The following additional provisions (hereinafter referred to as "Terms & Conditions") form a part of and are incorporated by reference and made a part of the Trade Account Application and Agreement (Client Agreement") between Client and Alamo Barter Corporation. These Terms and Conditions are also posted on the ABC website, www.alamobarter.com
Any trade purchase or sale by Client constitutes acceptance of these Terms & Conditions as may from time to time be amended in accordance herewith.
1. Nature of the Parties
ABC is a trading company that also acts as a clearinghouse and third party record keeper of barter transactions among its clients, which are businesses that contract with ABC to organize and facilitate barter of their goods and services with other clients. "Client" is a business or individual that has contracted with ABC to exchange its goods and/or services with other Clients and wishes to subscribe to ABC record keeping and barter services.
2. Nature of Trade Dollars
A "trade" is a barter purchase or sale of goods and/or services whereby payment is made in trade dollars posted to Client’s account pursuant to these Terms and Conditions. A trade dollar is an accounting unit used to record the value of trades. Ownership of trade dollars denotes the right to receive goods or services available within the ABC trade network. Trade dollars may be used only in the manner and for the purpose set forth in these Terms and Conditions. They will not be considered legal tender, securities or commodities. They will not be redeemed for cash. ABC disclaims responsibility for the negotiability of trade dollars or for the availability of goods and services from any source.
3. Liability for Trade Dollars
Client acknowledges that trade dollars in the barter system (positive balances) are the liabilities of persons who have spent more than their earnings (negative balances); that there is a creditor/debtor relationship between such persons, and that trade transactions incur the normal business risks associated with any credit transaction. As a general rule, trade dollars are the liabilities of Client who owe the barter system, and not of ABC, which is solely liable for its own indebtedness. ABC is authorized to establish a bad debt reserve fund by charging all accounts on a regular basis an amount in trade dollars to be paid into such fund. Any positive balances abandoned or surrendered by former members in accordance with these Terms and Conditions may also be paid into the reserve fund.
4. Trade Dollar Loans
Client grants to ABC the right and power to make trade dollar loans to any Client on terms and conditions consistent with a client’s credit worthiness and ability to repay. The exercise of this power shall be at sole discretion of ABC management with regard to principal, interest, terms and conditions, lending policy and other particulars. Clients wishing to apply for a loan may be required to submit a loan application, financial statement, credit agreement, promissory note or equivalent collateral prior to approval. ABC is under no obligation to extend credit at any time. If a negative trade balance exists in the client’s account when account is canceled by ABC or Client as outlined in these Terms & Conditions, ABC will require that the Client pay the balance immediately in cash. All credit lines are personally guaranteed by the individual signing the Client Agreement as set forth in Section 36 hereof .
5. Brokerage Function
ABC serves in a brokerage capacity in organizing and facilitating trades among Clients. Responsibility for the conduct of a trade is exclusively that of the two Clients participating in the trade. The duty to inspect goods for quality and quantity rests upon the buyer. ABC will use its best efforts to broker the trade dollars of clients into goods and services, to accurately record trades, and to administer these Terms and Conditions in accordance with its terms. However, Clients acknowledge that the sole principals in any trades are the buying and selling Clients involved, that trades are entered into voluntarily, and ABC is not the guarantor of any trade or trade dollar Client has the obligation to determine whether the provider of any services possesses the competency and professionalism to adequately provide such service to the Client.
ABC is functioning in a brokerage capacity and Client does hereby indemnify and hold ABC harmless with respect to any claim, debt, or liability whatsoever, arising out of any trade exchange transaction where Client is a buyer or seller.
6. Solicitation of New Businesses
ABC shall use its best efforts to solicit new businesses having products or services to satisfy the needs of all Clients. ABC is not responsible if a Client cannot find specific products or services to buy from the other Clients.
7. Definition of Client in Good Standing
A Client who conducts trades in accordance with these Terms and Conditions is current in any monies owning to ABC, and has a valid Client account, is to be considered a "client in good standing." Only Clients in good standing are entitled to the services of ABC and to otherwise participate in trades with other Clients.
8. Referral Bonus
A referral bonus of seventy five ($75) barter dollars will be given to each Client who introduces and refers a new ABC Client. To qualify for the referral bonus, Clients must provide ABC with the following information about the potential Client: company name, owner’s name, location, and phone number. Referral bonus is paid to Client when the new Client’s Application and Agreement has been accepted and approved by an ABC Officer.
9. Use of Trade Certificates (debit cards, gift certificates, and scrip)
The following rules govern the use of Debit Cards, Gift Certificates, and Scrip. Once Trade Certificates are purchased, they cannot and will not be replaced if lost, stolen, or damaged. Trade Certificates should be used as soon as possible after they are purchased, and must be used before their expiration date. All tips, gratuities, and sales taxes must be paid in cash at the point of purchase by the buying client. ABC reserves the right to refuse to sell Trade Certificates to clients who have previously refused to pay the proper taxes and gratuities or have created other problems at restaurants or other selling establishments. ABC is not responsible if a business refuses to accept Trade Certificates and ABC will not make restitution for any cash charges that Client may incur. ABC will not extend expiration dates and/or buy back Trade Certificates that are expired. All disputes concerning the use of a Trade Certificates are between the Client and the business issuing the Trade Certificate, and ABC bears no liability in the event the issuing business refuses to honor the Trade Certificate or ceases to operate the business.
10. Tips and Gratuities
All tips and gratuities shall be paid in cash to the Selling Client at the time of purchase by the Buying Client.
11. Payment of Fees
Client agrees to pay to ABC all amounts due in cash and trade dollars as detailed in the ABC Statement of Fees. The Statement of Fees is published on the ABC Website and written copies are available upon request. ABC reserves the right to amend such fees by providing 30 days advance notice to Client prior to the effective date of any such amendment.
Client agrees to pay ABC the full amount of such fees within twenty (20) days of issuance of the monthly invoice; otherwise a $10.00 cash monthly late charge will be assessed and will be added to the statement of the account.
ABC may, at its option, require advance payment of Client transaction fees. All fees and charges, including initial retainer fees, transaction fees, maintenance fees, and other charges to Clients by ABC are in payment for services rendered in processing Client into the exchange system, operating the clearinghouse and brokerage functions, administering these Terms and Conditions, maintaining records and facilitating Client’s use of the exchange system.
In the event that Client is in arrears for any cash fees beyond thirty (30) days for the date due, ABC shall suspend Client’s right to usage of any positive trade credit balance in Client’s account, and Client grants to ABC the right to hold any such balance until Client brings its account current, by paying all amounts due to ABC.
Any account continuing in a delinquent status for three (3) consecutive months may be closed without further notice by ABC. Positive Trade dollars in the account will be forfeited. At any time within six (6) months of the date the account is closed, the Client may reestablish the account and reclaim the trade dollars by paying all outstanding amounts due ABC hereunder together with a $100.00 cash reactivation charge, and on the further condition that arrangement be made all future charges to be paid on auto-pay.
12. Basis for Fees
On all transactions engaged in by Client through ABC, or for which ABC referred Client to a potential trading partner, ABC reserves the right to collect the fees due ABC upon the full value of the transaction, regardless if the transaction is paid for by cash, cash/trade blend, credit card, check, direct trade, or through another barter company in which Client is a member.
13. Returned Checks
A fee of twenty five dollars ($25) will be charged on all returned checks.
14. Trade Procedure and Trade Policies
Depending upon the nature of the trade transaction, such as by way of example, gift certificates, advertising, or travel, there may be specific trade policies which apply to the transaction, Client is responsible for reviewing the aBC Website to determine if there are any applicable trade policies which may apply to the contemplated transaction.
Client must have a valid, current trade account and be in good standing in order to make a purchase. Client is solely responsible for all charges made on their ABC account by authorized persons. Authorization to use an account is issued only by written authorization from the individual who signed the Client Agreement, or such other business officer or member as may subsequently be duly authorized.
15. Overpricing
Clients will sell their goods and services at their prevailing retail prices for 100% trade credit. Selling Clients are not obligated to honor sale prices and may charge their prevailing retail prices. ABC reserves the right to inquire into complaints of overpricing. Violations may result in termination of Client’s account. Buying Client is responsible for reporting all incidents of overpricing to the ABC Office.
16. Trade Authorizations
A. Seller’s duties: To receive credit for transactions, seller must:
1. Obtain an authorization number from the ABC office on each transaction before releasing merchandise or performing a service. The buyer’s account will be debited for the amount of the purchase at that time. ABC is not responsible to honor authorizations granted due to any misrepresentation made by buyer or seller. ABC reserves the right to refuse to issue an authorization number approving transaction pending resolution of any questions or concerns it may have concerning the proposed transaction.
2. Obtain the buyer’s signature on an ABC transaction slip (or other approved proof-of-purchase document).
B. Buyer’s duties:
1. Buyer shall have 30 days after the transaction appears on buyers next ABC statement to reject the trade only under the following conditions:
a. Improper quantity was delivered.
b. The goods were not in the same condition as displayed in the sample or advertising.
c. The services were not as represented.
d. The merchandise was damaged or unusable.
2. In the event of a disputed purchase, the buyer shall notify both ABC and the seller within 30 days of the statement upon which the transaction is recorded. Upon receipt of said dispute, ABC may choose to transfer the funds to a pending account (Funds in Trust). The buyer will be debited for the trade and the trade will be transferred to the pending account. The seller will not be credited for the transaction. ABC shall hold the funds in the pending account subject to resolution by the parties of any dispute.
3. Neither party will be responsible to pay the brokerage fee as long as funds are held as pending by ABC.
17. Record Keeping and Errors
Client’s monthly statement will be considered accurate as printed unless ABC accounting department is notified of any discrepancies within thirty (30) days of issuance of each such statement. An audit of Client’s account to resolve any such discrepancy is subject to a twenty-five (25) trade dollar charge per hour, one (1) hour minimum, unless ABC has been found in error. All copies of statements requested within forty-five (45) days of their issue will be sent free of charge. Any request after forty-five (45) days of issuance will be subject to a ten (10) trade dollar charge per statement copy.
18. Laws and Regulations
Clients shall abide by applicable federal, state or local laws, or regulation appropriate to any trade and ABC shall not be responsible for any failure on the part of Client to comply. Client agrees to hold ABC harmless for any action ABC takes to comply with applicable laws or regulations pertaining to Client’s business or participation in the ABC network.
19. Taxes
Seller shall charge the appropriate sales, excise, and other taxes and collect and record these on the ABC invoice at the time of sale. Under no circumstances will ABC be responsible to pay any sales, excise, use or other tax on behalf of any Client. Client acknowledges that transactions involving trade dollars are generally treated as taxable events for federal, state, and local tax purposes. The declaration and reporting of all applicable local, state and federal taxes resulting from trade transactions rests solely with the Client. ABC is required by federal law to obtain the correct taxpayer identification number of Client (who is required by law to provide such number) and to report all trade sales of Client to IRS on Form 1099-B. Failure to provide the correct taxpayer identification number may result in the imposition of backup withholding of twenty (20) percent of the gross proceeds of each sale transaction, under federal law. Client agrees to hold ABC harmless for any actions ABC takes to comply with federal tax laws.
20. Name and Taxpayer Identification Number Changes
In the event that Client changes his or her legal name, company name, and/or Taxpayer Identification Number (TIN), applicant is required to inform ABC with ten (10) days. At that time, Client must complete a new Client Application and Agreement and Form W-9. ABC reserves the right at its sole discretion to suspend the trading privileges of any Client who has had a name or number change until ABC reveives the new signed Client Application and Agreement and Form W-9. Once the paperwork is received, all barter and cash debts and/or credits will be transferred into the new account.
21. Assignment of Account
A Client’s account is not assignable or transferable by Client without ABC’s express prior written consent in each such instance. Trade dollars may not be advertised for sale without ABC’s express prior written consent in each such instance. In the event of bankruptcy or insolvency of a Client where assets of the Company will be sold, ABC has the first right of refusal to bid on trade dollars to be liquidated.
22. Direct Trades
Direct trades between Clients to avoid service fees are prohibited, and if consummated are subject to standard cash transaction fees payable upon demand. Such trades may also result in immediate suspension or termination of the Clients involved.
23. Standby
A client can request that its account be placed on "standby" under the following conditions:
1. Client’s account must have a positive balance
2. Client must give written notice to ABC
3. Client must be in good standing
An account which has been placed on "standby" status has the right to spend accumulated trade dollars, but shall receive no additional business. "Standby" status (whether requested by Client or imposed by ABC) cancels contractual commitments by ABC regarding exclusivities or other applicable agreements.
24. Suspension of Trading Privileges
ABC reserves the right, at its sole discretion, to suspend the trading privileges of any Client who:
1. Engages in unfair business practices against ABC or any other Client;
2. Is in breach of this agreement or other terms of the Trading Rules and Regulations; or
3. Ceases to be a Client in good standing.
Client shall be given notice of such suspension. The trading privileges of the Client shall be reinstated immediately upon Client’s cure of the reasons for such suspension unless due to the nature thereof, ABC decides to terminate the Client for cause in accordance with the below section 27.
25. Additional Business Listings
Clients having more than one (1) business may be listed under an additional trade categories in the Alamo Barter Corporation Marketplace at no additional charge so long as only one account statement is required. Client having more than one (1) business that requires separate account statements may open separate accounts for each business at no additional charge. Client will be charged a monthly administrative fee for each business having a separate account.
26. Termination
Either party may terminate this Agreement upon ten (10) day written notice to the other party.
Immediately upon termination, with or without cause, all cash and trade dollar service fees outstanding become due and payable and:
1. If Client has a negative trade balance (purchases exceed sales), Client must balance the account with trade dollars within thirty (30) day period, immediately pay ABC any remaining negative balance in cash; or
2. If Client has a positive trade account balance (sales exceed purchases), Client may stay active and spend the balance until purchases equal sales by paying ABC in advance the cash service fees on the positive balance. Until trade dollars are spent, monthly maintenance fees will be charged to Client’s account.
3. Client has ninty (90) days to spend balance on the account or it may be forfeited.
27. Suspension/Termination for Cause
ABC may, without prior notice to Client, suspend Client’s participation in the ABC trading network or terminate this Agreement if it appears to ABC that Client’s financial circumstances, or Client’s conduct in connection with this Agreement or in connection with Client’s business practices is such that there is a reasonable potential for harm being caused to either the business interests of ABC, or that of its other Clients, or to the general public. The following are specifically designated as grounds for immediate suspension/termination but shall not be construed as an exhaustive listing of any such grounds:
a. The filing of any proceedings or petition by Client under Federal or State law seeking protection from its creditors or any assignment made by Client, whether formal or informal, for the benefit of Creditors;
b. The appointment of a Receiver or Trustee with respect to Client’s business affairs or the filing of any involuntary proceeding against Client by its creditors;
c. Client’s failure to cure any breach of this Agreement within the applicable time period allowed;
d. Client’s loss or suspension of any license held by it which is necessary for Client’s business operation;
e. ABC’s receipt of three (3) or more complaints within a twelve (12) month period which relate to Client’s business practices;
f. Client’s engaging in a direct trade exchange with any other Client, or charging cash for a transaction contrary to this agreement;
g. Client’s engaging in any unfair business practices towards ABC, or another Client, or the general public.
28. Amendment of Terms and Conditions
ABC reserves the right to from time to time amend these Terms and Conditions as it deems warranted to the conduct of its business and the trade network. Client shall receive a notice of any such amendment at least thirty (30) days prior to such effective date. A written copy of such amended Terms and Conditions can be obtained by Client through its account broker. Any trade transaction engaged in by Client subsequent to the effective date of any such amended shall constitute Client’s acceptance of such amended Terms and Conditions and shall be subject to the provisions thereof without exception.
29. Fee Changes
ABC reserves the right to change maintenance fees and transaction fees from time to time. Client shall be notified at least thirty (30) days in advance of the effective date of any such changes and such changes will be posted on the ABC website at least thirty (30) days prior to the effective date thereof.
30. Disclaimer of Liability
ABC makes no representations or warranties, either express or implied, and disclaims all liability as to the fitness, quality, delivery date, merchantability, prices or any term of the trade transaction or the competency of any service provider. Client does hereby indemnity and hold ABC harmless with respect to any claim, debt, or liability whatsoever, arising out of any transaction wherein Client is a buyer or seller. Client acknowledges that any trade transaction in which it participates is conducted on a voluntary basis.
31. Disputes
ABC is functioning in a brokerage capacity, and as a third party record keeper, and shall not be named as a party to any dispute between Clients.
32. Security Interest
Client grants ABC a secured interest in all trade dollars credited and to be credited to Client’s account for the amount of all unpaid cash fees and other payments due ABC. In the event of the insolvency or bankruptcy of Client, all cash fees shall be due and payable in full. Upon the filing of petitions under Chapter 7, 11, or 13 of the Bankruptcy Code or an Assignment for the Benefit of Creditors, no trade shall be allowed until all cash fees and other amounts due ABC have been paid in full, and future trades will be allowed only where the fees are fully paid in cash in advance of the trade. Should the Petition under Chapter 7 of the Bankruptcy Code be filed by or against Client, or should the plan filed pursuant to either Chapters 11 or or 13 not provide for the full payment of all cash fees due ABC, ABC shall have the option in lieu of filing as a creditor, of treating the trade dollar balance equal in value to the amount of cash fees owning and terminating the account; provided, however, that at such time as ABC does receive all of its cash in full, and, in the event of a discharge pursuant to Chapter 7 notice is received from the trustee that the trade dollars have been abandoned, ABC shall re-credit the trade dollars to Client’s account.
33. Advertising & Marketplace
Unless otherwise stipulated between the parties to this Agreement, Client authorizes ABC to notify, advertise, and to list in Marketplace the availability of Client’s products and services.
34. Use of ABC Website and Marketplace
Use of the ABC website and marketplace constitutes Client’s agreement to abide by the ABC Trading Policies and Procedures contained herein. ABC reserves the right in its sole discretion to restrict Gold Card holders and Clients that are not in Good Standing from viewing selected Clients in the ABC Marketplace or from use of the Website and Marketplace altogether. Use of the Website and ABC Marketplace are a privilege given at the discretion of ABC, and ABC reserves the right to refuse admission to the Website or the online ABC Marketplace for any reason whatsoever.
35. Proprietary Information: Confidentiality; Prohibition on Operating Competing Barter Exchange
During the term of this agreement, Client will have access to and become acquainted with ABC’s confidential and proprietary information (together "Proprietary Information"), including but not limited to information or plans concerning customers, customer relationships; personnel; sales, marketing and financial operations and methods; trade secrets, formulae, devices; secret inventions; processes; and other compilations of information, records, and specifications. The ABC website, and access to the website, is also Proprietary Information. Client will not grant access to the ABC website or disclose any of the Proprietary Information directly or indirectly, or use it in any way, either during the term of this Agreement or at any time thereafter, and specifically will not use such information to start, operate, or otherwise participate, directly or indirectly (except as a Client) in any barter entity that provides a similar service as ABC. Notwithstanding, Proprietary Information does not include information that is otherwise publicly known or available. Client hereby agrees that in the event of a breach of this provision, ABC shall incur liquidated damages in the amount of Fifty Thousand Dollars ($50,000.00) and such amount shall be immediately due and payable by Client to ABC.
36. Guaranty
If the client is a corporation, a LLC, or other business entity, the person executing the Client Agreement, to induce the granting of credit to the Client, and in consideration therefore, does hereby guarantee personally payment of all amounts owed to ABC and hereby waives any requirement on the part of ABC to proceed with its claim against the business entity, either first or concurrently, as a condition precedent to bringing any action against such individual on the basis of this guaranty. The Client and individual signing the Client Agreement hereby assume joint and separate responsibility for all purchases and fees as outlined in the Client Agreement and in these Terms and Conditions.
37. Commitments & Responsibilities
ABC is only responsible for commitments and representations made in writing by a duly authorized officer. Brokers, agents or employees of ABC have no right to bind ABC to any obligations or representation whatsoever without such written authorization in each instance.
38. Gift Certificates
Gift Certificates are from time to time issued by various businesses and made available through ABC to its Clients. In no event shall ABC be considered the issuer of any Gift Certificate. All disputes concerning the use of a gift certificate are between the Client and the business issuing the Gift Certificate, and ABC bears no liability in the event the issuing business refuses to honor the Gift Certificate or ceases to operate the business.
39. Time Limits for Account Abandonment
Client’s account will be considered abandoned if a) it has been more than two (2) years Client has made barter sales or purchases b) ABC is unable to contact Client at the most recently updated contact information furnished by Client. ABC may, at its sole discretion, close the abandoned account, placing any positive trade dollar balance in the Bad Debt Reserve Account.
40. Disputes Between Clients
Client hereby agrees that all disputes between Client and any other ABC client which in any way relate to participation in the ABC trading network shall be submitted in writing with supporting documentation to ABC for resolution. ABC shall have a period of 45 days to attempt to mediate a settlement of any such dispute, after which period Client is free to take whatever action it deems appropriate.
50. Waiver
ABC, in its sole discretion, may from time to time waive any provision of the Client Agreement or these Terms and Conditions for any Client as it deems warranted in its sole discretion. Any such waiver, to be effective, must be in writing and executed by an authorized officer of ABC. It is understood that any such waiver shall be strictly limited to the specific terms of the written waiver document. Except as provided for by the foregoing, any failure of ABC to insist upon strict compliance with any particular term or provision of the Client Agreement or these Terms and Conditions, or any delay or omission on the part of ABC to enforce any such term or provision, shall not constitute a waiver with respect to any such term or provision.
51. Notices To Client
All notices required or permitted to be sent to Client shall be sent by ABC by either first class mail to the Client’s current address of record or via electronic mail to the Client’s current e-mail address of record. Client is responsible for updating the Client’s mailing and e-mail addresses should any changes occur. All notices required or permitted to be sent to ABC shall be sent by Client by either first class mail to the attention of President, 10151 IH 35 North, San Antonio, TX 78233. All such notices shall be deemed effective, if sent by mail, three business days following the depositing of such notice, postage pre-paid, in the mail, or if by electronic mail, on the date of successful transmission.
52. Entire Agreements
The Client Agreement and these Terms and Conditions constitute the entire agreement between the Client and ABC and replace all prior agreements, if any, whether oral or written, between Client and ABC or any predecessor of ABC. Neither Client nor ABC relied upon any representation or promise which is not contained in either the Client Agreement or these Terms and Conditions.
53. Severability
In the event any term or provision of either the Client Agreement or these Terms and Conditions is for any reason held to be unenforceable or invalid by a court of competent jurisdiction, the remaining terms and provisions shall continue to be valid, enforceable and binding upon the parties.
54. Actions to Enforce Agreement
Except for any action commenced by ABC to collect any amount due ABC hereunder, all disputes between Client and ABC arising out of or in any manner relating to either the Client Agreement or these terms and Conditions shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of The American Arbitration Association. The parties agree that any such arbitration any such arbitration shall be commenced and heard exclusively in the San Antonio office of the American Arbitration Association and that any proceedings to confirm or enforce the arbitration ward shall be commenced in the District Court sitting in San Antonio, Bexar County, Texas. Notwithstanding the foregoing, the parties may mutually agree to mediation or other dispute resolution proceedings.
55. ABC Costs and Expenses
In the event ABC incurs any costs or expenses to collect any sum due ABC from Client, then ABC shall be reimbursed by client for any such costs or expenses, including reasonable attorneys’ fees. In the event ABC is the prevailing party in any other controversy or proceeding involving Client, then ABC shall be entitled to the recovery of its costs, expenses and reasonable attorneys’ fees in addition to such other remedies being sought therein.
56. Governing Law
This Agreement shall in all respects be construed under and governed by the laws of the State of Texas without giving regard to its conflicts of law principals.