SERVICE PROVIDER AGREEMENT
This agreement ("Agreement") is a contract between Meriseat.com, Inc. ("Meriseat.com") and you (the individual or entity, "you" or "Provider Firm") who registers as a Provider Firm on Meriseat.com.com or any related website ("Site"). This Agreement is effective when you click the "I Agree" checkbox on the Site. This Agreement incorporates by reference Appendix #1 (Additional Terms and Conditions) attached hereto and this Agreement together with the Terms of Service (collectively, the "Terms"), governs your membership on and use of the Site, the Services (as defined below) provided by Meriseat.com and the transactions conducted through the Site (collectively, your "Membership"). Capitalized terms used herein, but not defined herein, will have the meaning set forth in the other Terms. In consideration of the each of our obligations below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, we each agree as follows:
- 1. Meriseat.com Membership. Meriseat.com.com is a venue (together with the othr services we provide, collectively the "Service"), for you and other service provider firms (each a "Provider Firm" or "Company") to offer the services of their service professionals (each a "Provider" or "Pro") to individuals and/or entities who wish to buy services ("Buyers") and for Buyers to route requests for services ("Service Orders"), to Providers of their choosing. You and other Provider Firms and Buyers are together referred to as "Members". Your Membership provides your firm with the opportunity to market your Providers' (as defined below), services to Buyers who create a Service Order on the Site. Meriseat.com's Site allows you to monitor Service Orders, communicate with Buyers, accept Service Orders on behalf of your Providers and counter offer a Service Order (via the "Conditional Acceptance" functionality) through a variety of technologies. Your Membership also provides you with the ability to receive funds in a virtual account (your "Meriseat.com Wallet"); subject to the terms of the Payment System (see link below). As part of the Services, Meriseat.com may offer you additional products and/or services from time to time.
- 2. Click The "I Agree" Checkbox. You must register each individual who may accept Service Orders and otherwise communicate or your behalf (each a "Provider Agent"); if you identify a Provider Agent as being one of your service professionals (each a "Provider"), you authorize such Provider to perform service under Service Order accepted by you. You will: (A) create a separate individual profile for each Provider Agent, (B) be responsible for all acts or omissions of Provider Agents registered under your account, (C) accept each Service Order for a specific Provider and will not substitute Providers without the Buyer's prior consent, and (D) agree on behalf of, and will require each Provider Agent to agree, to the Terms as if such Provider Agent were you under these Terms.
By accepting the Terms and completing the registration process, you are simultaneously (i) registering as a Provider Firm and as a Provider; and (ii) representing, warranting and covenanting that you and each Provider registered by you/your firm can legally enter into these Terms and that you have the right to register your Providers. If you do not accept these Terms, you and your Providers are not authorized to use the Site and/or register for a Provider Firm Membership. If you have any questions about these Terms, please contact Meriseat.com at info@Meriseat.com.com. All references to "you" in these Terms will also refer to your Provider Agents and other Personnel (as defined below).
- 3. Service Order Process. As a Provider Firm, you elect which of your Providers to make available on the Site and which of your Personnel are authorized to accept Service Orders and otherwise communicate on your behalf. Buyers have the option of posting Service Order(s) on the Site on a "Name Your Price" or a "Bid" basis. Buyers select the individual Providers to whom their Service Order(s) are offered.
- A. "Name Your Price" Posted Service Orders By posting a Service Order using the "Name Your Price" option on the Site, each Buyer agrees such Service Order(s) are a binding offer (that will remain open as provided on the Site) and that may be accepted by any of the Provider Firms to whom such offer is sent on the Site. Further, you and each Buyer agree that, the first Provider Firm, as determined by Meriseat.com, in its sole discretion, to accept a Service Order, will be awarded such Service Order. If you are the first to accept a Service Order, as determined by Meriseat.com, a contract will exist between you and the Buyer for such Service Order. If you conditionally accept a Service Order (through the Site), then you will be deemed to have counter-offered such Service Order, and a contract will be deemed to be made, if you or such Buyer accepts the others' last counter-offer for such Service Order. If another Provider Firm accepts the Buyer's original Service Order prior to the Buyer accepting your counter-offer (a/k/a conditional acceptance), then the Service Order will be awarded to that other Provider Firm and the counter-offer process will be terminated. If you send a counter-offer, your prior counter-offer will be deemed automatically revoked if it has not already been accepted by the Buyer (as determined by Meriseat.com in its sole discretion). .
- B. Bid Posted Service Orders. For Service Orders posted using the "bid" option on the Site you agree that: (I) any bids posted on the Site by you are a binding offer by you that may be accepted by any of the Buyer to whom your offer is sent on the Site and that such offer will remain open as provided for on the Site, (II) when a Buyer accepts your bid (a/k/a your offer) by clicking "Accept Bid" (or similar) on the Site, a contract will exist between you and such Buyer, (II) you and the Buyer may comment upon an open Service Order and Meriseat.com may share such comments with the Buyer and the other Provider Firms to whom such Service Order was routed; and (III) you may revoke, modify or submit new bids at any time, as provided for on the Site, prior to acceptance by a Buyer. If you send a new bid your prior bid will be deemed automatically revoked if it has not already been accepted by the Buyer (as determined by Meriseat.com in its sole discretion).
- C. Communications and User Content. You may send information to a Buyer who has sent your Providers a Service Order (and such Buyer may send you information, each such communication a "SO Communication"), through tools on the Site (for example, through the Site's communication monitor functionality, via chat, or other means). Information posted by you or by your Personnel on or through the Site, including in your bids and counter-offers (for example, job descriptions, pictures, documents, etc.) and in other SO Communications constitutes "User Content" and per the Terms Meriseat.com is free to use such User Content, without restriction or payment of any kind to you. You must use the Site to communicate changes in scope of the Service Orders you are awarded, changes in appointment dates, and changes in price and terms. You should also communicate such changes directly to the Buyer. The Buyer who issues the Service Order is the person or entity that retained you and you should clearly communicate with him/her the same as you would with any customer of yours. You may not tell the Buyer (or any other person) that you work for Meriseat.com, you are "from Meriseat.com" or otherwise indicate that you have any relationship with Meriseat.com (other that as a Provider Firm listed on the Site).
You are responsible for all SO Communications by your Personnel (e.g., questions, comments, bids, counter-offers, etc.), and all SO Communications must be made in an appropriate, business like manner in accordance with these Terms (including restrictions on obscenities or other offense materials). All SO Communications must be directly related to the underlying Service Order. It is a violation of these Terms for any Member (or their Personnel) to disparage any other Member, or their products or services in any SO Communication. SO Communications which are sent prior to the acceptance of the Service Order (or bid or counter-offer), as determined by Meriseat.com in it sole judgment, will be sent to the Buyer who issued the Service Order and all Provider Firms who received the original Service Order. Once the Service Order (or final bid or counter-offer) has been accepted, SO Communications will only be sent to the issuing Buyer and the Provider Firm awarded such Service Order; provided that Meriseat.com reserves the right to monitor all SO Communications (but Meriseat.com is under no obligation to so monitor). You are responsible for all communications (e.g., Service Orders, SO Communications, etc.) posted on the Site under your or your Personnel's User Ids, regardless of whether you authorized such communications.
- D. Your Contract with the Buyer. If you are awarded a Service Order, the contract between you and the issuing Buyer consists of the Service Order, any SO Communications sent by the parties (unless otherwise specified by them), including, if applicable, the counter-offer or bid that was accepted as provided above.
- E. Other Service Order Terms. The Buyer retains the right to withdraw or modify a Service Order at any time, as provided for on the Site, and subject to these Terms. All modifications to a Service Order must be processed through the Site. Except in those instances where Meriseat.com has elected, in its sole discretion to post, accept or bid on a Service Order as a Buyer or a Provider Firm: (I) Meriseat.com does not control any part of the Service Order(s) or the contract between you and the Buyer; (II) Meriseat.com does not set or endorse: (1) the price, contract terms, quality, conformance or legality of the Service Orders advertised; or (2) the ability of Buyers to offer Service Orders on an independent contractor, employment or any other type of working relationship; and (III) Meriseat.com does not control whether any Buyer will pay the fees they agree to pay, (IV) Meriseat.com may make suggestions about how to alter your bid or counteroffer to increase the chances that it will be accepted; if you accept such suggestions you do so at your risk, and (V) Service Live is not responsible for any Service Order and/or contract, or the result of any such Service Order and/or contract made between you and the Buyer.
- F. Your Obligations to Meriseat.com. If you post a bid, counter-offer or you accept a Service Order, you agree (for Meriseat.com's benefit) that you: (I) accept the Buyer's terms contained in the Service Order (as modified by Buyer and you through the Site), (II) will not charge the Buyer more than the maximum amount (the "Spend Limit") set forth in the Service Order, (III) are (by such acceptance, bid or counter-offer) directing Meriseat.com to divulge your and your Personnel's contact information to the Buyer who posted the Service Order, (IV) will evaluate the location and site where the Service Order will be performed (the "Service Location"), verify that the services under the Service Order can be performed in accordance with its terms (including the payment terms and the timeline for completion of the Service Order as set forth in the Service Order), and obtain all necessary materials and equipment to perform as specified in the Service Order; (V) will perform the Services in a neat, professional, good and workmanlike manner strictly in accordance with the Service Order and all specifications therein; (VI) will also perform the Services in accordance with all applicable: established trade practices, manufacturer specifications, laws, rules, regulations, ordinances or other lawful requirements, as subsequently revised, (VII) will comply with all safety requirements promulgated by the Buyer; (VIII) will not provide any services at any location unless a Buyer's representative (who must be 18 years or older) is present at all times; (IX) will, at your sole cost and expense, repair any and all damage caused by you or your Personnel; (X) remove from the Service Location all of your materials and/or equipment and all debris and other garbage arising from performance of the Service Order (unless otherwise agreed in the Service Order); (XI) will provide Meriseat.com with a complete list of all employees, material suppliers and laborers to be utilized on any Service Order as requested by Meriseat.com from time to time during the Term of this Agreement, as such Term may be extended, (XII) will require your Providers to provide reliable transportation to the Service location, (XIII) will not circumvent usage of the Site by providing any services or products not specified in a Service Order (as modified from time to time), issued through the Site, and (XIV) will not claim that Meriseat.com is a party to any Service Order between you and a Buyer (unless Meriseat.com elects, in its sole discretion, to post a Service Order on is own behalf). In the event you fail to timely complete a Service Order in accordance with the requirements set forth in the Terms, then you will be responsible for all costs and expenses incurred by Meriseat.com in connection with your failure. The terms of this Section 3.F will not be deemed to be part of the contract between you and the Buyer unless such terms are set forth in the applicable Service Order between you and the Buyer.
- G. Service Order Completion Verification. Once you have completed a Service Order in accordance with its terms, you must complete a Service Order completion verification form via the Site (as posted on the Site from time to time), notifying the Buyer and Meriseat.com that your firm has completed the Service Order (Buyers generally will not pay you until you complete this step). Once you have completed such form, the Buyer needs to click the "Approve To Pay" button on the Site to transfer the Service Order Fee to you (net of the Meriseat.com Transaction Fee described below).
- H. Service Order Cancellation. A Buyer may cancel a Service Order, at any time, subject to any applicable cancellation fees (as set forth on the Site from time to time). You may release (cancel) a Service Order without monetary penalty, however Meriseat.com may publish release percentages in your public profile and such actions may affect your ratings.
- I. Transaction Fees. You agrees to pay to Meriseat.com a transaction fee for each Service Order completed (the "Transaction Fee"). The "Transaction Fee" will equal ten percent (10%) of the fees owed to you by the Buyer for completed Service Orders. You authorize the deduction of such Transaction Fee from amounts to be paid to you. Meriseat.com reserves the right to change the amount of the Transaction Fee from time to time and the amount of the Transaction Fee applicable to any Service Order will be reflected in the fees computed and displayed on the Site.
- J. Venue. You agree that Meriseat.com is simply acting as a marketplace venue for Buyers and Provider Firms. Except for Service Orders posted under Meriseat.com' name, Meriseat.com is under no obligation to pay for services you perform in connection with any Service Order. If Meriseat.com voluntarily undertakes to pay you, you agree to pay to Meriseat.com any compensation you receive from the Buyer and you agree to waiver all of your rights and claims against such Buyer. Meriseat.com is not responsible for any wage withholdings regarding your Personnel nor is Meriseat.com responsible for the determination of whether any sales and use taxes apply to any Service Order transactions.
- K. Meriseat.com Verified. From time to time, Meriseat.com may, but is not obligated to, review documents provided by a Member (e.g. insurance certificates, training certifications, etc.), and if Meriseat.com, in its sole judgment, is satisfied that such document appears authentic, mark such document as "Meriseat.com Verified." You acknowledge that Meriseat.com does not guaranty the authenticity or accuracy of such document or that such document is enforce, or that it was properly obtained by the Member posting it. You agree that you will not rely upon a document's "Meriseat.com Verified" status and that Meriseat.com will have no liability to you in connection with such documents (including Meriseat.com's marking a document as "Meriseat.com Verified"). You must determine for yourself what, if any, reliance you choose to place on such documents.
- L. Employees of Sears Holdings Companies. Employees of Meriseat.com and its affiliates (e.g., Sears, Roebuck and Co. and Kmart Corporation), are not allowed to perform Service Orders issued on the Site by Meriseat.com or its affiliates. Any employee of Meriseat.com or its affiliates who accepts (or is assigned) a Service Order issued by Meriseat.com or its affiliates must promptly release such Service Order on the Site.
- 4. Payments and Disputes.
- A. Payments. Unless otherwise approved by Meriseat.com in advance and in writing, all payments related to Service Orders must be made through the Meriseat.com authorized payment system ("Payment System"). Use of the Payment System is subject to the following separate terms and conditions. Meriseat.com has no obligation to pay you, but may do so on behalf of its affiliates and certain commercial Buyers for whom Meriseat.com has separately agreed in writing to provide such Service. You authorize Meriseat.com to deduct from funds due you from the Payment System any amounts you owe Meriseat.com.
- B. Disputes. No payment will be made to you if the Buyer does not click the "Approve to Pay" button. The Buyer may elect to dispute all or a portion of the agreed upon charges under a Service Order. Meriseat.com does not control such decisions by Buyer and Meriseat.com can not compel payment by the Buyer. Meriseat.com may provide limited assistance in resolving disputes between Buyers and Providers Firms when both parties agree to participate in Meriseat.com's voluntary dispute resolution assistance process and when final payment for services has not been issued. By participating in such process: (I) you authorized Meriseat.com to disclose to the other party all information that Meriseat.com has regards to the dispute (including information provided by you), (II) you waive any claims against Meriseat.com or its representatives (including members of the dispute resolution committee) arising in connection with your use of the dispute resolution process (including any claims related to any recommended resolutions of your dispute) and your further agree to indemnify and hold harmless Meriseat.com and its representatives from such claims. If you are unable to resolve a dispute with a Buyer regarding services you have performed, you may attempt to enforce any rights you have for payment directly against the Buyer (subject to the restrictions set forth in this Agreement).
- 5. Rating System. The Site includes a proprietary rating system for Buyers and Providers and Provider Firms which allows you to rate, on a variety of factors, each Buyer. All ratings submitted by Members will be deemed User Content. In addition, Meriseat.com may: (A) collect information on the Buyer and their Personnel's use of the Site, (B) collect information about you (and your Personnel's) use of the Site (including number of Service Orders accepted, number of Service Orders cancelled/rejected, etc.), and then (C) combine such information into a rating for the Buyer, you and/or separate ratings for the each Provider who has a profile on the Site, and (D) display such information to other Members and/or other users of the Site. Meriseat.com reserves the right to reject certain ratings, but Meriseat.com is not responsible for the User Content of Member ratings. Each Member is responsible for ratings posted on its behalf and must comply with the Terms when making such ratings.
- 6. Criminal Background Checks. Meriseat.com requires that each Provider pass, from time to time, a background check, as required by Meriseat.com, in its sole discretion. You acknowledge that such checks will be performed by a third party and that Meriseat.com will have no liability for such background checks, regardless of whether Meriseat.com selects the background check provider and/or pays for the background checks. Further, you acknowledge that every background check process has limitations and that you agree that Meriseat.com will have no liability for excluding you from the Site based upon the results of a background check (even if such results are incorrect).
- 7. Default. In the event that you (or any of your Personnel) breach of any of these Terms, Meriseat.com has the right to immediately suspend and/or terminate your Membership for cause. Such breaches include:
- A. Any breach of your obligations hereunder;
- B. Any failure by you to commence or diligently pursue the completion of a Service Order accepted by you in accordance this Agreement;
- C. If your submit any false information to the Site;
- D. If you become insolvent or file for bankruptcy;
- E. If you assign these Terms or trans¬fer control of your business;
- F. If you offer any Buyer any products or services outside of the Site;
- G. If your actions are deemed by Meriseat.com to interfere with or have adverse effect on Meriseat.com, the Site or its Members;
- H. If you are convicted by a court of, or plead no contest to, a felony, or other crime or offense;
- I. If you violate Section 8 (Confidential Information) of Appendix #1.
- J. If you fail to maintain in force any required insurance coverages or licenses; or
- K. If you violate any of the other Terms.
Additional Terms and Conditions
- 1. Relationship and Obligations of Parties.
- A. Neither you nor any Buyer will be considered an employee, agent, partner or joint venturer of Meriseat.com and Meriseat.com will not be considered the employer, agent, partner or joint venturer of you, your Personnel or any of Buyer. Meriseat.com is not involved in your hiring, firing, discipline or employment or other decisions. If an arbitrator, mediator or a court determines, notwithstanding this provision, that a Buyer (or its Personnel) are agents of Meriseat.com, then your release, waivers and indemnities and other obligations under Section 4 below will apply to the Buyer (and its Personnel). Meriseat.com and its affiliates may participate in the venue as Buyers and Provider Firms for Service Orders they elect, in their sole discretion, to post or accept or bid upon.
- B. You agree that, except in those instances where Meriseat.com has posted a Service Order in its own name, Meriseat.com: (I) is not in any way be involved in the terms and conditions of your contracting arrangement with any Buyer and that any services you provide pursuant to a Service Order are provided by and under separate agreement between you and such Buyer, (II) Meriseat.com is not responsible for and can not control the manner in which Buyers operate and is not involved in Buyers hiring, firing, discipline or working conditions; and (III) will not provide Buyer or you with any materials or tools with which to perform any Service Order. Any problems, complaints or questions regarding the work environment, performance or other terms and conditions of contracting must be resolved by and between you and the Buyer who hires you.
- C. You will abide by any and all applicable licensing, permitting, employment, non-discrimination, tax and other federal, state and local laws, statutes, ordinances and regulations. You agree to hold harmless and indemnify Meriseat.com for any and all liability arising from a violation of any such laws, statutes, ordinances and/or regulations.
- D. As used herein, the term "Personnel" means, as to you, your employees, Provider Agents, other agents, and subcontractor(s), and as to Meriseat.com its employees, agents and subcontractors.
- 2. Changes in Terms, Suspension/Termination and Release and Waiver.
- A. Changed Terms and New or Different Services. You agree that: Meriseat.com may add, delete, or modify some or all of the Services at any time. From time to time, Meriseat.com may provide features, products or Services which either are or will be set forth on the Site, which are subject to these Terms, but are also subject to the additional terms and pricing specified on the Site. With respect to these features and services provided on our Site, you will be charged, and you agree to pay Meriseat.com any fees for such features, products and/or Services, as set forth on the Site.
- B. RELEASE AND WAIVER. YOU ACKNOWLEDGE THAT, IN CONSIDERATION OF YOUR MEMBERSHIP AND/OR YOUR OPPORTUNITY TO RECEIVE SERVICE ORDERS YOU AND EACH OF YOUR PERSONNEL HEREBY RELEASE MERISEAT.COM AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS, ASSIGNS, INSURERS, AGENTS, LICENSEES, DISTRIBUTORS AND INDEPENDENT CONTRACTORS, INCLUDING THE PAYMENT SYSTEM PROVIDER (COLLECTIVELY, THE "MERISEAT.COM COVERED PARTIES"), FROM ANY DAMAGES OR LIABILITY WHATSOEVER RELATED TO SERVICE ORDERS, THE OPERATON OF THE SITE, THE RATING SYSTEM, THE PAYMENT SYSTEM, YOUR ENGAGEMENT BY A BUYER AND ANY OF THE SERVICES, INCLUDING ANY INFORMATION PROCESSING SERVICES (COLLECTIVELY, THE "COVERED ITEMS"). YOU IRREVOCABLY WAIVE ANY CLAIMS THAT YOU OR YOUR PERSONNEL MAY HAVE IN CONNECTION WITH COVERED ITEMS (INCLUDING CLAIMS OF DEFAMATION, BAD FAITH, CONSPIRACY, TORTUOUS INTERFERENCE WITH CONTRACT, ETC.). YOU FURTHER AGREE TO INDEMNIFY THE MERISEAT.COM COVERED PARTIES AGAINST ANY AND ALL DAMAGES OR LIABILITY THAT MERISEAT.COM OR THE MERISEAT.COM COVERED PARTIES MAY INCUR, INCLUDING ATTORNEYS FEES AND COSTS, IN CONNECTION WITH THE COVERED ITEMS.
- 3. Your Interactions With Other Members.
- A. You are solely responsible for your and your Personnel's interactions with Buyers and other Members. You agree that Meriseat.com is not obligated to screen (and may not screen) Buyers, nor does Meriseat.com inquire into the backgrounds of Buyers; nor does Meriseat.com undertake to verify (unless otherwise expressly stated on the Site) Members statements and documents (e.g., insured or licensed status), and Meriseat.com is not responsible for the User Content on the Site. Meriseat.com makes no representations, warranties or covenants as to: (I) the conduct of Members (and their Personnel), or (II) the number of Service Orders (if any) that each you may be offered via the Site. In no event will Meriseat.com be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental (including bodily injury, emotional distress and/or any other damage), arising out of or relating in any way to: (x) the conduct of, or communication with, any Member (including any Buyer or Provider Firm), Personnel of such Members, or anyone else, (y) the use of the Site, and (z) Service Orders transmitted by and/or accepted through the Site.
- B. Your decision to register for a Membership and/or your firm's decision to register Providers and use the Site is your personal decision for which you alone are responsible. You agree that Meriseat.com does not make representations as to any Buyer that you may decide to accept a Service Order from.
- C. You are solely responsible for protecting yourself, your Providers and your/their personal and financial information and you agree that you are not entrusting that responsibility to Meriseat.com by use of the Membership.
- 4. Defense And Indemnification.
- A. Defense. To the fullest extent permitted by law, you will, at your own expense, defend the Meriseat.com Covered Parties against any allegation (regardless of whether it is false, fraudulent or groundless, whether your obligations are applicable pursuant to the terms of Section 4.B below, or whether it alleges any negligence, willful misconduct or culpability by Meriseat.com or any of the Meriseat.com Covered Parties) in any claim, complaint, demand, investigation, suit, proceeding or cause of action that arises, directly or indirectly, from: (I) any act or omission related to the performance of (or failure to perform) Service Orders, including any actual or alleged defect or improper service by you or any of your Personnel, including Providers, (II) any breach or default under: (1) any covenant or provision of these Terms, or (2) any law, statute, or state ordinance or any governmental administrative order, rule or regulation, and (III) any claim by your Personnel, including Providers (collectively, "Claims"). You will use counsel reasonably satisfactory to Meriseat.com in the defense of Claims against Meriseat.com Covered Parties. Meriseat.com may, at its election, take control of defense and investigation of Claims against Meriseat.com Covered Parties, and may employ and engage attorneys of its own choice to manage such Claims, at your cost, risk and expense, provided that Meriseat.com and its counsel will proceed with diligence and good faith with respect thereto.
- B. Indemnification. To the fullest extent permitted by law, you will, at your own expense, release, indemnify and hold harmless all Meriseat.com Covered Parties from any and all loss, damage, cost, expense, fines, penalty, judgment, and any other liability, including reasonable attorneys' fees and expenses and costs of investigation incurred by any Meriseat.com Covered Parties arising out of any Claim. Your failure to secure and maintain required insurance coverage will not relieve you of your responsibilities under this Section to a Meriseat.com Covered Parties.
In the event of a failure by you to fully perform in accordance with this Section 4, Meriseat.com, at its option and without relieving you of your obligations hereunder, may so perform, but all costs and expenses so incurred by Meriseat.com in that event will be reimbursed by you to Meriseat.com, together with interest of the same from the date any such expense was paid by Meriseat.com until reimbursed by you at maximum rate allowed by law.
MERISEAT.COM WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY LOSS OF OR DAMAGE TO ANY OF YOUR OR YOUR PERSONNEL'S PROPERTY. MERISEAT.COM WILL NOT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANYONE CLAIMING BY, THROUGH, OR UNDER YOUR INCLUDING YOUR SHAREHOLDERS, DIRECTORS, OR PERSONNEL FOR ANY LOSS OR DAMAGE THAT MAY BE OCCASIONED BY OR THROUGH THE ACTS OR OMISSIONS OF ANY PERSON (INCLUDING ANY MERISEAT.COM PERSONNEL, ANY BUYER OR ITS PERSONNEL, OR ANY PERSON AT A SERVICE LOCATION).
- 5. Taxes. You are responsible for assessing for each service you provide and then reporting and paying to the applicable taxing authority any taxes related to such services. The charges in each Service Order will (as between a Buyer and you), be deemed to include all taxes on such services, and if such amounts are insufficient to pay such taxes, you will reduce the charges you are owed until the total charges (services fees and taxes) equal the Spend Limit. Meriseat.com is not obligated to determine the applicability of any taxes or to remit, collect or report any such applicable taxes. Further, you are responsible for paying all fees associated with using the Services and the Site and all applicable taxes, if any, associated therewith.
You authorize Meriseat.com to provide to Buyers with whom you contract your W9 and other firm information for the purposes of producing tax reporting statements.
You also assume full responsibility for all contributions, taxes and assessments on all payrolls, or payments otherwise required under applicable federal, state and local laws (including withholding from wages of your Personnel where required). If you are not required to operate under any applicable unemployment compensation law, but are permitted to do so, you will duly elect to be governed by and operate under such law. You further agree to comply with any other federal or state law or regulation regarding compensation, hours of work, or other conditions of employment including federal or state laws or regulations regarding minimum compensation, overtime and equal opportunities for employment.
- 6. Term.
- A. This Agreement will become effective as described above and will continue until terminated by you or Meriseat.com as provided below or otherwise in the Terms.
- B. Meriseat.com or you may terminate this Agreement at any time upon notice to the other party (if this Agreement is terminated, so are you and your Personnel's right to use the Site.). Meriseat.com also reserves the right to suspend and/or terminate you and your Personnel's use of the Site and/or Membership at any time, without prior notice. Termination of your Membership by Meriseat.com also terminates this Agreement, without further liability or penalty to Meriseat.com. Meriseat.com reserves the right, at is sole discretion, to terminate all open Service Orders in the event Meriseat.com suspends or terminates you.
- C. Your liability for Service Orders that have been accepted, survives suspension or termination of these Terms and your right to use the Site. In such event, (I) your Membership will continue for a period necessary to complete any open Service Order(s) (and these Terms shall continue to apply to such Service Orders and your use of the Site, if such use is permitted by Meriseat.com); (II) you will still be obligated to pay charges incurred under your Membership, (III) you will not accept any additional Service Orders and (IV) you will be deemed to have cancelled any open Service Orders unless otherwise directed by Meriseat.com, in its sole discretion not to do so; in which case, you will complete those Service Orders you are directed by Meriseat.com to complete and these Terms shall continue to apply to such Service Orders, your use of the Site.
- 7. Insurance And Licenses.
- A. Insurance. In order to register for a Membership to the Site (and retain such Membership), you are required to maintain insurance in such amounts as required by law and at such levels, if any, as may be required by Meriseat.com from time to time. You represent, warrant and covenant that you have valid insurance in the required amounts and that it will remain valid and enforce throughout your Membership and you will notify Meriseat.com of changes in your insurance. You may have the option to upload your insurance certificates to the Site (which information may, in whole or in part, be viewable by Buyers). Further, as a condition to using the Site, you will, upon a Buyer's request, provide a copy of all current insurance certificates or other proof of insurance held by you to each Buyer whose Service Order you accept. In addition, if insurance you are required to have lapses, you and your Personnel will immediately cease performing Service Orders until such time as your insurance is enforce. Meriseat.com is not responsible for confirm the validity and enforceability of your insurance. Any breach of the foregoing representation, warranty and covenant will constitute a breach of the Terms and Meriseat.com will have the right to immediately terminate your Membership and your and your Personnel's use of the Site.
- B. Licensing/Permit Requirements. You represent, warrant and covenant that you (and your Personnel) are duly licensed to perform your obligations hereunder where a license is required and will also perform in accordance with established trade practices and all applicable laws, rules, regulations, ordinances and other lawful requirements. You will at your own expense, obtain all applicable licenses and permits which may be required under federal, state or local law, ordinance, rule or regulation by virtue of an act performed by you or your Personnel in connection with Service Orders. Further, as a condition to using the Site, you will, upon request provide a copy of all current licenses held by your and your Personnel to Buyers from whom you accept a Service Order. In addition, if you or your Personnel learn that you or your Personnel do not have the required licenses or permits, your (and your Personnel) will immediately cease performing the Service Orders until such time as you and your Personnel acquire the necessary licenses and permits.
- 8. Confidential Information.
- A. Definition. "Confidential Information". means any information, whether disclosed in oral, written, visual, electronic or other form, which Meriseat.com discloses or you (or your Personnel) observe in connection with your performance of your obligations under this these Terms. Confidential Information includes, but is not limited to, Buyer information, work product; Meriseat.com business plans, strategies, forecasts and analyses; Meriseat.com financial information; Meriseat.com employee and vendor information; Meriseat.com software (including all documentation and code); hardware and system designs, architectures and protocols; Meriseat.com product and service specifications; Meriseat.com purchasing, logistics, sales, marketing and other business processes.
- B. Restrictions. You will restrict disclosure of Confidential Information to your Personnel who have a need to know such information to perform your obligations hereunder and who have first agreed to be bound by the terms of this Section 8. You are liable for any unauthorized disclosure or use of Confidential Information by any of your Personnel. Within ten (10) days after receiving a written request from Meriseat.com, you will destroy in such a manner that it cannot be retrieved, or return (as instructed by Meriseat.com) any materials containing Confidential Information. You will certify to Meriseat.com that you have satisfied your obligations under this Section 8.B.
- C. Buyer Information. You will maintain at all times as Meriseat.com's Confidential Information any information regarding Buyers and their Personnel that you or your Personnel learn in connection with this Agreement and any Service Order ("Buyer Information") under these Terms. You will maintain Buyer Information physically separate and distinct from any lists and information you may maintain that are unrelated to this Agreement. You will protect the Buyer Information from destruction, loss or theft. You and your Personnel will only use Buyer Information in the completion of Service Orders and will not use Buyer Information for any other purpose, including any type of marketing or solicitation. Further, you will not use Buyer Information in any manner inconsistent with Meriseat.com's Privacy Policies.
- D. Notice. You will notify Meriseat.com promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of the Confidential Information and will indemnify Meriseat.com and hold Meriseat.com harmless for such loss, unauthorized disclosure or unauthorized use, including attorneys' fees and costs.
- E. Equitable Rights. In addition to any other rights Meriseat.com may have under these Terms or in law, since unauthorized use or disclosure of the Confidential Information may result in immediate and irreparable injury to Meriseat.com for which monetary damages may not be adequate, in the event you or your Personnel use or disclose or in Meriseat.com sole opinion, you or your Personnel are likely to use or disclose the Confidential Information in breach of your obligations under these Terms, Meriseat.com will be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance. Meriseat.com will also be entitled to the recovery of any pecuniary gain realized by you from the unauthorized use or disclosure of the Confidential Information.
- F. Audit. You will permit Meriseat.com to audit your compliance with the provisions of this Section 8 at any time during regular business hours.
- G. Material Breach. A breach of this Section 8 by you or your Personnel will be deemed a material breach of these Terms.
- 9. Non-Solicitation of Buyers And Non-Compete. All Buyers' names, Buyer customers names and other leads and prospects (collectively, "Buyer Leads") resulting from the Membership or use of the Site belong to Meriseat.com and you and your Personnel agree to notify Meriseat.com of all such Buyers Leads. You and your Personnel will not market, in any fashion, products or services to such Buyer Leads. Further, you acknowledge and agree that it will be deemed a material breach of this Agreement for you (and your Personnel) to market to (or otherwise solicit) Buyer Leads to offer to Buyer Leads any product or service independently of the Site or to otherwise circumvent the Site (and if you or your Personnel do any of the foregoing, then you forfeit all rights to payment under Service Orders, in addition to Meriseat.com's other remedies). In addition, you and your Personnel will not leave with any Buyer Leads any brochure, coupon, magnet, business card or any other form of advertisement. You agree as a condition to your access to and use of the Site that you and your Personnel will not create a similar website or otherwise create a business model that competes, in any substantial way, with Meriseat.com and the Site during the Term and for a period of three (3) years thereafter.
- 10. Non-Exclusive Remedies. In the event you breach the Terms or otherwise fail to perform your responsibilities in regards to a Service Order, then Meriseat.com will have the right, but not the obligation to:
- A. Remedy such default utilizing such persons or firms and such equipment and materials as may be necessary for that purpose, and you will forthwith pay Meriseat.com all costs it incurs together with interest on the same from the date any such expense was paid by Meriseat.com until reimbursed by you at the maximum rate allowed by law;
- B. Recover from you the amount of any loss or damage, whether liquidated or unliquidated, suffered or incurred as a result of such default, including reasonable attorneys' fees and costs, penalties, increased costs and loss of profits. Meriseat.com may deduct such amounts from payments otherwise due to you;
The foregoing remedies for default will be considered distinct, separate and cumulative and will be in addition to any other right or remedy given elsewhere in these Terms to Meriseat.com or now or hereinafter existing at law or in equity, including any right to the recovery of reasonable attorneys' fees and costs.
- 11. General.
- A. Hold-Backs, Recoupment and Setoff. If you breach these Terms, Meriseat.com will have the right, in its sole discretion, to withhold payment from the date that of the first breach until you provide adequate assurance that you have cured all breaches, as determined by Meriseat.com in its sole discretion. Further, you agree that Meriseat.com's monetary obligations to you, if any, under these Terms will at all times be net of your monetary obligations to Meriseat.com under these Terms. Meriseat.com and you further acknowledge and agree that any payment or advance made by Meriseat.com to you in respect of any Service Order while any of your monetary obligations are outstanding will be deemed to be an overpayment to you to the extent of such outstanding monetary obligation and will be subject to recoupment by Meriseat.com. Without limiting the foregoing, Meriseat.com will have the right, at all times, to deduct any of your monetary obligations from any amounts owed to you by Meriseat.com, and to pay only the net sum due, if any. Any of your monetary obligations that remain outstanding after any exercise by Meriseat.com of its recoupment and/or set-off rights will be paid by you upon demand by Meriseat.com.
- B. Force Majeure. Meriseat.com will not be liable to any Member for any failure or inability to perform or for delay in performance of Meriseat.com's obligations hereunder if caused by any strike, lockout, labor dispute, inability to obtain labor or material, act of God, governmental restriction, regulation or control, enemy or hostile governmental action, civil commotion, insurrection, sabotage, fire or other casualty or by any event similar to the foregoing beyond the control of such party, however the time to perform such obligation or satisfy such condition will be postponed by the period of time consumed by the delay. If Meriseat.com, as a result of any such event, is unable to exercise any right within any prescribed time limit, then such time limit will be postponed for the period of time consumed by such delay.
- C. Publicity. You will not use Meriseat.com's name, trademarks, service marks or commercial symbols or logos ("Meriseat.com Marks"), in any manner without Meriseat.com's prior written approval including in any advertising, promotional activities or publicity releases. Further, if it becomes advisable at any time in Meriseat.com, sole discretion for you to modify or discontinue the ssuse of such Meriseat.com Marks, you comply immediately with Meriseat.com's instructions.
- E. No Assignment. You may not assign these Terms or your rights or obligations hereunder without the prior written consent of Meriseat.com.
- F. Severability. If any provision of these Terms is held to be contrary to any law to which it is subject, such provision will be ineffective to the extent of such prohibition without invalidating the remaining provisions of these Terms.
- G. Waivers. No waiver of any provision of these Terms or breach thereof will be implied by failure to enforce any rights or remedy herein provided, and no express waiver will affect any provision or breach other than that to which the waiver is applicable and only for that occurrence.
- H. Communications. Due to the inherent nature of the Internet and electronic communication transactions, you agree that Meriseat.com is not responsible for the accuracy of all transmissions to or from the Site or for any interception by unauthorized third parties of such communications. We may monitor the IP addresses you use to access our Site.
- I. Other. If it is determined by a court of competent jurisdiction that Meriseat.com is a party to your Service Order with the Buyer; you agree that such relationship will be that of you acting as an independent contractor of Meriseat.com and (ii) your right to receive payment, or any portion thereof, if any, from Meriseat.com is expressly conditioned upon receipt of the applicable payment by Meriseat.com from the Buyer who posted the applicable Service Order. You are not authorized to, and you will not enter into any agreement, make purchases or incur any other obligation or expense of any kind in the name of or on behalf of Meriseat.com under any circumstances.
- J. Cumulative Rights and Remedies. All rights and remedies are cumulative, and the exercise of any right of remedy herein provided will be without prejudice to the right to exercise any other right or remedy provided herein, by law or by equity.
- K. General. By using Meriseat.com for the Services (including the information processing Services), you agree that Meriseat.com is not acting in an implied fiduciary capacity for you or any Buyer.
- L. Notices. You agree that Meriseat.com may send all notices to you and your Personnel in electronic form to the email address you submit during registration and that such notices will have the same affect as written notices personally served on you. Further, you agree on behalf of yourself and your Personnel that Meriseat.com may send you and your Personnel messages to the mobile phone numbers you or they submit through the Site and you acknowledge that you and your Personnel may be charged fees by your/their mobile phone provider (and that such fees are not Meriseat.com's responsibility).
- M. Construction And Survival.
- (I) These Terms supersede all prior written and unwritten agreements and understandings (other than the Terms) between the parties with respect to the subject matter described herein.
- (II) These Terms are binding upon the parties hereto and their respective execu¬tors, administrators, heirs, assigns, and succes¬sors in interest, and will not be modified except by: (a) written agreement signed by both Meriseat.com and you, or (b) Meriseat.com posting revised Terms on the Site (which revised Terms will be binding on you and your Personnel who continue to use the Site or fulfill Service Orders. In these Terms, the term "include" and its derivatives ("including," "e.g." and others) mean "including but not limited to."
- (III) Any provisions of these Terms that would, by their nature, survive the termination or expiration of this Agreement will so survive, including Section 4 (Payment and Disputes) of this Agreement, as well as all of this Appendix #1 to this Agreement.
N. Entire Agreement. This Agreement (including Appendix #1) together with the other Terms constitutes the entire agreement between Meriseat.com and you with respect to the subject matter herein. No representative of either party has or will have authority to make any oral modification to these Terms.
O. Third Party Beneficiaries. There are no third party beneficiaries to these Terms and your Personnel (including Provider Agents) will have no rights hereunder independent of your rights. You may enforce these Terms only on behalf of yourself.