Merchant Terms & Conditions

RECITALS

1. The Commission hosts the Alleghenies Marketplace, an online e-commerce marketplace (the “Marketplace”), that facilitates the sale of goods developed and/or sold by entrepreneurs located within the Southern Alleghenies region, consisting of the Pennsylvania Counties of Bedford, Blair, Cambria, Fulton, Huntingdon, and Somerset; and
2. Merchant desires to establish an online store on the Marketplace (the “Webstore”) and sell its goods to patrons of the Marketplace.

The parties, intending to be legally bound, agree to the following terms and conditions for the offer of Merchant’s products on the Marketplace:

1. The Marketplace. The Commission agrees to facilitate the sale on the Marketplace those products that Merchant offers and makes available for sale on its Webstore (the “Products”), in accordance with the terms and certain restrictions in this Agreement. 
2. Pricing and Payment Terms. The Products are to be sold to customers at the prices set by Merchant, subject to any sales or other promotional price discounts established by Merchant. The Commission will receive a six percent (6%) fee of the retail price of all Products ordered through the Marketplace, more fully set forth in the Payment Terms Policy, as amended from time to time, which is incorporated by reference and binding upon the Merchant upon its execution of this Agreement.
3. Commission’s Responsibilities. The Commission shall be responsible for all customer interfacing on the Marketplace, including providing the web-platform for ordering, billing, Merchant customer support, and the display of Merchant’s products on the Marketplace. The Commission shall provide Merchant a password-protected Merchant specific portal, available through the Marketplace that will enable Merchant to: (i) track all activity on its Webstore, including sale analytics, (ii) process orders, sales and returns of Products, (iii) change specifics about Products on its Webstore, including adding and removing Products, and setting price and descriptions for Products, and (iv) establish and publish Merchant’s specific policies for its Webstore.
4. Merchant’s Responsibilities. The Merchant shall be responsible for the following:
   1. Identify the Products. Merchant is responsible to list the Products that it wants placed for sale on the Marketplace via its Webstore. Merchant may update Products it offers on the Marketplace from time to time in its discretion. All Products listed by Merchant on the Marketplace via its Webstore are subject to the following conditions:
      1. All listed Products must be legal for sale in the United States. If sale of a particular Product is regulated in any way by a federal, state, or local government or its agencies, Merchant agrees to inform the Commission of the appropriate limitations and work with the Commission to implement those limitations on the Marketplace. If the Commission determines, in its sole and absolute discretion, it cannot or will not implement the limitations, Merchant agrees to remove that particular Product from sale on the Marketplace.
      2. All listed Products must be generally available for sale. If a Product is available in limited quantity or must be developed in a customized manner this must be noted on the Merchant’s Webstore.
      3. Without limiting the foregoing, the Products sold by Merchant on the Marketplace shall generally be of good tase and represent the overall image of the Marketplace’s brand. Products sold on the Marketplace will not include:
         1. Alcoholic beverages or food items for immediate consumption;
         2. Intangible products such as services, consultations, design work and web development;
         3. Illicit, lude, explicit, or graphic content, including but not limited to pornography or other “sin industries” including but not limited to tobacco, drugs, and gambling.
      4. The Commission shall have ultimate and final authority over what products are sold on the Marketplace and may remove any Product from Merchant’s Webstore at any time. 
      5. Without limiting the foregoing, a Product may be removed from Merchant’s Webstore by the Commission if a Product is receiving a customer ranking of three (3) or below for thirty (30) days or the Merchant is experiencing low sales volumes for a period of (6) months.
   2. Delivery of Products. Merchant shall be solely responsible for the delivery the Products that customers purchase through its Webstore according to Merchant’s individual shipping policies established and published on its Webstore. 
   3. Description the Products. Merchant shall provide all descriptions, photographs or other content and copy about each Product (“Product Content”), and hereby grants the Commissions any necessary license for its use of such Product Content on the Marketplace. Merchant represents and warrants that all such Product Content is complete and accurate, and that the Merchant owns or holds all appropriate license(s) for the intellectual property rights for the Product Content.  
   4. Product Warranty and Returns. Merchant represents and warrants that the Products are of good quality and merchantable. Merchant shall be responsible for all customer returns for Products purchased through its Webstore according to Merchant’s individual return policies established and published on its Webstore. The Commission will retain its (6%) six percent fee if an item is returned to be exchanged or for a full refund.  Merchant agrees to defend, indemnify and hold the Commission, its officers and employees from and against all claims, actions, damages, suits, liabilities, and obligations, brought by third parties for damages, injuries to persons (including death), property damages, losses, and expenses including court costs and reasonable attorney’s fees, arising out of, or, resulting from or in connection with Merchant’s Products.
   5. Terms of Use and Privacy Policy. Merchant agrees to follow and be bound to the Marketplace’s Terms of Use and Privacy Policy, as amended from time to time, and which are incorporated by reference.
5. Warranty and Disclaimer. The Commission will use good faith efforts to keep the Marketplace active. The Marketplace may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Commission or by third-party providers, or because of other causes beyond the Commission’s reasonable control.  THE COMMISSION DOES NOT WARRANT THAT THE MARKETPLACE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MARKETPLACE.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE COMMISSION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Intellectual Property. Merchant represents and warrants that the Products and all materials it submits to the Commission will not infringe any intellectual property, proprietary or commercial right of any third party. Merchant agrees to defend, indemnify, and hold harmless the Commission and its officers, directors, agents, and representatives from any and all claims, suits, actions, liabilities, damages, losses, penalties, or expenses, including attorneys’ fees, incurred by the Commission by reason of any infringement or alleged infringement of any of the foregoing rights.
7. Authority. Merchant has taken all steps and received all necessary consents such that the Merchant has sufficient power and authority to enter into this Agreement, which upon execution shall be binding on the Merchant.
8. Limitation of Liability. THE COMMISSION WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS WEB SITES, INCLUDING BUT NOT LIMITED TO LOST INCOME, PROFITS, LOSS OF USE, OR ANY CLAIM BASED ON INDEMNITY OR CONTRIBUTION. MERCHANT’S EXCLUSIVE REMEDY AGAINST THE COMMISSION SHALL BE CANCELLATION OF THIS AGREEMENT AND PAYMENT FOR ALL PRODUCTS SHIPPED HEREUNDER AND NOT RETURNED. 
9. Sales, Use and Other Taxes. 
   1. Merchant represents and warrants: (i) it is a validly registered entity in good standing and permitted to do business in the Commonwealth of the Pennsylvania, (ii) it has a valid Sales Tax License issued by the Pennsylvania Department of Revenue, and (iii) it is current on all federal, state, and local tax obligations.
   2. The relationship hereunder is a “sale and re-sale” relationship. The Commission will collect and remit to Merchant Pennsylvania sales tax, at the then current rate, on each sale of a Product sold on the Marketplace. Notwithstanding the foregoing, Merchant is responsible to determine whether the applicable laws of any state or other jurisdiction require Merchant to collect, pay or remit a sales, use, transfer or other tax (‘Taxes’) with respect to or as a consequence of the marketing, sale or delivery of the Products via the Marketplace. If the applicable laws do require Merchant to collect, pay or remit any such Taxes, Merchant shall be solely responsible for paying the Taxes out of its tax remittance from Commission and/or its sale proceeds. Merchant agrees to defend, indemnify, and hold harmless the Commission and its officers, directors, agents, and representatives from any and all claims, suits, actions, liabilities, damages, losses, penalties, or expenses, including attorneys’ fees, incurred by the Commission by reason of failure by Merchant to pay Taxes.
10. Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third person any such Proprietary Information. The parties agree that the improper disclosure of Proprietary Information may irreparably harm the Disclosing Party.  Because money damages may not be a sufficient remedy for any breach of this Section 10, the Disclosing Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or threatened breach.

1. Termination. 
   1. Convenience.  Either party may terminate this Agreement at any time by giving the other party thirty (30) days’ prior written notice, effective upon, in the discretion the Commission, the 31st day following the receipt of the notice or such later date specified in the notice by delivering party (the “Termination Date.”) The Commission will remove your Products from the Marketplace as of the Termination Date.  The Merchant agrees to fulfill all orders placed prior to the effective Termination Date.
   2. By Commission. The Commission may terminate this Agreement immediately if:
      1. Merchant is in breach of this Agreement;
      2. The Merchant is receiving a customer ranking of three (3) or below for thirty (30) days;
      3. Merchant is not adhering to its own policies published on its Webstore; or
      4. Merchant has a low sales volume for any six-month period.
2. Miscellaneous. This Agreement does not create an agency, franchise, joint venture, partnership, or any other relationship other than that between two independent contractors. A waiver of a breach of one or more of the terms of this Agreement does not constitute a waiver of any future or other breaches. The invalidity of any particular clause of this Agreement shall not affect the validity of any other particular clause, or of the Agreement as a whole. This Agreement is governed by the laws of the Commonwealth of Pennsylvania, except for conflict of laws principles, and all disputes that arise from or relate to this Agreement shall be brought in the state or federal courts located within Blair County, Pennsylvania. In any such dispute, the prevailing party shall be entitled to its costs and expenses incurred, including reasonable attorneys’ fees.
3. Final Agreement. This Agreement is intended as the final representation of the promises and agreement of the parties. It supersedes and controls all other oral and written communications, negotiations, or representations. It may not be modified or amended except by a writing signed by both parties.
4. Counterparts; Electronic Signature. This Agreement may be executed in several counterparts, each of which, when taken together, shall be deemed the same agreement.   Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

NOW THEREFORE, the parties intending to be legally bound, execute this Agreement as of the Effective Date.