BARTER OF AMERICA.COM USER AGREEMENT
"User Agreement" means this head agreement and the following
- Rules These Rules set out the
means by which Users will deal with each other as buyers and sellers,
the mechanism for using Barter of America.com trade dollars, and
the means by which Users will resolve disputes, if any.
- Security Statement This Security
Statement sets out the security offered by Barter of America.com
- Acceptable Use Policy This Acceptable
Use Policy or AUP sets out acceptable uses of the Barter of America.com
Services and acceptable goods and services, which may be posted
or publicized for barter.
"Services" means the clearinghouse and third party record-keeping
of barter transactions among Users provided by Barter of America.com.
"User" or "You" means:
(a) in the case of the hard-copy version of the User Agreement,
the business entity signing the User Agreement whether a corporate
body, a sole proprietorship, a partnership or otherwise; and
(b) in the case of the on-line version of the User Agreement, the
business entity accessing this User Agreement and accepting same
who then obtains a unique User ID and password to continue to use
the Barter of America.com Services.
Changes to User Agreement
Barter of America.com reserves the right to alter and change the
terms of the User Agreement. You will be notified of such alteration
or change to the User Agreement. You agree that your use of Barter
of America.com and of the Services after notification of any changes
to the User Agreement constitutes agreement to the terms of the
changed User Agreement.
Governing Law - This Agreement is governed
under the laws of the State of California. The parties agree that any
dispute, claim or other litigable difference between them shall
be exclusively resolved by submission to binding arbitration pursuant
to the Commercial Arbitration Rules of the American Arbitration
Association. Arbitration shall be held in San Diego, California. The
prevailing party shall be entitled to an award from the arbitrator
of declaratory relief, preliminary and permanent injunctive relief,
compensatory damages, reasonable attorney fees and costs of the
action. The decision of the arbitrator shall be entitled to enforcement
in any court of competent jurisdiction.
Assignment - User may not assign any
of its rights under this Agreement without the consent of Barter
of America.com. Only the User entering in to this User Agreement
may utilize the Services provided by Barter of America.com.
Barter of America.com retains the right to accept or reject your
application as a prospective User of the Barter of America.com Service.
1. Acceptance of Terms
This is a legal agreement between you, the user; together with any
company or other business entity you are representing (collectively,
the "User") and Barter of America, Inc. ("Barter
of America"), with a principal place of business at 3200 Adams Ave. suite 105 San Diego California 92116. BY CLICKING THE "I ACCEPT"
BUTTON, USER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND
TO LOOK SOLELY TO BARTER OF AMERICA FOR THE PERFORMANCE OF THE SERVICE.
This Agreement governs the access and use of services provided by
or through the Barter of America Web site (the "Service").
If User does not agree to the terms of this agreement, click on
the "I DO NOT ACCEPT" button and do not access or use
the Service. All questions concerning this Agreement should be directed
to: Member Relations, Barter of America, at 3200 Adams Ave. suite 105 San Diego California 92116.
By accepting the terms and conditions of this Agreement, User represents,
warrants and covenants that (a) User is 18 years old or older; (b)
User is capable of entering into a legally binding agreement; (c)
User is a resident of the U.S. and the business is duly authorized
to do business in the U.S.; (d) User is duly authorized to, and
does hereby represent and legally bind, any company on behalf of
which User is registering with respect to this Agreement and all
transactions conducted under this account in connection with the
Service; and (e) User will use the Service only for business purposes
and not for individual, personal, family or household purposes.
Notwithstanding anything to the contrary, Barter of America reserves
the right to cancel, suspend or refuse access to the Service to
anyone in its sole discretion.
USER AGREES THAT IF BARTER OF AMERICA IS PROVIDED WITH A FALSE
OR INCORRECT FEDERAL TAX IDENTIFICATION NUMBER, OTHER TAX INFORMATION
OR SIGNATURE OF USER, USER MAY BE LIABLE FOR PERJURY OR OTHER OFFENSE
IN ACCORDANCE WITH FEDERAL LAW, FRAUD OR MISREPRESENTATION, AND
BARTER OF AMERICA HAS THE RIGHT TO IMMEDIATELY SUSPEND USER'S ACCOUNT.
2. Service: Barter of America Is Only a Venue
The Service acts as a venue to facilitate the listing of goods and
services by sellers and the purchasing of such goods and services
by buyers. User acknowledges and agrees that User's purchases and
sales of goods and services on the Service are transactions with
the respective seller and buyer of the goods and services and not
with Barter of America. Barter of America is not the buyer or seller
in transactions on the Service unless explicitly designated as such.
Barter of America shall not be responsible for, and does not control,
the quality, safety or legality of the items advertised, the truth
or accuracy of the listings, the ability of sellers to sell items
or the ability of buyers to buy items. Barter of America shall not
be responsible for, and does not control, whether or not sellers
will complete the sale of items they offer or whether buyers will
complete the purchase of items they have agreed to purchase.
Barter of America shall have no responsibility to, and does not,
investigate the background of or confirm the identity of users of
the Service. User should exercise caution in dealing with other
users to avoid fraud and other disputes, including without limitation:
(i) using direct communication with other users to evaluate with
whom User is dealing, and (ii) using qualified third-party escrow
and/or appraisal services where appropriate. A user-initiated feedback
system may be available on the Service to help User in the evaluation
of other users. User acknowledges, however, that such feedback represents
solely the opinion of other users and is not an opinion, representation
or warranty by Barter of America.
2.1 No Endorsement of Content, Advertisers or Linked Resources
by Barter of America.
Barter of America does not represent or endorse the accuracy, reliability,
integrity or legality of any advice, opinion, offer, proposal, statement,
listing, data or other information (collectively, "Content")
displayed or distributed through the Service. Some Content accessible
on the Barter of America site may be believed to be harmful, offensive
or inaccurate, and in some cases may be mislabeled or deceptively
labeled. Barter of America hereby disclaims any liability for any
Content, including, but not limited to, any errors in or omissions
of any Content, or for any loss or damage of any kind incurred as
a result of the use of or reliance on any Content posted, emailed
or otherwise transmitted via the Service. Barter of America shall
have no obligation to review Content posted to the Service by users
or by Barter of America. Barter of America shall have the right,
but not the obligation, in its sole discretion, to correct any errors
or omissions in any portion of the Service or to disclose any information
as necessary to satisfy any law, regulation or government request,
or to edit, modify, refuse to post or remove any Content, in whole
or in part, that in Barter of America's sole discretion is objectionable
or in violation of this Agreement.
User's correspondence or business dealings with, or participation
in promotions of, advertisers found on or through the Service, including
payment and delivery of related goods or services, and any other
terms, conditions, warranties or representations associated with
such dealings, are solely between the User and such advertiser.
User hereby agrees that Barter of America shall not be responsible
or liable for any loss or damage of any sort incurred as the result
of any such dealings or as the result of the presence of such advertisers
on the Service.
Links and pointers to the other related World Wide Web Internet
sites, resources and sponsors of the Service ("Linked Resources")
shall not constitute an endorsement by Barter of America of the
Linked Resources. Barter of America shall not be responsible or
liable, directly or indirectly, for any damage or loss caused or
alleged to be caused by or in connection with availability, use
of or reliance on any Linked Resources.
Barter of America is not a party to, and shall not be involved in
or responsible for, transactions, agreements and/or disputes between
users or between User and any advertiser on the Service ("Dispute").
In the event of a Dispute, User agrees to release, and does hereby
release, Barter of America (and its agents, contractors and employees)
from claims, demands and damages (actual and consequential) of every
kind and nature, known and unknown, suspected and unsuspected, disclosed
and undisclosed, arising out of or in any way connected with such
User agrees that it shall not involve Barter of America in any
Dispute or litigation arising out of or related to any transaction,
agreement or arrangement with any buyer, seller, advertiser or other
third party in connection with the Service. If User nonetheless
attempts to do so, (i) User shall pay all costs and attorneys' fees
of Barter of America and shall provide indemnification as set forth
in Section 11 below, and (ii) the jurisdiction for any such Dispute
or litigation shall be limited as set forth in Section 14.3 below.
Barter of America shall have the right, but not the obligation,
to place Trade Dollars or other items involved in a disputed transaction
into a restricted account maintained by Barter of America or, at
Barter of America's discretion, an escrow account maintained by
a third-party escrow agent which, in either case, may be released
on mutual consent of the parties to the transaction, on conditions
to which they mutually agree, upon order of a court of competent
jurisdiction, or an arbitrator as set forth in Section 14.3 below.
Any such restricted or escrow account shall not bear interest.
3. Trade Dollars and Accounts
Barter of America is not a bank. Accounts are not FDIC insured.
It is understood that non-cash barter currency issued by Barter
of America ("Trade Dollars") and/or other funds may be
required in order to buy and sell on the Service. Users and Barter
of America acknowledge and agree that Trade Dollars are not bank
deposits, legal tender, securities or commodities, and may not be
redeemed for cash. In no event shall Barter of America be required
to refund, redeem, or pay any amounts to User for any Trade Dollars,
or allow conversion or liquidation of Trade Dollars. Notwithstanding
the foregoing, Barter of America may, from time to time, offer special
promotions to Users whereby Barter of America may, at its sole discretion,
provide refunds to Users of Trade Dollars, up to an amount equivalent
to the number of Trade Dollars purchased by the User from Barter
of America. Except as otherwise expressly approved by Barter of
America in advance in writing, Trade Dollars shall not be transferable,
and User shall not transfer, assign, pledge or hypothecate any Trade
Dollars or interest in its account in any way, directly or indirectly,
except as required for the bona fide purchase of goods or services
through the Service, or as required for a line of credit issued
by Barter of America.com, Inc. or its subsidiaries or affiliates ("Jarish, Inc. "),
or another lender expressly authorized by Barter of America, in
each case in accordance with this Agreement and all rules and policies
established by Barter of America and the lender's agreement with
the User. From time to time and at Barter of America's sole discretion,
Barter of America may allow User to purchase Trade Dollars from
Barter of America using U.S. Dollars or other currency approved
by Barter of America.
When User requests to purchase an item, Trade Dollars may be immediately
deducted from User's account as required for the transaction. When
User sells an item, Trade Dollars may be passed to User's account
subject to restrictions during a vesting or escrow period. Without
limiting the foregoing, Barter of America reserves the right to
restrict use of such Trade Dollars for a period of fourteen (14)
days from the time of the sale.
User agrees that: (i) Barter of America does not guarantee that
User will be satisfied with selection of, or prices for, products
or services available on the Service; (ii) Barter of America will
not pay interest on balances in User's account; (iii) Barter of
America does not guarantee that there will be adequate currency
reserves to cover all outstanding claims in the Service; (iv) Barter
of America reserves the right to recall all loans and obligations,
if any, at any time; and (v) Barter of America does not take responsibility
for, and shall not be liable for, any act or omission of Barter
of America which does not constitute gross negligence or willful
misconduct on the part of Barter of America and, in no event, shall
be responsible or liable for any act or omission of any third party
or any losses, costs, damages or liabilities arising from any of
Barter of America shall have the right, but not the obligation,
in its sole discretion to: (i) restrict use of Trade Dollars User
receives for a transaction for a period of time after the completion
of the transaction and thereafter pending resolution of any dispute
regarding the transaction; (ii) require escrow, vesting or other
procedures before User can use Trade Dollars stored in User's account;
(iii) offset or apply Trade Dollars or other funds in User's account
against any payment, line of credit or other obligation that User
may have arising out of or relating to the Service, including an
obligation to Barter of America, to other users or to advertisers,
partners, suppliers and service providers of Barter of America (collectively,
"Service Providers"); (iv) offset amounts due to Barter
of America or Service Providers against amounts or liabilities owed
to User, whether in cash or Trade Dollars; and (v) cancel, freeze
and/or otherwise restrict User's account or the use of Trade Dollars
in User's account for breach of this Agreement, an investigation
of User's account by a government or other authority or default
by User upon any obligation to Barter of America or a Service Provider,
including without limitation American Express.
Barter of America may, at its discretion, by mail, email, postings
within User's account or other reasonable means, provide User a
statement detailing User's transactions and account balance. Thirty
(30) days after the date of such statement, the statement shall
be deemed accepted by User unless User has notified Barter of America
by mail in writing to the address identified in Section 14.1 that
User disputes the accuracy of the statement.
Unless otherwise expressly stated by Barter of America, all fees
and payments to Barter of America and Service Providers shall be
made in U.S. Dollars. Notwithstanding the foregoing, Barter of America
shall have the right, but not the obligation, to accept Trade Dollars
in satisfaction of fees, in whole or in part, and to deduct corresponding
amounts from User's account.
4. User Responsibilities
4.1 Fees and Payment.
Barter of America reserves the right to establish and charge fees
for listings, commissions, subscriptions and other products and
services (including new or modified products and services) and to
change its fees at any time for any reason. Such fees will be posted
on the Service and/or presented at the time that products or services
are ordered or provided. Unless otherwise indicated in writing by
Barter of America, fees shall be due and payable in advance at the
time the respective product or service is ordered or requested.
If User makes any purchase by check, including but not limited to
purchase of Trade Dollars from Barter of America, and the check
is returned by the bank due to insufficient funds, Barter of America
may charge User a service charge of twenty-five dollars ($25) or
the maximum amount permitted by law in addition to any other remedies
allowed by law. User hereby authorizes Barter of America to charge
the service charge as well as the face amount of the check to User's
credit card. Any fees or payments that are not paid when due shall
bear interest to the extent permitted by applicable law at the Wall
Street Journal Prime Rate as published in the Money Rates Section
of the Western Edition of the Wall Street Journal on the date such
payment is due, plus an additional three percent (3%), calculated
on the number of days such payment is delinquent. In the event that
more than one such Prime Rate is published on such date such payment
is due, the highest such Prime Rate shall be used. User shall also
be liable for all attorney and collection fees arising from or related
to efforts to collect any unpaid balances on User's account. This
Section 4.1 shall in no way limit any other remedies available to
Barter of America.
Unless otherwise expressly stated by Barter of America, all payments
to Barter of America shall be non-refundable. Failure of a buyer
or seller to complete or fulfill a transaction with User, dissatisfaction
with a transaction, fraud and other disputes regarding transactions
shall not entitle User to a refund of any fees paid to Barter of
America. Where deemed appropriate by Barter of America, Barter of
America may, but shall not be obligated to, extend the duration
of listings, refund pro-rated fees for partial services and/or provide
credits to be applied against selected future Barter of America
fees in lieu of providing a refund. In such event, the foregoing
shall be User's sole and exclusive remedy and Barter of America's
sole and exclusive liability for failure to provide the respective
service. In the event that Barter of America does offer a refund
or partial refund, Barter of America shall have the right to deduct
credit card and other transaction and processing fees and other
costs and expenses incurred by Barter of America from the amount
of such refund or partial refund.
4.3 Special Offers and Promotions.
From time to time Barter of America may, in its sole discretion,
make special offers and promotions, such as reduced fees, discounts,
incentives or other benefits ("Promotions") without creating
any obligation on the part of Barter of America other than as explicitly
set forth in such Promotions, including without limitation any obligation
to continue to offer such Promotions on an ongoing basis.
4.4 Compliance with Laws.
User, and not Barter of America, shall be responsible for compliance
with all laws, regulations and ordinances connected with the User's
listing, buying and selling on, and other use of, the Service. User
shall not use the Service to list, sell or buy items that are illegal.
User must provide all required and appropriate warnings, information
and disclosure, comply with all applicable laws and regulations,
and take all other required and appropriate actions (collectively,
"Information and Actions") in connection with the User's
listing, buying or selling of goods or services on the Service.
If the Service does not provide adequate facility or features for
User to provide such Information and Actions, then the User shall
not use the Service to list, buy or sell the respective items.
User represents and warrants that User is a resident of the United
States of America (U.S.) and that the business is duly authorized
to do business in the U.S, that User has not been identified as
a person or entity with which U.S. citizens may not conduct business,
that User will not buy or sell goods or services that may not be
lawfully offered for sale or purchased in the U.S., and that User
will not export from the U.S. any good, service or technology in
violation of U.S. law.
Note that various U.S. legal requirements and limitations may apply
to transactions involving foreign nationals or foreign legal entities,
including those physically located within the United States, underage
persons and persons acting under false pretenses, and compliance
with such requirements and limitations is the sole responsibility
of the User.
User agrees not to intentionally or unintentionally violate any
applicable regulations promulgated by the U.S. Department of State,
the U.S. Customs Service, the Bureau of Export Administration, the
Office of Foreign Assets Control, the Federal Trade Commission,
the U.S. Treasury Department and Internal Revenue Service, U.S.
Securities and Exchange Commission, any rules of any national or
other securities exchange, including without limitation the New
York Stock Exchange, the American Stock Exchange or the NASDAQ,
any other laws and regulations governing U.S. trade in goods and
services with foreign nations and nationals and any other regulations
having the force of law.
User hereby recognizes that Barter of America is not an importer
or exporter of any items sold internationally through the Service.
User is responsible for ensuring that all applicable customs, export
control, sanctions, anti-boycott, and other international trade
laws and regulations of the United States and other relevant countries
are strictly adhered to and fully met.
4.5 Rules of the Trade Exchange.
Seller hereby accepts and agrees to adhere to all Barter of America
transaction rules posted on the Service.
If User requests to order an item or makes an offer on an item,
User agrees to buy the item according to the terms of the order
or offer, as applicable, subject to availability and acceptance
by the seller. The terms included in the listing for an item apply
to all requested orders and offers, except to the extent otherwise
expressly agreed in an offer that is accepted by the seller. Without
limiting the foregoing, user makes a firm commitment to purchase
under each of the following circumstances: (i) User has clicked
the Buy Now button for the item and the order is accepted; (ii)
User has made an offer for the item and the seller of the item accepts
the offer; (iii) User has made an offer for the item that meets
the seller's indicated minimum threshold price; or (iv) the seller
has indicated that it will accept the highest offer meeting a minimum
threshold price at the close of a listing, and the User's offer
meets the seller's criteria. User's orders and offers may only be
rescinded as approved by Barter of America in its sole discretion.
Barter of America makes no assurance that listed items will remain
available at the time that User requests to place an order or make
an offer or that such items will remain available under the terms
listed. Barter of America reserves the right to refuse orders or
offers at any time in its sole discretion. Without limiting the
foregoing, Barter of America may, but is not obligated to, do so
if User does not have sufficient Trade Dollars in its account or
fails to meet other criteria established for the listing.
If User lists an item for sale, User agrees to accept offers and
sell the item according to the terms of the listing and any specified
acceptance criteria. Without limiting the foregoing, User makes
a firm commitment to sell and authorized Barter of America to automatically
indicate acceptance under each of the following circumstances: (i)
a purchaser has clicked the Buy Now button for the item; (ii) a
purchaser has made an offer for the item and User has accepted the
offer; (iii) User has indicated a minimum threshold price for offers
and a purchaser has made an offer for the item meeting the minimum
threshold price; or (iv) User has indicated that User would accept
the highest offer for the item meeting a minimum threshold price
at the close of a listing, and a purchaser has made an offer meeting
such criteria. User's obligation to accept offers may only be rescinded
as approved by Barter of America in its sole discretion.
Notwithstanding anything in this Agreement to the contrary, Barter
of America does not permit auctions through the Service at this
For all items listed by the User, User represents, warrants and
covenants to Barter of America that: (i) all information User is
prompted to provide about an item User lists ("Item Information")
shall be accurate and complete and shall accurately represent the
condition of the item at the expected and actual sale date including
any and all applicable restrictions and all disclosures required
by law; (ii) User shall promptly update Item Information should
it become inaccurate, incomplete or misleading; (iii) no item provided
for sale on the Service shall be fraudulent or counterfeit; (iv)
User has the right to provide the items for sale on the Service
and to sell the items through the Service; (v) the listing or payment
of any fee to Barter of America for any item User provides shall
not cause Barter of America to violate any applicable law, statute,
ordinance or regulation; (vi) User shall not provide as an item
any human beings or body parts (relics, skulls, human remains or
other parts), live animals, soiled clothing, bulk email lists, pornography,
weapons, ammunition or other items that may be detrimental or disparaging
to Barter of America or that are listed or posted on the Service
as prohibited by Barter of America; and (v) no gambling equipment,
gambling services or contests involving consideration for a chance
to win a prize will be posted on the Service. Barter of America
reserves the right, at its sole discretion, to prohibit listing,
sales and purchase of any items or categories of items and may remove
items from listing at any time without notice.
From time to time, Barter of America and/or its affiliates may
purchase selected inventory from users on the Service using Trade
Dollars. Barter of America may sell, use or dispose of inventory
purchased in this manner in its sole discretion.
These Rules (click)
set out the means by which Users will deal with each other as buyers
and sellers, the mechanism for using Barter of America.com trade
dollars, and the means by which Users will resolve disputes, if
4.6 No Circumvention.
User agrees not to conclude a transaction with another party outside
the Service, if the respective goods or services have been listed
on the Service or the User has identified and/or engaged in negotiations
with that party with regard to the respective transaction via the
Service. A seller and buyer who conclude a transaction outside of
the Service shall each be liable to Barter of America for all transaction
fees and commissions avoided and shall be subject to additional
sanctions, including termination of User's account and access to
User shall not engage in any of the following, or any other, practices
for the purpose of avoiding or reducing commissions or other fees:
(i) listing low bid or purchase prices, but unreasonably high shipping
or other costs; (ii) listing a single or number of items of inventory,
but offering additional identical items for sale in the item description
for sale outside the Service; and (iii) listing catalogs from which
buyers may order further items outside the Service.
4.7 User Account, Password and Information.
User shall be responsible for maintaining the confidentiality of
its User account and password and shall be responsible for any and
all transactions by users given access to such account or password
and any and all consequences of use or misuse of such account and
password. User agrees that all employees, agents, representatives
and others having access to the account and/or password shall (i)
agree in advance to be bound by the terms and conditions of this
Agreement, and (ii) be vested by User with the authority to use
the Service and legally bind User, including without limitation
with respect to payments and transactions. User shall be responsible
for all actions by such employees, agents, representatives and others,
including but not limited to former employees, agents and representatives,
and shall indemnify Barter of America for such actions as set forth
in Section 11. Barter of America reserves the right to impose additional
conditions and restrictions upon multi-user accounts, including
without limitation: (i) requiring that each individual having access
to an account separately register and obtain a sub-account and password,
and (ii) requiring an administrator to be appointed for the account.
User agrees to notify Barter of America immediately of any unauthorized
use of any password or account or any other breach of security regarding
the Service of which User has knowledge.
User agrees to provide current, complete and accurate information
("Registration Information") during the process of registration
with, and use of, the Service and to update such information to
keep it current, complete and accurate. Barter of America shall
have the right to use the Registration Information for such uses
as reasonably required or advisable for the Service and as set forth
America shall have the right to remove from the Service or take
any other action with respect to the Registration Information deemed
appropriate in Barter of America's sole discretion, including but
not limited to: (a) comply with legal process; (b) enforce this
Agreement; (c) respond to claims that any Content violates the rights
of third parties; or (d) protect the rights, property or personal
safety of Barter of America, its users and the public.
If the User is subject to The European Union Data Protection Directive,
or national laws implementing the Directive, User hereby freely
consents to the transfer of information outside of the European
Union to the United States and other countries and use of such information
by Barter of America as contemplated herein, including without limitation
4.8 No Interference with the Service.
The User represents, warrants and covenants that User shall not
upload, post or transmit to, distribute or otherwise publish through
the Service any materials (i) which restrict or inhibit any other
users from using and enjoying the Service; (ii) which are unlawful,
threatening, abusive, harmful, libelous, defamatory, harassing,
tortuous, hateful, racially, ethnically or otherwise objectionable,
obscene, vulgar, offensive, pornographic, profane, sexually explicit
or indecent; (iii) which constitute or encourage conduct that would
constitute a criminal offense, give rise to civil liability or otherwise
violate law; (iv) which violate, plagiarize or infringe the rights
of third parties including without limitation copyright, trademark,
patent, rights of privacy or publicity or any other proprietary
right; (v) which contain a virus or other harmful component, files
or programs designed to interrupt, destroy or limit the functionality
of any computer software or hardware or telecommunications equipment;
(vi) for which User does not have all necessary rights and licenses
to transmit under any law or under contractual or fiduciary relationships
(such as inside information, proprietary and confidential information);
and (vii) which are unauthorized advertising, promotional materials,
"junk mail," "Spam," "chain letters,"
"pyramid schemes" or any other form of unauthorized solicitation
or (viii) which constitute or contain false or misleading indications
of origin or statements of fact.
User represents, warrants and covenants that it shall not (i) interfere
with or disrupt the Service or servers or networks connected to
the Service, or disobey any requirements, procedures, policies or
regulations of networks connected to the Service; (ii) gain unauthorized
access to other computer systems through the Service; (iii) disrupt
the normal flow of dialogue or otherwise act in a manner that negatively
affects other users' ability to engage in normal transactions; (iv)
harass other users; (v) collect or store personal data about other
users other than as is strictly necessary to use the Service; or
(vi) impersonate or otherwise misrepresent any person or entity,
including, but not limited to, a Barter of America official, falsely
state or otherwise misrepresent User's affiliation with a person
or entity or conceal the true identity of the parties in interest
for purposes of evading or circumventing any applicable law, regulation
or ordinance or for any other reason.
User shall hold confidential and shall not disclose, transmit,
use or otherwise exploit personal or company names, addresses, telephone
numbers, email addresses, listings, fees and pricing information
or any other information regarding, or provided by other users in
connection with, the Service except as strictly necessary to conduct
and fulfill bona fide purchase or sale transactions through the
Service solely on User's own behalf in accordance with this Agreement.
Without limiting the foregoing, in no event shall User collect,
store, extract, sell, transfer or disclose any listing or compilation
of customers or users from the Service.
5. Modification of Agreement
Barter of America shall have the right, at its sole discretion,
to change, modify, add or remove any portion of this Agreement,
including fees and transaction rules, in whole or in part, at any
time by posting notification on the Service. The changes will become
effective, and shall be deemed accepted by User, after initial posting
by Barter of America and shall apply on a going-forward basis with
respect to transactions, listings and other activities commenced
thereafter. In the event that User does not agree with any such
modifications, User shall terminate its account as set forth in
Section 8 below, which shall be User's sole and exclusive remedy.
6. Provision of the Service
Barter of America shall have the right to change, suspend or discontinue
any aspect of the Service at any time, including hours of operation
and availability of any Service feature, database or content without
notice and without liability. Barter of America shall have the right
to impose limits on certain features and services or restrict access
to parts or all of the Service without notice and without liability.
Barter of America shall have the right to establish general practices
and limits concerning use of the Service, including without limitation
the maximum number of days that listings, email messages, message
board postings or other uploaded content will be retained by the
Service, the maximum number or size of listings User may post on
the Service, and the maximum number of times (and the maximum duration
for which) User may access the Service in a given period of time.
Barter of America does not warrant that the functions contained
in the Service or any materials or content contained therein will
be uninterrupted or error free, that defects will be corrected or
that the Service is free of viruses or other harmful components.
Barter of America shall not be responsible for any service interruptions,
including, but not limited to, power outages, system failures or
other interruptions that may affect the receipt, processing, acceptance
or completion of listings and/or transactions on the Service.
7. Special Products and Services
To promote the benefits of barter, Barter of America may, from time
to time, introduce new products and services. The User Agreement
and the Terms and Conditions specifically applicable to the respective
special products or services shall govern use of these special products
The Barter of America Phone Transaction System is a special product
that allows certain Barter of America members who are in good standing
("Cardholders") to use their Trade Dollars to purchase
products and services via the Barter of America Phone Transaction
System or Debit card Transaction System at select participating
Barter of America Merchant's establishments ("Merchant").
Merchant will be able to transfer Trade Dollars from the Cardholder's
account to the Merchant's account via the Barter of America Phone
Transaction System or Debit card Transaction System. Not all inventory
in Merchant's establishment may be available for barter. Until the
issuance of the Barter of America Membership Card, both Cardholder
and Merchant may use the temporary Barter of America Membership
cards printable from their respective Barter of America accounts.
Until the issuance of official Barter of America receipt stock,
Merchants may use their normal receipt stock to record the transaction
information required. Barter of America reserves the right to terminate
the Barter of America Phone Transaction System program or Debit
card Transaction System at any time and reserves the right to revoke
or deny access to the Barter of America Phone Transaction System
or Debit card Transaction System program at its sole discretion.
Termination of the Barter of America Phone Transaction System or
Debit card Transaction System will not affect the rights or obligations
of Users who enrolled in the program prior to its termination. Barter
of America Phone Transaction System and Debit card Transaction System
participants are subject to the Barter of America User Agreement
and also subject to the attached Barter of America Phone Transaction
System or Debit card Transaction System Terms and Conditions ("Terms
and Conditions"). All Users of the Barter of America Phone
Transaction System or Debit card Transaction System MUST read and
agree to the attached Terms and Conditions.
8. Termination of Service
User may close User's account on the Service by Faxing a signed
statement to 619-516-4900. Barter of America may, in its sole discretion,
without liability to User or any third party, terminate User's account
for any reason, including without limitation inactivity or violation
of this Agreement or other rules and policies established by Barter
of America. Upon termination of User's account, User shall remain
liable for all charges, fees, commitments and obligations incurred
or accrued by User. Upon termination, Barter of America shall have
the right to delete any Content, listings or other information regarding
User's account, prohibit User's access to the account, including
without limitation by deactivating User's password, and refuse User
future access to the Service.
In no event shall Barter of America be required to refund, redeem,
or pay amounts to User for any Trade Dollars or allow conversion
or liquidation of Trade Dollars in User's account upon termination.
Subject to the following, upon termination of User's account other
than for fraud or violation of law or regulation, User will have
a reasonable period of up to ninety (90) days to spend on the Service
any unused Trade Dollars in User's account less any offsets as described
above or other amounts required to fully secure and guarantee any
debts, obligations, damages or liabilities of User to Barter of
America or to other users, advertisers, partners, suppliers and
service providers of Barter of America. Barter of America shall
have the right to require adequate assurances of compliance with
this Agreement, Barter of America policies, all laws and regulations,
satisfaction of User's obligations and duties and other reasonable
requirements from User before allowing User to spend such unused
Trade Dollars. Such assurances may include, but shall not be limited
to, User posting a bond or a requirement that User appoint a reputable
third party acceptable to Barter of America to assume responsibility
for User's account in accordance with this Agreement and spend such
unused Trade Dollars on the Service on behalf of User rather than
allowing User to access its account directly. In such event, the
foregoing shall be User's sole and exclusive remedy, and Barter
of America's sole and exclusive liability, with respect to termination
and any Trade Dollars remaining in User's account.9. Proprietary
User acknowledges and hereby agrees that the Service and any software
used in connection with the Service ("Software") contains
proprietary and confidential information that is protected by applicable
intellectual property and other laws. User further acknowledges
and agrees that Content contained in sponsor advertisements or applicable
copyrights, trademarks, service marks, patents or other proprietary
rights and laws protect information presented to User through the
Service or advertisers. Except as expressly authorized by Barter
of America advertisers or other providers of Content, User agrees
not to modify, rent, lease, loan, sell, copy, reproduce, distribute
or create derivative works based on the Service, Software or Content,
in whole or in part. User shall not cause the Service to be displayed
as a part of or within another Internet site or Web page, resell
or redistribute any portion of the Service or provide access to
its account to any third party for financial gain.
User grants and agrees to grant Barter of America the non-exclusive,
worldwide, royalty-free right and license to display, transmit and
otherwise use User's trademarks, service marks, logos, trade names
and any Content provided by User for the listing of items on the
Service and any other uses reasonably necessary or advisable for
9.1 Copyright Agent.
If User believes that User's copyrighted work has been infringed
on the Service, User agrees to promptly provide to Barter of America's
Copyright Agent written notice that includes: (i) a physical or
electronic signature of the person authorized to act on behalf of
the owner of the copyright; (ii) an identification of the copyrighted
work claimed to be infringed; (iii) an identification of the material
claimed to be infringing; (iv) the location of the material claimed
to be infringing on the Service; (v) the address, telephone number
and email address at which the party submitting the notice can be
contacted regarding the claimed infringement; (vi) a statement that
the party submitting the notice has good faith belief that the use
of the material in the manner complained of is not authorized by
the copyright owner, its agent or the law; and (vii) a statement
that the information in the notice is accurate, and under penalty
of perjury, that the party submitting the notice is authorized to
act on behalf of the copyright owner.
Barter of America's Copyright Agent for the purpose of receiving
the above notice of copyright infringement is Gary L. Eastman and
can be reached at:
The Law Firm of Gary L. Eastman, Esq., APLC
707 Broadway Street, Suite 1800 ..... San Diego, CA 92101
Barter of America.com, Inc. TheBarterStore.Net, and their respective
graphics, logos and service names are trademarks of Barter of America.com,
Inc. in the United States and other countries. Barter of America's
trademarks may not be used in connection with any product or service
that is not Barter of America's, in any manner that is likely to
cause confusion among customers, or in any manner that disparages
or discredits Barter of America. and its respective graphics, logos,
and service names are trademarks of BoA.
Barter of America is not responsible for, and does not collect,
income or other similar taxes with respect to transactions occurring
between User and any other party, except as may be required by applicable
federal or state law in particular cases. The reporting and payment
of any such taxes is the legal responsibility of each user who sells
goods or services via Barter of America's Service. Barter of America
is required by federal law to obtain IRS Form W-8 or W-9 from all
users and to report the gross proceeds of all barter transactions
of those users who are not exempt from such reporting to the Internal
Revenue Service on Form 1099-B. See About Fees and Taxes.
Barter of America is not responsible for, and does not collect,
sales tax on our site for transactions occurring between our users.
The collection of sales tax is the responsibility of each user who
sells goods or services via Barter of America's Service. User agrees
and affirms that Barter of America is not its agent and that in
the event any jurisdiction successfully asserts such relationship
and successfully imposes a sales and use tax collection and remittance
obligation upon Barter of America, User agrees to hold Barter of
America harmless and will reimburse all such taxes and costs incurred
by Barter of America, in cash, upon presentment by Barter of America.
Barter of America collects sales tax for goods and services that
Barter of America sells from the Service to customers in California, Nevada
or any other state where we have offices, as required by applicable
Barter of America may allow User to transfer Trade Dollars from
User's Barter of America account to the Barter of America account
of other users that have registered with Barter of America as charitable
organizations. Barter of America is not responsible for verifying
or certifying the tax-exempt status of any charitable organization
appearing on the Service. A transfer of Trade Dollars to a charitable
organization will be conducted by User or pursuant to User's instructions
only and User is solely responsible for verifying the status of
the organization User is transferring funds to. Barter of America
takes no responsibility for (a) verification of the charitable status
of the organizations involved, (b) the documentation required by
the Internal Revenue Service to determine or confirm the tax effect
of a contribution, (c) determination of the value of the contribution,
or (d) the accuracy or issuance of receipts by the charitable organization.
Users should seek advice from their tax advisor prior to making
a determination regarding the tax status of any such contribution.
User hereby agrees to comply with any and all applicable U.S.,
state, or foreign tax law, including the tax reporting of transactions
and the collection of sales tax.
User shall indemnify, defend and hold harmless Barter of America
and all of its subsidiaries, affiliates, officers, directors, owners,
agents, co-branders or other partners (including without limitation
The Barter Store.Net), employees, information providers, licensors
and licensees (collectively, the "Indemnified Parties")
from and against any and all liability, costs, losses, damages,
claims and demands, including without limitation attorneys fees
and costs incurred by the Indemnified Parties, arising out of or
related to (i) User's use of the Service including listing, buying
and selling goods or services and providing Content; (ii) any breach
or non-compliance by User of this Agreement, any of Barter of America's
rules or policies or User's representations, warranties and covenants
contained herein, including but not limited to Sections 10 (Taxes),
4 (User Responsibilities), and 9 (Proprietary Rights); (iii) any
dispute or litigation between an Indemnified Party and a third party
caused by User's actions; and (iv) User's negligence or violation
or alleged violation of any rights of another. User shall fully
cooperate with the Indemnified Party and provide all assistance
reasonably requested by the Indemnified Party in the defense and
settlement of any claim. The Indemnified Party shall have the right
at its own expense, but not the obligation, to assume the exclusive
defense and control of any matter subject to indemnification by
User, and User shall not in any event settle any matter without
the written consent of the Indemnified Party.
12. Disclaimer of Warranties
THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS
AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE,
IS PROVIDED "AS IS." TO THE FULLEST EXTENT PERMISSIBLE
BY LAW, BARTER OF AMERICA AND ITS SUBSIDIARIES AND AFFILIATES MAKE
NO REPRESENTATION OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT
ON THE SERVICE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE
ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SERVICE,
FOR ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES
OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF
SENSITIVE INFORMATION THROUGH THE SERVICE OR ANY LINKED SITE. BARTER
OF AMERICA AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS
OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IT IS SOLELY
USER'S RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, USEFULNESS
OR VALIDITY OF ALL OPINIONS, ADVICE, SERVICE, PROMOTIONS, ADVERTISEMENTS,
AWARDS, PRIZES OR OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY
OF ALL GOODS AND SERVICES, OFFERED ON THE SERVICE.
13. Limitation of Liabilities
BARTER OF AMERICA SHALL NOT BE RESPONSIBLE OR LIABLE TO USER OR
ANY THIRD PARTIES UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL,
SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT
NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA
OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH
BARTER OF AMERICA OR THE SERVICE, OR USE THEREOF, OR ANY OF THE
DATA OR OTHER MATERIALS TRANSMITTED THROUGH OR RESIDING ON THE SERVICE
OR ANY GOODS, SERVICES, OR INFORMATION PURCHASED, RECEIVED OR SOLD
BY WAY OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE
OF THE CAUSE OF ACTION, EVEN IF BARTER OF AMERICA HAS BEEN ADVISED
OF THE POSSIBILITY OF DAMAGE OR LOSS.
IN NO EVENT SHALL BARTER OF AMERICA'S TOTAL CUMULATIVE LIABILITY
ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICE EXCEED
THE AMOUNT OF FEES USER HAS PAID TO BARTER OF AMERICA DURING THE
SIX (6) MONTHS IMMEDIATELY PRECEDING ACCRUAL OF THE RESPECTIVE CLAIM.
THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Statements, notices and other communications to User may be made
by mail, email, and postings within User's account or other reasonable
means. Barter of America may also provide notices of changes to
the Agreement or other matters by displaying notices or links to
notices generally on the Service. Notice to Barter of America may
be made by mail to: Member Relations, Barter of America.com, Inc.
at 3200 Adams Ave. Suite 105 San Diego California 92116.
14.2 Attorney Fees.
Except as set forth in Sections 2.2 (Disputes) and 11 (Indemnification),
in any dispute under this Agreement or related to the Service, the
party losing such claim shall pay the reasonable attorney fees and
costs of the party prevailing in such claim.
14.3 Jurisdiction/Arbitration; Enforcement.
User agrees that any dispute or claim arising out of or related
to the Service or this Agreement, or the interpretation, making,
performance, breach or termination thereof, shall be finally settled
by binding arbitration in San Diego, California under the American Arbitration
Association Arbitration Rules by one arbitrator appointed in accordance
with said Rules. The proceedings shall be conducted and all evidence
shall be offered in the English language. User agrees that any claim
against Barter of America must be filed within one (1) year of the
time such claim arose, regardless of any law to the contrary; otherwise
such claim will be barred forever. The parties agree that, any provision
of applicable law notwithstanding, they will not request, and the
arbitrator shall have no authority to award, punitive or exemplary
damages against any party.
Notwithstanding the above, Barter of America may apply to any court
of competent jurisdiction (i) for a temporary restraining order,
preliminary injunction or other interim or conservatory relief as
necessary, including without limitation for breach of Section 9
(Proprietary Rights) or (ii) to enforce the Barter of America Trade
Starter Terms and Conditions, without breach of this arbitration
agreement and without any abridgment of the powers of the arbitrator.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS
OF LAWS PROVISIONS, AND THE ARBITRATOR TO THE MERITS OF ANY DISPUTE
OR CLAIM SHALL APPLY SUCH LAW. FOR ANY NON-ARBITRAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, SOLE
AND EXCLUSIVE JURISDICTION SHALL RESIDE WITH THE APPROPRIATE STATE
OR FEDERAL COURT LOCATED IN SAN DIEGO, CALIFORNIA.
14.4 Third-Party Rights.
Except as otherwise provided in this Section, this Agreement is
not intended and shall not be construed to create any rights or
remedies in any parties other than the parties hereto, and no person
shall assert any rights as a third-party beneficiary hereunder.
This Agreement is intended and shall be construed to create the
rights and remedies against User expressly provided to The Barter
Store.NET hereunder, and The Barter Store.NET shall be a third-party
beneficiary of this Agreement with respect to its rights and remedies
User shall not assign this Agreement or any rights or obligations
hereunder, by operation of law or otherwise, without the prior written
approval of Barter of America, and any such attempted assignment
shall be void. Barter of America shall have the right to freely
assign this Agreement, and its rights and obligations hereunder,
to any third-party without requiring the consent of or notice to
User. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto, their successors
and permitted assigns.
14.6 No Waiver.
The failure of Barter of America to exercise or enforce any right
or provision of the Agreement shall not constitute a waiver of such
right or provision.
14.7 Sever ability.
If any provision of this Agreement is held to be unenforceable,
such provision shall be reformed only to the extent necessary to
make it enforceable. In any event, the remaining provisions shall
Headings are for reference purposes only and in no way define, limit,
construe or describe the scope or extent of such section.
14.9 Entire Agreement.
This Agreement constitutes the entire agreement between Barter of
America and User with respect to User's use of the Service.
Click here to view our Client
ACCEPTABLE USE POLICY
Information and the sale of your item(s) on Barter of America.com
- shall not be fraudulent or involve the sale of counterfeit
or stolen items;
- shall not infringe on any third party's copyright, patent,
trademark, trade secret or other proprietary rights or rights
of publicity or privacy;
- shall not violate any laws, statute, ordinance or regulation
(including without limitation those governing export control,
consumer protection, unfair competition, anti-discrimination or
- shall not be defamatory, trade libelous, unlawfully threatening
or unlawfully harassing;
- shall not be obscene or contain child pornography or, if otherwise
harmful to minors;
- shall not contain any viruses, Trojan horses, worms, time bombs,
cancel bots or other computer programming routines that are intended
to damage, detrimentally interfere with, surreptitiously intercept
or expropriate any system, data, or personal information;
- shall not link directly to or include descriptions of goods
and services that you do not have a right to link to or include.
Furthermore, you may not list or sell on our site any item that,
upon receipt of the transaction fee from the buyer, could cause
us to violate any applicable law, statute, ordinance or regulation.
In addition you are not to list or sell live animals, human beings
or body parts (relics, skulls, human remains or other parts),
bulk e-mail lists, switchblades, Securities (stocks, bonds, annuities
etc.), Insurance products (life insurance, property/casualty,
disability etc) and or any firearm.
Additional Terms & Conditions
- Contents of this Web site are the property of Barter of America.com.
The Barter of America.com logos are trademarks of Barter of America.com
and may not be used without the prior written consent of Barter
of America.com. If you have any questions concerning the use of
Barter of America.com or the Barter of America.com logo, please
- Barter of America.com reserves the right to refuse service to
anyone using this service.
- Barter of America.com is not responsible for the content or
context used in the listings.
- The use of private user information is strictly prohibited.
- Barter of America.com cannot guarantee that we will notice or
prevent any inappropriate use of this system. This includes but
not limited to underage persons, or persons acting under false
- Barter of America.com cannot guarantee that we will notice or
prevent users from registering with false demographic information.
- Barter of America.com is not responsible for damage or loss
caused by errors in the system or the Internet. The system may
be unavailable unexpectedly as a result of errors or circumstance
beyond our control.
Investigations of violations of the AUP
- Barter of America.com will cooperate with all government officials,
international organizations and law enforcement authorities seeking
to clarify whether any User has violated the AUP.
- Barter of America.com and Users pledge to comply with all applicable
- Privacy is of fundamental importance to Barter of America.com
(see our Privacy Statement) who will respect and protect the privacy
of Users. Private information will be disclosed to law enforcement
authorities only as required by law.
- Barter of America.com will not knowingly host illegal content
if such content is determined to be illegal by a court of competent
- Although Barter of America.com is unable to monitor all content,
Barter of America.com will make a reasonable effort to investigate
legitimate complaints about alleged illegal content or network
abuse, and will take appropriate action.
- Prior to taking any action, upon receipt of such complaints
Barter of America.com will:
(a) conduct an internal review to determine the nature and location
of the content or abuse, and where warranted;
(b) consult with legal counsel and/or outside authorities, and/or;
(c) notify the User or abuser of the complaint, with a request
for a response within seven days
Barter of America.com's secure server is equipped with encryption
software. The software is designed to ensure that Internet transactions
stay private and protected. Our secure server software (SSL) is
the industry standard and is among the best software available today
for secure commerce transactions. The software is designed to encrypt
all of your personal information including credit card number, name
and address so that it cannot be read as the information travels
over the Internet. Encryption is a means of scrambling information
for transmission, in this case, between your PC and Barter of America.com's
computing systems. Information that is encrypted at one end is decrypted
(decoded) upon receipt at the other end.
Barter of America.com assigns a unique account number to each user
for use in transactions with other users. Each user will have a
unique password to gain access to the secure Barter of America.com
database through the Barter of America.com Web site. Despite our
extensive software security no security system can protect you if
you divulge your password.
Therefore, you must not disclose your password to any third parties.
If you lose control of your password, you may lose substantial control
over your account information and may be subject to legally binding
actions taken on your behalf.
Therefore, if your password has been compromised for any reason,
you should immediately change your password.