ON-LINE VENDOR PARTICIPATION AGREEMENT

THIS ON-LINE VENDOR PARTICIPATION AGREEMENT is made between Wisconsin Common Market (“WCM”) and you (“Vendor”). 

WCM and Vendor acknowledge that WCM provides an internet website (the “Website”) for Vendor to advertise and directly sell its product(s) (the “Product(s)”) to third parties visiting the Website (“Buyers”) subject to the terms and conditions in this Agreement. 

TERMS AND CONDITIONS

1.      DISCLAIMER OF AGENCY RELATIONSHIP.  Neither party to this Agreement is the legal representative, employee, joint venturer, or agent of the other.  Nor shall either party have the right or authority to assume, create, or incur any liability or any obligation against, or on behalf of the other party. 

2.      TITLE FROM VENDOR TO BUYER.  Vendor enters into a transactional relationship with Buyers of any Product(s) Vendor has listed for sale and title to the Product(s) passes directly from Vendor to Buyer.  Title does not pass through WCM.  At no time does WCM own any Product(s) presented by Vendor on the Website, nor is WCM liable for any claims regarding any products or arising out of the sale or use of any products. 

3.      VENDOR RESPONSIBILITIES.  Vendor agrees to the following specific obligations when utilizing WCM's services:

a.       Internet Sales.  Vendor shall directly sell from the WCM site. 

b.      Product Sales: Vendor shall place only high-quality, specialty foods, art and/or hand made items on the WCM. WCM reserves the right to refuse any items that are requested to be placed on the site, and reserves the right to immediately remove any items that do not meet quality standards.

c.       Vendor Education and Training.  Utilization of the Website requires certain technical skills.  Vendor may contact WCM staff to request WCM relevant e-commerce training.

d.      Legal Right.  Vendor shall list only merchandise (1) to which it has full legal right and title; (2) which is legal to sell in any jurisdictions that may access the Website; and, (3) for which, at the time of listing, no impediment to a fair bargain or sale to qualified Buyers exists.

e.      Accuracy.  Vendor may not post content or items in an inapplicable category or unauthorized areas of the Site; and, Vendor shall provide WCM with accurate information and shall maintain all products and account information on the Website with accuracy. 

f.        Release of Photograph or Likeness.  Vendor allows WCM to use Vendor’s name, or pictures in all forms and in all manners, including composite or distorted representations, for advertising, site promotion, trade, or any other lawful purpose.  Vendor waives any right to inspect or approve the finished version(s).

g.      Availability.  Vendor will maintain the product listing only so long as the product remains available.  Vendor must immediately withdraw a listed product if the product is no longer available for sale, or is defective in any way that is undisclosed in the listing. 

h.      Shipping Date.  Upon Buyer’s purchase order, Vendor agrees to ship the product to Buyer’s shipping address by the end of the following business day unless Vendor explicitly states other terms in the listing.  Vendor will be responsible for tracking its packages.

i.         Privacy.  Vendor will not sell or disclose in any way any of Buyer’s personal information, including Buyer’s identity.  Vendor acknowledges that it has no ownership interest in any Buyer information.  Vendor shall comply with all terms and conditions in the WCM Privacy Policy:  http://www.wisconsincommonmarket.com/privacy.cfm

j.        WCM Ownership.  Vendor acknowledges that WCM owns the WCM Website and all data within the Website.

k.       Shipping Insurance.  Vendor shall obtain, at Vendor’s sole expense, sufficient insurance to cover a Product’s cost in the event of loss, theft, or damage during transit.  Vendor agrees that such insurance shall be Vendor’s exclusive source of recovery in the event of the Product’s loss or theft.  Vendor is responsible for obtaining additional insurance coverage. 

l.         Reproduction and Licensing Rights.  Vendor agrees to license electronic reproductions of Vendor’s submitted materials and data to WCM for distribution on its Website. 

m.    Product Information.  Vendor will supply or upload, at minimum, the following Website content to WCM, including:

i.         product descriptions

ii.       product prices

iii.      return / replacement policy

iv.     shipping time frame

v.       shipping costs

vi.     digital photographs of the products.

WCM has the right, in its sole discretion, to reject product descriptions, digital photographs and / or sound or video files.  WCM may ask Vendor to resubmit improved and/or revised information or photographs. 

n.      Vendor Warranties.  Vendor shall honor all stated or implied warranties on products listed.  Vendor also represents and warrants to WCM that:

i.         The products were sold by a vendor that has gross sales of under $1,000,000.

ii.       The products do not infringe upon any patent, copyright, trade secret, or other proprietary rights of others;

iii.      Vendor has full power and authority to sign contracts and grant the rights granted within this Agreement to WCM;

iv.     Vendor has not granted any other right in the products to any third party that conflicts with the right granted to WCM in this Agreement;

v.       Vendor will not intentionally deliver to WCM or the Website information that contains malicious code anomalies, time bombs, viruses, trapdoors, worms, Trojan horses, Easter eggs, or any other malicious code or computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or be used to access, alter, delete, damage or disable the Website; and,

vi.     The product shall accurately conform in all respects to their representations in the Website product listings, descriptions and depictions Vendor has posted on WCM’s Website.

o.      Transferability.  Membership on the WCM site is not transferable to another individual or business entity.

4.      WCM RIGHTS AND RESPONSIBILITIES.  Vendor acknowledges and agrees to the following WCM rights and responsibilities:

a.       Equipment.  WCM shall maintain the server and provide for hosting of the Website.

b.      Changes to this Agreement.  WCM reserves the right to make, from time to time, changes to this Agreement in WCM’s sole discretion, upon thirty days notice to Vendor. 

c.       Changes to Vendor site categories:  WCM reserves the right to make changes to Vendor products listed in an inappropriate sales category.

d.      Changes to Vendor placement: WCM reserves the right to assign vendor to new categories or areas as site modifications may require.    

5.      MONTHLY PARTICIPATION FEES.  WCM requires Vendors to pay a monthly site fee.

a.       WCM reserves the right at any time to change the fees for posting products on the Website.  If WCM chooses to exercise this right, WCM will provide a notice thirty days before the fee change is to take effect.

b.      Unless otherwise stated, all fees are due in U.S. dollars.

c.       Vendor authorizes WCM to make automated monthly charges to the Vendor’s PayPal account.

6.      PAYPAL.  To conduct business on the Website, Vendor must have a PayPal account, which will enable Vendor to conduct financial transactions through the Website.  WCM will in no way be liable or responsible for Vendor’s PayPal account and will not be liable for payment of any PayPal fees that Vendor may incur.

7.      OBJECTIONABLE MATERIAL AND EXCLUDED ITEMS.  Vendor agrees that WCM shall have the right to remove, or direct Vendor to remove, any information, statements or other material which WCM, in its sole discretion, determines offensive, in poor taste, or otherwise objectionable.  Vendor agrees that WCM shall have the sole right to determine whether Vendor may list Products on the site.  Vendor also agrees that WCM may reject or withdraw any Products.  After the receipt of a Vendor’s application, WCM will notify each Vendor within ten (10) business days if WCM, in its sole discretion, will allow Vendor to post the Product on the Website.

8.      TERM AND TERMINATION.  This Agreement shall remain in full force until terminated.  Either WCM or Vendor may terminate this Agreement without cause by sending written notice to the other party 30 days prior to the month in which the party plans to withdraw.  WCM may immediately terminate this agreement without notice, remove Vendor’s item listings, and refuse to provide services to Vendor if (1) Vendor breaches any part of this Agreement, (2) WCM is unable to verify or authenticate any information Vendor provides to WCM or (3) WCM believes that Vendor’s actions may cause financial loss or legal liability for Vendor, Buyers, or WCM.  Vendor shall honor all orders placed up to the moment of termination according to the terms of this Agreement. 

9.      PRODUCTS AND PURCHASE PRICES.  The Website will list a variety of Products and the respective product descriptions, functionalities, prices, discounts, terms of payments, etc., as prepared by Vendor.  The Website will also describe how to order products from Vendor.  Vendor may prepare and install additional contents for the Website at WCM's sole discretion. 

10.  TAXES.  WCM will not be liable for any taxes, including, but not limited to, sales taxes, other government levies, or fees to be paid in connection with Buyer purchases.  Vendor takes full responsibility to remit all taxes of any kind associated with the Products to the appropriate authorities in the applicable business jurisdiction.  Vendor shall notify the Buyer of all tax obligations and the conditions of such obligations in the body of the products listing.  WCM is not liable for the collection of any taxes, such collection duties being the responsibility of Vendor. 

11.  BREACH.  Upon Vendor’s breach of this agreement and without limiting other remedies, WCM may immediately remove Vendor’s item listings, and refuse to provide services to Vendor.

12.  WARRANTY DISCLAIMER.  WCM PROVIDES ITS WEBSITE AND SERVICES “AS IS” AND WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTY.  WCM SPECIFICIALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  WCM DOES NOT WARRANT OR GUARANTEE THE ACCURACY OF BUYER INFORMATION, TIMELINESS OF BUYER INFORMATION, OR NONINFRINGEMENT OF ANY THIRD PARTY’S INTELLECUTAL PROPERTY RIGHTS.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WCM DISCLAIMS ANY WARRANTY REGARDING THE PROFITABLITY OF THE WEBSITE OR SALES THROUGH THE WEBSITE.  Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.  This warranty gives you specific legal rights and you may have other legal rights that vary from state to state.

13.  LIMITATION OF LIABILITY.  UNDER NO CIRCUMSTANES SHALL WCM OR WCM’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH WCM’S SITE, SERVICES, OR THIS AGREEMENT HOWEVER ARISING INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, THEFT, OR MISREPRESENTATION.  WCM’S LIABILITY TO VENDOR OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO GREATER OF:

a.       THE AMOUNT OF FEES VENDOR PAID TO WCM IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR

b.      $100.00.

c.       SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

14.  INDEMNITY.  Vendor agrees that if Vendor breaches any of its obligations arising under this Agreement, Vendor will defend, indemnify, save and hold harmless WCM and the officers, directors, agents and employees of WCM from any and all claims, demands, liabilities, costs or expenses, including reasonable lawyer fees.  Without limiting the generality of the forgoing, Vendor agrees to defend, indemnify, save, and hold harmless WCM against liabilities arising out of the following:

a.       Any injury caused by Vendor to WCM’s Website;

b.      Any defamatory, illegal, allegedly defamatory, or allegedly illegal material placed by Vendor on the Website;

c.       Any products or materials supplied by Vendor that infringe or allegedly infringe a third party’s proprietary or intellectual property rights;

d.      Any defective products sold via the Website, including any catastrophic product failure;

e.      Any acts of negligence, gross negligence, willful misconduct, fraud, theft, or misrepresentation by Vendor; and

f.        Any other liabilities resulting from breach of this Agreement by Vendor. 

g.      WCM agrees to promptly notify Vendor of any indemnifiable claim and cooperate fully with Vendor at Vendor's expense in defending or settling such claim.  WCM reserves the right, at Vendor's own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Vendor. 

15.  GENERAL PROVISIONS. 

a.       Limitation on Claims.  Any claim arising out of or relating to this Agreement must be brought no later than one year after it has accrued. 

b.      Complete Agreement.  This Agreement constitutes the sole and entire Agreement between the parties.  This Agreement supersedes all prior understandings, agreements, representations, proposals, negotiations, conversations, past dealing, industry custom, or any other documentation relating to the subject matter of this Agreement.

c.       Modifications.  Modifications and amendments to this Agreement, including any exhibit or attachment hereto, shall be enforceable only if in writing and signed by authorized representatives of both parties, unless otherwise specified in this Agreement.

d.      Applicable Law.  The laws of the State of Wisconsin will govern this Agreement.

e.      Notices.  All notices and other communications given in connection with this Agreement     shall be in writing and shall be deemed given as follows:

i.         When delivered personally to the recipient’s address as appearing in the signature block to this Agreement;

ii.       Three days after being deposited in the United States mail, postage prepaid to the recipient's address as appearing in the signature block to this Agreement; or

iii.      When sent by fax or e-mail to the fax number or e-mail address as appearing in the signature block to this Agreement.  Notice is effective upon receipt if the sender promptly sends a duplicate copy of the notice by first-class or certified mail or the recipient delivers a written confirmation of receipt.

Any party may change its postal address, fax number or e-mail address appearing in the signature block to this Agreement by giving notice of the change in accordance with this paragraph.

f.        Waiver.  The failure of either party to enforce its rights under this Agreement at any time for any period is not a waiver of such rights.  This Agreement is controlling over additional or different terms of any purchase order, confirmation, invoice, or similar document, even if accepted in writing by both parties, and that waivers and amendments shall be effective only if made by non-pre-printed documents clearly understood by both parties to be an amendment or waiver.

g.   Enforceability.  If any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited to the minimum extent required and the remainder of this Agreement shall remain in full force and effect.