| Retailer Network Operating Agreement |
As of December 9, 2005
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 This Agreement along with any appendix contains the complete terms and conditions that apply to you and your participation as a Retailer (you are herein after referred to as "You" or "Retailer") in the Retailer Network of Xebra, Inc. ("GoCollect").
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- Enrollment in the Retailer Network. To begin the enrollment process, You must submit a complete Retailer Network application. GoCollect will evaluate your application in good faith and will notify You of your acceptance or rejection in a timely manner. GoCollect may reject Your application if GoCollect determines, in GoCollect's sole discretion, that Your application is unsuitable for the Retailer Network for any reason including, but not limited to, You do not have an actual brick and mortar store location, You will not provide all of the information required to complete the application. If GoCollect rejects your application, You are welcome to reapply to the Retailer Network at any time. If GoCollect accepts Your application and You are later determined by GoCollect, in GoCollect's sole discretion, to be unsuitable for GoCollect's Retailer Program, GoCollect may immediately terminate this Agreement without notice to You.
- Responsibilities and Opportunities.
- Compliance with the Agreement. GoCollect has the right in its sole discretion to monitor your account activity at any time to determine if You are in compliance with the terms of this Agreement.
- Retailer Account Information Maintenance. You are required to maintain your contact information with GoCollect. In the event of a change of address, You must give notification via email to Retailer@gocollect.com with your Retailer identification number, your old address and your new address.
- Publicity. You shall not create, publish, distribute, or permit any written material that makes reference to GoCollect without first submitting such material to GoCollect and receiving its written consent, which GoCollect agrees shall not be unreasonably withheld. When engaging in any direct promotional or advertising activities with consumers, You shall (a) only send communications to recipients who have expressly agreed directly with You, in advance, to receive such communications from You, (b) identify Your complete name and physical postal address, (c) clearly, conspicuously, and truthfully indicate the nature of the communication, (d) provide a reasonable method by which consumers can eliminate or limit ("opt-out") of such communications, (e) timely and in accordance with applicable laws, honor consumer requests to "opt-out" of such communications, (f) maintain reasonable records with regard to such "opt-out" requests, and (g) not sell, rent, share, transfer, or disclose any personal information regarding consumers who "opt-out" except to process their orders and requests.
- Licenses and Use of Logos and Trademarks.
- You grant to GoCollect a non-exclusive license to utilize your names, titles, and logos (the "Retailer Trademarks"), to advertise, market, promote, and publicize in any manner GoCollect's rights hereunder; provided, however, that GoCollect shall not be required to so advertise, market, promote, or publicize.
- Term of the Agreement. The term of this Agreement will begin upon GoCollect's acceptance of your Retailer Network application and will end when terminated by either party. Either You or GoCollect may terminate this Agreement at any time, with or without cause, by giving the other party written notice by regular mail or email of termination.
- Modification. GoCollect may modify any of the terms and conditions contained in this Agreement at any time in GoCollect's sole discretion. A notice will be posted on the Website concerning any changes in the terms and conditions of the Agreement. You are responsible to periodically check the GoCollect Website for any changes. Modifications may include, but are not limited to, payment procedures, and Retailer Network rules. If any modification is unacceptable to You, your only recourse is to terminate this Agreement. Your continued participation in the Retailer Network following GoCollect's posting of a change notice or new agreement on the Website will constitute binding acceptance by You of the change.
- Relationship of Parties. You and GoCollect are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on GoCollect's behalf. You will not make any statement, whether on Your Site or otherwise, that would contradict anything in this Agreement.
- Disclaimers. GOCOLLECT MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE RETAILER NETWORK OR ANY GOCOLLECT PRODUCTS SOLD THROUGH THE RETAILER NETWORK INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. IN ADDITION, GOCOLLECT MAKES NO REPRESENTATION THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND GOCOLLECT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
- Representations and Warranties. You hereby represent and warrant to GoCollect as follows:
- This Agreement has been duly and validly entered into and delivered by You and constitutes your legal, valid, and binding obligation, enforceable against You in accordance with its terms.
- The execution, delivery, and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which You are subject, (ii) any order, judgment, or decree applicable to You or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to You or binding upon your assets or properties.
- You are the sole and exclusive owner of the Retailer Trademarks and have the right and power to grant to GoCollect the license to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to You or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
- No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby.
- There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against You, or any Retailer of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to the Retailer Trademarks and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
- You are an adult of at least 18 years of age.
- Limitation of Liability. GOCOLLECT WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE RETAILER NETWORK, EVEN IF GOCOLLECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, GOCOLLECT'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE RETAILER NETWORK WILL NOT EXCEED THE TOTAL EARNINGS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
- Indemnification. You hereby agree to indemnify and hold harmless GoCollect, its parent, subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that GoCollect's use of the Retailer Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by You herein.
- Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT GOCOLLECT MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE RETAILER NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
- Governing Law and Miscellaneous Provisions. The laws of the United States and the State of Illinois will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in New York County, New York and You irrevocably consent to the jurisdiction of such courts. GoCollect may assign this Agreement to any parent, sister or affiliate company that is part of an internal reorganization or to the successor in interest of the business to which the Agreement pertains. You may not assign this Agreement, by operation of law or otherwise, without GoCollect's prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. GoCollect's failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of GoCollect's right to subsequently enforce such a provision or any other provision of this Agreement.
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Appendix I - Inventory Purchase Program >>
Appendix II - GoCollect Affiliate Link >>
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