These Standard Terms of Service (the “Agreement” or the “Terms”), together with the online order form, service selection, and service description to which these Terms are linked or attached (collectively, the “Online Agreement”), govern the relationship between O&A Investments LLC, doing business as Amerify Co. (the “Contractor”), and the client identified in the Online Agreement (the “Client”; and together with Contractor, the “Parties”). The Services, the recurring Fee, the billing date, the Initial Term or minimum commitment (if any), the renewal basis, the cancellation notice period, and any other deal-specific terms are as set forth in the Online Agreement. In the event of a conflict between these Terms and the Online Agreement, the terms of the Online Agreement shall prevail.
RECITALS
Client desires to retain Contractor to provide the ongoing, done-for-you management services described in the Online Agreement (collectively, the “Services”); and
The Contractor has agreed to provide the Services for the Client on a recurring basis.
AGREEMENT
In consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:
1. Appointment of Contractor; Term; Renewal.
a. Appointment and Acceptance. Client hereby appoints Contractor to provide the Services in accordance with the terms and conditions of this Agreement. Contractor hereby accepts such appointment and agrees to provide the Services subject to, and in accordance with, the terms and conditions of this Agreement.
b. Term; Renewal. This Agreement shall commence on the Effective Date and continue for the initial term or minimum commitment, if any, specified in the Online Agreement (the “Initial Term”). Upon expiration of the Initial Term (or, if no Initial Term is specified, from the Effective Date), this Agreement shall automatically continue on a month-to-month basis until terminated in accordance with Section 1(c) or Section 6 (together with the Initial Term, the “Term”).
c. Cancellation for Convenience. After the Initial Term, either Party may terminate this Agreement for convenience upon the cancellation notice period specified in the Online Agreement, or, if none is specified, upon thirty (30) days’ prior written notice. Client may not terminate for convenience during the Initial Term; any early termination by Client during the Initial Term is governed by Section 6(b). Termination does not relieve Client of the obligation to pay all Fees accrued or committed through the effective date of termination.
d. Modifications to Services. The Services may be modified only by means of written agreement (which may be electronic) between the Parties specifying the changes. Material changes to the scope of the Services may be subject to an adjustment of the Fee as agreed between the Parties.
2. Fees; Recurring Billing; Late Payment; Suspension.
a. Monthly Fee. As consideration for the Services, Client agrees to pay Contractor the recurring monthly Fee set forth in the Online Agreement (the “Fee”). Each monthly Fee is earned in full for the applicable billing period and, except as expressly stated in this Agreement, is non-refundable.
b. Authorization to Charge. Client authorizes Contractor and its third-party payment processor to automatically charge Client’s designated payment method for the Fee on the billing date specified in the Online Agreement for each billing period, on a recurring basis and without further authorization, until this Agreement is terminated. The first charge may be prorated as set forth in the Online Agreement. Client shall keep a valid payment method on file at all times during the Term.
c. Price Changes. Contractor may adjust the Fee effective as of any renewal or month-to-month period upon at least thirty (30) days’ prior written notice to Client. Client’s continued receipt of the Services after the effective date of the change constitutes acceptance of the adjusted Fee.
d. Late Payment. Any amount not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less, from the due date until paid in full.
e. Suspension for Non-Payment. If any payment fails or remains unpaid for more than five (5) business days after the due date, Contractor may, in addition to its other remedies, suspend or pause the Services until all outstanding amounts are paid, without liability to Client and without extending the Term. Fees continue to accrue during any suspension caused by Client’s non-payment.
f. Chargebacks. Client agrees to contact Contractor to resolve any billing concern before initiating a chargeback or payment dispute. A chargeback or dispute of a validly charged Fee constitutes a material breach of this Agreement, and Client shall remain responsible for the disputed amount together with any associated fees and Contractor’s reasonable costs of collection.
g. Taxes. The Fee is exclusive of any applicable sales, use, or similar taxes, which are the responsibility of Client (excluding taxes on Contractor’s net income).
3. Independent Contractor.
a. Relationship. Nothing contained herein or in any document executed in connection herewith, shall be construed to create an employer-employee relationship, partnership, or joint venture relationship between Client and Contractor. Contractor is an independent contractor and not an employee of Client or any of its subsidiaries or affiliates. The Fee shall be the sole consideration due to the Contractor for the Services, unless otherwise agreed in writing between the Parties. It is understood that Client will not withhold any amounts for payment of taxes from the payment(s) made to Contractor hereunder.
b. Agents. Contractor shall be solely responsible for all of its directors, officers, employees, representatives, subcontractors, and agents (collectively, “Contractor Agents”) and shall at all times supervise and oversee such Contractor Agents. Client shall be solely responsible for all of its directors, officers, employees, representatives, subcontractors, and agents (collectively, “Client Agents”) and shall at all times supervise and oversee such Client Agents.
4. Client Responsibilities; Account Access; Advertising Spend.
a. Cooperation. Client shall provide, on a timely basis, all access, materials, product information, brand assets, approvals, and decisions reasonably necessary for Contractor to perform the Services. Contractor is not responsible for any delay or deficiency in the Services caused by Client’s failure to provide the foregoing.
b. Account Access. Client shall grant Contractor the access reasonably necessary to perform the Services (for example, authorized-user or limited administrative access to Client’s Amazon Seller Central, TikTok Shop, advertising, or related accounts). Contractor shall not be required to hold, and does not assume responsibility for, Client’s master account login credentials. Client remains at all times the owner of its accounts and the seller of record for all products sold thereunder.
c. Advertising and Platform Spend. All advertising spend, platform fees, subscription fees, and other third-party costs incurred in connection with the Services shall be billed directly to Client’s own payment method on Client’s own platform account and are the sole financial responsibility of Client. Such amounts are separate from, and in addition to, the Fee. Contractor does not front, finance, advance, or include any advertising or platform spend within the Fee, and does not hold or process Client funds for such spend.
d. Client Compliance. Client is solely responsible for its products, product safety and regulatory compliance, the accuracy and legality of product listings and claims, inventory and fulfillment, applicable taxes, and its own compliance with the terms of service and policies of Amazon, TikTok, and any other applicable platform. Client shall not direct Contractor to take any action that violates any platform’s terms of service or applicable law.
5. Confidentiality; Non-Publicity; Non-Disparagement and Non-Solicit.
a. Confidential Information. Except as set out in subsection (b) below, “Confidential Information” means any and all information disclosed on or after the Effective Date, by either Party (a “Disclosing Party”) to the other Party (a “Recipient”) or its related persons and entities, including its and their direct and indirect principals, equity holders, managers, directors, employees representatives and/or agents (collectively, “Affiliate Persons”), the terms of this Agreement, Deliverables (if any), the operations of Affiliate Persons, the Services, and any other information disclosed to or otherwise learned by the Recipient or its employees about the Disclosing Party, either directly or indirectly, whether in writing, orally or by drawings or other observation, including information of any third party, including customers, learned or otherwise acquired by the Recipient in connection with the Services or this Agreement. Each Party agrees at all times during, and for five (5) years after the Term (i) to hold in strictest confidence all Confidential Information of the other Party; (ii) for Recipient to not use any Confidential Information of Disclosing Party except for the benefit of Recipient and in accordance with the terms of this Agreement; and (iii) to not disclose any Confidential Information to any person or entity without prior written authorization of the Disclosing Party; provided, however, that Contractor may disclose Confidential Information of Client to its employees, contractors and advisors solely if and to the extent (x) such employees, contractors and advisors have a need to know such Confidential Information in order to perform Contractor’s Services under this Agreement; (y) such employees, contractors and advisors are bound by confidentiality obligations similar to those contained herein; and (z) Contractor shall remain responsible for any and all breaches by such employees, contractors and advisors. Notwithstanding the foregoing, Recipient may disclose the Confidential Information if required to do so by court order or other legal process, in which case Recipient shall notify Disclosing Party of any such order to the extent it is legally permitted to do so and cooperate with the Disclosing Party to obtain a protective order at Disclosing Party’s expense.
b. Notwithstanding the foregoing, Confidential Information does not include any of the information (i) which has become publicly known and made generally available through no wrongful act of the Recipient or any of its employees (or any other person or entity who was under confidentiality obligations as to the item or items involved), or (ii) which is independently developed without using or reference to the Confidential Information. Each Party shall, upon expiration or termination of this Agreement, or at any other time upon written request by the other Party deliver (and will not keep in its possession, recreate, or deliver to anyone else) any Confidential Information or any copies thereof unless agreed in writing by the Parties.
c. Non-Disparagement. Each Party agrees to refrain from publicly or privately making false, misleading, or defamatory statements about the other Party or any of its Affiliate Persons. Nothing in this Section restricts either Party from making truthful statements, providing honest reviews or feedback, or responding to lawful requests from a governmental or regulatory authority.
d. Non-Solicit. Client agrees that during the Term and for a period of one year thereafter (the “Restricted Period”), Client shall not, directly or indirectly, solicit any employee, contractor or subcontractor of Contractor or any person or entity who was an employee, contractor or subcontractor of Contractor during the Term. Client further agrees that it will not, without prior written consent of Contractor, during the Term or during the Restricted Period, alone or with others, directly or indirectly, induce or assist any person or entity in inducing any employee, contractor, or subcontractor that is or that is hereafter employed or engaged by Contractor to cease doing business with Contractor or otherwise alter or limit its business relationship with Contractor. If Client breaches this Section 5(d) by hiring any employees, contractors, or subcontractors of Contractor, and prior written authorization has not been obtained, Client shall reimburse Contractor for the reasonable costs of recruiting and replacing such person, which the Parties agree is equal to the greater of: (a) the then current annual salary or annualized fees of each employee, contractor or subcontractor hired in contradiction of this Section 5(d), or (b) $10,000. The Restricted Period will be extended while Client is in breach thereof for a period of time commensurate with the period of time that Client was in breach, to ensure that Contractor receives the full benefit of the Restricted Period.
6. Termination.
a. Termination for Cause. Either party may terminate this Agreement for cause if the other party (“Defaulting Party”) materially breaches any of the material terms of this Agreement and fails to cure such breach within five (5) days after receiving written notice from the other party.
b. Early Termination During Initial Term. If Client terminates this Agreement (other than for Contractor’s uncured material breach under Section 6(a)) before the end of the Initial Term, or if Contractor terminates for Client’s uncured material breach during the Initial Term, Client shall pay, as an early-termination fee and not as a penalty, an amount equal to the remaining monthly Fees that would have become due through the end of the Initial Term. The Parties agree this amount is a reasonable estimate of Contractor’s losses, which would be difficult to calculate precisely, given that Contractor commits staffing and resources to the engagement in reliance on the full Initial Term.
c. Final Accounting. Upon termination or expiration of this Agreement, Client shall pay Contractor any unpaid amounts owing for the Services through the effective date of termination, together with any amount due under Section 6(b).
d. Abuse Clause. Contractor reserves the right to terminate this Agreement immediately in the event of verbal abuse directed at its employees. This includes, but is not limited to, swearing, yelling, threats, or any other behavior deemed abusive at Contractor’s sole discretion. In such cases, all Fees accrued and committed through the end of the then-current Initial Term (if any) remain due, after which neither party shall have further obligation.
e. Survival. The following sections shall survive termination of this Agreement: Section 4 (Client Responsibilities — as to accrued obligations); Section 5 (Confidentiality); Section 6(c) (Final Accounting); Section 6(e) (Survival); Section 7 (Limitation of Liability); Section 8 (Work for Hire); Section 9(d) (Warranty Exclusions); Section 10 (Force Majeure); and Section 11 (Miscellaneous). All rights, obligations, or liabilities that by their nature or stated duration are intended to survive termination shall remain in effect.
7. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR CLIENT’S OBLIGATION TO PAY FEES DUE TO CONTRACTOR PURSUANT TO THIS AGREEMENT AND EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, IN NO EVENT (I) SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNTS PAID BY CLIENT TO CONTRACTOR UNDER THIS AGREEMENT DURING THE SIXTY (60) DAYS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EXCEPT THAT DAMAGES FOR BREACH OF SECTION 5(d) (NON-SOLICIT) ARE NOT SO LIMITED, AND THE EXISTENCE OF MORE THAN ONE CLAIM OR CAUSE OF ACTION WILL NOT ENLARGE THE FOREGOING LIMIT, AND (II) SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY, ENHANCED OR INDIRECT DAMAGES OR FOR LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, BUSINESS INTERRUPTION DAMAGES OR DAMAGES MEASURED BY MULTIPLES OF PROFITS OR MULTIPLE OF CASH FLOW OR ANY SIMILAR VALUATION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN.
8. Work for Hire.
a. Contractor agrees that, except as set forth herein with respect to Background Intellectual Property (defined below), the Work Product (defined below), if any, shall be and are hereby assigned to Client as the sole and exclusive property of Client automatically and immediately upon Client’s payment of all applicable Fees to Contractor with respect to such Work Product. To the extent that Contractor incorporates any of Contractor’s Background Intellectual Property in the Work Product, Contractor hereby grants to Client a non-exclusive, transferable, sub licensable, worldwide, royalty-free license to use the incorporated Background Intellectual Property of Contractor in order to obtain the use and commercial benefit of the Work Product. Contractor shall, at Client’s request, execute and deliver to Client such documents or other instruments which Client may from time to time deem necessary or desirable to evidence, maintain, perfect, protect, enforce, or defend Client’s right, title, and interest in and to the Work Product. Except for the limited use rights set forth herein, this Agreement does not grant and shall not be construed as granting to Client, a license, or any rights under any of Contractor’s Background Intellectual Property beyond that necessary for the purpose as set forth herein. For purposes of this Agreement, “Background Intellectual Property” means all intellectual property owned by or licensed to Contractor prior to or independently of this Agreement, including Contractor’s methodologies, processes, templates, tools, and know-how, and all improvements or modifications thereto regardless of the Party responsible for such improvement or modification. Further, for purposes of this Agreement, the work product, if any, to be provided in connection with the Services are as set forth in the Online Agreement (the “Work Product”).
9. Representations and Warranties; Standard of Care; Warranty Exclusions.
a. Representations and Warranties of Contractor. Contractor represents, warrants and covenants that (i) Contractor has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and (ii) this Agreement constitutes a valid and binding obligation of Contractor enforceable in accordance with its terms.
b. Standard of Care. Contractor shall perform the Services in a professional and workmanlike manner consistent with prevailing industry standards for done-for-you Amazon and e-commerce management services. Contractor is responsible for the quality and manner of its own performance. Contractor does not, however, guarantee or warrant any particular business outcome, including any specific level of sales, revenue, profit, ranking, traffic, conversion, or growth, all of which depend on factors outside Contractor’s reasonable control — including Client’s products, pricing, inventory, and budget; the policies, algorithms, and enforcement actions of Amazon, TikTok, and other platforms; market conditions; and competitor activity.
c. Representations and Warranties of Client. Client represents, warrants, and covenants that (i) Client has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement constitutes a valid and binding obligation of Client enforceable in accordance with its terms; (iii) if Client is not a natural person, the execution of this Agreement by its representative has been duly authorized by all necessary action; and (iv) the information, products, and materials provided to Contractor are and will be accurate and complete in all material respects and will not infringe the intellectual property rights of, or violate any law or platform policy applicable to, any third party.
d. WARRANTY EXCLUSIONS. CONTRACTOR IS BEING ENGAGED ONLY TO PROVIDE THE SERVICES SET FORTH IN THIS AGREEMENT AND THE KEY COMMERCIAL TERMS. CLIENT ACKNOWLEDGES THAT THE SERVICES ARE AN ITERATIVE PROCESS AND MAY REQUIRE MODIFICATION IN RESPONSE TO CHANGES IN AMAZON’S, TIKTOK’S, OR OTHER PLATFORMS’ POLICIES AND REQUIREMENTS. WITH THE EXCEPTION OF THE REPRESENTATIONS AND WARRANTIES IN SECTION 9(a) AND THE STANDARD OF CARE IN SECTION 9(b), CONTRACTOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES OR ANY DELIVERABLE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CONTRACTOR MAKES NO WARRANTY THAT THE SERVICES OR ANY WORK PRODUCT WILL MEET CLIENT’S REQUIREMENTS, THAT THE RESULTS OBTAINED FROM THE SERVICES WILL BE SATISFACTORY, OR THAT THE SERVICES WILL MEET CLIENT’S EXPECTATIONS. THE REPRESENTATIVES OF CONTRACTOR HAVE NO AUTHORITY TO GIVE ANY WARRANTIES OR GUARANTEES OF RESULTS ON BEHALF OF CONTRACTOR. CLIENT IS SOLELY RESPONSIBLE FOR THE IMPLEMENTATION OF ANY COURSE OF ACTION BASED ON SUCH SERVICES.
10. Force Majeure.
Neither Party shall be liable for any delay or failure to perform its obligations (other than Client’s payment obligations for Services rendered) to the extent caused by events beyond its reasonable control, including acts of God, natural disaster, fire, flood, epidemic or pandemic, war, terrorism, civil unrest, labor disputes, failure of the internet or utilities, and governmental action. Without limiting the foregoing, the Parties acknowledge that Contractor’s performance depends on third-party platforms, and any suspension, restriction, de-platforming, account action, or change in the policies, algorithms, fee structures, or availability of Amazon, TikTok, or any other platform shall be deemed a force majeure event as to Contractor. If a force majeure event continues for more than thirty (30) days, either Party may terminate this Agreement upon written notice, subject to Client’s obligation to pay for Services rendered through the date of termination.
11. Miscellaneous.
a. No Waiver. Failure to invoke any right, condition, or covenant in this Agreement by either Party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant, and neither Party may rely on such failure.
b. Delegation and Assignment. Contractor, in its sole discretion, may assign or delegate any duties or assign any rights under this Agreement in whole or in part without the prior written consent of Client. Client may not assign any of its rights under this Agreement nor delegate any of its duties under this Agreement without the consent of the Contractor.
c. Notices. All notices required under this Agreement shall be in writing, in English, and shall be deemed duly given if delivered (i) personally, (ii) on the day of transmission if sent by electronic mail to the e-mail address set forth in the Online Agreement with confirmation of receipt, (iii) by overnight delivery with a reputable national overnight delivery service, or (iv) by certified mail, return receipt requested, postage prepaid (“Notice”). If any Notice is mailed, it shall be deemed given five (5) calendar days after deposit with the postal service.
d. Entire Agreement and Amendments. This Agreement (together with the Online Agreement) constitutes the entire agreement of the Parties with regard to the subject matter hereof and replaces and supersedes all other prior or concurrent agreements and understandings, whether written or oral. No amendment or extension of this Agreement shall be binding unless in writing and signed by both Parties.
e. Construction. The headings of this Agreement are for purposes of reference only and will not limit or otherwise affect the meaning hereof. The words “include” and “including” will be read as being followed in each case by the words “without limitation.” Any reference herein to “dollars” or “$” shall mean United States dollars. The term “business day” means a day other than a Saturday, Sunday, or other day on which commercial banks in the State of Wyoming are authorized or required to close. Each Party represents and agrees that it has been represented by, or had the opportunity to be represented by, independent counsel of its own choosing, that it has carefully read and fully understands this Agreement in its entirety, and that it has executed this Agreement free from coercion, duress or undue influence. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
f. Counterparts; Electronic Delivery. This Agreement may be executed and accepted electronically, and may be executed in multiple counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Delivery and acceptance by electronic means will be treated in all manner and respects as an original and will be considered to have the same binding legal effect as an original signed version delivered in person. Each Party waives any defense to the formation of a contract based on the use of electronic delivery or acceptance, except to the extent such defense is solely based on lack of authenticity.
g. Binding Effect. This Agreement shall be binding upon and shall inure to and is solely for the benefit of Client and Contractor and their successors and permitted assigns, and shall not be deemed to confer upon any other person or entity any remedy, claim, liability, cause of action, or other right.
h. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. If any provision is held by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement shall remain in full force and effect.
i. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Wyoming without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of Wyoming. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted in the federal courts of the United States or the courts of the State of Wyoming, in each case located in the city of Sheridan, and each Party irrevocably submits to the jurisdiction of such courts and waives any objection based on improper venue or forum non conveniens.
j. Equitable Relief. Notwithstanding the foregoing, the Parties acknowledge and agree that a remedy at law for breaches or attempted breaches of the provisions of Section 5 may be inadequate, and therefore, each Party is entitled to seek specific performance and injunctive or other equitable relief in the event of any such breach or attempted breach, in addition to any other rights or remedies available to the Parties at law or in equity.
k. Prevailing Party. In any action or proceeding to enforce or interpret this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, court costs, and expenses from the non-prevailing Party.
l. Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
12. Protection of Personal Information.
The Contractor uses the latest technology to protect personal information from a security breach or cyber-attack. However, no data transmissions over the Internet can be guaranteed to be 100% secure. Consequently, the Contractor shall not be liable for, or shall guarantee or warrant, the security of any information transmitted. Once the Contractor receives personal information, every effort shall be made to safeguard each security system by using physical, electronic, and procedural measures to protect all personal information transmitted. Should the Contractor discover a security breach, it shall notify the Client electronically in order that appropriate protective steps can be taken into consideration.
13. Duties to Maintain Confidentiality.
Except as permitted in the previous Section, the Parties: (a) shall not make any public announcement or statement containing Confidential Information without prior written consent of the Party concerned except to the extent required to comply with the direction of a legal authority; (b) shall not mention or otherwise use the name or trademark of the other Party or its affiliates in any publication, press release, promotional material or other form of publicity without the prior written consent of the appropriate officer designated by the Party concerned, provided that Contractor may identify Client as a client and describe the Services performed in Contractor’s portfolio and marketing materials unless Client objects in writing; (c) shall take all steps as may be reasonably necessary to protect the integrity of the Confidential Information and to ensure against any unauthorized disclosure thereof; (d) shall promptly inform the Party concerned of any potential or accidental disclosure of the Confidential Information and take all steps, together with the Party concerned, to retrieve and protect the said Confidential Information; and (e) shall use the Confidential Information only for the purpose for which it was provided and not profit from the same in any unauthorized manner to the exclusion of the Party concerned.