Registered Member Participation Agreement

(General Covestors, PCMs and SBMs)

Applies to registered General CoVestors & Participating Community Members (hereinafter, “PCMs”) and Small Business Members (hereinafter, “SBMs”)

Welcome to the CQRMarket.org site (the “Site”) and our venue for an exchange of value (the “Services”). Any natural person who wants to access the Site and use the Services to exchange items must accept the terms and conditions of this CQR Initiative Member Agreement (“Participation Agreement”) without change. BY REGISTERING FOR AND USING THE SERVICES, YOU VOLUNTARILY AGREE TO COMPLY WITH ALL TERMS AND CONDITIONS OF THIS PARTICIPATION AGREEMENT, AND ALL POLICIES AND GUIDELINES OF THE SITE ARE INCORPORATED BY REFERENCE.

CQR Market, Unincorporated Association (“CQR,” “CQRMarket.org,” “CQR Market,” “we,” “us,” and “our”) reserves the right to change any of the terms and conditions contained in this Participation Agreement or any policies or guidelines governing the Site or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site. All notice of changes to this Participation Agreement will be posted on the Site for thirty (30) days. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING CQR’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS PARTICIPATION AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE.

Eligibility. Use of the Site and Services is limited to parties who lawfully can enter into and form covenants together under applicable law. For example, minors are not allowed to use the Services. To register, you must provide your real name, address, phone number, e-mail address, sponsoring assembly (When Applicable). You represent and warrant that: (a) if you are operating as a business, you are duly organized, validly existing and in good standing under applicable law; (b) you have all requisite right, power and authority to enter into this Participation Agreement and perform your obligations hereunder; and (c) any information provided or made available by you or your affiliates to CQR or its affiliates is at all times accurate and complete.
SBM Exchange Listing Terms. Please review the Schedule of Exchange Terms. All items are valued in terms of ounces of .999 fine silver, unless stated otherwise, and are incorporated herein by reference. The Schedule of Exchange Terms may vary in the future. The Schedule of Exchange Terms in effect on the date of the exchange shall govern the exchange. You should check the Schedule of Exchange Terms each time you participate. All exchanges of value, including but not limited to membership plans, are to be conveyed in .999 fine silver at the then-current spot price.
Applicable Policies and Guidelines. You agree to abide by the procedures and guidelines contained in the Policies & Agreement Page section for conducting fixed value (set as a certain amount denominated to the hundredth of an ounce of .999 fine silver) exchanges, which are incorporated by reference into, and made part of, this Participation Agreement. The procedures and guidelines contained in the Policies & Agreement Page explain the processes and set out acceptable conduct and prohibited practices. We may change these procedures and guidelines in the future, and such changes will be effective immediately upon posting without notice to you. You should refer regularly to the Policies & Agreement Page to understand the current procedures and guidelines for participating and to be sure that the items you offer for exchange can be exchanged on the Site. For each item you list on the Site, you will provide to us the state or country from which the item ships. You will provide to us (using the processes and timing that we designate) any requested information regarding shipment, tracking (to the extent available) and order status, and we may make any of this information publicly available. You will not send PCM emails concerning shipping confirmation of products you exchange (except that to the extent we have not yet enabled functionality for your account that allows exchange to be processed on the basis of when shipment occurs, then you will send PCM emails confirming shipment of products that you exchange in a format and manner reasonably acceptable to us). Promptly after shipment of a PCM’s order (or any portion of the PCM’s order), you will accurately inform us that the order has been shipped (and, in the case of a PCM order that is shipped in more than one shipment, accurately inform us which portion of the order has been shipped), using our standard functionality for communicating such information when we make that functionality available to you (“Confirmation of Shipment”). If you fail to provide Confirmation of Shipment within the time frame specified by us (e.g., 30 days after the date an order was placed), we may in our sole discretion cancel (and/or direct you to stop and/or cancel) any such exchange, and you will stop and/or cancel any such exchange upon such request by us. You will comply with any instructions from the manufacturer, distributor and/or licensor of a product regarding “Street Date for Delivery” (which means the date, if any, specified by the manufacturer, distributor and/or licensor of a product as the date before which such product should not be delivered or otherwise made available to PCMs) or the Street Date for Disclosure (which means the date, if any, specified by the manufacturer, distributor and/or licensor of a product as the date before which specified information regarding such product (e.g., title of a book) should not be disclosed publicly).
CQR'S Role. CQR provides a platform for approved third-party organizations (SBMs) and PCMs to negotiate and complete exchanges of value. CQR is not involved in the actual exchange between SBMs and PCMs, except as set out in Section 5. As an SBM, you may list any item on the Site unless it is a prohibited item as defined in the procedures and guidelines contained in the Policies & Agreements, or otherwise prohibited by law. Without limitation, you may not list any item or link or post any related material that (a) infringes any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy); (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen, or fraudulent. It is up to the SBM to accurately describe the item for exchange. As an SBM, you use the Site and the Services at your own risk. No advice is offered which may require licensure or certification (e.g. legal counsel, medical advice, accounting services, financial advisory, tax planning or other regulated services) which CQR and/or other third-party service providers may or may not have. No guarantees are offered as matters frequently take a course that cannot be predicted.
Exchange Processing Service. By rregistering for or using the Services, you authorize CQR to act as your agent for purposes of processing value-for-value exchanges, credits and/or adjustments for Your Exchanges (as defined below), receiving and holding Exchange Proceeds (as defined below) on your behalf, remitting Exchange Proceeds to your linked bank account, debiting your bank transaction card, and transferring to CQR and its affiliates amounts of silver that you agree to in accordance with this Participation Agreement and/or other agreements that you may have with CQR or its affiliates (collectively, the “Exchange Processing Service”). “Exchange Proceeds” means the gross proceeds from any of Your Exchanges, including all shipping and handling, gift wrapping and other expenses, but excluding any taxes separately stated and expensed. “Your Exchange(s)” means any exchange of your items through the Site. As used in this Section 5, “we,” “us” and “our” mean CQR. Notwithstanding anything to the contrary in this Participation Agreement, CQR may in its discretion perform the Exchange Processing Services described in this Section 5.
1. The Exchange Processing Service facilitates the equal exchange of SBM items listed on the Site using .999 fine silver. Silver exchanges are credited to a registered SBM’s Exchange Account (as defined in Section 5.l. below), whereby an equivalent amount of silver is periodically transferred to the SBM’s designated linked account (“SBM’s Account”). Alternatively, eligible SBMs may opt to exchange for a Silver Redemption Card (“SR Account”) using silver from Exchange Proceeds to the extent that CQR offers such an option. When a PCM instructs us to remit value you, you agree that the PCM authorizes and orders us to commit the PCM’s exchange to you (less any applicable silver requirements that we may collect under this Participation Agreement). You agree that PCMs satisfy their obligations to you for Your Exchanges when we receive the Exchange Proceeds. Our obligation to remit ounces of silver received by us on your behalf is limited to silver that we have actually received less amounts receivable to CQR, subject to return or reversal or withheld for anticipated claims in accordance with this Participation Agreement. The Exchange Processing Service helps facilitate Your Exchanges and neither we nor our affiliates are the purchaser of the SBM’s goods. SBM will resolve any dispute directly with PCM, and not through the Exchange Processing Service. You must provide us true and accurate information when registering and must maintain and update that information as applicable. We may at any time require you to provide any financial, business or personal information we request to verify your identity. SBM will not impersonate any person or use a name he or she is not legally authorized to use. SBM authorizes us to verify his or her information (including any updated information), to obtain private investigation reports about SBM in order to approve SBM for use of the Exchange Processing Service and also from time to time while SBM is registered with the Exchange Processing Service (including private investigation reports about SBM’s spouse if SBM lives in a community property state). The CQR Privacy Notice applies to your use of the Exchange Processing Service.
2. Exchange Proceeds can be credited only to a linked bank account in any country shown as supported by our standard functionality and enabled for your account (which functionality may be modified or discontinued by us at any time without notice), or used to exchange for CQRMarket.org Silver Redemption Cards (to the extent permitted by CQR), which exchanges are subject to CQR’s Terms and Conditions for Silver Redemption Cards. SBMs may also use the bank account provided to CQR for the Exchange Processing Service when making silver exchanges on the CQRMarket.org web site, subject to CQR’s Terms and Conditions for Exchanges from a Bank Account. SBMs waive any rights with respect to the Exchange Processing Service when shipping to an address other than that provided by the Exchange Processing Service.
3. The Exchange Processing Service is generally available seven (7) days per week, twenty-four (24) hours per day, except for scheduled downtime due to system maintenance. We can initiate credits to SBM’s Account only on a Business Day when the automated clearinghouses are open for business. For purposes of this Participation Agreement, a “Business Day” is a Monday through Friday, excluding federal banking holidays. We will inform you of each completed exchange using our standard procedures. In addition, you can access your Exchange Processing Service exchange information online in your Exchange Account.
4. You may provide credits or adjustments to PCMs for Your Exchanges through the Exchange Processing Service using functionality enabled for your account. This functionality may be modified or discontinued by us at any time without notice and is subject to the limitations in the Policies & Agreements and the terms of this Participation Agreement. You may not create invoices for Your Exchanges.
5. All balances for a given 14-day will be reflected in the Exchange Account summary. We will initiate a credit to SBM’s Account on a rolling 14-day cycle (“Exchange Date”) based on the original date of SBM’s registration with the Service or on the next Business Day if the scheduled Exchange Date falls on a non-Business Day. If SBM requests a change to the scheduled Exchange Date, the 14-day cycle will be reset to the requested Exchange Date. When you either initially provide or later change your bank account information, you must wait 7 days to either (1) request a transfer to SBM’s Account or (2) exchange a com Silver Redemption Cards within the 14-day cycle. After 7 days, you may either request transfers to SBM’s Account or exchange a CQRMarket.org Silver Redemption Cards (if available) at any time within the 7-day cycle via the Exchange Account summary page. We will initiate a transfer to SBM’s Account on each Exchange Date and, based on your preferences, either (1) initiate a transfer to SBM’s Account or (2) initiate your exchange of an CQRMarket.org Silver Redemption Cards (if available), in either case for the total amount of Exchange Proceeds you received from PCM’s authorized exchange, less any applicable expenses or other amounts we may collect under this Participation Agreement, any credits, adjustments, or other amounts remitted to PCMs in connection with Your Exchanges, or for value you otherwise received since the last Exchange Date. The amount of the applicable expenses for the Services will be posted to SBM’s Exchange Account and will be deducted from the balance of credits in the SBM’s Exchange Account to be remitted to you on the next Exchange Date. Without limiting CQR’s rights to collect any amounts you have agreed, including as described in Section 5.j. of this Participation Agreement, CQR’s receipt of Exchange Proceeds relieves your commitment to remit value and other amounts under this Participation Agreement to the extent the Exchange Proceeds equal or exceed the value of the exchange and other amounts you have agreed and the Exchange Proceeds are applied to the remittance of the value exchange and other related amounts as may apply. When an SBM purchases a CQRMarket.org Silver Redemption Cards (if available), Exchange Proceeds will be posted to the balance in the SBM’s Silver Redemption Card account on the Site (the “SR Account”).
6. Transfers to the SBM’s Account will generally be credited within five (5) Business Days of the date we initiate the transfer.
7. As a security measure, we or our affiliates may, but are not required to, impose exchange limits on some or all PCMs and SBMs relating to the value of any exchange, disbursement, or adjustment, the cumulative value of all exchanges, disbursements, or adjustments during a period of time, or the number of exchanges per day or other period of time. Neither we nor our affiliates will be liable to SBM: (i) if we do not proceed with an exchange, disbursement, or adjustment that would exceed any limit established by us or our affiliates for a security reason, or (ii) if we or our affiliates permit a PCM to withdraw from an exchange because the Exchange Processing Service is unavailable following the commencement of an exchange.
8. If we or our affiliates reasonably conclude based on information available to us or our affiliates that SBM’s actions and/or performance in connection with the Services may result in PCM disputes, returns or other claims, then we may, in our sole discretion, delay initiating any remittances and withhold any exchanges to be made or that are otherwise due to you in connection with the Services or this Participation Agreement until the completion of any investigation(s) regarding any SBM actions and/or performance in connection with this Participation Agreement. We will not be liable to SBM if we act in accordance with the provisions of this Section.
9. All notices will be sent by e-mail or will be posted on the Site or by any other means then specified by us or CQR. We will send notices to SBM at the e-mail address maintained in our or CQR’s records for SBM. SBM will monitor his or her e-mail messages frequently to ensure awareness of any notices sent by us or CQR. SBM will send notices to us using the functionality for contacting CQR provided in our Policies & Agreement Page
10. We may refuse service to anyone for any reason. We will not bear the risk of credit card fraud in connection with any of SBM’s products (except those products, if any, that are fulfilled using the fulfillment by a CQR Market service) that are not fulfilled strictly in accordance with the order information and shipping information that CQR provides you. CQR reserves the right to seek reimbursement from SBM if CQR, in its sole discretion, decide to reimburse PCM, or provide a credit to PCM if SBM cannot promptly deliver the goods, discover erroneous or duplicate exchanges, or receive a return from PCM’s bank transaction card issuer for the amount of PCM’s exchange from SBM. We may obtain reimbursement of any amounts receivable by SBM to CQR or us by deducting from future exchanges receivable to SBM, reversing any credits to SBM’s Account, debiting against Silver Redemption Cards held in SBM’s SR Account (if any) that were purchased with Exchange Proceeds, debiting SBM’s registered bank transaction card(s) on account, or seeking such reimbursement from SBM by any other lawful means. You authorize us to use any or all of the foregoing methods to seek reimbursement, including the debiting of your registered account.
11. We reserve the right, upon termination of this Participation Agreement or SBM’s use of the Services, to set off against any exchanges to be made to SBM, an amount determined by us to be adequate to cover returns, credits, adjustments or other amounts remitted to PCMs in connection with Your Exchanges from SBM’s Account or SR Account for a prospective three-month period. At the end of such three-month period following termination, we will disburse to SBM any amount not used to offset returns, credits, adjustments, or such other amounts remitted to PCMs, or seek reimbursement from SBM via any of the means authorized in Section 5.j. above for any additional amount required to offset returns, credits, adjustments, or other amounts remitted to PCMs, as applicable.
12. Exchange Proceeds will be held in an account with CQR (an ” Exchange Account”) and will represent an unsecured claim against CQR. Prior to disbursing value to you, CQR may combine Exchange Proceeds held with the value of other users of the Services, invest them, or use them for other purposes permitted by applicable laws. You will not receive interest or any other earnings on any Exchange Proceeds. To the extent required by applicable laws, CQR will not use any value held on your behalf for its corporate purposes, will not voluntarily make such value available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such value.
13. If there is no activity (as determined by us) in connection with your Exchange Account for the period of time set forth in applicable unclaimed property laws and we hold Exchange Proceeds on your behalf, we will notify you by means designated by us and provide you the option of keeping your Exchange Account open and maintaining the value of your Exchange Account. If you do not respond to our notice(s) within the time period we specify, your silver may be donated to the charitable cause of our choice.
CQR Reservation of Rights. CQR is a facilitator of exchange between parties for items of mutually agreed-upon equal value and, as such, CQR does not itself participate in commerce. CQR retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Services (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site and the Service and any element, aspect, portion or feature thereof, from time to time), and to delay or suspend listing of, or to refuse to list, or to de-list, or to require SBM not to list, any or all products in our sole discretion. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any of Your Exchanges. You will stop and/or cancel orders of your products if we ask you to do so (provided that if you have transferred your products to the applicable carrier or shipper, you will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). You will credit any PCM (in accordance with this Participation Agreement) when value has been exchanged for an order that we stop or cancel.
CQR Participation. Associates of CQR and its affiliates are permitted to participate in their personal capacity (i.e., not as CQR Associates, representatives, or agents of CQR or its affiliates) in the exchanges conducted through this Site (unless they have confidential information about a particular item). Associates of CQR and its affiliates, when participating in any exchange in their personal capacity, are subject to this Participation Agreement and the same procedures and guidelines contained in the Terms & Conditions and Policies & Agreement Page as any PCM or SBM on this Site.
Your Exchanges:
1. Unless stated otherwise, all listings available for exchange on the Site are valued in real-time to the nearest hundredth of an ounce of .999 fine silver at the then current spot price.
2. All Your Exchanges are final. Once you initiate an exchange you cannot cancel it (provided however that you may seek a return or credit as described below).
3. Exchanges are complete once confirmed. Once an exchange is submitted, it will be unconfirmed pending full verification of the exchange. An exchange is not complete until it is fully verified.
4. For exchanges where a SBM lists goods at a fixed amount of silver (“fixed amount exchanges”), the SBM is obligated to exchange the goods at the listed silver quantity to PCMs who meet the SBM’s terms. By listing an item in a fixed amount exchange, you, the SBM, represent and warrant to prospective PCMs that you have the right and ability to exchange product and/or service for silver, and that the listing is accurate, current, and complete and is not misleading or otherwise deceptive.
5. For fixed amount exchanges, SBM will determine the exchange amount for each item he or she lists on the Site via and subject to iCovestMarket.org’s standard functionality for listing the exchange amount, provided that SBM must abide by the same procedures and guidelines contained in the Policies & Agreements with respect to pricing.
Your Obligation. By entering into this Participation Agreement and posting a listing for fixed amount exchange, you agree to complete the exchange as described by this Participation Agreement. You acknowledge that by not fulfilling these obligations, your action or inaction may be legally actionable.
SBM Taxes. The users of the Site are solely responsible to determinate what, if any, taxes apply to their Exchanges. CQR is not responsible for determining the taxes that apply to Exchanges. Therefore, you agree that it is the SBM’s responsibility to determine whether SBM Taxes apply to the exchanges and to collect, report, and remit the correct SBM Taxes to the appropriate tax authority, and that CQR is not obligated to determine whether SBM Taxes apply and is not responsible to collect, report, or remit any sales, use, or similar taxes arising from any exchange. “SBM Taxes” means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or remitted for any reason in connection with any advertisement, offer or exchange of products by you on or through the Site, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.
Returns and Credits. Subject to Section 5.4., for all of your products that are not fulfilled using the Fulfillment by CQR service, you will accept and process returns, credits and adjustments in accordance with this Participation Agreement and the CQR return policies published on the Site at the time of the applicable order, and we may inform PCMs that these policies apply to your products. Subject to Section 5.4., you will determine and calculate the amount of all credits and adjustments (including any taxes, shipping and handling or other expenses) or other amounts to be remitted by you to PCMs in connection with Your Exchanges, using functionality we enable for your account, and will route all such exchanges through CQR. We will provide any such exchanges to the PCMs (which may be in the same exchange form originally used to exchange your product), and you will reimburse CQR for all amounts settled. We may offset such exchanges against any amounts to be remitted by CQR or its affiliates to SBM under this Participation Agreement or seek reimbursement from SBM via any of the means authorized in Section 5.j. In certain instances, refunds may be issued by CQR for the currency value of Your Exchange less any applicable expenses, including any cancellation fees. Such refunds will be converted from your currency to .999 fine silver based on an exchange rate at the time you initiated the exchange through the Site. You acknowledge that if the value of .999 fine silver against has risen since the time of your exchange, you will receive less than you paid at the time of Your Exchange. For all of your products that are fulfilled using the CQR Fulfillment Service, the CQR return policies published on the Site at the time of the applicable order will apply and you will comply with them. You will promptly provide credits and adjustments that you are obligated to provide under the applicable CQR return policies and as required by law, and in no case later than thirty (30) days after the obligation arises.
Password Security. Your password may be used only to access the Site, use the Services, electronically sign Your Exchanges, and review your completed exchanges. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on this Site. If your password is compromised, you must change your password.
Illegal Activity:
1. Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name or use an invalid or unauthorized bank transaction card. You may not impersonate any participant or use another participant’s password(s). Such fraudulent conduct is a violation of state, federal and international law. Fraudulent conduct may be reported to law enforcement, and CQR will cooperate accordingly.
2. Investigation. CQR has the right, but not the obligation, to monitor any activity and content associated with this Site and investigate as we deem appropriate. CQR also may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site, including listings. CQR reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.
3. Disclosure of Information. CQR reserve the right to report any activity that either of them suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect CQR’s systems and PCMs, or to ensure the integrity and operation of CQR’s systems, CQR may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
Privacy; Use of iCovest Exchange Information:
1. Read the CQRMarket.org Privacy Notice. This Privacy Notice may be changed by CQR and its affiliates in the future. You should check the Privacy Notice frequently for changes. CQR and its affiliates may communicate with you in connection with your listings, exchanges, and the Services, electronically and in other media, and you consent to such communications regardless of any “PCM Communication Preferences” (or similar preferences or requests) you may have indicated on the Site or by any other means. When you use the Services, some personally identifiable information about you, including your feedback and the e-mail address associated with your account, may be displayed on the Ste and may be viewed by potential PCMs.
2. You will not, and will cause your affiliates not to, directly or indirectly disclose, convey or use any order information or other data or information acquired by you or your affiliates from CQR or its affiliates (or otherwise) as a result of the Participation Agreement, the exchanges contemplated hereby or the parties’ performance hereunder (collectively, “CQR Exchange Information”), except you may disclose this information as necessary for you to perform your obligations under this Participation Agreement, provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information. The terms of this Section 14.b. do not prevent you from using other information that you obtain separately from the CQR Exchange Information, even if such information is identical to CQR Exchange Information, provided that you do not target communications on the basis of the intended recipient being a CQRMarket.org user.
No Warranties. THE SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. CQR DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
1. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
2. THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR;
3. THAT THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE WILL BE AS REPRESENTED BY SBMS, AVAILABLE FOR EXCHANGE AT THE TIME OF FIXED AMOUNT EXCHANGE, LAWFUL TO EXCHANGE, OR THAT SBMS OR PCMS WILL PERFORM AS PROMISED;
4. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
5. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF CQR. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, CQR DISCLAIMS ANY AND ALL SUCH WARRANTIES.
General Release. BECAUSE CQR IS NOT INVOLVED IN EXCHANGES BETWEEN PCMS AND SBMS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH OF YOU RELEASE CQR (AND THEIR RESPECTIVE AGENTS AND ASSOCIATES) 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 DISPUTES.
Indemnity/Limitation of Liability:
1. Indemnity and Defense. You will defend, indemnify and hold harmless CQR and its affiliates (and its respective associates, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees) arising out of any Claim that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Participation Agreement; or (ii) your own website or other sales channels, the products you exchange, any content you provide, the advertisement, offer, sale (exchange) or return of any products you exchange, any actual or alleged infringement of any intellectual property or proprietary rights by any products you exchange or content you provide, or SBM Taxes or the collection, exchange or failure to collect or pay (any applicable) SBM For purposes hereof: “Claim” means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity.
2. Limitation of Liability. CQR IS NOT LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PARTICIPATION AGREEMENT, THE SITE, THE SERVICES, THE EXCHANGE PROCESSING SERVICE, THE INABILITY TO USE THE SERVICES OR THE EXCHANGE PROCESSING SERVICE, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR EXCHANGES ENTERED INTO THROUGH THE SERVICES.
Jurisdiction; Applicable Law and Venue. This Participation Agreement shall be construed and enforced under international law in the English language. English language is pre-dominant in case of translations into multi-language(s). Each party consents that any dispute or claim relating in any way to this Participation Agreement or your use of the Services or Exchange Processing Services will be resolved by binding arbitration as described in this paragraph, rather than in court, To proceed in court rather than in arbitration is a willful breach of this Participation Agreement. Nevertheless, any controversy, claim, or dispute arising out of this agreement or the breach thereof and which cannot be settled between the signatories themselves despite heavy efforts undertaken on both sides as can be considered as affordable, shall be settled by arbitration in accordance with the I.C.C. (International Chamber of Commerce, Paris, France), Rules of Arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Participation Agreement as a court would. Payment of all filing, administration and arbitrator fees will be governed by the ICC rules. We will reimburse those expenses for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, CQR will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines that the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Each party agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
Disputes. CQR is neither an agent of any SBM nor PCM for any purpose, except as set out in Section 5, CQR will not act as either party’s agent in connection with resolving any disputes between participants related to or arising out of any Exchange. CQR urges SBMs and PCMs to cooperate with each other to resolve such disputes.
Your Grant. By entering into this Participation Agreement and listing an item, you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content you submit to CQR and its affiliates, and to sublicense the foregoing rights to our affiliates and operators of any website or other online point of presence (other than the Site) through which the Site and/or products or services available thereon are syndicated, offered, merchandised, advertised or described; provided, however, that we will not alter any of your trademarks (i.e., trademarks of yours that you provide to us in non-text form for branding purposes that are separate from and not embedded or otherwise incorporated in any product specific information or materials) from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of your trademarks (provided you are unable to do so using standard functionality made available to you via the Site or Services); provided further, however, that nothing in this Participation Agreement will prevent or impair our right to use without your consent the content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own or otherwise control all of the rights to the content you submit to CQR and its affiliates, and that the use of such materials by CQR and its affiliates will not infringe upon or violate the rights of any third party.
Termination. CQR, in its sole discretion, may terminate this Participation Agreement, access to the Site or the Services, or any current fixed amount exchanges immediately without notice for any reason. CQR, in its sole discretion, also may prohibit any SBM from listing items for fixed amount exchanges.
General Provisions:
1. Entire Agreement. This Participation Agreement, including any terms and conditions incorporated herein by reference, and the general terms and conditions of the Site, including but not limited to the CQR Privacy Notice, CQR Terms & Conditions, and all other Policies & Agreements, constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes and cancels all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.
2. No Agency; Third-Party Beneficiary. Subject to the first paragraph of Section 5, you and CQR are independent of one another and nothing in this Participation Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. Nothing expressed or mentioned in or implied from this Participation Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Participation Agreement. This Participation Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of CQR, you, and relying PCMs or SBM
3. Severability. If any provision of this Participation Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
4. No Waiver. CQR will not be considered to have waived any of its rights or remedies described in this Participation Agreement unless the waiver is in writing and signed by the relevant party. No delay or omission by CQR in exercising its rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. CQR’s failure to enforce the strict performance of any provision of this Participation Agreement will not constitute a waiver of either party’s right to subsequently enforce such provision or any other provisions of this Participation Agreement.