Terms of Use Agreement

STANDARD TERMS OF SERVICE
Client acknowledges and accepts that RH reserves the right to change or add to these Standard Terms of Service at any time, in its sole discretion.  Client acknowledges and accepts that it will be bound by such modifications to these Terms of Service so long as RH has sent notice to Client of such modifications and so long as Client does not object to such modifications within thirty (30) days of RH’s notice thereof. 

‍

1. DEFINITIONS

‍

1.1 “Client Data” means any and all information, data, materials, works, expressions, documentation, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Client for processing by or through the Services, or (b) collected, downloaded, or otherwise received by RH for or from Client or third party pursuant to this Agreement or at the written request or instruction of Client.  Client Data shall include, without limitation, all personally identifiable information of Client’s customers, back up, invoices, shipment reports and packing slips, or shipment information, any Client Data generated by or through the RH Platform, Services, or Technology, FBA Inbound Shipment information, Discrepancy information, and any other documentation of Client’s shipments and products. 

‍

For the avoidance of doubt, Client Data does not include any Technology or Resultant Data. 

‍

1.2 “Confidential Information” means all information regarding each party which is confidential in nature, including information regarding products, websites, services, software and software source documents, processes, methodologies, clients, trade secrets, intellectual property, inventions, techniques, programs, schematics, data, formulas, design documents or information, product strategy, marketing and advertising plans and strategies, forecasts, and pricing data or coding, and in addition, all other information which is identified as confidential by the disclosing party or by its nature ought to be treated as confidential by the receiving party.

‍

1.3 “Discrepancies” or “Discrepancy” means when the quantity of Client’s products shipped (as shown in Client Data) is greater than the quantity of Client’s products that Amazon acknowledges it has received.

‍

1.4 “Documentation” means all materials, including drawings, diagrams, specifications, product descriptions, manuals and instructions that RH provides (either in digital or hard copy form) to assist and define Client’s use of the Services and progress and results of the Services. 

‍

1.5 “FBA Inbound Shipments” means the shipments of inventory sent by Client to Amazon at Amazon’s fulfillment centers to be fulfilled by Amazon. 

‍

1.6 “Fees” means—unless otherwise stated in any SOW—the monies due from Client to RH in the amount of twenty percent (20%) of all reimbursements, payments, and credits obtained for the Client by or through the Services. “Additional Fees” means the monies due from Client to RH for any additional work requested by Client beyond the scope set forth in the Agreement at an hourly rate set forth in a written addendum signed by both RH and Client.

‍

1.7 “RH” means Refund Hawk LLC or any successor or assignee, subcontractor, independent contractor performing the Services, partner, or joint venturer of RH. “RH” also means a third-party intermediary retained by or working with or on behalf of RH, to manage payment processing of Fees and Additional Fees. 

‍

1.8 “RH Platform” or “Platform” means the dashboard provided by RH through the Technology. 

‍

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

‍

1.10 “License” means the licenses expressly granted herein by RH to Client to use the Services, RH Platform, or Technology. 

‍

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

‍

1.12 “Product Information” means all information and materials specifically related to Client products that Client provides or makes available to RH for performance of the Services, including without limitation image files, text, templates, product descriptions, prices, Client Marks, URLs and any other related information. 

‍

1.13 “Representatives” collectively means the affiliates, directors, officers, shareholders, members, employees, subcontractors, permitted assigns and agents of a party. 

‍

1.14 “Resultant Data” means transactional data and information derived from or otherwise related to Client Data and/or Client’s use of the Services, by aggregation, algorithmic manipulation, or other anonymized processing. 

‍

1.15 “Security Obligation” means responsibility for maintaining the security of account login information (username and password, and any other information used to access Client’s account). 

‍

1.16 “Service” or “Services” means the services to be provided by RH.  Generally speaking, the Services include investigating and executing reimbursement opportunities.  The Services include RH’s maintenance of the RH Platform and Technology and Client’s access thereto.  As part of the Services, RH will identify, investigate, draft and file, and manage claims (“Claims”) to Amazon.com and its affiliates pertaining to, but not limited to, the following commonly arising issues for Amazon sellers like Client: 

‍

i. Units lost, damaged, destroyed, 

‍

ii. Returns without twenty percent (20%) restocking fee, 

‍

iii. Credited more than charged, 

‍

iv. Refunded but never returned, 

‍

v. Commission wrongfully charged, 

‍

vi. Replacements over forty-five (45) days, 

‍

vii. Stock deducted after shipment closed,

‍

viii. Wrong item returned and scanned, 

‍

ix. Chargeback not refunded, 

‍

x. Returns damaged by carrier or Amazon.com,

‍

xi. Discrepancies, as defined above. 

‍

Additional services, including any new features provided by RH which augment or enhance the current Service, Technology, and/or RH Platform, including the release of new tools or resources, updates and upgrades by RH, may result in Additional Fees to Client which shall be due and payable by the Client pursuant to a mutually executed modification or addendum to the Agreement.

‍

1.17 “Technology” means, collectively, the RH Platform and Services, Documentation, functionality, URLs and integrations that enable Client access to the RH Platform, Services, analytics, transaction information, and any and all other information, data, documents, materials, works and other content, devices, methods, tools processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports that are provided or used by RH in connection with the Services and any software or technology incorporated in or made available by RH through the RH Platform or Services, expressly excluding Client Data, Product Information, and Client Marks. 

‍

1.18 “You” and “Your” means Client.

‍

2. LICENSE / RESTRICTIONS / INTELLECTUAL PROPERTY / DATA

‍

2.1. License. RH grants the Client a limited, non-transferrable, non-exclusive license to use and access the Service solely for Client’s business purposes subject to the terms, obligations, restrictions, and limitations set forth in the Agreement. All rights not expressly granted to Client in the Agreement are reserved and retained by RH. 

‍

2.2 License Limitations and Restrictions. 

‍

(a) Prohibited Actions. Client shall not: 

‍

(i) except as expressly permitted by this Agreement, copy, reproduce, distribute, publish, display, post or transmit the Service, the RH Platform, or the Technology, in whole or in part; 

‍

(ii) license, sub-license, sell, resell, rent, lease, transfer, assign, distribute or otherwise exploit the terms of this License or make the Service, the RH Platform, or the Technology available for access or use by any persons or entities other than Client; 

‍

(iii) use the Service, the RH Platform, or the Technology to process any data unlawfully, in violation of the Agreement, or for any third party; 

‍

(iv) allow any unauthorized access to, or use of, the Service, the RH Platform, or the Technology; 

‍

(v) copy, translate, transmit, post, create a derivative work of, modify, adapt, download, sell, publish, decipher, decompile, reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to determine any programming or the source code associated with the Service, the RH Platform, or the Technology; 

‍

(vi) use data mining, robots, crawlers, or spiders, or similar data gathering and extraction tools; 

‍

(vii) frame or utilize framing techniques to enclose any RH Marks or other Intellectual Property (including images, text, page layout, or form) of RH; 

‍

(viii) use any meta tags or any other "hidden text" utilizing RH’s name or Marks; 

‍

(ix) use the Service, the RH Platform, or the Technology in an unlawful manner including, but not limited to, the infringement of any third party or RH Intellectual Property or use the Service, the RH Platform, or the Technology in breach of any third party’s privacy rights; 

‍

(x) use the Service, the RH Platform, or the Technology for spamming or sending any unsolicited emails or information to any person or entity; 

‍

(xi) use the Service, the RH Platform, or the Technology in a manner that interferes with or disrupts the provision of the Service by RH to third parties; 

‍

(xii) access or use the Service, the RH Platform, or the Technology to circumvent or exceed the Services account limitations or requirements, or access or use the Service, the RH Platform, or the Technology by any means other than through the interfaces that are provided by RH; 

‍

(xiii) use the Service, the RH Platform, or the Technology to upload, store or transmit any malicious code or other similar harmful software such as viruses, malware or trojan horses; 

‍

(xiv) use the Service, the RH Platform, or the Technology to make any transmission, display or publication of any material which is of a defamatory, offensive, abusive or menacing character to any other person; 

‍

(xv) engage in or permit any unauthorized distribution of any software or programming associated with the Service including, without limitation, placing RH’s software or programming on any physical or virtual servers or mediums; 

‍

(xvi) use the Service, the RH Platform, or the Technology for any transmission, display or publication of any material in breach of any law dealing with privacy or data protection in any jurisdiction; 

‍

(xvii) remove or obscure any copyright, patent, trademark, trade secret or similar proprietary notice affixed to any Technology, the Service, or the RH Platform; 

‍

(xviii) use the Service, RH Platform, or Technology for the purpose of developing a product or service, or helping another develop a product or service, whether or not it is competitive with the Service, RH Platform or Technology; 

‍

(xix) use the Service, RH Platform, or Technology for the purpose of bringing an Intellectual Property claim against RH; 

‍

(xx) cause the breach of or interfere with RH’s agreements with third parties, including but not limited to, the Amazon Marketplace Developer Agreement; or 

‍

(xxi) use or allow others to use, the Technology, the Service, or the RH Platform for any purpose not expressly authorized in the Agreement. 

‍

(b) Notification of Unauthorized or Breaching Use. Client must notify RH immediately in the event Client becomes aware of any actual or attempted unauthorized access to or use of the Service, RH Platform, or Technology in breach of this Agreement or otherwise. 

‍

(c) Technology; Source Code. Except as expressly stated in the Agreement, no licenses or rights are granted by RH and nothing in the Agreement implies any license to Client in the Technology, including, without limitation, the source code. The source code will not be accessible to Client. Client agrees that the underlying structure, sequence, organization and source code of the Technology are valuable trade secrets of RH, are confidential information, and shall remain strictly confidential.

‍

2.3. Intellectual Property Ownership. 

‍

(a) Client’s Rights. Client owns all right, title and interest in the Product Information, Client Data, and Client Marks. Client acknowledges and agrees that, in connection with the provision of the Services, RH may store and maintain Client Data and Product Information for a period of time consistent with RH’s standard business practices for the Services. Client grants RH a limited, revocable, non-exclusive, non-transferable (except in connection with an assignment of this Agreement), sublicensable license to use, access, store and process the Client Data and Product Information to the extent necessary to provide the Services and otherwise fulfill its rights and obligations under this Agreement. Client grants RH a royalty-free, worldwide, perpetual, irrevocable, right to use, modify, distribute, publish, display, and incorporate into the Services any suggestions or feedback provided by Client related to the operation or functionality of the Services. Nothing in this Agreement is intended to prevent RH from generating and using the Technology, Service, or RH Platform for purposes of providing, measuring, improving, and marketing RH’s products and services; provided, however, that RH shall not disclose to any third party, unless compelled by law or with Client’s permission, any information that is identifiable as Client Data. And notwithstanding anything to the contrary herein, RH may, for any purpose chosen in RH’s sole discretion, compile, use, sell, license, rent or otherwise disclose to any third party, and retain in perpetuity, Resultant Data and Client shall not have any rights whatsoever with respect to any materials that result from such use of Resultant Data. 

‍

(b) RH’s Rights. All rights, title and interest in and to the Technology, Service, RH Platform, RH Marks, and Resultant Data (including without limitation all Intellectual Property rights in the Technology, Service, RH Platform, RH Marks, and Resultant Data and all modifications, extensions, customizations, scripts or other derivative works of thereof provided or developed by RH) are owned exclusively by RH. The rights granted to Client do not convey any rights, express or implied, or ownership to the Technology, Service, RH Platform, RH Marks, and Resultant Data or any Intellectual Property rights thereto. 

‍

2.4 Documentation Licenses. RH grants Client the non-exclusive right to use the Documentation solely in conjunction with Client’s use of the Service, Technology, and RH Platform during the term of this Agreement. RH and any applicable third parties reserve all rights in their respective Documentation. 

‍

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

‍

3. SERVICES AND TERMS

‍

3.1 Access, Monitoring, Removal. RH may access, monitor, remove content within, or disable Client access to the Technology, RH Platform and/or Services, or any part thereof, if: (a) RH, in its sole discretion, believes it may incur liability because of Client Data or the Product Information, (b) RH is required to do so by law, government order or other legal process, (c) RH determines in its sole discretion that it is necessary to enforce the terms of the Agreement, (d) RH, in its sole discretion, believes it is necessary to do so to support, manage, improve and protect the integrity of the Service, RH Platform, or Technology, (e) RH, in its sole discretion, believes it is necessary to prevent illegal activity, uploading of virus infected files or questionable material, or (f) Client breaches the Agreement. RH shall have no liability to Client nor to any third party for any disabling pursuant to this section of Client’s access and Client shall remain liable for Fees and Additional Fees during such disabling. 

‍

3.2 Changes to Service. In its sole discretion, RH may discontinue offering the Service, RH Platform, or Technology, in whole or in part, temporarily suspend the RH Platform, Technology, or any Services, or any part thereof, for maintenance from time to time, or modify any design, layout, features, functionality, tools or content of the Service, RH Platform, and/or Technology, at any time, for any reason.  If any discontinuance, modification, or temporary suspension of a material part of the Services, RH Platform, and/or Technology materially reduces functionality and materially and adversely impacts Client’s substantive use of the RH Platform, Technology, or Services for a significant period of time, Client’s sole and exclusive remedy is to terminate the Agreement pursuant to Section 6.3 hereof. Any new features provided by RH which augment or enhance the current Service, Technology, and/or RH Platform, including the release of new tools or resources, updates and upgrades by RH, may result in Additional Fees to Client which shall be due and payable by the Client pursuant to a mutually executed modification or addendum to the Agreement. 

‍

3.3. Client Responsibility for Users. Clients are responsible for ensuring that their users comply with the terms of this Agreement and Client is liable for breaches of the Agreement by their users. 

‍

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

‍

4. CLIENT OBLIGATIONS

‍

4.1. Product Information and Client Data. Client is solely responsible for the accuracy and completeness of Client Data and Product Information. 

‍

4.2 Client’s Privacy Obligations. As a condition to use the Service, Technology, and/or RH Platform, Client must: 

‍

(a) have and enforce a privacy policy that complies with all applicable laws, rules and regulations, foreign law, treaties, and conventions, including without limitation the treatment of all personal information in accordance with Federal and state laws of the United States, and European and non-U.S. governing authorities to the extent that Client sells to international marketplaces or otherwise is subject to the laws of those authorities; 

‍

(b) secure Client Data and not allow Client Data to be disclosed except in accordance with Client’s privacy policy and all applicable laws, rules and regulations, foreign law, treaties, and conventions, and at least as restrictive as industry standards, but no less than reasonable care; and (c) ensure that Client’s privacy statement discloses the use of “cookies” or similar technologies that may be used by Client or a third party (including RH) to track browsing and purchasing habits, and such use of “cookies” complies with all applicable laws, rules and regulations, foreign law, treaties, and conventions, including any opt in and opt out requirement. 

‍

4.3 Security Obligations. Client is responsible for maintaining its Security Obligation. Client must notify RH immediately in the event of loss of Client’s username or password. Client must report any security breaches promptly to RH. 

‍

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

‍

4.5 Client Usage. Client shall use commercially reasonable efforts to perform all acts and to make, execute and deliver all documents, data, and access credentials that Client needs to perform or provide for RH to provide the Services. 

‍

5. FEES

‍

5.1 Fee Payment. RH will send Client an invoice for Fees and Additional Fees, defined above, at the end of each month of the term of this Agreement.  Payment of Fees and Additional Fees are due within thirty (30) days of Client’s receipt of such invoice. If Client fails to timely make payment, RH may temporarily disable the Client’s access to the Technology, Service and/or RH Platform until full payment is made. Overdue payments will accrue interest at a rate of 1.5% per month, or, if 1.5% is unlawful, the highest interest rate allowed by law.

‍

5.2 Fee Changes. In its sole discretion, RH reserves the right to modify its Fees or Additional Fees in any manner (Client to be advised by electronic communication, such as email). To avoid liability for any such modified Fees or Additional Fees, Client must terminate the Agreement pursuant to 6.3 below within thirty (30) days after the notification of such modification of Fees or Additional Fees.

‍

5.3 Effect of Breach. A failure to pay any Fees or Additional Fees when due is a material breach of this Agreement. This section shall survive termination of the Agreement. 

‍

6. TERM AND TERMINATION

‍

6.1 Term. This Agreement shall commence on the Effective date and continue until terminated. 

‍

6.2 Termination by RH for Cause. RH may terminate this Agreement with cause immediately upon Client’s material breach of any provision of this Agreement. 

‍

6.3. Termination without Cause.  Either party may terminate the Agreement, upon written notice, without cause, upon thirty (30) days’ written notice.  During this thirty (30) day window, the Services will continue to be rendered and Client’s access to the RH Platform will be maintained.

6.4.  Post-Termination Fees.  Client shall pay the Fees on all successful Claims, whether those Claims result in reimbursements, payments, and credits before or after the termination date, so long as the Claim was submitted prior to the termination date.

‍

6.5. Effect of Expiration or Termination. Upon expiration or termination of the Agreement, the License granted to Client under this Agreement shall terminate immediately. Following expiration or termination of this Agreement or Client’s account, RH may deactivate the applicable Client’s account and delete any data, including Client Data and Product Information, associated therewith. Prior to such deactivation, Client may export the Client Data within the time provided by RH, in RH’s sole discretion.

‍

6.6. Any provision or partial provision which by its nature would reasonably survive the termination of the Agreement shall survive termination of this Agreement.

‍

7. PARTIES’ REPRESENTATIONS AND WARRANTIES

‍

7.1 DISCLAIMER OF WARRANTIES BY RH. THE SERVICE (INCLUDING ANY SOFTWARE AND DOCUMENTATION), THE TECHNOLOGY, AND THE RH PLATFORM, AND EACH AND EVERY PART THEREOF, IS PROVIDED HEREUNDER “AS IS” AND “AS AVAILABLE.” RH MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE TECHNOLOGY, SERVICE, RH PLATFORM, OR RH MARKS OR THE RESULT OR EXPECTED RESULT OF THE TECHNOLOGY, SERVICE, OR RH PLATFORM. 

‍

7.2 Client represents and warrants that: 

‍

(a) the Product Information and Client Data (i) is owned (or validly licensed for all uses required under the Agreement) by Client or is in the public domain, (ii) does not constitute defamation, libel, or obscenity, (iii) does not result in any consumer fraud, product liability, or breach of contract, or cause injury to any third party, (iv) does not contain, and will not introduce into the Technology, Service and/or the RH Platform, any viruses, Trojan horses, worms, spyware, time bombs or other forms of malware, malicious code or computer programming routines which may interfere with or disrupt the Services and/or RH Platform, or any part thereof, (v) is accurate, current and complete, (vi) Client's Data is not misleading or false, (vii) does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy rights of any third party, and (viii) Client’s Data does not contain any protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or similar federal or state laws, rules or regulations or other medical or health information identifiable with a particular individual; 

‍

(b) it will comply with all applicable laws, rules and regulations, foreign law, treaties, and conventions as updated from time to time related to Client’s performance of its obligations under the Agreement and activities that Client undertakes in connection with its use of the Technology, RH Platform, and/or Services including without limitation those governing the online sale of goods and services, those governing anti-bribery and anti-corruption, including without limitation the U.K. Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), respectively, and U.S. export controls and trade sanctions and economic embargoes; and 

‍

(c) it will not engage in the activities prohibited in this Agreement. 

‍

8. CLIENT LIABILITY, ASSUMED RISKS, AND RH LIABILITY

‍

8.1 RH is not responsible for the acts, services, or content of persons or entities other than RH (including but not limited to Amazon) and the effects of those acts, services, or content on Client, the Services, the RH Platform, or the Technology.

‍

8.2 RH has no responsibility for the quality or availability of goods or services provided by Client, Client’s compliance with Amazon’s terms and conditions, verification of Client’s Data or Product Information, or the sufficiency of any documentation generated in reliance on Client’s Data and Product Information. To be clear, RH will not review Client Data for completeness, accuracy, internal consistency, or otherwise. 

‍

8.3 RH shall not, other than in instances of gross negligence, be liable for any loss, delay, or interception of Client Data whether that be through general use, hacking or server failure, or any loss, corruption, hacking or failure of the daily backups or otherwise. Client acknowledges that: (a) the technical processing and transmission of Client Data is fundamentally necessary to use of the Service; (b) Client Data will be subject to transmission over the Internet, and over various networks, only part of which may be owned and/or operated by RH; and (c) Client acknowledges that Client Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. 

‍

8.4 RH shall not be liable for any loss or damage caused by Client’s failure to comply with the Security Obligation. Client is responsible for any breaches of its Security Obligations or of security that occur through Client’s access or login credentials including as a result of Client’s sharing such access or login credentials, or failure by Client to adequately safeguard the same. 

‍

8.5 RH shall not be liable for any loss, damage, penalties, fees sustained (or threatened to be sustained) by, or actions taken or claims made against Client or any third party, arising, directly or indirectly, from any suspension or shut down by Amazon or any third party of Client’s accounts, sites, platforms, services or other business.  RH shall not be required to indemnify Client or any third party for any loss, damage, or claims arising, directly or indirectly, from any suspension or shut down as set forth in this Section 8.5. 

‍

9. LIABILITY LIMITATIONS

‍

UNDER NO CIRCUMSTANCES WILL RH BE LIABLE FOR: LOSS OF REVENUE; LOSS OF DATA; INCOMPLETE, INACCURATE, MISLEADING, FALSE OR FRAUDULENT, UNTIMELY, OR INSUFFICIENT CLIENT DATA, PRODUCT INFORMATION, OR OTHER DOCUMENTATION OR OTHER INFORMATION PROVIDED BY CLIENT; LOSSES FROM ANY SUSPENSION OR SHUT DOWN OF CLIENT’S ACCOUNT, WEBSITE, PLATFORM, SERVICES, OR OTHER BUSINESS WITH AMAZON OR ANY THIRD PARTY; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE, OR CORRUPTION OF DATA, OR CONSEQUENTIAL OR INDIRECT LOSS OR SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR DAMAGE ALREADY LISTED), WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY CLIENT OR ANY THIRD PARTY ARISING OUT OF ANY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR OTHER TERM, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. RH IS NOT LIABLE TO CLIENT OR ANY THIRD PARTY FOR THE FAILURE OF A PERSON TO ENTER INTO A TRANSACTION OR OBTAIN ANY PARTICULAR RESULT BY MEANS OF CLIENT’S USE OF THE RH PLATFORM, TECHNOLOGY, OR THE SERVICES. 

‍

10. LIABILITY CAP

‍

NOTWITHSTANDING THE FORM OR NATURE (E.G., CONTRACT, TORT, STATUTORY, COMMON LAW, DIRECT LIABILITY OR INDEMNIFICATION, INFRINGEMENT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY CLIENT OR THIRD PARTY, IN NO EVENT WILL RH BE LIABLE FOR DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES TO CLIENT AND/OR THIRD PARTIES, THAT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS PAID OR PAYABLE TO RH BY CLIENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES TO CLIENT AND/OR THIRD PARTIES (“LIABILITY CAP”). 

‍

11. INDEMNIFICATION

‍

11.1. Client’s Indemnification. Subject to Section 11.3 (Requirements of Indemnification), Client shall indemnify, defend and hold harmless RH and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including attorney’s fees), of whatever type or nature incurred by RH by reason of a third party claim or assertion brought against RH or its Representatives arising out of or related to: (a) Client’s failure to comply with or breach of the Agreement, (b) Client Data, Client Marks, ad content, and Product Information or Client’s products listed, supplied or sold, including, without limitation, Intellectual Property infringement claims and product liability claims, and any misleading, false, inaccurate, fraudulent or incomplete Client Data, Product Information, or other documentation or information supplied by Client, or any failure by Client to provide sufficient or timely, accurate and complete Client Data, Product Information, or other documentation, (c) any negligence, recklessness, or willful misconduct of Client or its Representatives, (d) the death or bodily injury of any agent, employee, Client, business invitee, or business visitor or other person caused by Your conduct, or that of Your agent or employee; and/or (e) asserted by a third party against You, resulting from Your acts or omissions or those of Your employees, agents, contractors, successors and permitted assigns. RH reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section 11.1, in which case You agree to cooperate with any requests to assist RH’s defense of such matter and You shall reimburse RH or pay in advance, as requested in RH’s sole discretion, all costs and expenses (including attorney’s fees). 

‍

11.2. RH Indemnification. Unless RH has no liability either otherwise or pursuant to disclaimers in this Agreement including, but not limited to, Sections 7.1, 8 and 9 and subject to Section 11.3 (Requirements of Indemnification), RH shall indemnify, defend and hold harmless Client and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) of whatever type or nature which are incurred by Client by reason of a third party claim or assertion brought against Client and/or its Representatives, arising out of or related to any gross negligence or willful misconduct of RH or its Representatives in the course of providing the Services to Client. 

‍

11.3. Requirements of Indemnification. In order for the indemnification obligations of the indemnifying parties to apply, the indemnified parties must promptly provide the indemnifying party with notice in writing of any claim, promptly tender the control of the defense and settlement of any claim to the indemnifying party (at the indemnifying party’s expense and with indemnifying party’s choice of counsel), and cooperate fully with the indemnifying party (at the indemnifying party’s request and expense) in defending or settling the claim, including, without limitation, providing any information or materials necessary for the defense. The indemnifying party shall have no liability for any settlement made by an indemnified party without the indemnifying party’s prior written consent, which may not be unreasonably withheld. The indemnifying party will not enter into any settlement or compromise of any claim without the indemnified party’s prior consent if the settlement would require admission of fault or payment by the indemnified party. 

‍

12. CONFIDENTIALITY.

‍

12.1.  Confidentiality Terms.  RH and Client each agree to treat as confidential all Confidential Information of the other party, not to use such Confidential Information except as set forth herein and not to disclose such Confidential Information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other. Notwithstanding the foregoing, neither party hereto shall have liability to the other with regard to any Confidential Information of the other which: (i) was in the public domain at the time it was disclosed or enters the public domain through no fault of the receiver; (ii) was known to the receiver, without restriction, at the time of disclosure as shown by the files of the receiver in existence at the time of disclosure; (iii) is disclosed with the prior, written approval of the discloser; (iv) was independently developed by the receiver without any use of the Confidential Information; (v) becomes known to the receiver, without restriction, from a source other than the discloser, without breach of this Agreement by receiver; or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body, provided, however, that the receiver shall provide prompt notice thereof to enable the discloser to seek a protective order to otherwise prevent such disclosure. Neither party shall disclose, advertise or publish the terms and conditions of this Agreement without the prior written consent of the other party.

‍

13. GENERAL PROVISIONS

‍

13.1 Assignment. Client may not assign the Agreement without RH’s prior written consent. 

‍

13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create any joint venture, partnership, agency or employment relationship between the parties. 

‍

13.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or collateral negotiations, proposals, agreements and understandings, whether oral or written, relating to the subject matter of the Agreement. Any representation, warranty, course of dealing or trade usage not expressly stated in the Agreement shall not be binding. Except as otherwise stated in the Agreement, any amendments to the Agreement must be in writing and executed by the parties. To the extent the terms of a subsequent writing signed by the parties’ conflict with the terms of the Agreement, the terms of the subsequent writing control. 

‍

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

‍

13.5 No Waiver. The failure of either party at any time to enforce or require performance of any provision shall not waive or affect such party’s right to enforce any such provision at a later time. 

‍

13.6 No Reliance. Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees and/or assurances of the other party that are NOT otherwise expressly contained in the Agreement. 

‍

13.7 Notice. Except as otherwise explicitly provided in the Agreement, any notice required or permitted by the Agreement shall be in writing and deemed delivered if delivered by email.  The notice will be deemed made upon response of receipt from the other party or three (3) business days after the email is sent, whichever comes first. Notices must be sent to the contacts and addresses listed on page 1.

‍

13.8. Governing Law and Dispute Resolution. The parties acknowledge and agree that this Agreement has been entered into in and shall be governed by and construed in accordance with the laws of the State of California. The parties agree that any dispute, claim or controversy arising out of or relating to this Agreement, including the scope, interpretation, breach or validity thereof, will be administered by Judicate West in San Diego, California, and resolved pursuant to this multi-step dispute resolution process.  As a first step, if the parties cannot resolve any dispute informally, the parties will engage in non-binding mediation, with each party equally splitting the costs of mediation. If the parties cannot agree on a mediator within fourteen (14) calendar days of requesting mediation, the mediator will be selected in accordance with the Judicate West rules. The mediation will be completed within thirty (30) days of the selection of the mediator unless otherwise agreed upon by the parties in writing. Should the mediation process fail to resolve any issue(s), the parties agree to submit any remaining dispute(s) to binding arbitration. Each party expressly waives its right to have any dispute, conflict or claim tried in any other manner or forum. The parties will equally split the fees of arbitration, and bear their own other fees, costs and expenses, including attorneys’ fees. The Judicate West Arbitration Rules & Procedures will govern the arbitration proceeding in effect at the time of the arbitration. Any award of the arbitrator shall grant all forms of damages, including punitive damages and injunctive relief, and may be entered as a judgment in any court having jurisdiction.

‍

CLIENT ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING ALL THE TERMS OF THIS AGREEMENT, INCLUDING THIS SECTION, THAT IT FULLY UNDERSTANDS THE TERMS HEREOF, THE CONTENT AND EFFECT, AND THAT IT VOLUNTARILY AND KNOWINGLY AGREES TO THE TERMS HEREOF, AND THAT IN THE EVENT OF ANY AMBIGUITY IN THIS AGREEMENT, ANY PRESUMPTION THAT SUCH AMBIGUITY SHALL BE CONSTRUED AGAINST THE DRAFTER OF THE AGREEMENT SHALL NOT APPLY TO THIS AGREEMENT. 

‍

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

‍

13.10 Captions. Section headings are for reference purposes only and in no way affect the meaning or interpretation of the Agreement. 

‍