WEBSITE MERCHANT AGREEMENT
PLEASE READ THIS WEBSITE MERCHANT AGREEMENT AND THE OTHER TERMS OF SERVICE (AS DEFINED BELOW) CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THIS WEBSITE MERCHANT AGREEMENT AND THE OTHER TERMS OF SERVICE CONTAIN VARIOUS LIMITATIONS AND EXCLUSIONS AND A MANDATORY ARBITRATION AGREEMENT.
This Website Merchant Agreement (this “Agreement”) is entered into by you (“you” or “Merchant”) and The Jackson Hole Chamber of Commerce, a Wyoming non-profit corporation (“Chamber”, “we”, or “us”). You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a Merchant on our website located at 22local.com (the “Website”).
Subject to the terms and conditions set forth herein, Chamber may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Website. Chamber will provide reasonable advance notice of any amendment that includes a Substantial Change (as defined below) by posting the updated Terms of Service on the Website, providing notice on the Website, and/or sending you notice by email. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”). For purposes of this Agreement and the other Terms of Service, “Substantial Change” means a change to the Terms of Service that reduces your rights or increases your responsibilities.
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.
1. PURPOSE OF THE WEBSITE. The Website is exclusively a marketplace where Merchants can sell gift certificate bonds (“Bonds”) to Customers (as defined below). Chamber hosts and maintains the Website but does not engage, in any form, in the production or sale of any Bonds on or through the Website. For purposes of this Agreement “Customer” means any individual using the Website to search for and purchase Bonds from a Merchant.
2. TRANSACTIONS. For purposes of this Agreement, “Transaction” means the agreement between a Merchant and a Customer pursuant to which a particular Merchant agrees to sell to a particular Customer, and a particular Customer agrees to purchase from a particular Merchant, any Bonds offered by the Merchant for sale on and through the Website. As a part of your registration with Chamber, you must provide and maintain a current and valid PayPal account to receive payment for any Transaction completed on the Website. Listing Bonds for sale on the Website is limited to parties that can lawfully enter into a contract, and minors are not allowed to enter into Transactions on the Website.
3. FEES AND BILLING.
3.1 Fees Associated with Transactions; Payment. By listing Bonds for sale on the Website, you agree to pay all applicable fees associated with each Transaction. For all Bonds sold through the Website, the Website’s payment processor charges you a fee of 2.6% + 30 cents per Transaction (“Processing Fees”). Additionally, Chamber charges a Transaction fee of 1.4% for Chamber members and a Transaction fee of 2.4% for Chamber non-members (the “Transaction Fees” and collectively with the Processing Fees, the “Fees”). Within seven (7) days after you ship Bonds to a Customer pursuant to a Transaction and enter shipping information into your vendor portal, payment for the Transaction, minus all Fees, will be deposited into your PayPal account by Chamber. Chamber may amend or change its Fees and billing policies at any time. Any change in the Fees and billing policies shall constitute a Substantial Change. Consequently, in the event of any such change, we will provide you with notice of the change by posting the updated Terms of Service on the Website, providing notice on the Website, and/or sending you notice by email.
3.2 Termination. You remain responsible and obligated to pay Chamber for all Fees charged to you pursuant to this Agreement or the other Terms of Service, as applicable, regardless of whether your Account is suspended, closed, cancelled or terminated. If any Fees are not paid, Chamber may, in its sole discretion, suspend your use of the Account and all services offered in connection therewith or we may terminate the Account and send fees associated with your Account to collections.
4. USE OF THE WEBSITE.
4.1 Account Set-Up. To list and sell Bonds and complete Transactions on the Website, you must create an Account on the Website (“Account”) using the Website’s registration process located here. The Chamber is entitled to rely on the contact and other information that is supplied to us through your Account. You may not transfer, sell or assign your Account to another party. If you are establishing an Account as a business entity, you personally guaranty that you have the authority to bind the entity to this Agreement and the other Terms of Service.
4.2 Compliance with Applicable Laws. You shall not use the Website for any illegal or unauthorized purposes whatsoever, including, without limitation, infringing on the intellectual property of third-parties, and you shall not violate any federal, state, or local law, statute, ordinance, rule, regulation, order or determination from any governmental authority (or other body exercising similar function) (collectively, “Applicable Laws”). In accordance with Applicable Laws, you represent and warrant that, as a Merchant on the Website, you are in compliance with all business license requirements required by Applicable Laws.
4.3 Online Marketplace. After you establish an Account with us, you will have the ability to list your Bonds on the Website for sale to Customers. You are responsible for customization of the online listings of your Bonds, including, without limitation, inputting or uploading text, pictures, logos, image, video, audio, graphics, pricing, terms and conditions of your offers for sale, and all other information related to you (collectively, “Your Content”). You agree and understand that Chamber is not responsible for any Your Content on the Website, and you further agree and understand that you shall only use content you own or license. In no event shall any of Your Content be a part of the Chamber Content (as defined below). Chamber does not claim any intellectual property rights in, over, or to Your Content, and all such material shall remain your property.
4.4 Offers for Sale. By offering a Bond for sale on the Website, you represent and warrant that: (a) you and all aspects of your Bonds comply with this Agreement and the other Terms of Service; (b) you have full rights to sell your Bonds; (c) you are authorized under all Applicable Laws to sell Bonds on the Website; and (d) you have authority to sell Bonds in your listings on the Website.
4.5 Pricing. The price stated in each Bond offer for sale must be an accurate representation of the sale. You shall not alter the price of any Bond offered for sale after a Customer has agreed to purchase it.
4.6 Fulfillment. Order fulfillment and shipping are your sole and full responsibility. All Bonds offered for sale by you on the Website and purchased from you by Customers must be fulfilled within seven (7) days following completion of a Transaction, unless otherwise agreed by you and the Customer. Failure to fulfill orders within seven (7) days may cause your Account to be suspended. You will be responsible for payment of all applicable sales, use, and other taxes and government charges, whether federal, state, or foreign, for all sales resulting from an offer to sell Bonds on the Website.
4.7 Restrictions. You are solely responsible for your conduct and activities on the Website and Your Content, pricing, terms and conditions of your offers for sale, all other information, and links that you type, input, post, or upload to the Website. Chamber, in its sole discretion, reserves the right, without any notice to you, to remove items and content from your listings on the Website, including, without limitation, any offer for sale.
4.8 Right to Refuse Service. Chamber reserves the right to, in our sole discretion, temporarily or permanently suspend or deactivate your Account and your listings on the Website. Chamber also reserves the right to refuse service to anyone, for any reason, and at any time.
5. CHAMBER CONTENT.
5.1 Chamber Content. Except for Your Content, Chamber or its licensors own or have rights to: (a) all intellectual property on the Website, including, without limitation, the Website domain name, all trade names, taglines, trademarks, service marks, copyrights, and patents; (b) all code and functionality of the Website; and (c) all text, designs, graphics, pictures, images, and information on the Website (collectively, the “Chamber Content”). You may use the Website solely in connection with the intended purpose and use of the Website. No right, title, interest, or license in any Chamber Content is transferred to you. Chamber retains all of its intellectual property rights in all Chamber Content. You agree not to: (a) access or attempt to access the Chamber Content; (b) alter, copy, decompile, reverse engineer, distribute, transmit, or otherwise appropriate or modify any Chamber Content; and (c) negatively alter or damage the Chamber Content. Chamber may make available to you certain hyperlinks or technology, which may contain Chamber Content, for purposes of social sharing. You agree to use such hyperlinks or technology only for the purpose for which it provided and for no other purpose. You agree not to alter, modify, manipulate, or interfere with the hyperlink or technology or their functionality.
5.2 Your Content. Chamber does not claim any ownership rights in or to Your Content. Notwithstanding the foregoing, however, by inputting or uploading Your Content to the Website, you give Chamber a non-exclusive, perpetual, irrevocable, royalty-free license to use Your Content in connection with the Website. In addition, you give Chamber the right to publish, display, copyright, distribute, catalog, organize in a database or directory in any form or media, and to any other rights you have in Your Content that may be necessary for purposes of the Website. Moreover, you give Chamber the right to store, re-format, and display Your Content on the Website in any manner deemed appropriate by us.
5.3 Re-Posting of Your Content. By posting Your Content on the Website, it is possible for a third-party to re-post Your Content on another website. You agree to hold harmless Chamber for any dispute concerning the use of Your Content.
6. WARRANTY DISCLAIMER. YOU AGREE NOT TO RELY ON THE WEBSITE OR ANY INFORMATION ON THE WEBSITE OR THE CONTINUATION OF THE WEBSITE. THE WEBSITE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CHAMBER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE WEBSITE, ANY FOOD PRODUCTS, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHER TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CHAMBER DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. SECTION 8 STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST CHAMBER WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
7. LIMITATION ON LIABILITY. CHAMBER IS NOT AND WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, AND/OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, ARISING OUT OF OR RELATING TO: (A) YOUR CONDUCT OR THE CONDUCT OF ANYONE ELSE IN CONNECTION WITH THE USE OF, OR ACCESS TO, THE WEBSITE, FOOD PRODUCTS OFFERED FOR SALE ON THE WEBSITE; (B) ANY TRANSACTION FACILITATED BY OR THROUGH THE WEBSITE, INCLUDING THE PAYMENT OF ANY FEES; (C) ANY CONTENT ON THE WEBSITE OR ANY ERRORS OR INACCURACIES IN SUCH CONTENT, OR ANY OMISSION IN CONTENT; (D) CHANGES, MODIFICATIONS, OR ALTERATIONS TO YOUR CONTENT, IMAGES OR INFORMATION, WHETHER OR NOT AUTHORIZED BY YOU; AND (E) THE CHAMBER CONTENT, ANY OTHER CONTENT, AND/OR ANY OTHER MATTER RELATING TO THE WEBSITE, WHETHER OR NOT CHAMBER HAS BEEN ADVISED OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE.
8. INDEMNIFICATION. You will indemnify, defend, and hold harmless Chamber, our affiliates, and our respective directors, officers, employees, representatives, attorneys and agents (each an “Indemnified Party”) for all Indemnified Claims (as defined below) and Indemnified Liabilities (as defined below) relating to or arising out of: (a) the use of the Website by you or your agents; (b) any Transaction entered into by you or your agents; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with Applicable Laws by you or your agents; (e) Your Content, including any infringement of intellectual property rights of others; and (f) negligence, willful misconduct, or fraud by you or your agents. For purposes of this Section, “your agents” includes any person who has apparent authority to access or use your Account demonstrated by using your username and password. For purposes of this Section, “Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other Website user against an Indemnified Party. For purposes of this Section, “Indemnified Liabilities” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other Website user.
9. RELEASE. You hereby release Chamber, our affiliates, and our respective officers, directors, agents, attorneys, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another Website user or Customer, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding any Transactions and Customer requests for refunds based upon disputes. This release will not apply to a claim that Chamber failed to meet our obligations under the Terms of Service.
10. OTHER AGREEMENTS.
10.1 Choice of Law. This Agreement and the other Terms of Service shall be governed and construed in accordance with the laws of the State of Wyoming, without regard to its conflict of law provisions.
10.2 Mandatory Arbitration. The parties to this Agreement will submit all disputes arising under this Agreement to arbitration in Jackson Hole, Wyoming, before a single arbitrator of the American Arbitration Association (the “AAA”). The arbitrator shall be selected by the application of the rules of the AAA, or by mutual agreement of the parties, except that such arbitrator shall be an attorney admitted to practice law in Wyoming. No party to this Agreement will challenge the jurisdiction or venue provisions as provided in this Section.
10.3 Entire Agreement. This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Chamber relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof.
10.4 Construction. The section headings in this Agreement and the other Terms of Service are included for ease of reference only and have no binding effect. Even though Chamber drafted this Agreement and the other Terms of Service, you represent that you had ample time to review and decide whether to agree to the terms and conditions set forth in this Agreement and the other Terms of Service. If an ambiguity or question of intent or interpretation of this Agreement or the other Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Chamber because of the authorship of any provision of this Agreement or the other Terms of Service.
10.5 Modifications; Waiver. No modification or amendment to this Agreement or the other Terms of Service will be binding upon Chamber unless in a written instrument signed by a duly authorized representative of Chamber or posted on the Website by Chamber. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
10.6 Severability. If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under Applicable Laws, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.