MERCHANT AGREEMENT
Version 1.1,
effective April 25, 2006
THIS AGREEMENT is between prybuy.com, LLC, a
Wisconsin limited liability company (“prybuy.com”), and the person or entity
who accepts this Agreement as a Merchant.
In this Agreement, the terms “Merchant,” “you” and “your” mean and refer
to the Merchant.
BACKGROUND
prybuy.com intends to operate an on-line
marketplace for merchant coupons and other discount offerings (collectively,
“Coupons”) through a commercial web site located at www.prybuy.com (the
“Site”). The Site is to feature Coupons
and general business information about participating Merchants. Merchant desires to participate in this on-line
marketplace by furnishing its Coupons and business information for posting on
the Site in accordance with the terms and conditions of this Agreement.
AGREEMENT
1. Definitions.
1.1 “First Year
Subscription” is the initial one-year prybuy.com subscription.
1.2 “Payment Account” is
the Merchant’s account from which subscription payments will be deducted.
1.3 “Quarterly Subscription”
is a three-month prybuy.com subscription, a series of which will follow the
First Year Subscription.
1.4 “System” is the entire
plan and method to offer Merchant Coupons to customers through the Site.
2. Pricing, Billing and
Payment.
2.1 Pricing. The price of the First Year Subscription is
$297.00 until 5/15/06.
The price of the First Year
Subscription is $396.00 after 5/15/06
Quarterly Subscriptions are $99.00
per quarter.
The Quarterly Subscription rate for
the second and all additional locations or additional coupons of the same
merchant will be $99.00 per year*.* Any additional coupons/locations purchased
will expire upon the expiration of the main subscription.
2.2 Price changes. prybuy.com reserves the right to adjust the
rates of Quarterly Subscriptions upon with sixty (60) days notice.
2.3 Billing and
payment. The First Year Subscription
will be paid in advance. Thereafter,
your Payment Account will be charged $99.00 per three-month period commencing
on the one-year anniversary of the beginning of your First Year Subscription, and
continuing every three months thereafter until you cancel your
subscription. Each Quarterly
Subscription will be paid in advance.
2.4 Payment Terms. Any payment which not received when due shall
bear interest at a rate of one and one-half percent (1½ %) per month, or the
maximum amount of interest allowable under law, whichever is less, from the
date due.
3. Merchant’s Obligations.
3.1 Application
Information. Merchant shall provide
complete and accurate information upon applying for a prybuy.com subscription,
and shall inform prybuy.com of any material change in its application
information.
3.2 Email Address. Merchant shall at all times during the term
of this Agreement maintain and actively monitor an email account for the
purpose of receiving notices and other communications from prybuy.com. Merchant shall immediately inform prybuy.com
of any change in the Merchant’s email address of record.
3.3 Coupons. Merchant shall create its own Coupons on the
Site at such intervals and in such format, size and design as may be specified
by prybuy.com from time to time.
Merchant shall be solely responsible for ensuring that all Coupons
created have been formatted to include the expiration dates if desired and all
such other conditions for redemption as Merchant desires to impose upon
presentment by future customers.
prybuy.com reserves the right to require compliance with such other
administrative and technical specifications for Merchant’s creation of Coupons
as prybuy.com may determine are necessary for the efficient and effective
operation of the Site, and prybuy.com reserves the right to reject coupons that
do not comply with these specifications.
Subject to reasonable space limitations that may be imposed by prybuy.com
pursuant to section 4 below, Merchant may offer as many Coupons during the term
of this Agreement as Merchant deems appropriate.
3.4 License to Display
Merchant Material. During the term of
this Agreement, Merchant hereby grants prybuy.com a license to post Merchant’s
Coupons and to display Merchant’s general business information on the Site for
the purposes contemplated in this Agreement.
This license shall be exclusive with respect to Merchant’s Coupons in
electronic media, in that Merchant shall not distribute or permit the
distribution of any coupons or discount offers in any other electronic medium
during the term of this Agreement.
3.5 Redemption of
Coupons. Merchant shall honor and redeem
all Coupons that are obtained from the Site and presented by customers at
Merchant’s places of business, provided the customer has complied with all
requirements for redemption that have been are expressly identified on the
Coupons.
4. prybuy.com’s
Obligations.
4.1 Site Design. prybuy.com (or its designee) shall be
responsible for initial design of the Site and any subsequent design
modifications. Consistent with the terms
of this Agreement, prybuy.com shall design the Site and locate Merchant’s
Coupons and Information on the Site in a manner it reasonably believes will promote
the collective interests of all Merchants and customers participating in or
visiting the Site.
4.2 Site Maintenance. prybuy.com (or its designee) shall be
responsible for hosting the Site and maintaining the functionality and
operation of the Site. Consistent with
the terms of this Agreement, prybuy.com shall host, maintain and operate the
Site in a manner it reasonably believes will promote the collective interests
of all merchants and customers participating in or visiting the Site.
4.3 Use of Merchant
Information. prybuy.com will not use or
disclose information concerning the Merchant’s Payment Account for any purpose
other than securing payments from Merchant under this Agreement.
5. Term, Termination and
Default.
5.1 Termination by Merchant. You may terminate your subscription for any
reason by submitting a Notice of Termination through the unsubscribe page of
the Site, or by submitting written notice to prybuy.com. If the Notice of Termination is received at
least thirty days before the expiration of the current subscription period,
your termination will be effective at the end of the current subscription
period. If the Notice of Termination is
received less than thirty days before the expiration of the current
subscription period, your termination will be effective at the end of the next
subscription period, and you will be charged for the next Quarterly
Subscription. You will not be entitled
to any refund of unused subscription fees.
5.2 Termination by
prybuy.com. prybuy.com may terminate
your subscription for any reason, effective immediately upon providing notice
to you at the email address you provide in your subscription application, or
such other email address as you may later provide to prybuy.com. If your subscription is terminated by
prybuy.com because you have breached this Agreement, you will not be entitled
to any refund of unused subscription fees.
In the event of termination for any other reason, you will receive a
pro-rated refund of unused subscription fees.
5.3 Remedies for
Non-payment. prybuy.com shall be
entitled to recover all expenses of enforcing the Merchant’s obligation to pay
amounts due under this Agreement, which shall include, without limitation,
reasonable attorney fees.
5.4 Obligations after
Termination. [fill in as necessary]. The
following provisions shall survive termination of this Agreement: Section 7,
Section 6.2.
6. Representations,
Warranties and Acknowledgments.
6.1 Merchant’s
warranties. Merchant represents and
warrants as follows:
6.1.1 Merchant has, prior to
the execution of this Agreement, reviewed the Site and understands its
operation;
6.1.2 All materials submitted
to prybuy.com for display on the Site are either owned by the Merchant or used
by the Merchant with the permission of the owner;
6.1.3 The display of the
Merchants Coupons and information on the Site will not violate the copyright,
trademark, patent, trade secret or other rights of any third party.
6.2 Indemnification. Merchant shall defend, indemnify and hold
harmless prybuy.com (including its employees, officers, directors, agents and
insurers) from and against all liability, loss, damage, cost and expense
(including reasonable attorneys’ fees and disbursements) associated, in whole
or in part, directly or indirectly, with any allegation, claim, action, suit or
threat thereof, arising out of Merchant’s breach of any representation or
warranty given in this Agreement or the failure to perform any obligation under
this Agreement.
6.3 Multiple Vendors. Merchant acknowledges that the Site is
intended to operate as a marketplace of discount offerings from multiple
vendors, some of whom may compete with the Merchant. The ability of the Site to offer Coupons from
multiple vendors is an important reason why customers would view the site. Accordingly, Merchant agrees that prybuy.com
and its agents may solicit and secure Coupons from other merchants regardless
of whether such merchants compete with Merchant. Furthermore, prybuy.com reserves the right to
limit the space allocated on the Site for Merchant’s Coupons so as to
accommodate placement of other merchant Coupons as deemed appropriate or
desirable by prybuy.com.
6.4 Corporate
Formalities. prybuy.com and Merchant
each warrant, represent and covenant as follows:
6.4.1 Each is a corporation or
limited liability entity duly organized, validly existing and in good standing
under the laws of the state of its incorporation;
6.4.2 The execution, delivery
and performance of this Agreement has been authorized by all requisite
corporate action; and
6.4.3 This Agreement has been
validly and duly executed and delivered by it and this Agreement constitutes a
binding obligation, enforceable against it in accordance with the terms of this
Agreement, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditor’s
rights generally or equitable principles governing the availability of the
remedy of specific performance.
6.5 Corporate
Representative. The person entering this
Agreement signing in a representative capacity warrants and represents that
(s)he is duly authorized by such party to do so and all consents and approvals
necessary to make this Agreement binding upon such party have been obtained.
6.6 Limited Warranty of
Operation. prybuy.com represents and
warrants that it will use commercially reasonable efforts to maintain and
operate the Site in a manner consistent with the terms of this Agreement. OTHER THAN AS EXPRESSLY SET FORTH HEREIN,
prybuy.com MAKES NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CUSTOM OR USAGE IN TRADE)
REGARDING THE SITE OR THE SERVICES TO BE PROVIDED BY prybuy.com. IN CONNECTION WITH THE SITE prybuy.com MAKES
NO REPRESENTATIONS OR WARRANTIES REGARDING UPTIME OF THE SITE, AVAILABILITY OF
THE SITE, SECURITY OF THE SITE OR CONTENT LOCATED ON THE SITE, VOLUME OF
VISITOR TRAFFIC TO THE SITE OR THE FINANCIAL PROFITABILITY OF MERCHANT’S PARTICIPATION
IN THE SITE.
6.7 Limitation of
Liability. NOTWITHSTANDING ANY OTHER
PROVISION IN THIS AGREEMENT TO THE CONTRARY, prybuy.com SHALL NOT BE LIABLE,
WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT, NEGLIGENCE, STRICT
LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY, FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING,
BUT NOT LIMITED TO, DAMAGE TO MERCHANT’S EQUIPMENT, LOSS OF PROFITS OR REVENUE,
LOSS OF USE OF MERCHANT’S PROPERTY, PLANT, EQUIPMENT OR SYSTEM, DOWNTIME COSTS
OR CLAIMS OF MERCHANT’S CUSTOMERS. prybuy.com’S TOTAL AGGREGATE LIABILITY TO
MERCHANT UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY MERCHANT
TO prybuy.com DURING THE FIRST YEAR OF THIS AGREEMENT.
6.8 Basis of the
Bargain. prybuy.com has set its fees and
has entered into this Agreement in reliance upon the enforceability of the
Limited Warranty of Operation, the Limitation of Liability, and the
indemnification provided by the Merchant in this Agreement, and these form an
essential basis of the bargain between the parties. The Limited Warranty of Operation, the
Limitation of Liability, and the indemnification shall survive and apply even
if this Agreement is found to have failed of its essential purpose.
7. Confidentiality.
7.1 Nondisclosure. Except as otherwise provided in this
Agreement, neither party shall use or disclose to any third party any financial terms of this Agreement, and any
technical and copyrighted information and/or trade secrets relating to the
other party’s business, business plan or marketing strategy (collectively,
“Confidential Information”). Each party shall instruct its personnel to keep
such information confidential by using the same care and discretion that it
uses for its own Confidential Information.
This confidentiality obligation shall survive termination of this
Agreement. This provision, however,
shall not apply to disclosures of information by prybuy.com as part of an
assignment of prybuy.com’s rights under this Agreement.
7.2 Exceptions. The obligations set forth in this Article
shall not apply to any information which (i) is published or otherwise becomes
available to the general public through no fault of the receiving party; (ii)
has been furnished or made known by a third party without breach by that third
party of any obligation to the disclosing party; (iii) was in the receiving
party’s possession without proprietary restrictions prior to the date of
disclosure; or (iv) the receiving party establishes that the information was
developed independent of the Confidential Information.
8. Intellectual Property.
8.1 Property of prybuy.com.
Merchant concedes and recognizes that prybuy.com is the owner of the Site and
the System of which the Site is a part, and of any patent, trademark, trade
name, copyright, domain name and any other intellectual property embodied in
the Site and the System (collectively, “prybuy.com Intellectual
Property”). Merchant has no right or
interest in to the prybuy.com Intellectual Property, and shall acquire no such
right or interest under this Agreement or through the use of the Site or the
System.
8.2 Property of
Merchant. prybuy.com concedes and
recognizes Merchant’s ownership of the materials submitted by the Merchant to
prybuy.com, and of any patent, trademark, trade name, copyright, domain name
and any other intellectual property embodied in those materials (collectively,
“Merchant Intellectual Property”).
prybuy.com has no right or interest in to the Merchant Intellectual
Property, and shall acquire no such right or interest under this Agreement or
through the Merchant’s use of the Site or the System.
9. General Provisions.
9.1 Force Majeure. prybuy.com shall not be liable for loss,
damage or delay due to causes beyond prybuy.com’s reasonable control. In the event of any such delay, performance
will be postponed by such length of time as may be reasonably necessary under
the circumstances.
9.2 Notices. All notices to either party may shall be sent
to the email address of record provided by the party or to the party’s physical
address of record. Notice to a physical
address of record shall be personally delivered or sent to by United States
mail, postage prepaid. Notice shall be
deemed sent on the day of emailing, personal delivery, or deposit in the United
States mail. prybuy.com’s physical
address is:
prybuy.com
320 West Grand Avenue, Suite 303
Wisconsin Rapids, WI 54495
9.3 Sale, Assignment or
Other Transfer. This Agreement is
entered into in reliance upon and in consideration of the character,
qualifications and representations of
Merchant. Neither this Agreement
nor any of its rights or privileges, shall be assigned, transferred or divided
in any manner by Merchant or its principals without the prior written approval
of prybuy.com. prybuy.com may freely
assign its rights under this Agreement without the consent of the Merchant.
9.4 Scope of Agreement. This Agreement supersedes and terminates any
and all prior agreements or contracts concerning the subject matter hereof,
whether oral or in writing, which have been entered into between prybuy.com and
the Merchant prior to the date hereof.
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof.
9.5 Amendment. This Agreement may be amended by prybuy.com
upon sixty days written notice, and upon such notice, Merchant shall have
thirty days to elect to terminate this Agreement as of the effective date of
the amended Agreement. Such an election
to terminate upon amendment of this Agreement shall be treated as a termination
by prybuy.com other than for a breach, and you shall be entitled to a pro-rata
refund of your unused subscription fees.
9.6 Severability &
Headings. If any section, paragraph, sentence, clause or other provision of
this Agreement is held by a court of competent jurisdiction to be illegal, null
and void or unenforceable, such determination shall not affect the remainder of
this Agreement, and such remainder shall remain in full force and effect. The headings and captions used in this
Agreement are for convenience only and shall not be considered part of the
subject matter hereunder or used to interpret or construe any provision hereof.
9.7 Waiver. Any waiver by prybuy.com of any right or
remedy hereunder shall be effective only if it is in writing and signed by
prybuy.com. No delay or omission by prybuy.com to exercise any right or remedy
hereunder, whether on, before, or after the happening of any breach or default,
will impair any such right or remedy or will operate as a waiver thereof or as
a waiver of any such breach or default.
No single or partial exercise by the prybuy.com of any right or remedy
will preclude any other or further exercise thereof, or preclude any other
right or remedy.
9.8 Applicable Law and
Choice of Forum. This Agreement and the
rights and obligations of the parties hereto shall be construed in accordance
with the laws of the State of Wisconsin and the United States, and any
proceedings to enforce this Agreement shall be brought in the state or federal
courts in Dane County, Wisconsin.
9.9 Relationship of
Parties. The parties are independent
contractors and nothing in this Agreement creates or implies an agency
relationship between the parties, nor shall the Agreement be deemed to
constitute a joint venture or partnership between the parties. Except as provided in this Agreement, neither
party has the authority to bind or otherwise obligate the other in any manner
whatsoever.
mn271273_1