The following additional provisions (hereinafter referred to as “Terms & Conditions”) form a part of and are incorporated by reference and made a part of the Trade Account Application and Agreement (“Client Agreement”) between Client and New England Trade, Inc. (“NET”) These Terms and Conditions are also posted on the NET website, www.newenglandtrade.com.
Note To Clients of Cape Cod Trade LLC: Cape Cod Trade LLC (“CCT”), while an independently owed company, is managed by NET. All trade transaction are conducted through the NET trade network and administered by NET. These Terms and Conditions shall in all respects govern all transactions conducted by you as a Client of CCT. As the context so permits: (i) all references herein to Client Agreement shall mean the Trade Account Application and Agreement between Client and Cape Cod Trade;(ii) all references herein to NET shall include CCT as applicable.
Any trade purchase or sale by Client constitutes acceptance of these Terms & Conditions as may from time to time be amended in accordance herewith.
1. Nature of the Parties
NET is a trading company that also acts as a clearinghouse and third party record keeper of barter transactions among its clients, which are businesses that contract with NET to organize and facilitate barter of their goods and services with other clients. “Client” is a business or individual that has contracted with NET to exchange its goods and/or services with other Clients and wishes to subscribe to NET’s record keeping and barter services.
2. Nature of Trade Dollars
A “trade” is a barter purchase or sale of goods and/or services whereby payment is made in trade dollars posted to Client’s account pursuant to these Terms and Conditions. A trade dollar is an accounting unit used to record the value of trades. Ownership of trade dollars denotes the right to receive goods or services available within the NET trade network. Trade dollars may be used only in the manner and for the purpose set forth in these Terms and Conditions. They will not be considered legal tender, securities or commodities. They may not be redeemed for cash. NET disclaims responsibility for the negotiability of trade dollars or for the availability of goods or services from any source.
3. Liability for Trade Dollars
Client acknowledges that trade dollars in the barter system (positive balances) are the liabilities of persons who have spent more than their earnings (negative balances); that there is a creditor/debtor relationship between such persons, and that trade transactions incur the normal business risks associated with any credit transaction. As a general rule, trade dollars are the liabilities of Client who owe the barter system, and not of NET, which is solely liable for its own indebtedness. NET is authorized to establish a bad debt reserve fund by charging all accounts on a regular basis an amount in trade dollars to be paid into such fund. Any positive balances abandoned or surrendered by former members in accordance with these Terms and Conditions may also be paid into the reserve fund.
4. Trade Dollar Loans
Client grants to NET the right and power to make trade dollar loans to any Client on terms and conditions consistent with a client’s credit worthiness and ability to repay. The exercise of this power shall be at sole discretion of NET management with regard to principal, interest, terms and conditions, lending policy and other particulars. Clients wishing to apply for a loan may be required to submit a loan application, financial statement, credit agreement, promissory note or equivalent collateral prior to approval. NET is under no obligation to extend credit at any time. If a negative trade balance exists in the client’s account when account is canceled by NET or Client as outlined in these Terms & Conditions, NET will require that the Client pay the balance immediately in cash. All credit lines are personally guaranteed by the individual signing the Client Agreement as set forth in Section 29 hereof.
5. Brokerage Function
NET serves in a brokerage capacity in organizing and facilitating trades among Clients. Responsibility for the conduct of a trade is exclusively that of the two Clients participating in the trade. The duty to inspect goods for quality and quantity rests upon the buyer. NET will use its best efforts to broker the trade dollars of Clients into goods and services, to accurately record trades, and to administer these Terms and Conditions in accordance with its terms. However, Clients acknowledge that the sole principals in any trades are the buying and selling Clients involved, that trades are entered into voluntarily, and the NET is not the guarantor of any trade or trade dollar Client has the obligation to determine whether the provider of any services possesses the competency and professionalism to adequately provide such service to the Client.
NET is functioning in a brokerage capacity and Client does hereby indemnify and hold NET harmless with respect to any claim, debt, or liability whatsoever, arising out of any trade exchange transaction where Client is a buyer or seller.
6. Solicitation of New Businesses
NET shall use its best efforts to solicit new businesses having products or services to satisfy the needs of all Clients. NET is not responsible if a Client cannot find specific products or services to buy from the other Clients.
7. Definition of Client in Good Standing
A Client who conducts trades in accordance with these Terms and Conditions, is current in any monies owing to NET, and has a valid un-expired Client account, is to be considered a “client in good standing.” Only Clients in good standing are entitled to the services of NET and to otherwise participate in trades with other Clients.
8. Payment of Fees
Client agrees to pay to NET all amounts due in cash and trade dollars as detailed in NET’s then effective Statement of Fees. The Statement of Fees is published on the NET Website and written copies are available upon request. NET reserves the right to amend such fees by providing 30 days advance notice to Client prior to the effective date of any such amendment.
Client agrees to pay the NET the full amount of such fees within fifteen (15) days of issuance of the monthly invoice; otherwise NET shall charge Client a finance charge on the outstanding balance at the rate of 1.5% per month on the unpaid balance, (eighteen percent (18%) per annum) and a $15.00 cash monthly late charge, or up to the maximum amount as may be provided by applicable law if lesser than the forgoing..
Any Trade Dollar account with a negative balance (purchases exceed sales) shall be assessed a 1% per month carrying charge. The carrying charged will be assessed in trade dollars monthly and will be added to the statement of the account.
NET may, at its option, require advance payment of Client transactions fees. All fees and charges, including initial retainer fees, transaction fees, maintenance fees, and other charges to Clients by NET are in payment for services rendered in processing Client into the exchange system, operating the clearinghouse and brokerage functions, administering these Terms and Conditions, maintaining records and facilitating Client’s use of the exchange system.
In the event that Client is in arrears for any cash fees beyond thirty (30) days for the date due, NET shall suspend Client’s right to usage of any positive trade credit balance in Client’s account, and Client grants to NET the right to hold any such balance until Client brings its account current, by paying all amounts due to NET.
Any account continuing in a delinquent status for three (3) consecutive months may be closed without further notice by NET. Positive Trade dollars in the account will be forfeited and placed by NET in its Bad Debt Reserve Account.. At any time within six (6) months of the date the account is closed, the Client may reestablish the account and reclaim the trade dollars by paying all outstanding amounts due NET hereunder together with a $100.00 cash reactivation charge, and on the further condition that arrangement be made all future charges to be paid on auto-pay.
9. Basis For Commissions
On all transactions engaged in by Client through NET, or for which NET referred Client to a potential trading partner, the commission due NET shall be based upon the full value of the transaction, regardless if the transactions is paid for by cash, cash/ trade blend, credit card, check, direct trade, or through another barter company in which Client is a member.
10. Returned Checks
A fee of thirty dollars ($30.00) will be charged on all returned checks, payable to NET within three (3) business days of notice to Client.
11. Trade Procedure and Trade Policies
Depending upon the nature of the trade transaction, such as by way of example, gift certificates, advertising, or travel, there may be specific trade policies which apply to the transaction. Prior to making any trade transaction, Client is responsible for reviewing the NET Website to determine if there are any applicable trade policies which may apply to the contemplated transaction.
Client must have a valid, current trade card and be in good standing in order to make a purchase. Client is solely responsible for all charges made on card(s) issued to Client’s account. NET is not responsible for use of cards by unauthorized persons. Cards will be issued only by written authorization from the individual who signed the Client Agreement, or such other business officer or member as may subsequently be duly authorized.
A selling Client shall be a client in good standing and agrees to furnish all products, materials, or labor at Client’s normal prevailing prices.
12. Trade Authorization
A. Seller’s duties: To receive credit for transactions, seller must:
1. Obtain an authorization number from the NET office on each transaction before releasing merchandise or performing a service. The buyer’s account will be debited for the amount of the purchase at that time. NET is not responsible to honor authorizations granted due to any misrepresentation made by buyer or seller. NET reserves the right to refuse to issue an authorization number approving a transaction pending resolution of any questions or concerns it may have concerning the proposed transaction.
2. Obtain the buyer’s signature on a NET transaction voucher (or other approved proof-of-purchase document).
B. Buyer’s duties:
1. Buyer shall have twenty-one (21) days after the transaction appears on buyer’s next NET statement to reject the trade only under the following conditions:
a. Improper quantity was delivered.
b. The goods were not in the same condition as displayed in the sample or advertising.
c. The services were not as represented.
d. The merchandise was damaged or unusable.
2. In the event of a rejection, the buyer shall notify both NET and the seller within twenty-one (21) days of the statement upon which the transaction is recorded. Upon receipt of said rejection, NET will transfer the funds to a pending account. The buyer will be debited for the trade and the trade will be transferred to the pending account. The seller will not be credited for the transaction. NET shall hold the funds in the pending account subject to resolution by the parties of any dispute.
3. Neither party will be responsible to pay the brokerage commission as long as funds are held as pending by NET.
13. Record Keeping and Errors
Client’s monthly statement will be considered accurate as printed unless the NET accounting department is notified of any discrepancies within twenty-one (21) days of issuance of each such statement. An audit of Client’s account to resolve any such discrepancy is subject to a twenty-five (25) trade dollar charge per hour, one (1) hour minimum, unless NET has been found in error. All copies of statements requested within forty-five (45) days of their issue will be sent free of charge. Any request after forty- five (45) days of issuance will be subject to a ten (10) trade dollar charge per statement copy.
14. Laws and Regulations
Clients shall abide by applicable federal, state or local laws, or regulation appropriate to any trade, and NET shall not be responsible for any failure on the part of Client to comply. Client agrees to hold NET harmless for any action NET takes to comply with applicable laws or regulations pertaining to Client’s business or participation in the NET network.
Seller shall charge the appropriate sales, excise, and other taxes and collect and record these on the NET invoice at the time of sale. Under no circumstances will NET be responsible to pay any sales, excise, use or other tax on behalf of any Client. Client acknowledges that transactions involving trade dollars are generally treated as taxable events for federal, state, and local tax purposes. The declaration and reporting of all applicable local, state and federal taxes resulting from trade transactions rests solely with the Client. NET is required by federal law to obtain the correct taxpayer identification number of Client (who is required by law to provide such number) and to report all trade sales of Client to IRS on Form 1099-B. Failure to provide the correct taxpayer identification number may result in the imposition of backup withholding of twenty (20) percent of the gross proceeds of each sale transaction, under federal law. Client agrees to hold NET harmless for any actions NET takes to comply with federal tax laws.
16. Assignment of Account
A Client’s account is not assignable or transferable by Client without NET’s express prior written consent in each such instance. Trade dollars may not be advertised for sale without NET’s express prior written consent in each such instance. In the event of bankruptcy or insolvency of a Client where assets of the Company will be sold, NET has the first right of refusal to bid on trade dollars to be liquidated.
17. Direct Trades
Direct trades between Clients to avoid service fees or commissions are prohibited, and if consummated are subject to standard cash transaction fees payable upon demand. Such trades may also result in immediate suspension or termination of the Clients involved.
A Client can request that its account be placed on “stand by” under the following conditions:
1. Client’s account must have a positive balance
2. Client must give notice to NET
3 Client must be in good standing
An account which has been placed on “stand by” status has the right to spend accumulated trade dollars, but shall receive no additional business. “Standby” status (whether requested by Client or imposed by NET) cancels contractual commitments by NET regarding exclusive territories or other applicable agreements.
19. Suspension of Trading Privileges
NET reserves the right, at its sole discretion, to suspend the trading privileges of any Client who:
1. Engages in unfair business practices against NET or any other Client;
2. Is in breach of this agreement or other terms of the Trading Rules and Regulations; or
3. Ceases to be a Client in good standing.
Client shall be given notice of such suspension. The trading privileges of the Client shall be reinstated immediately upon Client’s cure of the reasons for such suspension unless due to the nature thereof, NET decides to terminate the Client for cause in accordance with the below Section 21.
Either party may terminate this Agreement upon twenty-one (21) days written notice to the other party.
Immediately upon termination, with or without cause, all cash and trade dollar service fees outstanding become due and payable and:
1. If client has a negative trade balance (purchases exceed sales), Client must balance the account with trade dollars within thirty (30) days of the termination date and, after the thirty (30) day period, immediately pay NET any remaining negative balance in cash; or
2. If client has a positive trade account balance (sales exceed purchases), Client may stay active and spend the balance until purchases equal sales by paying NET in advance the cash service fees on the positive balance. Until trade dollars are spent, monthly maintenance fees will be charged to Client’s account.
3. NET identification cards must be returned immediately upon termination. In event of termination by either party, there shall be no refund of transaction fees or any other fees.
21. Suspension/Termination for Cause
NET may, without prior notice to Client, suspend Client’s participation in the NET trading network or terminate this Agreement if it appears to NET that Client’s financial circumstances, or Client’s conduct in connection with this Agreement or in connection with Client’s business practices is such that there is a reasonable potential for harm being caused to either the business interests of NET, or that of its other Clients, or to the general public. The following are specifically designated as grounds for immediate suspension/termination but shall not be construed as an exhaustive listing of any such grounds:
a. The filing of any proceedings or petition by Client under Federal or State law seeking protection from its creditors or any assignment made by Client, whether formal or informal, for the benefit of Creditors;
b. The appointment of a Receiver or Trustee with respect to Client’s business affairs or the filing of any involuntary proceeding against Client by its creditors;
c. Client’s failure to cure any breach of this Agreement within the applicable time period allowed;.
d. Client’s loss or suspension of any license held by it which is necessary for Client’s business operation;
e. NET’s receipt of three or more complaints within an 18 month period which relate to Client’s business practices;
f. Client’s engaging in a direct trade exchange with any other Client, or charging cash for a transaction contrary to this agreement;
g. Client’s engaging in any unfair business practices towards NET, or another Client, or the general public.
22. Amendment of Terms and Conditions
NET reserves the right to from time to time amend these Terms and Conditions as it deems warranted to the conduct of its business and the trade network. Client shall receive a notice of any such amendment at least thirty (30) days prior to the effective date thereof and a copy of the amended Terms and Conditions will be posted on the NET website for a minimum period of thirty (30) days prior to such effective date. A written copy of such amended Terms and Conditions can be obtained by Client through its account representative. Any trade transaction engaged in by Client subsequent to the effective date of any such amended shall constitute Client’s acceptance of such amended Terms and Conditions and shall be subject to the provisions thereof without exception.
23. Fee Changes
NET reserves the right to change maintenance fees and transaction fees from time to time. Client shall be notified at least thirty (30) days in advance of the effective date of any such changes and such changes will be posted on the NET website at least thirty (30) days prior to the effective date thereof.
24. Disclaimer of Liability
NET makes no representations or warranties, either express or implied, and disclaims all liability as to the fitness, quality, delivery date, merchantability, prices or any term of the trade transaction or the competency of any service provider. Client does hereby indemnity and hold NET harmless with respect to any claim, debt, or liability whatsoever, arising out of any transaction wherein Client is a buyer or seller. Client acknowledges that any trade transaction in which it participates is conducted on a voluntary basis.
NET is functioning in a brokerage capacity, and as a third party record keeper, and shall not be named as a party to any dispute between Clients.
26. Trade Cards
NET Trade Cards issued to Clients shall remain the property of NET and must be returned upon demand. All users of NET trade cards including the individual signing for the buyer, the transferee, if any, and the company in whose name the NET card was issued assume joint and several responsibility to comply with these Terms and Conditions.
The individual signing the Client Agreement as well as any individual using a trade card personally guarantee any transaction as well as any cash service fees that may have occurred as a result of such transaction.
27. Security Interest
Client grants NET a secured interest in all trade dollars credited and to be credited to Client’s account for the amount of all unpaid cash fees and other payments due NET. In the event of the insolvency or bankruptcy of Client, all cash fees shall be due and payable in full. Upon the filing of petitions under Chapter 7, 11, or 13 of the Bankruptcy Code or an Assignment for the Benefit of Creditors, no trade shall be allowed until all cash fees and other amounts due NET have been paid in full, and future trades will be allowed only where the fees are fully paid in cash in advance of the trade. Should the Petition under Chapter 7 of the Bankruptcy Code be filed by or against Client, or should the plan filed pursuant to either Chapters 11 or 13 not provide for the full payment of all cash fees due NET, NET shall have the option in lieu of filing as a creditor, of treating the trade dollar balance equal in value to the amount of cash fees owing and terminating the account; provided, however, that at such time as NET does receive all of its cash in full, and, in the event of a discharge pursuant to Chapter 7 notice is received from the trustee that the trade dollars have been abandoned, NET shall re-credit the trade dollars to Client’s account.
28. Advertising & Marketplace
Unless otherwise stipulated between the parties to this Agreement, Client authorizes NET to notify, advertise, and to list in Marketplace the availability of Client’s products and services.
If the client is a corporation, a llc, or other business entity, the person executing the Client Agreement, to induce the granting of credit to the Client, and in consideration therefore, does hereby guarantee personally payment of all amounts owed to NET, and hereby waives any requirement on the part of NET to proceed with its claim against the business entity, either first or concurrently, as a condition precedent to bringing any action against such individual on the basis of this guaranty. The Client and individual signing the Client Agreement hereby assume joint and separate responsibility for all purchases and fees as outlined in the Client’ Agreement and in these Terms & Conditions.
30. Commitments & Responsibilities
NET is only responsible for commitments and representations made in writing by a duly authorized officer. Brokers, agents or employees of NET have no right to bind NET to any obligations or representation whatsoever without such written authorization in each instance.
31. All Trades Must Be In Trade Dollars
The trade dollar must be accepted for the total value of the transaction. Any exception to this policy, such as by way of example a trade transaction involving a cash component, must be approved in advance by NET, without exception.
32. Gift Certificates
Gift Certificates are from time to time issued by various businesses and made available through NET to its Clients. In no event shall NET be deemed to be the issuer of any Gift Certificate. NET allows the refund or exchange of a gift certificate only within sixty (60) days of purchase by a Client. All disputes concerning the use of a gift certificate are between the Client and the business issuing the Gift Certificate, and NET bears no liability in the event the issuing business refuses to honor the Gift Certificate or ceases to operate the business.
33. Time Limits for Spending Trade & Abandonment
All trade dollars must be spent within eighteen (18) months of the date they are acquired. This provision may be waived only with express written consent by an authorized officer of NET. Accounts with no sales in previous 12 months may automatically convert to e-statements; accounts will be charged the current standard fees plus an additional inactivity fee of $20 trade dollars per month. Any previous agreements on fees will no longer be valid.
Client’s account will be considered abandoned if a) it has been more than two (2) years since Client has made any barter sales or purchases and b) NET is unable to contact Client at the most recently updated contact information furnished by Client. NET may, at its sole discretion, close the abandoned account, placing any positive trade dollar balance in the Bad Debt Reserve Account.
34. Disputes Between Clients
Client hereby agrees that all disputes between Client and any other NET client which in any way relate to participation in the NET trading network shall be submitted in writing with supporting documentation to NET for resolution. NET shall have a period of 45 days to attempt to mediate a settlement of any such dispute, after which period Client is free to take whatever action it deems appropriate.
NET, in its sole discretion, may from time to time waive any provision of the Client Agreement or these Terms and Conditions for any Client as it deems warranted in its sole discretion. Any such waiver, to be effective, must be in writing and executed by an authorized officer of NET. It is understood that any such waiver shall be strictly limited to the specific terms of the written waiver document. Except as provided for by the foregoing, any failure of NET to insist upon strict compliance with any particular term or provision of the Client Agreement or these Terms and Conditions, or any delay or omission on the part of NET to enforce any such term or provision, shall not constitute a waiver with respect to any such term or provision.
36. Notices To Client
All notices required or permitted to be sent to Client shall be sent by NET by either first class mail to the Client’s current address of record or via electronic mail to the Client’s current e-mail address of record. Client is responsible for updating the Client’s mailing and e-mail addresses should any changes occur. All notices required or permitted to be sent to NET shall sent by Client by either first class mail to the attention of President, 926 Eastern Ave., Malden MA 02148 or via electronic mail to email@example.com All such notices shall be deemed effective, if sent by mail, three business days following the depositing of such notice, postage pre-paid, in the mail, or if by electronic mail, on the date of successful transmission.
37. Entire Agreements
The Client Agreement and these Terms and Conditions constitute the entire agreement between the Client and NET and replace all prior agreements, if any, whether oral or written, between Client and NET or any predecessor of NET. Neither Client nor NET have relied upon any representation or promise which is not contained in either the Client Agreement or these Terms and Conditions.
In the event any term or provision of either the Client Agreement or these Terms and Conditions is for any reason held to be unenforceable or invalid by a court of competent jurisdiction, the remaining terms and provisions shall continue to be valid, enforceable and binding upon the parties.
39. Actions to Enforce Agreement
Except for any action commenced by NET to collect any amount due NET hereunder, all disputes between Client and NET arising out of or in any manner relating to either the Client Agreement or these Terms and Conditions shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of The American Arbitration Association. The parties agree that any such arbitration shall be commenced and heard exclusively in the Boston Massachusetts office of the American Arbitration Association and that any proceedings to confirm or enforce the arbitration award shall be commenced in the Superior Court sitting in Cambridge, Middlesex County, Massachusetts. Notwithstanding the foregoing, the parties may mutually agree to mediation or other dispute resolution proceedings.
40. NET’s Costs and Expenses
In the event NET incurs any costs or expenses to collect any sum due NET from Client, then NET shall be reimbursed by client for any such costs or expenses, including reasonable attorneys’ fees. In the event NET is the prevailing party in any other controversy or proceeding involving Client, then NET shall be entitled to the recovery of its costs, expenses and reasonable attorneys’ fees in addition to such other remedies being sought therein.
41. Governing Law
This Agreement shall in all respects be construed under and governed by the laws of the Commonwealth of Massachusetts without giving regard to its conflicts of law principals.
Updated March 1, 2012