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Client Policies
Last Revised January 1, 2008
- Fee Policy
- Listing Policy
- Tax Policy
- Restricted Items Policy
- Trading Policy
- Dispute Policy
- Gift Certificate Policy
I. Fee Policy
Barter of America supports three fee programs:
Fees will be payable in the form of U.S. Dollars (denoted as "$"
or "cash") and Barter of America Dollars (the Barter of America
term for trade credits and denoted as "T$").
Participants will pay the following fees:
Option A: 3 Month Free Trial "Basic Member"
- A 3 month free trial……
- Cash transaction fees of 5% on the gross value of all sales,
and Cash transaction fees of 5% on the gross value of all purchases.
- A monthly maintenance fee of $5 cash and $25 trade dollars assessed
after we have brought you new Business. This Option does NOT
include Broker Assistance Service.
Applicant agrees to pay the initial retainer charge of $95 cash,
after the 3 month free trial, (Application Approval required) and
a 5% cash fee on all sales, a 5% cash fee on all purchases,
billed before a purchase transaction occur and paid by Credit card.
Credit Card required, to pay fees before transaction approval, Online
Checks and paypal accepted. A monthly administrative charge of $5
cash and $25 trade will be charged each account; this charge will
not begin until we have brought you new Business.. BoA requires
30 days written notice of intent to cancel Membership. Denial of
application or no desire of next level to keep this level is subject
to negotiation. It is understood that this agreement will become
effective when signed by the applicant and an officer of BoA and
that it shall in no way bind or obligate any other person or entity.
Late Charges: $15 plus 1.75% per month of the past due cash balance,
payable in cash; amount is billed to client's credit card once per
month. Interest on Net Negative Trade Balances: 1.5% per
month per annum on the negative balance at month end, payable in
T$. An Overdraft cash payment fee of $25 will be charge every time
the account is overcharged its limit.
Option B: " OnLineTrader"
- Application Approval required. ((Barter of America.com retains
the right to accept or reject your application as a prospective
User of the Barter of America.com Service.)
- A one time cash fee of $95.00 dollars with Approved application,
and Monthly Billing Option.
- Cash transaction fees of 12% on the gross value of all purchases,
and/or 6% on sales & 6% on purchases.
- A monthly maintenance fee of $7 cash and $20 trade dollars assessed
after we have brought you new Business.
Applicant agrees to pay the initial retainer charge of $95 cash,
a 12% cash fee on all purchases, a 12% cash fee on all purchases,
(10% - Visa or MasterCard) billed monthly and paid by the 20th of
the month. A monthly administrative charge of $7 cash and $15 trade
will be charged each account; this charge will not begin until we
have brought you new Business. BoA requires 30 days written notice
of intent to cancel Membership. Late Charges: $15 plus 1.75% per
month of the past due cash balance, payable in cash; amount is billed
to client's credit card once per month. Interest on Net Negative
Trade Balances: 1.5% per month per annum on the negative
balance at month end, payable in T$. An Overdraft cash payment fee
of $25 will be charge every time the account is overcharged its
limit.
Option C: "BoA OnLineTrader
Corporate Barter Level II Membership"
- Application Approval required. (Barter of America.com retains
the right to accept or reject your application as a prospective
User of the Barter of America.com Service.)
- A one time cash fee of $395.00 dollars with Approved application,
and
- Cash transaction fees of 12% to 5% on the gross value of all
sales, and Active traders may be eligible for commission discounts.
- A monthly maintenance fee of $15 cash and $25 trade dollars
assessed after we have brought you new Business.
. A monthly administrative charge of $15 cash and $25 trade will
be charged each account; this charge will not begin until we have
brought you new Business. Applicant agrees to pay the initial retainer
charge of $395 cash, a 12% cash fee on all purchases, a 12%
cash fee on all purchases, (10% - Visa or MasterCard) (or negotiated
fee schedule with BoA officer) billed monthly and paid by the 20th
of the month.. BoA requires 30 days written notice of intent to
cancel Membership. It is understood that this agreement will become
effective when signed by the applicant and an officer of BoA and
that it shall in no way bind or obligate any other person or entity.
Late Charges: $15 plus 1.75% per month of the past due cash
balance, payable in cash; amount is billed to client's credit card
once per month. Interest on Net Negative Trade Balances:
1.5% per month per annum on the negative balance at month end, payable
in T$. An Overdraft cash payment fee of $25 will be charge
every time the account is overcharged its limit.
Services and payment
Barter of America.com is a trading/exchange company and transaction
clearinghouse providing a set of Services to its Users on the basis
set out in this User Agreement.
If You are resident in the United States, all payments must be
remitted in United States currency. If You are resident in Canada,
all payments must be remitted in Canadian currency. If You are located
outside North America, all payments must be remitted in United States
currency.
Cash transaction fees are due upon receipt of the Barter of America.com
monthly statement and must be paid by cash, business check, cashier's
check money order or credit card. BARTER OF AMERICA.COM RESERVES
THE RIGHT TO SUSPEND ALL TRADING OF ANY AND ALL USERS WHO’S
ACCOUNTS ARE NOT PAID BY THE 15TH DAY OF THE MONTH THAT THE STATEMENT
IS RECEIVED. A late payment fee of $15 plus 1.75% cash per month
will be assessed on the last day of the month if the transaction
fees are not paid, and suspension of trading privileges will be
in effect until the account is current. A $25.00 cash fee will
be charged for any returned check or any declined pre-authorized
payment by a credit card or other financial institution. An Overdraft
cash payment fee of $25 will be charge every time the account is
overcharged its limit.
II. Listing Policy
To help clients properly list products and services, we've highlighted
some inventory policies and describe how we handle inventory violations
when they are reported to us.
Pricing
Inventory items listed on the Barter of America Network must be
priced in Barter of America Dollars (denoted as T$). The value of
1.00T$ is equivalent to 1.00 US dollar (denoted as "$" or "cash").
All goods and services shall be listed for sale at a T$ price equal
to the client's prevailing cash price (e.g. an item that normally
sells for $99.95 cash must be listed at 99.95T$ on the Barter of
America Network).
Barter of America reserves the right to request documentation supporting
a client's T$ valuation of a inventory item with evidence of other
valid cash sales at the same price. Failure to provide adequate
documentation of cash sales to support the T$ inventory price may
result in the deletion of the client's inventory listings from the
Barter of America Network.
Transactions via the Barter of America Network use BT$
Barter of America clients can only use Barter of America Dollars
(denoted as "T$") when trading products and/or services via the
Barter of America Network.
Proper Inventory Category
Inventory must be listed in the appropriate category. Inventory
that doesn't belong in a category will be moved to the appropriate
category.
Bonuses, Giveaways, Raffles and Prizes
Inventory that promotes bonus items, giveaways, or random drawings
or prizes as an enticement for buyers must be legal promotions in
all jurisdictions where the promotion is available. It is your responsibility
to determine the legality of your promotion. If Barter of America
finds that a promotion is illegal, then that promotion will be deleted.
Key Word Spamming
Inventory that includes unrelated key word terms used in effort
to gain unfair exposure for seller's inventory is not permitted
and will be deleted.
Links
Users may place a simple link to another web page in the description
portion of their inventory to help provide more information about
the listed item. However, the following links are not permitted:
- Links to sites offering merchandise prohibited on the Barter
of America Network
- Links to other online barter exchanges
- Links to sites offering the same merchandise for cash, or for
the same or lower price
The links described above are not permitted and will be deleted.
III. Tax Policy
All trade credits earned from barter transactions are taxable.
Exchange 'credit units' (Barter of America Dollars) are a means
of satisfying an obligation; when an exchange adds credits to an
account the seller has completed the earning process. They must
include in their income the value of the credit units that are added
to their account, even though they may not actually receive goods
or services from other members until a later tax period.
You are responsible for the reporting of all applicable local,
state and federal taxes that result from barter transactions. You
are responsible for billing and collecting sales tax due from buyers.
There are a number of different factors that determine your total
tax on sales. Because of this, Barter of America recommends that
you contact a tax consultant who is qualified to advise you about
your sales on the Barter of America Network.
Barter of America clients must provide a valid and correct taxpayer
identification number (or, if applicable, social security number)
and certify that the client is not subject to backup withholding
because a) client is exempt from backup withholding, or b) client
has not been notified by the Internal Revenue Service that client
is subject to backup withholding as a result of a failure to report
all interest or dividends or c) the IRS has notified client is no
longer subject to backup withholding.
Barter of America will report to the Internal Revenue Service on
a regular basis. Barter transactions involving non-corporate members
or clients providing goods or services must be reported to the Internal
Revenue Service on a transactional basis. Transactions involving
corporate members or clients may be reported on an aggregate basis.
IV. Restricted Items Policy
You are responsible for making sure that selling your inventory
is (1) not prohibited by law and (2) is allowed on the Barter of
America Network.
The following guidelines will help you properly list items and
understand what is allowed on the Barter of America Network.
- "Prohibited" means that these inventory items may not be listed,
bought or sold on the Barter of America Network.
- "Questionable" means that these inventory items may be listed
under certain conditions.
Prohibited
- Copyrighted material without the written authorization of the
copyright owner
- Counterfeit and illegally duplicated items
- Drugs & drug paraphernalia
- Embargoed items
- Firearms
- Government IDs and licenses
- Human parts and remains
- Prescription drugs/materials
- Stocks and other securities
- TV Descramblers
Questionable
- Adults only
- International sales
- Tickets
Important note: Even if you offer to give away for "free"
(rather than sell) a prohibited, questionable, or infringing inventory
item, this will not relieve you of potential liability. This applies
to both seller and buyer.
This list is updated from time to time and is incorporated by reference
into the Client Agreement. Notice of updates to this list will be
posted on the Announcement Board on the Barter of America Network
on the day of the change.
These guidelines do not constitute legal advice and do not pertain
to any particular company's practices. When in doubt, check with
law enforcement agencies, a lawyer, the law or with a copyright,
trademark or other rights owner for clarification. Barter of America
also has adopted certain policies regarding prohibited items, regardless
of the legality of the item. As stated in the Client Agreement,
you agree to hold Barter of America harmless from and against any
and all claims arising out of your violation of any law or your
violation or infringement of the rights of any third party as a
result of listing products and services on the Barter of America
Network.
Questionable Items
Adults Only
"Adult" or "sexually oriented" material means any material that
depicts, in actual or simulated form, or explicitly describes, in
a predominantly sexual context, human genitalia, any act of natural
or unnatural sexual intercourse, any act of sadism or masochism,
or any other erotic subject directly related to the foregoing. Material
otherwise within the definition of this subsection shall be deemed
not to constitute a sexually oriented material if it constitutes
only a small and insignificant part of the whole of a single catalog,
book, periodical, or other work the remainder of which is not primarily
devoted to sexual matters.
There is a wide range of items that are considered adult in nature.
All of these items must be listed within the "Adult" categories.
Those inventory items that are either erroneously or intentionally
misplaced will be either moved to the proper Adult category or deleted.
CHILD PORNOGRAPHY IS ILLEGAL. ANY ITEM LISTING THAT IS CONSTRUED
AS CHILD PORNOGRAPHY WILL BE DELETED (and forwarded to the proper
authorities). Any inventory items with nude depictions of people
under 18, with descriptions such as "teens," "children," "family,"
"youngsters," or "nudist," will be deleted.
International Sales
If you're a seller in the United States and thinking about accepting
purchases from foreign buyers, you need to ensure that your sale
doesn't violate one of the many federal regulations that govern
such sales. This area of the law is complex, and there may be numerous
legal issues arising from the sale of your particular items. These
issues will vary depending upon exactly what you are selling, the
country where the buyer (or "end user") of the goods resides, and
who you are doing business with, among other considerations. It
is against Barter of America policy to complete any international
transaction that violates U.S. law.
Tickets to Entertainment Events
The re-sale of tickets to entertainment events (including sports
contests and music concerts) is regulated in some states and countries.
The laws in this area vary considerably from place to place and
depend on numerous factors (for example, the location of the event,
the location of the seller and buyer, the location where the re-sale
"transaction" takes place, and the sale price). Because Barter of
America cannot gather and confirm such information for its inventory
items, those who resell these tickets on the Barter of America Network
must familiarize themselves with the applicable laws and ensure
that their transaction does not violate the law. Unlawful re-sales
are not permitted on the Barter of America Network, and Barter of
America will cooperate with the investigation of any such sales.
V. TRADING POLICY
Definitions
All capitalized terms used in this Trading Policy but not otherwise
defined have the meanings set forth in the Barter of America Client
Agreement (the "Client Agreement"). In this Trading Policy, the
following capitalized terms shall have the following meanings:
Trade Procedures and Rules
1. General Clients shall list on the Barter of America Network
only such goods and services that they have the right to sell on,
in or through the Barter of America Network.
2. Listings All listed items must be listed in an appropriate
category. We reserve the right to remove any Listing of a Client
from the Barter of America Network and/or to change its location
in the Barter of America Network. All Listings of a Client must
comply with our Listing Policy. Clients are not permitted to in
any way manipulate, alter, interfere with or otherwise affect another
Client's Listings.
3. Barter Transactions Barter Transactions in the Barter
of America Network must be concluded between Clients in the following
manner: A buyer and a seller must reach an agreement on the terms
under which the buyer will buy, and the seller will sell, one or
more goods or services of the seller on, in or through the Barter
of America Network. After the seller Settles such sale/purchase,
the seller must request authorization from us for the Barter Transaction
by calling (i) our Interactive Voice Response System ("IVR"), (ii)
a broker at one of our local brokerage offices, or (iii) our customer
service hotline, (within the U.S.), at 619-516-5300. The phone number
for our IVR may be obtained by calling one of our local brokerage
offices. In either case, the seller shall provide the number of
the account associated with the buyer, the number of the account
associated with the seller and the purchase/sale price denominated
in Barter of America Dollars. Barter of America Currency will be
transferred from the account associated with the buyer to the account
associated with the seller only if our IVR or the relevant broker
or customer service representative has granted an authorization
number for the Barter Transaction. If the buyer disputes the transfer
of the Barter of America Currency from the account associated with
the buyer, it must notify us after the primary cardholder for the
account receives the statement of account on which the Barter Transaction
appears, in accordance with Section 12 of the Client Agreement,
and such disputes shall be resolved in accordance with our Dispute
Policy.
4. Authorization by Us. We will not effect a transfer of
any Barter of America Currency from the account associated with
the buyer or to the account associated with the seller in connection
with a Barter Transaction, unless such Transaction was first authorized
by us and given an authorization number. We reserve the right to
refuse to authorize a Transaction in the event:
- The account associated with the buyer does not have sufficient
Barter of America Currency or Credit Line available for the purchase,
- The buyer or the seller (or the account associated with such
Person) is not a Client in good standing,
- We have reason to believe the transaction is prohibited by law,
by this Agreement or by our agreement with the other party to
the transaction,
- The credit card provided by (or on behalf of) either the buyer
or the seller fails during the processing of Fees (regardless
of whether arising from such transaction or a prior transaction),
or
- For any other lawful reason.
Notwithstanding the foregoing, we have no obligation to evaluate
the lawfulness of any transaction conducted through the Barter of
America Network.
5. Transfer of Barter of America Currency The Business and
each Authorized User understands and agrees that upon authorization
from us, the amount of Barter of America Currency equal to the purchase
price is moved from the account associated with the buyer, and deposited
in the account in the Barter of America Network associated with
the seller. If the purchase price is denominated by the seller in
a Barter of America Currency that is different from the denomination
of the Barter of America Currency in the account associated with
the buyer, the amount of Barter of America Currency moved from the
account associated with the buyer will be equal in value to the
purchase price, based on the Exchange Rate as of a date determined
by us in our reasonable discretion, and the purchase price will
be deposited after Settlement in the account associated with the
seller. If the purchase price is denominated by the seller in a
Barter of America Currency that is different from the denomination
of the Barter of America Currency in the account associated with
the seller, the purchase price will be converted into the Barter
of America Currency in which such account is denominated based on
the Exchange Rate as of a date determined by us in our reasonable
discretion, and such converted amount will be deposited after Settlement
in the account associated with the seller.
Neither the buyer nor the seller has the right to stop any payment
about to be made to us or the seller in respect of any Barter Transaction
once it has been authorized by us (except as provided above). A
Barter Transaction relating to any offer to purchase goods or services
in the Barter of America Network is deemed completed upon transfer
of the relevant Barter of America Currency to the account associated
with the seller.
6. Escrow Procedures. Notwithstanding paragraphs 3, 4 and
5 of this Trade Policy, we, at our sole discretion, may allow a
buyer and a seller to use the following escrow procedure for a Barter
Transaction:
- Each of the buyer and the seller must submit a request to the
broker assigned to the account associated with it/him/her, requesting
use of the escrow procedure and specifying the amount subject
to the escrow. We may also require, as a condition to considering
such a request, that the buyer and the seller agree to an escrow
period.
- If and when we grant such request, the amount of Barter of America
Currency that the buyer and the seller agreed to place in escrow
will be "set aside" within the account associated with the buyer.
- Until the seller Settles the sale/purchase or the escrow period
(if any) expires (whichever is earlier), such amount will appear
as a "pending purchase" in the statement of account for the account
associated with the buyer, and such amount will not be available
to authorized users of the account associated with the buyer for
use in other Barter Transactions. Similarly, such amount will
appear as a "pending sale" in the statement of account for the
account associated with the seller, but such amount will not credited
to the account associated with the seller, and therefore will
not be available to authorized users of the account associated
with the seller for use in other Barter Transactions.
- The seller must notify us after it has settled the sale/purchase,
by calling the broker assigned to the account associated with
the seller. Such broker will then call the buyer to confirm Settlement.
Upon confirmation from the buyer, we will transfer the amount
of Barter of America Currency "set aside" within the account associated
with the buyer to the account associated with the Seller.
- If there is an escrow period, and it expires prior to Settlement
by the seller, the amount of Barter of America Currency "set aside"
within the account associated with the buyer will be returned
and will again be available to authorized users of the account
associated with the buyer for use in other Barter Transactions.
- If no escrow period is required or specified, the amount of
Barter of America Currency placed in escrow will continue to remain
"set aside" within the account associated with the buyer until
the seller Settles the sale/purchase, unless the buyer and the
seller otherwise agree.
7. Compliance with Policies and Laws.
- Barter of America Policies. The Business and each Authorized
User shall adhere to all of our rules and policies (including,
but not limited to, the Policies) posted at our www.BarterofAmerica.com
Website, as amended from time to time, including the following,
which are hereby incorporated by reference:
- The Barter of America Privacy Policy. We may change our Privacy
Policy from time to time and such changes shall become effective
after we provide Clients with at least fourteen (14) days notice
of the changes by posting the changes on our www.BarterofAmerica.com
Website and sending email to Clients who select such notification.
- The Barter of America Fee Policy. We may change our Fee Policy
from time to time. Changes to the Fee Policy, which waive, decrease
or suspend Fees, shall become effective immediately after we
provide Clients with notice of such changes by posting such
changes on our www.BarterofAmerica.com Website. Changes to the
Fee Policy that increase Fees or impose new Fees shall become
effective after we provide Clients with at least fourteen (14)
days notice of the changes by posting of such changes on our
www.BarterofAmerica.com Website. If the Business or any Authorized
User transacts (or attempts to transact) in the Barter of America
Network after the effective date of the change or if any person
uses such Authorized User's Barter of America Card or Codes,
it will mean that each Account Holder and such Authorized User
has agreed to the change. Even if this does not occur, if any
negative Account Balance remains outstanding or any U.S. Dollar
Denominated Debt remains unpaid after the effective date of
the change, it will mean (a) that each Account Holder has agreed
to the change and (b) that any Authorized User who is responsible
for any part of such negative Account Balance or U.S. Dollar
Denominated Debt (e.g., such negative Account Balance or U.S.
Dollar Denominated Debt arises from or relates to a Barter Transaction
entered into by, or by using such Authorized User's Barter of
America Card or Codes) has agreed to the change. Such changes
may apply to any negative Account Balance and any U.S. Dollar
Denominated Debt outstanding as of the effective date and to
any pending (but not yet authorized) or future Transactions
by such Persons.
- The Barter of America Listing Policy, Tax Policy, Restricted
Items Policy, Trading Policy, Dispute Policy and Gift Certificate
Policy. We may change each of these policies from time to time
and such changes shall become effective immediately after we
provide Clients with notice of such changes by posting such
changes on our www.BarterofAmerica.com Website.
We shall have the right to establish general policies and rules
concerning use of the Barter of America Network, including,
but not limited to:
- The maximum number of days that Listings or other uploaded
content will be retained on or by the Barter of America Network,
- The maximum number or size of Listings that may be posted
on, in or through the Barter of America Network, and
- The maximum number of times (and the maximum duration for
which) a Client may access the Barter of America Network in
a given period of time.
- Laws. The Business and each Authorized User shall full
comply with all laws, regulations, ordinances, rules (including,
but not limited to, ethical and professional rules) and industry,
professional or similar standards relating to:
- Listings and other Information of the Business or such Authorized
User,
- the buying and selling of goods and services by the Business
or such Authorized User on, in or through the Barter of America
Network,
- other use of the Barter of America Network by the Business
or such Authorized User, and
- the payment of Fees to Barter of America associated with the
above.
We are not responsible in any way for ensuring such compliance.
The Business and each Authorized User will not offer to sell
or buy, or sell or buy, any goods or services (or consummate
any transaction that was initiated using the Barter of America
Network) that, by paying the associated Fees to us, could cause
us to violate any such applicable laws, regulations, ordinances,
rules, and standards or that are otherwise illegal using the
Barter of America Network. If the Barter of America Network
does not provide adequate facility or features for the Business
or any Authorized User to comply with all such applicable laws,
regulations, ordinances, rules, and standards then such Business
or Authorized Person shall not use the Barter of America Network
to offer to sell or buy, or sell or buy, the relevant goods
or services. Without limiting the generality of the foregoing,
the Business and each Authorized User acknowledges and agrees
that we are not an importer or exporter of any goods or services
sold internationally on or through the Barter of America Network
and that:
- It/he/she will not export from the United States any good,
service or technology listed or otherwise offered on, in or
through the Barter of America Network in violation of U.S. law,
rules or regulations,
- In connection with each of its/his/her Listings and other
offers to sell or purchase, and sales and purchases of, goods
and services on, in or through the Barter of America Network,
it/he/she shall be solely responsible for ensuring full compliance
with, and it/he/she will comply with:
- All applicable customs, export control, sanctions, anti-boycott
and other international trade laws, rules, ordinances, and
regulations of the United States (including, but not limited
to, any applicable regulations promulgated by the U.S. Department
of State, the U.S. Customs Service, the Bureau of Export Administration,
the Office of Foreign Assets Control, the Federal Trade Commission,
the U.S. Treasury Department, the IRS, the U.S. Securities
and Exchange Commission, any rules of any national or other
securities exchange, and other laws and regulations governing
U.S. trade in goods and services with foreign nations, nationals
and legal entities, including those physically located within
the United States), and
- All similar laws, rules, ordinances, and regulations of
other relevant jurisdictions (including, but not limited to,
the country where it/he/she is located, the country where
the goods are located or services are to be performed, and
the country where the other party to the transaction is located).
8. No Avoidance. The Business and each Authorized User agrees:
- Not to conclude a transaction with another party outside the
Barter of America Network, if the respective goods or services
have been listed on the Barter of America Network or it/he/she
has identified and/or engaged in negotiations with such party
with regard to the respective transaction on or through the Barter
of America Network, and
- Not to engage in any other practice for the purpose of avoiding
or reducing Fees.
If the Business or any Authorized User concludes a transaction
outside of the Barter of America Network, each Account Holder
and any such Authorized User shall be liable to us for all Fees
avoided and shall be subject to additional sanctions, including
termination of access to the Barter of America Network or the Account,
as set forth in Sections 19 and 20 of the Client Agreement.
9. Customer Service. All customer service support (including,
but not limited to, order processing, fulfillment, shipment, and
insurance) to be rendered in accordance with Barter Transactions
in which the Business or any Authorized User is the seller shall
be the sole responsibility of the Account Holders (and any such
Authorized User).
VI. DISPUTE POLICY
Definitions
All capitalized terms used in this Dispute Policy but not otherwise
defined have the meanings set forth in the Barter of America Client
Agreement (the "Client Agreement").
Dispute Procedures and Rules
1. General. The Business and/or an Authorized User must
notify us of any Dispute it/he/she has with or against another Client
or a Third-Party or us that arises from or relates to a Transaction
on, in or through the Barter of America Network:
- Within one hundred eighty (180) days of the date of the Statement
of Account in which such transaction appeared, with respect to
Barter Transactions, and
- Within one hundred eighty (180) days of the date such Transaction
was completed, with respect to Non-Barter Transactions.
The Business and/or an Authorized User must notify us of any Dispute
it/he/she has with or against us that arises from or relates to
this Agreement within six (6) months of the date of the alleged
injury, regardless of any statute of limitations. The Business and
each Authorized User will be deemed to have waived its/his/her right
to mediate, arbitrate, and litigate a Dispute for which notice was
first provided to us after the relevant period, regardless of any
law to the contrary.
2. Disputes between Clients or between Clients and a Third-Party
- Procedures. We may, at our sole discretion, attempt
to informally resolve a Dispute between two Clients or between
a Client and a Third-Party. If we elect to do so, the costs
of any informal dispute resolution shall be borne equally
by the two Clients or the Client and Third-Party, as the case
may be. If we elect not to do so, or attempt to but do not
succeed in resolving the Dispute within thirty (30) days,
the unresolved Dispute shall be subject to mediation between
the parties and such mediation shall be administered by the
American Arbitration Association in accordance with its Commercial
Mediation Rules. In the event the Dispute is not resolved
by mediation within thirty (30) days of the commencement of
the mediation, or if, before the expiration of such thirty
(30) days, either party fails to participate or to continue
to participate in the mediation, the unresolved Dispute shall
be subject to and finally determined by binding arbitration
administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules, and judgment on the
award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. We may release contact information
to allow the resolution of Disputes between Clients and between
a Client and a Third-Party in accordance with the above, and
such other information as required by a mediator or arbitrator
in accordance with the applicable Commercial Mediation Rules
or Commercial Arbitration Rules as set forth above.
- Limited Involvement by Us. We shall not be involved
in, and the Business and each Authorized User shall not involve
us in, any Dispute with a Client or Third-Party, except to
the extent we elect to act as provided in paragraph 2(a) above.
If the Business or an Authorized User nonetheless attempts
to involve us in any Dispute (other than at our election as
provided in paragraph 2(a)):
- The Account Holders and any such Authorized User shall be
jointly and severally liable for all of our costs and attorneys'
fees and shall indemnify us as set forth in Section 23 of the
Client Agreement, and
- The jurisdiction for any such Dispute shall be limited to
the County of San Francisco, Nevada.
Notwithstanding any such involvement, we are not a party to
and shall not be responsible for Disputes between Clients or
between a Client and a Third-Party.
3. Disputes between a Client and Us. If a Dispute between
a Client (including the Business or an Authorized User), on the
one hand, and us, on the other hand, arises from or relates to this
Agreement, the breach thereof or the services provided by us and
if such Dispute cannot be settled through direct discussions, such
Client and we agree to endeavor first to settle the Dispute by mediation
administered by the American Arbitration Association in accordance
with its Commercial Mediation Rules before resorting to arbitration.
Any unresolved Dispute shall be finally settled by binding arbitration
administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules, and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Any such Dispute shall be arbitrated on an individual basis,
and shall not be consolidated in any arbitration with any Dispute
of any other party.
4. Costs, Location, Language, Etc. of Mediation and Arbitration.
In connection with any Disputes between Clients, between a Client
and a Third-Party, or between a Client and us:
- A mediator involved in the parties' mediation may be asked to
serve as an arbitrator, if both parties agree,
- The costs of any mediation shall be borne equally by the parties,
- The arbitrators may determine how the costs and expenses (including
the award of reasonable attorney's fees) of any arbitration conducted
in accordance with the foregoing shall be allocated between the
parties of such arbitration,
- The language to be used in any mediation or arbitration shall
be English, unless the parties otherwise agree, and
- Any mediation or arbitration of such Disputes shall be conducted
in Reno Nevada, unless the parties otherwise agree.
5. Preliminary Relief in Disputes.
- Restrictions on the Account, the Business and Authorized
Users. If the Business or any Authorized User is involved
a Dispute, we have the right to freeze the Barter of America
Dollars involved in the Dispute. Any Barter of America Dollars
that are frozen will not be available to the Business or
any Authorized User during such time. We also have the right,
at our sole discretion, to place such Barter of America
Dollars into a restricted account maintained by us or an
escrow account maintained by a third-party escrow agent
in order to ensure that funds are available upon conclusion
of a mediation or arbitration of such Dispute. Any such
Barter of America Dollars may be released on mutual consent
of the parties to the Dispute, on conditions to which they
mutually agree, or upon order of a court of competent jurisdiction
or an arbitrator as set forth in paragraph 2 or 3 above.
Any such frozen Barter of America Dollars and any such restricted
or escrow account shall not bear interest.
- Injunctive and Interim Relief. Notwithstanding anything
in this Dispute Policy to the contrary:
- i) any party to a Dispute may apply to the arbitrator seeking
injunctive relief until the arbitration award is rendered or
the controversy is otherwise resolved,
- ii) any party to a Dispute may also, without waiving any remedy
under their agreement with us, seek from any court having jurisdiction
any interim or provisional relief that is necessary to protect
the rights or property of that party, pending the establishment
of the arbitral tribunal (or pending the arbitral tribunal's
determination of the merits of the controversy), and
- iii) we may apply to any court of competent jurisdiction for
a temporary restraining order, preliminary injunction or other
interim or conservatory relief, as necessary or appropriate,
or to enforce this Dispute Policy, or Sections 22 or 23 of the
Client Agreement.
With respect to (ii) and (iii), sole and exclusive jurisdiction
of any such non-arbitral action or proceeding shall reside with
the appropriate state or federal court located in the District
of Nevada, Reno County, unless the parties to the Dispute agree
otherwise.
VII. GIFT CERTIFICATE POLICY
Definitions
All capitalized terms used in this Gift Certificate Policy but
not otherwise defined have the meanings set forth in the Barter
of America Client Agreement (the "Client Agreement").
Gift Certificate Procedures and Rules
If the Business operates one or more restaurant, dining, golf course
or other entertainment establishment (including a limousine service),
the Business agrees to participate in our Barter of America Gift
Certificate Program on the following terms and conditions:
- Each such establishment will accept and honor all valid Barter
of America Gift Certificates denominated in Barter of America
Dollars, as well as InBarter.com Gift Certificates, BoA Gift Certificates,
and MyCitiPoints.Com Inc. Gift Certificates (collectively, the
"Gift Certificates") as payment for meals or services rendered
at or by such establishment during regular hours of operation,
without any restrictions other than those expressly set forth
in this Gift Certificate Policy or on the back of the Gift Certificates.
- Each such establishment will adhere to the terms and conditions
set forth on the back of the Gift Certificates (the "Terms and
Conditions"). The Terms and Conditions may be modified or revised
by us in our sole discretion without prior notice to the Business
or establishment. In the event of such modification or revision,
the Terms and Conditions printed on the Gift Certificates shall
govern acceptance and redemption of such Gift Certificates.
- No such establishment shall give any change (in U.S. Dollars
or otherwise) in connection with accepting Gift Certificates as
payment for meals or services rendered at or by such establishment.
Each such establishment shall be solely responsible for collecting
all tax, tip and service charges in full in U.S. Dollars from
the persons from whom Gift Certificates are accepted.
- The Account will be credited with such number of Barter of America
Dollars equal to the number set forth on the front of the Gift
Certificate, provided that each redeemed Gift Certificate:
- Must be mailed, along with a completed deposit slip, to
Barter of America, Attention: Gift Certificate Redemption,
at the address set forth in Exhibit A to the Barter of America
Client Agreement,
- Is dated on or prior to the expiration date set forth
on such Gift Certificate (or December 31, 2002, if earlier,
in the case of InBarter.com Gift Certificates, BoA Gift
Certificates, MCP Gift Cert’s),
- Is received by Barter of America within 30 days after
the expiration date set forth on such Gift Certificate,
- Does not have the term "void" written on it,
- Has a valid signature, and
- Is not photocopied, altered or reproduced.
A Gift Certificate that does not meet all of the above
requirements will not be credited to the Account or otherwise
accepted for redemption. Notwithstanding the above, each
such establishment will accept Gift Certificates after the
expiration date, and we will credit such Gift Certificate
to the Account, in each case if and to the extent required
by applicable law. Gift Certificates are not redeemable
for U.S. Dollars or any other cash currency.
- We recommend that the Business and each establishment
send all redeemed Gift Certificates to us by certified mail.
We are not responsible for any lost, destroyed, stolen,
mutilated or misdelivered Gift Certificates, and any such
Gift Certificates are not replaceable. Gift Certificates
are void if sold for cash or other consideration.
- The terms and conditions set forth in the Gift Certificates
are governed by the laws of the State of Nevada, USA, and
are void where prohibited by law.
- The Business may terminate its participation in the Gift
Certificate Program upon 30 days advance written notice
to Barter of America, Attention: Gift Certificate Program,
at the address set forth in Exhibit A to the Barter of America
Client Agreement, and shall be deemed to be fully given
when personally delivered or sent by confirmed facsimile
or two (2) days after being sent by commercial courier to
the address set forth above, which may be changed from time
to time with ten (10) days' advance notice hereunder. Upon
termination, the Business and each establishment shall promptly
cease to display or otherwise use any and all materials
that indicate or suggest that the Business or an establishment
participates in the Gift Certificate Program. The Business
and each establishment shall continue to accept and honor
valid Gift Certificates and abide by all terms and conditions
of this Gift Certificate Program prior to such termination.
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