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ECOMMERCE CHANNEL DEVELOPMENT TERMS OF SERVICE

GENERAL ECOMMERCE CHANNEL DEVELOPMENT TERMS OF SERVICE

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Last Updated:  March 25, 2021

This Agreement is by and between AMPLIFIED DIGITAL, LLC (“Agency”) and the “Client” identified below and is effective upon the date of Client’s signature (the “Effective Date”).  This Agreement is governed by the General Terms of Service posted as of the Effective Date at [URL], which are incorporated by reference. Terms not defined herein shall have the meaning provided by the General Terms of Service.  In the case of any inconsistency, this Agreement will govern.

  1. ENGAGEMENT

1.1  Client engages Agency to provide the services described in the Scope and Quote accepted by Client, which is incorporated into this Agreement by reference.

1.2  Client and Agency will each identify a main point of contact (or project manager) for day-to-day communications and decision-making. The project manager must have the required authority and qualifications to perform as project manager. The project manager may be replaced at any time by providing the other party written notice.

1.3  Agency’s ability to provide the services requires the full and timely cooperation of Client, as well as accurate and complete information. Accordingly, Client will:

(a)  provide Agency with access to, and use of, all information, data and documentation required by Agency for the performance of its obligations under this Agreement; and

(b)  ensure its main point of contact / project manager timely communicates with Agency.

  1. SITE CONTENT

2.1  Agency will populate, and during any applicable Maintenance Term update, Client’s Amazon Seller and/or Brand Store pages (each a “Site”) with content supplied by or through Client (the “Client Materials”), under the terms set forth in the Scope and Quote.

2.2  Client is responsible for all Client Materials and will ensure the Client Materials do not violate or infringe any applicable laws, regulations or third party rights, including but not limited to the provision of material that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, in breach of any third party’s rights (including Intellectual Property Rights as defined below), or results in the unlawful advertisement, solicitation, offering for sale, or sale of controlled substances or other unlawful goods or services (“Inappropriate Content”). Client shall ensure all Client Materials and the completed Site comply in all respects with any applicable terms of use, acceptable use policies, or other applicable guidelines (collectively the “Third-Party Policies”), including without limitation the STORES CREATIVE ACCEPTANCE POLICIES, the AMAZON SELLING POLICIES AND SELLER CODE OF CONDUCT, and the AMAZON ADVERTISING AGREEMENT as published and updated by Amazon.com, Inc. from time to time.   Any content that violates the Third-Party Policies will be considered Inappropriate Content.  Agency may remove or disable access to content it reasonably suspects to be Inappropriate Content. Agency will notify Client if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.

2.3  Agency may incorporate into the Site certain Pre-Existing Materials. “Pre-Existing Materials” means all content, including documents, data, know-how, ideas, specifications, and software code that (a) were developed by Agency prior to the Effective Date or (b) are utilized by Agency to service other clients or otherwise for purposes other than its performance under this Agreement.

2.4  The Site may include and require the use of Third-Party Materials.  “Third-Party Materials” means content in any form or media, including but not limited to documents, data, know-how, ideas, specifications, plugins, and software code, in which any person or entity other than Client or Agency owns any Intellectual Property Rights (as defined below).

2.5  Client shall be solely responsible for securing all licenses and complying with all restrictions governing the Third-Party Materials, including without limitation payment of all recurring costs and fees to Third-Party Providers as described in the Scope and Quote.

  1. SITE MAINTENANCE

 3.1  Agency will provide the maintenance services, if any, as described in the Scope and Quote accepted by Client and incorporated into this Agreement (the “Maintenance Services”) for the period of time described (the “Maintenance Term”).  Unless otherwise provided in the Scope and Quote, all Maintenance Services are provided on a per-time basis at the then-existing rates posted by Agency.

3.2  Agency will assist Client with changes to the Site as requested under the Maintenance Services.  Agency is not responsible for any changes, additions, or subtractions to the Site made by Client or other persons.  If Client or any third-party person alters the Site in a manner that negatively impacts the Site’s design or functionality, Agency may assist restoration of the Site on a per-time basis at its then-existing rates.

  1. CHARGES AND PAYMENT

4.1  Client will pay Agency properly invoiced fees (“Fees”) as set forth in the Scope and Quote.

4.2  Agency will issue invoices to Client, and payment will be due net thirty (30) days from the invoice date. Failure to secure final approval from Client on Site designs will not be considered a reason to delay payment beyond the due date. Interest will accrue at the rate of 10% per annum for any late payment. In addition to the amount owed for applicable interest or late charges, Client agrees to pay Agency for all expenses incurred by Agency to collect any amounts payable under this Agreement, including costs of collection, court costs and attorney’s fees.

4.3  All Fees are exclusive of taxes. Client will be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.

  1. TERM AND TERMINATION

5.1  This Agreement begins on the Effective Date and continues while there is any effective Scope and Quote in place between Agency and Client, provided that the terms of this Agreement specific to design, development, or maintenance services will only apply during the period Agency is obligated to provide such services.

 5.2  Client will be deemed to have accepted the completed Site upon the occurrence of any of the following events: (i) Client affirmatively states approval of the Site in writing; (ii) Client puts the Site into use or otherwise uses any part of the Site for any revenue-earning purposes or to provide any services to third parties; or (iii)  the expiration of thirty (30) days after Agency delivers Site to Client.

5.3  Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a)  the other party fails to pay any amount due under this Agreement on the due date;

(b)  the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides written notice of such breach;

(c) the other party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general assignment for the benefit of its creditors; or applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

 (d)  the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

(e) in the opinion of Agency, the credit of Client is or may be impaired.

5.4  If this Agreement terminates early, Client will remain obligated to pay Fees for all services rendered before the effective date of termination.

5.5  On expiration or termination of this Agreement, Agency will promptly return all Client Materials to Client. Client agrees to promptly review all provided materials and, within seven (7) calendar days of delivery of such materials (the “Review Period”), notify Agency of any errors, concerns, or additional requests. Agency will assist Client with any questions, errors, or concerns raised during the Review Period on a per-time basis at Agency’s then-existing rates. Upon the earlier of Client’s affirmative approval or the expiration of the Review Period, the delivery will be deemed complete and Agency will have no further obligation to assist Client with requests for Site materials.

5.6  Agency will notify Client of any Third-Party Materials that cannot be released to Client due to licensing or other restrictions.  Client acknowledges and agrees the removal of Third-Party Materials from the Site may materially affect the form of the delivered Site, and Client bears all responsibility, costs and expense for directly securing the rights, licenses, consents, and approvals necessary to replace the Third-Party Materials with identical or similar components.

  1. ENTIRE AGREEMENT

6.1  This Agreement, together with the General Terms of Service and Scope and Quote incorporated by reference, constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

6.2  Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

  1. RELATIONSHIP OF THE PARTIES

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and, unless otherwise stated herein, neither party shall have authority to contract for or bind the other party in any manner whatsoever.  Notwithstanding the foregoing, Agency shall act as Client’s “Contractor” as that term is defined by the Amazon Advertising Agreement published at https://advertising.amazon.com/terms.

  1. EXECUTION IN COUNTERPARTS

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.