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Merchant Terms & Conditions

1. Definitions

“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Merchant Materials; or (ii) Merchant’s and/or its Authorized Users’ Use of the Subscription Services.

“Company IP” means the Subscription Services, theunderlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services or any Professional Services, Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.

“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Company to Merchant (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Merchant.

“End Users” means end users of the Sites, including Merchant’s customers and potential customers.

“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Subscription Services or the number of web pages, Sites, or returns/exchanges based on Merchant’s subscription tier.

“Merchant Materials” means all information, data, content and other materials, in any form or medium, that is transmitted or otherwise provided by or on behalf of Merchant or any End Users through the Subscription Services or to Company in connection with Merchant’s Use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other Company IP.

“Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Merchant and accepted by Company in writing; or (iii) quote issued by Company and accepted by Merchant, in each case which references this Agreement and sets forth the applicable

“Professional Services” means the customization,  integration, implementation and/or other professional  services, if any, described in the applicable Order Form. 

“Subscription Services” means the proprietary  technology platform provided by Company, as more  particularly described or identified in the applicable  Order Form.  

“Use” means to use and access the Subscription Services  in accordance with this Agreement and the  Documentation, including by making the Subscription  Services available to End Users via the Sites.

2. Subscription services

(a) Services. Company will provide the  Subscription Services (and if applicable, the  Professional Services) to Merchant in accordance with  the terms and conditions set forth in the applicable Order  Form and this Agreement and any limitations, including  without limitation, in connection with the Licensed  Volume.  

(b) Right to Use the Subscription Services.  As between Merchant and Company, Company owns  and retains all right, title and interest in and to the  Subscription Services, Documentation and the  Professional Services, including all intellectual property  rights therein and Merchant further assigns to Company  any feedback provided by or on behalf of Merchant.  Subject to Merchant’s compliance with the terms and  conditions of this Agreement, Company hereby grants  to Merchant a limited, non-exclusive, non-transferable  (except pursuant to Section 12(a)) right to Use the  Subscription Services in accordance with, and subject  to, the Licensed Volume during the applicable Term.  Subject to the limited rights expressly granted  hereunder, Company reserves and, as between the  Parties will solely own, the Company IP and all rights,  title and interest in and to the Company IP. All intellectual property rights created in any Company IP  will vest solely in Company upon creation, and to the  extent that sole ownership does not originally vest in  Company, such intellectual property rights are hereby  automatically and irrevocably assigned by Merchant to  Company. Merchant will take all actions and execute all  documents reasonably requested by Company to give  effect to the preceding sentence. No rights are granted 

to Merchant hereunder (whether by implication,  estoppel, exhaustion or otherwise) other than as  expressly set forth herein.  

(c) Use Restrictions. Merchant will not and  will not permit any person or entity (including, without  limitation, Authorized Users and End Users) to, directly  or indirectly: (i) copy, modify or create any derivative  work of any portion of the Subscription Services or the  Documentation; (ii) reverse engineer, decompile,  decode, or disassemble or otherwise attempt to derive or  gain improper access to any software component of the  Subscription Services, in whole or in part; (iii) frame,  mirror, sell, resell, market, sublicense, publish,  distribute, reproduce, assign, transfer, rent, lease or loan  any portion of the Subscription Services to any other  person or entity, or otherwise allow any person or entity  to Use the Subscription Services for any purpose other  than for the benefit of Merchant in accordance with this  Agreement; (iv) Use the Subscription Services or  Documentation in any manner or for any purpose that  infringes, misappropriates, or otherwise violates any  intellectual property rights or other right of any person  or entity, or that violates any applicable law; (v) access  or search the Subscription Services (or download any  data or content contained therein or transmitted thereby)  through the use of any engine, software, tool, agent,  device or mechanism (including spiders, robots,  crawlers or any other similar data mining tools) other  than software or Subscription Services features provided  by Company for use expressly for such purposes; or (vi)  Use the Subscription Services, Documentation or any  other Company Confidential Information for  benchmarking or competitive analysis with respect to  competitive or related products or services, or to  develop, commercialize, license or sell any product,  service or technology that could, directly or indirectly,  compete with the Subscription Services. 

(d) Authorized Users. Merchant will not  allow any person or entity other than its employees or  contractors that it authorizes to Use the Subscription Services on its behalf (“Authorized Users”), excluding,  for the avoidance of doubt, making the Subscription  Services available to End Users via the Sites. Merchant may permit Authorized Users to Use the Subscription  Services, provided that (i) the Use, including the number  of Authorized Users, does not exceed the Licensed  Volume; and (ii) Merchant ensures that all Authorized  Users comply with the terms and conditions of this  Agreement, including, without limitation, with  Merchant’s obligations and the restrictions set forth  in Section 2(c). Company may suspend or terminate any  Authorized User’s access to the Subscription Services  upon notice to Merchant in the event that Company  reasonably determines that such Authorized User  

violated this Agreement. Merchant is responsible for all  acts or omissions by its Authorized Users in connection  with their Use of the Subscription Services and for any  use of the Subscription Services by End Users via the  Sites.  

3. Fees

In consideration for Company providing  the Subscription Services and, if applicable, the  Professional Services, Merchant will pay Company the  non-refundable fees set forth in the applicable Order  Form (“Fees”) in accordance with the payment terms set  forth therein and without offset or deduction. If  Merchant has agreed to automatic billing, Company will  charge Merchant’s selected payment method (such as a  credit card, debit card, or other method available in  Merchant’s home country) for any Fees on the  applicable payment date, including any applicable taxes.  If Company cannot charge Merchant’s selected payment  method for any reason (such as expiration or insufficient  funds), Merchant remains responsible for any  uncollected amounts, and Company will attempt to  charge the payment method again as Merchant may  update its payment method information. In accordance  with local law, Company may update information  regarding Merchant’s selected payment method if  provided such information by Merchant’s financial  institution. 

In the event Merchant’s return volume exceeds the  monthly return limits based on the applicable tier set  forth in the Order Form, within ninety (90) days of  notice from Company, Merchant and Company will  discuss in good faith to execute an updated Order Form  that reflects the applicable tier based on Merchant’s  actual return volume. 

4. Merchant materials and data

(a) Company acknowledges that, as  between Merchant and Company and except as set forth  in Section 5(b), Merchant owns and retains all right, title  and interest in and to all Merchant Materials. Company  may use, display and modify the Merchant Materials,  including Merchant’s names, logos, designs, and other  trademarks solely to provide and improve the  Subscription Services and Professional Services during  the Term (as defined below). 

(b) The Parties agree that the terms of the  Data Processing Addendum attached hereto as Exhibit  A (the “DPA”) shall govern Company’s processing of  Personal Data (as defined in the DPA).

5. Representations and warranties

(a) Each Party represents and warrants to  the other Party that: (a) it has full power and authority to  enter into this Agreement; and (b) the execution,  delivery and performance of this Agreement by it have  been duly authorized by all necessary actions and do not  violate its organizational documents. 

(b) Merchant represents and warrants that  Company’s use of the Merchant Materials in accordance  with this Agreement will not violate any applicable laws  or regulations or cause a breach of any agreement or  obligations between Merchant and any third-party. 

6. Term

The initial term of this Agreement  begins on the Effective Date and remains in effect for  one (1) year (the “Initial Term”). Except as otherwise  set forth in the Order Form, following the Initial Term,  this Agreement will automatically renew for additional  periods of one (1) year (each, a “Renewal Term,” and  together with the Initial Term, the “Term”), unless  either Party provides the other with at least sixty (60)  days’ written notice of its intent not to renew this  Agreement prior to the end of the then-current Term. 

7. Termination

Either Party may terminate  this Agreement, effective on written notice to the other  Party, if the other Party materially breaches this  Agreement, and, if able to be cured,such breach remains  uncured thirty (30) days after the non-breaching Party  provides the breaching Party with written notice of such  breach. Company may further terminate this Agreement  immediately upon written notice to Merchant in the  event that Merchant breaches Sections 2(b), 2(c) or  (2(d), or infringes or otherwise violates Company’s  intellectual property rights in and to the Subscription  Services.

8. Effect of Termination

(a) Upon expiration or termination of an  Order Form (other than termination pursuant  to Section 7, each other Order Form that is then-in  effect, if applicable, will remain in effect for the duration  of the then-current Term of such Order Form. 

(b) Upon expiration or termination of each  Order Form: (i) each Party will make no further use of  any Confidential Information belonging to the other  Party, and will promptly return to the other Party (or  destroy) all Confidential Information of the other Party  in its possession or control, except for any archived  electronic communications which may be stored  confidentially, (ii) Merchant’s and its Authorized Users’  

right to Use the Subscription Services pursuant to such  Order Form will immediately terminate and Merchant  shall immediately remove the Subscription Services  from the Sites, including any access by End Users; and  (iii) all Fees owed by Merchant to Company pursuant to  such Order Form will be immediately due; provided that  if Merchant terminates the Order Form for cause in  accordance with Section 7, Company will refund to  Merchant a pro rata amount of any Fees paid up-front  based on the remainder of the applicable Term.  

(c) The rights and obligations of Company  and Merchant contained in Sections 3, 0, Error!  Reference source not found.8, 9, 10, 11 and 12 will  survive any expiration or termination of this Agreement  and Order Forms. 

9. Confidentiality

(a) Confidentiality. As used herein,  “Confidential Information” means any information  that one Party (the “Disclosing Party”) provides to the  other Party (the “Receiving Party”) in connection with  this Agreement, whether orally or in writing, that is  designated as confidential or that reasonably should be  considered to be confidential given the nature of the  information and/or the circumstances of disclosure. For  clarity, the Subscription Services and the  Documentation will be deemed Confidential  Information of Company. The Receiving Party will not  use or disclose any Confidential Information of the  Disclosing Party except as necessary to perform its  obligations or exercise its rights under this Agreement;  provided that Company may use and modify  Confidential Information of Merchant in deidentified  form for purposes of developing and deriving Aggregate  Data. The Receiving Party may disclose Confidential  Information of the Disclosing Party only: (i) to those of  its employees, contractors, agents and advisors who  have a bona fide need to know such Confidential  Information to perform under this Agreement and who  are bound by written agreements with use and  nondisclosure restrictions at least as protective of the  Confidential Information as those set forth in this  Agreement, or (ii) as such disclosure may be required by  the order or requirement of a court, administrative  agency or other governmental body, subject to the  Receiving Party providing to the Disclosing Party  reasonable written notice to allow the Disclosing Party  to seek a protective order or otherwise contest the  disclosure. The terms and conditions of this Agreement  will constitute Confidential Information of each Party  but may be disclosed on a confidential basis to a Party’s  advisors, attorneys, actual or bona fide potential  acquirers, investors or other sources of funding (and  their respective advisors and attorneys) for due diligence 

purposes. Confidential Information shall not include  personal data, which is governed by the DPA. 

(b) Exclusions. The obligations in  Section 9(a) will not apply to the extent any  information: (i) is or becomes generally known to the  public through no fault or breach of this Agreement by  the Receiving Party; (ii) is rightfully known by the  Receiving Party at the time of disclosure without an  obligation of confidentiality; (iii) is independently  developed by the Receiving Party without access to or  use of any Confidential Information of the Disclosing  Party that can be evidenced in writing; or (iv) is  rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure.  

10. Disclaimer; Limitation of Liability

(a) Disclaimer. THE SUBSCRIPTION  SERVICES, PROFESSIONAL SERVICES, AND  OTHER COMPANY IP ARE PROVIDED ON AN “AS  IS” BASIS, AND COMPANY MAKES NO  WARRANTIES OR REPRESENTATIONS TO 

MERCHANT, ITS AUTHORIZED USERS OR TO  ANY OTHER PARTY REGARDING THE  COMPANY IP, THE SUBSCRIPTION SERVICES,  PROFESSIONAL SERVICES OR ANY OTHER  SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT  PERMITTED BY APPLICABLE LAW, COMPANY  HEREBY DISCLAIMS ALL WARRANTIES AND  REPRESENTATIONS, WHETHER EXPRESS OR  IMPLIED, INCLUDING, BUT NOT LIMITED TO,  ANY IMPLIED WARRANTIES OF  MERCHANTABILITY, FITNESS FOR A  PARTICULAR PURPOSE OR NON INFRINGEMENT, AND ANY WARRANTIES  ARISING OUT OF COURSE OF DEALING OR  USAGE OF TRADE. WITHOUT LIMITING THE  FOREGOING, COMPANY HEREBY DISCLAIMS  ANY WARRANTY THAT USE OF THE  SUBSCRIPTION SERVICES OR PROFESSIONAL  SERVICES WILL BE ERROR-FREE, BUG-FREE OR  UNINTERRUPTED. 

FOR THE AVOIDANCE OF DOUBT, THE  SUBSCRIPTION SERVICES ARE INTENDED  ONLY TO FACILITATE THE RETURN AND  EXCHANGE BY END USERS OF PRODUCTS AND  SERVICES SOLD BY MERCHANT THROUGH THE  SITES, AND THE PROCESSING, FULFILLMENT,  AND REFUND OF ANY RETURNS OR  EXCHANGES ARE MERCHANT’S SOLE  RESPONSIBILITY. IN ADDITION, MERCHANT IS  SOLELY RESPONSIBLE FOR COMPLIANCE WITH  

ALL APPLICABLE LAWS, RULES,  REGULATIONS, AND STANDARDS WITH  RESPECT TO THE PRODUCTS AND SERVICES  OFFERED BY MERCHANT. 

(b) Exclusion of Damages. EXCEPT FOR  (I) BREACH OF CONFIDENTIALITY, (II) FRAUD  OR WILFUL MISCONDUCT BY EITHER PARTY,  (III) BREACH OF MERCHANT’S PAYMENT  OBLIGATIONS AND (IV) INFRINGEMENT OR  VIOLATION OF THE OTHER PARTY’S  INTELLECTUAL PROPERTY RIGHTS, NEITHER  PARTY WILL BE LIABLE TO THE OTHER PARTY  FOR ANY INDIRECT, INCIDENTAL, SPECIAL,  EXEMPLARY, PUNITIVE OR CONSEQUENTIAL  DAMAGES, OR ANY LOSS OF INCOME, DATA,  PROFITS, REVENUE OR BUSINESS  INTERRUPTION, OR THE COST OF COVER OR  SUBSTITUTE SERVICES OR OTHER ECONOMIC  LOSS, ARISING OUT OF OR IN CONNECTION  WITH THIS AGREEMENT, THE COMPANY IP OR  THE PROVISION OF THE SUBSCRIPTION  SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY  CLAIM BASED ON CONTRACT, WARRANTY,  TORT (INCLUDING NEGLIGENCE), STRICT  LIABILITY OR OTHERWISE, AND WHETHER OR  NOT SUCH PARTY WAS ADVISED OF THE  POSSIBILITY OF SUCH LOSS OR DAMAGE. 

(c) Total Liability. EXCEPT FOR (I)  COMPANY’S FRAUD OR WILLFUL  MISCONDUCT AND (II) LIABILITY WITH  RESPECT TO PERSONAL DATA, IN NO EVENT  WILL COMPANY’S TOTAL LIABILITY TO  MERCHANT OR ITS AUTHORIZED USERS IN  CONNECTION WITH THIS AGREEMENT, THE  COMPANY IP OR THE PROVISION OF THE  SUBSCRIPTION SERVICES OR PROFESSIONAL  SERVICES EXCEED THE FEES ACTUALLY PAID  BY MERCHANT TO COMPANY IN THE TWELVE  (12) MONTH PERIOD PRECEDING THE EVENT  GIVING RISE TO THE CLAIM, REGARDLESS OF  THE LEGAL OR EQUITABLE THEORY ON WHICH  THE CLAIM OR LIABILITY IS BASED, AND  WHETHER OR NOT COMPANY WAS ADVISED  OF THE POSSIBILITY OF SUCH LOSS OR  DAMAGE. NOTWITHSTANDING THE  FOREGOING, SOLELY FOR LIABILITY WITH  RESPECT TO PERSONAL DATA, IN NO EVENT  WILL COMPANY’S TOTAL LIABILITY TO  MERCHANT OR ITS AUTHORIZED USERS IN  CONNECTION WITH THIS AGREEMENT, THE  COMPANY IP OR THE PROVISION OF THE  SUBSCRIPTION SERVICES OR PROFESSIONAL  SERVICES EXCEED TWO TIMES (2X) THE FEES 

ACTUALLY PAID BY MERCHANT TO COMPANY  IN THE TWELVE (12) MONTH PERIOD  PRECEDING THE EVENT GIVING RISE TO THE  CLAIM, REGARDLESS OF THE LEGAL OR  EQUITABLE THEORY ON WHICH THE CLAIM OR  LIABILITY IS BASED, AND WHETHER OR NOT  COMPANY WAS ADVISED OF THE POSSIBILITY  OF SUCH LOSS OR DAMAGE. 

(d) Basis of the Bargain. THE PARTIES  HEREBY ACKNOWLEDGE AND AGREE THAT  THE LIMITATIONS OF LIABILITY IN THIS  SECTION 10 ARE AN ESSENTIAL PART OF THE  BASIS OF THE BARGAIN BETWEEN COMPANY  AND MERCHANT, AND WILL APPLY EVEN IF  THE REMEDIES AVAILABLE HEREUNDER ARE  FOUND TO FAIL THEIR ESSENTIAL PURPOSE. 

11. Indemnification

(a) Indemnification by Company. Subject  to Section 11(b), Company will defend Merchant against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Merchant’s Use of the  Subscription Services infringes or misappropriates such  third-party’s intellectual property rights, and will  indemnify and hold harmless Merchant against any  damages and costs awarded against Merchant or agreed  in settlement by Company (including reasonable  attorneys’ fees) resulting from such Claim. 

(b) Exclusions. Company’s obligations  under Section 11(a) will not apply if the underlying  Claim arises from or as a result of: (i) Merchant’s breach  of this Agreement, negligence, willful misconduct or  fraud; (ii) any Merchant Materials or the Sites; (iii)  Merchant’s failure to use any enhancements,  modifications, or updates to the Subscription Services  that have been provided by Company, including use of  a prior version of the Subscription Services that has been  superseded by a non-infringing version provided by  Company; (iv) modifications to the Subscription  Services by anyone other than Company; or (v)  combinations of the Subscription Services with  software, data or materials not provided by Company. 

(c) Indemnification by Merchant. Merchant will defend (or settle), indemnify and hold  harmless Company from and against any damages and  liabilities (including court costs and reasonable  attorneys’ fees) awarded in a final judgment against  Company, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising  from a Claim against Company that: (i) the Merchant Materials or its use by Company in accordance with this  Agreement infringes, misappropriates or violates a  

third-party’s intellectual property rights, or rights of  publicity or privacy, or result in the violation of any  applicable law, rule, or regulation; (ii) is based on  Merchant’s or an Authorized User’s Use of the  Subscription Services or Documentation to the extent  such Use was not in accordance with this Agreement;  (iii) is based on the manufacture, sale, return, exchange,  distribution or marketing of any Merchant’s products or  services or any violation of applicable law, rule,  regulation, or standard with respect to Merchant’s  products or services; (iv) is based on a breach of Section  2(c) by Merchant; or (v) is based on negligence, willful  misconduct, or fraud by Merchant. Merchant’s  obligations under this Section 11(c) are contingent  upon: (1) Company providing Merchant with prompt  written notice of such Claim (but in any event notice in  sufficient time for Merchant to respond without  prejudice); (2) Merchant having the exclusive right to  defend or settle such Claim; and (3) Company providing  all reasonably necessary cooperation to Merchant, at  Merchant’s expense, in the defense and settlement of  such Claim. Company may participate in the defense of  any Claim at its own expense.

12. MISCELLANEOUS.

(a) Publicity. Subject to the provisions of  Section 9, each Party shall have the right to publicly  announce the existence of the business relationship  between the Parties. In addition, during the Term, 

Company may use Merchant’s name, trademarks, and  logos (collectively, “Merchant’s Marks”) on  Company’s website and in its marketing materials to  identify Merchant as Company’s customer, provided  that Company shall use commercially reasonable efforts  to adhere to the usage guidelines furnished by Merchant with respect to Merchant’s Marks. 

(b) Non-Solicit. Merchant agrees that  during the Term and for one (1) year thereafter, it shall  not, directly or indirectly, knowingly recruit or solicit  any of Company’s employees or contractors; provided  that this Section shall not prohibit Merchant from  soliciting or hiring any person who responds to a general  advertisement or solicitation not specifically directed at  employees of Company.  

(c) Assignment. Neither Party may assign  or transfer this Agreement, by operation of law or  otherwise, without the other Party’s prior written  consent, except to an acquirer or successor in interest in  connection with a merger or acquisition involving such  Party or sale of all or substantially all or such Party’s  assets. Any attempt to assign or transfer this Agreement  without such consent will be void. Subject to the  foregoing, this Agreement is binding upon and will 

inure to the benefit of each of the Parties’ and their  respective successors and permitted assigns. 

(d) Entire Agreement. This Agreement,  including its exhibits and any Order Forms, is the  complete and exclusive agreement between the Parties  with respect to its subject matter and supersedes any and  all prior or contemporaneous agreements,  communications and understandings, both oral and  written, with respect to its subject matter. This  Agreement may be amended or modified only by a  written document executed by duly authorized  representatives of the Parties. 

(e) Export Regulation. Merchant will fully  comply with all applicable federal laws, regulations and  rules that prohibit or restrict the export or re-export of  the Subscription Services or software, or any Merchant 

Materials, outside the United States (“Export Rules”),  and will complete all undertakings required by Export  Rules, including obtaining any necessary export license  or other governmental approval. 

(f) Force Majeure. Neither Party will be  responsible for any failure or delay in the performance  of its obligations under this Agreement (except for any  payment obligations) due to causes beyond its  reasonable control, which may include, without  limitation, labor disputes, strikes, lockouts, shortages of  or inability to obtain energy, raw materials or supplies,  denial of service or other malicious attacks,  telecommunications failure or degradation, pandemics,  epidemics, public health emergencies, governmental  orders and acts (including government-imposed travel  restrictions and quarantines), material changes in law,  war, terrorism, riot, or acts of God. 

(g) Governing Law; Jurisdiction. This  Agreement will be governed by and construed in  accordance with the laws of the state of New York without giving effect to any principles of conflict of laws  that would lead to the application of the laws of another  jurisdiction. The Parties expressly agree that the United  Nations Convention on Contracts for the International  Sale of Goods will not apply. Any legal action or  proceeding arising under this Agreement will be brought  exclusively in the federal or state courts located in New  York, NY and the Parties irrevocably consent to the  personal jurisdiction and venue therein. 

(h) Notices. All notices required or  permitted under this Agreement will be in writing (email  being sufficient), will reference this Agreement, and  will be deemed given: (i) when delivered personally;  (ii) one (1) business day after deposit with a nationally 

recognized express courier, with written confirmation of  

receipt; (iii) when sent by email, on the date the email  was sent with without a bounce back message if sent  during normal business hours of the receiving party, and  on the next business day if sent after normal business  hours of the receiving party; or (iv) three (3) business  days after having been sent by registered or certified  mail, return receipt requested, postage prepaid. All notices (a) to Company will be sent to Xariable, Inc.  d/b/a Loop, Address: PO Box 16250, Columbus, OH,  43216 Attn: Support, e-mail: support@loopreturns.com 

with a copy (which shall not constitute notice) to:  Fenwick & West LLP, 902 Broadway, 14th Floor, New  York NY 10010, Attn: Evan Bienstock, e-mail:  ebienstock@fenwick.com; and (b) to Merchant will be  sent to the addresses set forth in the applicable Order  Form; or to such other address as may be specified by  either Party to the other Party in accordance with this  Section 12(h). 

(i) Relationship Between the Parties. The  relationship between the Parties is that of independent  contractors. Nothing in this Agreement will be  construed to establish any partnership, joint venture or  agency relationship between the Parties. Neither Party  will have the power or authority to bind the other or  incur any obligations on the other’s behalf without the  other Party’s prior written consent. 

(j) No Third-party Beneficiaries. Unless  otherwise expressly provided, no provision of this  Agreement is intended to confer any rights, benefits,  remedies, obligations, or liabilities hereunder upon any  person or entity other than the Parties and their  respective successors and assigns.  

(k) Severability. If any provision of this  Agreement is held invalid, illegal or unenforceable, that  provision will be enforced to the maximum extent  permitted by law, given the fundamental intentions of  the Parties, and the remaining provisions of this  Agreement will remain in full force and effect. 

(l) Non-Exclusive Remedies. Except as set  forth in this Agreement, the exercise by either Party of  any remedy under this Agreement will be without  prejudice to its other remedies under this Agreement or  otherwise. 

(m) Waiver. Either Party’s failure to  enforce any provision of this Agreement will not  constitute a waiver of future enforcement of that or any  other provision. No waiver of any provision of this  Agreement will be effective unless it is in writing and  signed by the Party granting the waiver. 

(n) 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 (including via  electronic signature) of this Agreement or any Order  

Form transmitted by facsimile, email or other means of  electronic transmission shall be deemed to have the  same legal effect as delivery of an original executed  copy of this Agreement or such Order Form for all  purposes.