MEMBER AGREEMENT

 

 

Each Member or potential Member should carefully read the terms and conditions of this Agreement, all of which a Member must accept and agree to before joining Barter Your Way Exchange. If Member buys or sells, or offers to buy or sell, goods or services on, in or through Barter Your Way Exchange, you are thereby accepting and agreeing to all of the terms of this Barter Your Way Exchange Member Agreement, as amended from time to time. If you disagree with or cannot comply with any of the terms of this Agreement, you may not use Barter Your Way Exchange. 

 

ARTICLE I

 

1.1        Member Eligibility.         Only individuals and businesses that have met Barter Your Way’s qualifications may use Barter Your Way’s services. Barter Your Way reserves the right to exclude any person, business, Member and/or Authorized User at any time for any lawful reason. A Member may enter into Trade Transactions through Barter Your Way Exchange only through Authorized Users. Authorized Users are permitted to enter into Trade Transactions through Barter Your Way Exchange only if the applicable Member and such Authorized Users has agreed to the terms of this Agreement. Members are obligated to ensure that the Authorized Signatory has properly executed (or has otherwise agreed to be bound by) this Agreement and that such Authorized Signatory has received any permission or approvals required for Member to be subject to this Agreement. Barter Your Way Exchange may require, at any time that each Member provide Barter Your Way a valid credit card, debit card, checking account routing and transit number information, or other guarantee of payment of fees. Member and each Authorized User acknowledges and accepts that in providing access to Barter Your Way Exchange, Barter Your Way has relied upon such Person’s agreement to be bound by the terms of this Agreement. Member hereby acknowledges that they are over 18 years of age.

 

1.2        Log-In Information. Member agrees to maintain and keep Account log-in information, including but not limited to, the Account name, federal tax identification number and password secure and private, except as is required by federal, state or local governmental agency reporting purposes. Member shall not “share” the access or login information to the Account with any non-Barter Your Way Exchange Member.

 

1.3        Current Information. Member agrees to provide and update Barter Your Way with current and accurate information, including proper business name, status and type of business, address, telephone and facsimile numbers, electronic mail address, federal employer tax identification or social security number, financial institution, credit card and/or checking account information and other reasonably requested documentation. If Member’s information changes, Member agrees to immediately notify Barter Your Way of the updated information. If any charge against Member’s account is declined, then Member shall establish and provide Barter Your Way with current and correct billing information within twenty-four (24) hours or request. Member agrees to execute any documentation reasonably requested by Barter Your Way to review Member’s credit information. Member acknowledges that Barter Your Way may require a minimum credit score rating by Member, its owners, officers, and/or directors; and personal guarantees by all owners of Member, if a business entity.

 

1.4        Affiliations. Member must disclose to Barter Your Way any and all trading and barter relationships, specifically including, but not limited to, ownership, management purchase or sale, operations, etc. with any other barter/trade system. Failure to properly disclose any such relationship may result in immediate termination of Member’s account. Member shall not intentionally advertise (not including referrals) another barter/trade system to a Barter Your Way Member.

 

1.5        Equipment. Member acknowledges that Member is responsible for and must obtain all equipment and services necessary to access Barter Your Way Exchange.

 

ARTICLE II

 

2.1        General. Barter Your Way is not a bank. The Account Balance is denominated solely in Barter Dollars. The Account is not insured by the Federal Deposit Insurance Corporation (FDIC) or other such government or quasi-governmental agency. All Barter Dollars generated by Trade Transactions entered into by Member will be commingled in the Account, and can be used (i) by Member (or any Person using an Authorized User’s Barter Your Way Codes) as buyers in other Trade Transactions; (ii) by Barter Your Way to set-off any amounts (including, but not limited to, Fees) denominated in Barter Dollars owed by Member under this Agreement; (iii) by Barter Your Way to reduce any negative Account Balance arising from Trade Transactions previously entered into by Member (or any Person using an Authorized User’s Barter Your Way Codes), regardless of whether the Barter Dollars used were generated by the same Person. Barter Your Way will not pay interest on positive Account Balances and does not guarantee that there will be adequate Barter Dollar reserves to cover all outstanding claims against Barter Your Way Exchange.

 

2.2        50/50 Trading. Member shall only engage in 50% cash and 50% barter trades. Member shall not trade in any other manner.

 

2.3        Positive and Negative Balances. A positive Account Balance (i.e., a credit balance) denotes the right of Member to purchase goods and services offered by other Members willing to accept Barter Dollars in payment for those goods and services. A negative Account Balance (i.e., a debit balance) creates an obligation on the Member to sell goods or services to other Members to the extent or the Barter Dollar deficit.

 

2.4        Restrictions. Barter Your Way may, in its sole discretion:

·         Restrict use of Barter Dollars deposited in the Account for a Trade Transaction for a period of time after the completion of such Trade Transaction and thereafter pending resolution of any Dispute regarding such Trade Transaction;

·         Modify, reduce, or eliminate any Credit Line assigned to an Account for any reason or for no reason with or without prior notice to Member;

·         Require escrow, vesting or other procedures before the Member can use Barter Dollars in the Account; or

·         Cancel, freeze and/or otherwise restrict sales or purchase or the use of Barter Dollars in the Account by Member in connection with a Default by Member. 

 

2.5        Inactivity. An Account will be considered abandoned if Member has not entered into a Trade Transaction over any period of three hundred and sixty-five (365) consecutive days. Barter Your Way may, at is sole discretion, terminate an abandoned Account (regardless of whether the abandoned Account has a positive or negative Account Balance), and any positive Account Balance will be transferred out of the Account and held in Escrow for a period of one (1) year. After one (1) year Member will not receive any value for such positive Account Balance. If the Account has a negative Account Balance at the time of termination, Member agrees to pay Barter Your Way an amount equal to one U.S. Dollar per Barter Dollar. 

 

2.6        Security Interest. Member hereby grants Barter Your Way a security interest in all Barter Dollars credited and to be credited to the Account to secure the amount of all unpaid Fees and other obligations to Barter Your Way (whether payable in Barter Dollars or U.S. Dollars) of Member and/or any Authorized User.

 

2.7        Chargebacks. If a purchaser desires a chargeback against his or her Barter Your Way Account, then he or she must submit a written request of proof of sale from the selling party. If the seller does not provide proof of sale to Barter Your Way within thirty (30) days of being provided written notice by purchaser, then Barter Your Way shall provide the purchaser with a chargeback of the purchased amount which will be charged against the seller. Member acknowledges, agrees and understands that Barter Your Way reserves the right to make any final decisions regarding all chargebacks and that all such decisions are final and not subject to review or change.

 

ARTICLE III

 

3.1        Barter Your Way may, but is not obligated to, extend a Credit Line to the Account on terms and conditions as determined by Barter Your Way in its sole discretion. Members shall not permit any negative Account Balance to exceed the Credit Line at any time. Barter Your Way may, in its sole discretion and without liability to Member or any Authorized User, at any time for any reason without prior notice:

·         Change the Account’s Credit Line at any time for any reason;

·         Permit any negative Account Balance to exceed the Credit Line Barter Your Way has set from time to time; or

·         Require that Member immediately pay in full an amount in U.S. Dollars equal to the excess of the negative Account Balance over the Credit Line, even if such excess results solely from a reduction in the Credit Line.

 

3.2        Member acknowledges these rights and powers and further acknowledges that any Credit Line extended to the Account shall carry fees and other charges (including, but not limited to, late charges and over-limit fees) in accordance with this Agreement.

 

3.3        Any Account in arrears over sixty (60) days in Fees due may have any Credit Line immediately revoked by Barter Your Way at any time thereafter unless or until all Fees and charges are paid in full. Upon such revocation the entire amount of the negative Account Balance may, in Barter Your Way’s sole discretion, become immediately due and payable in an amount equal to one U.S. Dollar per Barter Dollar owed.

 

3.4        Special Offers and Promotions. Barter Your Way may, in its sole discretion, make special offers and promotions, such as reduced fees, discounts, incentive or other benefits, available to all or some Members without creating any obligation on its part other than as explicitly set forth in such offers or promotions, including but not limited to, any obligation to continue such offers or promotions on an ongoing basis. 

 

ARTICLE IV

 

4.1        Legal Right to Sell Listed Goods. Members shall list n Barter Your Way Exchange only such goods and services that the Member has the right to sell on, in or through Barter Your Way Exchange.

 

4.2        Prior Approvals. Member must obtain prior approval for all transactions exceeding One Hundred Dollars ($100.00). Member is solely responsible for any liability associated with Trade Transactions without obtaining prior approval. 

 

4.3        Transfer of Barter Dollars. Member and each Authorized User understands and agrees that upon authorization from Barter Your Way, the amount of Barter Dollars constituting the agreed upon purchase price is charged (debited) to the purchaser, and credited to the seller. A period of up to one full business day may elapse before the seller’s account is credited, to permit time for internal review and controls.

 

4.4        Barter Your Way may, at its discretion, issue checks (“Trade Drafts”) to Member. Member is liable to any merchant to whom Member issues a Trade Draft for the amount written. In the event funds are not available to cover the Trade Draft when presented for payment, whether online or by depositing to Barter Your Way, Barter Your Way may, at its sole discretion cover the overage or return the Trade Draft as unpaid. Whether Barter Your Way covers the overdraft or returns the Trade Draft for insufficient funds, Barter Your Way shall charge Member a Twenty-five Barter Dollar ($25.00) charge.

 

4.5        Special Restaurant Rules. Restaurants agree to allow Members to use their Trade Drafts on site for payment. Restaurant Members agree to honor printed script (“Gift Certificates”) for one (1) year from the date of print, even if the Account is terminated prior thereto.

 

4.6   Member must always accept Barter Dollar funds as cash at retail price, up to a maximum of Ten Thousand Dollars ($10,000) per item sold or transaction for services provided to any one purchaser within any twelve (12) consecutive months. Except as specifically permitted, the failure to permit purchases and/or increasing pricing “because it is trade” is not permitted. Restaurant Members must accept trade for all purchases, excluding tax and gratuities, without exception.

 

4.7        All travel arranged by Barter Your Way is final. Member may not transfer travel arrangements or obtain refunds for any reason whatsoever.

 

4.8        If Member refuses to accept Barter Your Way funds from another Member of Barter Your Way, Barter Your Way may immediately close Member’s Account and bill member amount of any outstanding balance in cash, plus any applicable cash charges dues at the time of Account closure.

 

4.9        Gratuities. Gratuities are strongly recommended and good business practice when using the service of a restaurant, bar, salon or limousine company. Members who regularly do not tip will no longer be able to use such services.

 

ARTICLE V

 

5.1        Product and Service Valuation. Goods and services listed on Barter Your Way Exchange must be priced 50% in Barter Dollars and 50% in U.S. Dollars cash. The value of a $1.00 Barter Dollar is equivalent to $1.00 U.S. Dollar.   All goods and services shall be listed for sale (50% Barter Dollars and 50% cash in U.S. Dollars) at a price equal to the Member’s prevailing cash price (e.g., an item that normally sell for $100.00 U.S. Dollars must be listed for $50.00 Barter Dollars and $50.00 U.S. Dollars on Barter Your Way Exchange).

 

5.2        Verification. Barter Your Way Exchange reserves the right to request documentation supporting a Member’s Barter Your Way Exchange valuation of a listed item with evidence of other valid cash sales at the same price. Failure to provide adequate documentation of cash sales to support Barter Your Way Exchange listed price may result in deletion of the Member’s listing from Barter Your Way Exchange.

 

ARTICLE VI

 

6.1        Barter Your Way is affiliated with a number of independently-owned and independently-operated trading systems, which Member may on occasion have access to through Barter Your Way Exchange. Transactions through Barter Your Way between Member and a client of one of these independent but affiliated trading systems are subject to Barter Your Way policies and to trade restrictions and trading quotas that exist between trading systems, which may change over time.

 

ARTICLE VII

 

7.1        Barter Your Way is not a guarantor of any Trade Transaction. Barter Your Way (and its independent contractors, parent and subsidiaries) do not guarantee, warrant, or make any representation regarding any of the following:

·         The quality, quantity, delivery, value, condition, safety, legality, merchantability, fitness for a particular use or purpose, timeliness or accuracy, or any other characteristics of any goods or services placed into or purchased through or otherwise advertised on or through Barter Your Way Exchange by a Member or Third Party;

·         The accuracy, reliability, or integrity of any information provided to Barter Your Way by a selling Member or Third Party and disseminated by Barter Your Way on behalf of that selling Member or Third Party;

·         The ability of any selling Member or Third Party to sell goods or services;

·         The availability of goods or services within Barter Your Way Exchange, or the ability of any buying Member or Third Party to buy goods or services;

·         The volume of business that any Member will derive from participation in Barter Your Way Exchange or through use of Barter Dollars;

·         The value of Barter Dollars or of the future existence or viability of Barter Your Way Exchange;

·         That there will be adequate Barter Dollar reserves to cover all outstanding claims in Barter Your Way Exchange;

·         That the Member will be satisfied with the selection of products or services offered through Barter Your Way Exchange at any given time, or with the prices for such products or services; and

·         The accuracy, reliability, integrity or legality of any offer, proposal statement, data, opinion, or other content displayed or distributed through Barter Your Way Exchange.

 

7.2        Whenever any Member either makes an offer to enter into or enters into a Trade Transaction through Barter Your Way Exchange, such Member acknowledges that:

·         The sole parties to any such Trade Transaction are the selling Member, on the one hand, and the buying Member or Third Party involved, as applicable, on the other hand, and not Barter Your Way (unless explicitly designated as such by Barter Your Way);

·         Each Trade Transaction is entered into voluntarily, and incurs normal risks associated with any business transaction, and

·         Each Member will engage in appropriate due diligence, with the assistance of professional counsel and consultants if appropriate, prior to entering into such Trade Transaction.

 

7.3        If a seller fails to deliver goods or services pursuant to agreed-upon terms, subject to the provisions provided in Article XI entitled “Disputes,” buyer’s only recourse shall be against the seller, and not against Barter Your Way or against Barter Your Way’s parent, subsidiaries, or independent contractors.

 

7.4        If a seller seeks the protection of bankruptcy, receivership, or assignment for the benefit of creditors before fully performing its obligations arising from a transaction through Barter Your Way Exchange, Barter Your Way may at its sole option act as buyer’s agent for submitting claims to the bankruptcy or receivership estate, but Barter Your Way shall have no obligation to do so, nor shall Barter Your Way have responsibility to make the buyer whole inside or outside of the bankruptcy or receivership estate. Buyer shall have all the rights of similarly-situated bankruptcy or receivership creditors against the debtor but shall have no separate action against Barter Your Way, its parent, subsidiaries or independent contractors.

 

ARTICLE VIII

 

8.1        Payment of Fees. Member acknowledges that all cash fees due to Barter Your Way shall be paid by automatic drafts, check, PayPal, debit card or credit card. As such, Member shall provide Barter Your Way with any and all information and documentation necessary to affect automatic drafts or credit card withdrawals, and any updated information and documentation as may be required.

 

8.2        Enrollment Fee. Member shall pay Barter Your Way an enrollment fee of ninety-nine dollars and ninety-five cents ($99.95) cash in order to set up Member’s Account.   Any reduced rate is at the sole discretion of Barter Your Way and must be clearly marked on Barter Your Way Membership Application. Should any portion be waived and should the Account be terminated by the Member or by any breach of this Agreement within the first twelve (12) months, the waived potion shall become due and payable in cash upon the closure or termination of the membership.

 

8.3        Transaction Fees. Amount of Transaction Fees shall be listed in Barter Your Way Exchange Member Application. Member shall pay Transaction Fees via automatic draft, PayPal, or credit card. If Member fails to pay any cash Fee due hereunder on a timely basis, then the Transaction Fees shall increase by one percent (1%) per transaction. If Member fails to pay any cash fee due hereunder on a timely basis a second time, then the Transaction Fees shall be increased by an additional one percent (1%). Barter Your Way shall draft payments on a daily basis, as incurred in Member’s Account.

 

8.4        Negative Account Balances. Barter Your Way shall charge Member interest at a rate of one and one-half percent (1.5%) cash dollars per month on the negative Account Balance. Barter Your Way shall calculate interest once during the billing cycle.

 

8.5        Past Due Amounts. Barter Your Way shall charge Member interest at a rate of one and one-half percent (1.5%) per month cash on all past due cash amounts due to Barter Your Way. Barter Your Way shall calculate interest once a month during a billing cycle.

 

8.6        Additional Fees. If any payment is unpaid, stopped, returned for insufficient funds, returned for closed account, charge back, or otherwise declined, then Member hereby authorizes Barter Your Way to debit Member's Account as many times as is necessary until the balance clears. Additionally, Barter Your Way shall charge Member a late fee of Thirty-five Dollars ($35.00) plus a Thirty-five Dollar ($35.00) bank charge for each returned or declined charge and/or failed payment.

 

8.7        Fee Discretion. The Company reserves the right, in its sole discretion, to amend the amount or timing of fees required to be paid by this Article VIII for any Member at any time.

 

ARTICLE IX

 

9.1        Each Member must provide a valid and correct taxpayer identification number (or, if applicable, social security number) to Barter Your Way before engaging in any trading through Barter Your Way Exchange. By signing a Barter Your Way Member Application and/or engaging in any transaction through Barter Your Way Exchange, MEMBER THEREBY DECLARES AND AFFIRMS THAT THE TAXPAYER TAX IDENTIFICATION NUMBER (AND/OR, IF APPLICABLE, SOCIAL SECURITY NUMBER OR OTHER APPLICABLE TAX IDENTIFICATION NUMBER) PROVIDED TO BARTER YOUR WAY IS THE MEMNBER’S CORRECT TAXPAYER IDENTIFICATION NUMBER (AND/OR, IF APPLICABLE, CORRECT SOCIAL SECURITY NUMBER OR TAX IDENTIFICATION NUMBER) AND THAT MEMBER IS NOT SUBJECT TO BACKUP WITHHOLDING BECAUSE (A) MEMBER IS EXEMPT FROM BACKUP WITHHOLDING, OR (B) MEMBER HAS NOT BEEN NOTIFIED BY THE INTERNAL REVENUE SERVICE (IRS) THAT MEMBER IS SUBJECT TO BACKUP WITHHOLDING AS A RESULT OF A FAILURE TO REPORT ALL INTEREST OR DIVIDENDS OR (C) THE IRS HAS NOTIFIED MEMBER THAT IT IS NO LONGER SUBJECT TO BACKUP WITHHOLDING.

 

9.2        All Barter Dollar and cash earned from Trade Transactions are taxable. Barter Dollars are a means of satisfying an obligation. When Barter Your Way adds Barter Dollars to an Account, the seller has completed the earning process. Sellers must include in their reported income the value of the Barter Dollars that are added to their Account, even though they may not actually receive goods or services from other Members until a later tax period.

 

9.3        Member is responsible for the reporting and payment of all applicable local, state and federal, and non-U.S. taxes that result from Trade Transactions. Member is responsible for billing and collecting sales tax due from buyers. There are a number of different factors that determine Member’s total tax on sales. Because of this Barter Your Way recommends that Member contact a tax consultant who is qualified to advise Member about tax ramifications of sales on Barter Your Way Exchange.

 

9.4        Barter Your Way will report sales of its Members to the IRS as required by law.  

 

9.5        Member agrees and affirms that Barter Your Way is not acting as its agent, and in the event any jurisdiction successfully asserts such relationship or otherwise successfully asserts any obligation to collect or pay any transfer tax upon Barter Your Way, Member agrees to hold Barter Your Way (and its parents, subsidiaries, employees, attorneys, independent contractors, and agents) harmless, and will reimburse all such taxes (including any interest, penalties and other costs) incurred by Barter Your Way, in cash, upon presentment. Member shall, to the fullest extent permitted by law, indemnify and hold harmless Barter Your Way and all of its parents, subsidiaries, officers, employees, attorneys, independent contractors, and agents, from and against any and all costs and expenses (including attorney’s fees) arising from any failure by Member to comply with applicable tax laws.

 

ARTICLE X

 

10.1      Member is responsible for making sure that Member’s selling of particular goods or services is not prohibited by law. Member is responsible for conferring with law enforcement agencies, a lawyer, or with a copyright, trademark or other rights owner, for clarification.   Member agrees to hold Barter Your Way (and its parent, subsidiaries, employees, independent contractors, and agents) harmless from and against any and all claims, damages, or costs (including attorney’s fees) arising out of (1) Member’s violation of any law, or (2) Member’s violation or infringement of the rights of any third party as a result of listing products and services on Barter Your Way Exchange.

 

10.2      Member agrees to use Barter Your Way Exchange only as permitted by applicable local, state and federal law. As such, Member shall not (1) infringe upon the use of Barter by other Account holders; (2) send unsolicited advertising or promotional materials to other Members; (3) purposely and/or knowingly propagate computer worms and/or viruses; (4) make unauthorized entries into any other machines accessible via the network; not (5) plan, incite, promote, facilitate, solicit or conduct any business or activity that is prohibited by law.

 

ARTICLE XI

 

11.1      Any dispute between Members, or between members and Third Parties, arising from this Agreement shall be a matter to be resolved between those Members and/or Third Parties. Barter Your Way shall not be involved in, and the Member shall not involve Barter Your Way in, any dispute between the Member and another Member, or between Member and a Third Party.

 

11.2      Freezing of Account. If the Member is involved in a dispute with another Member or a Third Party, Barter Your Way shall have the right (but not the obligation) to freeze the Barter Dollars involved in the dispute. Any Barter Dollars that are frozen will not be available to the Member or any Authorized User during such time. Any such Barter Dollars may be released by 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 this Agreement.

 

ARTICLE XII

 

12.1      Access. Barter Your Way does not guarantee continuous, uninterrupted or secure access to any of our services, and operation of Barter Your Way Exchange internet site may be interfered with by numerous factors outside of our control. From time to time, access to Barter Your Way Exchange may be altered or denied for scheduled and unscheduled maintenance without any prior notice to Members. Barter Your Way has the right to do the following without any notice or liability:

·         Change, suspend or discontinue any aspect of Barter Your Way Exchange at any time, including, but not limited to, hours or days of operation and availability of any feature, telephone line, automated response system, database or content;

·         Impose limits on certain features and services; and

·         Restrict access to parts or all of Barter Your Way Exchange.

 

12.2      Interference. The Member and each Authorized User will not:

·         Use any device, software, routine or other means to interfere or attempt to interfere with the proper working of Barter Your Way Exchange or its internet sites, telephone services, infrastructure, systems or components;

·         Take any action that imposes an unreasonable or disproportionately large load on Barter Your Way Exchange, or its internet sites, telephone services infrastructure, systems or components;

·         Gain unauthorized access to other computer systems through Barter Your Way Exchange;

·         Defame, abuse, harass, stalk, threaten, embarrass or cause distress or discomfort upon any other Members or Third Parties;

·         Restrict, inhibit or otherwise act in a manner that negatively affects other Member’s ability to engage in normal transactions on or through Barter Your Way Exchange;

·         Impersonate or otherwise misrepresent any person or entity, including, but not limited to, one of our officials or representatives;

·         Falsely state or otherwise misrepresent its/his/her affiliation with a person or entity; or

·         Conceal the true identity of the parties-in-interest for purposes of evading or circumventing any applicable law, regulation, ordinance, rule or standard or for any other reason.

 

12.3      The information and software used by Barter Your Way Exchange is proprietary to Barter Your Way Exchange or is licensed to Barter Your Way Exchange by third parties. The Member and each Authorized User will not:

·         Copy, reproduce, alter, modify, rent, lease, loan, sell, distribute, create derivative works based on, or publicly display any content (except for information of the Member and/or such Authorized User) from or software used in connection with Barter Your Way Exchange without our prior express written consent; or

·         Cause Barter Your Way Exchange to be displayed as a part of or within another internet site or web page or resell or redistribute any portion of Barter Your Way Exchange or provide access to Barter Your Way Exchange (including, but not limited to, the Account, any Codes or other Account information) to any third party for financial gain; and

·         Member agrees that all Barter Your Way membership information, including but not limited to, directories, newsletters and contracts are of a special, unique and extraordinary character, and the release of this information may cause Barter Your Way irreparable injury and damage. While it is impossible to determine the extent of injury, if found to have distributed Barter Your Way material to competing organizations or potential competitors, Member agrees to pay Barter Your Way compensation of $100,000 and are subject to Barter Your Way’s cancellation policies.

 

ARTICLE XIII

 

13.1      Definition of Default. A Member is in “Default” of this Agreement if any one of the following occurs:

·         Member does not make a required payment under this Agreement by the due date;

·         Member becomes generally unable to pay its debts or obligations (including, but not limited to, a negative Barter Dollar Account Balance) as and when they become due;

·         Member provides Barter Your Way with any false or misleading information or a false signature on Barter Your Way Member Application or such Member fails to notify Barter Your Way if any such information previously provided becomes false or misleading;

·         Member ceases to do business as a going concern or, in the case of individuals, such Member dies, becomes incapacitated or otherwise incapable of decision-making;

·         A petition in bankruptcy is filed against, or proceedings for dissolution, winding up or liquidation are instituted, by or against Member under the U.S. Federal Bankruptcy Code or any similar laws;

·         Barter Your Way believes that the likelihood of such Member performing all its obligations under this Agreement has been impaired;

·         Member is found, or is reasonably believed by Barter Your Way to have engaged in deceitful trading practices or otherwise fraudulent, undesirable or harmful conduct as determined by Barter Your Way;

·         Member breaches this Agreement (inclusive of any policies or documents it incorporates by reference);

·         Barter Your Way cannot verify or authenticate any information delivered by such Member to Barter Your Way or other Members, or placed on, in or through Barter Your Way Exchange by such Member;

·         Member is in default of any obligation to Barter Your Way, a Member or any Third Party;

·         Member is the subject of an investigation by a government agency or other authority;

·         Barter Your Way concludes, in its sole discretion, that any act or omission of such Member may cause legal liability for Barter Your Way, the Member or other Members; or

·         Any of the events described above with respect to a Member occurs with respect to any Authorized User.

 

13.2      Remedies upon Default. Upon the occurrence of a Default by any Member, Barter Your Way has the right, at its election then or at any time thereafter while such Default continues, to take, without limitation, one or more of the following actions.

·         Terminate Member’s Account;

·         Declare any negative Account Balance and any fees arising from Trade Transactions entered into by such Member, or by a Person using such Member’s Barter Your Way Codes, to be immediately due and payable in U.S. Dollars by the Member to Barter Your Way, without or without notice to Member, subject to the terms and conditions of this Agreement;

·         Require modification of payment terms or fees in order to continue or reinstate access or use by Member of services provided by Barter Your Way Exchange;

·         Temporarily suspend, indefinitely suspend or terminate the rights of such Member to transact in (as a seller and/or buyer) access or otherwise use Barter Your Way Exchange or Barter Dollars in the Account (including, but not limited to, by deactivating such Member’s Codes);

·         Issue a warning to such Member; and

·         Refuse to provide services to Member.

 

ARTICLE XIV

 

14.1      Term and Termination of Account by Member. The Term of the Agreement is for a twelve-month period, at which time, the Agreement will automatically renew for another successive twelve-month period, unless terminated by the parties hereto. The Account may be terminated by the Member by giving Barter Your Way sixty (60) days prior written notice of termination to the address shown on the last Account statement.

 

14.2      Termination of Account by Barter Your Way. Barter Your Way may, in its sole discretion and without liability to Member, terminate the Account at any time and for any reason, regardless of whether Member is in Default, immediately upon sending written notice to the Member.

 

14.3      Effects of Termination of Account. If upon termination of the Account, Member is in Default or the Account does not have a positive Account Balance:

·         Barter Your Way may immediately withdraw the rights and privileges of the Member and each Authorized User in respect of any Codes and the Account (including, but not limited to, the right to transact in or otherwise access Barter Your Way Exchange); and

·         Require any negative Account Balance and any Fees arising from Trade Transactions entered into by the Member, or by a Person using such Member’s Barter Your Way Codes, to become immediately due and payable in full in U.S. Dollars by the Member to Barter Your Way, with or without notice to Member.

If upon notice of termination of the Account, Member is not in Default and there is a positive Account Balance, the Member will have until the end of the Term of the Agreement to purchase goods or services in Trade Transactions using the Barter Dollars representing any the positive Account Balance, less any set-offs as provided in this Agreement or other amounts required to fully secure and guarantee any debts, obligations, damages, or liabilities of Member to Barter Your Way, other Members or Third Parties. Member shall remain liable for any and all fees provided in this Agreement until Termination of the Agreement. If after the Termination of the Agreement, any positive Account Balance remains, the balance will be transferred out of the Account and neither the Member not any Authorized User will receive any value for such balance.

 

ARTICLE XV

 

15.1      In the event that Barter Your Way Exchange ceases operating as a facilitator of trade transactions between its Members (or during any period in which Barter Your Way Exchange is in the process of winding up its operations or is subject to receivership or protection of bankruptcy) Barter Your Way (or Barter Your Way Exchange) may delay payment of trade credit balances for a reasonable period of time during which it will attempt to collect the U.S. Dollar equivalent of as many outstanding trade debit balances as practicable from Members. When, in the sole discretion of Barter Your Way, a reasonable share of outstanding trade debit balances have been collected from Members, these collected funds will be used first to pay the wind-up expenses of Barter Your Way Exchange, and thereafter will constitute a fund from which then-outstanding trade credit balances will be paid on a pro rata basis from this fund to Members holding trade credit balances. Other than the foregoing winding up process, neither Barter Your Way or Barter Your Way Exchange, nor any member of Barter Your Way, shall have any liability to compensate Members or members of Barter Your Way Exchange, or any third party beneficiaries, in any way for their trade credit balances in the event of any dissolution or winding-up of Barter Your Way Exchange.

 

ARTICLE XVI

 

16.1      Definitions. For purposes of this Agreement, the following capitalized terms shall have the following meanings unless otherwise indicted or the context otherwise clearly requires:

 

·         Account. The account in Barter Your Way Exchange that is in the name of Member.

·         Account Balance. The balance in the Account, denominated in Barter Dollars, comprising of (a) Barter Dollars generated by Trade Transactions in which Member is a seller, less (b) Barter Dollars spent in Settled Trade Transactions in which Member is a buyer, less (c) Barter Dollars set aside in a designated “Escrow Account” for Trade Transactions in which Member is a seller and the Trade Transaction is authorized by Barter Your Way but not Settled, less (d) Barter Dollars payable by Member to Barter Your Way in accordance with this Agreement (including, but not limited to, Fees administrative charges, and any other charges). The Account Balance may be negative, positive, or zero.

·         Agreement. This Barter Your Way Member Agreement, including any Barter Your Way Exchange Member Application executed by Member and all policies and schedules referred to herein that are hereby incorporated herein by reference, in each case as amended.

·         Authorized Signatory. The individual who completes Barter Your Way Member Application on behalf of a Member, or such other individual that the Member may thereafter designate in writing to Barter Your Way. The Authorized Signatory must (i) have the requisite legal authority to bind the Member, (ii) have received any and all approvals required for him or her to bind the Member and (iii) permit Barter Your Way to obtain any information relating to the Member and/or its principals that Barter Your Way may reasonably request from time to time (including personal or corporate credit reports).  All Authorized Signatories shall be personally liable for any Account for which he or she serves as an Authorized Signatory.

·         Authorized Users. The Authorized Signatory and any other person(s) authorized by the Member to use Member’s Codes.

·         Barter Dollars. A book entry with an assigned arbitrary value that serves as a practical method of recording the value of every transaction that results in a transfer of goods or services among Member of Barter Your Way Exchange. Barter Dollars are not legal tender, securities, or commodities, are not an obligation of Barter Your Way and cannot be redeemed for cash or legal tender. In no event shall Barter Your Way be required to refund, redeem or pay any amounts to any Person for any Barter Dollars. Barter Dollars are not transferable, and shall not be transferred, assigned, pledged or hypothecated by Members in any way, directly or indirectly, accept as required for:

o        The bona fide trading of goods or services through Barter Your Way Exchange;

o        The payment of fees or a Credit Line express authorized by Barter Your Way.

·         Barter. To trade by exchanging one commodity or service for another commodity or service.

·         Barter Your Way. Barter Your Way Exchange, LLC, a Kentucky limited liability company.

·         Barter Your Way Exchange. Barter Your Way’s online and offline exchange and systems.

·         Barter Your Way Exchange Member Application. The application form(s) that a Member must complete to register to participate in Barter Your Way Exchange.

·         Codes. Any and all unique numbers (including PINs), passwords or codes that are selected by or assigned to the Member, Account, and /or Authorized Users for security purposes and which are required to access or enter into transaction on, in or through Barter Your Way Exchange.

·         Credit Line. The maximum number of Barter Dollars for which there can be a negative Account Balance outstanding at any time in the Account. 

·         Fees. Any amounts due to Barter Your Way from Members, payable in Barter Dollars, or other national currency or Dollar denomination, as applicable, in accordance with the terms and conditions of this Agreement, including but not limited to, late charges, registrations fees, administrative fees and Transaction Fees.

·         Member. Any Person that engages in one or more transactions through Barter Your Way Exchange, including, but not limited to, any Person (i) on whose behalf the Authorized Signatory has completed Barter Your Way Exchange Member Application and (ii) that has been approved by Barter Your Way to trade in Barter Your Way Exchange.

·         Person. A natural person, trust or business organization.

·         Settled. With respect to any sale or purchase of goods or services offered by a seller in Barter Your Way Exchange, the act of buyer or seller fully satisfying their contractual obligations pursuant to their terms of agreement between buyer and seller in such transaction.

·         Third Party. Any third party (other than a Member) found on, in or through Barter Your Way Exchange.

·         Trade Transactions. A purchase or sale of products or services from or to a member on or through Barter Your Way Exchange, made using Barter Dollars which is deemed to be completed after the relevant amount of Barter Dollars is transferred to the seller’s account in Barter Your Way Exchange in accordance with the terms provided herein. All Trade Transactions shall be performed as 50% cash and 50% trade. No other percentages or cash charges are allowed, excluding, but not limited to, taxes, gratuity, shipping and handling.

·         Transaction Fees. Cash fees charged by Barter Your Way to Member to complete Trade Transactions by Member.

 

ARTICLE XVII

 

17.1      Amendment. Barter Your Way may amend this Agreement at any time and will notify Member of any such amendment either in writing or by posting the amended terms on Barter Your Way Exchange site. Any such amendment will take effect fifteen (15) days after that date on which Member is so notified or the amendment is so posted. By using Barter Your Way Exchange after such period, Member acknowledges its acceptance of the amended terms.

 

17.2      No Agency. Barter Your Way, on the one hand, and the Member and its Authorized Users, on the other hand, are independent entities, operating at arms length. Neither Member nor any Authorized User shall have the power or authority to bind, or purport to bind, or obligate Barter Your Way in any manner or for any liability whatsoever. Neither the Member not any Person affiliated with the Member (including,, but not limited to, any Authorized User) is, or may be considered as, a distributor, agent or representative of Barter Your Way or any of our affiliates and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relations is intended or created by this Agreement.

 

17.3      Governing Law and Jurisdiction. This Agreement shall in all respects be subject to, and governed by, the laws of the Commonwealth of Kentucky. The parties to this agreement consent to the exclusive jurisdiction and venue of the courts of the Commonwealth of Kentucky located within Louisville, Kentucky, United States for any dispute arising from, relating to, or interpreting this Agreement, which names as a party or parties Barter Your Way, or any of its parent, subsidiaries, predecessors-in-interest, officers, employees, independent contractors, or agents.

17.4      Headings. The various headings in this Agreement are insert­ed for convenience only and are not to be used in interpreting the Agree­ment.

17.5      Waiver. If Barter Your Way allows the Member and/or Authorized User any latitude or extension of time, this is not and must not be understood as a novation or waiver of our rights in respect of this Agreement and it will also not be, or be the cause of, an estoppels against Barter Your Way.

17.6      Severability.  The invalidity or unenforceability of any pro­vision in the Agree­ment shall not in any way affect the validity or en­forceability of any other provision and this Agreement shall be construed in all respects as if such invalid or unen­forceable provi­sion had never been in the Agreement.

17.7      Assignment. Member shall not assign the Account, any Barter Your Way Exchange Codes issued to any Authorized User, this Agreement, or any interest, rights or obligations hereunder or thereunder, by operation of law or otherwise, without our prior written approval and any such attempted assignment shall be void. Barter Your Way shall have the right to freely assign this Agreement, and our rights and obligations hereunder, to any third party without requiring the consent of or notice to the Member or any Authorized User. Subject to the foregoing, this Agreement (inclusive of any documents it incorporates by reference) shall be binding upon and inure to the benefit of the parties hereto, their successors, and permitted assigns.

17.8      Notices. All notices, requests, demands, payments, consents and other communications hereunder shall be transmitted in writing and shall be deemed to have been duly given when hand delivered, upon delivery when sent by courier, overnight mail or other next day delivery service, twenty-four (24) hours after the same has been sent via electronic mail; or three (3) days after the same has been sent by registered or certified United States mail postage prepaid, return receipt requested, to Barter Your Way address on the most recent Account statement and to the Member’s address provided in its Account information, or at an address of which the other party has been notified in writing.

17.9      Entire Agreement. This Agreement, inclusive of any Barter Your Way Exchange Member Application or any other documents incorporate by reference herein, contains the complete and final statement of the understanding of the parties with respect to the subject matter of this Agreement. This Agreement supersedes any and all prior or contemporaneous negotiations, agreements or communications, whether written or oral, between the Member and Barter Your Way (or between the Member and any predecessor-in-interest to Barter Your Way) with respect to the subject matter of this Agreement.

17.11  Judgment Settlement.   In the event of a dispute between Barter Your Way and Member resulting in a judgment entered on behalf of the Member against Barter Your Way, Member agrees that Barter Your Way shall have the right to satisfy said judgment in Barter Your Way trade dollars

17.10    Indemnification. Member agrees to indemnify and hold Barter Your Way harmless from and against any and all claims, demands, lawsuits, damages, costs, fees, including, but not limited to, reasonable attorney’s fees, and expenses resulting from, arising out of, relating to or incurred in connection with:

·         Any breach of this Agreement by the Member or any Authorized User;

·         Any allegations that, if true would constitute a breach of the covenants made by the Member;

·         Any and all (including negligent and wrongful) actions taken by, or omissions of, the Member, any Authorized User of the Member, or any Person accessing Barter Your Way Exchange by using Member’s Barter Your Way Codes;

·         Any and all goods and/or services made available by the Member or any Authorized User of the Member through Barter Your Way Exchange, including by way of example and without limitation, claims arising from the design or manufacture of such goods or the provision, or failure to provide, customer support in connection with such goods or services;

·         Any Member information;

·         Any and all transactions, agreements, arrangements or disputes between the member or any Authorized user, on the one hand, and any other member, Authorized User or Third Party on the other hand, in connection with Barter Your Way Exchange;

·         Any actual or alleged infringement of any patent, copyright, trade secret, trademark, or other intellectual property right arising out of the use or sale by Member of goods or services purchased or received through Barter Your Way Exchange.