THIS SUPPLIER AGREEMENT ("Agreement") is entered into by and between 2Checkout.com, Inc., a Delaware Corporation with principal offices located at 1785 O'Brien Drive, Columbus, Ohio, 43228 ("2CO") and you ("Supplier" or "you").
BY CLICKING "I AGREE" YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL DOCUMENTS, POLICIES AND PROCEDURES INCORPORATED HEREIN BY REFERENCE.
1. SERVICES OFFERED.
A. Internet Business.
2CO is an Internet-based marketplace for products and services ("Products") obtained from Suppliers and offered for resale via the Internet.
B. Real Time Purchases.
2CO purchases Products from Suppliers for the sole purpose of immediate resale to persons who make a decision to buy Products of a Supplier on 2CO's web site ("Customers") rather than directly from Supplier's web site. 2CO's web site provides access for Customers to Products of all Suppliers ("Shopping Center") and allows Customers to purchase the Products from 2CO by using such electronic payment methods that 2CO accepts from time to time, allows a Customer to obtain a refund for a Product previously purchased, and allows a Customer to exchange a Product previously purchased (individually and collectively, "Transaction").
C. Services.
In addition to the purchase of Products from Supplier for immediate resale to Customers, 2CO processes all Transactions by using a Secure Sockets Layer ("SSL") encryption network and any other processes available through the processing platform of its merchant services provider (collectively, "Services").
2. ACCEPTANCE AND EFFECTIVE DATE.
A. Effective Date.
This Agreement becomes effective when you click "I Agree" ("Effective Date"). The operating regulations of 2CO ("Operating Regulations"), the information gathered by 2CO from Supplier in the online registration process ("Registration Form"), the list of Products that may not be marketed on 2CO's web site ("Prohibited Products List") and such other documents, policies and procedures 2CO requires Supplier to conform to, are all incorporated into and become a part of the Agreement by this reference.
B. Supplier Accounts.
After you agree to be bound by this Agreement and complete the Registration Form, 2CO will establish an account for you ("Account"). Supplier may establish more than one Account for the Products it offers for sale ("Additional Account(s)"). This Agreement shall be binding upon the Account and all Additional Account(s). Accounts and Additional Accounts shall be governed by this Agreement.
C. Underwriting.
Supplier authorizes 2CO to obtain credit reports ("Credit Reports") regarding Supplier and the owners of Supplier through a credit reporting agency chosen by 2CO. Supplier and the owners of Supplier authorize 2CO to obtain and use such Credit Reports from time to time for the purpose of evaluating the creditworthiness of Supplier throughout the term of this Agreement.
2CO may establish an Account for Supplier upon receipt of the Registration Form and prior to the verification of Supplier's identity or determination of Supplier's creditworthiness. If 2CO determines that there is insufficient information to verify the identity and/or physical address of Supplier or 2CO determines that the creditworthiness of Supplier is unsatisfactory, 2CO may terminate this Agreement without notice. In the alternative, and in the sole discretion of 2CO, 2CO may request that Supplier provide additional information or fulfill additional requirements to provide security to 2CO, including without limitation, the execution of a personal guaranty.
3. CONDITIONS OF SERVICE.
A. Force Majeure.
2CO assumes no liability for disruptions in service or improper operation of its equipment or software for any reason, including, without limitation, vandalism, theft, phone service outages, Internet disruptions, human error, extreme or severe weather conditions or any other causes commonly referred to as "Acts of God.”
B. Disclaimer.
At the request of 2CO, Supplier shall include in its web site a prominently displayed disclaimer of any implied warranties, including without limitation, the implied warranties of merchantability and fitness for a particular purpose, and the warranty of non-infringement, on behalf of 2CO.
C. Certain Warranties Not Permitted.
Supplier agrees it will not provide, offer, or advertise a "lifetime warranty," "lifetime guarantee," or any other guarantee for a period of more than one-hundred eighty (180) days without the express written consent of 2CO.
D. Adequate Inventory.
Supplier shall maintain sufficient inventory to fulfill purchases by 2CO for resale to Customers in a timely manner. Supplier shall not rely on the existence of a particular Transaction to obtain funds or credit to enable Supplier to obtain the Product necessary to complete the Transaction.
E. License.
To enable 2CO to use the information you supply to 2CO, including without limitation, the images, trademarks, trade names and logos found on your website(s), without violating any rights you might have in the information and the images, trademarks, trade names and logos found on your website, you agree to grant, and hereby do grant, 2CO a royalty free, worldwide, nonexclusive, perpetual and irrevocable license to exercise the copyright, publicity and database rights, and to sublicense such rights through multiple tiers, that you have in such information, images, trademarks, trade names and logos, in any media now known or not currently known, with respect to the information, images trademarks, trade names and logos.
F. Limitations on Solicitations.
Supplier may refer customers to the 2CO website for the purchase of Products of Supplier only through the link provided by 2CO. Supplier may not use any other method of referral of customers for purchases of its Products from 2CO and shall not solicit customers on behalf of 2CO. Supplier will provide a certificate of compliance with this obligation to 2CO within 30 days of the request by 2CO. 2CO shall not request this certificate more often than annually. Such certificate shall be substantially in the form attached hereto as Appendix I and be signed by the Supplier. Failure to provide the aforesaid certificate in a timely manner shall result in the loss of Supplier’s ability to offer Products for resale through 2CO.
4. ACCEPTANCE OF LIMITATIONS IN SERVICE.
A. Limitations on Sale of Products.
2CO may prohibit the sale of those specific Products contained in its Prohibited Products List. Supplier further understands and agrees that 2CO may amend the Prohibited Products List, from time to time, in its sole discretion. 2CO will provide Supplier with a reasonable notice in advance of the amendment to the Prohibited Products List if no violation of Law, card association rules, or 2CO policy is created or continued as a result of a notice period.
B. Limitations on Customer Transactions.
2CO may impose limits on sales of Products and refuse to process Transactions to specific Customers for any reason, in its sole discretion.
C. Limitations on Services.
2CO may: (1) limit or restrict sales to a minimum Product price; (2) impose limits on the amount or number of purchases which may be charged to the credit or debit card of a Customer during any time period; (3) request additional validation information from Customers, such as signed contracts and/or receipts; (4) refuse to accept orders from Customers with a prior history of questionable charges; or (5) impose certain limits or restrictions on Transactions or Reserves (as defined in the Operating Regulations) on specific Accounts, either temporarily or permanently, which are more restrictive than limits placed on other Accounts of other suppliers.
D. No Liability.
2CO shall not be liable to Supplier for any losses, expenses, or damages Supplier sustains, including claims for lost profits, resulting from or related to 2CO's imposition of limits on Transactions or Reserve Amounts, for any reason.
5. SUPPLIER'S WARRANTIES AND REPRESENTATIONS.
Supplier makes the following representations and warrants that at all times during the term of this Agreement such representations shall be true and accurate:
A. Contractual Capacity.
Supplier has the power and authority to carry on its business as it is conducted, is duly authorized to enter into this Agreement and that no other authorizations, consents or approvals are required in connection with the validity and enforceability of this Agreement or the execution, delivery and performance of this Agreement by Supplier.
B. Truthful Information.
All information and data Supplier provides to 2CO, or for which it engages a third party to provide to 2CO is complete, truthful, accurate, valid, the lawful property of the Supplier, and Supplier has the right to communicate such information.
C. Verification.
All email, domain, URL, physical address and telephone information provided by Supplier is complete and correct.
D. Intellectual Property Ownership.
Supplier owns or otherwise has the full right and authority to use and disseminate (1) all information, data, graphics, text, video, music, or other intellectual property which forms a part of its web site, or which is used by Supplier in its advertising and promotional efforts, and (2) the Products it supplies to 2CO (or to potential Customers).
E. Authority to Conduct Business.
Supplier is legally authorized to sell any Product it offers and Supplier has obtained all necessary regulatory approvals and certificates (hereafter, "Certificates"). Supplier will provide 2CO any copies of Certificates immediately upon Supplier's receipt of a request by 2CO.
F. Compliance with Laws and Regulations.
Supplier is in compliance with all applicable national, federal, state, and local laws, rules, regulations, requirements and/or other standards established by any governmental authority having jurisdiction to control such activities, including, without limitation, the Federal Trade Commission, and State and local consumer protection agencies; Supplier is also in compliance with the regulations of applicable credit card associations regarding the sale of Products over the Internet or other transactions where the credit or debit card utilized for the purchase is not present, which are in effect prior to the effective date of this Agreement, or which become effective during the term of this Agreement.
6. FEES AND TRANSACTION PAYMENTS.
A. Account Establishment Fee.
Supplier agrees to pay 2CO an "Account Establishment Fee," for each Account and Additional Account as described in the Operating Regulations. Payment of the Account Establishment fee shall be made immediately upon the establishment of an Account or Additional Account.
B. Continuing Payments for Services.
Supplier agrees to pay 2CO all Transaction fees and other amounts required by this Agreement, including without limitation those set forth in the Operating Regulations, when due.
C. Transaction Payments.
Contingent upon the purchase by a Customer of a Product offered by Supplier, in accordance with the terms hereof, 2CO will pay Supplier for the purchase of Products resold by 2CO, in accordance with the terms set forth in the Operating Regulations.
To assist 2CO in determining that 2CO knows the identity of Supplier and is paying the appropriate party for Product purchases, Supplier must, within thirty (30) days of opening an Account, ensure that the name of Supplier as set forth in the Registration Form, is the same as the name of the person or entity that is to be the payee of Purchase Payments. If Supplier does not fulfill such requirement, 2CO may, in its sole discretion, withhold Purchase Payments, suspend Supplier's Account, or terminate this Agreement.
D. Reserve Account.
2CO may retain a portion of the proceeds of Transactions, to establish and maintain a Reserve as set forth in the Operating Regulations.
7. TERM.
This Agreement shall remain in effect from the Effective Date until:
· 2CO or Supplier issues a "Notice of Cancellation" as set forth in Section 10.C of this Agreement or
· The Agreement is terminated as otherwise provided in Section 10.
8. DISCLAIMER OF WARRANTIES.
SUPPLIER UNDERSTANDS AND AGREES THAT 2CO IS PROVIDING ITS SERVICES TO SUPPLIER "AS IS" AND THAT 2CO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY.
SUPPLIER ASSUMES ALL LIABILITY FOR ITS USE OF 2CO'S SERVICES.
2CO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WEB SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY PRODUCTS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
IN NO EVENT SHALL SUPPLIER BE ENTITLED TO RECOVER DAMAGES FROM 2CO THAT EXCEED THE SUM OF FEES RETAINED BY 2CO UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.
2CO ASSUMES NO LIABILITY FOR SUPPLIER'S FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY ACTS, OMISSIONS OR NEGLIGENCE OF THE SUPPLIER, A SUBCONTRACTOR OR AN AGENT OF SUPPLIER OR AN EMPLOYEE OF ANY ONE TO THEM, NOR SHALL 2CO HAVE ANY LIABILITY FOR CLAIMS OF THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN CONNECTION WITH, SUPPLIER'S PRODUCTS, SERVICES, MESSAGES, PROGRAMS, CALLER CONTRACTS, PROMOTIONS, ADVERTISING, INFRINGEMENT OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR VIOLATION OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS.
10. TERMINATION.
A. By Supplier.
Supplier may terminate this Agreement, any Account, or any Additional Accounts with 2CO at any time upon providing a notice of its intent to terminate at least 5 days prior to the desired date of termination.
B. By 2CO.
2CO may terminate this Agreement, Supplier's Account, or any Additional Accounts of Supplier at any time for any reason, or for no reason. 2CO may suspend Supplier's access to 2CO's web site and/or Services, or any other transactions immediately and without notice if Supplier is in breach of any of its obligations hereunder and then terminate this Agreement and Supplier's access to 2CO's web site, or 2CO may terminate this Agreement and Supplier's access to 2CO's web site immediately and without notice if Supplier is in breach of any of its obligations hereunder. If the termination is at the convenience of 2CO, 2CO shall provide Supplier with notice 7 days in advance of the date of termination.
C. Notice of Cancellation
If a party to the Agreement intends to terminate the Agreement, it must send a notice to the other party of its intent to terminate ("Notice of Cancellation"). The Notice of Cancellation shall contain the date upon which the termination shall become effective and shall be delivered in accordance with Section 19 of this Agreement. Provided, however, that in the event 2CO determines it is necessary to immediately terminate the Agreement, 2CO may provide notice to Supplier via telephone, followed by delivery of a Notice of Cancellation as required in Section 19. Such termination shall be effective as of the time of the telephone call to Supplier.
D. Payments/Obligations to be Completed After Termination.
Upon termination of this Agreement, any outstanding and unpaid fees and charges of Supplier to 2CO shall become immediately due and payable.
In the event 2CO is holding funds related to Supplier Account at the termination of the Agreement and it is later determined that such funds should be sent to Supplier, the information you provided to 2CO regarding Supplier name and address will be used to try to send any funds that are being held in custody for Supplier. If that information is not accurate, and 2CO is unable to complete the payment of funds to Supplier, the funds may be subject to applicable state laws regarding escheat of unclaimed property. 2CO may deduct an Inactive Account Maintenance Fee from such unclaimed funds as specified under the Operating Regulations and Schedule A Operating Regulations Fee Structure.
E. Survival:
Upon Termination of this Agreement, the provisions of Sections 6 (D), 8, 9, 10, 11, 12, 13, 14, and 19 shall survive such Termination.
11. TAXES.
A. Obligation to Pay Own Taxes.
Supplier is responsible for the payment of all taxes applicable to the conduct of its business.
B. Supplier's Obligation to Pay Taxes Resulting from 2CO Services.
The parties agree that if additional taxes in the nature of an excise, sales, or use tax are imposed in connection with 2CO's Services and paid by 2CO on behalf of the Supplier, Supplier shall be liable to 2CO in an amount equal to the amount of such tax payment made by 2CO. Supplier authorizes 2CO to collect and pay over taxes in the nature of an excise, sales, or use tax on behalf of Supplier or on account of 2CO's sale of Products if reasonably required to do so by any jurisdiction's taxing authority. 2CO shall have the right to recover from Supplier the amount of any such taxes, related penalties, and interest paid by 2CO with its own funds. Supplier shall also pay 2CO for any related expenses incurred by 2CO, including reasonable attorney's fees, in its collection of any amounts due from Supplier.
C. Obligation to Repay 2CO.
Supplier agrees that if 2CO pays any taxes that result from the resale of Supplier's Products, Supplier will immediately reimburse 2CO an amount equal to such taxes paid by 2CO and all related interest, fines, and/or penalties.
12. CHOICE OF LAW JURISDICTION AND VENUE.
Supplier agrees that the laws of the State of Ohio, without reference to its conflict of law principles, will govern this Agreement, and that any claim or suit arising out of or related to this Agreement must be brought exclusively in the federal and/or state courts located in the State of Ohio, Franklin County, U.S.A. Supplier consents to the exclusive jurisdiction of such courts.
13. ENFORCEMENT ACTIVITIES.
A. Lawful Use.
The web site and Services of 2CO may be used only for lawful purposes and in a lawful manner. Supplier agrees to comply with all applicable laws, statutes, and regulations. Supplier may not register under a false name, mask the true identity of Supplier or the Products it offers to the public, or use an invalid or unauthorized credit or debit card or invalid or unauthorized bank account information. Supplier may not impersonate any participant or use another participant's information. Fraudulent conduct may be reported to law enforcement, and 2CO will cooperate in any investigation.
B. Investigation.
2CO has the right, but not the obligation, to monitor any activity and content associated with its web site and Services. 2CO may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension, or termination of service, denying access, and/or removal of any materials on Supplier's portion of 2CO's web site. 2CO reserves the right to remove or edit any content that violates this Agreement or is otherwise objectionable. As part of the investigation of content on Supplier's portion of the 2CO web site that may violate this Agreement, Supplier hereby consents to allowing 2CO representatives to examine Supplier's web site.
C. Disclosure of Information.
2CO may report any activity that it suspects is a violation of any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect 2CO's systems, Suppliers, and Customers, or to ensure the integrity and operation of 2CO's business and systems, 2CO may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
D. Suspension of Account.
In the event 2CO determines that Supplier is in breach of this Agreement, 2CO may suspend activity on the Account of Supplier, as well as the activity on all Additional Accounts of Supplier, until Supplier cures the breach of this Agreement, or until 2CO terminates this Agreement.
14. PRIVACY.
A. Privacy Policy.
2CO's Privacy Statement is posted on 2CO's web site and is incorporated herein by reference. 2CO reserves the right to change the Privacy Policy from time to time as it deems appropriate. Any changes will become effective when posted to the web site. Continued use of 2CO's Services after any change will be deemed acceptance of the new Privacy Policy. Supplier shall have a privacy policy that is no less restrictive than 2CO's Privacy Policy and which complies with all applicable laws and regulations.
B. Commitment to Privacy.
Unless otherwise authorized by 2CO in writing, Supplier agrees not to use any information regarding Customers except for the purpose of entering into and completing Transactions. Suppliers agree not to use Customer information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy, or conduct which may be otherwise deemed to be objectionable conduct.
15. COPYRIGHT NOTICE.
2CO's web site is subject to the protection of the copyright laws of the United States and other countries. No part of 2CO's web site may be reproduced without the prior written permission of 2CO.
16. DEFAULT.
In the event that Supplier fails to perform any duty, obligation, or provision contained in this Agreement ("Default"), Supplier agrees to pay to 2CO any damages, expenses, and costs, whether directly or indirectly caused, including reasonable attorney's fees incurred by 2CO due to Supplier's Default.
17. AMENDMENTS AND MODIFICATIONS.
A. 2CO's Right to Amend or Modify Agreement.
2CO may amend or modify this Agreement and any such amendment or modification will be effective when posted to 2CO's web site and will become binding upon Supplier when posted. Provided, however, that the amendment or modification will not be effective as to any Supplier that terminates this Agreement within 30 days of the posting of an amendment or modification to 2CO’s website. Supplier accepts the responsibility of a continuing review of the content of 2CO's website to determine whether any amendments or modifications have occurred.
B. Other Amendments/Modifications.
Suppliers may communicate any proposed modifications or amendments to this Agreement to 2CO at the address provided in Section 19. However, such changes or amendments will only become effective if agreed upon by 2CO, in its sole discretion, in writing.
18. INDEMNIFICATION.
Supplier.
Supplier agrees to indemnify and hold 2CO, its employees, officers, agents, shareholders and directors harmless from any and all claims, losses, damages, costs, expenses (including attorney's fees), fines, penalties regardless of whether the same are actual, direct, indirect, special, incidental, consequential, or punitive ("Damages") resulting from or in connection with this Agreement or incurred as a result of, or related to, the causes set forth below:
· Supplier's breach of any warranty or representation;
· Supplier's violation of any law, rule, or regulation;
· Intellectual property infringement claims related to the Supplier's site or service;
or
· Supplier's reckless or willful misconduct;
· Claims of third parties arising out of or resulting from, or in connection with Supplier's products, services, messages, programs, caller contracts, promotions, advertising, infringement, or any claim for libel or slander.
2CO.
In no event will 2CO be liable to indemnify any party for any Damages arising directly or indirectly from any use of this Internet resource, or 2CO's Service(s), even if 2CO is expressly advised of the possibility of such damages.
19. NOTICES.
A. Addressed to:
2CO:
Mail:
2CheckOut.com, Inc.
1785 O'Brien Drive
Columbus, Ohio 43228
Supplier:
Mail:
To the last address provided to 2CO by Supplier.
Electronic Communication:
To the last email address provided to 2CO by Supplier.
B. Method of Delivery and Date of Receipt.
Any written notice under this Agreement, which shall include email to Supplier by 2CO, shall be deemed given and delivered upon the earlier of: (a) actual receipt; or (b) five days after being deposited in the United States mail, postage prepaid, and addressed to the party to whom the notice is being sent as set forth in Section 19.A.; or (c) one (1) business day after being sent by email or other electronic communication by 2CO to Supplier at the email address described in Section 19.A.
C. Notice of New Address.
Either party may communicate a change in its mailing address by notifying the other party in accordance with Section 19.B., in writing, including an electronic communication by 2CO to Supplier, which sets forth the old mailing address and provides the new mailing address.
20. HEADINGS.
The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
21. SEVERABILITY OF PROVISIONS.
Each provision of this Agreement shall be considered severable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid.
22. INTELLECTUAL PROPERTY
Except for the rights expressly granted herein, this Agreement does not transfer any intellectual property or technology of 2CO to Supplier and all rights, title and interest in such intellectual property and technology, whether developed, licensed or owned by 2CO shall remain with 2CO. Supplier agrees that Supplier will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets of 2CO.
23. GENERAL.
Supplier agrees to be bound by any electronic affirmation, assent or agreement transmitted through 2CO's web site. Supplier represents and warrants that Supplier has the authority to agree to this Agreement. Supplier agrees that any decision or action to click on an "I agree", "I consent", or other similarly worded "button" or entry field using a mouse, keystroke or other computer device, will indicate Supplier's agreement and will be legally binding and enforceable and the legal equivalent of Supplier's handwritten Signature.
Supplier acknowledges (a) that Supplier has read and understood this Agreement; (b) that this Agreement has the same force and effect as a signed agreement; and (c) that this Agreement constitutes the entire agreement between 2CO and Supplier and governs Supplier's use of the Services, superseding any prior agreements between Supplier and 2CO pertaining to the Services.
The relationship between 2CO and Supplier shall be that of independent contractors. Neither party will be considered an agent, employee, joint venturer, or partner of the other, unless otherwise specifically provided herein.
Rev: Aug 19, 2009
APPENDIX I
TO
2Checkout.com SUPPLIER AGREEMENT
ANNUAL CERTIFICATE OF COMPLIANCE
Supplier hereby certifies that in the immediately preceding year, Supplier has not engaged in any solicitation of customers on behalf of 2CO. The only means customers have of contacting 2CO through Supplier is the link to 2CO’s website provided by 2CO enabling 2CO to act as a reseller of goods and services offered by vendors to 2CO.
Supplier acknowledges that all information provided by Supplier herein is subject to verification and audit by the Tax Department of the State of Supplier’s place of business.
Rev. Aug 19, 2009
