TRADE & BARTER

MEMBER AGREEMENT

 

WHEREAS, WISE operates an association of businesses and professionals (“Network”) who have joined together to do business among themselves through an organized system which is regulated by the record-keeping and administrative services of WISE or its designee and through the medium of WISE Trade Dollars; whereby WISE functions as a clearinghouse for the transactions of the Businesses.

WHEREAS, WISE regulates the Network and acts as a third party record-keeper and administers the clearinghouse function of the Network for the Businesses.  WISE may contract with others to provide all or part of such services.

WHEREAS, Client is a bona fide and legal business that desires to do business with other businesses of the Network and hereby subscribes to WISE's services. Client warrants that it is in compliance with all State, Federal, industry and professional laws and regulations.

WHEREAS, WISE reserves the right of final approval of this agreement and may refuse to accept anyone as a Business for any reason it deems necessary.

NOW, THEREFORE, in consideration of the mutual promises set forth below, the adequacy and receipt of which is hereby acknowledged, Wise and Client mutually agree as follows:

 

1.  Responsibilities of the WISE Exchange

 

1.1  WISE is a service organization whose purpose is to direct Clients to each other for trading.  Wise shall administer Trade among Businesses.  All trade transactions are monitored and approved by WISE.

 

1.2  WISE shall maintain an interactive website to allow Client to access and view information on other clients and to offer Client products and services to be purchased for trade dollars, and to purchase other Client’s products and services using trade dollars. WISE hereby grants Client a non-exclusive license for the Term to access management reports in the form made available by WISE, in its sole discretion.  The term of this license shall be coextensive with the Term or earlier termination of the Agreement.  Upon expiration of the Term or earlier termination, Client shall immediately discontinue use of its licensed access.

 

1.3.  Additional Responsibilities.  Additional responsibilities of WISE, if any, are specified on any schedule attached hereto and incorporated herein by reference.

 

2.  Responsibilities of the Client

 

2.1    Client shall sell all goods and services at the same price as the client charges in a standard business transaction.  Selling Client must accept the purchase of goods and services in trade for any trade that is approved by WISE.  Client is obligated to stand behind its goods and services.

 

2.2. Personal Guarantee.  The individual having signatory authority for signing this Agreement on behalf of the Client will also personally guarantee the payment of any outstanding fees due WISE.  This individual is named the “Guarantor”.  

 

2.3   All trades with other WISE Clients must be done through WISE.

 

3. Trade Dollar Loans - (No Deficit Spending)

 

3.1  Purchases will be limited to the amount of Trade Dollars in the Buyer's account.  WISE does not permit deficit spending.  In the event of a deficit in an account, the outstanding balance must be paid to WISE immediately, either in products and services acceptable to WISE, or in cash, the method of payment to be determined solely at WISE’s discretion.  To secure Trade Dollar loans, Client and Guarantor hereby agree to be personally liable for any deficit amount.  Any account in a trade deficit will be charged 1-1/2% per month in cash or trade on the deficit amount as a Deficit Fee.

 

3.2  Client grants to WISE the right and power to make Trade Dollar loans to any Client on terms and conditions consistent with the Client's creditworthiness and ability to repay. The exercise of this power shall be at the sole discretion of WISE Management with regard to principal, interest, terms and conditions, lending policy, and other particulars.  Clients wishing to apply for a loan will be required to submit a loan application, financial statement, credit agreement, promissory note or equivalent collateral prior to approval, and will be required to personally guarantee payment of such loans.  Client also grants WISE the right to secure a credit report on Client and/or Guarantor.  However, WISE is under no obligation to extend credit at any time.  WISE will use its best efforts to ensure timely repayment of principal and interest, appropriate collateralization, and perfection of its security interest in all loans. Client acknowledges that all interest, fees, charges, and any other proceeds from such loans are the sole and exclusive property of WISE.  Violation of this clause will make the loan immediately due and payable in cash.

 

4.   Trading Policies & Procedures.

 

See Schedule B for the specific Trade Policies and Procedures.

 

5.  Term, Suspension and Termination.                        

 

5.1.  Suspension or Termination for Cause.  WISE may suspend a Client when, in its sole discretion, the Client: is insolvent, or likely to become insolvent; or is or has a serious credit risk; or has acted in a manner which is detrimental to the Exchange, or its other Clients; or has failed or refused to abide by the Terms and Conditions of their agreement.  During the time of suspension, the Client cannot participate in any trade activity.

At its sole discretion, WISE may reinstate Client or unfreeze Client’s account.

5.2.  Termination without Cause.  Either Party may terminate this Agreement with a thirty (30) day written notice.

 

5.3.  Reconciliation of Credits.  In the event of termination for any reason, WISE will determine the credit status of the terminating Client, as follows:

 

a.  Positive Trade Balance:  Trade Fees will be immediately paid on the total Balance, and Client will have the responsibility to spend out the balance within 60-days from the termination date. After 60 days, any remaining trade balance will be removed from the Client’s account, and the Client’s account will be closed.

 

b.  Deficit Trade Balance: On termination, immediate cash payment for the full amount of the trade balance will be made by the Client or designated third party Guarantor and will be automatically deducted from the Client’s bank account or credit card.  A signed authorization shall be provided upon execution of this Agreement and maintained on file at WISE.

 

6.  Confidentiality/Audit Rights.  The parties acknowledge that they may be furnished or may otherwise receive or have access to information relating to each other’s past, present or future products, software, research, development, inventions, processes, techniques, designs, price-data, price-list, customer lists, service materials or other technical data and information (all of such information and the existence and terms of this Agreement and any related agreements is referred to as the “Confidential Information”).  Each party agrees that it shall hold the Confidential Information (and all physical or other forms thereof) in strict confidence and shall not publish or disclose it to third parties, or use it or permit others to use it in any way, commercially or otherwise, without the prior written consent of the other party, except as expressly permitted by this Agreement.  Each party agrees that it will cause all of its employees, subcontractors (including employees of subcontractors) and any other persons that obtain, receive or have access to any Confidential Information to enter into confidentiality agreements prohibiting the use or disclosure of any such Confidential Information, except: (i) at the written direction of each other party; (ii) to the extent necessary to comply with law or valid order of a court of competent jurisdiction, in which event such party shall notify each other party as promptly as practicable (and, if possible, prior to making any disclosure) and shall seek confidential treatment of the information; (iii) as part of its normal reporting or review procedures to its parent WISE, its auditors and its attorneys who agree to be bound by this Section; (iv) in order to enforce any rights pursuant to this Agreement; (v) to obtain appropriate insurance, provided the insurance WISE agrees in writing to be bound by this Section; and (vi) to obtain financing, provided that any person or entity providing financing agrees in writing to be bound by this Section.  Client agrees to maintain accurate and timely information and will allow WISE or its agents to review such information upon reasonable notice for the purpose of verifying Client’s activities under the terms of this Agreement and for such other purposes as approved in advance by Client.

 

7.  Non-Solicitation.  Client hereby warrants that, during the term of this Agreement and for a period of five (5) years thereafter, it shall not compete directly or indirectly with WISE by use of business methods or processes developed by WISE, or those based on or substantially similar to WISE business methods or processes.  Client shall not compete directly or indirectly with Wise as a trade exchange, and/or in the provision of media advertising, discount programs for gift certificates, gift cards, rewards programs for credit/debit cards, conversion of credit items to cash, or marketing products or services to WISE’s customer base or target market, which includes non-profits, fundraising groups, Clients or media partners, including media advertising marketing services similar to those rendered or to be rendered under the terms of this Agreement (“Target Market”).    If Client is found to be in breach of this provision, then in addition to any other rights WISE is entitled to pursue in equity or at law, Client agrees to fully disclose the nature and extent of all transactions with WISE’s customer base or media partners, and shall pay WISE upon demand, by way of agreed upon liquidated damages and not as a penalty, an amount equal to three times the amount WISE would have charged for those services or products which are supplied by Client to such of WISE’s customer base or media partners; provided, however, that the value of such services or products shall be set by WISE in its sole discretion to resemble the fair market value of such products or services in an arm’s length transaction.   In the event that this Section is sought to be enforced and a court of competent jurisdiction deems a period of five (5) years to be of unreasonable duration, the parties hereby agree that the court shall determine what period would be reasonable under the facts and circumstances presented to it, and this Section shall be so modified to substitute the court-determined period for the five (5) year period herein.

 

8.  Disclaimer of Warranty and Liability.  WISE makes no representation or warranty, either express or implied, and disclaims all liability, that a Client will abide by the terms of the agreement, or as to the fitness, quality, delivery date, merchantability, prices or any term of any trade transaction.  Client agrees to indemnify and hold WISE 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 transaction facilitated by the WISE Network, in which Client participates is entered into on a voluntary basis.  Client agrees to waive any claim, debt, or liability whatsoever against WISE arising out of any computer or software malfunction or processing errors.

 

9.  Taxes.  Use of Trade Dollars is a taxable event, and each Client is solely responsible for declaring and reporting all applicable local, state, and federal taxes resulting from trade transactions. Client's yearly sales will be reported to the IRS on Form 1099-B in accordance with federal regulations governing barter transactions. Client agrees to hold WISE harmless for any action WISE takes to comply with applicable laws and regulations. Also, WISE must be informed of any changes in status reportable on a W-9 form.

 

Each party shall hold the other party and its affiliates harmless from any domestic or international public or quasi-public government taxes or fees which are based upon revenues derived by, or from the operations of, such party which are directly or indirectly related to this Agreement.  Each party shall be responsible for and shall pay all applicable federal, state and local taxes imposed by any domestic or international public or quasi-public governmental entity with respect to its activities related to this Agreement.

 

10.  Policy and Fee Changes.   At its sole discretion, WISE may amend this Agreement by giving the Client thirty (30) days notice via e-mail.   WISE may amend the Policies and Procedures with thirty (30) days written notice via e-mail.  Any purchase or sale by Client after these time frames constitutes acceptance by Client of such change(s) and the agreement of Client to abide by the same.

 

11.  Fees.  All Fees payable to WISE by Client will be paid in accordance with terms and charges as stipulated in Schedule A (attached).

 

12.  Severability.  Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law, and wherever there is any conflict between any provision of this Agreement and any law, such law shall prevail; provided, however, that in the event of any such conflict, the provisions of this Agreement so affected shall be curtailed and limited only to the extent necessary to permit compliance with the minimum legal requirement, and no other provisions of this Agreement shall be affected thereby and all such other provisions shall continue in full force and effect.

 

13.  Indemnification.  Client agrees to indemnify and hold harmless WISE, its affiliated companies, its (and their) officers, directors, employees, agents, legal successors and assigns harmless from and against any and all claims, fees, charges, actions, expenses, liabilities, damages, or losses whatsoever including, without limitation, reasonable attorneys fees, arising from the acts or omissions of Client in connection with this Agreement.  The indemnities and obligations herein shall continue in full force and effect notwithstanding the termination of this Agreement.  WISE agrees to indemnify and hold harmless Client from and against any and all claims, fees, charges, actions, expenses, liabilities, damages, or losses whatsoever including, without limitation, reasonable attorney’s fees, arising from the acts or omissions of WISE in connection with this Agreement.  The indemnifying party shall give the non-indemnifying party prompt written notice of any matter with respect to which the non-indemnifying party is entitled to indemnification hereunder.

 

14.   Resolution of Disputes  WISE is functioning in a brokerage capacity and, as a third-party recordkeeper, is to be held harmless on any liability question or other dispute arising between Clients.  All parties should exercise the same diligence in trade transactions as in ordinary business transactions for cash.  If WISE is requested by both Clients to resolve any dispute involving an Exchange transaction, WISE's decision shall be final, and Client and Guarantor agree to be bound thereby. WISE reserves the right to not issue a credit, or to reverse a credit, for any Exchange transaction, should a Client have a legitimate objection or complaint.

 

15.  Jurisdiction & Venue.  The parties consent to the personal jurisdiction of the courts of the State of Wisconsin and federal courts located in Wisconsin so that any arbitration or trial concerning or arising out of this Agreement shall be brought in Wisconsin.  The parties agree not to claim that Wisconsin is an inconvenient place for trial, and the internal laws of the State of Wisconsin, without regard to its conflicts of laws provisions, shall apply in any matter where the law so allows.  The venue of any action shall be brought in a court or tribunal located in or nearest to Milwaukee, Wisconsin. 

 

16.  Notices.  All legal notices and other official communications from either party to the other under this Agreement shall be in writing and shall be deemed to have been given when received by: hand delivery; telecopy (followed by notice transmitted); U.S. registered or certified mail, return receipt requested; or overnight delivery service, with acknowledged receipt.  All notices pursuant to this Agreement are to be written and delivered to:

 

                                Wise Exchange, LLC.

                                  PO Box 044305

                              Racine, WI  53404-7005

                               Attn.  Kurt Wise

Email:  Kwise@wiseexchange.com

 

 

17.  Construction and Modification of Agreement.  The existence, validity, construction, operation and effect of this Agreement and all exhibits shall be determined in accordance with and be governed by the internal laws of the State of Wisconsin, without regard to its conflicts of laws provisions.  The Agreement and exhibits constitute the entire agreement between the parties and supersede all previous understandings, commitments and representations concerning the subject matter.  Except as noted in this Section 14.7, this Agreement may not be amended or modified in any way except as provided in the Agreement or by a writing signed by an authorized officer of the party against whom the amendment, modification or waiver is sought to be enforced.

 

18.  Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original, and all such counterparts shall constitute one and the same instrument.  The parties also agree that this Agreement shall be binding upon the faxing by each party of a signed signature page thereof to the other party.  If such a faxing occurs, the parties agree that they will each also immediately post, by Federal Express or other reliable express courier, a fully executed original counterpart of the Agreement to the other party.  Each party shall cooperate with the other and shall execute additional documents as are reasonably necessary in order to carry out the provisions of this Agreement.

 

 


 

 SCHEDULE A

FEES

 

 

1. Payment of Fees

 

1.1     Setup Fee.  A new Client will be charged a one-time cash Setup Fee of Two Hundred Fifty ($250) Dollars for the 1st Location and $100 for each additional Location for the setup of the Client’s account in the WISE database.

 

1.2   Monthly Recurring Fee.  Client will be charged a monthly fee of $25 per Location and/or city listing to be paid in cash.

 

1.3.  Trade Fee.  The Buyer will be charged a Transaction Fee of Thirteen (13%) Percent of the total purchase for each completed trade, which shall be paid in cash and will be automatically billed and deducted from the Client’s designated bank account or registered credit card, as follows:

 

a.       Use of Credit/Barter Card:  within 24 hours after use.

b.       Use of Certificate:  within 24 hours after creation of the Certificate.

c.        Use of on-line trade:  Upon notification of receipt of products/services, or within 15 days of approved transaction, whichever is sooner.

 

1.4  In the event that WISE cannot collect trade fees from the Client, WISE will:

 

a.    Suspend the Client from trading, and

b.       Take all necessary legal actions to secure the payment of the fees, Including reasonable attorney's fees, court costs, and late fees at the rate of 1-1/2% per month in cash, with a minimum monthly late fee charge of $5.00. Client agrees to waive all rights to its usage of any positive balance in Client's account and grants WISE the right to hold any such balance as long as any cash fees remain outstanding.  Any account continuing in a delinquent status for more than 30 days may be closed without notice by WISE. All Trade Dollars in the account will be forfeited.   At any time in the future, Client may reestablish the account and reclaim the Trade Dollars by: (A.) Paying outstanding cash fees due plus a cash penalty of 1-1/2% per month on the outstanding balance or $10.00 per month (whichever is greater).  This will include the WISE monthly maintenance fee retroactive to the date at which the account was closed; and (B.) Paying a $50.00 reactivation fee.

 

2. Chronically Late Fees.  If Client's transaction fees are chronically late, to be solely determined by WISE, Client will be notified in writing, will lose the privilege of being billed for fees due on trade purchases, will be billed 12% of its current unspent trade account balance in addition to outstanding cash fees owed, and will be informed that its transaction fees will, in the future, be payable before a trade sale may be posted to its account.  Furthermore, Client's account shall be suspended from trading until all cash fees are paid.  Should account fees not be paid for sixty (60) days or longer, the trade balance may be forfeited at WISE' option.  Any cash fees will still be due and the account will be submitted to attorneys for collection.

 

3. Recordkeeping and Errors  All active Clients will have access to their account status 24/7 via online connection to the WISE Exchange database.  Each Client will receive a unique login/password to log into their account.  Client agrees to examine his/her/their account activity, and must advise the WISE of any discrepancies, in writing, within 21 days after the month in which the questioned transaction occurred.  If Client fails to notify WISE within the 21-day period, Client accepts the accuracy of the statements and agrees to be bound thereby.

 

4. Miscellaneous Fees.  WISE charges nominal service charges for duplicate statements, copies of past transactions, certified mail,  and other administrative services. Fees billed will be at the prevailing rate, as printed in the current Fee Schedule.

 

5. Termination and Cancellation Procedures.  Upon termination or cancellation of Client's account or of this Contract for any reason:

 

a.       Client shall be assessed a Thirteen (13%) Percent Cash transaction fee on the positive balance In Client's

account;

b.       All cash fees due must be prepaid by Client and/or Guarantor to WISE before any further spending of trade will be

Allowed;

c.        Positive balances may be spent pursuant to the terms of the Contract, subject to the Exchange fees set forth herein,

within 60 days of the cancellation or termination date.

 

 


 

 SCHEDULE B

TRADE POLICIES & PROCEDURES

 

1. Trade Procedures 

 

1.1  Credit/Barter Card.  When a Buyer decides to purchase a Seller’s products/services at the Seller’s location, the Buyer will use a Wise Exchange barter card to initiate the transaction.  Seller uses the options of a credit card terminal to swipe the card, telephone, or website which transmits the identifying Buyer/Seller information and the purchase amount to the WISE exchange database.  The WISE Exchange database determines the amount of Trade Dollars (“credits”) in the Buyer’s trade account,:

 

a.       If total trade amount can be deducted:  Automatically notifies the Seller that the trade is approved.

b.       If total trade amount cannot be deducted, the Buyer’s registered credit card will be used to pay for the difference between the available trade credits and the total amount of the trade request.  If the credit card cash amount is authorized, the Seller is automatically notified of the approved purchase.

c.        If the Buyer does not have sufficient trade credits and the amount to be paid with the registered credit card cannot be authorized, the trade request is denied, and the Seller is notified of the denial.

 

1.2  Use of Trade Certificates (Scrip)  A Buyer can access the Wise Exchange database, select a Seller, the products/services, and the total amount of trade credits, and request a Trade Certificate as the method of trade.  The Wise Exchange determines the available trade credits and approves or denies the trade.  If approved, the Buyer can automatically download a Trade Certificate specific to the trade.  When patronizing the Seller’s location, the Trade Certificate is given to the Seller, and the Seller can automatically validate and redeem the Trade Certificate using the credit card terminal, IVR (Integrated Voice Response) using the telephone, or the Website.

 

1.3  On-Line Trades.   A Buyer can access the Wise Exchange database, select a Seller, the products/services, and the total amount of trade credits, and request a trade.   The Wise Exchange determines the available trade credits and approves or denies the trade.  If approved, the Buyer and Seller will be automatically notified of the trade, and are responsible for completing the trade transaction.  Both the Buyer and the Seller will notify the Wise Exchange that the trade has been completed. 

 

2. Authorizations

 

2.1  All Exchange transactions must be approved by WISE to protect all parties and to receive credit for any transaction.

 

2.2  WISE has the authority to charge Buyer's account without the benefit of Buyer's validation, but the Buyer shall have twenty-one (21) days from the issue date of Buyer's next statement of account balance to object or complain relative to the accuracy or propriety of such unsigned sales draft.  After 21 days, all transactions shall be deemed accurate and final.

 

2.3  WISE reserves the right to reject any transaction for any of the following reasons.

 

a.  . If Buyer does not have sufficient Trade Dollars in its account and/or line of credit established to cover such purchase.

b.    If Buyer is more than 30 days delinquent in its cash fees due to WISE.

 

2.4  A WISE authorization issued to a Seller does not solidify a contract or the transaction involved. It guarantees to the Seller that the Buyer has sufficient Trade Dollars available to make the purchase, should the sale occur and all other terms of the sale be satisfied.

 

3. All Transactions are Between Buyer and Seller   WISE shall use its reasonable efforts to administer the Exchange, however. it shall bear no responsibility for the quality of the products and/or services exchanged. Seller must furnish Buyer with all items relating to the purchase, including but not limited to materials, products, labor base price, and sales taxes.  Seller will receive the full Trade Dollar value for the sale.  The Seller must stand behind its products and/or services as with cash transactions, and the Buyer's sole remedy shall be against the Seller.  In no event shall WISE be obligated to Client or Guarantor for any other Exchange Client's breach of this Contract or of the Exchange Rules and Regulations.  Both Buyer and Seller should protect themselves as they would in a cash transaction.  Normal contracts. deposits, and agreement forms used in ordinary cash transactions should still be utilized.  Quite simply, all ordinary legal rights between a Buyer and Seller on an Exchange transaction remain the same as if it were a cash transaction.  Only the method of payment is different, and WISE rules, and procedures must be adhered to. It is understood that WISE is not a party to any transaction between Buyer and Seller, but is merely a third party recordkeeper