This Merchant Agreement (“Agreement”) is entered into and effective as of {date}, between Shop the Area, LLC (“STA”), a Louisiana limited liabilitycompany represented herein by its duly authorized representative, Claire M. Aillet; and {nameOf} (“Merchant"), a Louisiana limited liability company represented herein by its duly authorized representative, Claire M. Aillet.
0 Services.
STA hereby agrees to allow Merchant access to STA’s online marketplace (“Marketplace”) and make available to Merchant certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for Merchant’s products (“Products”),including payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, scheduling of delivery, operational and other support services. (the “Service”).
1 Website, Application.
STA will make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Service (collectively, the “Sites”). The Sites will include STA’s proprietary technology through which Merchant may receive, accept and fulfill purchase orders (each an “Order”) from Customer for Merchant’s Products, which may be displayed through a link to a page that displays only the Merchant’s Products or with other merchants’ products in categories of products (collectively,the “Product Displays”). The Sites will also include STA’s proprietary technology that enables Customers to purchase Products from Merchant and request delivery services for said Products from Delivery People, who retrieve such Products from Merchant and deliver such Products to Customers.
2 Sale of Merchant Products.
Merchant may request access to sell and deliver Productsvia various services provided by STA: Marketplace Delivery and Non-Delivery, as follows:
0 Marketplace Delivery:
Merchant may sell Products through the Marketplace whereby Merchant’s Products are presented in the Sites to Customers who access and request on-demand delivery services within the Delivery Area provided by Delivery People as defined herein. The Customer will be charged a delivery fee of $10.00 per delivery. Delivery Service will be available only within the Delivery Area, which will be a 10-mile radius of the location from which the Merchant’s Product(s) is purchased. There will be no minimum purchase price requirement in order for the Customer to choose to have the Products delivered within the Delivery Area.
1 Non-Delivery: Merchant may sell Products through the Marketplace whereby Merchant’s Products are presented on the Sites to Customers for pick-up at Merchant’s Location (i.e.,without the use of a Delivery Person). For the avoidance of doubt, the provisions relating to Delivery People in the Terms will not apply to the sale of Products sold via the Marketplace for pick-up by the Customer.
3 Acceptance of Terms. This Agreement is subject to change from time to time. STA will notify Merchant of any material change. STA further reserves the right in its sole discretion to change, modify, add or remove portions from the Service. Merchant’s continued use of the Service will indicate its acceptance of any such revised terms and conditions and any changes to the Service.
4 Term; Termination; Suspension. The term of this Agreement will be for not less than eighteen (18) months and will continue thereafter until terminated by either party. After theinitial 18-month term, Merchant may terminate its use of any Service immediately on written notice to STA. Notwithstanding the foregoing, STA may terminate or suspend Merchant’s use of any Services if STA determines that (a) Merchant has materially breached the Agreement andfailed to cure the breach within seven (7) days of written notice from STA of the default, unlessMerchant’s breach exposes STA to liability toward a third party, in which case STA is entitled to reduce, or waive, the cure period at STA’s reasonable discretion. STA may suspend Merchant’s use of any Services if STA determines that Merchant’s account has been used, or STA controls identify that it may be used, for deceptive, fraudulent or illegal activity; or Merchant’s use of the Service has harmed, or STA controls identify that it may harm, other sellers, customers or STA’s legitimate interests. STA will promptly notify Merchant of any such suspension via email orsimilar means, including the reason for suspension. In the event of such suspension, Merchant will take all appropriate and commercially reasonable steps necessary to end the activity or harm identified by STA, and if Merchant fails for thirty (30) days to end the activity or harm or threat of harm that caused the suspension, STA will have the right to terminate the Agreement without further notice. Upon termination of this Agreement, all related rights and obligations under thisAgreement immediately terminate except that Merchant will remain responsible for (i)performing all of its obligations in connection with transactions entered into before termination,(ii) any liabilities that accrued before or as a result of termination, and (iii) its obligations under Sections 21, 25 and 26 of this Agreement, which will survive termination.
5 Activation, Installation, Maintenance and Processing Fees. Merchant will pay STA initial fee for the activation of Merchant’s account in the amount of the first month's membership. Merchant will pay an optional Onboarding fee for installation of software and hardware, initial set up of Merchant’s Product Displays, onboarding of Merchant into the STA system, and packaging for Product shipment (the “Onboarding Fee”). The optional Onboarding Fee will be $699.00.
6 Payments; Sale Proceeds. For each Order, Merchant will pay STA a fee equal to theRetail Price of all items Merchant sells via the Sites (excluding any Sales Tax collected onMerchant’s behalf) multiplied by a fifteen percent (15%) processing fee (the “Processing Fee”).The Processing Fee does not include any applicable taxes or other fees. STA will remit to Merchant the total Retail Price collected for all Products Merchant sells via the Sites (includingany Sales Tax and other fees collected on its behalf) less the Processing Fee, Delivery Fee andany refunds given to Customer (the “Product Revenue”). All Product Revenue that is duly owed to Merchant will be remitted within two (2) to three (3) business days after a sale. All fees willbe paid in U.S. dollars.
7 Hardware. Merchant will be responsible for providing an internet-connected computer or tablet that meets the minimum specifications for the loading and operation of the Sites.
8 Technical Support; Outages. STA will provide technical support for the STA Tablets weekdays from 8:00 A.M. to 5:00 P.M. CST through telephonic and email services. Software updates will be provided by STA at its sole discretion. As with any internet technology, STA cannot guarantee or warrant continuous connectivity between the STA Tablets and/or the Merchant’s computers to the Sites. STA agrees to correct any outage caused by STA within forty-eight (48) hours of receipt of notice from a Merchant of a service interruption caused bySTA or its system. STA is not responsible for service interruption caused by acts of God. STA is not responsible for any third-party software you may need to use the Services.
9 Packaging. STA will provide Merchants who choose to pay the optional Onboarding Fee with 250 standard-sized packaging boxes and/or envelopes for packaging of the Products. Each STA-provided package will be marked with the STA logo. Delivery will not be available for any Product that is not completely enclosed within a package approved by STA. For paid Merchant memberships, STA will replenish Merchant’s supply of packaging as needed. Merchant may, but is not required to, add its logo to STA-approved packaging, but Merchant’s logo may not cover any portion of the STA logo if using STA packaging.
10 In-store Set Up. Merchants will be eligible for 90-minute, in-store set up of the Service.
11 Marketing.
0 Decals. Each Merchant will receive an STA decal for each Merchant retail location participating in the Service, and the STA decal must be prominently and clearly displayed in each such location.
1 Social Media. Each Merchant will be included in STA’s agreed upon social media advertisements specified in the material they were provided upon sign-up. Merchants may choose to purchase additional advertising packages from STA at any time during duration of contract.
12 Transfer of Title. Transfer of title of Merchant’s products to the Customer will takeplace when Merchant’s products are delivered to the Customer. Merchant will insure against any loss of the products while in transit. If Delivery People cannot provide proof of delivery in the form of photograph at Customer's residence, with or without GPS location of photograph, route taken in transit from Merchant store to Customer home, or Customer signature, STA will provide store with repayment of Products. If theft of Products by Delivery People is determined, STA will require Merchant's full cooperation in pursuit of investigation and legal/criminal action against Delivery People. STA is not responsible for any packages that Merchants do not fulfill and prepare under the full view of surveillance cameras, showing which items are placed inside of the packaging in plain sight of the camera with no obstruction of the view(s).
13 Limitations of Service. Merchant may experience technical or other difficulties when using the Service and/or Sites. STA will attempt to notify Merchant of these interruptions in Service. STA will not be responsible for any technical or other difficulties or any resulting damages Merchant may incur. STA is not responsible for circumstances beyond its control such as telephone service interruption, telecommunications failure, internet viruses or natural disaster
14 Warranties. THERE IS NO WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY BY STA, EITHER EXPRESSED OR IMPLIED, CONCERNING THE SERVICE OR THE SITES. STA does not represent or warrant that the Sites, the materials and/or the other content will be secure, uninterrupted and/or error-free, that defects will be corrected, and/or that the Sites, the materials and/or other content on the Sites are free from viruses or other harmful components. STA does not warrant or make any representations regarding the use or the results of the use of the Sites, the materials and/or any other content on the sites in terms of their correctness, accuracy, reliability, timeliness, completeness, currentness, or otherwise, including without limitation, the quality and/or timing of a delivery ordered on the sites and/or the products delivered. You (and not STA) assume the entire cost of all necessary servicing, repair, or correction relating to your use of the Sites, the materials and/or other content on the Sites.
15 Waiver of Liability. Merchant hereby agrees and acknowledges that, except to the extent required by applicable law, STA is not responsible for the condition of any product as it leaves the care, custody and control of Merchant. STA will be responsible only for delivering the Order(s) and will be liable only for its gross negligence or willful misconduct in performing the Services. STA will not be liable for the acts or omissions of Merchant (including its employees, agents, contractors and representatives), Customers or Drivers.
16 Limitations on Liability. STA SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, OR SPECIAL OR CONSEQUENTIAL DAMAGES FOR LOST PROFITS, LOST SALES, COSTS OF DELAY, LOSS OF DATA OR RECORDS, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS (RESULTING FROM STA’S PERFORMANCE OF OR FAILURE TO PERFORM ANY PROVISION OR TERM OF THIS AGREEMENT OR IN CONNECTION WITH THE OPERATION OR USE OF THE SERVICE OR SITES, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE, AND EVEN IF STA KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. Further, and to the greatest extent allowed by applicable law, STA’s total liability arising out of or related to this Agreement( whether in contract, tort or otherwise) will not exceed the amount paid by Merchant for use of the Service or Sites within the six-month period prior to the event that gave rise to the liability.The claims covered by this Agreement include, but are not limited to, breach of any contract or covenant, express or implied; personal injury, physical or emotional injury; discrimination or harassment because of race, gender, color, pregnancy, religion, national origin, ancestry, age, disability, medical condition, marital status, sexual orientation, gender identity or any other characteristic protected by applicable law; retaliation; violation of any local, state, or federal constitution, statute, law, ordinance or regulation; fraud, misrepresentation, defamation, invasion of privacy, and any other tort claims; penalties; reimbursement of expenses; and any claim for trade secret violations or unlawful competition.
17 Refunds. All charges paid by you to STA are final and non-refundable unless otherwise determined by STA. Requests for a refund must be made within twenty-four (24) hours of placing the order. No refund will be issued for erroneous information the Customer enters or for Customer’s failure to provide information, answer questions, be available to receive delivery or make suitable arrangements for delivery.
18 Cancellations. Cancellation requests made within five (5) minutes after an Order is placed will be eligible for a refund to the customer. All cancellations made later than five (5)minutes after the Order is placed will be eligible for a refund at STA’s sole discretion.
19 Payment. The Customer will be required to pay for all Orders with a credit or debit card. All payments are processed electronically.
20 STA Intellectual Property. Merchant acknowledges the Service, Sites and other technologies provided by STA as part of the Service, whether registered or not, are the exclusive, proprietary property of STA and its licensors, and all right, title and interest in and to such property, including all associated intellectual property rights, remain the exclusive property of STA, and nothing herein will grant to Merchant any right, title or interest in the Service or Sites. Merchant may not remove or modify any proprietary marking or restrictive legends in the Service or the Sites. Merchant may not sell, resell, rent, or lease the Service or Sites or use them in a provider capacity. Merchant may not interfere with or disrupt the integrity or performance ofthe Service or the Sites, attempt to gain unauthorized access to the Service or the Sites, reverse engineer the Service or the Sites, or access or use the Service or Sites to build competitive services or products or copy any feature, function or graphic for competitive purposes. The Sites and the materials contained on the Sites may not be copied, republished, uploaded, posted, transmitted, distributed in any way, and/or modified without our express written permission.
21 License, Term. STA grants to Merchant a non-exclusive, non-transferable license during the term of this Agreement to access and utilize the Sites solely in connection with the Service. This Agreement will continue until terminated by either party, with or without cause. Upon termination, Merchant must uninstall the software and cease using the Sites. STA reserves the right to terminate this Agreement and Merchant’s license at any time in STA’s sole and unfettered discretion. STA also reserves the right to temporarily suspend the Service and/or removethe applicable Merchant data, if STA in good faith believes that, as part of using the Service, Merchant has violated a law or this Agreement.
22 Merchant and Customer Data. During and after the term of this Agreement, STA may use non-identifiable Merchant and Customer data for purposes of enhancing the Service, completing statistical analysis, providing and improving technical support and for other business purposes. Registration data and other personally identifiable information that the Sites may collect is subject to, and treated in accordance with, the terms of STA’s Privacy Policy.
23 Merchant Materials, Goods and Services. Merchant will be provided access to the Sites in order to display Merchant’s product content (including data, information, applications and other products, services and/or materials) or provide links to Merchant’s websites or services (collectively, the “Merchant’s Materials”). STA is not responsible for Merchant’s Materials, including their accuracy, completeness, timeliness, validity, legality, decency, quality, or anyother aspect thereof. STA does not assume and will not have any liability to Customers or anyother person or entity for any Merchant Materials. STA reserves the right to remove from the Sites any information, data or materials that is unlawful, abusive, malicious, harassing, tortiousdefamatory, vulgar, obscene, libelous, invasive of another's privacy rights or right of publicity, orotherwise objectionable; constitutes or promotes sexually explicit or pornographic material,violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation,or age; could give rise to any civil or criminal liability under any applicable laws, rules, orregulations; infringes upon, misappropriates, or otherwise violates any intellectual propertyrights or other rights of a third party; constitutes or encourages criminal conduct; contains false,misleading, fraudulent, or deceptive claims or content; or contains any virus, malware, spyware, or other harmful content or code.
4 Indemnity. To the greatest extent allowed by law, Merchant will indemnify and hold STA harmless from and against all third-party claims, damages, losses and expenses of any kind (including reasonable attorney’s fees, expert fees and costs) related to or arising out of Merchant’s use of the Service and/or Sites pursuant to this Agreement, regardless of who is at fault.
25 ARBITRATION. ANY CONTROVERSY OR CLAIM ARISING OUT OF ORRELATING TO THIS AGREEMENT, OR ANY BREACH OF IT, INCLUDING,WITHOUT LIMITATION, ANY CLAIM THAT THIS AGREEMENT, OR ANY PARTOF IT, IS INVALID, ILLEGAL OR OTHERWISE VOIDABLE OR VOID, WILL BESUBMITTED TO FINAL AND FINDING ARBITRATION BEFORE, AND INACCORDANCE WITH, THE COMMERCIAL RULES OF THE AMERICANARBITRATION ASSOCIATION, AND JUDGMENT UPON THE AWARD MAY BEENTERED IN ANY COURT HAVING JURISDICTION OF IT. EXCEPT ASOTHERWISE PROVIDED, THE SUBSTANTIVE LAW OF THE STATE OFLOUISIANA, EXCEPT ITS LAW RELATING TO CONFLICTS OF LAW, WILL BEAPPLIED IN SUCH ARBITRATION, AND THIS REQUIREMENT WILL BE DEEMEDJURISDICTIONAL. THIS ARBITRATION PROVISION WILL BE DEEMED SELF-EXECUTING, AND IF EITHER PARTY FAILS TO APPEAR AT ANY PROPERLYNOTICED ARBITRATION PROCEEDINGS, AN AWARD MAY BE ENTEREDAGAINST SUCH PARTY NOTWITHSTANDING SUCH FAILURE TO APPEAR.VENUE FOR SUCH ARBITRATION WILL BE IN THE PARISH OF BATON ROUGE,LOUISIANA. THE PARTIES HERETO SHALL BE ENTITLED TO SUCHDISCOVERY AS MAY BE PROVIDED IN THE FEDERAL RULES OF CIVILPROCEDURE IN PREPARATION FOR THE ARBITRATION HEARING.
26 Governing law and venue. This Agreement will be governed by and interpreted underthe laws of the State of Louisiana, without regard to conflicts of law principals for any disputebetween the parties or relating in any way to the subject matter of this Agreement. The partiesagree to jurisdiction and venue in East Baton Rouge Parish, Louisiana.
27 No Class Action. The parties agree that each may bring and pursue claims against theother only as permitted by this Agreement and only in their individual capacities. Neither partymay bring, pursue or act as a plaintiff or class member of any purported class or collectiveproceeding.
28 Miscellaneous.
0 Entire agreement; amendments. This Agreement contains the entire agreementbetween the parties with respect to the subject matter hereof and supersedes any prior agreementsbetween the parties, written or oral, with respect to such subject matter. This Agreement maynot be amended, modified or rescinded except by a written agreement executed by the parties.
1 Severability. The provisions of this Agreement are severable, and if any provision willbe held illegal, invalid or unenforceable, such holding will not affect the legality, validity, orenforceability of any other provision. Any such illegal, invalid or unenforceable provision willbe deemed stricken here from as if it had never been contained herein, but all other provisionswill continue in full force and effect.
2 No waiver. No failure by STA to exercise any power reserved to STA in thisAgreement, or to insist upon Merchant’s compliance with any obligation of this Agreement, andno custom or practice of the parties at variance with the terms of this Agreement, will constitutea waiver of Merchant's right to demand exact compliance with the terms of this Agreement atany time.
3 Assignment. Neither party may assign this agreement without written consent of theother party. Notwithstanding the foregoing, STA, at its sole discretion, has the right to assignthis agreement as part of a merger or sale of all or substantially all of its assets.
4 Successors. This Agreement will be binding upon and inure to the benefit of STA andMerchant and (except as stated in this Agreement otherwise) their respective successors, assigns,executors, heirs and personal representatives.
5 Definitions: “Delivery People” are independent contractors who have contracted withSTA to provide delivery services for the Merchants within the Delivery Area.