Terms and Conditions

Standard Terms and Conditions

PURPOSE

Customer seeks to purchase the products set forth in the Customer Terms (the "Products") offered for sale by the third-party supplier set forth in the Customer Terms (the “Third Party Supplier”). Customer hereby appoints Send 1-2-3 as Customer’s non-exclusive intermediary supplier and retains Send 1-2-3 to provide certain supply chain management services pursuant to this Agreement.

This Agreement does not preclude either Party from entering into an agreement with any other person related to the sale, resale, or distribution of other goods or products, including those that are similar to or competitive with the Products.

PURCHASE ORDERS

1. Customer shall cause the Third-Party Supplier to provide a Pro Forma Supplier Invoice to Send 1-2-3 for the Products, corresponding to the Customer Purchase Order (defined below, and meaning corresponding, without limitation, for the same SKUs, descriptions, and quantities of the Products) (the “Pro Forma Supplier Invoice”). Unless otherwise agreed, Customer shall cause the Pro Forma Supplier Invoice to be issued FOB Third Party Supplier’s place of business, including but not limited to the port, factory, warehouse, and/ or store, as applicable (the “FOB Point”)..

2. Together with Send 1-2-3’s receipt of the Pro-Forma Invoice, Customer will deliver to Send 1-2-3 an irrevocable purchase order on Customer’s letterhead for the Products offered by the Third Party Supplier pursuant to the Pro Forma Invoice, in every case in a manner that is consistent with and in accordance with the Third Party Supplier’s terms and conditions (each such purchase order, a “Customer Purchase Order”). Send 1-2-3 shall accept or reject the Customer Purchase Order at its sole discretion, for any reason. The total price set forth on the Customer Purchase Order shall be the total price listed upon the Pro Forma Supplier Invoice, plus all applicable fees set forth in the Customer Terms, plus any Additional Costs (as defined below). For clarity, the Customer Purchase Order is final and non-cancelable, except in accordance with these terms.

3. Send 1-2-3 shall, at its sole discretion, send a purchase order to the Third-Party Supplier corresponding to the Pro Forma Supplier Invoice (the “Send 1-2-3 Purchase Order”) and, if so, send a corresponding invoice to Customer for the Customer Purchase Order following delivery to the FOB Point as set forth below (the “Customer Invoice”). Send 1-2-3 shall have no obligation to send the Send 1-2-3 Purchase Order, may require approval of and/or proof of insurance coverage prior to sending any Send 1-2-3 Purchase Order, may require additional terms and conditions to be agreed to by either the Third Party Supplier or the Customer before sending any Send 1-2-3 Purchaser Order, may require a non-refundable deposit be paid by the Customer, and shall have no liability to the Customer if Send 1-2-3 decides, for any reason, not to deliver the Send 1-2-3 Purchase Order to the Third Party Supplier (and therefore not send a Customer Invoice). Send 1-2-3 may, at its discretion, use the availability of approval of and/or proof of insurance in respect of a Customer Purchase Order or Send 1-2-3 Purchase Order to establish a limit on the total aggregate value of all Customer Purchase Orders (the “Customer Limit”). Customer agrees not to send Customer Purchase Orders in excess of reasonable limits which may be set by Send 1-2-3.

4. Unless otherwise agreed in writing, Send 1-2-3 shall select the method of shipment of and the carrier for the Products. Unless otherwise agreed in writing, delivery to the Customer of the Products by Send 1-2-3 pursuant to the Customer Purchase Order shall be complete (and the Customer Invoice may be issued) immediately following delivery to the FOB Point pursuant to the Send 1-2-3 Purchase Order, upon the same terms and conditions as the Send 1-2-3 Purchase Order. For clarity, irrespective of anything to the contrary on the Customer Purchase Order, the applicable Incoterms (or point of title transfer) of the Customer Purchase Order shall be deemed to be the same as the applicable Incoterms of the Send 1-2-3 Purchase Order, and title in respect of the Products shall pass from Send 1-2-3 to the Customer immediately following delivery to Send 1-2-3 pursuant to the Send 1-2-3 Purchase Order (which shall also mean delivery to Customer has been completed), and Customer shall be deemed to have accepted delivery to the FOB Point from Send 1-2-3 upon any acceptance of or bona fide attempted delivery pursuant to the Send 1-2-3 Purchase Order. Customer hereby assumes all risk of loss and liability in connection with the Products, irrespective of whether title has transferred, and any costs (including payment due pursuant to the Send 1-2-3 Purchase Order) associated with lost or damaged Products, non-compliant Products, defective or deficient Products, or otherwise that is not directly caused by Send 1-2-3 may be invoiced to the Customer in a Customer Invoice.

5. Whether before or after title has passed to Customer, Customer shall also be responsible for all costs incurred by Send 1-2-3 in connection with the Send 1-2-3 Purchase Order that are not set forth on the Send 1-2-3 Purchase Order (“Additional Costs” as set forth in the Customer Terms).

6. Customer shall promptly pay all amounts due in accordance with the terms set forth in the Customer Terms.

7. All purchase orders and invoices issued and delivered hereunder shall be in a form reasonably acceptable to Send 1-2-3, and shall list, at least:

1. a list of Products to be purchased including, as applicable, make, model, UPC, SKU, etc.;
2. payment terms, if any, in accordance with the Customer Terms;
3. quantities ordered;
4. requested / anticipated delivery date;
5. the FOB Point address.

PAYMENT TERMS

Customer’s payment of the Customer Invoice shall be made pursuant to the Payment Terms set forth in the Customer Terms

ACCEPTANCE OF PRODUCTS

If delivered to Send 1-2-3, Send 1-2-3 shall accept delivery Products from the Third-Party Supplier at its sole discretion, and any acceptance by Send 1-2-3 shall be deemed an acceptance by Customer. If Products are delivered to Customer or their designee (if approved by Send 1-2-3), any rejection of Products shall be at the sole cost of the Customer and shall not relieve Customer of its obligations hereunder. For clarity, regardless of any rejection of Products upon attempted delivery for any reason (whether by Customer, or by another recipient of the Products) or return of Products to the Third-Party Supplier, unless otherwise agreed in writing, Customer shall be responsible for all amounts due to Send 1-2-3 pursuant to the Customer Invoice. Send 1-2-3 is not liable for or in respect of any loss or damage arising from any delay in filling any order, shortfall, error in delivery or production, failure to deliver, loss of Products, damage during delivery or delay in delivery.

Send 1-2-3 shall not be responsible for, and Customer shall be responsible for, any costs resulting from or incurred in connection with rejection of Products (by Customer or any other party, and irrespective of the reason), quality issues, shortfalls, inspection errors, production errors, or other deficiencies in the Products, and Customer hereby releases Send 1-2-3 from all liability (and assumes all risk of liability) in connection with same. For clarity and for example, if Products are deficient such that they must be returned to the Third Party Supplier, repaired or destroyed, all costs associated with such remedy (which shall be selected at Send 1-2-3’s sole discretion) shall be borne by the Customer, and if any such costs are borne by Send 1-2-3, Send 1-2-3 shall be entitled to add such amounts to the Customer Invoice (and, if necessary, reissue the Customer Invoice). Send 1-2-3 may require Customer to approve the quality of Products prior to Send 1-2-3 making payment to the Third-Party Supplier. In the case that the Customer is unresponsive to a request for approval, Send 1-2-3 has the right to make decisions, including on behalf of the Customer, related to the Products, including but not limited to the right to approve and make shipments of Products, cancel shipments of Products, or liquidate Products.

Send 1-2-3 shall facilitate 3rd party inspections of Products, at Send 1-2-3’s discretion, and, in such case, Send 1-2-3 and Customer shall jointly agree upon any necessary procedures for such quality assurance and inspection. All costs incurred in connection with such inspection of goods shall be paid directly by Send 1-2-3.

Send 1-2-3 may, at its sole discretion, agree to vary these terms in the event that Send 1-2-3 procures the Third-Party Supplier. In such case, responsibility for acceptance and liability in connection with this section shall be varied from these terms of this agreement solely as agreed between Send 1-2-3 and the Customer in writing, failing which the terms of this section shall be deemed to apply.

SERVICES

Send 1-2-3 shall provide the supply chain management services set forth in the Customer Terms (the “Services”).

NO WARRANTY

Send 1-2-3 assigns, upon the transfer of title in the Products from Send 1-2-3 to the Customer, any assignable warranties of the Third-Party Supplier to the Customer (“Assigned Warranties”), and otherwise provides no warranties of merchantability, fitness, or any other kind of warranty, guarantee, indemnity, or similar claim or commitment to the Customer (or its customers) in respect of the Products or the Services. Other than the Assigned Warranties, if any, the Products are delivered to the Customer (or its designee approved by Send 1-2-3) by Send 1-2-3 on an AS IS, WHERE IS basis with no right of return to Send 1-2-3. Customer may, independently, negotiate any rights of return, warranty, or other terms and conditions with the Third-Party Supplier, provided such terms and conditions do not affect the terms of this Agreement.

INDEMNIFICATION

Customer (as "Indemnifying Party") shall indemnify, hold harmless, and defend Send 1-2-3 and its parent, officers, directors, partners, shareholders, employees, agents, affiliates, successors and assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees, disbursements and charges, fees and the costs of enforcing any right to indemnification under this Agreement, collection fees and costs (including costs of retaining collection agencies, and losses incurred as a result of the sale of receivables), interest on late payments, and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, the "Losses"), arising out of or relating to rejection of Products (by Customer or any other party, and irrespective of the reason), any claim of infringement of intellectual property or product liability, quality issues, shortfalls, inspection errors, shipping errors, production errors, or other deficiencies in the Products, failure of the Third Party Supplier to fulfil the Send 1-2-3 Purchase Order, negligence, recklessness or intentional misconduct of the Third Party Supplier, negligence, recklessness or intentional misconduct of the Customer, or any breach of this Agreement by the Customer, except to the extent caused by the willful or grossly negligent acts or omissions of the Indemnified Party.

LIMITATION OF LIABILITY

IN NO EVENT ARE SEND 1-2-3 OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT SEND 1-2-3 WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL SEND 1-2-3’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE MARK-UP PAID BY THE CUSTOMER TO SEND 1-2-3. THE FOREGOING LIMITATIONS APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE..

CANCELLATION OF ORDER

The Customer Purchase Order is non-cancelable for any reason. However, the Customer may nevertheless request that Send 1-2-3, at its sole discretion, waive such term and attempt to cancel a Send 1-2-3 Purchase Order, and agree to cancellation of a Customer Purchase Order. Send 1-2-3 may at its sole discretion make reasonable efforts to cancel such Send 1-2-3 Purchase Order but shall have no obligation to do so. If Send 1-2-3 does cancel the Purchase Order, all costs associated with such cancellation (or non-refunded amounts) shall be the sole responsibility of the Customer and subject to the fees due hereunder. Any inadvertent failure or refusal to cancel such Send 1-2-3 Purchase Order shall not be a breach of this Agreement, and Customer shall remain responsible for all payments due pursuant to Customer Invoices issued in respect of Send 1-2-3 Purchase Orders that are not mutually cancelled in whole or in part.

INTELLECTUAL PROPERTY

Except to the extent required to give effect to the terms of this Agreement, neither party provides any license to use any trademark or other intellectual property of the other Party.

CONFIDENTIALITY AND NON-CIRCUMVENTION

From time to time during the Term, either party (as "Disclosing Party") may disclose or make available to the other party (as "Receiving Party") information about its business affairs, goods and services, confidential information and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information, personal information of customers and other sensitive or proprietary information; such information, as well as the terms of this Agreement constitute "Confidential Information" hereunder. Confidential Information excludes information that, at the time of disclosure:

1. is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this section by Receiving Party or any of its representatives;
2. is or becomes available to Receiving Party on a non-confidential basis from a third-party source; provided that such third party is not and was not prohibited from disclosing such Confidential Information;
3. was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party;
4. was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party's Confidential Information; or
5. must be disclosed under applicable law.

Receiving Party shall:

1. protect and safeguard the confidentiality of Disclosing Party's Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
2. not use Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
3. not disclose any such Confidential Information to any Person, except to Receiving Party's Representatives who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

Receiving Party shall be responsible for any breach of this section caused by any of its representatives.

In addition, during the Term of this Agreement and for a period of one year thereafter, and except as required for the purposes of this Agreement, neither Party shall contact, whether directly or non-directly, or otherwise become involved in any transaction with any manufacturers, customers, or suppliers first introduced by or through the other Party without such Party’s permission.

FURTHER ASSURANCES

On Send 1-2-3’s request, Customer shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.

NOTICES

Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (other than routine communications having no legal effect) (each, a "Notice") in writing and addressed to the other Party at its address set out above (or to any other address, including electronic address, that the receiving Party may designate from time to time).

Notices attempted to be delivered via text message, social media message, or in any manner other than in writing addressed to the other Party’s address are not considered valid notices hereunder.

NO FRANCHISE AGREEMENT

The Parties are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Customer and Send 1-2-3. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, Canada Pension Plan contributions, employment insurance premiums, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Customer has the sole discretion to determine Customer’s methods of operation, accounting practices, the types and amounts of insurance Customer carries, personnel practices, advertising and promotion, customers and service areas and methods. The relationship created hereby between the Parties is solely that of supplier and customer (who may be a reseller).

TERMS PARAMOUNT

This Agreement is expressly limited to the terms of this Agreement and the terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Customer’s general terms and conditions contained in any purchase order or other document issued by Customer.

GOVERNMENT APPROVAL

If, at any time, any notification, registration or approval is required to give legal effect in any applicable jurisdiction to this Agreement or the transactions contemplated under this Agreement, Customer shall:

1. immediately take whatever steps may be necessary to properly notify, register, or obtain approval;
2. be responsible for any charges incurred in connection with notifying, registering, or obtaining this approval; and
3. keep Send 1-2-3 currently informed of its efforts regarding this section.

Send 1-2-3 is not obligated to take any step contemplated hereunder until Customer has provided Send 1-2-3 with satisfactory evidence that: (i) this approval, notification, or registration is not required or that (ii) it has been obtained.

CREDITWORTHINESS

Each issuance of a Customer Purchase Order to Send 1-2-3 constitutes Customer’s representation and warranty that Customer can pay for the Products identified in the Customer Purchase Order in accordance with the terms of this Agreement. Throughout the term, unless otherwise agreed in writing, Customer shall be in compliance with all loan covenants and other obligations to its lenders. Customer shall notify Send 1-2-3 immediately of any and all events that have had or may have a material adverse effect on Customer’s business or financial condition, including any change in management, sale, lease, or exchange of a material portion of Customer’s assets, a change of control or ownership, or breach of any loan covenants or other material obligations of Customer to its lenders. If, at any time, Send 1-2-3 determines in its sole discretion that Customer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Send 1-2-3’s other rights under this Agreement, at law or in equity, Send 1-2-3 may without liability or penalty, take any of the following actions:

1. cancel any previously accepted Customer Purchase Orders;
2. delay any further shipment of Products to Customer;
3. stop delivery of any Products in transit in the possession of a common carrier or bailee and cause the Products in transit to be returned to the Third Party Supplier;

No actions taken by Send 1-2-3 under this section (nor any failure of Send 1-2-3 to act under this section) constitute a waiver by Send 1-2-3 of any of its rights to enforce Customer’s obligations under this Agreement including the obligation of Customer to make payments as required under this Agreement.

LATE PAYMENTS

Any payment not made within 5 business days of the date an invoice is due and payable is considered a Late Payment.

Customer shall pay a) a $500 CAD administrative fee (at Send 1-2-3’s election, in the currency of the Customer Purchase Order, and if the Customer Purchase Order is in USD, such fee shall instead be $500 USD), and b) interest on all Late Payments, calculated daily from the date the invoice was originally due and payable, and compounded monthly, at the lesser of the rate of two percent (2%) per month or the highest rate permissible under applicable Law.

Customer shall also reimburse Send 1-2-3 for all costs reasonably incurred in collecting any Late Payments, including, without limitation, legal fees, disbursements, costs incurred in connection with the sale of Products (as described below) and charges. In addition to all other remedies available under this Agreement or at law (which Send 1-2-3 does not waive by the exercise of any rights under this Agreement), Send 1-2-3 may suspend the delivery of any Products if Customer fails to pay any amounts when due under this Agreement.

In the event of any Late Payment, Send 1-2-3 shall be entitled to sell or rent any Products in Send 1-2-3’s possession or control, and the Customer’s sole right shall be to receive any amounts earned by Send 1-2-3 in connection with such sale, less all amounts due hereunder.

NO SET-OFF AND RESALE RISK

Customer shall perform its obligations under this Agreement without set-off, deduction, recoupment or withholding of any kind for amounts owed or payable by Send 1-2-3, whether under this Agreement, applicable law or otherwise, whether relating to Send 1-2-3's breach, bankruptcy or otherwise and whether under this Agreement, any Customer Purchase Order or any other agreement between (a) Customer or any of its affiliates, and (b) Send 1-2-3 or any of its affiliates, or otherwise.

Customer is responsible for all credit risks regarding, and for collecting payment for, all Products sold to third parties, whether Customer has made full payment to Send 1-2-3 for the Products. The inability of Customer to collect the purchase price for any Customer does not affect Customer’s timely obligation to pay Send 1-2-3 for any Product.

COMPLIANCE WITH LAWS

Customer represents and warrants to Send 1-2-3 that it is in compliance with all applicable laws and any contracts applicable to the subject matter of this Agreement, the Products, and the operation of its business. Customer shall at all times comply with all applicable laws.

TERM AND TERMINATION

The term of this Agreement commences on the Effective Date and continues unless terminated. Either Party may terminate this Agreement at any time upon written notice, provided that such termination does not affect any rights or obligations that are, by their nature, meant to survive the termination of this Agreement, or were incurred by the Parties before the expiration or earlier termination.

CUSTOMER REPRESENTATIONS AND WARRANTIES

Customer represents and warrants to Send 1-2-3:

1. It has not sought, and will not seek, any form of credit, loan or third-party financing in connection with the Customer Invoice, Customer Purchase Order or the Products;
2. It is a corporation duly incorporated and validly existing in the jurisdiction of its incorporation;
3. It is duly licensed or registered to carry on business in every jurisdiction in which such qualification is required for purposes of this Agreement;
4. It has all necessary power and capacity to enter into this Agreement, to grant the rights and licences granted under this Agreement and to perform its obligations under this Agreement;
5. It has sufficient funds and is in a financial position to be able to make payments to Send 1-2-3 as they come due;
6. The execution of this Agreement by its representative whose signature is set out at the end hereof has been duly authorized by all necessary action of Customer;
7. No licenses, permits, or other permissions or authorizations are required to purchase, transport or import, as applicable, the Products, or for Send 1-2-3 to carry out its obligations hereunder;
8. The Third Party Supplier is not under or covered by any form of international or domestic sanction, trade restriction or embargo;
9. The Third Party Supplier operates at arms length (including as such term is used in the Income Tax Act) to the Customer;
10. When executed and delivered by each of Send 1-2-3 and Customer, this Agreement will constitute the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with its terms.

Send 1-2-3 warrants to the Customer (other than in cases in which there are allegations of fraud, misrepresentation or non-performance under this agreement), it:

1. Will not knowingly directly contact customers of Customer in connection with the Customer’s sale of Products without the express written consent of the customer;
2. Will not require a personal guarantee from any individual (i.e. natural person) associated with the Customer (other than the representations and warranties provided in the Send 123 Customer Terms);
3. Will not in the ordinary course take any secured interest in respect of the customer’s assets or those of its directors or shareholders;
4. Will not take any equity position in the shareholdings of the Customer pursuant to this Agreement or its enforcement.

ENTIRE AGREEMENT

This Agreement, including and together with related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, conditions and warranties, both written and oral, regarding such subject matter.

HEADINGS

The headings in this Agreement are for reference only and (except for the purpose of providing a capitalized defined term, as applicable) do not affect the interpretation of this Agreement.

SEVERABILITY

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. In no event shall interest charged under this Agreement be higher than the maximum permissible by law, and Customer’s total obligation, if any calculation should result in an interest payment higher than the maximum permissible by law, shall be reduced to the maximum permissible by law.

AMENDMENT

No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing and signed by each Party.

WAIVER

No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement:

1. Any failure or delay in exercising any right, remedy, power, or privilege, or in enforcing any condition under this Agreement; or
2. Any act, omission, or course of dealing between the Parties.

CUMULATIVE REMEDIES

Except as otherwise set forth herein, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, in any other agreement between the Parties or otherwise.

EQUITABLE REMEDIES

Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations in respect of Confidential Information or intellectual property would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any of these obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief.

ASSIGNMENT

Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Send 1-2-3. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. Send 1-2-3 may assign any of its rights or delegate any of its obligations without the consent of Customer. This Agreement is binding on and ensures to the benefit of the Parties and their respective permitted successors and permitted assigns.

GOVERNING LAW AND FORUM

This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto and all matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of Ontario, and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of Ontario or any other jurisdiction) to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Ontario. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Customer hereby appoints Send 1-2-3, its successors and assigns, attorney-in-fact, with full power of substitution, of the Customer for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instruments which such attorney-in-fact may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. Customer authorizes such attorney-in-fact to appear in a court of record and confess judgment (meaning, without limitation, executing a consent to judgment), without process, against Customer in favor of Send 1-2-3 for all past due amounts owed in connection with any Customer Invoice, and including any reasonable attorney's fees.

If for any reason such power of attorney is not effective, or if judgment in the amounts set forth above is not entered against Customer in favour of Send 1-2-3, and for any other controversy, dispute, disagreement, or claim arising out of, relating to or in connection with this Agreement or any breach thereof, including any question regarding its existence, validity, or termination, the parties agree that all such matters shall be finally and conclusively resolved by arbitration under the Rules of the ADR Institute of Canada. The following provisions shall govern any arbitration hereunder:

1. The legal seat of arbitration shall be Toronto and Ontario and Canada.
2. There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the ADR Institute of Canada in accordance with its rules.
3. The language of the arbitration, including the hearings, documentation, and award, shall be English.
4. The Parties shall equally share the fees of the arbitrator[s] and the facility fees.
5. Subject to a final award of costs, the Parties shall each bear their own legal costs and expenses of the arbitration.
6. Any decision of the arbitrator shall be final and binding on the Parties and their respective successors and assigns and there shall be no right to appeal such decision, whether on a question of law, a question of fact, or a mixed question of fact and law.
7. The governing law of the arbitration shall be Ontario, Canada, and the federal laws applicable therein.
8. The arbitration procedures, hearings, documents, and award shall remain strictly confidential between the parties.

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.

FORCE MAJEURE

No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party's (the "Impacted Party") reasonable control, including the following force majeure events (each, a "Force Majeure Event":

1. acts of God;
2. flood, tsunami, fire, earthquake, explosion, sabotage, natural disaster, epidemics, pandemics, including the 2019 novel coronavirus disease (COVID-19) pandemic;
3. war, invasion, rebellion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest;
4. requirements of law;
5. actions, embargoes or blockades in effect on or after the date of this Agreement;
6. action by any governmental authority;
7. strikes, labour stoppages or slowdowns, or other industrial disturbances; and
8. shortage of adequate power, heat, light, air conditioning or transportation facilities.

The Impacted Party shall give notice within ten (10) business days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party's failure or delay remains uncured for a period of twenty (20) business days following notice given by it under this section either Party may thereafter terminate this Agreement.

NO STATEMENTS

Unless expressly permitted under this Agreement, Customer shall not make any statement (whether oral or in writing) in any press release, external advertising, marketing, or promotion materials regarding Send 1-2-3 or its business unless it has received the express written consent of Send 1-2-3.