
    2. Entire Agreement/Amendment. This Agreement, together with its attached Exhibits constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior expressions, whether written or oral. In the event of an inconsistency between the terms of the main body of this Agreement and any Exhibit, the terms of the main body of this Agreement control. Client acknowledges that it is not entering into this Agreement on the basis of any representations which are not expressly stated herein. LCDSWAP may, in its sole discretion, amend this Agreement unilaterally at any point. Notice of such amendments shall be provided to Client three (3) days prior to coming into effect.
    3. Policies and Procedures. Client and LCDSWAP shall be governed by this Agreement and by the policies and practices established by LCDSWAP. In the event that the terms of this Agreement differ from or are in conflict with LCDSWAP’s policies or practices, this Agreement shall control. Electronic links to LCDSWAP’s policies and procedures are included in Exhibit ‘B’ to this Agreement. All policies, procedures, and documentation contained within Exhibit ‘B’ to this Agreement and are subject to change at any time at LCDSWAP’s sole discretion without any notice to Client.
    4. Waiver. Upon a party's breach or default hereunder, the other party's failure, whether single or repeated, to exercise a right hereunder will not be deemed to be a waiver of that right as to any future breach or default.
    5. Severability. If any of the provisions of this Agreement are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court's ruling. All remaining portions of the Agreement will remain in full force and effect.
    6. Governing Law/Forum. The validity, interpretation and construction of this Agreement, and all other matters related to this Agreement, will be governed and interpreted by the laws of the Province of Ontario and the laws of Canada applicable therein. Any litigation pertaining to the interpretation or enforcement of this Agreement will be filed in and heard by the court with jurisdiction to hear such disputes in the Regional Municipality of Peel, Province of Ontario, and Client hereby submits to the jurisdiction of such courts.
    7. Force Majeure. Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to acts of God, public enemy, war, strikes or labour disputes, or any other cause beyond the party's reasonable control (each a 'Force Majeure'), it being understood that lack of financial resources shall not to be deemed a cause beyond a party's control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out this Agreement as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of this Agreement.
    8. Interpretation. Each party acknowledges it has participated in the negotiation and preparation of this Agreement and has reviewed this Agreement and had the opportunity to consult with its counsel and accountants with respect to its terms. Therefore, each Party agrees that the rule of construction to the effect that any ambiguities in a document shall be interpreted against the drafting party, will not be utilized in the interpretation, construction, or enforcement of this Agreement, and no consideration shall be given to the issue of which party hereto actually prepared, drafted or requested any term or condition of this Agreement or other instrument subject hereto.
    9. Assignment. This Agreement, and the rights, interests, benefits and obligations hereunder may be assigned, transferred, pledged or hypothecated by LCDSWAP to any successor in interest to LCDSWAP, whether by sale, transfer, merger, assignment or encumbrance or in any other manner as Company may direct, in LCDSWAP 's sole discretion. Therefore, Client agrees and acknowledges that, should LCDSWAP transfer or assign this Agreement to a successor, acquirer, affiliated party that may acquire LCDSWAP or some or all of its assets, or any subsequent party in interest, this Agreement shall remain in full force and effect.
    10. Legal Fees. Should either party institute or participate in a legal or equitable proceeding against the other to enforce or interpret this Agreement, the non-prevailing party shall pay the prevailing party's costs, expert and professional fees, legal fees, including in-house counsel expenses, and all other costs incurred by the prevailing party in preparation for the proceeding.
    11. Time. Time is of the essence in the performance of this Agreement.
    12. Paragraph Headings and Interpretation. The paragraph headings contained herein are for reference only and will not be considered substantive parts of this Agreement. The use of the singular or plural will include the other form.
    13. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM WITH RESPECT TO ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 17.13 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 17.13 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
    14. Third Party Beneficiaries. No provision of this Agreement will insure to the benefit of any third parties so as to constitute any such person a third-party beneficiary of this Agreement.
    15. Counterparts. This Agreement may be executed in two or more counterparts, and manually executed counterparts may be delivered by e-mail or other functionally equivalent electronic means of transmission, each of which (whether originally executed or such a faxed or scanned electronic document) shall be deemed an original, and all of which together shall constitute one and the same instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the Parties.
    16. Survival. Any terms of this Agreement which by their nature extend beyond its termination, cancellation or expiration remain in effect until fulfilled and apply to respective successors and permitted assignees.
  1. Obligations of LCDSWAP.
      LCDSWAP shall provide the services (the “Services”) described below. All Exhibits attached to or issued under this Agreement are hereby incorporated into and made a part of this Agreement.
      Services: Services shall include, without limitation, the provision of fulfillment services, and other related incidental services as determined by LCDSWAP in their sole discretion, and subject to change without prior notice to Client.
  2. Payment, Taxes and Duties.
    1. Exhibit A sets forth the compensation in USD due to LCDSWAP for completion of the Services described herein. Exhibit A also designates LCDSWAP and Client’s authorized representative for purposes of this Agreement. Client shall provide payment via LCDSWAP’s preferred choice of payment, which may change at LCDSWAP’s sole discretion without any notice to Client.
    2. LCDSWAP shall be responsible for invoicing Client for any applicable federal, state, and/or provincial taxes that are imposed by law on LCDSWAP in connection with: (1) the provision of the Services; and (2) the sale of any goods related to the provision of any service. Client shall be responsible for such taxes, customs or duties whether existing as of the Effective Date of the Agreement or increasing or becoming applicable during the term of the Agreement.
    3. Arrangements, costs and regulatory obligations associated with the cross-border movement of Client’s goods or property, if any, whether or not title has transferred to LCDSWAP, or its subsidiaries, will be the sole responsibility of Client, including without limitation, export packing, licensing, forwarding, import brokerage, duty, broker and/or forwarder fees, indirect taxes, filing of export and/or import declarations or entries in Client’s name, and LCDSWAP’s costs and related expenses, as well as other responsibilities identified in the Agreement.
    4. Notwithstanding anything to the contrary in this Agreement or the associated Exhibits, Client agrees to provide a pre-authorized credit card for LCDSWAP to hold on file (the “Credit Card”). Client hereby acknowledges and agrees that LCDSWAP may charge the Client’s Credit Card at LCDSWAP’s sole discretion, any time that the Client has an invoice or payment due. Client understands and agrees that LCDSWAP will not remove the Credit Card kept on file unless and until Client replaces the initial Credit Card with another valid Credit Card.
    5. Client agrees to the following conditional payment and invoicing provisions:
      1. In the event Client’s Services exceed $100,000 in any four-week period, LCDSWAP shall require Client deposit with LCDSWAP an amount equal to the Client’s largest monthly billing cycle (the “Deposit Amount”), to be held by LCDSWAP as collateral against any shortfall(s) in future billing. Client understands that the Deposit Amount shall be adjusted upwards to match the largest four-week period, should Client’s monthly billing cycles increase over time.
      2. In the event Client’s Services exceed $50,000 per four-week period, LCDSWAP shall bill Client weekly.
      3. Any pre-orders requested by Client shall require pre-payment, prior to shipping, of all costs borne by LCDSWAP related to the shipping of those pre-ordered items.
    6. Client further acknowledges and agrees that LCDSWAP may request payments be made in advance of providing services at any time in LCDSWAP’s sole discretion, which shall be due immediately.
  3. Invoicing.
    1. LCDSWAP shall invoice Client for all Services provided and for any expenses incurred for the purposes of providing the Services. Invoices will be presented to Client in accordance with the schedule set forth in Exhibit A and shall be due and payable seven (7) days after Client’s receipt of the invoice.
    2. Client must ensure that all outstanding invoices are paid prior to requesting further Services from LCDSWAP. LCDSWAP may choose, in LCDSWAP’s sole discretion, to refrain from providing further Services to Client until all outstanding invoices and amounts due are paid in full, without any liability to Client.
    3. LCDSWAP may submit invoices to Client for payment at any point in time, at LCDSWAP’s sole discretion. Further to this section, LCDSWAP may amend the billing cycle at LCDSWAP’s sole discretion without prior notice to Client. Client shall be notified within seven (7) business days of any changes to the billing cycle.
  4. Reimbursement of Expenses.
    1. Client shall reimburse LCDSWAP for any and all expenses stated in each invoice.
    2. Any expenses which require amendments or adjustments shall be re-billed to Client on the next applicable invoice, including without limitation, any adjustments from carriers for postage charges.
  5. Representations, Warranties and Covenants.
    1. Client represents, warrants and covenants that no part of the materials or products provided as part of the Services will violate or infringe upon the intellectual property rights or other statutory rights of any third party, including, without limitation, any rights relating to copyright, patent, trademark, trade secret, defamation, privacy or publicity (collectively “Intellectual Property Rights”).
    2. Client further represents and warrants that Client has reviewed the Service Level Agreements, this Agreement, and all associated Terms and Conditions available on LCDSWAP’s website (“https://shiphype.com/”).
    3. Client further represents, warrants and covenants that Client owns all materials or products provided as part of the Services, and that Client has obtained all permissions, releases, rights or licenses required to engage in this Agreement and for LCDSWAP to provide the Services without obtaining any further releases or consents.
    4. Client further represents and warrants that Client is the sole legal owner and has lawful possession or control of Client’s Property (defined below), and that Client has the sole legal right to store and direct the release and delivery of Client’s Property. Client further represents and warrants that Client’s Property does not contain any potential health, safety, or environmental hazards associated with the shipment, storage, or fulfillment of the Client’s Property and Services, and that Client’s Property complies with all applicable laws, does not contain any hazardous and dangerous materials, and does not violate LCDSWAP’s policies, which are subject to change without notice. Client shall strictly meet or exceed any compliance obligations contained herein and LCDSWAP may, in its sole discretion, reject Client’s Property which LCDSWAP reasonably determines may violate this section. Client acknowledges and agrees that Client may incur additional fees from LCDSWAP as a result of LCDSWAP refusing Client’s Property, which may result in a significant delay or non-shipment of Client’s Property, and Client agrees that LCDSWAP shall not be held liable for any associated loss or damage which may result.
    5. Client further represents, warrants, and acknowledges that LCDSWAP is not the merchant of record for Client’s Property (defined below).
    6. Client represents that he/she/it is not a competitor of LCDSWAP or, if it is a competitor of LCDSWAP, he/she/it has disclosed same to LCDSWAP.
    7. Each party represents, warrants and covenants that:
      1. It has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and
      2. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on its part.
  6. Term and Termination.
    1. This Agreement will commence on the Effective Date and continue in full force and effect for thirty (30) calendar days, unless extended in accordance with Section 6.2 or earlier terminated as set forth herein.
    2. This Agreement shall automatically renew for an additional term of thirty (30) days, each following the expiration of the original Agreement term. Client shall notify LCDSWAP of its election to terminate the Agreement term not less than one (1) day prior to the expiration of the original Agreement term or renewal term, as applicable.
    3. Client and LCDSWAP shall each have the right to terminate this Agreement in whole or in part, without cause, upon one (1) day prior written notice to the opposite party.
    4. The occurrence of any of the following shall constitute an “Event of Default” under this Agreement:
      1. Client defaults in any of its obligations under Section 7 concerning Confidential Information; or
      2. Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or
      3. Client becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or
      4. Any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Client and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
      5. Any representation or warranty made by Client in this Agreement, or any other document executed in connection herewith proves to have been incorrect in any material respect when made.
    5. Notwithstanding anything stated above, an occurrence of an Event of Default described in Section 6.4.2, or Section 6.4.3, or Section 6.4.4 shall effect an immediate termination of this Agreement without any notice requirement.
    6. If Client fails to make payment for any reason whatsoever, LCDSWAP may, in their sole discretion, consolidate the inventory provided by Client and prepare it to be sold as-is. The time used to consolidate such inventory will also be invoiced to the Client.
    7. Client acknowledges and agrees that Client is not permitted to dispute any transactions made with their credit card provider, including without limitation, issuing a charge back request for such transactions.
    8. Upon the occurrence of any other Event of Default, LCDSWAP may terminate this Agreement by written notice to Client stating the effective date of termination (which may be immediate) and, if the Agreement is not terminated in whole, the extent of termination.
    9. Upon the occurrence of an Event of Default, LCDSWAP may exercise any and all rights and pursue any and all remedies LCDSWAP may have by contract, at law or in equity in any jurisdiction where enforcement of this Agreement is sought.
    10. Upon termination of this Agreement, LCDSWAP shall discontinue Services on the effective date of termination. Upon termination, LCDSWAP shall be paid any and all amounts due for Services completed prior to the date of termination, including the costs and work associated with terminating the Agreement, including without limitation, the return of Client’s products or merchandise. Payment of such amount shall be made in accordance with the standard invoicing and payment procedures set forth in this Agreement. In addition, Client shall reimburse those expenses of LCDSWAP LLC. which were incurred prior to the effective date of termination or as a result of such termination.
    11. Upon termination of this Agreement, if Client has any outstanding invoices with LCDSWAP, Client shall ensure that such invoices are paid in full within seven (7) calendar days of termination. Failing which, LCDSWAP may, in LCDSWAP’s sole discretion, sell or dispose of any products, equipment, merchandise, etc. (“Client’s Property”), which are still in LCDSWAP’s possession, in order to recover LCDSWAP’s loss of revenue, which may be done without any prior notice to Client. LCDSWAP may pursue Client for any remainder which is owed and does not waive any rights by doing so.
    12. Upon termination of this Agreement, Client shall arrange to recover all of Client’s Property within seven (7) calendar days of termination, at Client’s sole expense. Failing which, LCDSWAP may, in LCDSWAP’s sole discretion, sell or dispose of Client’s Property, which may be done without any prior notice to Client. Client agrees to hold LCDSWAP harmless for any disposal of Client’s Property and acknowledges and agrees that it is Client’s duty to ensure that all invoices are paid, and Client’s Property is recovered in a timely manner.
    13. Notwithstanding any of the foregoing and for the sake of simplicity, LCDSWAP has the full discretion and right in LCDSWAP’s sole discretion to refuse to release Client’s Property, and to dispose of such Client’s Property in the manner that LCDSWAP sees fit in LCDSWAP’s sole discretion, if Client has any outstanding invoices or if LCDSWAP reasonably anticipates a breach of this Agreement.
    14. Further, upon termination of this Agreement, if full payment of all outstanding invoices has been made, Client shall ensure that Client’s Property is recovered within seven (7) calendar days of termination of this Agreement, failing which, LCDSWAP may dispose of Client’s Property in the manner that LCDSWAP sees fit in LCDSWAP’s sole discretion.
    15. If Client fails to make payments for a period greater than thirty (30) days, LCDSWAP may, in LCDSWAP’s sole discretion, terminate the Agreement, suspend all Services, and reclassify Client’s account as abandoned (“Abandoned Account”). Further, any Client account which remains unpaid for more than sixty (60) days shall automatically be deemed to be an Abandoned Account. If Client’s account becomes an Abandoned Account, Client shall forfeit all rights to ownership of Client’s Property and any balances, deposits, etc., held by LCDSWAP for Client, and Client shall solely assume all liability thereafter for Client’s Property. Client shall have no rights to the liquidation process or proceeds received by LCDSWAP in accordance with this section, and Client shall remain liable for any amounts due above those recovered by the sale of Client’s Property by LCDSWAP.
    16. Notwithstanding any of the foregoing, Client agrees to hold LCDSWAP harmless for any disposal of Client’s Property in accordance with any of the above sections.
  7. Confidentiality.
    1. Client agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing and special pricing (“Confidential Information”), strictly confidential and shall not disclose any part of this Agreement to any party, except for the purposes of seeking legal advice.
    2. Client acknowledges that the Confidential Information is important, material and confidential to LCDSWAP. Therefore, Client agrees that the remedy at law for any breach of this Agreement would be inadequate and that, in addition to any other remedies available, LCDSWAP shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or the need to post a bond. Such injunctive relief will not affect LCDSWAP’s right to seek monetary damages or any other remedies which may be available. The provisions of this Section 7 will survive the expiration or earlier termination of this Agreement.
    3. Client hereby grants LCDSWAP the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Client’s information collected or stored by or on behalf of LCDSWAP in connection with the Services (“Client’s Data”), as is deemed necessary in LCDSWAP’s sole discretion, for the purposes of providing the Services, (ii) to copy, modify, and use Client’s Data in connection with internal operations and functions, including without limitation, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing purposes.
    4. Client hereby further grants LCDSWAP the non-exclusive right and license to utilize Client’s proprietary property, including without limitation, Client’s logo’s, trademarks, reviews, pictures, etc., on LCDSWAP’s website and other promotional and non-promotional materials, for any reason whatsoever.
  8. Records, Right to Inspect, Electronic Discovery.
    1. During the term of this Agreement and for two (2) years thereafter, Client shall retain all data, books and records (in whatever form they may be kept, whether written, electronic or other) relating or pertaining to this Agreement (collectively “Records”). The Records shall be maintained in accordance with recognized accounting practices and in such a manner that they may be readily audited. The Records shall be available for direct inspection and copying by LCDSWAP, or its designated representatives, during normal business hours upon LCDSWAP’s request while this Agreement remains in force and for two (2) years after its expiration or termination. LCDSWAP or its designated representatives may use general audit software and other reporting tools against data files or databases. Client shall cooperate with LCDSWAP, or its designated representatives, in the conduct of such inspection. In the event LCDSWAP requires information in electronic format from Client in connection with a discovery process, lawful search warrant, court order, subpoena, or other valid legal, regulatory, or administrative process, Client agrees to take reasonable and immediate steps to meet LCDSWAP’s requirements at Client’s expense.
    2. LCDSWAP specifically retains the right to inspect any of Client’s Property held in LCDSWAP’s possession should LCDSWAP have cause to believe any items identified as Client’s Property are counterfeit; any inspection(s) of Client’s Property performed pursuant to this Agreement shall be performed by a third-party expert selected by LCDSWAP, in its sole discretion. The cost(s) of such third-party expert shall be borne entirely by the Client.
      1. In the event the expert retained by LCDSWAP determines that any item(s) identified as Client’s Property, after inspecting same, are counterfeit, LCDSWAP reserves the sole right to dispose of those counterfeit items in any manner LCDSWAP sees fit.
      2. In the event that the expert retained by LCDSWAP finds that one or more, but less than all, of Client’s Property are counterfeit, LCDSWAP reserves the right to assert control over the entirety of Client’s Property and, notwithstanding any provision to the contrary herein, immediately terminate any agreement(s) between LCDSWAP and Client.
  9. Work Product and Ownership Rights.
    1. Client hereby grants to LCDSWAP a limited, revocable, non-exclusive license to use the trademarks, logos, or artwork owned or licensed to the Client hereto (collectively referred to as the 'Licensed Marks'), for the purpose of displaying such Licensed Marks on packaging, invoices, customer service correspondence, LCDSWAP’s social media accounts, websites, and for any marketing or promotional purposes of LCDSWAP’s services, at LCDSWAP’s sole discretion. Other than as contemplated by this Agreement, LCDSWAP shall not make any other use of the Licensed Marks or any related marks or intellectual property of Client. Client hereby irrevocably waives the right to any written, audio, and/or video testimonials and permanently assigns any interests it may have therein to LCDSWAP.
    2. Client, in connection with the Services rendered pursuant to this Agreement, may become acquainted with Confidential Information and Trade Secrets of LCDSWAP. As used in this Agreement, Confidential Information and Trade Secrets (“Proprietary Information”) of LCDSWAP means any lists of the LCDSWAP’s clients and other information relating thereto, client records and histories, financial data, and plans, practices, price lists, supplier lists, marketing plans, promotional material and marketing strategies, financial information, contracts, or agreements with any person or entity, and all other compilations of information which relate to the business of LCDSWAP and/or which have not been disclosed by LCDSWAP to the public. The Client acknowledges that the Confidential Information and Trade Secrets of the LCDSWAP, as such may exist from time to time, are valuable, confidential, special, and unique assets of the LCDSWAP, expensive to produce and maintain and essential for the profitable operation of its business. All documents relating to the business of LCDSWAP, including all Proprietary Information, coming into the Client's possession, whether in original form or in duplicated or copied form, are the exclusive property of LCDSWAP and shall not be used for any purpose other than the Services contemplated herein. Client understands and agrees that any remedy(ies) at law will be inadequate to protect Client’s interests with respect to protecting LCDSWAP’s Confidential Information and Trade Secrets; as such, Client understands and agrees that LCDSWAP has the right to seek immediate injunctive relief to protect its Proprietary Information and waives any and all requirement(s), regardless of jurisdiction, that LCDSWAP post a bond to obtain same.
  10. Indemnification.
      Client shall indemnify, defend and hold LCDSWAP, its officers, directors, employees, parent, subsidiaries and affiliates, harmless from and against any and all claims, demands, causes of action, suits, proceedings, damages, judgments, fines, penalties, losses, liabilities, costs and expenses, including legal fees and in-house counsel fees, related to, in connection with, arising from or alleged to arise from, directly or indirectly, any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, in providing Services hereunder, including, but not limited to, claims for personal injury, death or property damage, business or employee claims, or claims alleging that any Materials, Created Works or Services supplied by Client hereunder infringe the Intellectual Property Rights of any third party. This indemnification provision shall also specifically include any action at law or equity initiated by a third-party related to the ownership or authenticity of Client’s Property. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
  11. Insurance.
    1. Client maintains the sole discretion to obtain and carry full insurance coverage for all activities reasonably connected with this Agreement. LCDSWAP shall not be liable for any damage whatsoever or howsoever caused to Client’s Property, including without limitation, due to Client’s failure to obtain or carry insurance, or due to LCDSWAP’s actions, omissions, or negligence.
    2. Nothing herein will limit or prohibit LCDSWAP from obtaining insurance for its own account and solely for LCDSWAP’s benefit, and any proceeds payable thereunder will be payable as provided in the underlying policy.
    3. LCDSWAP may request Client to furnish a certificate of insurance providing details and confirmation of commercial insurance coverage at any time, at LCDSWAP’s sole discretion. Client’s obligations throughout this section and this Agreement remain, regardless whether LCDSWAP makes this request or not.
    4. Client shall utilize their commercial insurance coverage for any losses, damages or otherwise sustained exceeding $1,000.00, and in accordance with LCDSWAP’s terms and conditions, policies, and procedures, inter alia, amended from time to time. Any and all payments made by LCDSWAP regarding a loss or damage claim shall not exceed $1,000.00 USD within any given month, or the amount paid on the Client’s most recent invoice, whichever is lesser.
  12. Independence of LCDSWAP.
      LCDSWAP is an independent contractor and neither LCDSWAP, nor any of its employees, independent contractors, subcontractors, or agents will be deemed to be an employee, agent, joint venturer, principal, or partner of Client. Neither LCDSWAP nor any employees or agents of LCDSWAP are employees or agents of Client. Client and LCDSWAP both acknowledge and agree that Client and LCDSWAP do not have authority to act for or bind either party.
  13. Limitation of Liability.
      Notwithstanding anything to the contrary, LCDSWAP shall not be liable to Client for special, incidental, indirect, punitive, exemplary, or consequential damages, or for lost profits or lost revenue. Any claims against LCDSWAP shall hereby be limited to the maximum of the monetary amount paid to LCDSWAP in accordance with this Agreement for the Services provided, or the maximum of the actual damages pertaining to the alleged loss suffered, whichever is lesser. Further, LCDSWAP shall not be liable for omissions, errors, damages, etc., which are caused due to any sort of software malfunction, telecommunications disruptions, or similar circumstances outside of LCDSWAP’s control.
  14. Compliance with Laws.
    1. Client shall comply and shall ensure that all independent contractors, subcontractors, or agents comply with all applicable laws of countries and regions in which they operate including, but not limited to, environmental, labour, child labour abuse, forced labour, working environment, anti-trust, unfair competition, consumer protection, and privacy laws and regulations.Client shall further ensure that all of Client’s Property complies with all applicable laws of countries and regions in which they operate.
    2. LCDSWAP shall notify Client in the event it receives a subpoena or court order (“Legal Proceedings”) related to Client’s Property within thirty (30) business days. Client shall then have three (3) business days to notify LCDSWAP, in writing, of its intention(s) with respect to any Legal Proceedings related to Client’s Property. In the event that Client either does not provide written notice or does not take any action with respect to any Legal Proceedings affecting Client’s Property within ten (10) business days of Client being notified of said Legal Proceedings, Client shall be deemed to have abandoned its rights to the Client Property subject to those Legal Proceedings and LCDSWAP shall have full authority to comply with any such subpoena(s) or court order(s). Client understands that this provision shall apply to any subpoena(s) or court order(s), regardless of whether Client is specifically named, provided that said subpoena(s) or court order(s) identifies Client Property.
    3. Client shall indemnify, defend, and hold LCDSWAP harmless against any claim, damage or loss arising from, or in connection with, Client’s breach of this Section 14.
    4. Without incurring any liability to Client, LCDSWAP may terminate this Agreement immediately upon written notice to Client, if LCDSWAP determines that Client’s breach of any of this Section 14 significantly undermines the brand image or goodwill of LCDSWAP.
    5. Remedies available to Client as mentioned in this Section 14 shall be cumulative and in addition to any other or further remedies implied or available at law, in equity or under this Agreement.
  15. Location of Warehouse and Client’s Property.
    1. Client’s Property will be stored at a warehouse chosen at LCDSWAP’s sole discretion (“Warehouse”).
    2. Under no circumstances shall Client be permitted to attend at the Warehouse. The location of the Warehouse is subject to change at LCDSWAP’s sole discretion, without any notice to Client. As Client’s Property may be commingled with the products of other clients, Client may not access Client’s Property while it is in the Warehouse or during transport.
    3. It is the Client’s sole responsibility to ensure that Client’s Property is received by LCDSWAP.
    4. Client acknowledges and agrees that each Stock Keeping Unit (“SKU”) will require its own storage space in the Warehouse and Client shall be invoiced accordingly for such SKU’s and space used. LCDSWAP shall determine, in their sole discretion, the type of storage spot assigned to each SKU.
    5. Client further acknowledges and agrees that all pallets provided shall not exceed a height of 55”. Any pallets which exceed 55” in height will have an additional fee applied. Client is required to request a quote for such fees directly from LCDSWAP prior to providing a pallet that exceeds the limit described herein, otherwise Client is not permitted to dispute the fee charged.
    6. Client hereby acknowledges that LCDSWAP is not involved with the transport, shipping, or handling or any of Client’s Property and is not responsible for any damages which Client’s Property may incur during such transport.
    7. LCDSWAP may refuse to accept shipments in LCDSWAP’s sole discretion, with the reason to be provided to the Client.
    8. Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to LCDSWAP, and that LCDSWAP shall not be held liable for, without limitation, any delay, mistake, omission, loss, damage, costs, etc., associated with the provision of any inaccurate information, and that it is not LCDSWAP’s responsibility to ensure or determine the accuracy of any information provided by Client to LCDSWAP. Further, LCDSWAP shall not be liable to Client for any damages of any kind, including without limitation, loss of income incurred by Client for any reason whatsoever, including without limitation, for any delays, errors, or mistakes caused either directly or indirectly by LCDSWAP.
    9. Client shall ensure that sufficient amount, quality, etc., of Client’s Property, are provided to LCDSWAP, and that timely requests are made to LCDSWAP, to ensure that LCDSWAP is able to meet its obligations under this Agreement, and that LCDSWAP is not liable to Client for any of Client’s failures to do so.
    10. The transport and return of any of Client’s Property shall be at Client’s sole expense and shall be paid in advance of such transport.
    11. LCDSWAP is not responsible for the damage, storage conditions, or preservation of any of Client’s Property, including without limitation, any perishable goods, or damage caused or alleged to be caused during the provision of any of the Services by LCDSWAP, or during transit to or from LCDSWAP. In the event that any of the Client’s Property is damaged or stolen in any way whatsoever, including without limitation, as a result of fire, flood, wildlife, an Act of God, natural disaster etc., Client is responsible for pursuing recovery via insurance, and holds LCDSWAP harmless, while releasing LCDSWAP of any liability which may or may not exist.
    12. LCDSWAP is not the importer of record for Client’s Property stored at the Warehouse, LCDSWAP shall not be held liable for complying with Client’s instructions to LCDSWAP. Client acknowledges and agrees that LCDSWAP does not inspect Client’s Property and does not assume any responsibility whatsoever for the business decisions Client makes or implements through LCDSWAP’s provision of the Services.
    13. LCDSWAP may, in its sole discretion, require Client to remove unsuitable or unsellable Client’s Property from its Warehouse or distribution centers. LCDSWAP will notify Client if any of Client’s Property requires removal. Applicable fees and expenses for the removal of Client’s Property may be assessed at LCDSWAP’s sole discretion. If Client fails to remove Client’s Property within thirty (30) days of receiving such notice, LCDSWAP may dispose of such Client’s Property listed in the notice, and Client agrees that Client shall not be entitled to any damages or reimbursement of the value or loss of profit associated with the disposal of Client’s Property in accordance with this section.
  16. Acknowledgements.
    1. Client understands that the operation of the Services may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to LCDSWAP’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, Client acknowledges and agrees that Client will bear the sole responsibility for ensuring adequate security, protection and backup of Client’s content, data, information, or protected works (“Content”). LCDSWAP shall have no liability to Client for any unauthorized access or use of any of Client’s Content, including without limitation, for any corruption, deletion, destruction, or loss of any of Client’s Content, and Client shall indemnify and hold LCDSWAP harmless for any claims, damages or liability associated or related in any way whatsoever to Client’s Content.
    2. Client acknowledges and agrees that it is Client’s sole responsibility to protect themselves from fraud, and that Client shall be liable for all fees and expenses due to LCDSWAP for the Services provided as per this Agreement, regardless of whether the request for Services is determined to be fraudulent, or if the Client’s Property is not delivered correctly or at all.
    3. Client acknowledges and agrees that international shipments which are not delivered are often returned by the shipping carrier and, without limitation, assessed return shipping, brokerage, and returns processing carrier fees, inter alia. These fees assessed by the shipping carrier are billed through to merchants, often without notice. LCDSWAP endeavors to work with Client to circumvent or reduce international returns or abandoned inventory at Client’s request, however, this is done on a reasonable efforts’ basis and LCDSWAP reserves the right to charge Client to recuperate LCDSWAP’s original shipping costs, including without limitation, all costs, and expenses due for the return of Client’s Property. If a tariff is not available, LCDSWAP will, in its sole discretion, either put orders on hold until tariff information is available or override the order with no liability to LCDSWAP.
    4. Client acknowledges and agrees that if it directs LCDSWAP to discard any of Client’s Property, LCDSWAP may dispose of Client's Property in any manner it sees fit, including the destruction of Client’s Property or selling of Client’s Property through any platform or sales channel(s). Should LCDSWAP determine to sell any items Client specifically discards, Client waives any right to the proceeds from the sale of those discarded items.
  17. Miscellaneous.
    1. Notices. All notices and correspondence pertaining to this Agreement will be delivered by e-mail, and be addressed as follows:

      If to LCDSWAP:
      E-mail: [email protected]

      If to Client:
      E-mail: _________________

      Notice will be effective only upon receipt by the party twenty-four (24) hours after being served. Each party is responsible for informing the other of any changes in his/her or its address by sending proper notice.
    2. Entire Agreement/Amendment. This Agreement, together with its attached Exhibits constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior expressions, whether written or oral. In the event of an inconsistency between the terms of the main body of this Agreement and any Exhibit, the terms of the main body of this Agreement control. Client acknowledges that it is not entering into this Agreement on the basis of any representations which are not expressly stated herein. LCDSWAP may, in its sole discretion, amend this Agreement unilaterally at any point. Notice of such amendments shall be provided to Client three (3) days prior to coming into effect.
    3. Policies and Procedures. Client and LCDSWAP shall be governed by this Agreement and by the policies and practices established by LCDSWAP. In the event that the terms of this Agreement differ from or are in conflict with LCDSWAP’s policies or practices, this Agreement shall control. Electronic links to LCDSWAP’s policies and procedures are included in Exhibit ‘B’ to this Agreement. All policies, procedures, and documentation contained within Exhibit ‘B’ to this Agreement and are subject to change at any time at LCDSWAP’s sole discretion without any notice to Client.
    4. Waiver. Upon a party's breach or default hereunder, the other party's failure, whether single or repeated, to exercise a right hereunder will not be deemed to be a waiver of that right as to any future breach or default.
    5. Severability. If any of the provisions of this Agreement are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court's ruling. All remaining portions of the Agreement will remain in full force and effect.
    6. Governing Law/Forum. The validity, interpretation and construction of this Agreement, and all other matters related to this Agreement, will be governed and interpreted by the laws of the Province of British Columbia and the laws of Canada applicable therein. Any litigation pertaining to the interpretation or enforcement of this Agreement will be filed in and heard by the court with jurisdiction to hear such disputes in the Province of British Columbia, and Client hereby submits to the jurisdiction of such courts.
    7. Force Majeure. Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to acts of God, public enemy, war, strikes or labour disputes, or any other cause beyond the party's reasonable control (each a 'Force Majeure'), it being understood that lack of financial resources shall not to be deemed a cause beyond a party's control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out this Agreement as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of this Agreement.
    8. Interpretation. Each party acknowledges it has participated in the negotiation and preparation of this Agreement and has reviewed this Agreement and had the opportunity to consult with its counsel and accountants with respect to its terms. Therefore, each Party agrees that the rule of construction to the effect that any ambiguities in a document shall be interpreted against the drafting party, will not be utilized in the interpretation, construction, or enforcement of this Agreement, and no consideration shall be given to the issue of which party hereto actually prepared, drafted or requested any term or condition of this Agreement or other instrument subject hereto.
    9. Assignment. This Agreement, and the rights, interests, benefits and obligations hereunder may be assigned, transferred, pledged or hypothecated by LCDSWAP to any successor in interest to LCDSWAP, whether by sale, transfer, merger, assignment or encumbrance or in any other manner as Company may direct, in LCDSWAP 's sole discretion. Therefore, Client agrees and acknowledges that, should LCDSWAP transfer or assign this Agreement to a successor, acquirer, affiliated party that may acquire LCDSWAP or some or all of its assets, or any subsequent party in interest, this Agreement shall remain in full force and effect.
    10. Legal Fees. Should either party institute or participate in a legal or equitable proceeding against the other to enforce or interpret this Agreement, the non-prevailing party shall pay the prevailing party's costs, expert and professional fees, legal fees, including in-house counsel expenses, and all other costs incurred by the prevailing party in preparation for the proceeding.
    11. Time. Time is of the essence in the performance of this Agreement.
    12. Paragraph Headings and Interpretation. The paragraph headings contained herein are for reference only and will not be considered substantive parts of this Agreement. The use of the singular or plural will include the other form.
    13. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM WITH RESPECT TO ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 17.13 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 17.13 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
    14. Third Party Beneficiaries. No provision of this Agreement will insure to the benefit of any third parties so as to constitute any such person a third-party beneficiary of this Agreement.
    15. Counterparts. This Agreement may be executed in two or more counterparts, and manually executed counterparts may be delivered by e-mail or other functionally equivalent electronic means of transmission, each of which (whether originally executed or such a faxed or scanned electronic document) shall be deemed an original, and all of which together shall constitute one and the same instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the Parties.
    16. Survival. Any terms of this Agreement which by their nature extend beyond its termination, cancellation or expiration remain in effect until fulfilled and apply to respective successors and permitted assignees.

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