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SAMPLE CONTRACT

Standard Terms of Service: December 18, 2012

AGREEMENT by and between CollectorOnline.com., ("Collector Online") a Delaware Corporation with a business address of 16 Heath Place, Garden City, NY 11530 and Merchant for services in connection with The Collector Online Mall.

Collector Online owns and maintains The Collector Online Mall, a site on that portion of the Internet known as the World Wide Web accessible to the public with a URL of http://www.Collector Online.com (the "Site"). The Site, serves as a marketplace from which independent Merchants in antiques and/or collectibles may provide information in an interactive format about commercially available items.

Collector Online provides page building, storage, maintenance, and other services which allow independent Merchants to create web pages to be stored, transmitted, and displayed as part of the Collector Online Web Site and to receive, store and transmit certain commercial information, for example, orders and credit card information.

Merchant sells antiques and/or collectibles to the public and wishes to make information about its collection available to those who access the Collector Online Web Site and to retrieve orders and credit card information (an "online order") from those customers.

Collector Online and Merchant agree as follows:

1. Collector Online' Responsibilities

1.1 Collector Online will allow Merchant the use of its online forms to build or set up and store Merchant's web pages, accessible as part of the Collector Online Mall. Merchant shall retain ownership of all content, graphics and other copyrightable material, and all related copyright and other intellectual property rights, that Merchant provides to Collector Online specifically for purposes of Collector Onlineís use in the creation, building or set up of Merchantís web page(s). Merchant grants Collector Online a permanent right to use Merchant's copyrighted material without charge. Collector Online will retain ownership of all other content, graphics and other copyrightable material, and all related copyright and other intellectual property rights, that it uses in the creation, building or set up of Merchantís web page(s). The specific graphic embodiment of images supplied by Merchant and processed by Collector Online is the sole intellectual property of Collector Online. Collector Online hereby grants to Merchant, subject to the terms and conditions of this Agreement, a license to use the content, graphics and other copyrightable materials owned by Collector Online in connection with Merchantís web pages at the Site.

1.2 Collector Online shall have the right, but not the obligation, to review all content and reject or remove any content which it, in its sole discretion, deems offensive, unlawful, or inappropriate, does not think consistent with technical standards, or about which it has received any complaint. Collector Online shall have no obligation to notify Merchant of its removal of any content. Collector Online shall have no liability to Merchant solely by reason of its removal of any content.

1.3 Collector Online will receive and store information received from Merchant's customers who access Merchant's pages, wish to place an order with Merchant, or otherwise contact Merchant ("online order message"). Upon receipt of an online order message, Collector Online or an agent acting on behalf of Collector Online will promptly notify Merchant of order. Collector Online shall have no obligation to store any online order message or to transmit any online order message more than once. Merchant must have a browser with SSL capability in order to retrieve the message.

1.4 Once each day, Collector Online will send Merchant an e-mail report detailing the number of times its page(s) has (have) been accessed that day and any other information which Collector Online may decide to provide.

1.5 TIAS grants to merchant the right to use the publication resources (including but not limited to the mailing list software, the sponsored bulletin board and the internal bulletin boards) for the express purpose of advertising products for sale on TIAS. Use of these utilities to promote other websites or to publish material that in any manner that violates the general terms of use for the site constitutes a breach of this agreement and may result in termination of Merchant's services.

2. Merchant's Responsibilities

2.1 Merchant will be responsible for creating, editing, updating and otherwise managing the content on its web pages.

2.2 Merchant hereby grants to Collector Online a non-exclusive, worldwide, royalty-free license to use, store, market, license, distribute, transmit, and display Merchant's web pages on the Site and all related sites established by Collector Online.

2.3 Merchant will be solely responsible for (a) retrieving, processing and filling all orders for goods and services described, pictured, offered or provided through Merchantís web pages or ordered by means of the Collector Online shopping cart system. This also includes all e-mail, telephone and mail order for goods and services described, picture, offered or provided through Merchant's web pages and (b) satisfying all product warranty and similar claims that may be made with respect to any such goods and services.

2.4 Merchant will respond promptly and professionally to all questions, comments, complaints and other reasonable requests regarding its web pages or the goods and services offered through them. If Collector Online requests, Merchant will cooperate and assist Collector Online in promptly answering such inquiries. If Merchant fails to respond in a manner that Collector Online considers to be timely, Collector Online may assess additional service fees to cover the cost addressing these inquiries. Merchant shall establish and maintain a return policy that permits its customers to return, for full refund, any goods ordered through Merchantís web pages at any time and for any reason during a period of not less than seven (7) days after the customerís receipt of such goods.

2.5 Merchant will be solely responsible and liable for collection and payment of any or all taxes, including, but not limited to, sales and use taxes, duties and similar charges, relating to the sale of goods and services through its web pages.

2.6 Merchant shall indemnify, defend and hold harmless Collector Online and each of its officers, directors, employees and agents from and against all product warranty and similar claims that may be made with respect to any such goods and services and all claims arising from or relating to Merchantís retrieval, processing and filling of all such orders for goods and services.

2.7 Merchant shall not use any information obtained from its web page(s), whether such information is provided by Collector Online under this Agreement or otherwise obtained, for any purposes that would violate any present or future law, rule or regulation or in any manner that would infringe or violate any personís rights or privacy or any similar right.

3. Payments

3.1 Royalty on Sales Revenues. Merchant shall pay Collector Online a royalty equal to ten percent (10%) of all revenues received by Merchant from the sale of goods or services ordered as a results of accessing Merchant's web pages, whether the order is placed by email, telephone, regular mail, or other means. Royalties are not due on shipping, handling or insurance charges unless these charges are represented to the customer at time of order placement as being included in the price of the product or offered without charge.

Collector Online standard billing options:

Billing is made on a full-month basis only. If Merchant is 'open' less than 15 days, minimum billing is waived. If Merchant is 'open' 15 days or more, the minimum billing for the entire month applies

Merchant will be required to use the online format provided by Collector Online.com for editing sales records to include the recording of sales by said means.   If Merchant uses the Collector Online auction bulk loader, hosts images on the Collector Online system or uses our data export program, merchant agrees to pay Collector Online a 2% percent fee on all completed auctions and sales made outside the Collector Online system. 

Additional fees will be charged at a rate of $120.00 per hour ($120.00 minimum) for Merchant-requested changes, or to fix problems arising as a result of Merchant's improper use of Collector Online software or Collector Online automated shopping cart system. Any technical problems on Merchant's site related to or caused by hardware or software provided by Collector Online will be corrected free of charge.

3.2 Third-Party Advertising. Merchant will not provide a third party with "space" on its web pages for the display of any third-party advertising or similar information. Merchant shall not use Collector Online software to promote other sites or in any manner that is not in compliance with the general terms of use for the site. Doing so will cause Merchant to be in breach of this Agreement, and Collector Online will have the right to close Merchant's shop without notice.

3.3 Payment Schedule.

3.3.1 Web Page Set up, Storage, Maintenance, and Other Services. Merchant will be able to add, delete or place orders on hold through this system. Merchant agrees to be responsible for entering (as needed), reviewing, approving and processing all online orders through the Collector Online order management system. These include orders received by telephone, instant messenger, mail or email that result from contact through the site as well as orders placed online by customers. Failure to observe this contract provision will result in the application of penalties to be determined by Collector Online, up to and including the termination of service without further notice.  Collector Online reserves the right to verify transaction by contacting customers who purchase merchandise from our dealers at any time.  

On (or about) the last business day of each month, Collector Online will prepare and send Merchant an electronic invoice via email for the Monthly Commission Fee which is based on the sales activity as recorded by the Collector Online shopping cart system, and any other sales which result from Merchant's shop at Collector Online.com. Merchant has until the 10th of each month to review the invoice for the preceding month.  After ten (10) days, the month is considered closed and further changes require the specific approval of Collector Online management.

Merchant must provide a credit card number to keep on file to cover payment of the monthly commissions.    At the end of the ten day period,  the credit card will be charged for the balance whether or not Merchant has completed the review. Merchant specifically acknowledges that Merchantís acceptance of the invoice shall not be a condition precedent to Collector Onlineís authorization to charge the credit card. 

A late fee of $4.60 +2% of past due balance will be applied on the 11th of the month.

3.3.2 Royalties on Sales. Merchant shall

  • pay Collector Online all royalties payable on sales revenues (Section 3.2 above) within ten (10) days after the end of the month in which the Merchant collects the revenues and
  • provide Collector Online with each such payment a written report which

    1. identifies the transactions giving rise to such royalty payments,
    2. specifies the amount of the revenues against which the royalty is payable and
    3. provides a clear calculation of the amount of the royalty.
    4. An invoice sent to Merchant will be generated by Collector Online or an agent of Collector Online for payment of commissions, at the discretion of Collector Online. Merchant shall maintain complete, accurate, and clear books and records of all sales with respect to which royalties are payable under this Agreement. Collector Online shall have the right to inspect and copy all such books and records, either personally or through a representative. Collector Online shall give Merchant at least fifteen (15) business days notice of the inspection. If any inspection discloses that Merchant has not paid Collector Online all of the royalties payable under this Agreement, Collector Online shall notify Merchant of such underpayment and may charge theamount of the unpaid royalties plus a fine for underreporting to a valid credit card account provided by Merchant immediately after delivery of such notice. Merchant specifically agrees that Merchantís acceptance of the notice shall not be a condition precedent to Collector Onlineís authorization to charge the credit card.

3.3.3 Interest. If it is determined, as a result of any inspection or otherwise, that the actual amount of the royalties paid by Merchant is less than the amount of the royalties payable by Merchant, then Merchant shall, in addition to paying such unpaid royalties plus any fines, pay to Collector Online interest, at the rate equal to the lesser of twelve percent (12%) per annum and the maximum lawful rate, on the amount of the unpaid royalties from the date that the royalty was due and payable to the date of payment. Collector Online may charge the amount of any interest payable by Merchant to a valid credit card account provided by Merchant. Merchant specifically agrees that Merchantís acceptance of the interest determination shall not be a condition precedent to Collector Onlineís authorization to charge the credit card.

3.3.4 Arbitration. All disputes concerning the determination of any amounts payable under this Agreement shall be subject to expedited arbitration outside of the American Arbitration Association ("AAA") before an attorney or expert who is knowledge-able and experienced in matters similar to the transactions contemplated in this Agreement and who is selected by mutual agreement of the parties. A party shall commence arbitration by delivering written notice to the other party. If the parties fail to agree on an attorney or expert as arbitrator within thirty (30) days after the date on which the notice of commencement of arbitration is delivered, arbitration shall be by the AAA, subject to the rules of the AAA then in effect. Judgment upon the award rendered in any arbitration may be entered in any court having jurisdiction of the matter.

4. Representations and Warranties

4.1 Authority. Merchant represents and warrants to Collector Online that (i) it has all necessary rights and authority to enter into this Agreement and to perform its obligations under this Agreement, and (ii) nothing contained in this Agreement nor Merchantís performance of any of its obligations under this Agreement will place Merchant in breach of any other contract or obligation.

4.2 No Infringement. Merchant represents and warrants to Collector Online that the provision and use of any content, graphics and other materials provided by Merchant for use in the creation, building, set up or operation of Merchantís web pages (including any third party advertising or content) for the Site will not (a) in any way infringe or otherwise violate any copyright, patent, trademark, trade secret or other proprietary or personal right of any third party, including any customer, or (b) violate any criminal or civil law, rule or regulation.

4.3 Operation of Software. Merchant represents and warrants to Collector Online that all of the content, graphics and other materials provided by Merchant for use in the creation, building, set up or operation of Merchantís web pages (including content) for the Site is free, and will be free of all viruses, Trojan horses, time bombs or other disabling device. Merchant also represents and warrants to Collector Online that any graphics provided by Merchant for use in the creation, building, set up or operation of Merchant's web pages for the Site is free, and will be free, of all copyright restrictions.

5. Limitations on Liability, Disclaimers, Indemnification

5.1 No Consequential Damages.  NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS AS A RESULT OF ANY ACT OR OMISSION UNDER THIS AGREEMENT OR OF THE TERMINATION OF THIS AGREEMENT, WHETHER FOR BREACH OF WARRANTY OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND IRRESPECTIVE OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.

5.2 No Additional Warranties.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE OR MERCHANT'S WEB PAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

MERCHANT ACKNOWLEDGES AND AGREES THAT (A) Collector Online MAY ENCOUNTER TECHNICAL OR OTHER DIFFICULTIES WHICH MAY HINDER ITS PERFORMANCE OF SERVICES UNDER THIS AGREEMENT OR RESULT IN THE INTERRUPTION OF THE OPERATION OF THE SITE, (B) Collector Online MAKES NO REPRESENTATION OR WARRANTY THAT MERCHANTíS USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR AS TO THE RESULTS THAT WILL BE OBTAINED FROM MERCHANTíS USE OF THE SITE, AND (C) Collector Online DOES NOT AND CANNOT GUARANTY THE SECURITY OF ANY TRANSMISSIONS TO OR FROM MERCHANT OR ANY OF ITS CUSTOMERS.

5.3 Indemnity. Merchant shall defend, indemnify, save and hold harmless Collector Online and each of its officers, directors, employees, agents, affiliates, distributors and franchisees from any and all third party claims, demands, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees incurred in investigating, defending and settling any such claim) resulting from Merchantís breach of or failure to perform any of its obligations under this Agreement or from the inaccuracy of any representation or warranty provided by Merchant under this Agreement.

5.4 Claims. Upon the assertion of any claim or the commencement of any suit or proceeding against Collector Online by a third party for which Collector Online may seek indemnification from Merchant under this Agreement, Collector Online shall promptly notify Merchant of such claim and shall give Merchant reasonable opportunity to defend and/or settle the claim at its own expense and with counsel of its own selection. Any delay by Collector Online in notifying Merchant of such claim shall not limit in any way Merchantís indemnification obligation unless such delay materially and adversely prejudice Merchant's ability to defend against such claim. Collector Online shall (i) cooperate with Merchant in the defense of any claim, (ii) at all times have the right fully to participate in such defense of the claim at its own expense, and (iii) not be obligated, against its consent, to participate in any settlement which it reasonably believes would have an adverse effect on its business or property rights. Collector Online shall not settle any claim for which its seeks indemnification from Merchant without the prior written consent of Merchant, which consent shall not be unreasonably withheld.

6. Independent Contractors.

6.1  Independent Contractors. Performance by the parties under this Agreement shall be as independent contractors. Nothing contained in this Agreement or done in pursuance of this Agreement shall constitute the parties' entering upon a joint venture or partner-ship, or shall constitute either party the agent for the other party for any purpose or in any sense whatsoever, or to create any fiduciary or any other extra obligations.

7. Term and Termination

7.1 Term of Agreement. The term of this agreement varies depending on the service plan selected by Merchant.

7.2 Termination Causes. Collector Online may immediately terminate this Agreement at any time, and without liability, upon the occurrence of any of the following events (ďCollector Online TerminationĒ):

  1. Customerís failure to pay any overdue amount within ten days after written notice by Collector Online is given to Customer or
  2. Customerís material breach or violation of any provision of this Agreement (other than such violations set forth in clauses (3) and (4) below) that is not cured within ten (10) days of Customerís receipt of written notice from Collector Online referencing such breach or violation;
  3. Customer ceasing to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or making an assignment for the benefit of its creditors; (iv) Customerís violation of the AUP or the Privacy Policy; or
  4. Collector Online determines in its sole discretion that Customer continues to host content that may subject Collector Online to legal liability (in which case, Collector Online may terminate or modify the Products and Services to avoid such liability).

7.3 Effect of Termination. The termination of this Agreement by either party shall not constitute or be deemed to constitute the waiver or release by such party of any right or claim such party may have against the other party by reason of actions or omissions occurring on or before the effective date of termination. Collector Online may, at any time within thirty (30) days after the date of termination, charge Merchantís credit card for any amounts described in Section 3 above. Merchant shall pay to Collector Online all amounts described in Section 3 above and payable for the period through the date of termination within ten (10) days after the date of termination of this Agreement.

7.4 Survival. The rights and obligations of each party under Sections and hereof will survive the expiration or any termination of this Agreement.

8. General Provisions

8.1 Notices. Any notice required to be sent by either party under this Agreement may be sent by personal delivery, by registered or certified mail, postage pre-paid, or by email, facsimile or other form of electronic transmission, to the respective addresses or facsimile numbers of the parties, or to such other address which may hereinafter be designated in writing. Any notice shall be deemed to have been delivered when served, if personally served, three (3) business days after mailing, if mailed, and one (1) business day after transmission, if sent by email, facsimile or other form of electronic transmission.

8.2 Breach and Revocation In the event that TIAS may at any time believe that the Service is being utilized for unlawful purposes by the Customer or in contravention of the terms and provisions of this Agreement, TIAS may unilaterally and immediately discontinue such Service to the Customer without liability. Without limitation, this provision will include obscene content, Bulk and Unsolicited Commercial Email (UCE), failure to pay, failure to respond promptly to a customer on an order related-issue and trademark or copyright infringement.

8.3 Security Interest in Customer's Data, Hosting Account and Domain Name Registration The parties agree that this Agreement shall serve as a Security Agreement. Customer agrees that TIAS and/or its subsidiaries shall have a security interest in and the right in its sole discretion to suspend, cancel, transfer or modify Customerís data, web hosting account and domain name registration in the event that Customer fails to pay the total amount when it is due or when Customer otherwise breaches this Agreement (including the various policies identified herein as being incorporated by reference) and does not cure such breach within five (5) days of oral or written notice by TIAS.

8.4 Default, Acceleration and Waiver of Notice Should Customer otherwise breach this Agreement (including the Billing or Acceptable Use Policies), TIAS may, after first giving Customer ten (10) days written notice (for purposes of this Agreement, email addressed to the email address that Customer provides on its billing information constitutes written notice), declare the Customer in default without any further notice. Further, in the event of default, TIAS may act as Customerís Attorney-in-Fact to execute any actions or proceeding it deems appropriate in connection with this Agreement, including, but not limited to, selling or otherwise disclosing Customer data and/or the domain name registration.

8.5 Force Majuere. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party interfered gives the other party written notice thereof within ten (10) working days of any such event or occurrence.

8.6 No Waiver. The failure of either party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance; rather the same shall be and remain in full force and effect.

8.7 Entire Agreement. This Agreement is the entire agreement, and replaces any and all prior agreements of the parties for the services covered here. No change, amendment or modification of any provision of this Agreement shall be valid unless in writing signed by both parties.

8.8 Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect.

8.9 Interpretation. Each party to this Agreement has been represented by independent legal counsel. Therefore, the normal rule of construction that an agreement shall be interpreted against the drafting party shall not apply. All pronouns and any variation thereof shall be deemed to refer to the masculine, feminine, or neuter and to the singular or plural as the identity of the person or persons may require for property interpretation of this Agreement.

8.10 Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware except for its conflicts of laws principles. Each party irrevocably consents to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts situated in the State of Delaware, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement.

9. E-mail and Anti-Spamming Policy

9.1 Confirmed Opt-in. By accepting this agreement, Merchant agrees to accept all emails from the support group or management of Collector Online. Merchant agrees that such emails are not bulk email but are, instead, part of the management process for Merchant's online store and do not constitute 'spam'. Merchant will not report such mail as 'spam' to any entity.

9.2 Legal Compliance. Merchants must comply with all relevant legislation and regulations on bulk and commercial e-mail, including the CAN-SPAM Act of 2003.

9.3 Mass Mailings. Merchants may not send mass unsolicited e-mail over the Internet, which is email that is sent to recipients who have not Confirmed Opt-In or Closed-Loop Opt-In in to mailings from the Merchant. All mass mailing must be sent using the Collector Online mailing system which records all consents and opt-ins, including the actual e-mail and its headers.

9.4 Mailing Lists. Merchants are prohibited from operating mailing lists or mailing services that do not target an audience that has voluntarily signed up for e-mail information using a Confirmed Opt-In or Closed-Loop Opt-In process or that has made their e-mail addresses available to a User for distribution of information.

9.5 Other Prohibited Activities. Other prohibited activities include, without limitation, the following:

  • Reporting mailings to Merchant from the management or staff of Collector Online as 'spam' to any entity;
  • Use of Collector Online mailing services to transmit content that violates the Collector Online terms of service;
  • Use of Collector Online email addresses for the receipt of replies to unsolicited mass e-mail;
  • Advertising any web page hosted at Collector Online within ďspam e-mailĒ sent from another network (ďspamvertisingĒ);
  • Hosting web page content or providing services that support spam.

If the Merchant uses Collector Online Services in a manner that causes Collector Online to be ďblacklistedĒ or blocked, Collector Online reserves the right to suspend permanently or terminate Collector Online Services of such Merchant. Operating Collector Online mailing services on behalf of, or in connection with, or reselling any service to persons or firms listed in the Spamhaus Register of Known Spam Operations database at www.spamhaus.org shall constitute a violation of this Agreement.

9.6 Block Removal. If, as a result of a Merchantís actions, Collector Onlineís mail servers or IP address ranges are placed on black hole lists or other mail-filtering software systems, Collector Online shall charge Customer $120 upfront and $120 per hour thereafter for any necessary remedial actions.

9.7 Liability / Termination. If any Merchant uses Collector Online Services in a manner that exposes Collector Online to potential liability, as reasonably determined by Collector Online, Collector Online may suspend permanently or terminate the access to Collector Online Services by such Merchant.

9.8 Remedial actions. The remedial actions set forth in this Agreement shall not be construed in any way to limit the actions or remedies that Collector Online may take to enforce and ensure compliance with this Agreement. Collector Online reserves the right to recover any and all expenses, and apply any reasonable charges, in connection with a Merchantís violation of this Agreement. No refund or service credits will be issued for any interruption in service resulting from violations of this Agreement.

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