AGREEMENT FOR THE PROVISION OF CONSULTING SERVICES

DISCLAIMER OF LIABILITY AND HOLD HARMLESS PROVISION

The Customer acknowledges and agrees that the services provided under this Agreement are not always successful, and in some cases, may have unintended and negative results, including loss of product sales and income.  The Customer voluntarily accepts and incurs all risks associated with the Consultant’s provision of the services under this Agreement and hereby agrees to indemnify and hold the Consultant, its employees, and agents harmless for any and all liability and losses arising from the Consultant’s performance of the services under the Agreement, whether or not caused in whole or in part by the Consultant’s negligence, including, but not limited to, losses in product sales and revenue and all issues relating to the Customer’s Amazon account.  To the extent legally possible, the Customer waives all claims against the Consultant relating to the services called for under the Agreement.

DATED: July 12, 2016

BETWEEN (the Customer and/or Client)

AND:

Torrential Traffic Marketing (the Consultant and/or Software Service Provider)

PART 1 PARTIES

BETWEEN

1.1 Any Customer

(the Customer and/or Client)

and

1.2 Torrential Traffic Marketing, LLC of 4015 Gloucester Drive, Cedar Park, TX 78613.

(the Consultant and/or Software Service Provider)

and

1.2 Torrential Traffic Marketing, LLC of 4015 Gloucester Drive, Cedar Park, TX 78613.

(“the Consultant”)

PART 2 RECITALS

2.1 The Customer wishes to increase its visibility on Amazon.

2.2 The Customer wishes to outsource Amazon rankings and/or product and associated properties.

2.3 The Consultant is able to provide a consultative marketing service, particularly in the area of internet marketing.

2.4 The Customer wishes to avail itself of the expertise of the Consultant.

THE PARTIES AGREE as follows:

PART 3 INTERPRETATION AND DEFINITIONS

3.1 In this Agreement for the Provisions of Consulting Services (“the Agreement), unless the context requires otherwise:

(a) The singular includes the plural and vice versa.

(b) A reference to one gender includes a reference to all other genders.

(c) Headings to clauses are included for the sake of convenience only and shall not affect the interpretation of the clauses to which they relate.

(d) References to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any orders, regulations, instruments or other subordinate legislation made under the relevant statute.

(e) A reference to dollars shall be a reference to United States Dollars.

(f) The word “person” means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee or not.

(g) This Agreement shall bind each party’s legal personal representatives, successors, and assigns.

(h) A reference to days means days on which banks in Austin, Texas, are typically open for trading, colloquially known as “business days.”

3.2 “Additional Term” means the term referred to in Item 8 of the Schedule “A” attached hereto.

3.3 “Business Management” means the day-to-day running of the business of the Customer.

3.4 “Commencement Date” means the date defined in Item 6 of the attached Schedule “A” and/or date that payment has been received by the Consultant under this agreement.

3.5 “Consulting Fee” means the applicable consulting fee. For the Term of the Agreement, the applicable consulting fee is the Initial Consulting Fee. For each Additional Term, the applicable consulting fee is the Consulting Fee For Each Additional Term.

3.6 “Consulting Fee For Each Additional Term” means the Consulting Fee For Each Additional Term as defined in Item 2 of the attached Schedule “A,” which is payable to the Consultant by the Customer for performing the Services.

3.7 “Initial Consulting Fee” means the Initial Consulting Fee defined in Item 1 of the attached Schedule “A,” which is payable to the Consultant by the Customer for performing the Services.

3.10 “Official Email Address” means the official email address of the relevant party as defined in Item 9 of the attached Schedule “A.”

3.11 “Primary Search Engines” means any variation of the search engine or search engines colloquially known as Amazon.

3.12 “Services” means the services set out in Item 4 of the attached Schedule “A.”

3.13 “Term” means the term referred to in Part 5 of this Agreement.

3.14 “Termination Date” means the termination date defined in Item 7 of the attached Schedule “A.”

3.15 “Website” means the website(s) and/or Product(s) defined in Item 5 of the attached Schedule “A.”

3.16 “Website Recovery Fee” means the sum defined in Item 3 of the attached Schedule “A” for the purpose of recovery from a loss of rankings referred to in Part 8 of this Agreement.

PART 4 APPOINTMENT OF THE CONSULTANT

4.1 The Customer engages the Consultant to provide the Services to assist the Customer in marketing, promoting and selling the Product through the internet.

4.2 The Consultant agrees, subject to Parts 6.4 and 12 of this Agreement, to provide the Services and in so doing, to make available to the Customer all knowledge, information and expertise available to or in the possession of the Consultant or any person employed by it concerning the information, methods, techniques and other matters available to assist the marketing interests of the Customer.

PART 5 TERM

5.1 This Agreement shall be deemed to have commenced on the Commencement Date and shall continue until the Termination Date (“Term”) unless terminated pursuant to Part 11 of the Agreement.

5.2 On the Termination Date, this Agreement shall automatically renew for the length of the Additional Term unless terminated pursuant to Part 11.

5.3 Thereafter, this Agreement shall continue to renew for the length of the Additional Term until terminated pursuant to Part 11.

PART 6 DUTIES OF CONSULTANT

6.1 Implement strategies to improve the visibility of the Customer’s Products in Amazon. This may include any or all of the following (guided by the Consultant’s expertise):

(a) Ranking Amazon products as highly on Amazon listings as possible within unique variables influencing said product listing or listings.

(b) Give access to the Customer to the tracking in 6.1(f) in an efficient, timely manner.

6.2 Powers generally

Subject to any other provision of this Agreement, the Consultant will have the power to manage and deal with the marketing strategies and budget approved by the Customer as the Consultant sees fit.

6.3 Assignment Expressly Allowed

The Customer hereby acknowledges and agrees that the Consultant may at any time assign all or any part of its right, title, and interest in this Agreement to any legal entity that at the date of this Agreement substantially controls the Consultant. The Consultant shall not be required to obtain the Customer’s consent to any such assignment.

6.4 Trade Secrets and Records

The Customer acknowledges and agrees that many of the formulas and day-to-day activities that the Consultant will use and undertake in performance of this Agreement constitute trade secrets.  As such, the Customer shall not be entitled to access to the records of or any information pertaining to any of the Consultant’s activities in carrying out its obligations under this Agreement unless specifically provided by the Consultant at the Consultant’s sole discretion.

PART 7 STANDARD OF SERVICES

7.1 Professional Service

The Consultant will perform the Services in accordance with this Agreement and with the diligence and care expected of a professional experienced in providing services of this type.

7.2 Warranty as to Performance

The Consultant warrants to the Customer that all materials, workmanship, and methods used by it will:

(a) be suitable in all respects for their intended purposes at the time they were used or created;

(b) meet the requirements for fulfilling this Agreement; and

(c) comply with all relevant legislation and American standards (unless this Agreement provides otherwise).

PART 8 PERFORMANCE OF THE SERVICES

8.1 Performances

Subject to Part 6.4, in providing the Services the Consultant must:

(a) comply with the directions of the Customer, as directed by the board of directors; and

(b) provide such reasonable information to the Customer upon its request.

8.2 Statutory Requirements

The Consultant must:

(a) comply with and give all notices required by any law, ordinance, regulation or by an authority that has jurisdiction over the Services or the Consultant’s personnel;

(b) pay fees or charges legally demandable under any law, ordinance, regulation or by an authority in respect of the Services or the Consultant’s personnel; and

(c) ensure that its personnel comply with all relevant legislation relating to the health, safety and rehabilitation of personnel and to the safety of workplaces.

8.3 Industrial relations

The Consultant is responsible for industrial and safety matters for its personnel and must ensure that all of its personnel are adequately trained and cared for in all such matters.

8.4 Loss Of Rankings

The Customer hereby acknowledges and agrees that because the Primary Search Engines regularly change their algorithms, the Customer’s website and/or product may at any time suffer a Loss of Rankings, which may occur across all, or only some, keywords. The Customer further acknowledges and agrees that the Services have an inherent risk of a Loss of Rankings, and that the Consultant is not liable to it or any other party for any financial or other loss suffered by the Customer due to a temporary or permanent Loss of Rankings, regardless of whether the Consultant’s actions caused or in any way contributed to the Loss of Rankings.

8.5 The Customer further acknowledges and agrees that the ranking positions of the Website and/or product in the Primary Search Engines may decrease from time to time. Unless the movement is sufficient to constitute a Loss Of Rankings it will not be considered to fall within the treatment of Loss Of Rankings.

8.6 In the event of a Loss Of Rankings, the Consultant will:

(a) inform the Customer as soon as practical after the Loss Of Rankings comes to the Consultant’s attention;

(b) outline to the Customer the steps to be taken and likely timeframe to cause the Website and /or products to recover from the Loss Of Rankings or propose another strategy for ensuring as little disruption as possible to the Customer’s ongoing operations; and

(c) if the parties agree to attempt to recover the Website and/or product from the Loss Of Rankings, to use the Consultant’s best efforts to cause the Website and/or product to recover from the Loss Of Rankings.

8.7 If, as a result of a Loss Of Rankings, the parties agree that the best course of action is to use a different website and /or product (“New Website”) or (“New Product”), then for the purposes of this Agreement, the Website and/or product will from that time forward be referred to as the New Website or New Product.

8.8 The Customer agrees not to personally attempt to recover the Website and/or product from a Loss Of Rankings or engage, whether for a fee or for free, a third party to attempt to recover the Website and/or product from a Loss Of Rankings, unless the Consultant has been made aware in writing of the Loss Of Rankings, and until the Consultant has agreed not to attempt to recover the Website and/or product from the Loss Of Rankings or ten (10) days have passed from the time the Consultant has been made aware of the Loss Of Rankings by the Customer.

8.9 While the Loss Of Rankings is occurring, or an attempt to recover the Website and/or product from a Loss Of Rankings is occurring, all other terms of this Agreement will remain in effect, including the payment of the Consultant’s fees.

8.10 Loss Of Rankings Directly Caused By Consultant’s Actions

If the Loss Of Rankings is directly caused by the Consultant’s actions, the Consultant will attempt to recover the Website and/or product from the Loss Of Rankings at the Consultant’s cost and the Website and/or product Recovery Fee will not be payable in this instance. No further amounts or penalties will be payable by the Consultant. 

8.11 Negative SEO Attack Or Customer’s Actions

Due to the nature of the Service, the Customer acknowledges and agrees that there is a risk that competitors or other internet users may target the Website and/or product with a “Negative SEO Attack,” which may cause a Loss Of Rankings.

Whether a Negative SEO Attack has occurred or is occurring is in the sole opinion of the Consultant and the Consultant’s determination on that is final.

8.12 If the Website and/or product suffers a Loss Of Rankings due to (a) a Negative SEO Attack or (b) the Customer’s actions, whether in changing the website and/or product, causing the website and/or product to be offline, failure to pay domain or hosting bills, ordering of services from providers other than the Consultant, or any other action, with or without the Consultant’s knowledge or consent (“Customer’s Actions”), then the parties may agree in writing that the Consultant may attempt to recover the Website and/or product from the Negative SEO Attack or Customer’s Actions. The Customer must pay the Website Recovery Fee to the Consultant in full before the Consultant commences this attempt.

8.13 The Consultant is not required to agree to attempt to recover the Website and/or product from the Loss Of Rankings caused by a Negative SEO Attack or the Customer’s Actions.

8.14 After Attempt To Recover Website and/or product From Loss Of Rankings

If the Consultant successfully recovers the Website and/or product from a Loss Of Rankings, the terms of this Agreement will continue in force and effect as if no Loss Of Rankings had occurred. If the Consultant is unsuccessful in recovering the Website and/or product from a Loss Of Rankings, the parties may by mutual consent in writing, terminate this Agreement pursuant to Part 11.1.

PART 9 RESOURCES AND PERSONNEL

9.1 The Consultant must provide the manpower as necessary to carry out its obligations under this Agreement.

9.2 The Customer may not inquire as to the number of personnel used by the Consultant, their identities or qualifications.

PART 10 OPERATING CAPITAL

10.1 The Customer shall provide the Consultant with all necessary capital as may be required by the Consultant for the purpose of implementing the agreed upon marketing strategies.

PART 11 TERMINATION

11.1 Termination Generally

If for any reason one of the parties wishes to end this Agreement, it must do so by giving written notice no less than ten (10) days before the end of the Term or Additional Term, whichever is applicable. The Consultant’s Fee is not pro-rated or otherwise reduced by the termination.

11.2 Termination for insolvency

If the Consultant or Customer:

(a) is unable to pay its debts as they fall due;

(b) commits an act of bankruptcy;

(c) enters into a composition or arrangement with its creditors or calls a meeting of creditors with the view of entering into a composition or arrangement;

(d) has execution levied against it by creditors, debenture holders or trustees under a floating charge;

(e) takes or has taken or instituted against it any actions or proceedings, whether voluntary or compulsory, which has the object of or which may result in the winding up of the entity (except for the purposes of reconstruction);

(f) has a winding up order made against it or (except for the purposes of reconstruction) passes a resolution for winding up;

(g) is a party to the appointment of or has an official receiver, provisional liquidator or liquidator appointed to the whole or part of its property or undertaking; or

(h) repudiates this Agreement,

then the other party at any time, without prejudice to any other rights or remedies, may by written notice to the that party terminate this Agreement.

11.3 Consultant’s fee on termination

Without prejudice to any other rights or remedies the Customer may have, if this Agreement is terminated under Part 11.2, then the Consultant will only be entitled to a pro rated portion of the Consulting Fee calculated by reference to the expired portion of the period in respect to which the Consulting Fee is payable less all costs and expenses incurred by the Customer arising out of the termination.

PART 12 SETTLEMENT OF DISPUTES

12.1 Notice of dispute

If a dispute arises out of or in connection with this Agreement at any time, then either party shall

give the other written notice identifying the particulars of the dispute, and the dispute will be dealt with as follows:

(a) after the expiration of 10 days from the issuance of the written notice identifying the particulars of the dispute, the issuer may notify the other party by written notice that it requires the dispute to be referred to arbitration and the dispute, upon the issue of that notice, will be referred to arbitration;

(b) unless otherwise agreed upon by the parties, the arbitrator will be appointed by the President of the Institute of Arbitrators, America (or such other body as carries on the functions of the Institute) or his nominee;

(c) the arbitrator must conduct the proceedings in accordance with the Rules for the Conduct of the Commercial Arbitrations issued by the Institute of Arbitrators, America;

(d) the arbitrator will not have the power to order the parties to take steps to achieve settlement, including attendance at a conference conducted by the arbitrator.

12.2 Deposit

When a notice of dispute is served under clause 12.1, the party serving the notice must provide evidence that it has deposited with the Institute of Arbitrators, America the sum of $5,000 by way of security for costs of the arbitration.

12.3 Legal representation

Each party may be represented by a duly qualified legal practitioner or other representative in the arbitration.

PART 13 REMUNERATION TO BE PAID TO THE CONSULTANT

13.1 The Customer, during the Term or Additional Term, must pay the Consulting Fee to the Consultant.

13.2 The Consulting Fee must be paid monthly in advance within ten (10) days of the presentation of an invoice to the Customer by the Consultant.

13.3 On or about the first day of the calendar month, the Consultant must send an invoice to the Customer setting out the Consulting Fee and the method of payment.

PART 14 RESTRICTIVE COVENANT

The parties hereby agree and covenant with each other that they will not at any time during this Agreement or after the termination of this Agreement for any cause or by any means whatsoever:

(a) make public or divulge to any person, company or other legal entity any trade secrets or any information concerning the operations or finances of the other party or any of its dealings, transactions or affairs; or

(b) do any act or thing whatsoever which may injure, impair or reduce, or be likely to injure, impair or reduce, the goodwill or reputation of the other party or its standing in the eyes of the public or any of its members.

PART 15 SECRECY

The parties will not make public or divulge to any person, company or other legal entity any trade or other secrets or processes or any other information concerning the operations or finances of the other party or any of its dealings, transactions or affairs or otherwise do any act or omit to do any act that directly or indirectly will or might reasonably be expected to injure the goodwill, business or reputation of the other party notwithstanding termination of this Agreement. Also, neither party will make public or divulge to any person, company or other legal entity any trade in which the Consultant and/or the Customer are contracted in providing services.

PART 16 NOTICES

Service of any notice under or relating to this Agreement shall be sufficiently served:

(a) if delivered personally to the party to be served;

(b) if left at or sent by prepaid registered post to:

(i) the address of the party to be served as set out in the description of that party at the beginning of this Agreement;

(ii) the last known place of abode or business of the party to be served; or

(iii) the registered office of any party to be served which is a company;

and in the case of posting such notice shall be deemed to have been duly served on the second day after such notice has been posted; or

(c) if sent by email to the Official Email Address of the party to be served and shall be deemed to have been duly served at the time such email is sent.

PART 17 GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the State Texas.

The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, which shall continue in full force and effect.

This Agreement may be executed in counterparts with the same effect as if the signatures to each such counterpart were on the same document provided that this Agreement shall not be effective until a counterpart has been executed and delivered by each Party. A Party shall be entitled to rely on a copy of this Agreement signed by the other Party and delivered to it by facsimile transmission or electronic means (including email) until the delivery to it of an original of this Agreement containing the original signature of the other Party.

PART 18   DISCLAIMER OF LIABILITY AND HOLD HARMLESS PROVISION

The Customer acknowledges and agrees that the services provided under this Agreement are not always successful, and in some cases, may have unintended and negative results, including loss of product sales and income.  The Customer voluntarily accepts and incurs all risks associated with the Consultant’s provision of the services under this Agreement and hereby agrees to indemnify and hold the Consultant, its employees, and agents harmless for any and all liability and losses arising from the Consultant’s performance of the services under the Agreement, whether or not caused in whole or in part by the Consultant’s negligence, including, but not limited to, losses in product sales and revenue and all issues relating to the Customer’s Amazon account.  To the extent legally possible, the Customer waives all claims against the Consultant relating to the services called for under the Agreement.