CCNow Client AgreementRevised and Effective as of October 1, 2013
PLEASE READ THIS ENTIRE CCNOW CLIENT AGREEMENT (THE "AGREEMENT") CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT AND WHO IS SHOWN AS THE "CLIENT" IN THE CCNOW CLIENT MENU ("You") AND SNORRASON HOLDINGS EHF OR ONE OF ITS OPERATING COMPANIES ("CCNow") (each, a "Party," and together, the "Parties"). Please print a copy of this Agreement for Your records.
To be a CCNow client whose Merchandise will be resold by CCNow to Customers through the CCNow Site and/or shopping cart facilities, You must first agree to the terms and conditions in this Agreement. If You do not accept this Agreement, then You will not be able to have CCNow resell Your Merchandise or use CCNow's services. Your electronic acceptance of this Agreement constitutes an offer to CCNow. BY ACCEPTING THIS AGREEMENT BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND YOU TO THIS AGREEMENT. The commencement of CCNow's performance of its obligations hereunder shall constitute CCNow's acceptance of this Agreement, and upon commencement of such performance this Agreement shall form a binding agreement between the parties. You also agree to these terms (or the current terms then in force) each time You log into Your Client Menu account and use CCNow's services.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
The following capitalized terms in this Agreement are defined below. Other terms defined in the body of this Agreement will have the meanings given where defined.
A. "CCNow Site" means CCNow's Web site, found at www.euphonicsmastering.com, through which CCNow will be the seller and merchant of record for sales of Merchandise to Customers.
B. "Customer" means any person, organization or entity that visits the CCNow Site, through which that person, organization or entity may choose to purchase Merchandise from CCNow.
C. "Merchandise" means the items You will sell to CCNow for resale by CCNow to Customers through the CCNow Site, that CCNow agrees to resell.
D. "Pricing Details" means the financial terms of Your relationship with CCNow (including the retail margin earned by CCNow, the monthly fee payable to CCNow, and any fees charged by CCNow), which is available at the following URL: http://www.euphonicsmastering.com/pricingDetails.html and which is hereby incorporated by reference.
E. "Suggested Retail Price" means the price that You input into the CCNow system as the recommended selling price of the Merchandise. For the avoidance of doubt, while You may provide suggested retail prices for Merchandise, CCNow is solely responsible for setting the retail price at which Merchandise is resold to Customers by CCNow, which may reflect the Suggested Retail Price at CCNow's discretion.
F. "Client Menu" refers to online services provided to You as a retailer of Your products by CCNow, primarily served from CCNow.com.
G. "Settlement Day" refers to the banking day when Your payment is initiated at CCNow's bank(s), or checks printed and despatched.
H. "Payment Threshold" refers to a per account limit set from time to time that is used to decide if a regular settlement of CCNow's Payment Obligation to You should be initiated for the appropriate Pay Period. (See Section 4 K regarding such Remittances).
I. "Primary Email Address" refers to the email address set in Your online profile at the CCNow Client Menu and which is used amongst other things for sending notices to You as explained in Section 12 B (Notices).
J. "Your" or "Yours" refer to things that You own, and the rights or obligations applicable to You as set forth in this Agreement.
K. "Your Site(s)" means one or more online Web sites and/or auction pages You operate to solicit retail sales of Your Merchandise, and which will provide links to the CCNow Site for Customers to engage in retail transactions with CCNow.
2. CONDITIONS OF USING CCNOW
In order to utilize the e-commerce services offered by CCNow, You must meet and follow the following conditions and rules:
A. Your Merchandise must meet or exceed CCNow's product requirements (as determined by CCNow). Through the Client Menu, You will provide CCNow with a complete list of Your Site(s) through which Your Merchandise is marketed online, and will keep this list current.
B. All marketing, advertising, and product information must be contained on Your Site(s), so that Customers do not need to contact You for additional information prior to sale by CCNow. You are responsible for all costs to create, operate and maintain Your Site(s).
C. The CCNow Site cannot be used to sell Merchandise to personal acquaintances, such as friends, relatives, co-workers, or for in-person sales.
D. Customers must place orders themselves through the CCNow Site. It is expressly prohibited to solicit, collect, store, or disclose any cardholder data except as permitted by CCNow according to this Agreement. You will not allow anyone to place orders on a Customer's behalf. You will not enter orders on behalf of Customers Yourself ("Self-Keying"), or otherwise collect cardholder data on Your Site(s), unless Your Compliance with applicable Industry Security Standards has been established and documented by CCNow (see Section 3 I(b)).
E. Suggested Retail Prices and Customer retail prices for Merchandise must always be displayed and maintained in a CCNow-supported currency.
F. You must not engage in any unfair or deceptive trade practices and all descriptions of Your Merchandise must be accurate, up to date, and easy to understand.
G. You do not offer for sale any product which falls within the list of prohibited products available at the following URL: http://www.euphonicsmastering.com/prohibitedProducts.html all of which may not be sold through the CCNow Site (the "Prohibited Products" list). The current list of Prohibited Products available through the above hyperlink is incorporated by reference into this Agreement. CCNow may update the Prohibited Products list at any time and at its sole discretion.
H. You do not offer for sale any product which is in violation of any other policy of CCNow.
I. If Your Merchandise includes herbal supplements, dietary supplements, nutritional supplements, or herbal remedies, not prohibited per the Prohibited Products list (and not designated or regulated as a medicine), ingestible products or materials, or any other product designed to promote health or well-being as determined by CCNow in its sole discretion (collectively referred to in this Agreement as "Supplements and Similar Items"), You will fully comply with any "best practices" documentation CCNow may provide to You in connection with Your manufacture (either directly or by Your own supplier) and the offering for sale of Your Supplements and Similar Items, and will comply with any laws, rules and regulations (whether local or foreign) which relate to Your manufacture and offering for sale of Your Supplements and Similar Items.
CCNow may add to or modify these conditions and rules upon notice to You (See Section 12 C). If You do not meet and follow all of these conditions and rules, You may not enter into this Agreement. If CCNow determines at any time that You or any of Your Merchandise does not meet or follow all of these conditions and rules, or that You are in breach of, or in noncompliance with, any provision of, Your obligations under this Agreement, CCNow may immediately suspend sales of Your Merchandise and/or terminate this Agreement without notice to You.
3. GENERAL RIGHTS AND OBLIGATIONS
A. Legal Relationship. As a client of CCNow, You will sell Your Merchandise to CCNow for resale by CCNow, as the seller and merchant of record, to Customers through the CCNow Site. As described in more detail below, You will operate Your Site(s) to promote the sales of Merchandise to Customers through the CCNow Site, as well as fulfilling and shipping all orders of Merchandise on CCNow's behalf as CCNow's fulfillment agent directly to CCNow's Customers. When an order is placed through the CCNow Site by a Customer, You agree to immediately sell the applicable Merchandise to CCNow in exchange for the Purchase Price for such Merchandise (as defined in Section 4), at which time title to the Merchandise will pass from You to CCNow, for subsequent transfer by CCNow to the Customer. You give CCNow the right to sell Merchandise as described in this Agreement, and a limited right to use Your trademarks in connection with CCNow's sale of Your Merchandise through the CCNow Site. CCNow will post the order on the Your "Pending Orders" screen in the Client Menu, and send You a confirmation "pending order" email. For sales to Customers within the same country from which goods are shipped title to Merchandise will transfer from CCNow to the Customer upon delivery of the Merchandise to the shipping carrier. For sales to Customers located outside of the country from which goods are shipped, title to Merchandise will transfer from CCNow to the Customer at the port of entry during transit from the shipping country to the state, territory, province, or country in which the Customer's shipment destination is located.
B. Available Merchandise. You will use CCNow's online Client Menu to maintain a current list of Merchandise You are offering for sale to CCNow for resale by CCNow to Customers via the CCNow Site. The CCNow shopping cart will only be as accurate as the information You maintain in the Client Menu. If You are no longer offering a particular item of Merchandise, or an item has gone into back-order status, or You have changed the information concerning an item, You will immediately update the information in the Client Menu.
C. Pricing. For each item of Merchandise, You will provide CCNow with Your Suggested Retail Price via the Client Menu. As the seller of record to Customers, CCNow shall have the sole discretion to set the price at which Merchandise is offered for sale to Customers through the CCNow Site, which may reflect the Suggested Retail Price at CCNow's discretion.
D. Compliance With Merchant Obligations. As a merchant for various card associations from time to time (i.e. Visa, MasterCard, American Express, Discover, JCB, China UnionPay, and others), CCNow has obligations it must fulfill to protect its ability to participate as a merchant in those card associations.
CCNow does not confer any form of card association merchant status upon You or Your Site(s) unless you have signed a separate and distinct sponsored merchant and/or sub-merchant agreement specific to each card association. CCNow is the card association merchant of record and acts as an authorized retailer for Merchandise supplied by You.
(a) You shall not conduct Yourself in a manner that will endanger CCNow's merchant status, including without limitation, misrepresenting the relationship between CCNow and You and/or Your Site(s). It is important to the card associations, and to CCNow's status as a card association merchant, that the relationship between You and CCNow is not misrepresented. You shall represent CCNow as Your authorized retailer and not as a "credit card processor" or a "payment gateway" which implies incorrectly that CCNow has provided you with a merchant account.
You will operate Your Site(s) to promote the sales of Your Merchandise to Customers by CCNow through the CCNow Site. Language must be included on Your Site(s) that clearly and correctly describes CCNow's status.
ACCEPTABLE terminology to describe CCNow (preferably as early in the shopping process as possible, and in Your Site(s)' FAQs):
"CCNow is an authorized retailer of . CCNow.com 1-877-226-6977 will appear on your card statement." or "CCNow is a retailer of goods and services supplied by . CCNow.com 1-877-226-6977 will appear on your card statement." or "CCNow is the reseller of services provided by . CCNow.com 1-877-226-6977 will appear on your card statement."
You shall NOT refer to CCNow as a:
"Credit Card Processor", "Payment Processor", "Payment Gateway" or "Third Party Processor".
(b) Similar restrictions on the manner in which CCNow is described apply for any buttons or links to CCNow's checkout process contained on Your Site(s).
ACCEPTABLE terminology for buttons or links to CCNow is:
"Buy Now", "Buy from CCNow", "Add to Cart", "Subscribe", "Continue", "Buy safely with Visa, MasterCard, AMEX...", "Redirecting to buy via CCNow...", "Redirecting you to CCNow..."
UNACCEPTABLE terminology to link to CCNow includes phrases such as:
"Pay Now" - NOT acceptable, "Click Here to Pay" - NOT acceptable, "Process Payment Now" - NOT acceptable, "Proceed to pay..." - NOT acceptable, "Secure payments" - NOT acceptable, "Pay safely using Visa, MasterCard, AMEX..." - NOT acceptable, "Redirecting you to pay..." - NOT acceptable, "Redirecting you to pay with CCNow..." - NOT acceptable, "Redirecting you to payment gateway..." - NOT acceptable
(c) You will prominently display, on Your Site(s) and in other online marketing materials if applicable, the most current CCNow 'Our Online Retailer' Logo (as provided to You by CCNow) and a statement that CCNow is the authorized retailer from whom Customers may purchase Your Merchandise as per Section 3 D(a) above.
Except for those Clients that maintain their own card association merchant membership (and then only for those card associations where such membership is maintained), Your Site(s) may display card association related materials such as trademarks, service marks, logos and other protected items belonging to the card associations only if it is clearly stated that CCNow is Your authorized retailer and CCNow, not You or Your Site, is the card association merchant.
It is important to note that failure to comply with CCNow or payment card association requirements will jeopardize Your ability to sell through CCNow. Non-compliant Site(s) are subject to immediate account suspension and/or termination.
Clients have artistic license to incorporate the relationship into the context and design of their site provided they do not misrepresent the relationship.
If you are unsure about whether or not Your site language is in compliance contact CCNow Support, who will be happy to provide guidance.
You will not display, on Your Site(s) or elsewhere, Your own terms of sale or returns policy with respect to CCNow's sale of Merchandise on Your Site(s) or elsewhere without CCNow's express prior written consent to do so.
E. Links. You will prominently display, on Your Site(s), links to the shopping cart on the CCNow Site (CCNow can provide You with sample button art and URL codes within the Client Menu) in order to allow each Customer to purchase Merchandise displayed on Your Site(s) from CCNow through the CCNow Site.
F. CCNow Site. As Customers are directed to the CCNow Site, CCNow will provide a Web-based purchasing system to allow the Customer to purchase Merchandise from CCNow. CCNow will be responsible for operating a shopping cart that will acknowledge the Customer's choices and process the order, as well as for maintaining merchant accounts with various merchant account providers or other electronic payment systems that CCNow may choose to implement, and for collecting the Customer's payments as each shopping cart order is placed. Except as set forth below concerning certain costs, CCNow will be responsible for the costs of operating and maintaining its shopping cart system and the CCNow Site.
G. Fulfillment. Upon receipt of a pending order, You agree to fulfill Customer orders on CCNow's behalf and as CCNow's fulfillment agent by promptly delivering the ordered Merchandise to the Customer using the information provided in the pending order. You must use a common carrier such as the United States Postal Service, United Parcel Service, or Federal Express, etc., shipping charges prepaid, with instructions to deliver the Merchandise to the Customer. You acknowledge that the amounts paid to You by CCNow constitute consideration for Your fulfillment of Customer orders on CCNow's behalf.
As CCNow's fulfillment agent, You bear all risk of loss during the shipment of Merchandise until it is delivered to the Customer. You are responsible for purchasing and paying for any insurance You deem necessary to protect Your interests while the Merchandise is in transit to the Customer. You are responsible for ensuring that each shipment of Merchandise is accurately addressed to the Customer address provided to You in the pending order. You are responsible for complying with all applicable shipping laws and regulations necessary to ensure prompt delivery of the Merchandise to the Customer, including the declaration of accurate values and descriptions necessary for applicable customs regulations, and the payment of any necessary duties or the like. You may not deviate from these shipping standards.
Once You have shipped the Merchandise, You must promptly acknowledge the shipment using CCNow's Client Menu. You must give CCNow prompt and accurate information concerning Your fulfillment of a CCNow Customer's order. You may not acknowledge an order as "Shipped" until after the Merchandise has already been shipped. CCNow accepts only fulfillment in the entirety of any order, and You may not make partial shipments due to backordered or unavailable items. If You are unable to completely fulfill any order within five (5) business days of CCNow's sending it to You, You must promptly cancel the order using CCNow's Client Menu.
H. Shipping. As Customers place orders from CCNow, CCNow may charge the Customer a shipping charge for each item of Merchandise. You agree and acknowledge that CCNow will pay You the agreed-upon amount specified by You in the Client Menu (subject to the Payment Obligation rules set forth below) for Your fulfillment of the Customer's order on CCNow's behalf.
I. Use of Information. Because CCNow is the seller of Your Merchandise to Customers, CCNow is the party with whom the Customer is transacting business. As such, the Customer is giving his/her/its personally identifiable information to CCNow. As between You and CCNow, neither party will own any Customer information provided in connection with a sale by CCNow, but shall have rights to use such information as set forth in this section in accordance with applicable laws, rules and regulations.
(b) Compliance With Industry Security Standards. You will ensure Your Site(s) are in compliance with the regulations of the 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, or which become effective, during the term of this Agreement. You will ensure Your compliance with the security standards applicable to Your business, including but not limited to, the Payment Card Industry Data Security Standard (PCI DSS) at all times.
You will make commercially reasonable efforts to protect all Customer Information, according to industry security standards and applicable laws, rules and regulations.
Upon receipt of a current and correctly completed PCI DSS Self-Assessment Questionnaire and Attestation of Compliance, CCNow may at its sole discretion permit Client to enter certain additional information associated with a customer's order to allow its completion with CCNow. Such information collected by telephone may include without limitation primary account number, expiration date, and the card verification value/card security code (collectively, "Cardholder Data"). Client will not solicit, collect, store, or disclose this Cardholder Data except as specified under the Security Guidelines specified by CCNow in its Operating Regulations for Mail Order/Telephone Orders, which mandates strict adherence to PCI DSS-compliant standards of care in handing Cardholder Data prior to authorization of the sale, and in particular to the handling of sensitive authentication data. Client's failure to comply with these Security Guidelines may result in fines and/or penalties being levied by CCNow against You because of Your actions.
(c) Solicitation. You represent, warrant and covenant that You shall not use any Customer information to solicit any Customer who has not affirmatively consented to receive solicitations from You.
J. Customer Support. CCNow does not provide any type of Customer user support or technical support concerning Your Merchandise. CCNow's Customer support is limited to assisting potential Customers in the use of the CCNow Site and its shopping cart to make purchases of Merchandise, providing information concerning the status of Your fulfillment of CCNow's Customer orders, and assisting Customers regarding refunds, returns and billing questions. CCNow will refer any other type of support inquiries from Customers or prospective Customers to You, and You agree to provide reasonable Customer support for such inquiries in accordance with Your standard customer service policies and procedures (but in no event in more than three (3) business days from the date such inquiry is entered in CCNow's system).
K. Audit. You agree that CCNow may, at any time, conduct an audit of Your Site to ensure Your compliance with the terms and requirements of this Agreement. You agree to provide reasonable assistance to CCNow, at no charge to CCNow, in connection with such audit if such assistance is requested by CCNow. In the event CCNow determines through an audit that any of Your Sites is in violation of or noncompliance with any of the terms or requirements of this Agreement and/or Your obligations under this Agreement, (i) You agree to reimburse CCNow its reasonable costs of performing such audit on a time and materials basis, which amounts may be offset by CCNow against amounts due to You under this Agreement, and (ii) You will immediately take action to rectify, to CCNow's satisfaction, any and all such violations and/or noncompliance identified by CCNow. You understand that CCNow may, at its option and without opportunity to cure, suspend Your account or terminate this Agreement if You fail to timely rectify such violations or issues, or if CCNow determines that suspension prior to correction is required to control CCNow's risk.
If you are selling Supplements and Similar Items to CCNow for resale by CCNow, you will, upon CCNow's request, provide certification of compliance with all local, and foreign laws, rules and regulations applicable to Your manufacture and sale of such Merchandise which certification shall be signed by You (or if You are a corporate entity, Your duly authorized officer or principal).
4. PRICING AND PAYMENTS
A. The "Purchase Price" means the amount due to You from CCNow for CCNow's purchase of an item of Merchandise from you for resale by CCNow to Customers, and is CCNow's sole obligation to You in consideration of Your sale of such Merchandise to CCNow, as further defined in Section 4 C below. The Payment Obligation (as defined in Section 4 C below) will be determined by CCNow in arrears at the end of the subsequent “Weekly Pay Period” or “Bi-Monthly Pay Period”. The “Bi-Monthly Pay Period” for clients utilizing Bi-Monthly Payments is defined as sales and account activity from the 1st day of the month through the 15th day of the month, and the 16th day of the each month through the last day of the month. The “Weekly Pay Period” for clients utilizing Weekly Payments consists of activity from the close of business each Tuesday (effectively Wednesday) through the close of business of the next Tuesday. CCNow will deliver the Payment Obligation as promptly after these dates as is practicable. The date when Your payment is initiated at our bank(s), or checks printed and despatched is the Settlement Day, and this is typically the first day of the next Payment Period (Wednesdays for Weekly Payments, and the 1st and 16th of the month for Bi-Monthly Payments). Any client account opened after October 1, 2013 is not eligible for Bi-Monthly Payments nor payment by regular paper check (referenced in Section 4 K iii below) and must use Weekly Payments.
The first Bi-Monthly Pay Period will be from the date Your first sale occurs to the end of the Pay Period following the thirty (30) calendar day anniversary of the first sale date (e.g. if Your first sale is May 12, Your first Pay Period will be May 12 through June 15; if Your first sale is May 20, Your first Pay Period would be May 20 to June 30). For new clients utilizing Weekly Payments, the first 4 (four) Weekly Pay Periods will be held in reserve, with the Payment Obligation to be determined at the start of the 5th Weekly Pay Period.
B. As used below,
i. The "Sales Price" for an item of Merchandise resold by CCNow through the CCNow Site means the retail price CCNow charges a Customer for their purchase of the Merchandise;
ii. "Other Transaction Amounts" shall mean any other amounts paid by a Customer to CCNow in connection with their purchase of Merchandise, including without limitation (a) any Shipping Charges CCNow charges those same Customers based on those same purchases, and (b) all Taxes CCNow collects from those same Customers based on those same purchases (You shall not be entitled to payment of any Other Transaction Amounts); and
iii. the "Transaction Amount" shall mean, for a given order of Merchandise, the sum of the Sales Price for each item of Merchandise in such Customer order, plus the Other Transaction Amounts for such Customer order.
C. For each Pay Period, CCNow will pay to you, for each completed sales transaction shipped to a Customer during such Pay Period, an amount equal to the Sales Price of the items of Merchandise resold by CCNow in such sales transaction, less the Retail Margin for that sales transaction as set forth in the Pricing Details (such amount for each sales transaction shall constitute the "Purchase Price" of the Merchandise, and the aggregate Purchase Prices due to You for a Pay Period shall constitute the "Aggregate Purchase Price Amounts" due to You for that Pay Period),
LESS the following amounts which CCNow may offset from amounts due to You under this Agreement:
i. All Chargebacks (as defined below) or fraudulent or criminal orders processed during the Pay Period (to the extent based on past sales of Your Merchandise) as well as any fees or penalties based on such Chargebacks or fraudulent or criminal orders imposed by CCNow, its payment processors, or a card issuing or acquiring bank;
ii. All Refunds processed during the Pay Period (to the extent based on past sales of Your Merchandise), as well as any fees or penalties based on such Refunds imposed by CCNow (the net result of the Aggregate Purchase Price Amounts for a Pay Period less amounts under (1) and (2) above is the "Net Sales" for the Pay Period);
iii. Any new Reserve to be held back for that Pay Period;
iv. Any additional service fees as defined by CCNow (including without limitation Payment option fees set forth in the Pricing Details);
v. Any additional amounts which are due to, reimbursable to, or owed to CCNow in accordance with the terms of this Agreement and the Pricing Details (such as, but not limited to, Payment Option Fees);
PLUS (6) the remaining amount of any prior Reserve that CCNow is releasing to You during that Pay Period.
The net amount for each Pay Period calculated as the Aggregate Purchase Price Amounts less (1)-(5) above, plus any amounts under (6) above, shall be the "Payment Obligation" to you for that Pay Period.
The Retail Margin, Monthly Fee and Payment Option Fees are set forth in the Pricing Details. You expressly agree that CCNow may change the fees set forth in the Pricing Details at any time, but CCNow will endeavor to give You at least thirty (30) calendar days notice prior to the effective date of any such change.
D. Account. As CCNow collects Transaction Amounts, calculate out any deductions CCNow is entitled to offset from amounts due to You as set forth above, collect or pay back any Reserves, and make payment of any Payment Obligations to You, CCNow will do so via an in-house account that CCNow will maintain for You. While CCNow will maintain an accurate accounting of Your account, note that CCNow may commingle the funds in Your in-house account with other funds CCNow may have in a common outside bank account, and You will not be entitled to any interest on such funds.
E. Set-Up Fee; Monthly Fee. Depending on the available options from time to time, and the option You selected during account sign-up, You will be billed either (a) A one-time set-up fee of $9.95, which will be debited from the credit card given at the time of sign up, together with a monthly fee if Your sales do not meet a certain minimum threshold over each monthly period as set forth in the Pricing Details (the "Monthly Fee"), which may be debited from the credit card given at the time of sign up; or (b) a one-time set-up fee of $39.95, with no Monthly Fee. A valid credit or debit card must be used to open a CCNow account through option (a) above; a valid credit card or PayPal account must be used to open a CCNow account through option (b) above. In any case the credit or debit card used must be in the name of the Owner of the account, be it a sole trader or company. Any dispute, chargeback, or other denial or reversal of these charges may result in the account being terminated by CCNow, at CCNow's discretion. The one-time set-up fee is non-refundable, as is the Monthly Fee after the month it applies to has elapsed.
F. Taxes. You will be solely responsible for the collection and payment of any and all applicable VAT, sales, or use taxes imposed on Your sale or licensing of Merchandise to CCNow (or Your income derived therefrom). The price charged to CCNow by You for Merchandise resold by CCNow to Customers shall be inclusive of all required VAT, sales or use taxes.
For transaction taxes where You are the fulfiller of, and CCNow does not have control of, the Merchandise at any time during the sales and fulfillment process, You will be considered the seller of record for tax purposes with respect to these sales and shall be bound by the terms of this paragraph. Where such a sale is subject to value added tax, goods and services tax or any similar transaction taxes (as determined by CCNow based on Your tax nexus), CCNow will, as Your agent, collect such taxes due on such sale and remit these taxes to You. Your tax registration number will be displayed on the email confirmation as required, and in other locations as may be required by CCNow. You will be solely responsible for the reporting and payment of such taxes to the appropriate taxing authority. You will also be responsible for the refund of VAT with respect to a return of Merchandise by a Customer; however, as Your agent CCNow will make payment of such amount to the Customer, and will deduct this amount from amounts due to You under this Agreement. You agree to provide CCNow with Your VAT/GST registration number(s), and any similar registration numbers for other transaction taxes which may be Your responsibility, which must be provided by You before CCNow will allow Customers in these locations to purchase Your Merchandise through the CCNow Site. You agree to hold CCNow harmless from and against any liability that CCNow may incur from Your failure to properly pay or report taxes as required by this paragraph (including without limitation interest and penalties resulting therefrom).
Notwithstanding this, You and CCNow agree that if additional taxes in the nature of an excise, sales, or use tax are imposed in connection with CCNow's services and paid by CCNow on behalf of You, You shall be liable to CCNow in an amount equal to the amount of such tax payment made by CCNow. You authorize CCNow to collect and pay over taxes in the nature of an excise, sales, or use tax on behalf of You or on account of CCNow's sale of Products if reasonably required to do so by any jurisdiction's taxing authority. CCNow shall have the right to recover from You the amount of any such taxes, related penalties including fines, and interest paid by CCNow with its own funds. You shall also pay CCNow for any related expenses incurred by CCNow, including reasonable attorney's fees, in its collection of any amounts due from You.
G. Returns. As the seller and merchant of record, CCNow is responsible for setting and applying the returns policy applicable to the CCNow Site. You must accept returns of Merchandise from CCNow if the Customer has requested a return from CCNow within 30 days after the date the Customer received the Merchandise, except where a longer return period is required by law in which case You will accept returns from CCNow in compliance with such laws, or where a longer period is agreed by You and CCNow. General controlling law is the Icelandic Act No 46/2000 on Door-to-Door Sales and Distance Contracts (incorporating the relevant provisions of Directive 97/7/EC "the Distance Selling Directive").
You agree to accept returns of Merchandise from CCNow as set forth below.
i. If the return is because the Merchandise is defective, the return right must be unconditional, and the Customer must also be reimbursed for any Shipping Charges paid in the initial sale, and You must be responsible for any shipping charges to return the Merchandise to You as CCNow's fulfillment and returns agent. (You may, alternatively, choose to accept the refund for defective Merchandise without requirement for the Merchandise to be shipped to You if You feel the cost of returning the defective Merchandise would outweigh any benefit of its return to You.)
ii. If the return is not because the Merchandise is defective, You will accept the return both (a) if the return is in accordance with CCNow's returns policy on sales of Your Merchandise (which may include terms regarding refunding or reimbursing for shipping charges, requirements that the Merchandise to be returned in 'like new' condition, or in the case of software or music products to still be in original shrink-wrap with all seals intact), and (b) if the return is made by CCNow in accordance with subsection (iv) below. You must prominently display CCNow's return conditions on Your Site(s) as well as provide a complete copy of those conditions with the Merchandise as You ship it to the Customer, and You may not enforce any other conditions regarding returns or refunds for which You have not obtained CCNow's approval.
Certain payment card issuing banks will charge Customers an "International Service Fee" regardless of whether or not a currency conversion is involved for charges made to their card by CCNow. If charged by their issuing bank this will appear on the customer's card statement as a separate line item, such as "INTL Service Fee", "International Transaction Fee", "International Service Fee", "Foreign Transaction Fee", "Foreign Merchant Fee", "Foreign Transaction Charge", "Cross-border Assessment", or "International Service Assessment". More information is available at http://intlservicefee.com
As this International Service Fee is levied by the issuing bank separate from the charge made by CCNow, only the Customer's issuing bank can refund it back to the customer. For this reason You should not initiate a refund for this International Service Fee through CCNow. Instead, as necessary explain the situation to the customer and ask them to contact their card issuing bank.
iii. In any event, You may not impose a 'restocking fee' or similar charge for any returns without the express permission of CCNow.
iv. If, at any time, the Customer inquires or complains directly to CCNow, the Customer's credit card issuer or a third party such as a law enforcement agency or consumer protection agency concerning Your Merchandise, except in certain circumstances as described in subsection (v) below CCNow will promptly forward the inquiry or complaint to You via e-mail. You must promptly respond to the inquiry or complaint on CCNow's behalf, through CCNow's response system accessed from the Client Menu or via the e-mail address given to You in the inquiry e-mail, either by authorizing a return or answering the inquiry if a return was not demanded by the Customer. If You fail to adequately respond to CCNow's forwarding of the inquiry or complaint by the end of three full business days (ending as of midnight GMT) that passes after CCNow has sent the inquiry e-mail to You, then CCNow may unilaterally respond to such inquiry or complaint, or make a Refund to the Customer as described below.
v. Notwithstanding subsection (iv) above, CCNow reserves the right to process a return and refund for any order which it, at its sole discretion, is believed to be (a) of a fraudulent nature, (b) transacted in a manner inconsistent with the terms and conditions of this Agreement or the Prohibited Products list, (c) in violation of any other applicable statute or law, (d) is necessary to protect CCNow's rights or business, or (e) is necessary to keep CCNow's chargeback rates within necessary bounds. CCNow will be entitled to keep its margin earned on the sale to the Customer, even if the Customer makes a return or such sale becomes subject to chargeback as described below. You further agree that CCNow may treat any non-fraudulent chargeback or other non-fraudulent End User-, issuing bank-, or payment processor-, initiated reversal of a previously completed payment, and any sales transaction identified as fraudulent subsequent to settlement of payment but prior to receipt of a fraudulent chargeback for such sales transaction, as an order-level satisfaction return and refund validly provided by CCNow, and that You shall accept each such return from CCNow.
vi. If a shipment of Merchandise which CCNow has bought from You and resold to a Customer is not safely delivered intact to the Customer within thirty (30) calendar days of CCNow's sending notice of a Customer order to You, or if CCNow learns from a Customer that the Merchandise was damaged upon arrival and was either not accepted or was accepted from the shipping carrier and later determined to be damaged, CCNow will promptly forward any information concerning such incident to You via e-mail or through the Client Menu. You agree to promptly resolve the concern, either by authorizing a Refund for the transaction or by reshipping (at no additional cost to CCNow or the Customer) new Merchandise in place of the lost or damaged Merchandise. You must bear all costs to return any damaged Merchandise back to You. You may choose to purchase (at Your cost) adequate shipping insurance to cover Your potential losses arising out of shipping Merchandise, as CCNow will not be responsible for reimbursing You for any of these losses. If You fail to adequately respond to CCNow's forwarding of the inquiry or complaint concerning a lost or damaged shipment by the end of three full business days (ending as of midnight GMT) that passes after CCNow has entered the inquiry (either by reshipping, communicating Your intention to reship within three (3) business days of the inquiry being sent to You, or by authorizing a Refund), then CCNow may unilaterally make a refund to the Customer as described below.
vii. If You fail to ship all Merchandise within five (5) business days of CCNow's sending notice of a Customer order to You, or if You fail to reship Merchandise that was lost or damaged from the original shipment within three (3) business days of telling CCNow that You will reship the Merchandise, CCNow may choose to unilaterally cancel the Customer order and process a refund to the Customer. If You contact CCNow before CCNow has chosen to cancel the Customer order, CCNow may, at CCNow's sole discretion, grant You an extension of time that will not exceed the same length of the original period. CCNow will promptly inform You when a Customer order has been cancelled, but You are responsible for any losses You suffer because You have shipped any Merchandise after You have received a cancellation warning from CCNow unless CCNow had granted an extension of time to You in writing (including e-mail). You further agree that all shipments of Merchandise shall comply with applicable laws, rules and regulations of the jurisdiction into which Merchandise is being shipped (such as for example, the United States Federal Trade Commission's Backorder Rule, or the EU Distance Selling Regulations).
H. Refunds. Whenever CCNow notes that a return of Merchandise has occurred, if any Customer order has been cancelled for any reason by You or by CCNow, or if CCNow has a right to unilaterally process a refund per the above terms, CCNow will determine the refund as the amount of the original Transaction Amounts that arose out of the retail sale of the appropriate Merchandise to the Customer. For Refunds arising out of returned Merchandise, if so provided by the return policy, CCNow will include the shipping charge as part of the Refund.
I. Chargebacks and Fraud. A "Chargeback" is another form of refund that happens when a card issuing bank or acquiring bank unilaterally revokes a prior transaction, which may be done under the rules of the payment card associations for such reasons as fraud or suspected fraud, customer complaint, or other reasons determined at the sole discretion of the card issuing bank or acquiring bank (that processes transactions for a merchant). You acknowledge that credit card or debit transactions through the CCNow shopping cart are 'non-swiped' card-not-present transactions and having no physical signature from the Customer, are subject to a higher level of Chargeback activity compared to card-present card transactions that are 'swiped' or where the card is validated by 'Chip' where a PIN is entered. While CCNow will make reasonable efforts to avoid Chargebacks where possible, CCNow makes no promises as to whether or how the issuing or acquiring banks will interpret their rules or rights concerning Chargebacks. As stated above, CCNow may deduct from amounts due to You any amounts attributable to or resulting from Chargebacks on Customer transactions, fines and/or penalties incurred by CCNow resulting from Your Chargebacks, and any other activities that are deemed by CCNow to be fraudulent or criminal. The amount which may be deducted from amounts due to You may include the original amount of the transaction as well as additional fees or penalties resulting from Chargebacks in sales of Your Merchandise.
Further, any sale where the fulfillment of Merchandise has been made by CCNow upon receipt of a valid payment authorization code from the card issuer but is subsequently rejected or cancelled prior to settlement by CCNow, or the merchant's acquiring bank, will not be treated as a completed sale to an End User by CCNow for the purposes of calculating payments due to You. The existence or possibility of fraud or criminal activity will be determined by CCNow in its reasonable discretion, and CCNow may make any inquiries and investigations CCNow deems appropriate.
J. Reserves. In certain circumstances (at CCNow's sole discretion), CCNow may holdback some or all of the Payment Obligations as a reserve to cover potential future refunds, Chargebacks, or other liabilities You may owe to CCNow ("Reserves"). CCNow may also holdback some or all of the Payment Obligations due to You if CCNow believes that the funds resulted from fraudulent transactions or involve other kinds of illegal or criminal activities, or if CCNow has a reasonable basis to believe that it will incur future Chargebacks and/or related fines and/or penalties which relate to CCNow's sale of Your Merchandise. CCNow will only holdback those amounts which CCNow determines are reasonable under the circumstances. Your CCNow Account Statement, available online from the Client Menu, shows all amounts held in reserve, along with the suggested payable date of each reserve amount. CCNow will keep any held-back amounts only for a reasonable time as determined in CCNow's sole discretion, and will promptly pay over to You any remaining held back amounts after that reasonable time has passed.
For clients utilizing Weekly Payments, a rolling reserve will be held for 180 days and released on the next applicable Weekly Payment Period after 180 days have elapsed. Rolling reserve details can be viewed in the Client Menu which will display the amount currently held in reserve and the date it will be reapplied to the available payable balance of the account. This rolling reserve will be defaulted at 5% of gross sales for clients selling tangible merchandise, and 10% of gross sales for clients selling non-tangible goods. The rolling reserve percentage will be dependent upon on a risk assessment, and higher rolling reserves may be imposed with prior notification from CCNow after a periodic risk assessment. The rolling reserve will be heldback from your account balance as outgoing payments are determined and your account exceeds the payment threshold (Section 4 K below).
CCNow may, in its sole discretion and without notice to You, impose higher than normal Reserves, or extend the holding periods for any Reserves, either temporarily or permanently, in order to reduce CCNow's reasonable apprehension of risk of loss under varying circumstances. Without limiting the generality of the above, factors which may enter into CCNow's decision include, but are not limited to, the average sale amount per Customer transaction, the processing volume, issues or problems regarding the Merchandise being sold, or other factors that may create a risk to CCNow, Customers, third parties, or financial institutions, including fraud, suspicious or irregular transactions, sale of illegal or "grey market" products, sale of products that are an infringement of intellectual property rights of third parties, or excessive Customer requests for refunds, excessive Chargebacks or other similar Customer disputes.
CCNow is in no way responsible for any losses You sustain, including claims for lost income or profits, on account of the imposition of Reserves for any reason.
Regardless of any Reserve CCNow may choose to keep, You agree to pay CCNow, upon demand, for any shortfall owed to CCNow including shortfalls due to Refunds or Chargebacks, fraud, and other amounts due, reimbursable or payable to CCNow if they cannot be offset from Your account within ninety (90) days of the date CCNow first seeks to offset such amounts. If CCNow actually keeps (or sets off) against Your account with CCNow any of the funds CCNow has held back, CCNow will do so in a manner that CCNow believes fairly reflects Your liability owed to CCNow, and CCNow will note the setoff and an explanation of the set off on Your next statement that CCNow issues to You.
K. Remittance. Provided Your online profile and supporting documents are in order You can choose from three different methods of payment:
i. CCNow can send Your USD payments by Direct Deposit (ACH) into Your U.S. or Canadian checking account. This is the fastest payment method, because Direct Deposits arrive in Your bank account just three business days after they are transmitted by CCNow. Any applicable fees for this payment option are specified in the Pricing Details.
ii. If permitted by applicable laws, rules and regulations, CCNow can send payments directly to Your bank account via Wire Transfer, SEPA Credit Transfer (using an international SWIFT code and/or IBAN in Europe), or other local EFT methods available in the Client Menu. Any applicable fees for these payment options are specified in the Pricing Details. Your bank may also collect additional fees to receive the payment, and You will be solely responsible for any such fees.
iii. CCNow can mail You a regular paper check in USD if your account was opened prior to October 1, 2013 and you are enrolled in Bi-Monthly Payments. We send these checks via First Class Mail within the U.S, or by priority mail to other countries. Any applicable fees for this payment option are specified in the Pricing Details.
If the total amount CCNow owes to You at the end of a Pay Period will be less than Fifty Dollars ($50) USD, CCNow may choose to withhold the Payment Obligation until the next Pay Period in which the aggregate Payment Obligations to You equal or exceed Fifty Dollars ($50) USD. CCNow will pay You all amounts in United States Dollars; in the event CCNow receives funds from a Customer in connection with a sale in a currency other than United States Dollars, CCNow will convert such receivables to United States Dollars using conversion rates set by CCNow.
If you wish to then receive settlements in a different currency than USD, CCNow can issue payments in a number of different currencies using the payment method and currency indicated in the Client Menu, as converted from USD dollars.
From time to time CCNow may specify different minimums from Fifty Dollars ($50) USD for individual methods of payment.
If you wish to receive payments less often than the standard Pay Period (for example, in order to reduce Your bank fees), you can specify a Payment Threshold amount. We will only generate payment if the payable amount exceeds Your chosen Payment Threshold on the Settlement Day.
L. Online Profile and Supporting Documents. To assist CCNow in determining that CCNow knows the identity of Client and is paying the appropriate party, You must, within thirty (30) days of opening an Account, ensure that the name of the owner of the account set forth in the online profile in the Client Menu, is the same as the name of the person or entity that is to be the payee for payments, and have sent to CCNow a signed profile and any required supporting documents (such as a copy of Your government issued identification; Driver's License, Passport or National Identity Card).
If You do not fulfill this requirement, CCNow may, at its sole discretion, withhold payments, suspend Your Account, or terminate this Agreement. We comply with the applicable requirements of the Icelandic Act on Measures Against Money Laundering and Terrorist Financing 2006 as amended (incorporating the relevant provisions of Directive 2005/60/EC).
We only send a paper check, or settle to a bank account, in Your name or registered doing business as/trading name if you are a sole trader/proprietor.
If You are operating via an incorporated company for Your Site(s) we will make out checks, or initiate ACH transfers/bank wires in that name. Supporting documents proving Your ownership or management of any such company will be required. In addition we will require a copy of the government issued identification for any other natural person or persons who ultimately own or control the company through direct or indirect ownership of more than a 25% share in the company, or control more than 25% of the voting rights, or are deemed to exercise control by other means, of the company.
We don't like more than three bank account changes per year unless there is a good reason.
5. PROMISES TO CCNOW
You make the following representations, warranties and covenants to CCNow, that:
A. You have all rights necessary to sell each item of Your Merchandise to CCNow for resale by CCNow. Any Merchandise You sell to CCNow or ship to a Customer will not be on the CCNow Prohibited Products list.
B. Your Merchandise, and CCNow's sale and/or distribution (whether directly or by You as CCNow's fulfillment agent) does not and will not infringe, violate, misuse or misappropriate they intellectual property or other propriety right or interest of any third party anywhere in the world, including without limitation, any copyright, trademark, domain registration right, trade secret or patent right;
C. You will not at any time offer Merchandise for sale to CCNow which, in CCNow's sole discretion, is, or constitutes:
i. A violation of any applicable federal, state, county, or municipal law, regulations, governmental agency orders, or court orders (including, by way of example but not limitation, Import/Export Control Laws);
ii. Merchandise intended to incite bigotry, racism, discrimination, hatred or profanity;
iii. Merchandise that depicts excessive violence or incites the initiation of violence;
iv. Merchandise disparaging, defamatory, libelous, threatening or that may result in an invasion of privacy;
v. Merchandise providing instructional information about illegal activities, how to cause physical harm or injury to an individual, group of individuals, institution or property, or inciting such illegal or criminal conduct;
vii. Merchandise that facilitates, or engages in, consumer deception or fraud, prohibited drug use (including drug paraphernalia), sales of prohibited or controlled substances, pyramid schemes, gambling transactions, unauthorized distribution of copyrighted software, cyber squatting, illegal or excessive e-mail generation or blog posting ('spamming' tools), or other illegal activities; and/or
viii. Merchandise that is pornographic or obscene in nature or content, without regard to legality of the products;
D. Any Merchandise sold by You to CCNow for resale in Europe, the Middle East and Africa shall be compliant with the restriction of the use of certain hazardous substances ("RoHS") directive as implemented by the applicable member state, and You will provide CCNow with written evidence of such compliance upon CCNow's written request;
E. Your Merchandise has been fully tested under applicable laws, rules and regulations (including for example regulations promulgated by the U.S. Consumer Product Safety Commission, the U.S. Food and Drug Administration, or the competent authorities of an applicable EU member state), and the resale of such Merchandise by CCNow will not in and of itself violate any applicable laws, rules and regulations (including without limitation any applicable mandatory safety standards);
CCNow has the right to hold or suspend funds in reserve, to refuse to accept further orders, and/or to terminate this Agreement without notice if, in CCNow's sole discretion, You violate any of the aforementioned prohibited standards and restrictions;
F. Any descriptions You provide for Your Merchandise on Your Site(s) or any other advertising or promotional material created under Your direction or control are accurate, and will not be in violation of any applicable laws or regulations concerning advertising claims or other forms of consumer protection laws for any of the territories where CCNow will be offering Your Merchandise for sale to Customers. Your Site(s) must have accurate statements of Your identity and how potential or existing Customers may directly contact You concerning Your Merchandise including a geographical address; Any place You promote the sale of Your Merchandise where You provide Customers with a hyperlink or other means to reach the CCNow Site (whether on Your Site(s), in e-mail, on paper or any other means), You will not display any inaccurate or misleading information concerning Your identity, location, or Merchandise, or CCNow's status as the seller and merchant of record to Customers (as explained in Section D).
G. You have the right to enter into this Agreement, and that You are of legalage and otherwise competent to be contractually bound to this Agreement. Also, if You are a corporation or other form of business entity, the person who has entered into this Agreement on Your behalf is authorized to bind You, and the board of directors or others who control the corporation or other business entity have authorized the entity to enter into the Agreement;
H. All of the information You entered on the Client Administration page is correct as of the time You entered it, and You will promptly update any of that information when it has changed;
I. You will not engage in deceptive trade practices, market to Customers who have not affirmatively consented to receive solicitations from You, or otherwise violate any laws, rules or regulations applicable to the sale of Your Merchandise and the conduct of Your business.
J. If CCNow provides or makes available to You any proprietary and non-public information relating to CCNow, its systems, clients and/or customers, You will keep such information strictly confidential using no less than reasonable care; You will only access and use such information to the extent necessary for Your use of CCNow's services; and You will not allow any third party to access or use such information without CCNow's express prior written consent.
K. You shall not any time hold CCNow (including its parents, subsidiaries, partners or affiliates) or its employees, officers, directors or shareholders up to public scorn, ridicule or defamation; and
L. You shall not alter, in any way, the CCNow logo provided by CCNow.
M. You will not use unsolicited commercial e-mail, newsgroup, or blog posts, to market Your Merchandise, or commercial e-mail that identifies CCNow or the CCNow Site, if that use of commercial e-mail violates any applicable laws or regulations regarding the use of commercial e-mail. You will comply with any legal obligations to provide proper labeling and content within its marketing e-mails, and to provide opt-in or opt-out capabilities to recipients and comply with any such requests. Any advertising or other marketing materials that mention or contain hyperlinks to CCNow or the CCNow Site must be in compliance with all laws concerning advertising and marketing for the territories where You deliver those materials. You are responsible for compliance with all of the above, whether You provide the emails or advertisements on its own or use the services of a third party. If CCNow is charged any fines, penalties or incur any costs, including attorney fees, because of its non-compliance with the above, You agree to indemnify and reimburse CCNow any of those amounts upon CCNow's demand, and to allow CCNow to offset any such amounts from amounts due to You.
N. You shall make any and all changes that CCNow mandates to Your Site(s), including adding disclosures or disclaimers as needed to comply with applicable law, rules, regulations, guidelines, or best practices in CCNow's sole discretion.
If You ever have reason to believe there is any reason these promises are not true, now or in the future, You promise to promptly tell CCNow.
6. RESERVED RIGHTS
A. You acknowledge that CCNow may, at its sole discretion with or without advance notice, decline to sell or distribute any or all of Your Merchandise at any time.
C. CCNow is permitted to display in any post-purchase pages and communications (including without limitation any thank You page, confirmation page, confirmation e-mail, and any pages following the actual submission of an order for processing) offers or advertisements offered by third-party advertisers.
D. CCNow's trademarks, service marks and business names (its "Trademarks") are owned or licensed solely and exclusively by CCNow. All of Your use of CCNow's Trademarks shall inure to CCNow's benefit. You agree, upon CCNow's demand, to promptly stop or alter any of Your uses of CCNow's Trademarks which CCNow deems to be improper or which may have the potential to put CCNow's Trademark rights at risk.
E. CCNow reserves the right to impose limits on sales of Merchandise in CCNow's sole discretion and to refuse to process transactions to specific Customers for any reason. Specifically, CCNow may limit or restrict sales to a minimum or maximum retail price, impose limits on the amount or number of purchases which may be charged to an individual credit card account during any time period, or refuse to accept orders from Customers with a prior history of questionable charges. CCNow also reserves the right to cancel or refund any Customer order for any reason at any time.
F. CCNow will at all times while this Agreement is in effect, and thereafter as required, take responsibility for the security of cardholder information and data in its possession during storage, processing and transmission of said data, and will maintain reasonable and expected compliance with the Payment Card Industry Data Security Standard (PCI DSS) and other relevant industry security standards. CCNow's merchant service providers are classified as "service providers" under Requirement 12.8 of the PCI DSS and CCNow makes commercially reasonable efforts to ensure that it only uses service providers that have performed the necessary steps to validate their ongoing compliance with the PCI DSS.
7. EXPORT COMPLIANCE
The following obligations apply if a Customer order requires You to send Merchandise outside of the country from which Your fulfillment of Merchandise originates (an "Export Customer Order," and the country from which Your fulfillment of Merchandise originates, the "Ship-From Country")). You and CCNow shall, as applicable, comply with all relevant export control laws and regulations of all countries in which You and CCNow conduct business (collectively, "Export Control Laws") that may apply to Your or CCNow's activities under this Agreement, any Merchandise, or any Customers, as may be the case, including, as applicable, the U.S. Export Administration Regulations ("EAR"), the U.S. International Traffic in Arms Regulations ("ITAR"), U.S. Foreign Assets Control Regulations/Foreign Trade Regulations and U.S. Customs Regulations. Neither You nor CCNow shall export or re-export any Merchandise pursuant to this Agreement except as permitted by such applicable Export Control Laws. CCNow's policy is to not provide information, documentation or to participate in any way with a foreign boycott-related request that would violate applicable anti-boycott laws, rules and/or regulations.
Prior to the commencement of sale of Merchandise through the CCNow Site, if applicable You will provide to CCNow accurate export classifications of the Merchandise resold by CCNow (i.e., Commerce Control List classification, U.S. Munitions List Categories, U.S. Harmonized Tariff Classifications), export licensing requirements (if any) and applicability of any EAR license exceptions or ITAR license exemptions. You shall notify CCNow of the export classifications, export licensing requirements and license exception/exemption eligibility, as well any subsequent changes to the foregoing information, by email to firstname.lastname@example.org. You shall be solely responsible for determining the accurate export classifications and export licensing requirements of all Merchandise, except as otherwise mutually agreed upon by You and CCNow. You agree and acknowledge that CCNow shall have the authority to cancel any sales transaction that involves an IP address, bill-to address and/or ship-to address indicating an embargoed or sanctioned country, an individual or entity designated on any U.S. or foreign restricted parties list such as but not limited to the Denied Persons Lists, and Specially Designated Nationals Lists, Unverified Lists, Entity Lists, Debarred Parties Lists, and Nonproliferation Sanctions Lists (collectively, "Restricted Parties Lists"), or where prohibited end-use is indicated. You further agree and acknowledge that CCNow shall have the right to immediately terminate this Agreement without penalty if it determines that CCNow is unable to engage in business with You under applicable Export Control Laws or CCNow's territorial restrictions for permitted commerce, including without limitation Your designation on one or more Restricted Parties Lists or residence in or provision of Merchandise from a country which is embargoed/sanctioned or in which CCNow does not conduct commerce. You will also respond promptly to any inquiry regarding export compliance in connection with Your Merchandise that You receive from CCNow.
You shall not offer to CCNow for resale, directly or indirectly, any Merchandise which is subject to export licensing requirements, or which has an end use which is prohibited by applicable Export Control Laws.
As You are the manufacturer of Your Merchandise, are responsible for the fulfillment of Merchandise resold by CCNow as CCNow's fulfillment agent, and are the primary beneficiary of the sales transaction for export purposes, You also agree that You are acting as CCNow's fulfillment agent for export purposes. You shall be responsible for (1) the legal and lawful export of all commodities fulfilled to an End User which are sold to such End User by CCNow, (2) pre-paying any duties, tariffs or similar government charges as may be required to completely fulfill each Export Customer Order through to the Customer (and Your Shipping Charges must be Your sole compensation for the payment of such duties), and (3) completion of all applicable export documentation and reporting required by Export Control Laws, including without limitation Electronic Export Information ("EEI") filings, and You shall in a timely fashion provide to CCNow any requested information necessary for CCNow to comply with its obligations in this regard. You shall be responsible for the foregoing obligations as CCNow's agent and are required to provide CCNow with scanned copies of all EEIs and supporting documentation within three (3) calendar days following the date of shipment, which will be sent to CCNow via email at email@example.com. If You determine that You are unable to fulfill any particular Customer order because of Your inability to comply with applicable Export Control Laws, You must promptly cancel the order on the Client Administration pages.
8. DISCLAIMER OF WARRANTIES
CCNow makes no promises to You that Your Merchandise will be ordered by Customers, no promises as to the percentage up time for the CCNow Site, or that the CCNow Site will operate without error. WE MAKE NO WARRANTIES CONCERNING THE QUALITY OF OUR SERVICES ON THE CCNOW SITE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
When CCNow sells Merchandise to Customers, CCNow will disclaim any warranty and state that between the Customer and CCNow the sale is AS IS and with all faults. However, CCNow will state that CCNow's Merchandise clients (such as You) may offer product warranties directly from the clients to the Customer. If You choose to offer any such warranty, You must accurately describe it on Your Site(s), in a manner that complies with applicable laws, and include copies of such with the shipped Merchandise. The terms of Your warranty must make clear that the warranty and remedies are offered strictly between You and the Customer, and must not imply that any retailer such as CCNow has any obligations to Customer under the warranty.
9. LIMITATION OF LIABILITY
Except for any obligations CCNow has to pay You the Payment Obligations (less any applicable offset of amounts due to CCNow), You agree that Your sole remedy for any breach of this Agreement by CCNow is for You to terminate this Agreement. UNDER NO CIRCUMSTANCES SHALL CCNOW'S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT OR ARISING OUT OF OUR RELATIONSHIP WITH YOU UNDER THIS AGREEMENT, REGARDLESS OF HOW THE LIABILITY ARISES, EXCEED THE NET AMOUNT ACTUALLY REALIZED BY CCNOW UNDER THIS AGREEMENT FOR THE PREVIOUS SIX (6) MONTHS. CCNOW SHALL NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ORGANIZATION FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OR INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. THE LIMITATIONS UPON DAMAGES AND CLAIMS SET FORTH IN THIS AGREEMENT ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN, AND FORM A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM.
You shall indemnify and hold harmless CCNow, its parents, subsidiaries and/or affiliates, together with their officers, employees, directors, successors and assigns, as such, from and against any liabilities, claims, actions, suits, proceedings, judgments, losses, damages, costs and expenses, including reasonable attorneys' fees, resulting from any claim (the "Indemnified Claims") that are made by a third party, including a Customer, that arises out of:
A. Any claim that Your Merchandise or Your Site(s) violates a patent, copyright, trademark, trade secret or other intellectual property right of any third party recognized under the laws of any jurisdiction where Your Merchandise is offered for sale or where You have shipped Your Merchandise, or where Your Site(s) may be directed for viewing;
B. Any claim that Your Merchandise or Your Site(s) is defamatory, slanderous, or violates the rights of privacy or publicity of any person (including a Customer) where such claims are recognized under the laws of any jurisdiction where Your Merchandise is offered for sale or where You have shipped Your Merchandise, or where Your Site(s) may be directed for viewing;
C. Any claim that Your Merchandise has not been fully tested under applicable laws, rules and regulations (including without limitation the regulations promulgated by the Consumer Product Safety Commission, and the resale of such Merchandise by CCNow in and of itself violates any applicable laws, rules and regulations (including without limitation any applicable mandatory safety standards);
D. Product warranty claims arising out of Your Merchandise;
E. Your fulfillment and shipment of Merchandise, including any failure of a shipment to be delivered due to no fault of CCNow or the Customer;
F. Any alleged or actual failure on Your part to comply with Your obligations under this Agreement, including but not limited to any breach of Your representations, warranties and/or covenants under this Agreement;
G. Any credit card Chargeback costs, including refunds, penalties, fees or the like; or
H. Personal injury, property damage or product liability, or any grossly negligent or intentionally tortious acts or omissions You commit, in connection with this Agreement or the creation, manufacture, delivery or use of Your Merchandise.
CCNow shall have sole control over CCNow's own defense of any of the Indemnified Actions. However, You shall reimburse CCNow upon CCNow's demand, on no less than a monthly basis, for any costs CCNow has incurred in defending against any of the Indemnified Claims. You shall cooperate, at Your sole cost, with any of CCNow's reasonable requests made in connection with CCNow's defense of the Indemnified Claims, including Your personal appearance at official proceedings of courts or administrative agencies, providing sworn testimony, answering written questions under oath, or providing documentary evidence. If You are also a party to any of the Indemnified Claims, You are responsible for providing Your own defense (including providing Your own attorney) at Your own cost.
11. TERM AND TERMINATION
A. This Agreement starts on the date CCNow acknowledges its acceptance of this Agreement, and will continue until terminated. Either You or CCNow may terminate this Agreement with or without cause by providing the other by providing the other with notice of its decision to terminate. Neither You nor CCNow are obligated to continue under this Agreement for any period of time, and You should not rely upon whether or not CCNow will continue to distribute Your Merchandise for any period of time.
B. Once this Agreement has been terminated:
i. You agree to fulfill and ship from any Customer orders that were placed with You prior to the termination of the Agreement, and all obligations arising out of those particular Customer orders (including rights of product return) shall survive the termination of the Agreement.
ii. You will immediately remove any reference to CCNow's name or any hyperlinks to the CCNow Site from Your Site(s) and any other marketing materials which You distribute, publish or broadcast after the date of the termination. You will promptly notify all third parties known to You that may be directing potential Customers to the CCNow Site to halt all such activities.
iii. CCNow will promptly halt any retail sale of Your Merchandise.
iv. CCNow will continue to make payments of the Payment Obligation to You out of Your account, on the regular Pay Period payment dates, until the time that Your account has reached a zero balance. CCNow's Reserve rights survive past the termination date of the Agreement. Your obligation to pay CCNow for any shortfall in Your account survives the termination of the Agreement.
v. You will continue to be responsible for Your indemnification obligations and any liability that might arise out of fraudulent transactions, chargebacks, or other negative account activity, and any infringement of intellectual property rights, and any other violation of law that may have occurred as a result of Your Merchandise being distributed via the CCNow Site.
12. OTHER TERMS
A. No Exclusivity. Neither You nor CCNow are obligated to deal exclusively with the other. You may use other means or companies to resell Your Merchandise, and CCNow may sell products provided by others that may be similar to or competitive with Your Merchandise.
(a) Addressed to CCNow, By Trackable Mail:CCNow Client Notices
Method of Delivery and Date of Receipt. Any written notice under this Agreement from You to CCNow shall be sent by Trackable Mail such that You will receive notification from the carrier when the Notice has been received at CCNow's offices, and that delivery date shall be deemed as the date of receipt by CCNow;
By Electronic Communication: Should CCNow at its sole discretion agree from time to time to receive notice from You by email or through a ticket opened in the Client Menu, then the current business day of the CCNow response (or next business day if response was not made on a business day) to Your email or ticket explicitly acknowledging receipt of the notice shall be the date of receipt.
(b)Addressed to You,
By Mail: To the last address provided to CCNow by You according to this Agreement;
By Electronic Communication: To the last email address provided to CCNow by You according to this Agreement.
Method of Delivery and Date of Receipt. Any written Notice under this Agreement from CCNow to You, shall be deemed given and delivered upon the earlier of: actual receipt; or five days after being deposited in the Icelandic mail, postage prepaid, and addressed to the party to whom the notice is being sent; or one (1) business day after being sent by email or other electronic communication by CCNow to You at the email address described in Section 12 B(b).
(c) Notice of New Address.
Either party may communicate a change in its mailing address (or as applicable its email address) by notifying the other party in accordance with Section 12 B.
If You update Your Primary Email Address in the Client Menu, that shall be taken as immediate notice to CCNow that You have changed Your email address for notices.
C. Changes to this Agreement. CCNow reserves the right to amend this Agreement. In the event of an amendment, CCNow will post the new version of the Agreement on the CCNow Site and will provide You with notice of such amendment. Each time You log-in to CCNow or use the CCNow system, You will be asked to accept the terms of the new Agreement by clicking on the I HAVE READ THE CLIENT AGREEMENT AND I ACCEPT THE TERMS button. If You do not click on the button, You will not be able to use CCNow.
D. Waiver; Severability. No waiver of any provision or breach of this Agreement (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. Any failure by CCNow to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right or law. The invalidity of non-enforceability of any provision of this Agreement, as so determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-enforceable provisions were omitted. Additionally, the Parties to this Agreement agree that any invalid or non-enforceable provision of this Agreement shall be replaced with a valid and enforceable provision which most closely meets or approximates the intent and economic effect of the invalid or non-enforceable provision.
E. Governing Law; Venue. This Agreement shall be governed by and interpreted under the laws of the Republic of Iceland, without reference to its conflict of law principles. You agree that any claim or suit arising out of or related to this Agreement must be brought exclusively in the courts of the Republic of Iceland (subject to the paragraphs below regarding arbitration).
(a) If there are any disputes or conflicts related to or arising out of this Agreement, You and CCNow shall first use reasonable means to resolve the conflict prior to starting any arbitration, lawsuit, or other litigation. Such means shall include negotiation between management personnel capable of resolving the conflicts.
(b) Notwithstanding anything herein to the contrary, You agree that any claim or dispute regarding the Agreement, shall be resolved exclusively and finally by binding arbitration, administered by the Commercial Arbitration Court of the Iceland Chamber of Commerce and conducted under its rules.
The arbitration will be conducted in Reykjavik, Iceland in front of a single arbitrator selected by the agreement of You and CCNow. If You and CCNow are unable to agree upon an arbitrator, the arbitrator shall be selected by the Commercial Arbitration Court of the Iceland Chamber of Commerce.
The arbitration shall be limited to the dispute involving You and no claim or dispute of any other CCNow Client or person shall be included or joined in the arbitration. Unless otherwise ruled by the arbitrator, You and CCNow shall equally share the expenses of conducting the arbitration. Any arbitration brought under this provision shall be governed by the relevant Icelandic law.
You understand that You might have had a right to litigate disputes through a court of competent jurisdiction and You have expressly and knowingly waived that right and agreed to resolve any claim or dispute through binding arbitration. Notwithstanding the fact that You and CCNow have agreed to settle claims and disputes exclusively through binding arbitration, in the event there is a claim or dispute with regard to the intellectual property of CCNow, including without limitation, trade secrets and software code, CCNow may immediately proceed to a court of competent jurisdiction to obtain equitable relief, You agreeing that there would be no adequate remedy at law under arbitration for CCNow for such a claim.
F. Entire Agreement; Assignment. This Agreement sets forth the entire understanding between You and CCNow with respect to its subject matter, and supersedes any and all prior or contemporaneous proposals, communications, agreements, understandings, negotiations, and representations, whether written or oral, related thereto, which shall have no effect as of the date this Agreement becomes effective. You may not assign this Agreement, or any of Your rights or obligations under this Agreement (whether directly or indirectly, in whole or in part, by operation of law or otherwise). Any attempt to assign in violation of the preceding shall constitute an incurable material breach of this Agreement and shall, at CCNow's option, render this Agreement null and void. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
G. Relationship of the Parties. The provisions of this Agreement shall not be deemed to create a partnership, joint venture, or other business combination between You and CCNow. Neither You nor CCNow shall be obligated by any agreement, representation or warranty made by the other, nor shall You or CCNow be obligated for damages to any person or organization for personal injuries or property damage directly or indirectly arising out of the conduct of the other Party's business or caused by the other Party's negligence, willful act, or failure to act. There are no third-party beneficiaries through You under this Agreement.
H. Survival. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
I. Electronic Signatures. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES PROVIDED BY CCNOW. Further, You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
J. Other. CCNow is relieved of any obligation to perform under this Agreement if we are unable to perform as a result of any reasons or conditions beyond CCNow's reasonable control. Notwithstanding any applicable statute of limitations, You and CCNow agree that any claims for breach of this Agreement shall be brought within one (1) year of the date that party first learns of such breach.
No provisions in Your purchase orders or other business forms (including by way of example but not limitation, any Statement of Work or Change Order Form) shall modify, supersede or otherwise alter the terms of this Agreement. In the event You have been provided with a translation of this Agreement, such translation is for review purposes only, and the controlling versions of this Agreement shall be in the English language.
CCNow may engage the services of subcontractors or agents to assist CCNow in the performance of CCNow's obligations, and CCNow will be responsible for the acts and omissions of such subcontractors and agents.
This Agreement is written with titles and headings intended to provide a greater understanding of the terms of the Agreement. However, the titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or impose any construction or meaning on any of the provisions of this Agreement.
v.2013.10.01Snorrason Holdings ehf DBA CCNow
Iceland. Registered Number: 570305-0180
(Icelandic Enterprise Registrar)
Snorrason Holdings Establishment