Simpl Fulfillment Terms of Service

ACCEPTANCE OF TERMS.

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

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

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

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

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

  • Receive shipments from the Company of the Product
  • Upon notification by the Company of a purchase of Products by a customer, Simpl will pick and package the Products from the available Inventory and ship such Products directly to the customer (“End-User”).
  • Simpl will use appropriate packaging material (i.e., bubble wrap, boxes with void fill, etc.) at its discretion.
  • Upon request by the Company and approval by Simpl, Simpl will include a Company packing slip and/or other Company marketing materials concerning the Product to be provided by Company.
  • Simpl will process, package and ship all Product orders in accordance with Simpl Policies.
  • Simpl will maintain ledger summaries of all orders shipped and received, which shall be made available to the Company through Simpl’s billing systems.
  • Simpl also offers FBA Prep, amongst other services, as a value-added service, and as a stand-alone one. 

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

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

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

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

D. Exclusive Provider of Services.  By accepting these Terms and utilizing Simpl’s services, Company agrees that Simpl shall be the exclusive provider of the Services.  Company further agrees that should it breach this exclusivity provision, including by either fulfilling the Services on its own and/or engaging another party to do the same, the Termination provisions in Section 6, infra, shall apply.

3. PAYMENT & PAY AS YOU GO BILLING. Simpl utilizes a “Pay As You Go” model for the payment of Services. Company will load funds into their account and fees are deducted as incurred by Company. Company can load their account through a number of methods including but not limited to paying an invoice sent by Simpl, utilizing Auto-Pay, and paying via Credit Card. While Simpl may notify company if their balance has been depleted and services are on hold, they aren’t obligated to.

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

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

C. Options & Ways to Pay. Simpl provides the Company with the convenience to pay for their invoices online through the Company’s account using the following payment methods: Bank Transfer & ACH transfer (Free), Credit Card (3% convenience fee), PayPal (4% convenience fee), or a wire transfer (Free within the U.S.). Simpl is currently using two 3rd party payment processing companies, Stripe and Bill.com. Simpl does not store any payment information on its own servers; all of the Company’s payment information is stored with those companies. If Simpl’s invoice remains unpaid for more than 15 days from the issue date, Company agrees that Simpl shall have the right to auto-charge any payment method that has been used in the past.

D. Auto-Pay. Company has the option to agree to opt-in for “auto-pay” service, which will automatically charge the saved payment method on file to replenish the Company account balance. Using the auto-pay service will prevent orders from being delayed in processing due to insufficient balances under the Pay as You Go payment system.

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

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

D. Non-Standard Delivery Fees. Any non-standard delivery fees from shipping carriers such as Extended Delivery Area Surcharges, Returned Package Fees, Insufficient Address Fees, and any other non-standard fees will be billed to the Company with a five percent (5%) surcharge added.

E. Pricing and Payment. The Pricing Document provided to Customer shows all applicable costs including storage costs. Pricing is subject to change at any time within 5 days written notice to the Customer. Surcharges and any other non-standard fees are subject to change anytime with a 5 day notice to the customer. If monthly shipping charges do not add up to more than $350 then the client is subject to a minimum fee for the difference.

4. WAREHOUSE AND INVENTORY MANAGEMENT

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

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

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

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


C. Requirements For Inbound Products.

  • Product must be received in ready-to-ship format unless previously discussed and confirmed by Simpl via email or other written confirmation. There shall be only one SKU per master carton.
  • A barcode must appear on the exterior of the product. Each barcode must be a unique identifier for the product and will be applied to the unit of measure which is being sold by Company. (For example, if a bag of phone chargers is sold as a single unit, the carton must be barcoded on the exterior. If a shrink-wrapped bundle of 5 phone charger bags is being sold as a unit, the shrink-wrapped bundle must be barcoded.) If Simpl receives an inbound shipment of Products that it reasonably determines does not apply barcode(s) in accordance with this Paragraph, Simpl shall apply the barcodes to the Products, and $0.30 per label will be charged to Company unless otherwise agreed upon by Simpl and Company, in writing.
  • Product must be accompanied by a packing list with the following details (this can also be provided by Company in advance via an email to Simpl):

Company Name
Part Number or SKU (matching system part number)
Product Description (matching system description)
Packs Unit of Measure (e.g., 100 cases)
Total Quantity (e.g., 20 units per case)
PALLETS
Pallet dimensions must be as follows:

  • The pallet must be a standard four-way entry 40” x 48” 
  • Maximum height is 55” including pallet (Unless otherwise agreed upon in writing)
  • Company shall be charged for additional labor on the part of Simpl at a rate of $45 per person-hour for any shipments or items that do not meet these requirements.

D. Inventory. Inventory is monitored via random cycle counts, performed at Simpl’s sole discretion. As described in the receiving processes above, the Products are not counted by individual piece upon arrival (unless otherwise specified). Simpl shall not be responsible for any variance in the total volume of any Product held in inventory unless such variance exceeds 3% of the total volume of such Product (per sellable-SKU) against the last total Product volume amount last communicated to the Company via the WMS  online portal. A volume variance between 1% and 3% (from the incoming material receipt accuracy, as compared to the packing list on the Product) is expected during cycle counting.

Through the incoming inspection processes and random inspections, variations to the receipt quantity that are found will be communicated to the Company, and corrective action may be requested. The Company’s failure to provide corrective action or failure to provide Simpl with PO or Shipment notification via the WMS online portal will negatively impact inventory accuracy.

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


5. CLIENT RIGHTS AND OBLIGATIONS

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

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

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

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

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

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

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

6. TERM AND TERMINATION. This Agreement shall commence on the Effective Date and continue for a period of three (3) months unless terminated earlier pursuant to the terms in this Section (the “Term”). For purposes of clarity, the Fees and Payment obligations of this Agreement including the Pay As You Go payments in Section 3 shall remain in effect during the Term of the Agreement.  Upon expiration of the Term, this Agreement shall automatically renew for additional successive three (3) month terms unless and until either Party provides written Notice of Termination at least sixty (60) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable Law (each a "Renewal Term").  Should the Company issue a Notice of Termination pursuant to this Agreement, the Company is still obligated to comply with all terms, requirements, and conditions of this Agreement, including payment obligations, during the remaining period of the term following the Notice of Termination and the Termination Effective Date of.  If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of these Terms of Service, the Pricing Document, and any Exhibits attached hereto, during each such Renewal Term are the same as the terms in the effect immediately prior to such renewal.

A. Automatic Termination. In the event, that a party becomes insolvent, is adjudicated bankrupt, voluntarily or involuntarily files a petition for bankruptcy, makes an assignment for the benefit of creditors, seeks any other similar relief under any bankruptcy law or related statutes, or otherwise becomes financially incapable of performing its obligations in accordance with the terms of this Agreement, and such judgment, assignment or incapacity is not revoked within ninety (90) calendar days then the other party has the automatic right to terminate this Agreement.

B. Termination for Breach.  Either party may terminate this Agreement, upon written notice, if the other party breaches any material representation or warranty or other term or condition hereof and fails to cure such breach (if curable) upon 30 days’ prior written notice, which notice describes such breach in reasonable detail.  The terminating party is still responsible for all Fees, Expenses, Interest and other payment obligations contained in this Agreement including the Fees, Expenses, Interest and other payment obligations incurred during the 30-day period following the provision of written notice.  

C. Transition Assistance.  Upon the expiration of the Term and/or proper notice of non-renewal or termination by Company:  (a) Simpl shall reasonably cooperate with Company, to facilitate a transition by Company to an alternate provider of similar services specified by Company or to a Company solution (“Transition Assistance”) for the period of time requested by Company, not to exceed 90 days from such expiration or termination (“Transition Assistance Period”) at Company’s cost and expense to be billed by Simpl; (b) the terms of this Agreement and the SOW, including payment provisions, shall continue in effect until such transition has been completed or the expiration of the Transition Assistance Period, whichever occurs first; and (c) the Transition Assistance provided by Simpl shall also include additional professional services as requested by Company (“General Transition Services”) that may require additional fees subject to the Parties’ subsequent agreement.  Upon termination of this Agreement due to breach by Company, if Company requests Transition Assistance or General Transition Services, Simpl may elect, in its sole discretion, to provide or refuse such assistance or services.

D. Effect of Termination.  Except as otherwise expressly provided herein and without limiting any other obligations of the Parties set forth in this Agreement, upon expiration or termination of this Agreement, or the conclusion of the Transition Assistance Period, if applicable, all rights granted by Simpl to Company, shall cease and terminate as of the expiration or termination of this Agreement, or the conclusion of the Transition Assistance Period, if applicable.  Termination of this Agreement will not prejudice or affect any right of action or remedy that has accrued or will accrue to either party due to the other party’s acts or omissions prior to the date of termination.  All outstanding Services shall also be deemed terminated immediately upon the expiration or earlier termination of this Agreement, or the conclusion of the Transition Assistance Period, if applicable.  If this Agreement is terminated by Simpl in accordance with Section 6, paragraph B above, Simpl will refund Company any prepaid Fees covering the remainder of the Term up to the effective date of termination, but only after offsetting all amounts owed to Simpl by Company, and all further payment obligations of Company under this Agreement shall terminate and be deemed canceled as of the effective date of termination but only to the extent no amounts remain owed by Company to Simple Fulfillment.  However, Simpl reserves the right to refuse to refund Company if the cause of the termination initiated by Simpl is Company’s material breach of this Agreement.   Further, if this Agreement is terminated by the Company in accordance with Section 6, paragraph B above or if this Agreement is terminated by Simpl due to Company’s material breach of any provision of this Agreement, then the Company shall pay Simpl the average monthly fulfillment costs determined according to the Pay As You Go for the three (3) month period immediately preceding the date of termination (as determined by the Notice of Termination provided by the terminating party).

7. REPRESENTATIONS AND WARRANTIES

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER SIMPL NOR ITS REPRESENTATIVES IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY COMPANY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY SIMPL/ OR COULD HAVE BEEN REASONABLY FORESEEN BY SIMPL, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL SIMPL’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO SIMPL’S EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). SIMPL MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM SIMPL.
9. INDEMNIFICATION.
CLIENT AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS SIMPL FULFILLMENT, ITS OFFICERS, DIRECTORS, AND EMPLOYEES AGAINST ALL THIRD PARTY DAMAGES, LIABILITIES, OR COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND DEFENSE COSTS, TO THE EXTENT (A) CAUSED BY CLIENT’S NEGLIGENT ACTS IN CONNECTION WITH THE SERVICES AND THE ACTS OF ITS CONTRACTORS, SUBCONTRACTORS OR EMPLOYEES OR ANYONE FOR WHOM CLIENT IS LEGALLY LIABLE AND (B) ARISING FROM THE BREACH BY CLIENT OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT. SIMPL FULFILLMENT AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS CLIENT, ITS OFFICERS, DIRECTORS, AND EMPLOYEES AGAINST ALL THIRD PARTY DAMAGES, LIABILITIES, OR COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND DEFENSE COSTS, TO THE EXTENT (A) CAUSED BY SIMPL FULFILLMENT’S NEGLIGENT ACTS IN CONNECTION WITH THE SERVICES AND THE ACTS OF ITS CONTRACTORS, SUBCONTRACTORS OR EMPLOYEES OR ANYONE FOR WHOM THE SIMPL FULFILLMENT IS LEGALLY LIABLE AND (B) ARISING FROM THE BREACH BY SIMPL FULFILLMENT OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT.

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

10. GENERAL PROVISIONS.

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

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

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

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

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

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

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

  • Orders received by Simpl with Standard/Flat-rate shipping on any Business Day before 12:00 PM (local warehouse time) should be fulfilled on the same Business Day. While Simpl will do their best to ship out orders after 12:00 PM, they may go out the following business day.
  • Orders received by Simpl with Expedited/Overnight shipping received on any Business Day before 12:00 PM (local warehouse time) should be shipped on the same Business Day. While Simpl will do their best to ship out orders after 12:00 PM, they may go out the following business day.
  • Orders received by Simpl with Expedited/Overnight shipping received on any Business Day before 12:00 PM (local warehouse time) should be shipped on the same Business Day. While Simpl will do their best to ship out orders after 12:00 PM, they may go out the following business day.
  • Simpl makes no guarantee of fulfillment speeds

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The Customer should inform Simpl of any urgent Orders, and Simpl may use reasonable efforts to send such Orders to Customers. Additional lead time may be required for Orders received during Holidays or Peak Season times. Orders are considered Shipped when a tracking number is generated in any of Simpl’s software systems regardless of their status with any third-party shipping carriers.

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

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

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