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ENGAGEMENT AGREEMENT
Re: Engagement Agreement (the "Agreement”) regarding improper seller account deactivation and sales proceed withholding by Amazon under the Amazon Services Business Solutions Agreement (“BSA”)
This Agreement describes the terms and conditions of the relationship between you as client and us as lawyers. JS Law and Jing SH (“we”, or “us”) (which includes any successors to the aforementioned firms) will represent {CorpName} (“Client” or “you”) in connection with all claims you have against Amazon for Amazon’s improper retention of sales proceeds in your Amazon Seller Account (all such claims are collectively referred to as “Claims”). If this Agreement is acceptable to you, please sign and return an executed copy to us.
SCOPE OF ENGAGEMENT
Subject to the terms and conditions of this Agreement, we will represent Client on the Claims described above. We will not represent you in connection with any claim seeking reinstatement of your Amazon seller account, your rights to use the Amazon platform, or any losses resulting from the account deactivation, nor we will pursue any claim for charges imposed on Amazon due to your alleged breach of the Amazon Agreement and violation of Amazon’s Program Policies. Specifically, we will represent you only in an effort to collect amounts that Amazon retains pursuant to Section 2 of the Amazon Agreement and no other funds.
Under the Amazon Agreement, you have the right to demand that the arbitrator conduct the hearing by written submission only. You agree that we will insist on a hearing by written submission only, as opposed to a live hearing.
REPRESENTATION
You understand that we will be representing many numerous clients pursuing claims similar to your claim. You have advised us that there are considerations of cost as well as strategic advantages for each of you in using the same representation.
You authorize us to act on your behalf in all matters or aspects related to the Claims, including the arbitrator(s) selection and removal, settlement negotiation, settlement proposals and the execution of settlement agreements, arbitration filings, process, awards, enforcement, court decisions, and in all related matters in connection with the Claims.
You authorize us to solely decide what the best way is to handle the Claims, including but not limited to what types of relief to seek, how much the disputed claim amount is, what documents or arguments will be presented, what to do with the litigation process, how to enforce a possible award, the team arrangements, the data storage and management arrangements, or the discovery management arrangements.
SETTLEMENT
You authorize us to settle the Claims on your behalf for a monetary relief equal to or more than your frozen funds on the date the case is filed with AAA (“Current Frozen Funds”). For any settlement involving a monetary relief less than your Current Frozen Funds, you shall have the sole right, at your discretion, to make the final decision with respect to whether to settle.
Notwithstanding the foregoing, you agree not to initiate, finalize, settle, or otherwise resolve any lawsuit regarding the Claims without consultation with us. Client shall, immediately upon request by us, provide us a copy of any agreement settling or otherwise resolving the Claims.
CONFIDENTIALITY
We will treat communications between us and you and all other information about the matter as confidential except as otherwise permitted or required by the applicable rules of professional conduct or other law. You agree that no such communication or any other communication concerning the matter, including but not limited to this engagement agreement, the attorney work product and the awards from your Claims, will be disclosed to a third party without our informed consent.
You agree that the awards from your Claims might be used by us in the legal argument for our other clients pursuing claims similar to your Claims.
CLIENT’S DUTIES
To enable us effectively to represent you, you agree to be truthful and to cooperate with us, to disclose fully and accurately all facts relating to the Claims, to keep us informed of all developments, to abide by this Agreement, to timely provide all information and documents that we require, and to timely sign legal documents when required.
You also agree to be reasonably available to attend meetings, remote deposition or remote arbitration hearing, and to keep us advised of any change in your contact information. We understand that given the current covid related travel restrictions it might not be possible for you to appear in person.
FIXED FEE
The fixed fee for our agreeing to this engagement is $1,050 (“Fixed Fee”). This fixed fee will be deemed earned upon our execution of this Agreement because of the resources we will have to make available to work on this case and the other work that we may have to turn down. The fixed fee will not reduce or be applied against any fee to which we would be entitled as provided below; any such fee is in addition to the fixed fee discussed in this paragraph.
EXPENSES
Subject to other provisions of this Agreement, we will advance on your behalf all costs and litigation expenses (“Expenses”), including but not limited to the Arbitration filing fee, the Arbitrator cost, and any other miscellaneous expenses that we may have to incur on your behalf with regards to your Claims but excluding any hearing or deposition related fees.
CONTINGENT FEE
We will receive forty-five percent (45%) of the Sum Recovered by settlement, judgment, arbitration award or otherwise (“Contingency Fee”).
The term “Sum Recovered” means all money or other things of value, excluding any arbitration cost or attorney’s fees awarded by the court or arbitrator(s), without any deduction. Any arbitration cost awarded by the court or arbitrator(s) will not be subject to a contingency fee. Any attorney’s fees awarded by the court or arbitrator(s) will belong to us, and will not reduce or be applied against any fee to which we would be entitled as provided in this agreement.
The contingent fee percentages and other compensation terms set forth in this Agreement are not set by law but were negotiated between you and us.
FINANCING
You have expressed a wish to use financing to pay for the Fixed Fee and all Expenses.
The financing terms with the third-party funder (“Funder”) requires you to repay the Funder from the Sum Recovered any amounts borrowed (i.e., the Fixed Fee and the Expenses) plus a financing cost (“Financing Charges”). As the Funder and the financing terms depend on the specificities of your case, these will be communicated you for your approval as a separate schedule to the agreement (“Financing Schedule”), when they become available.
You authorize us to require that any monetary payment from the settlement agreements, arbitration awards, and court decisions in connection with the Claims shall be paid to our escrow account. After deducting the Fixed Fee, the Contingency Fee, the Expenses and the Financing Charges agreed in this Agreement, the remaining balance shall be paid to you at your designated account that can accept US dollars.
For purposes of illustration, the Financing Schedule will include examples of how your recovery and expense reimbursement would be calculated based on certain basic assumptions. These examples are provided solely as illustrations and are not intended to forecast or promise how any particular case may evolve.
LIEN
To the extent permitted by applicable law, you hereby grant us a lien on any and all Claims. Our lien will be for the sum of the Fixed Fee, the Contingency Fee, the Expenses and the Financing Charges agreed in this Agreement. The lien will attach to any recovery you obtain, whether by arbitration award, judgment, settlement, or otherwise. You further agree that we have the right to notify the opposing parties and other, interested third parties of our lien and the right to enforce this lien through any valid mechanism.
ESTIMATES
You understand that any estimates provided by us of the magnitude of the expenses that may be required at certain stages of any litigation are not precise, and that the kinds and amounts of expenses required are ultimately a function of many conditions over which we have little or no control, particularly the extent to which the opposition files pretrial motions and engages in its own discovery.
ADVERSE JUDGMENT APPEAL
The scope of services to be performed by us hereunder does not include the obligation to prosecute an Appeal from a judgment or award which (a) is adverse to Client and does not result in a recovery to Client (an “Adverse Judgment Appeal”). In the event Client elects to pursue an Adverse Judgment Appeal, we may in our sole discretion prosecute the Adverse Judgment Appeal, but is under no obligation to do so. To the extent that we elect to pursue an Adverse Judgment Appeal on behalf of Client, we shall not be entitled to any additional compensation or rights associated with prosecuting such appeal other than as provided in this Agreement, absent a different agreement between us and Client.
FEDERAL TAX FROM REQUIREMENTS
Federal law requires that we keep a Form W-9 or W-8BEN-E, depending on your situation, on file to report earnings related to your settlement proceeds. Accordingly, please return to us a fully executed copy of the Form W-9 or W-8BEN-E.
TERMINATING THIS REPRESENTATION
Subject to limitations on withdrawal imposed by an applicable code governing lawyer’s conduct, we may withdraw from representing you for any reason recognized in such a code, including but not limited to any of the grounds described in this section. Subject to the terms of this Agreement, you may discharge us for any reason at any time.
A. Should you abandon any litigation asserting the Claims, should your conduct seriously prejudice the prospects of successful prosecution of such litigation, should your failure either to disclose material facts or accurately to describe such facts seriously prejudice the continued prosecution of such litigation, or should you materially breach this Agreement, then we shall have the right to withdraw from this representation. To the extent we exercise our right to withdraw under this paragraph A, you agree that we have the right to receive from you the Fixed Fee, all Expenses we advanced or incurred on your behalf, and the Financing Charges related with such Fixed fee and expenses.
B. You agree that, should you exercise your right to discharge us, we have the right to receive from you the Fixed Fee, all Expenses we advanced or incurred on your behalf, the Financing Charges related with such Fixed fee and Expenses, and the full value of our time for work we have done for your case (as measured by our hourly billing rates of $500 per hour).
ASSOCIATION OF CO-COUNSEL
You understand that we may, at our expense, contract with other attorneys for the performance of certain work and that we may pay part of the fees we receive under this Agreement to such attorneys for the services rendered by them.
CONFLICT OF INTEREST
You are informed that we or our affiliates have equity, business, financial or personal relationship with other related parties in connection with the resolution of your Claims, including but not limited to the data storage and management service provider, the discovery management service provider, the funder, or any co-counsel. You acknowledge the conflict of interest and relationship, and agree to waive your rights to use the conflict of interest or relationship in any dispute.
EXCLUDED CLAIMS
Filing of litigation on your behalf may subject you to cross-claims, counterclaims, third-party claims and other such claims filed in the same or another action. You understand that this Agreement shall not cover the defense of any claims, counterclaims or cross-claims asserted against you in any litigation involving the Claims or in any other case. Should any such claims be filed against you, the parties hereto shall discuss and attempt to negotiate a separate or supplemental agreement concerning our representation of you with regard to those claims.
YOUR INDEMNITY
You agree to indemnify and hold us harmless for and against any demands or claims asserted by others to any portion of the Claims subject to this Agreement.
CONSENT TO ADVERSE REPRESENTATION
By signing this letter, you agree that if we determine in the future that another one of our clients (whether a continuing client or a new one) requires our services in a matter other than one in which we represent you, we may undertake the representation, even if the representation is adverse to you or persons or entities related to you such as corporate officers, parents, subsidiaries or affiliates, so long as our representation of the other client involves a matter which is factually unrelated to the matter in which we have represented you. You agree that such a representation may involve both adverse litigation as well as non-litigation adverse representation, such as negotiating a transaction with you. We agree not to use any proprietary or other confidential information of a nonpublic nature concerning you acquired by us as a result of our representation of you to your material disadvantage in connection with any litigation or other matter in which we represent another client adverse to you. If you do not agree to consent to our representation of another client adverse to you, you may elect not to sign this letter and therefore not to retain us as your counsel. You are free to retain any other counsel of your choosing.
DISPUTE RESOLUTION
In the unlikely event of a dispute arising out of, in connection with, or in relation to the interpretation, performance, or breach of this Agreement, there may be a risk of public disclosure of attorney-client privileged information or attorney work product if a lawsuit is filed in court. In order to avoid such a public disclosure, we encourage our clients to agree to binding arbitration of disputes arising out of, in connection with, or in relation to the interpretation, performance, or breach of their attorney fee agreements with us. By signing this Agreement below, you accept arbitration.
Any dispute arising out of, in connection with, or in relation to the interpretation, performance or breach of this Agreement–including any claim of legal malpractice, breach of fiduciary duty or similar claim and any claim involving fees or expenses–shall be resolved by arbitration conducted in New York, New York, administered by American Arbitration Association (“AAA”) and in accordance with its then-existing Commercial Rules, under expedited process of AAA, with one arbitrator from the national arbitrator roster that were former judges or litigators with commercial litigation experience. The Federal Arbitration Act (9 U.S.C., Secs. 1-16) shall govern the interpretation of, enforcement of, and proceedings pursuant to the arbitration clause in this Agreement.
You and we agree that 1) the arbitration award is not final, is subject to appeal to the AAA, which may appoint another arbitrator to re-arbitrate the dispute; 2) the award of such an appeal arbitrator will be subject to the full review by and appeal to the state or federal courts in New York, which has full authority to review and decide the fact, reasoning and conclusion of law; and 3) the court ruling of the trail court in New York, New York, is subject to the appeal to the appellate court in New York, New York. By so agreeing, you and we are waiving the right to a jury trial. You understand that arbitration provides only limited discovery and thus we make the award non-final, so that the courts can fully review the award for errors of fact or law and make a new decision on the dispute.
The arbitration shall be filed and arbitrated on an individual basis, without any class action or consolidation.
The losing party in the arbitration shall bear and pay all parties’ expenses and costs regarding the disputes, including but not limited to attorney fee, AAA admin fee, arbitrator fee and collection agency fee.
CHOICE OF LAW
In any proceeding concerning the rights and obligations of you or us under this Agreement, all questions that are determined to be governed by the law of a state shall be resolved in accordance with the law of the State of New York.
NO GUARANTEES
You acknowledge that we have made no guarantees and given no assurances regarding the outcome of this matter. You understand that all expressions about the outcome are only opinions.
WORK PRODUCT
We typically maintain a file of documents during the representation. You and we agree not to waive any privilege that may apply to such materials, including the work product and attorney-client privilege, without your and our permission.
Within 15 business days of the conclusion of our representation, it is our policy to destroy all materials (electronic and hard copy) we have in the file received from any source. If you would like a copy of these materials, you shall request the copy within 5 business days of the conclusion of our representation. You shall pay any delivery fee, mailing fee or other fees or expenses in advance.
CLIENT INDEMNITY
You agree that any award of fees, costs expenses, or sanctions awarded against you as a result of court or arbitration order that are not solely the result of our conduct shall be payable solely by you and that you shall not look to us to reimburse you for the amount awarded. This indemnity specifically includes, but is not limited to, any sanctions award or attorney’s fees and costs awarded under Federal Rule of Civil Procedure 54 or any other federal or state statute or rule designed to shift fees or costs.
INTEGRATION
This Agreement represents the final and mutual understanding of the parties. It replaces and supersedes any prior agreements or understandings, whether written or oral. This Agreement may not be modified, amended, or replaced except by another signed written agreement.
SEVERABILITY
If any part of this Agreement shall for any reason be found unenforceable, the parties agree that all other portions shall nevertheless remain valid and enforceable.
CLIENT’S ACKNOWLEDGMENT
You acknowledge that we have encouraged you to consult independent counsel concerning the negotiation of this Agreement and its terms, that we are not representing you in connection with the negotiation or execution of this Agreement, that you have made sufficient investigation and inquiry to determine that this Agreement is fair and reasonable to you, and that this Agreement was the product of arm’s length negotiation with us. You warrant to us that you have either consulted such independent counsel or, having had an adequate opportunity to seek such advice, have declined to follow our advice that you do so.
If English is not your native language, you acknowledge that we have encouraged you to get independent translation of this Agreement. You warrant to us that you have either got such independent translation or, having had an adequate opportunity to seek such translation, have declined to follow our advice that you do so. In either case, this English language Engagement Agreement governs. The Chinese translation of this Agreement you might have got shall be for reference only and shall not affect the interpretation hereof.
We discuss the terms and conditions of our engagement so candidly because we believe that this type of frank discussion will avoid any misunderstandings later. If agreeable, please sign a copy of this Agreement in the space provided below indicating your agreement to the terms and conditions set forth above. When we receive this Agreement including the Financing Schedule signed by you and us, we will commence our representation in the above-described matter.
Sincerely yours,
JS Law Office PLLC
AGREED TO AND ACCEPTED:
{nameDir}
Legal representative of {CorpName}
Date: {date}