Simpl FBA Prep Terms of Service

ACCEPTANCE OF TERMS.

            Simpl Fulfillment, LLC, a Texas corporation with offices at 3714 Bluestein Drive Suite 700 Austin, TX 78721, (“Simpl”) provides labeling, preparing and packaging Services (the “Services”) to its customers per the terms of this Service Agreement). This Service Agreement (this “Agreement” or “Terms”) is between you (you are hereinafter referred to as the “Company” or “You”) and Simpl.  You agree to be bound by the Agreement as of the date (the “Effective Date”) of this Agreement.

           Simpl may periodically change or revise this Agreement at its discretion by providing ten (10) days prior notice by posting a notice on this web page (https://www.simplfulfillment.com/fba-prep-terms-of-service/) or by notifying you via your web portals with Simpl. If any change or revision to this Agreement is not acceptable to you, your only remedy is to inform both team@simplefulfillment.com and your account manager at Simpl. Otherwise, you are bound by the revised Agreement. Your use of the Services after ten (10) days’ notice shall constitute full acceptance of the revised Agreement.

           NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Simpl hereby agree as follows:

1. RIGHT TO USER SERVICES To the extent you comply with this Agreement, you may use the Services to facilitate the packaging, warehousing, and shipment of any of Company’s Products sent to or held by Simpl. Company may use the Services only for their own internal business use and to process their data. Company has no right to (i) sublicense, sell or otherwise make available the Services or for the benefit of any third party, (ii) use the Services or Simpl’s software to serve as a service provider for any third parties, or (iii) in any way use the Services to process or manage the Products of a third party. Company warrants that any Content it provides to Simpl shall not be libelous, maliciously false, disparaging Services, or be otherwise defamatory, immoral, obscene, pornographic, and illegal.  Company further warrants that it shall not advocate illegal activity or constitute a violation of privacy or a breach of any obligation of confidentiality to any third party, nor shall it infringe the proprietary or intellectual property rights of any third party.

2. SERVICES. Simpl shall provide the following services to the Company (collectively, the “Services”):

• Receive shipments from the Company of Product
• Prepare the Product per the Company's specifications and/or Amazon's requirements
• Package and ship the Product to Amazon's various warehouses based on Amazon shipments created by either the Company or Simpl.

In addition to the above-described Services, Simpl shall perform any additional services, including special projects, that the Company desires Simpl to perform, as more fully described in the attached Exhibit A, to be amended from time to time as agreed upon by the Parties.

A. Communications and Notifications. By executing this Agreement, Company acknowledges and agrees to receive communications from Simpl including but not limited to emails, and telephone calls at the telephone number you provide us (with such provision indicating consent for contact via any means, including by automated technology), direct messages, and/or push notifications.

B. No Guarantee of Services.  Although Simpl makes reasonable efforts to provide proper care and skill in delivering its services, Simpl does not guarantee, warrant, or covenant that any Company Goods will not be lost, corrupted, or damaged in the shipping and/or return process.  

C. Access to Company Goods.    You expressly consent and agree that Simpl has the right without limitation to use, access, store and/or disclose information related to Company or Company Goods to proper law enforcement authorities, government entities and/or officials, and/or proper third parties that Simpl believes, in its sole discretion, is necessary to 1) comply with the law or a legal process or request; 2) prevent, detect, or identify fraud or technical issues; 3) enforce the terms of this Agreement including any necessary investigation thereof; and 4) protect the rights of Simpl, its users, third party(ies), or the public.

3. PAYMENT & PAY AS YOU GO BILLING. Simpl utilizes auto-pay for the payment of Services. As Simpl is creating shipments and performing services immediately after the product arrives, its vital Simpl is able to then bill for those services. Simpl will charge the card on file in its software for services rendered. The Company will receive an invoice with a breakdown of charges and services performed both via email and in the software. Simpl reserves the right to hold shipments and/or product if the payment fails.

A. Product Invoicing. Any and all fees due for the cost of the Product shall be paid directly by the End-User to the Company. Under no circumstances shall Simpl accept, receive, or otherwise be held responsible for payments from an End-User made in exchange for the Product.

B. Late Payment Fee. If Simpl fails to receive payment from Company by the due date, a late payment fee of 5% (minimum of $30) will be applied to the invoice unless the invoice is currently being disputed.  In addition, the Company is responsible for all collection fees, including reasonable attorney’s fees incurred by Simpl to receive payment. If the Company is late in any payments, Simpl may suspend the Services without notice.

C. Options & Ways to Pay. Simpl provides the Company with the convenience to pay for their invoices online through the Company’s account using the following payment methods: Bank Transfer & ACH transfer (Free), Credit Card (3% convenience fee), PayPal (4% convenience fee), or a wire transfer (Free within the U.S.). Simpl is currently using two 3rd party payment processing companies, Stripe and Bill.com. Simpl does not store any payment information on its own servers; all of the Company’s payment information is stored with those companies. If Simpl’s invoice remains unpaid for more than 5 days from the issue date, Company agrees that Simpl shall have the right to auto-charge any payment method that has been used in the past.‍

E. Failure to Pay. If an amount owed to Simpl remains unpaid for 30 days, Simpl may, in its sole discretion, remove and charge to Company any expense for such removal and/or sell the Company Goods and offset all amounts generated by such sale, which sales price will be determined by Simpl Fulfillment in it its sole discretion, against all amounts owed by Company to Simpl.  

F. Pricing Changes.  Company acknowledges that the Fees relating to the Services provided (i.e., labor, packaging, supply changes) may change from time to time due to circumstances independent from Simpl.  Simpl shall have the right to increase the price Fees for Services that Simpl provides to Company.  Simpl shall provide notice of any fee changes and shall provide the Company notice of changes to the same.  

E. Pricing and Payment. Simpl's pricing shown here (https://simplfulfillment.com/services/fba-prep) shows all applicable costs including storage costs. Pricing is subject to change at any time within 5 days written notice to the Customer. Surcharges and any other non-standard fees are subject to change anytime with a 5 day notice to the customer. If a shipments charges do not add up to more than $40 then the Company is subject to a minimum fee for the difference.

4. WAREHOUSE AND INVENTORY MANAGEMENT

A. Mandatory Advance Shipment Notice. The Company shall provide 48 hours advance shipment notice (“Inbound”) of any items being sent to Simpl via Simpl Prep (“SP”). Instructions on how to use the SP are provided upon the Company’s acceptance of Simpl’s Services. The Inbound shall include an itemized list of each stock-keeping unit (“SKU”). When Simpl receives goods for which an Inbound has not been provided in advance in accordance with this Agreement, Simpl may, at its sole and reasonable discretion, quarantine the entire shipment of such goods until the Company provides the correct Inbound. Simpl may perform all acts reasonably necessary in lieu of the Inbound and charge a fee of $50.00 to Company to release the goods from quarantine.

B. Receiving. Simpl shall be open for receipt of Products from 10:00 AM to 5:00 PM (local warehouse time) each Business Day. Upon arriving at the Simpl warehouse, all goods will be moved to the receiving inspection area to be checked for compliance with Requirements for Inbound Product, as specified below. Company shall use reasonable efforts to ensure that items delivered to Simpl comply with the below Requirements for Inbound Products. Simpl shall compare the pallet and case quantities listed on the incoming paperwork to the actual goods physically received by Simpl, but will not verify the quantities inside the individual cases delivered. The Company will be notified of any discrepancies between the Inbound and the physical receipt. Any exterior physical damage noted upon receipt will also be reported to the Company.

The delivery address for each warehouse is listed below. Company is required to schedule an appointment for all carriers and truckload carriers at least 24 hours in advance. Simpl is not liable for any fees associated with refused shipments if an appointment isn’t made correctly. Inbounds should be addressed to:

Simpl Fulfillment C/O: Company Name
3714 Bluestein Drive
Suite 700
Austin, TX 78721

C. Inventory. Simpl reserves the right to not audit inventory until FBA shipments are being sent out unless Company agrees to pay for such audit. As described in the receiving processes above, the Products are not counted by individual piece upon arrival (unless otherwise specified). Simpl shall not be responsible for any variance in the total volume of any Product held in inventory unless such variance exceeds 10% of the total volume of such Product (per sellable-SKU) against the last total Product volume amount last communicated to the Company via the SP online portal.

Additional or annual physical inventory counts can be scheduled on request and will incur an additional cost to the Company at the rate of $45 per person-hour.

5. CLIENT RIGHTS AND OBLIGATIONS

A. Condition of Company Goods Upon Delivery to Simpl. All goods/products tendered for storage shall be delivered at the Simpl warehouse (“Warehouse”) segregated, adequately marked, and packaged for handling. Company shall submit an Inbound to Simpl in a manner.

B. Title to Goods and Security Lien. All of the Company Goods in possession of Simpl will be and remain the property of Company; however, Simpl shall have a priority security interest in all Products in inventory (“Inventory”) and on the proceeds thereof to secure the payment of all Fees, Interest, and third-party fees arising under this Agreement as well as any reasonable expenses incurred by Simpl for the preservation of the Inventory or its removal or sale. In connection in addition to that, Company hereby (a) grants Simpl a first priority security interest in all Inventory and the proceeds from any sale thereof to secure the payment of the Fees, Interest, third party fees, and expenses, and (b) consents to and grants to Simpl the right to deliver and file any documentation required under applicable laws and regulations to perfect such security interest.

C. Payment Obligations. During the Term of this Agreement and during any Renewal Term, Company shall pay Simpl for all Services due hereunder pursuant to the terms contained herein and in the SOW or any subsequent entered into SOW. Any Fees, Interest, third-party fees, or expenses not paid for hereunder shall constitute a material breach of this Agreement and shall be subject to the provisions of Section 6, subparagraph B below.  To the extent Company disputes its payment obligations, Company must provide Simpl notice of said dispute, in writing, within thirty (30) days of the issuance of an invoice as discussed, supra or such dispute is forever waived, and the invoice is owed by Company.

D. Insurance. Company retains sole responsibility for all costs, insurance, and risks relating to the shipping of the Product to and from the Warehouse.  Company acknowledges and agrees to maintain an insurance policy that covers the full value of the Company Goods held in Simpl’s inventory and/or warehouses. Company may elect to add the warehouse as a designated storage location to Company’s general inventory policy.  If Company foregoes insuring any and all of the Company Goods shipped to Simpl for the services provided hereunder, Company acknowledges and agrees that Simpl shall under no circumstances be liable for any loss or damage to the inventory stored at Simpl facilities. These events include, but are not limited to, theft, misuse, fire, flooding, natural disaster, negligence of Simpl, or any other event.

E. Risk of Loss.  Company hereby agrees that at no time during the period that Products are held by Simpl as Inventory in the Warehouse will Simpl carry the risk of loss in the Inventory. Risk of Loss in Inventory will continue to be held by Company until such time as the Products are delivered to the Company’s End-User.

F. No Insurance. Company can choose not to insure its inventory. In this event, Simpl will, under no circumstances, be liable for any loss or damage to the inventory stored at Simpl facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster, or any other event.

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G. Abandoned Account and Liquidation. If Company’s Fees remain unpaid for a period greater than 30 days, then Simpl reserves the right, at its sole discretion, to reclassify Company’s Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Company immediately forfeits its rights of ownership of such Company’s Inventory up to the cumulative amount necessary for the payment of all Fees as well as any reasonable expenses incurred by Simpl for the preservation and storage of the Inventory or its sale. Inventory will become immediately unavailable to Company, and liquidation proceedings would begin. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of Simpl and would be free and clear of liability and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account unless the amounts recovered through liquidation exceed the cumulative amount necessary for payment as stated above. Should the amounts recovered through liquidation be insufficient to cover the cumulative amounts above, the Company would remain liable for any pending Fees above and beyond the liquidation proceeds.

7. REPRESENTATIONS AND WARRANTIES

A. Simpl Representations and Warranties.  Simpl hereby represents and warrants to Company that:

1. It is duly organized, validly existing, and in good standing in the jurisdiction of its formation;

2. It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;

3. It has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement, and to perform its obligations under this Agreement;

4. The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of Simpl;

5. When executed and delivered by each of Simpl and Company, this Agreement will constitute the legal, valid, and binding obligation of Simpl, enforceable against Simpl in accordance with its terms; and

6. To the best of Simpl’s knowledge, the execution, delivery, and performance of this Agreement by Simpl will not violate, conflict with, require consent under, or result in any breach or default under (i) any of Simpl’s organizational documents; or (ii) any applicable law.

B. Company’s Representations and Warranties.  Company hereby represents and warrants to Simply Fulfillment that:

1. It is duly organized, validly existing, and in good standing in the jurisdiction of its formation;
2. It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;

3. It has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement, and to perform its obligations under this Agreement including legal title to all the goods and/or Products to be shipped to Simpl for the Services hereunder;

4. The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the Company;

5. When executed and delivered by each of Simpl and Company, this Agreement will constitute the legal, valid, and binding obligation of Company, enforceable against Company in accordance with its terms; and

6. To the best of Company’s knowledge, it is in material compliance with all laws applicable to this Agreement, the Products, and the operation of its business.

6. CONFIDENTIALITY.  “Confidential Information” with respect to a party hereto shall mean all technical, business, and financial information including, where appropriate and without limitation, all information, data, patent disclosures, patent applications, know-how, structures, models, techniques, processes, and methods, compositions, compounds, apparatus, customer names, customer information and products relating to the same disclosed by a party hereto (the “Disclosing Party”) to the other party hereto (the “Receiving Party”) or obtained by the Receiving Party through observation or examination of information, but only to the extent that such information is maintained as confidential by the Disclosing Party and is marked or otherwise identified as confidential when disclosed to the Receiving Party or, in the case of information given verbally, is identified as confidential in a written document sent to the Receiving Party within thirty (30) days of such verbal disclosure to the Receiving Party.

Simpl may disclose certain Confidential Information, including but not limited to its published pricing information, workflow methods, and processes to Company, and Company may disclose certain Confidential Information to Simpl, each on the terms and conditions of this Agreement.  

The Receiving Party hereby acknowledges that the Disclosing Party is the owner or licensee of the Confidential Information.  The Receiving Party shall not use or disclose any of the Confidential Information of the Disclosing Party at any time except for the sole purpose of performing its obligations under this Agreement.  The Receiving Party shall not disclose any of the Confidential information other than on a need-to-know basis, as reasonably necessary for performing its obligations hereunder, to its directors, officers, employees, attorneys, accountants, bankers, financial advisors, or consultants who are bound by written agreements no less restrictive than set forth in this Section 6 with the Receiving Party to maintain the Confidential Information in confidence or who are otherwise under obligations of confidentiality to the Receiving Party (collectively, the “Representatives”).

Notwithstanding the foregoing, the Receiving Party shall have the right to disclose Confidential Information to the extent required by court order or applicable law or regulation, provided that the Receiving Party shall give the Disclosing Party prompt prior written notice and reasonable opportunity to object to such use or disclosure, or to request confidential treatment of the Confidential Information. Confidential Information shall not include information that the Receiving Party can establish by written documentation: 1) Has been publicly known prior to disclosure by the Disclosing Party of such information to the Receiving Party; 2) Has become publicly known, without fault on the part of the Receiving Party, subsequent to disclosure by the Disclosing Party of such information to the Receiving Party; 3) Has been received by the Receiving Party at any time from a source, other than the Disclosing Party, lawfully having possession of and the right to disclose such information; 4) Has been otherwise known by the Receiving Party prior to disclosure by the Disclosing Party to the Receiving Party of such information; or 5) Has been independently developed by the Receiving Party without the use of such information.

Simpl shall not disclose, other than to its Representatives on a need-to-know basis or as otherwise permitted under this Agreement, the fact that discussions or negotiations are taking place concerning a possible transaction including any custom service or pricing offering, or any of the terms, conditions or other facts with respect to this Agreement (including the status thereof), except as required by applicable law or regulation.  Neither Party shall use the trade names, trademarks or other marks of the other party in any advertising, promotions or publicity without prior written consent of the other party.

The confidentiality obligations with respect to Confidential Information under this Section 6 shall remain in effect during the term of this Agreement and for a period totaling three (3) years after termination of this Agreement.

7. NON-DISPARAGEMENT. Neither Company nor Simpl shall, directly or indirectly, make any public statement or representation regarding its or his/her opinion of the other(s), or its Affiliates or their products in which such person disparages such persons or products, other than statements contained in and relevant to any claim or defense contained in a pleading filed in connection with a court, arbitral or mediation proceeding between the Company and Simpl to enforce or judicially construe this Agreement or otherwise involving the Parties hereto, or which may be required by law.

8. LIMITATION OF LIABILITY. Simpl shall not, in any event, be liable for any damage, theft or other loss to the Company Goods, materials, or other property in the possession or control of Simpl except to the extent that such damage, theft, or loss results from (a) Simpl’s failure to take commercially reasonable steps to prevent any such damage, theft or loss or (b) the negligence or the intentional wrongful acts or omissions of Simpl.

EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER SIMPL NOR ITS REPRESENTATIVES IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY COMPANY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY SIMPL/ OR COULD HAVE BEEN REASONABLY FORESEEN BY SIMPL, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL SIMPL’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO SIMPL’S EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). SIMPL MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM SIMPL.

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9. INDEMNIFICATION.
CLIENT AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS SIMPL FULFILLMENT, ITS OFFICERS, DIRECTORS, AND EMPLOYEES AGAINST ALL THIRD PARTY DAMAGES, LIABILITIES, OR COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND DEFENSE COSTS, TO THE EXTENT (A) CAUSED BY CLIENT’S NEGLIGENT ACTS IN CONNECTION WITH THE SERVICES AND THE ACTS OF ITS CONTRACTORS, SUBCONTRACTORS OR EMPLOYEES OR ANYONE FOR WHOM CLIENT IS LEGALLY LIABLE AND (B) ARISING FROM THE BREACH BY CLIENT OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT. SIMPL FULFILLMENT AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS CLIENT, ITS OFFICERS, DIRECTORS, AND EMPLOYEES AGAINST ALL THIRD PARTY DAMAGES, LIABILITIES, OR COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND DEFENSE COSTS, TO THE EXTENT (A) CAUSED BY SIMPL FULFILLMENT’S NEGLIGENT ACTS IN CONNECTION WITH THE SERVICES AND THE ACTS OF ITS CONTRACTORS, SUBCONTRACTORS OR EMPLOYEES OR ANYONE FOR WHOM THE SIMPL FULFILLMENT IS LEGALLY LIABLE AND (B) ARISING FROM THE BREACH BY SIMPL FULFILLMENT OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT.

The indemnified party shall: (i) promptly notify the indemnifying party in writing of any claim (failure to provide such prompt notice shall only affect the rights of an indemnified party to the extent that such failure has a prejudicial effect on the defenses or other rights available to the indemnifying party); (ii) allow the indemnifying party to have sole control of the defense and all related settlement negotiations (the indemnified party may retain independent counsel at its own expense); and (iii) provide the indemnifying party with the information, authority, and assistance necessary to perform the indemnifying party’s obligations under this.

10. GENERAL PROVISIONS.

A. Assignability of Agreement. Company may not assign this Agreement or any rights hereunder without the express written consent of Simpl Assignment. Notwithstanding the foregoing, Company may assign or transfer all of its rights and obligations under this Agreement with Simpl’s consent, to (a) such party’s Affiliate or (b) any successor entity pursuant to a merger, acquisition, spin-off or other corporate reorganization, a change of control, or the sale of all or substantially all of its assets.
 
B. Force Majeure. If the performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party is unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, pandemic, fire, explosion, vandalism, earthquake, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lockouts, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
 
C. Entire Agreement. This Agreement contains the entire agreement of the Parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
 
D. Severability. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
 
E. Amendment. This Agreement may be modified or amended in writing, if the writing is signed by the party obligated under the amendment.
 
F. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to any conflict of law principles.

G. Notice. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
 
H. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.

I. Counterparts and Electronic Contracting.  This Agreement may be executed in counterparts, and, if so executed, each such counterpart shall have the force and effect of an original for all purposes.  This Agreement may be executed by facsimile, .pdf, any electronic signature complying with the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229, or any signature complying with applicable analog state laws (e.g., Uniform Electronic Transactions Act(s)).

J. Attorneys’ Fees and Costs. In the event of a legal dispute, the prevailing Party shall have the right to collect from non-prevailing Party any reasonable costs and/or attorneys’ fees incurred in enforcing this Agreement.

K. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address designated from time to time. Unless otherwise agreed herein, all Notices to Company must be delivered by email listed in the Account, personal delivery, nationally recognized overnight courier, or certified or registered mail to the address listed in the Account. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.  Notwithstanding the foregoing, legal notices to Simpl must be sent by postal mail to: Simpl Fulfillment, LLC., Attention: Legal, 3714 Bluestein Drive Suite 700 Austin, TX 78721

L. Third-Party Software. Any third-party software application Company that Simpl uses, to perform the Services, or related to the Services (“Third Party Software”) is solely subject to any third-party software provider software licenses. Simpl does not own, control or have any responsibility or liability for any Third-Party Software.

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M. Prep and Shipping Times. Orders will be shipped at the following times:

• Orders with less than 500 units will go out within 1-3 business days
• Orders with less than 2000 units will go out within 5-7 business days
• Orders larger than 2000 units will go out on a case-by-case basis and your account manager can assist with a timeline for these.
  

• Simpl makes no guarantee of fulfillment speeds

N. As-Is. Simpl’s obligations under this agreement and the attached Exhibits (including the use of Simpl’s technology) are provided on an “as is' and “as available” basis. Simpl expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement for the services, Simpl’s website, and any third-party services. The use of services, Simpl website, or third-party services is at Company’s risk.

P. No Continuous Access. Simpl does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of Simpl’s control. However, Simpl will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner, but Simpl makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.

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