THIS is the Agreement ("Agreement") between Consensus Technology, Inc., d/b/a Our Community Stores, a Massachusetts corporation authorized to do business in the State of New Hampshire with offices at 20 Grove Street, Peterborough, NH 03458, ("Our Community Stores," "We," "Us," "Our"), and the Merchants ("Merchants," or "You," "Your") who wish to promote and market their products and services (the "Merchant Listings") on the Internet web site located at www.OurCommunityStores.com ("Our Community Stores Site," "Site," "Our Community Stores").
Our Community Stores provides an e-commerce platform and web-based shopping community known as "Our Community Stores" on the Our Community Stores Site that enables Merchants to offer location-based Merchant Listings.
1. USE AND ACCEPTANCE
Any Merchant who wants to market its listings via the Our Community Stores Site must accept the terms and conditions of this Agreement WITHOUT CHANGE. BY REGISTERING (VIA THE CLICK ACCEPTANCE PROCEDURE) FOR AND USING THE SERVICES, MERCHANT AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL POLICIES AND GUIDELINES OF THE SITE ARE INCORPORATED BY REFERENCE.
a. Our Community Stores reserves the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Site or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site. All notice of changes to this Agreement will be posted on the Site for thirty (30) days the Home page of the Merchant Center.. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you.
b. MERCHANT'S CONTINUED USE OF THIS SITE AND SERVICES AFTER OUR COMMUNITY STORES POSTS ANY CHANGES WILL CONSTITUTE MERCHANT'S ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, DO NOT CONTINUE TO USE OR MARKET YOUR LISTINGS VIA THE PLATFORM AND THE OUR COMMUNITY STORES SITE.
2. CONSENSUS PLATFORM AND SERVICES
During the Term of this Agreement, Consensus Technology will host Our Community Stores on its servers and otherwise use its technical infrastructure and experience to create a shopping destination in each community in which Merchant holds a listing. Our Community Stores agrees to:
a. develop, manage and administer the e-commerce shopping community on the Our Community Stores Site from which branded and non-branded merchandise will be sold to consumers visiting the Site;
b. establish and administer Merchant Listings on Our Community Stores, establish links to Merchant Listings, and facilitate Merchant promotions to the public; and,
c. provide payment processing and address billing issues and facilitate and enable all order processing and fulfillment by Merchant for transactions originating on Our Community Stores.
Our Community Stores shall use commercially reasonable efforts to: (a) solicit and obtain other Merchant Listings for Our Community Stores and administer all Merchant Listings in accordance with standards established by Our Community Stores; (b) require that all Merchants comply with the policies and procedures set forth for Merchants; and (c) develop and maintain the Our Community Stores platform from which Services are provided. Our Community Stores will be used to sell consumer-type products and services directly to the public visiting the Our Community Stores Site and will contain a variety of merchandise from other Merchants and their subsidiaries, and other manufacturers and suppliers selected by Merchant in accordance with Our Community Stores standards.
Our Community Stores may solicit and sell promotional opportunities, storefronts and/or direct purchase opportunities within Our Community Stores. Our Community Stores shall manage promotions and e-commerce partnerships. Notwithstanding the foregoing, all advertising, such as banners, interstitial and pop-ups, will be managed by Our Community Stores.
3. MERCHANT OBLIGATIONS
Merchant agrees to abide by the policies and procedures contained in the Scope of Services and Merchant Deliverables agreement
, the terms of which are incorporated by reference into, and made part of, this Agreement. Our Community Stores may change these policies and procedures in the future, and such changes will be effective immediately upon posting without notice to you. You should refer regularly to this site
to understand the current procedures and guidelines. Merchant shall provide all Deliverables and meet all standards for membership approval and operation as set forth in the Scope of Services and Merchant Deliverables agreement
.Merchant shall cooperate with Our Community Stores and enforce all Our Community Stores policies and procedures with and through its Customers.
4. TERM &TERMINATION
Our Community Stores, in its sole discretion, may terminate this Agreement, access to the Our Community Stores, Site or the related platform services without notice for any reason. Merchant may terminate this Agreement at any time by giving notice to Our Community Stores. Upon termination, Our Community Stores shall provide an accounting of all amounts due Merchant and make payment thereof. Any pending transactions will be canceled upon receipt of notice by Our Community Stores.
Our Community Stores retains the right to immediately terminate any listing or related transaction, prevent or restrict access to the Our Community Stores Site or related services, or take any other action to restrict access to or availability of objectionable material or any listing or action in violation of the policies and procedures contained herein. Upon termination or expiration of this Agreement, all rights granted to the Merchant, if any, shall terminate automatically.
5. PRICING; PAYMENT TERMS; TAXES
In consideration of the marketing and platform services rendered hereunder, Our Community Stores shall be paid a marketing fee according to the payment plan selected by Merchant at signup. These plan options and the fees therein
are subject to change in the future. Fees and related terms for any transaction are controlled by the terms posted on the date of the transaction. MERCHANT MUST SELECT A PAYMENT PLAN FROM THE OPTIONS PROVIDED IN ORDER TO SUCCESSFULLY COMPLETE THE WITHIN REGISTRATION. Gross Receipts shall mean the total revenues actually received from sales of Merchant's goods and/or services via Our Community Stores, less (a) actual sales, use and similar taxes collected and paid to a governmental authority, refunds and allowances; and (b) in the case of revenues derived from sales of products, the actual cost of bona fide returns. Merchant agrees that it is your sole responsibility to determine whether sales, use, or similar taxes apply to the transactions resulting from your listings, and to collect, report, and remit the correct tax to the appropriate tax authority.
Please review the payment terms
and rate policies
The Our Community Stores policies and procedures prohibit Merchant Listings, promotions and/or e-commerce involving pornographic or sexual content or materials, firearms, get-rich-quick schemes, products or services that involve illegal or deceptive marketing practices, and gambling. Our Community Stores reserves the right to verify Merchant's physical location and "bricks and mortar" facility, if any, and establish standards for membership to the Site. Our Community Stores reserves the right to approve the products and/or services for sale. Our Community Stores' rights under this subsection are within its sole discretion. Our Community Stores reserves the right to modify these standards and shall provide Merchant with reasonable notice of any such modification. If Our Community Stores disapproves of any Merchant Listings, including products, promotions, advertising, etc., it shall notify Merchant and decline to include or remove such material on the Our Community Stores Site. Membership and content approval standards are set forth Scope of Services and Merchant Deliverables.
7. INTELLECTUAL PROPERTY
Each party shall exclusively own its respective trademarks and service marks, copyrights, trade secrets, and patents (collectively, the "Intellectual Property") and no party will have any claim or right to the Intellectual Property of the other by virtue of this Agreement or the performance of services hereunder except as set forth herein. Neither party will take any action or make any claim to any Intellectual Property belonging to the other party, whether during the Term or thereafter, which is inconsistent with this subsection. By registering for the services and by listing services or products on the Our Community Stores Site, Merchant grants to Our Community Stores and its affiliates a nonexclusive, worldwide, royalty-free, irrevocable right to exercise all copyright, trademark rights, and rights of publicity over the content submitted by Merchant and its affiliates in any existing or future media, known or unknown, now or at any later date.
8. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that it has the right, title, interest and authority to enter into this Agreement and to fully perform its obligations hereunder, and that the rights granted hereunder shall not violate the rights of any third party. Each party represents and warrants that its conduct hereunder shall conform to all applicable federal, state and local law and regulation. Merchant represents and warrants that it owns or otherwise controls all of the rights to the content so submitted, and that the use of such materials by Our Community Stores and its affiliates will not infringe upon or violate the rights of any third party. Merchant represents that the information, content, materials, or products included on the Our Community Stores Site will be as represented by Merchant, available for sale and timely fulfillment and lawful to sell.
OUR COMMUNITY STORES MAKES NO WARRANTY REGARDING THE QUALITY OF ITS PLATFORM AND SERVICES AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE PLATFORM AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS. OUR COMMUNITY STORES MAKES NO WARRANTY THAT THE OUR COMMUNITY STORES SITE IS OR WILL BE ERROR-FREE OR THAT ITS OPERATION WILL BE SECURE, UNINTERRUPTED OR THAT IT WILL BE ACCESSIBLE TO MERCHANT OR OTHERWISE MEET MERCHANT'S NEED SPECIFICATIONS. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY REPRESENTATION OR WARRANTY MADE TO ANY END USER OR THIRD PARTY BY THE OTHER PARTY, OR ANY AGENT OF THE OTHER PARTY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR FAILURE OF ITS NETWORK OR SUPPORT SERVICES. THESE LIMITATIONS SHALL SURVIVE AND APPLY NOTWITHSTANDING THE VALIDITY OF THE LIMITED REMEDIES PROVIDED FOR IN THIS AGREEMENT. OUR COMMUNITY STORES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, AND DISCLAIMS ANY OBLIGATION LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE. OUR COMMUNITY STORES DISCLAIMS ANY AND ALL SUCH WARRANTIES TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
Merchant will defend, indemnify and hold harmless Our Community Stores and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) arising out of any Claim that arises out of or relates to: (i) any actual or alleged breach of Merchant's representations, warranties, or obligations set forth in this Agreement; (ii) any third party claim resulting from Merchant's Listings and/or related transactions, including without limitation, fulfillment of any transaction; (iii) any actual or alleged infringement of any intellectual property or proprietary rights by any products or services Merchant sells or content Merchant provides; or (iv) Merchant payable taxes or the collection, payment or failure to collect or pay Merchant payable taxes. For purposes hereof: "Claim" means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity; and "Merchant payable taxes" means any and all sales, use, excise, import, export, value added and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products or services by Merchant on or through the Our Community Stores Site, or otherwise in connection with any action, inaction or omission of Merchant or any of affiliate of Merchant's, or any of Merchant or their respective employees, agents, contractors or representatives.
10. LIMITATION OF LIABILITY
OUR COMMUNITY STORES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE OUR COMMUNITY STORES SITE, THE PLATFORM, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE PLATFORM AND/OR SERVICES.
11. RELATIONSHIP OF PARTIES
Nothing in the Agreement shall be deemed to constitute, create, give effect to or otherwise recognize a partnership, joint venture, or formal business entity of any kind; and the rights and obligations of the Parties shall be limited to those expressly set forth herein. Our Community Stores is not Merchant's agent or representative of any kind or nature.
12. NOTICE AND PAYMENT
Any notice required to be given under this Agreement shall be in writing and delivered electronically to the other designated party at his or her email address. Either party may change the address to which notice or payment is to be sent by electronic written notice to the other under any provision of this paragraph.
A. This Agreement shall be construed in accordance with, and any arbitration or court action hereunder shall apply pursuant to, the laws of the State of New Hampshire.
B. Each party agrees to use all reasonable endeavors to resolve informally any disputes arising out of any alleged breach of this Agreement by the other party prior to terminating this Agreement or instigation of the dispute resolution procedures. The dispute resolution procedures commence when either party issues a written notice detailing an alleged breach, and shall be concluded within a maximum period of thirty (30) days, or as otherwise may be agreed in writing between the parties. The party alleged to be in breach shall have five (5) working days (or other such period as may be mutually agreed) to arrange a meeting at which to seek to resolve the alleged breach. In the event that such resolution is achieved, then the party alleging breach shall issue a written notice withdrawing the initial breach notification. In the event that the parties fail to resolve an alleged breach by application of this procedure, then the complaining party shall refer the dispute to arbitration proceedings as provided in 13(C) (below).
C. In the event of failure to resolve a dispute in accordance with the procedures agreed to in 13(B), the parties agree that such dispute will be finally settled by binding arbitration conducted in the English language in Peterborough, NH 03458 under the commercial arbitration rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator jointly appointed by the parties; provided, however, that if they cannot agree within thirty (30) days after the initiation of the arbitration, then the arbitrator shall be appointed by the President of American Arbitration Association (or his or her designee). Disputes about arbitration procedure shall be resolved by the arbitrator. The arbitrator may proceed to an award, notwithstanding the failure of a party to participate in the proceedings. Discovery shall be limited to mutual exchange of documents relevant to the dispute, controversy or claim; depositions shall not be permitted unless agreed to by both parties. The arbitrator shall be authorized to grant interim relief, including relief to prevent the destruction of goods or documents involved in the dispute, protect trade secrets and provide for security for a prospective monetary award. In no event shall punitive damages (including without limitation treble damages under any statue) be assessed against either party. The prevailing party shall be entitled to an award of reasonable attorneys' fees and other costs and expenses incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction, subject only to revocation on grounds of fraud or clear bias on the part of the arbitrator. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against another party hereto or anyone acting by, through or under such other party, in order to enforce the instituting party's rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
Notwithstanding the above subsection, MERCHANT UNDERSTANDS AND EXPRESSLY AGREES that Our Community Stores is not involved in the actual transaction between Merchant and its Customers. Our Community Stores will only participate in the resolution of any dispute between Merchants and its Customers and their respective agents or fulfillment partners to the extent described in the Merchant Fees and Payment Terms
14. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Neither party may assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.