Terms of Service

Last updated: January 11th, 2025

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

California
New Jersey
Toronto
Vancouver

Obligations of LCDSWAP.
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 method. LCDSWAP may change or require different payment methods at its reasonable discretion. LCDSWAP shall provide Client with at least fourteen (14) days written notice of any change to the required payment method. Notwithstanding the foregoing, LCDSWAP may require an immediate change to the payment method in the event of overdue invoices, payment default, excessive chargebacks, or elevated account risk.
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. Client agrees to provide a valid pre-authorized credit card to be kept on file by LCDSWAP (the “Credit Card”). Client authorizes LCDSWAP to charge the Credit Card for any amounts due under this Agreement, including without limitation invoices for Services, storage fees, carrier adjustments, chargebacks, penalties, deposits, and any other fees incurred in connection with the Services. LCDSWAP may charge the Credit Card in accordance with the billing and payment terms set out in this Agreement, including where automatic payment has been enabled by Client upon issuance of an invoice, or where an invoice has become due and remains unpaid. LCDSWAP may also charge the Credit Card in the following circumstances:
  1. when an invoice becomes due and remains unpaid;
  2. in accordance with any agreed billing cycle, including weekly billing cycles;
  3. for carrier adjustments, postage corrections, returns, address corrections, or other third-party charges incurred after shipment;
  4. for deposits, prepayments, or advance payments required under this Agreement;
  5. where LCDSWAP reasonably determines that advance payment is required due to overdue balances, payment default, excessive chargebacks, or elevated account risk.
  6. Client shall ensure that the Credit Card remains valid and on file for the duration of the Agreement and until all outstanding amounts owed to LCDSWAP are paid in full.
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 require advance payment or immediate payment prior to providing certain Services where reasonably necessary based on account history, outstanding balances, high shipping volume, carrier funding requirements, or other account-related risk factors. In such cases, LCDSWAP may require payment prior to performing the applicable Services and may suspend or delay Services until such payment is received.
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. Where Client has enabled automatic payment using a pre-authorized payment method on file, LCDSWAP may charge such payment method upon issuance of the invoice or in accordance with the applicable billing cycle. Where automatic payment is not enabled, invoices 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 3.3 LCDSWAP may amend the billing cycle at LCDSWAP’s reasonable discretion. LCDSWAP shall provide Client with at least fourteen (14) days written notice of any change to the billing cycle. Notwithstanding the foregoing, LCDSWAP may implement changes to the billing cycle immediately in the event of overdue invoices, payment default, excessive chargebacks, or elevated account risk.
4. If Client fails to pay any invoice when due, LCDSWAP shall provide written notice of such overdue amount. Client shall have three (3) calendar days from the date of such notice to cure the payment default. If the outstanding balance is not cured within such cure period, LCDSWAP may, in its sole discretion, suspend Services, charge the payment method on file, pause Client’s store integration, or exercise any other rights or remedies available under this Agreement.
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.
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.
8. LCDSWAP represents and warrants that it has the full corporate right, power and authority to enter into this Agreement and perform the Services contemplated herein, and that the Services provided under this Agreement shall be performed in accordance with applicable laws and regulations.
Term and Termination.
1. This Agreement will commence on the Effective Date and continue for an initial term of thirty (30) calendar days, unless earlier terminated in accordance with this Agreement.
2. This Agreement shall automatically renew for successive thirty (30) day terms unless terminated by either party in accordance with Section 6.3.
3. Client and LCDSWAP shall each have the right to terminate this Agreement in whole or in part, without cause, upon thirty (30) days prior written notice to the other 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, Section 6.4.3, or Section 6.4.4 shall result in immediate termination of this Agreement without any notice requirement.
6. The rights described in this Section are cumulative and in addition to any other rights or remedies available to LCDSWAP under this Agreement or at law. If Client fails to make payment of outstanding invoices in accordance with this Agreement, LCDSWAP may, after providing written notice to Client and allowing a reasonable opportunity to cure such non-payment, consolidate Client’s Property and prepare such inventory for return, removal, liquidation, or other commercially reasonable disposition of the inventory in order to recover amounts owed. Any labor or costs incurred by LCDSWAP in connection with consolidating or handling such inventory may be invoiced to Client.
7. Client agrees that it will not initiate any chargeback, payment reversal, or dispute with its credit card provider or financial institution without first providing written notice to LCDSWAP and allowing LCDSWAP a reasonable opportunity to review and resolve the matter. Any chargeback or payment dispute initiated by Client without first following this process shall constitute a breach of this Agreement, and Client shall remain responsible for all amounts owed to LCDSWAP, including any bank fees, administrative costs, legal fees, and collection costs incurred by LCDSWAP as a result of such chargeback or dispute.
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, Client shall ensure that all outstanding invoices owed to LCDSWAP are paid in full within seven (7) calendar days. If any amounts remain unpaid after such period, LCDSWAP may retain possession of Client’s Property until all outstanding balances are satisfied. If Client fails to pay the outstanding balance within a reasonable period after receiving written notice, LCDSWAP may exercise its rights under this Agreement, including the right to dispose of or liquidate Client’s Property in a commercially reasonable manner in order to recover amounts owed.
12. Upon termination of this Agreement, Client shall arrange for the removal of all Client’s Property from LCDSWAP’s Warehouse within twenty-one (21) calendar days, at Client’s sole expense. LCDSWAP may require that all outstanding invoices and charges be paid in full prior to releasing Client’s Property.
13. If Client fails to remove Client’s Property within the twenty-one (21) day period described in Section 6.12, LCDSWAP shall provide written notice requesting removal of such property. Client shall then have a reasonable period of time, as determined by LCDSWAP, to arrange for the removal of Client’s Property.
14. If Client fails to remove Client’s Property within the period specified in Section 6.13, LCDSWAP may, in its commercially reasonable discretion and without further liability to Client, dispose of, liquidate, or otherwise handle Client’s Property in order to recover any amounts owed to LCDSWAP, including storage fees, labor costs, and other expenses incurred in connection with the handling, storage, or disposition of such property. Any proceeds from such disposition may be applied toward Client’s outstanding balances, and Client shall remain responsible for any remaining unpaid amounts. LCDSWAP shall also have a first priority warehouse lien and security interest in Client’s Property for all outstanding amounts owed under this Agreement, including storage fees, labor costs, shipping costs, and any other charges. LCDSWAP may enforce such lien by disposing of or liquidating Client’s Property in a commercially reasonable manner.
15. If Client fails to make payments for a period greater than thirty (30) days, LCDSWAP may suspend Services and provide written notice requesting payment of all outstanding balances. If Client’s account remains unpaid for more than sixty (60) days after such notice, LCDSWAP may designate the account as an “Abandoned Account.” In the event an account is deemed an Abandoned Account, LCDSWAP may, in its commercially reasonable discretion, dispose of, liquidate, or otherwise handle Client’s Property in order to recover outstanding balances owed to LCDSWAP. Any proceeds from such liquidation may be applied toward Client’s outstanding balances, and Client shall remain responsible for any remaining unpaid amounts.
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.
Confidentiality.
1. Each party agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing, special pricing, operational procedures, business data, customer information, and other proprietary materials (“Confidential Information”), strictly confidential and shall not disclose any part of such Confidential Information to any third party except:
  1. to its employees, contractors, professional advisors, or representatives who require such information for the purposes of performing obligations under this Agreement and who are bound by confidentiality obligations; or
  2. for the purposes of seeking legal, accounting, or financial advice; or
  3. as required by law or court order.
2. Each party acknowledges that the Confidential Information described in this Agreement is valuable and confidential to the other party. Each party further agrees that the remedy at law for any breach of this Section may be inadequate and that the non-breaching party shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law or in equity. The provisions of this Section shall survive the expiration or 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”), solely as necessary to provide the Services and operate LCDSWAP’s business, including without limitation internal operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes, and (ii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing, benchmarking, and analytical purposes.
4. Client hereby grants LCDSWAP the non-exclusive right and license to utilize Client’s proprietary property, including without limitation Client’s logos, trademarks, reviews, pictures, and similar materials, on LCDSWAP’s website and other promotional materials for the purpose of identifying Client as a customer of LCDSWAP and promoting LCDSWAP’s services.
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.
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.
Indemnification.
1. 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, arising out of or relating to Client’s products, Client’s Property, Client’s business operations, or any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, including without limitation claims for personal injury, death, property damage, regulatory violations, product liability, or claims alleging that Client’s products or materials infringe the Intellectual Property Rights of any third party. This indemnification provision shall also include any action at law or equity initiated by a third party related to the ownership, authenticity, legality, or compliance of Client’s Property. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
2. LCDSWAP shall indemnify and hold Client harmless from and against any third-party claims, damages, losses, liabilities, costs and expenses, including reasonable legal fees, arising directly from LCDSWAP’s gross negligence or willful misconduct in the performance of the Services under this Agreement.
Insurance.
1. Client is responsible for obtaining and maintaining adequate insurance coverage for Client’s Property and all activities reasonably connected with this Agreement. Client acknowledges and agrees that LCDSWAP is not an insurer of Client’s Property. Except to the extent caused by LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for loss of or damage to Client’s Property, and Client’s recovery for any such loss or damage shall in all cases remain subject to the limitations of liability and other terms set out in this Agreement.
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 maintain adequate insurance coverage for Client’s Property and shall utilize such insurance for any losses, damages, or claims exceeding five thousand dollars ($5,000.00 USD). Client acknowledges and agrees that LCDSWAP is not an insurer of Client’s Property. Except to the extent directly caused by LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for loss of or damage to Client’s Property. In the event LCDSWAP is found liable for any loss or damage to Client’s Property, LCDSWAP’s liability shall not exceed five thousand dollars ($5,000 USD) in total, and shall remain subject to the limitations set out in Section 13.
Independence of LCDSWAP.
Limitation of Liability.
1. TTo the maximum extent permitted by applicable law, LCDSWAP shall not be liable to Client for any special, incidental, indirect, punitive, exemplary, or consequential damages, including without limitation lost profits, loss of revenue, loss of business, loss of goodwill, or loss of anticipated savings, arising out of or relating to this Agreement or the Services provided hereunder, whether arising in contract, tort, negligence, strict liability, or otherwise.
2. In all cases, LCDSWAP’s total cumulative liability arising out of or relating to this Agreement or the Services provided hereunder shall not exceed five thousand dollars ($5,000 USD).
3. This limitation shall apply regardless of the number of claims, events, or causes of action and shall constitute Client’s exclusive monetary remedy arising from or relating to this Agreement or the Services.
4. All liability is subject to LCDSWAP being found responsible in accordance with this Agreement.
5. LCDSWAP shall not be liable for any loss of or damage to Client’s Property except to the extent directly caused by LCDSWAP’s gross negligence or willful misconduct. Client acknowledges that LCDSWAP is not an insurer of Client’s Property and that Client remains solely responsible for maintaining appropriate insurance coverage for Client’s Property.
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, labor, child labor abuse, forced labor, 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.
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. Client shall not access or attend at the Warehouse without the prior written approval of LCDSWAP. All warehouse visits must be scheduled in advance with LCDSWAP management and are subject to LCDSWAP’s scheduling availability, security requirements, operational restrictions, and supervision by LCDSWAP personnel. Client acknowledges and agrees that unscheduled visits or attempts to access the Warehouse without prior approval are strictly prohibited.
3. Client acknowledges and agrees that, in limited or exceptional circumstances where LCDSWAP’s primary warehouse facilities temporarily lack sufficient capacity, LCDSWAP may store Client’s Property at an overflow or alternate warehouse location. Such overflow storage may include temporary storage facilities or third-party warehouse locations utilized by LCDSWAP. Client agrees that any such overflow or alternate storage location shall be deemed part of the “Warehouse” for the purposes of this Agreement.
4. LCDSWAP may, in its sole discretion, relocate Client’s Property to any warehouse facility operated, leased, or utilized by LCDSWAP. Such relocation may occur for operational, capacity, security, or business reasons. Where reasonably practicable, LCDSWAP will provide notice of any material change to the warehouse location; however, Client acknowledges that advance notice may not always be possible and agrees that such relocation shall not constitute a breach of this Agreement or give rise to any claim for damages, delay, or loss.
5. It is the Client’s sole responsibility to ensure that Client’s Property is received by LCDSWAP.
6. 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 SKUs and space used. LCDSWAP shall determine, in their sole discretion, the type of storage spot assigned to each SKU.
7. For the purposes of this Agreement, each unique variation of a product shall constitute a separate Stock Keeping Unit (“SKU”). Product variations include, without limitation, differences in size, color, style, packaging, bundle configuration, labeling, or any other distinguishing characteristic.
8. If Client maintains more than fifty (50) SKUs stored with LCDSWAP while shipping fewer than one thousand (1,000) orders in any calendar month, LCDSWAP reserves the right, in its sole discretion, to apply a surcharge to the monthly Account Management fee. The amount of such surcharge shall be determined by LCDSWAP based on operational complexity and support requirements.
9. Client further acknowledges and agrees that all pallets provided shall have a maximum footprint of forty (40) inches by forty-eight (48) inches and shall not exceed a height of fifty-five (55) inches, unless otherwise approved in writing by LCDSWAP. Any pallets which exceed these limits may be refused, reconfigured, or subject to additional handling and storage fees as determined by LCDSWAP. Client is required to request a quote for such fees directly from LCDSWAP prior to providing any pallet that exceeds the limits described herein, otherwise Client is not permitted to dispute the fee charged.
10. Client acknowledges and agrees that warehouse storage space is limited and allocated based on operational capacity and the volume of services provided to Client. If LCDSWAP reasonably determines that Client’s Property occupies an excessive number of pallets relative to the volume of orders processed for Client’s account, LCDSWAP reserves the right, in its sole discretion, to limit the number of pallets stored for Client or require Client to remove excess inventory from the Warehouse. Client shall comply with any such request within a reasonable period of time specified by LCDSWAP. Failure to comply may result in additional storage fees, suspension of services, or other actions permitted under this Agreement.
11. Client acknowledges and agrees that all shipments processed by LCDSWAP are transported by independent third-party carriers. LCDSWAP shall not be responsible or liable for any loss, damage, delay, misdelivery, theft, or other issue occurring during transportation after a shipment has been released to the carrier. Any claims relating to transportation loss, damage, or delay shall be pursued in accordance with the applicable carrier’s terms, conditions, and claims procedures. LCDSWAP may, at its discretion, assist Client in submitting such claims, but shall have no obligation to do so and shall bear no liability for the outcome of any carrier claim.
12. LCDSWAP may refuse to accept shipments in LCDSWAP’s sole discretion, with the reason to be provided to the Client.
13. Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to LCDSWAP. LCDSWAP shall not be liable for any delay, mistake, omission, loss, damage, or costs arising from inaccurate or incomplete information provided by Client. LCDSWAP shall have no responsibility to verify or determine the accuracy of any information provided by Client. LCDSWAP shall not be liable for any damages of any kind, including without limitation loss of income incurred by Client, arising from any delays, errors, or mistakes caused directly or indirectly by such inaccurate information.
14. 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.
15. 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.
16. LCDSWAP is not an insurer of Client’s Property. Except in cases of LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for any loss, damage, delay, or destruction of Client’s Property. Client acknowledges that loss or damage may occur due to causes beyond LCDSWAP’s control, including without limitation fire, flood, natural disaster, acts of God, theft, or actions of third parties. Client agrees that recovery for any such loss or damage shall be subject to the limitations of liability set out in this Agreement and that Client is responsible for maintaining appropriate insurance coverage for Client’s Property.
17. 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.
18. 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.
19. Client acknowledges that inventory counts maintained by LCDSWAP are based on information provided by Client and standard warehouse receiving and fulfillment processes. LCDSWAP shall not be responsible for discrepancies in inventory counts unless such discrepancies are directly caused by LCDSWAP’s gross negligence or willful misconduct. Client further acknowledges that reasonable inventory variances may occur in the ordinary course of warehouse operations and agrees that minor discrepancies shall not constitute a breach of this Agreement.
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 LCDSWAP performs fulfillment services based solely on the order information submitted by or on behalf of Client through the applicable platform or integration. LCDSWAP is not responsible for verifying the legitimacy or accuracy of any order, customer, or transaction. Client shall remain responsible for all fees and charges associated with Services performed by LCDSWAP in connection with any orders submitted by or on behalf of Client, including orders that are later canceled, disputed, returned, or determined to be fraudulent or unauthorized.
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.
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 all prior agreements, negotiations, and understandings, whether written or oral. LCDSWAP may amend this Agreement from time to time by providing Client with at least sixty (60) days written notice prior to such amendment becoming effective. If Client does not agree with the amendment, Client may terminate this Agreement by providing written notice prior to the effective date of the amendment. Continued use of the Services after the effective date of the amendment shall constitute acceptance of the updated terms.
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 may be updated from time to time by LCDSWAP as part of its ongoing operational procedures. LCDSWAP will use commercially reasonable efforts to notify Client of any material updates that may affect the Services.
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 labor 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. Collection Costs. If Client fails to pay any invoice when due, LCDSWAP may engage legal counsel or a collection agency to pursue payment of the outstanding balance. Client agrees to reimburse LCDSWAP for all reasonable costs incurred in connection with such collection efforts, including without limitation demand letters, legal notices, attorney fees, collection agency fees, administrative costs, and court filing fees, whether or not a legal proceeding is initiated.
12. Time. Time is of the essence in the performance of this Agreement.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.

Obligations of LCDSWAP.
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 method. LCDSWAP may change or require different payment methods at its reasonable discretion. LCDSWAP shall provide Client with at least fourteen (14) days written notice of any change to the required payment method. Notwithstanding the foregoing, LCDSWAP may require an immediate change to the payment method in the event of overdue invoices, payment default, excessive chargebacks, or elevated account risk.
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. Client agrees to provide a valid pre-authorized credit card to be kept on file by LCDSWAP (the “Credit Card”). Client authorizes LCDSWAP to charge the Credit Card for any amounts due under this Agreement, including without limitation invoices for Services, storage fees, carrier adjustments, chargebacks, penalties, deposits, and any other fees incurred in connection with the Services. LCDSWAP may charge the Credit Card in accordance with the billing and payment terms set out in this Agreement, including where automatic payment has been enabled by Client upon issuance of an invoice, or where an invoice has become due and remains unpaid. LCDSWAP may also charge the Credit Card in the following circumstances:
  1. when an invoice becomes due and remains unpaid;
  2. in accordance with any agreed billing cycle, including weekly billing cycles;
  3. for carrier adjustments, postage corrections, returns, address corrections, or other third-party charges incurred after shipment;
  4. for deposits, prepayments, or advance payments required under this Agreement;
  5. where LCDSWAP reasonably determines that advance payment is required due to overdue balances, payment default, excessive chargebacks, or elevated account risk.
  6. Client shall ensure that the Credit Card remains valid and on file for the duration of the Agreement and until all outstanding amounts owed to LCDSWAP are paid in full.
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 require advance payment or immediate payment prior to providing certain Services where reasonably necessary based on account history, outstanding balances, high shipping volume, carrier funding requirements, or other account-related risk factors. In such cases, LCDSWAP may require payment prior to performing the applicable Services and may suspend or delay Services until such payment is received.
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. Where Client has enabled automatic payment using a pre-authorized payment method on file, LCDSWAP may charge such payment method upon issuance of the invoice or in accordance with the applicable billing cycle. Where automatic payment is not enabled, invoices 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 3.3 LCDSWAP may amend the billing cycle at LCDSWAP’s reasonable discretion. LCDSWAP shall provide Client with at least fourteen (14) days written notice of any change to the billing cycle. Notwithstanding the foregoing, LCDSWAP may implement changes to the billing cycle immediately in the event of overdue invoices, payment default, excessive chargebacks, or elevated account risk.
4. If Client fails to pay any invoice when due, LCDSWAP shall provide written notice of such overdue amount. Client shall have three (3) calendar days from the date of such notice to cure the payment default. If the outstanding balance is not cured within such cure period, LCDSWAP may, in its sole discretion, suspend Services, charge the payment method on file, pause Client’s store integration, or exercise any other rights or remedies available under this Agreement.
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.
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.
8. LCDSWAP represents and warrants that it has the full corporate right, power and authority to enter into this Agreement and perform the Services contemplated herein, and that the Services provided under this Agreement shall be performed in accordance with applicable laws and regulations.
Term and Termination.
1. This Agreement will commence on the Effective Date and continue for an initial term of thirty (30) calendar days, unless earlier terminated in accordance with this Agreement.
2. This Agreement shall automatically renew for successive thirty (30) day terms unless terminated by either party in accordance with Section 6.3.
3. Client and LCDSWAP shall each have the right to terminate this Agreement in whole or in part, without cause, upon thirty (30) days prior written notice to the other 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, Section 6.4.3, or Section 6.4.4 shall result in immediate termination of this Agreement without any notice requirement.
6. The rights described in this Section are cumulative and in addition to any other rights or remedies available to LCDSWAP under this Agreement or at law. If Client fails to make payment of outstanding invoices in accordance with this Agreement, LCDSWAP may, after providing written notice to Client and allowing a reasonable opportunity to cure such non-payment, consolidate Client’s Property and prepare such inventory for return, removal, liquidation, or other commercially reasonable disposition of the inventory in order to recover amounts owed. Any labor or costs incurred by LCDSWAP in connection with consolidating or handling such inventory may be invoiced to Client.
7. Client agrees that it will not initiate any chargeback, payment reversal, or dispute with its credit card provider or financial institution without first providing written notice to LCDSWAP and allowing LCDSWAP a reasonable opportunity to review and resolve the matter. Any chargeback or payment dispute initiated by Client without first following this process shall constitute a breach of this Agreement, and Client shall remain responsible for all amounts owed to LCDSWAP, including any bank fees, administrative costs, legal fees, and collection costs incurred by LCDSWAP as a result of such chargeback or dispute.
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, Client shall ensure that all outstanding invoices owed to LCDSWAP are paid in full within seven (7) calendar days. If any amounts remain unpaid after such period, LCDSWAP may retain possession of Client’s Property until all outstanding balances are satisfied. If Client fails to pay the outstanding balance within a reasonable period after receiving written notice, LCDSWAP may exercise its rights under this Agreement, including the right to dispose of or liquidate Client’s Property in a commercially reasonable manner in order to recover amounts owed.
12. Upon termination of this Agreement, Client shall arrange for the removal of all Client’s Property from LCDSWAP’s Warehouse within twenty-one (21) calendar days, at Client’s sole expense. LCDSWAP may require that all outstanding invoices and charges be paid in full prior to releasing Client’s Property.
13. If Client fails to remove Client’s Property within the twenty-one (21) day period described in Section 6.12, LCDSWAP shall provide written notice requesting removal of such property. Client shall then have a reasonable period of time, as determined by LCDSWAP, to arrange for the removal of Client’s Property.
14. If Client fails to remove Client’s Property within the period specified in Section 6.13, LCDSWAP may, in its commercially reasonable discretion and without further liability to Client, dispose of, liquidate, or otherwise handle Client’s Property in order to recover any amounts owed to LCDSWAP, including storage fees, labor costs, and other expenses incurred in connection with the handling, storage, or disposition of such property. Any proceeds from such disposition may be applied toward Client’s outstanding balances, and Client shall remain responsible for any remaining unpaid amounts. LCDSWAP shall also have a first priority warehouse lien and security interest in Client’s Property for all outstanding amounts owed under this Agreement, including storage fees, labor costs, shipping costs, and any other charges. LCDSWAP may enforce such lien by disposing of or liquidating Client’s Property in a commercially reasonable manner.
15. If Client fails to make payments for a period greater than thirty (30) days, LCDSWAP may suspend Services and provide written notice requesting payment of all outstanding balances. If Client’s account remains unpaid for more than sixty (60) days after such notice, LCDSWAP may designate the account as an “Abandoned Account.” In the event an account is deemed an Abandoned Account, LCDSWAP may, in its commercially reasonable discretion, dispose of, liquidate, or otherwise handle Client’s Property in order to recover outstanding balances owed to LCDSWAP. Any proceeds from such liquidation may be applied toward Client’s outstanding balances, and Client shall remain responsible for any remaining unpaid amounts.
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.
Confidentiality.
1. Each party agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing, special pricing, operational procedures, business data, customer information, and other proprietary materials (“Confidential Information”), strictly confidential and shall not disclose any part of such Confidential Information to any third party except:
  1. to its employees, contractors, professional advisors, or representatives who require such information for the purposes of performing obligations under this Agreement and who are bound by confidentiality obligations; or
  2. for the purposes of seeking legal, accounting, or financial advice; or
  3. as required by law or court order.
2. Each party acknowledges that the Confidential Information described in this Agreement is valuable and confidential to the other party. Each party further agrees that the remedy at law for any breach of this Section may be inadequate and that the non-breaching party shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law or in equity. The provisions of this Section shall survive the expiration or 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”), solely as necessary to provide the Services and operate LCDSWAP’s business, including without limitation internal operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes, and (ii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing, benchmarking, and analytical purposes.
4. Client hereby grants LCDSWAP the non-exclusive right and license to utilize Client’s proprietary property, including without limitation Client’s logos, trademarks, reviews, pictures, and similar materials, on LCDSWAP’s website and other promotional materials for the purpose of identifying Client as a customer of LCDSWAP and promoting LCDSWAP’s services.
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.
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.
Indemnification.
1. 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, arising out of or relating to Client’s products, Client’s Property, Client’s business operations, or any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, including without limitation claims for personal injury, death, property damage, regulatory violations, product liability, or claims alleging that Client’s products or materials infringe the Intellectual Property Rights of any third party. This indemnification provision shall also include any action at law or equity initiated by a third party related to the ownership, authenticity, legality, or compliance of Client’s Property. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
2. LCDSWAP shall indemnify and hold Client harmless from and against any third-party claims, damages, losses, liabilities, costs and expenses, including reasonable legal fees, arising directly from LCDSWAP’s gross negligence or willful misconduct in the performance of the Services under this Agreement.
Insurance.
1. Client is responsible for obtaining and maintaining adequate insurance coverage for Client’s Property and all activities reasonably connected with this Agreement. Client acknowledges and agrees that LCDSWAP is not an insurer of Client’s Property. Except to the extent caused by LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for loss of or damage to Client’s Property, and Client’s recovery for any such loss or damage shall in all cases remain subject to the limitations of liability and other terms set out in this Agreement.
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 maintain adequate insurance coverage for Client’s Property and shall utilize such insurance for any losses, damages, or claims exceeding five thousand dollars ($5,000.00 USD). Client acknowledges and agrees that LCDSWAP is not an insurer of Client’s Property. Except to the extent directly caused by LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for loss of or damage to Client’s Property. In the event LCDSWAP is found liable for any loss or damage to Client’s Property, LCDSWAP’s liability shall not exceed five thousand dollars ($5,000 USD) in total, and shall remain subject to the limitations set out in Section 13.
Independence of LCDSWAP.
Limitation of Liability.
1. TTo the maximum extent permitted by applicable law, LCDSWAP shall not be liable to Client for any special, incidental, indirect, punitive, exemplary, or consequential damages, including without limitation lost profits, loss of revenue, loss of business, loss of goodwill, or loss of anticipated savings, arising out of or relating to this Agreement or the Services provided hereunder, whether arising in contract, tort, negligence, strict liability, or otherwise.
2. In all cases, LCDSWAP’s total cumulative liability arising out of or relating to this Agreement or the Services provided hereunder shall not exceed five thousand dollars ($5,000 USD).
3. This limitation shall apply regardless of the number of claims, events, or causes of action and shall constitute Client’s exclusive monetary remedy arising from or relating to this Agreement or the Services.
4. All liability is subject to LCDSWAP being found responsible in accordance with this Agreement.
5. LCDSWAP shall not be liable for any loss of or damage to Client’s Property except to the extent directly caused by LCDSWAP’s gross negligence or willful misconduct. Client acknowledges that LCDSWAP is not an insurer of Client’s Property and that Client remains solely responsible for maintaining appropriate insurance coverage for Client’s Property.
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, labor, child labor abuse, forced labor, 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.
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. Client shall not access or attend at the Warehouse without the prior written approval of LCDSWAP. All warehouse visits must be scheduled in advance with LCDSWAP management and are subject to LCDSWAP’s scheduling availability, security requirements, operational restrictions, and supervision by LCDSWAP personnel. Client acknowledges and agrees that unscheduled visits or attempts to access the Warehouse without prior approval are strictly prohibited.
3. Client acknowledges and agrees that, in limited or exceptional circumstances where LCDSWAP’s primary warehouse facilities temporarily lack sufficient capacity, LCDSWAP may store Client’s Property at an overflow or alternate warehouse location. Such overflow storage may include temporary storage facilities or third-party warehouse locations utilized by LCDSWAP. Client agrees that any such overflow or alternate storage location shall be deemed part of the “Warehouse” for the purposes of this Agreement.
4. LCDSWAP may, in its sole discretion, relocate Client’s Property to any warehouse facility operated, leased, or utilized by LCDSWAP. Such relocation may occur for operational, capacity, security, or business reasons. Where reasonably practicable, LCDSWAP will provide notice of any material change to the warehouse location; however, Client acknowledges that advance notice may not always be possible and agrees that such relocation shall not constitute a breach of this Agreement or give rise to any claim for damages, delay, or loss.
5. It is the Client’s sole responsibility to ensure that Client’s Property is received by LCDSWAP.
6. 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 SKUs and space used. LCDSWAP shall determine, in their sole discretion, the type of storage spot assigned to each SKU.
7. For the purposes of this Agreement, each unique variation of a product shall constitute a separate Stock Keeping Unit (“SKU”). Product variations include, without limitation, differences in size, color, style, packaging, bundle configuration, labeling, or any other distinguishing characteristic.
8. If Client maintains more than fifty (50) SKUs stored with LCDSWAP while shipping fewer than one thousand (1,000) orders in any calendar month, LCDSWAP reserves the right, in its sole discretion, to apply a surcharge to the monthly Account Management fee. The amount of such surcharge shall be determined by LCDSWAP based on operational complexity and support requirements.
9. Client further acknowledges and agrees that all pallets provided shall have a maximum footprint of forty (40) inches by forty-eight (48) inches and shall not exceed a height of fifty-five (55) inches, unless otherwise approved in writing by LCDSWAP. Any pallets which exceed these limits may be refused, reconfigured, or subject to additional handling and storage fees as determined by LCDSWAP. Client is required to request a quote for such fees directly from LCDSWAP prior to providing any pallet that exceeds the limits described herein, otherwise Client is not permitted to dispute the fee charged.
10. Client acknowledges and agrees that warehouse storage space is limited and allocated based on operational capacity and the volume of services provided to Client. If LCDSWAP reasonably determines that Client’s Property occupies an excessive number of pallets relative to the volume of orders processed for Client’s account, LCDSWAP reserves the right, in its sole discretion, to limit the number of pallets stored for Client or require Client to remove excess inventory from the Warehouse. Client shall comply with any such request within a reasonable period of time specified by LCDSWAP. Failure to comply may result in additional storage fees, suspension of services, or other actions permitted under this Agreement.
11. Client acknowledges and agrees that all shipments processed by LCDSWAP are transported by independent third-party carriers. LCDSWAP shall not be responsible or liable for any loss, damage, delay, misdelivery, theft, or other issue occurring during transportation after a shipment has been released to the carrier. Any claims relating to transportation loss, damage, or delay shall be pursued in accordance with the applicable carrier’s terms, conditions, and claims procedures. LCDSWAP may, at its discretion, assist Client in submitting such claims, but shall have no obligation to do so and shall bear no liability for the outcome of any carrier claim.
12. LCDSWAP may refuse to accept shipments in LCDSWAP’s sole discretion, with the reason to be provided to the Client.
13. Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to LCDSWAP. LCDSWAP shall not be liable for any delay, mistake, omission, loss, damage, or costs arising from inaccurate or incomplete information provided by Client. LCDSWAP shall have no responsibility to verify or determine the accuracy of any information provided by Client. LCDSWAP shall not be liable for any damages of any kind, including without limitation loss of income incurred by Client, arising from any delays, errors, or mistakes caused directly or indirectly by such inaccurate information.
14. 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.
15. 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.
16. LCDSWAP is not an insurer of Client’s Property. Except in cases of LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for any loss, damage, delay, or destruction of Client’s Property. Client acknowledges that loss or damage may occur due to causes beyond LCDSWAP’s control, including without limitation fire, flood, natural disaster, acts of God, theft, or actions of third parties. Client agrees that recovery for any such loss or damage shall be subject to the limitations of liability set out in this Agreement and that Client is responsible for maintaining appropriate insurance coverage for Client’s Property.
17. 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.
18. 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.
19. Client acknowledges that inventory counts maintained by LCDSWAP are based on information provided by Client and standard warehouse receiving and fulfillment processes. LCDSWAP shall not be responsible for discrepancies in inventory counts unless such discrepancies are directly caused by LCDSWAP’s gross negligence or willful misconduct. Client further acknowledges that reasonable inventory variances may occur in the ordinary course of warehouse operations and agrees that minor discrepancies shall not constitute a breach of this Agreement.
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 LCDSWAP performs fulfillment services based solely on the order information submitted by or on behalf of Client through the applicable platform or integration. LCDSWAP is not responsible for verifying the legitimacy or accuracy of any order, customer, or transaction. Client shall remain responsible for all fees and charges associated with Services performed by LCDSWAP in connection with any orders submitted by or on behalf of Client, including orders that are later canceled, disputed, returned, or determined to be fraudulent or unauthorized.
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.
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 all prior agreements, negotiations, and understandings, whether written or oral. LCDSWAP may amend this Agreement from time to time by providing Client with at least sixty (60) days written notice prior to such amendment becoming effective. If Client does not agree with the amendment, Client may terminate this Agreement by providing written notice prior to the effective date of the amendment. Continued use of the Services after the effective date of the amendment shall constitute acceptance of the updated terms.
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 may be updated from time to time by LCDSWAP as part of its ongoing operational procedures. LCDSWAP will use commercially reasonable efforts to notify Client of any material updates that may affect the Services.
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 Secaucus, 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 labor 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. Collection Costs. If Client fails to pay any invoice when due, LCDSWAP may engage legal counsel or a collection agency to pursue payment of the outstanding balance. Client agrees to reimburse LCDSWAP for all reasonable costs incurred in connection with such collection efforts, including without limitation demand letters, legal notices, attorney fees, collection agency fees, administrative costs, and court filing fees, whether or not a legal proceeding is initiated.
12. Time. Time is of the essence in the performance of this Agreement.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.

Obligations of LCDSWAP.
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 method. LCDSWAP may change or require different payment methods at its reasonable discretion. LCDSWAP shall provide Client with at least fourteen (14) days written notice of any change to the required payment method. Notwithstanding the foregoing, LCDSWAP may require an immediate change to the payment method in the event of overdue invoices, payment default, excessive chargebacks, or elevated account risk.
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. Client agrees to provide a valid pre-authorized credit card to be kept on file by LCDSWAP (the “Credit Card”). Client authorizes LCDSWAP to charge the Credit Card for any amounts due under this Agreement, including without limitation invoices for Services, storage fees, carrier adjustments, chargebacks, penalties, deposits, and any other fees incurred in connection with the Services. LCDSWAP may charge the Credit Card in accordance with the billing and payment terms set out in this Agreement, including where automatic payment has been enabled by Client upon issuance of an invoice, or where an invoice has become due and remains unpaid. LCDSWAP may also charge the Credit Card in the following circumstances:
  1. when an invoice becomes due and remains unpaid;
  2. in accordance with any agreed billing cycle, including weekly billing cycles;
  3. for carrier adjustments, postage corrections, returns, address corrections, or other third-party charges incurred after shipment;
  4. for deposits, prepayments, or advance payments required under this Agreement;
  5. where LCDSWAP reasonably determines that advance payment is required due to overdue balances, payment default, excessive chargebacks, or elevated account risk.
  6. Client shall ensure that the Credit Card remains valid and on file for the duration of the Agreement and until all outstanding amounts owed to LCDSWAP are paid in full.
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 require advance payment or immediate payment prior to providing certain Services where reasonably necessary based on account history, outstanding balances, high shipping volume, carrier funding requirements, or other account-related risk factors. In such cases, LCDSWAP may require payment prior to performing the applicable Services and may suspend or delay Services until such payment is received.
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. Where Client has enabled automatic payment using a pre-authorized payment method on file, LCDSWAP may charge such payment method upon issuance of the invoice or in accordance with the applicable billing cycle. Where automatic payment is not enabled, invoices 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 3.3 LCDSWAP may amend the billing cycle at LCDSWAP’s reasonable discretion. LCDSWAP shall provide Client with at least fourteen (14) days written notice of any change to the billing cycle. Notwithstanding the foregoing, LCDSWAP may implement changes to the billing cycle immediately in the event of overdue invoices, payment default, excessive chargebacks, or elevated account risk.
4. If Client fails to pay any invoice when due, LCDSWAP shall provide written notice of such overdue amount. Client shall have three (3) calendar days from the date of such notice to cure the payment default. If the outstanding balance is not cured within such cure period, LCDSWAP may, in its sole discretion, suspend Services, charge the payment method on file, pause Client’s store integration, or exercise any other rights or remedies available under this Agreement.
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.
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.
8. LCDSWAP represents and warrants that it has the full corporate right, power and authority to enter into this Agreement and perform the Services contemplated herein, and that the Services provided under this Agreement shall be performed in accordance with applicable laws and regulations.
Term and Termination.
1. This Agreement will commence on the Effective Date and continue for an initial term of thirty (30) calendar days, unless earlier terminated in accordance with this Agreement.
2. This Agreement shall automatically renew for successive thirty (30) day terms unless terminated by either party in accordance with Section 6.3.
3. Client and LCDSWAP shall each have the right to terminate this Agreement in whole or in part, without cause, upon thirty (30) days prior written notice to the other 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, Section 6.4.3, or Section 6.4.4 shall result in immediate termination of this Agreement without any notice requirement.
6. The rights described in this Section are cumulative and in addition to any other rights or remedies available to LCDSWAP under this Agreement or at law. If Client fails to make payment of outstanding invoices in accordance with this Agreement, LCDSWAP may, after providing written notice to Client and allowing a reasonable opportunity to cure such non-payment, consolidate Client’s Property and prepare such inventory for return, removal, liquidation, or other commercially reasonable disposition of the inventory in order to recover amounts owed. Any labor or costs incurred by LCDSWAP in connection with consolidating or handling such inventory may be invoiced to Client.
7. Client agrees that it will not initiate any chargeback, payment reversal, or dispute with its credit card provider or financial institution without first providing written notice to LCDSWAP and allowing LCDSWAP a reasonable opportunity to review and resolve the matter. Any chargeback or payment dispute initiated by Client without first following this process shall constitute a breach of this Agreement, and Client shall remain responsible for all amounts owed to LCDSWAP, including any bank fees, administrative costs, legal fees, and collection costs incurred by LCDSWAP as a result of such chargeback or dispute.
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, Client shall ensure that all outstanding invoices owed to LCDSWAP are paid in full within seven (7) calendar days. If any amounts remain unpaid after such period, LCDSWAP may retain possession of Client’s Property until all outstanding balances are satisfied. If Client fails to pay the outstanding balance within a reasonable period after receiving written notice, LCDSWAP may exercise its rights under this Agreement, including the right to dispose of or liquidate Client’s Property in a commercially reasonable manner in order to recover amounts owed.
12. Upon termination of this Agreement, Client shall arrange for the removal of all Client’s Property from LCDSWAP’s Warehouse within twenty-one (21) calendar days, at Client’s sole expense. LCDSWAP may require that all outstanding invoices and charges be paid in full prior to releasing Client’s Property.
13. If Client fails to remove Client’s Property within the twenty-one (21) day period described in Section 6.12, LCDSWAP shall provide written notice requesting removal of such property. Client shall then have a reasonable period of time, as determined by LCDSWAP, to arrange for the removal of Client’s Property.
14. If Client fails to remove Client’s Property within the period specified in Section 6.13, LCDSWAP may, in its commercially reasonable discretion and without further liability to Client, dispose of, liquidate, or otherwise handle Client’s Property in order to recover any amounts owed to LCDSWAP, including storage fees, labor costs, and other expenses incurred in connection with the handling, storage, or disposition of such property. Any proceeds from such disposition may be applied toward Client’s outstanding balances, and Client shall remain responsible for any remaining unpaid amounts. LCDSWAP shall also have a first priority warehouse lien and security interest in Client’s Property for all outstanding amounts owed under this Agreement, including storage fees, labor costs, shipping costs, and any other charges. LCDSWAP may enforce such lien by disposing of or liquidating Client’s Property in a commercially reasonable manner.
15. If Client fails to make payments for a period greater than thirty (30) days, LCDSWAP may suspend Services and provide written notice requesting payment of all outstanding balances. If Client’s account remains unpaid for more than sixty (60) days after such notice, LCDSWAP may designate the account as an “Abandoned Account.” In the event an account is deemed an Abandoned Account, LCDSWAP may, in its commercially reasonable discretion, dispose of, liquidate, or otherwise handle Client’s Property in order to recover outstanding balances owed to LCDSWAP. Any proceeds from such liquidation may be applied toward Client’s outstanding balances, and Client shall remain responsible for any remaining unpaid amounts.
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.
Confidentiality.
1. Each party agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing, special pricing, operational procedures, business data, customer information, and other proprietary materials (“Confidential Information”), strictly confidential and shall not disclose any part of such Confidential Information to any third party except:
  1. to its employees, contractors, professional advisors, or representatives who require such information for the purposes of performing obligations under this Agreement and who are bound by confidentiality obligations; or
  2. for the purposes of seeking legal, accounting, or financial advice; or
  3. as required by law or court order.
2. Each party acknowledges that the Confidential Information described in this Agreement is valuable and confidential to the other party. Each party further agrees that the remedy at law for any breach of this Section may be inadequate and that the non-breaching party shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law or in equity. The provisions of this Section shall survive the expiration or 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”), solely as necessary to provide the Services and operate LCDSWAP’s business, including without limitation internal operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes, and (ii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing, benchmarking, and analytical purposes.
4. Client hereby grants LCDSWAP the non-exclusive right and license to utilize Client’s proprietary property, including without limitation Client’s logos, trademarks, reviews, pictures, and similar materials, on LCDSWAP’s website and other promotional materials for the purpose of identifying Client as a customer of LCDSWAP and promoting LCDSWAP’s services.
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.
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.
Indemnification.
1. 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, arising out of or relating to Client’s products, Client’s Property, Client’s business operations, or any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, including without limitation claims for personal injury, death, property damage, regulatory violations, product liability, or claims alleging that Client’s products or materials infringe the Intellectual Property Rights of any third party. This indemnification provision shall also include any action at law or equity initiated by a third party related to the ownership, authenticity, legality, or compliance of Client’s Property. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
2. LCDSWAP shall indemnify and hold Client harmless from and against any third-party claims, damages, losses, liabilities, costs and expenses, including reasonable legal fees, arising directly from LCDSWAP’s gross negligence or willful misconduct in the performance of the Services under this Agreement.
Insurance.
1. Client is responsible for obtaining and maintaining adequate insurance coverage for Client’s Property and all activities reasonably connected with this Agreement. Client acknowledges and agrees that LCDSWAP is not an insurer of Client’s Property. Except to the extent caused by LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for loss of or damage to Client’s Property, and Client’s recovery for any such loss or damage shall in all cases remain subject to the limitations of liability and other terms set out in this Agreement.
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 maintain adequate insurance coverage for Client’s Property and shall utilize such insurance for any losses, damages, or claims exceeding five thousand dollars ($5,000.00 USD). Client acknowledges and agrees that LCDSWAP is not an insurer of Client’s Property. Except to the extent directly caused by LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for loss of or damage to Client’s Property. In the event LCDSWAP is found liable for any loss or damage to Client’s Property, LCDSWAP’s liability shall not exceed five thousand dollars ($5,000 USD) in total, and shall remain subject to the limitations set out in Section 13.
Independence of LCDSWAP.
Limitation of Liability.
1. TTo the maximum extent permitted by applicable law, LCDSWAP shall not be liable to Client for any special, incidental, indirect, punitive, exemplary, or consequential damages, including without limitation lost profits, loss of revenue, loss of business, loss of goodwill, or loss of anticipated savings, arising out of or relating to this Agreement or the Services provided hereunder, whether arising in contract, tort, negligence, strict liability, or otherwise.
2. In all cases, LCDSWAP’s total cumulative liability arising out of or relating to this Agreement or the Services provided hereunder shall not exceed five thousand dollars ($5,000 USD).
3. This limitation shall apply regardless of the number of claims, events, or causes of action and shall constitute Client’s exclusive monetary remedy arising from or relating to this Agreement or the Services.
4. All liability is subject to LCDSWAP being found responsible in accordance with this Agreement.
5. LCDSWAP shall not be liable for any loss of or damage to Client’s Property except to the extent directly caused by LCDSWAP’s gross negligence or willful misconduct. Client acknowledges that LCDSWAP is not an insurer of Client’s Property and that Client remains solely responsible for maintaining appropriate insurance coverage for Client’s Property.
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, labor, child labor abuse, forced labor, 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.
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. Client shall not access or attend at the Warehouse without the prior written approval of LCDSWAP. All warehouse visits must be scheduled in advance with LCDSWAP management and are subject to LCDSWAP’s scheduling availability, security requirements, operational restrictions, and supervision by LCDSWAP personnel. Client acknowledges and agrees that unscheduled visits or attempts to access the Warehouse without prior approval are strictly prohibited.
3. Client acknowledges and agrees that, in limited or exceptional circumstances where LCDSWAP’s primary warehouse facilities temporarily lack sufficient capacity, LCDSWAP may store Client’s Property at an overflow or alternate warehouse location. Such overflow storage may include temporary storage facilities or third-party warehouse locations utilized by LCDSWAP. Client agrees that any such overflow or alternate storage location shall be deemed part of the “Warehouse” for the purposes of this Agreement.
4. LCDSWAP may, in its sole discretion, relocate Client’s Property to any warehouse facility operated, leased, or utilized by LCDSWAP. Such relocation may occur for operational, capacity, security, or business reasons. Where reasonably practicable, LCDSWAP will provide notice of any material change to the warehouse location; however, Client acknowledges that advance notice may not always be possible and agrees that such relocation shall not constitute a breach of this Agreement or give rise to any claim for damages, delay, or loss.
5. It is the Client’s sole responsibility to ensure that Client’s Property is received by LCDSWAP.
6. 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 SKUs and space used. LCDSWAP shall determine, in their sole discretion, the type of storage spot assigned to each SKU.
7. For the purposes of this Agreement, each unique variation of a product shall constitute a separate Stock Keeping Unit (“SKU”). Product variations include, without limitation, differences in size, color, style, packaging, bundle configuration, labeling, or any other distinguishing characteristic.
8. If Client maintains more than fifty (50) SKUs stored with LCDSWAP while shipping fewer than one thousand (1,000) orders in any calendar month, LCDSWAP reserves the right, in its sole discretion, to apply a surcharge to the monthly Account Management fee. The amount of such surcharge shall be determined by LCDSWAP based on operational complexity and support requirements.
9. Client further acknowledges and agrees that all pallets provided shall have a maximum footprint of forty (40) inches by forty-eight (48) inches and shall not exceed a height of fifty-five (55) inches, unless otherwise approved in writing by LCDSWAP. Any pallets which exceed these limits may be refused, reconfigured, or subject to additional handling and storage fees as determined by LCDSWAP. Client is required to request a quote for such fees directly from LCDSWAP prior to providing any pallet that exceeds the limits described herein, otherwise Client is not permitted to dispute the fee charged.
10. Client acknowledges and agrees that warehouse storage space is limited and allocated based on operational capacity and the volume of services provided to Client. If LCDSWAP reasonably determines that Client’s Property occupies an excessive number of pallets relative to the volume of orders processed for Client’s account, LCDSWAP reserves the right, in its sole discretion, to limit the number of pallets stored for Client or require Client to remove excess inventory from the Warehouse. Client shall comply with any such request within a reasonable period of time specified by LCDSWAP. Failure to comply may result in additional storage fees, suspension of services, or other actions permitted under this Agreement.
11. Client acknowledges and agrees that all shipments processed by LCDSWAP are transported by independent third-party carriers. LCDSWAP shall not be responsible or liable for any loss, damage, delay, misdelivery, theft, or other issue occurring during transportation after a shipment has been released to the carrier. Any claims relating to transportation loss, damage, or delay shall be pursued in accordance with the applicable carrier’s terms, conditions, and claims procedures. LCDSWAP may, at its discretion, assist Client in submitting such claims, but shall have no obligation to do so and shall bear no liability for the outcome of any carrier claim.
12. LCDSWAP may refuse to accept shipments in LCDSWAP’s sole discretion, with the reason to be provided to the Client.
13. Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to LCDSWAP. LCDSWAP shall not be liable for any delay, mistake, omission, loss, damage, or costs arising from inaccurate or incomplete information provided by Client. LCDSWAP shall have no responsibility to verify or determine the accuracy of any information provided by Client. LCDSWAP shall not be liable for any damages of any kind, including without limitation loss of income incurred by Client, arising from any delays, errors, or mistakes caused directly or indirectly by such inaccurate information.
14. 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.
15. 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.
16. LCDSWAP is not an insurer of Client’s Property. Except in cases of LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for any loss, damage, delay, or destruction of Client’s Property. Client acknowledges that loss or damage may occur due to causes beyond LCDSWAP’s control, including without limitation fire, flood, natural disaster, acts of God, theft, or actions of third parties. Client agrees that recovery for any such loss or damage shall be subject to the limitations of liability set out in this Agreement and that Client is responsible for maintaining appropriate insurance coverage for Client’s Property.
17. 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.
18. 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.
19. Client acknowledges that inventory counts maintained by LCDSWAP are based on information provided by Client and standard warehouse receiving and fulfillment processes. LCDSWAP shall not be responsible for discrepancies in inventory counts unless such discrepancies are directly caused by LCDSWAP’s gross negligence or willful misconduct. Client further acknowledges that reasonable inventory variances may occur in the ordinary course of warehouse operations and agrees that minor discrepancies shall not constitute a breach of this Agreement.
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 LCDSWAP performs fulfillment services based solely on the order information submitted by or on behalf of Client through the applicable platform or integration. LCDSWAP is not responsible for verifying the legitimacy or accuracy of any order, customer, or transaction. Client shall remain responsible for all fees and charges associated with Services performed by LCDSWAP in connection with any orders submitted by or on behalf of Client, including orders that are later canceled, disputed, returned, or determined to be fraudulent or unauthorized.
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.
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 all prior agreements, negotiations, and understandings, whether written or oral. LCDSWAP may amend this Agreement from time to time by providing Client with at least sixty (60) days written notice prior to such amendment becoming effective. If Client does not agree with the amendment, Client may terminate this Agreement by providing written notice prior to the effective date of the amendment. Continued use of the Services after the effective date of the amendment shall constitute acceptance of the updated terms.
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 may be updated from time to time by LCDSWAP as part of its ongoing operational procedures. LCDSWAP will use commercially reasonable efforts to notify Client of any material updates that may affect the Services.
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. 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 City of Toronto, 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 labor 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. Collection Costs. If Client fails to pay any invoice when due, LCDSWAP may engage legal counsel or a collection agency to pursue payment of the outstanding balance. Client agrees to reimburse LCDSWAP for all reasonable costs incurred in connection with such collection efforts, including without limitation demand letters, legal notices, attorney fees, collection agency fees, administrative costs, and court filing fees, whether or not a legal proceeding is initiated.
12. Time. Time is of the essence in the performance of this Agreement.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.

Obligations of LCDSWAP.
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 method. LCDSWAP may change or require different payment methods at its reasonable discretion. LCDSWAP shall provide Client with at least fourteen (14) days written notice of any change to the required payment method. Notwithstanding the foregoing, LCDSWAP may require an immediate change to the payment method in the event of overdue invoices, payment default, excessive chargebacks, or elevated account risk.
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. Client agrees to provide a valid pre-authorized credit card to be kept on file by LCDSWAP (the “Credit Card”). Client authorizes LCDSWAP to charge the Credit Card for any amounts due under this Agreement, including without limitation invoices for Services, storage fees, carrier adjustments, chargebacks, penalties, deposits, and any other fees incurred in connection with the Services. LCDSWAP may charge the Credit Card in accordance with the billing and payment terms set out in this Agreement, including where automatic payment has been enabled by Client upon issuance of an invoice, or where an invoice has become due and remains unpaid. LCDSWAP may also charge the Credit Card in the following circumstances:
  1. when an invoice becomes due and remains unpaid;
  2. in accordance with any agreed billing cycle, including weekly billing cycles;
  3. for carrier adjustments, postage corrections, returns, address corrections, or other third-party charges incurred after shipment;
  4. for deposits, prepayments, or advance payments required under this Agreement;
  5. where LCDSWAP reasonably determines that advance payment is required due to overdue balances, payment default, excessive chargebacks, or elevated account risk.
  6. Client shall ensure that the Credit Card remains valid and on file for the duration of the Agreement and until all outstanding amounts owed to LCDSWAP are paid in full.
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 require advance payment or immediate payment prior to providing certain Services where reasonably necessary based on account history, outstanding balances, high shipping volume, carrier funding requirements, or other account-related risk factors. In such cases, LCDSWAP may require payment prior to performing the applicable Services and may suspend or delay Services until such payment is received.
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. Where Client has enabled automatic payment using a pre-authorized payment method on file, LCDSWAP may charge such payment method upon issuance of the invoice or in accordance with the applicable billing cycle. Where automatic payment is not enabled, invoices 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 3.3 LCDSWAP may amend the billing cycle at LCDSWAP’s reasonable discretion. LCDSWAP shall provide Client with at least fourteen (14) days written notice of any change to the billing cycle. Notwithstanding the foregoing, LCDSWAP may implement changes to the billing cycle immediately in the event of overdue invoices, payment default, excessive chargebacks, or elevated account risk.
4. If Client fails to pay any invoice when due, LCDSWAP shall provide written notice of such overdue amount. Client shall have three (3) calendar days from the date of such notice to cure the payment default. If the outstanding balance is not cured within such cure period, LCDSWAP may, in its sole discretion, suspend Services, charge the payment method on file, pause Client’s store integration, or exercise any other rights or remedies available under this Agreement.
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.
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.
8. LCDSWAP represents and warrants that it has the full corporate right, power and authority to enter into this Agreement and perform the Services contemplated herein, and that the Services provided under this Agreement shall be performed in accordance with applicable laws and regulations.
Term and Termination.
1. This Agreement will commence on the Effective Date and continue for an initial term of thirty (30) calendar days, unless earlier terminated in accordance with this Agreement.
2. This Agreement shall automatically renew for successive thirty (30) day terms unless terminated by either party in accordance with Section 6.3.
3. Client and LCDSWAP shall each have the right to terminate this Agreement in whole or in part, without cause, upon thirty (30) days prior written notice to the other 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, Section 6.4.3, or Section 6.4.4 shall result in immediate termination of this Agreement without any notice requirement.
6. The rights described in this Section are cumulative and in addition to any other rights or remedies available to LCDSWAP under this Agreement or at law. If Client fails to make payment of outstanding invoices in accordance with this Agreement, LCDSWAP may, after providing written notice to Client and allowing a reasonable opportunity to cure such non-payment, consolidate Client’s Property and prepare such inventory for return, removal, liquidation, or other commercially reasonable disposition of the inventory in order to recover amounts owed. Any labor or costs incurred by LCDSWAP in connection with consolidating or handling such inventory may be invoiced to Client.
7. Client agrees that it will not initiate any chargeback, payment reversal, or dispute with its credit card provider or financial institution without first providing written notice to LCDSWAP and allowing LCDSWAP a reasonable opportunity to review and resolve the matter. Any chargeback or payment dispute initiated by Client without first following this process shall constitute a breach of this Agreement, and Client shall remain responsible for all amounts owed to LCDSWAP, including any bank fees, administrative costs, legal fees, and collection costs incurred by LCDSWAP as a result of such chargeback or dispute.
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, Client shall ensure that all outstanding invoices owed to LCDSWAP are paid in full within seven (7) calendar days. If any amounts remain unpaid after such period, LCDSWAP may retain possession of Client’s Property until all outstanding balances are satisfied. If Client fails to pay the outstanding balance within a reasonable period after receiving written notice, LCDSWAP may exercise its rights under this Agreement, including the right to dispose of or liquidate Client’s Property in a commercially reasonable manner in order to recover amounts owed.
12. Upon termination of this Agreement, Client shall arrange for the removal of all Client’s Property from LCDSWAP’s Warehouse within twenty-one (21) calendar days, at Client’s sole expense. LCDSWAP may require that all outstanding invoices and charges be paid in full prior to releasing Client’s Property.
13. If Client fails to remove Client’s Property within the twenty-one (21) day period described in Section 6.12, LCDSWAP shall provide written notice requesting removal of such property. Client shall then have a reasonable period of time, as determined by LCDSWAP, to arrange for the removal of Client’s Property.
14. If Client fails to remove Client’s Property within the period specified in Section 6.13, LCDSWAP may, in its commercially reasonable discretion and without further liability to Client, dispose of, liquidate, or otherwise handle Client’s Property in order to recover any amounts owed to LCDSWAP, including storage fees, labor costs, and other expenses incurred in connection with the handling, storage, or disposition of such property. Any proceeds from such disposition may be applied toward Client’s outstanding balances, and Client shall remain responsible for any remaining unpaid amounts. LCDSWAP shall also have a first priority warehouse lien and security interest in Client’s Property for all outstanding amounts owed under this Agreement, including storage fees, labor costs, shipping costs, and any other charges. LCDSWAP may enforce such lien by disposing of or liquidating Client’s Property in a commercially reasonable manner.
15. If Client fails to make payments for a period greater than thirty (30) days, LCDSWAP may suspend Services and provide written notice requesting payment of all outstanding balances. If Client’s account remains unpaid for more than sixty (60) days after such notice, LCDSWAP may designate the account as an “Abandoned Account.” In the event an account is deemed an Abandoned Account, LCDSWAP may, in its commercially reasonable discretion, dispose of, liquidate, or otherwise handle Client’s Property in order to recover outstanding balances owed to LCDSWAP. Any proceeds from such liquidation may be applied toward Client’s outstanding balances, and Client shall remain responsible for any remaining unpaid amounts.
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.
Confidentiality.
1. Each party agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing, special pricing, operational procedures, business data, customer information, and other proprietary materials (“Confidential Information”), strictly confidential and shall not disclose any part of such Confidential Information to any third party except:
  1. to its employees, contractors, professional advisors, or representatives who require such information for the purposes of performing obligations under this Agreement and who are bound by confidentiality obligations; or
  2. for the purposes of seeking legal, accounting, or financial advice; or
  3. as required by law or court order.
2. Each party acknowledges that the Confidential Information described in this Agreement is valuable and confidential to the other party. Each party further agrees that the remedy at law for any breach of this Section may be inadequate and that the non-breaching party shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law or in equity. The provisions of this Section shall survive the expiration or 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”), solely as necessary to provide the Services and operate LCDSWAP’s business, including without limitation internal operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes, and (ii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing, benchmarking, and analytical purposes.
4. Client hereby grants LCDSWAP the non-exclusive right and license to utilize Client’s proprietary property, including without limitation Client’s logos, trademarks, reviews, pictures, and similar materials, on LCDSWAP’s website and other promotional materials for the purpose of identifying Client as a customer of LCDSWAP and promoting LCDSWAP’s services.
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.
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.
Indemnification.
1. 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, arising out of or relating to Client’s products, Client’s Property, Client’s business operations, or any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, including without limitation claims for personal injury, death, property damage, regulatory violations, product liability, or claims alleging that Client’s products or materials infringe the Intellectual Property Rights of any third party. This indemnification provision shall also include any action at law or equity initiated by a third party related to the ownership, authenticity, legality, or compliance of Client’s Property. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
2. LCDSWAP shall indemnify and hold Client harmless from and against any third-party claims, damages, losses, liabilities, costs and expenses, including reasonable legal fees, arising directly from LCDSWAP’s gross negligence or willful misconduct in the performance of the Services under this Agreement.
Insurance.
1. Client is responsible for obtaining and maintaining adequate insurance coverage for Client’s Property and all activities reasonably connected with this Agreement. Client acknowledges and agrees that LCDSWAP is not an insurer of Client’s Property. Except to the extent caused by LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for loss of or damage to Client’s Property, and Client’s recovery for any such loss or damage shall in all cases remain subject to the limitations of liability and other terms set out in this Agreement.
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 maintain adequate insurance coverage for Client’s Property and shall utilize such insurance for any losses, damages, or claims exceeding five thousand dollars ($5,000.00 USD). Client acknowledges and agrees that LCDSWAP is not an insurer of Client’s Property. Except to the extent directly caused by LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for loss of or damage to Client’s Property. In the event LCDSWAP is found liable for any loss or damage to Client’s Property, LCDSWAP’s liability shall not exceed five thousand dollars ($5,000 USD) in total, and shall remain subject to the limitations set out in Section 13.
Independence of LCDSWAP.
Limitation of Liability.
1. TTo the maximum extent permitted by applicable law, LCDSWAP shall not be liable to Client for any special, incidental, indirect, punitive, exemplary, or consequential damages, including without limitation lost profits, loss of revenue, loss of business, loss of goodwill, or loss of anticipated savings, arising out of or relating to this Agreement or the Services provided hereunder, whether arising in contract, tort, negligence, strict liability, or otherwise.
2. In all cases, LCDSWAP’s total cumulative liability arising out of or relating to this Agreement or the Services provided hereunder shall not exceed five thousand dollars ($5,000 USD).
3. This limitation shall apply regardless of the number of claims, events, or causes of action and shall constitute Client’s exclusive monetary remedy arising from or relating to this Agreement or the Services.
4. All liability is subject to LCDSWAP being found responsible in accordance with this Agreement.
5. LCDSWAP shall not be liable for any loss of or damage to Client’s Property except to the extent directly caused by LCDSWAP’s gross negligence or willful misconduct. Client acknowledges that LCDSWAP is not an insurer of Client’s Property and that Client remains solely responsible for maintaining appropriate insurance coverage for Client’s Property.
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, labor, child labor abuse, forced labor, 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.
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. Client shall not access or attend at the Warehouse without the prior written approval of LCDSWAP. All warehouse visits must be scheduled in advance with LCDSWAP management and are subject to LCDSWAP’s scheduling availability, security requirements, operational restrictions, and supervision by LCDSWAP personnel. Client acknowledges and agrees that unscheduled visits or attempts to access the Warehouse without prior approval are strictly prohibited.
3. Client acknowledges and agrees that, in limited or exceptional circumstances where LCDSWAP’s primary warehouse facilities temporarily lack sufficient capacity, LCDSWAP may store Client’s Property at an overflow or alternate warehouse location. Such overflow storage may include temporary storage facilities or third-party warehouse locations utilized by LCDSWAP. Client agrees that any such overflow or alternate storage location shall be deemed part of the “Warehouse” for the purposes of this Agreement.
4. LCDSWAP may, in its sole discretion, relocate Client’s Property to any warehouse facility operated, leased, or utilized by LCDSWAP. Such relocation may occur for operational, capacity, security, or business reasons. Where reasonably practicable, LCDSWAP will provide notice of any material change to the warehouse location; however, Client acknowledges that advance notice may not always be possible and agrees that such relocation shall not constitute a breach of this Agreement or give rise to any claim for damages, delay, or loss.
5. It is the Client’s sole responsibility to ensure that Client’s Property is received by LCDSWAP.
6. 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 SKUs and space used. LCDSWAP shall determine, in their sole discretion, the type of storage spot assigned to each SKU.
7. For the purposes of this Agreement, each unique variation of a product shall constitute a separate Stock Keeping Unit (“SKU”). Product variations include, without limitation, differences in size, color, style, packaging, bundle configuration, labeling, or any other distinguishing characteristic.
8. If Client maintains more than fifty (50) SKUs stored with LCDSWAP while shipping fewer than one thousand (1,000) orders in any calendar month, LCDSWAP reserves the right, in its sole discretion, to apply a surcharge to the monthly Account Management fee. The amount of such surcharge shall be determined by LCDSWAP based on operational complexity and support requirements.
9. Client further acknowledges and agrees that all pallets provided shall have a maximum footprint of forty (40) inches by forty-eight (48) inches and shall not exceed a height of fifty-five (55) inches, unless otherwise approved in writing by LCDSWAP. Any pallets which exceed these limits may be refused, reconfigured, or subject to additional handling and storage fees as determined by LCDSWAP. Client is required to request a quote for such fees directly from LCDSWAP prior to providing any pallet that exceeds the limits described herein, otherwise Client is not permitted to dispute the fee charged.
10. Client acknowledges and agrees that warehouse storage space is limited and allocated based on operational capacity and the volume of services provided to Client. If LCDSWAP reasonably determines that Client’s Property occupies an excessive number of pallets relative to the volume of orders processed for Client’s account, LCDSWAP reserves the right, in its sole discretion, to limit the number of pallets stored for Client or require Client to remove excess inventory from the Warehouse. Client shall comply with any such request within a reasonable period of time specified by LCDSWAP. Failure to comply may result in additional storage fees, suspension of services, or other actions permitted under this Agreement.
11. Client acknowledges and agrees that all shipments processed by LCDSWAP are transported by independent third-party carriers. LCDSWAP shall not be responsible or liable for any loss, damage, delay, misdelivery, theft, or other issue occurring during transportation after a shipment has been released to the carrier. Any claims relating to transportation loss, damage, or delay shall be pursued in accordance with the applicable carrier’s terms, conditions, and claims procedures. LCDSWAP may, at its discretion, assist Client in submitting such claims, but shall have no obligation to do so and shall bear no liability for the outcome of any carrier claim.
12. LCDSWAP may refuse to accept shipments in LCDSWAP’s sole discretion, with the reason to be provided to the Client.
13. Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to LCDSWAP. LCDSWAP shall not be liable for any delay, mistake, omission, loss, damage, or costs arising from inaccurate or incomplete information provided by Client. LCDSWAP shall have no responsibility to verify or determine the accuracy of any information provided by Client. LCDSWAP shall not be liable for any damages of any kind, including without limitation loss of income incurred by Client, arising from any delays, errors, or mistakes caused directly or indirectly by such inaccurate information.
14. 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.
15. 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.
16. LCDSWAP is not an insurer of Client’s Property. Except in cases of LCDSWAP’s gross negligence or willful misconduct, LCDSWAP shall not be liable for any loss, damage, delay, or destruction of Client’s Property. Client acknowledges that loss or damage may occur due to causes beyond LCDSWAP’s control, including without limitation fire, flood, natural disaster, acts of God, theft, or actions of third parties. Client agrees that recovery for any such loss or damage shall be subject to the limitations of liability set out in this Agreement and that Client is responsible for maintaining appropriate insurance coverage for Client’s Property.
17. 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.
18. 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.
19. Client acknowledges that inventory counts maintained by LCDSWAP are based on information provided by Client and standard warehouse receiving and fulfillment processes. LCDSWAP shall not be responsible for discrepancies in inventory counts unless such discrepancies are directly caused by LCDSWAP’s gross negligence or willful misconduct. Client further acknowledges that reasonable inventory variances may occur in the ordinary course of warehouse operations and agrees that minor discrepancies shall not constitute a breach of this Agreement.
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 LCDSWAP performs fulfillment services based solely on the order information submitted by or on behalf of Client through the applicable platform or integration. LCDSWAP is not responsible for verifying the legitimacy or accuracy of any order, customer, or transaction. Client shall remain responsible for all fees and charges associated with Services performed by LCDSWAP in connection with any orders submitted by or on behalf of Client, including orders that are later canceled, disputed, returned, or determined to be fraudulent or unauthorized.
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.
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 all prior agreements, negotiations, and understandings, whether written or oral. LCDSWAP may amend this Agreement from time to time by providing Client with at least sixty (60) days written notice prior to such amendment becoming effective. If Client does not agree with the amendment, Client may terminate this Agreement by providing written notice prior to the effective date of the amendment. Continued use of the Services after the effective date of the amendment shall constitute acceptance of the updated terms.
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 may be updated from time to time by LCDSWAP as part of its ongoing operational procedures. LCDSWAP will use commercially reasonable efforts to notify Client of any material updates that may affect the Services.
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. 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 City of Richmond, 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 labor 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. Collection Costs. If Client fails to pay any invoice when due, LCDSWAP may engage legal counsel or a collection agency to pursue payment of the outstanding balance. Client agrees to reimburse LCDSWAP for all reasonable costs incurred in connection with such collection efforts, including without limitation demand letters, legal notices, attorney fees, collection agency fees, administrative costs, and court filing fees, whether or not a legal proceeding is initiated.
12. Time. Time is of the essence in the performance of this Agreement.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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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