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Billing Information

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Treasure Hunters Outlet Mall Merchant Agreement (THOMMA) AGREEMENT Treasure Hunters OutLet Mall is owned and operated by Lost Treasure, Inc. TH’ers OutLet Mall is provided to you ("you" or “Store Operator” or "Merchant" or “Store Owner”) under the terms and conditions of this TH’ers OutLet Mall Merchant Agreement and any amendments thereto and any operating rules or policies (collectively, the "THOMMA" or "Agreement"). Lost Treasure, Inc. (“Lost Treasure, Inc.” or “Lost Treasure OnLine” or LTOL” or “TH’ers OutLet Mall” or “OutLet Mall”) reserves the right, in its sole discretion, to change, modify, add or remove all or part of the THOMMA at any time. Merchant will receive notice of such changes and/or modifications pursuant to Section 14 regarding notices. 1.1 By accepting the terms and conditions of the THOMMA, Merchant (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about Merchant as prompted by the Merchant Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by Merchant is untrue, inaccurate, not current or incomplete, Lost Treasure, Inc. has the right to terminate Merchant’s account and refuse any and all current or future use of TH’ers OutLet Mall. 1.2 BY COMPLETING THE MERCHANT ACCOUNT REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THE THOMMA. Nothing in this agreement obligates Lost Treasure, Inc. or the TH’ers OutLet Mall services to list, link to, accept or otherwise host any online store anywhere on the Lost Treasure OnLine and/or TH’ers OutLet Mall sites. If these terms and conditions or any future changes are unacceptable to you, you may cancel your Merchant account pursuant to Section 6.2 regarding non-renewal of service. 2.0 DESCRIPTION OF TREASURE HUNTERS OUTLET MALL SERVICES. Lost Treasure OnLine hosts interactive online stores ("Store") on the World Wide Web and may provide Merchants with, among other things, access to its TH’ers OutLet Mall Software ("Software") to facilitate the creation and maintenance of Stores for the sale of goods and services. 3.0 MERCHANT'S OBLIGATIONS 3.1 Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at Merchant’s Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with Merchant's account or password. Certain Stores may be subject to additional requirements. 3.1.1 Merchant agrees to display in the Store Merchant's contact information, including but not limited to Merchant's company name, address, telephone number, fax number and e-mail address. Merchant also agrees to update such information to keep it true, accurate, current and complete. 3.1.2 Merchant agrees that any and all press releases and other public announcements related to this Agreement and subsequent transactions between Lost Treasure Inc. and Merchant, including the method and timing of such announcements, must be approved in advance by Lost Treasure, Inc. in writing. Lost Treasure, Inc. reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Merchant's obligation regarding public announcements shall be a material breach of the THOMMA. 3.1.3 Merchant represents and warrants that it has full power and authority under all relevant laws and regulations: * to offer and sell the goods and services offered at TH’ers OutLet Mall, including but not limited to holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at TH’ers OutLet Mall; * to copy and display the materials used or displayed at TH’ers OutLet Mall; and, * to provide for credit card payment and delivery of goods or services as specified at TH’ers OutLet Mall. 3.1.4 Merchant represents and warrants that it will not engage in any activities: * that constitute or encourage a violation of any applicable law or regulation, including but not limited to the sale of illegal goods or the violation of export control or obscenity laws; * that defame, impersonate or invade the privacy of any third party or entity; * that infringe the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others; and, * that are in any way connected with the transmission of "junk mail" "spam" or the unsolicited mass distribution of e-mail, or with any unethical marketing practices. 3.2 Lost Treasure, Inc. reserves the right to refuse to host or continue to host any company which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its Store from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the letter or spirit of the THOMMA. 4.0 PROPRIETARY RIGHTS 4.1 Software License. Lost Treasure, Inc. hereby grants the Merchant a non-exclusive, non-transferable license to use the OutLet Mall Storefronts Software form only on a server controlled by Lost Treasure, Inc. for the sole purpose of creating and maintaining Stores on such server. Merchant is not being granted any right to copy the Software or to use it on computers other than a server controlled by Lost Treasure, Inc. Merchant may not use Web pages or parts of Web pages generated by means of the Software, other than content that originates from and is proprietary to Merchant, on any server other than the servers controlled by Lost Treasure, Inc. without Lost Treasure’s express written agreement. Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that Lost Treasure, inc. does not commit to support any particular browsing platform. Lost Treasure, Inc. reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to Merchant. If any revision or modification to the Software materially changes Merchant’s ability to conduct business, Merchant’s sole remedy is to terminate the THOMMA pursuant to Section 6.2 regarding non-renewal of service. 4.2 Lost Treasure, Inc. Intellectual Property. Merchant acknowledges and agrees that content available from Lost Treasure, inc. or Lost Treasure OnLine or TH’ers OutLet Mall or OutLet Mall, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified in Section 4.1 above. 4.3 Merchant's Property. Merchant agrees that by using the services TH’ers OutLet Mall, Merchant grants Lost Treasure, Inc. and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Merchant’s copyrights and other intellectual property rights, if any, in all material and content displayed in Merchant's Store to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any Lost Treasure, Inc. property the results of search queries and comparisons conducted on LTOL including, without limitation, searches conducted on LTOL web sites and TH’ers OutLet Mall. Merchant also grants Lost Treasure, Inc. the right to maintain such content on Lost Treasure, Inc. servers during the term of the THOMMA and to authorize the downloading and printing of such material, or any portion thereof, by end users for their personal use. 4.4 Unauthorized Access. Merchant shall not attempt to gain unauthorized access to any servers controlled by Lost Treasure, Inc. 5.0 FEES 5.1 Hosting Fee. Merchant shall pay to Lost Treasure, Inc. a monthly hosting fee in an amount equal to the merchants level of participation; Starter: $29.95, Standard: $59.95, Professional: $199.95, with the first payment due on the Start Date (as defined in Section 6.1) and subsequent payments due on a monthly basis from the Start Date (e.g., if the Start Date were March 22, then payments of the hosting fee would be due on the 22nd day of every month thereafter). 5.2 Transaction Fee. Merchant shall pay to Lost Treasure, Inc. a monthly transaction fee equal to the merchants level of participation; Starter: 2.0%, Standard: 1.5%, Professional: .5% of Total Revenue, with payments due on the 6th day of the month after the calendar month to which the transaction fee applies. "Total Revenue" means the total dollar amount, excluding shipping and handling charges and any applicable taxes, of all transactions conducted through Merchant’s Store. 5.3 Sales Booster Fee. Merchant shall pay to Lost Treasure, Inc. a monthly sales booster fee equal to the merchants level of participation; Starter: 1.0%, Standard: .75%, Professional: .5% of Network Revenue, with payments due on the 6th day of the month after the calendar month to which the sales booster fee applies. "Network Revenue" means that portion of Total Revenue generated from transactions conducted through Merchant’s Store that originate from Lost Treasure’s network of properties (e.g., hypertext link(s) within LTOL’s web site that permits users to navigate directly to the Merchant’s TH’ers OutLet Mall store). Lost Treasure, Inc. shall identify these transactions by, among other things, placing a 30-day cookie within the user’s Internet browser at the time that the user navigates to a TH’ers OutLet Mall Store directly from a page within losttreasure.com domain. For clarity, Lost Treasure, Inc. is not obligated under the THOMMA to place links within Lost Treasure, Inc. network of properties that drive traffic to Merchant’s Store. 5.4 Reconciliation and Auditing for Transaction Fees and Sales Booster Fees. With respect to the fees set forth in Sections 5.3 and 5.4, Merchant shall be entitled to identify, and exclude from Total Revenue and Network Revenue, those transactions conducted through Merchant’s Store that are cancelled or for which no products are shipped to the purchaser ("Excluded Transactions"), except that Merchant must identify a transaction as an Excluded Transaction within 90 days from the date on which the transaction was originally conducted. Lost Treasure Inc. shall be entitled to audit, at a mutually agreed upon time during normal business hours, those Merchant records relating to Excluded Transactions and otherwise to investigate Excluded Transactions, which might include contacting the purchaser to confirm that the transaction at issue is an Excluded Transaction. 5.5 Mechanics. All fees are cumulative and payable in U.S. dollars. Lost Treasure, Inc. shall calculate all fees and, in its discretion and on the applicable due date set forth herein, either (a) charge payments to the credit card number given to Lost Treasure, Inc. at the time of registration or to any other credit card number that Merchant so designates, or by debit to Merchant’s PayPal account, or (b) with prior credit approval of the Merchant by Lost Treasure, Inc. email invoices will be sent to the Merchant for payments to be paid by Merchant within ten (10) days after the invoice date. Late payments shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less). In the event of any failure by Merchant to make payment, Merchant shall be responsible for all reasonable expenses (including attorneys’ fees) incurred by Lost Treasure, Inc. in collecting such amounts. Lost Treasure, Inc. may, upon 30 days prior notice to Merchant, alter its fees under the THOMMA. 6.0 TERMS 6.1 Term. The term of the THOMMA shall be 30 days commencing on the date that Merchant opens an account for a TH’ers OutLet Mall Store (the “Start Date”). The term shall automatically renew for successive monthly periods at renewal rates applicable at the time, unless notice of non-renewal is provided in accordance with Section 6.2, below; provided, however, that to qualify for each renewal Merchant must at the time of renewal be in substantial compliance with the material terms and conditions of the THOMMA. Lost Treasure, Inc. shall have the right, but not the obligation, to review any Store for compliance with the THOMMA as part of the renewal process, or at any time. 6.2 Non-Renewal. Either party, in its sole and absolute discretion, may give notice of nonrenewal with or without cause and without stating any reason therefor. Any notice of nonrenewal must be given at least five (5) days prior to the end of the current monthly period in order for the THOMMA to expire on the last day of that monthly period; otherwise, the THOMMA will expire on the last day of the following monthly period (e.g., if the Start Date were March 22, and the Merchant were to provide Lost Treasure, Inc. with notice of nonrenewal on April 19, then the THOMMA would expire on May 22). All notices under this Section 6.2 must be given in the manner described in Section 14 regarding notice. 7.0 TERMINATION 7.1 Termination. Either party may terminate the THOMMA on thirty (30) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the THOMMA, and such breach or noncompliance is not cured within such thirty (30) day period. Lost Treasure, Inc. reserves the right to immediately suspend any customer access to the Merchant’s TH’ers OutLet Mall Store until such breach or noncompliance is cured. 7.2 Termination for Illegal or Other Activity. Notwithstanding the foregoing, Lost Treasure, Inc. may, but has no duty to, immediately terminate Merchant and remove it from Lost Treasure, Inc. servers if Lost Treasure, Inc. in its sole discretion concludes that Merchant is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of Lost Treasure, Inc. or others. Any termination under this Section 7.2 shall take effect immediately and Merchant expressly agrees that it shall not have any opportunity to cure. 7.3 Waiver. Merchant expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7. 7.4 Deletion of Information. Upon termination, Lost Treasure, Inc. reserves the right to delete from its servers any and all information contained in Merchant’s TH’ers OutLet Mall account, including but not limited to order processing information, mailing lists, and any Web pages generated by the Software. 7.5 Survival. The provisions of Section 4 (Proprietary Rights), Section 8.1 (Merchant Information), Section 10 (Indemnity), and Section 11 (Disclaimer of Warranties and Liabilities) of this Agreement shall survive any termination of the Agreement. 8.0 MERCHANT PRIVACY 8.1 Merchant Information. Lost Treasure, Inc. maintains information about Merchant and the Store on Lost Treasure, Inc. servers, including but not limited to Merchant’s account registration information, Merchant's customer order information, sales information, and click through data ("Merchant Information"). Merchant grants to Lost Treasure, Inc. a non-exclusive, worldwide, royalty-free, perpetual license to use Merchant Information in aggregate form (i.e., in a form that is not individually attributable to the Merchant) for research, marketing and other promotional purposes. 8.1.1 Merchant agrees that Lost Treasure, Inc. may disclose Merchant Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the THOMMA; (d) to respond to claims that the Merchant or Store is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of Lost Treasure, Inc. or others; provided, however, that nothing in this section shall impose a duty on Lost Treasure, Inc. to make any such disclosures. 8.1.2 Merchant agrees that Lost Treasure, Inc. may delete customer credit card information from Lost Treasure, Inc. servers 14 days after Merchant retrieves such information, and may delete all other Merchant Information from Lost Treasure, Inc. servers at the end of each calendar year. 8.2 Password. Merchant shall receive a password from Lost Treasure, Inc. to provide use of the Software for the TH’ers OutLet Mall. Merchant is entirely responsible for any and all activities which occur under Merchant’s account and password. Merchant agrees to keep its password confidential, to allow no other person or company to use its account, and to notify Lost Treasure, Inc. promptly if Merchant has any reason to believe that the security of its account has been compromised. 8.3 Technical Access. Merchant acknowledges and agrees that technical processing of Merchant Information is and may be required: (a) for the TH’ers OutLet Mall to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the TH’ers OutLet Mall; or (d) to conform to other, similar technical requirements. Merchant also acknowledges and agrees that Lost Treasure, Inc. may access Merchant's account and its contents as necessary to identify or resolve technical problems or respond to complaints about TH’ers OutLet Mall. 8.4 Merchant Privacy Policy. Merchant agrees (a) to post a privacy policy in its TH’ers OutLet Mall store that, at a minimum, discloses any and all uses of personal information collected from users by Merchant; (b) to include in Merchant's privacy policy a paragraph provided or approved by Lost Treasure, Inc. that describes Lost Treasure's collection and use of Merchant's customer information, (c) to provide a hypertext link to Merchant’s privacy policy on the home page of the Merchant Store and on all pages where Merchant collects personal information from users, including but not limited to all check out pages; and (d) to use personal information only as expressly permitted by Merchant’s privacy policy. 9.0 MAINTENANCE AND SUPPORT 9.1 Merchant can obtain assistance with any technical difficulty that may arise in connection with Merchant's utilization of the Software or Online TH’ers OutLet Mall services by requesting assistance by email to OutLetmall@losttreasure.com . Lost Treasure, Inc. reserves the right to establish limitations on the extent of such support, and the hours at which it is available. 9.2 Merchant is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the Software and Online TH’ers OutLet Mall services and Merchant shall be responsible for all charges related thereto. 10.0 INDEMNITY Merchant agrees to indemnify and hold harmless Lost Treasure, Inc. and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of Merchant’s conduct, Merchant’s use of the TH’ers OutLet Mall service, the goods or services offered at Merchant’s Store, any alleged violation of the THOMMA, or any alleged violation of any rights of another, including but not limited to Merchant’s use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Merchant’s Store. Lost Treasure, Inc. reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Merchant, but doing so shall not excuse Merchant’s indemnity obligations. 11.0 DISCLAIMER OF WARRANTIES AND LIABILITIES THE TREASURE HUNTER’S OUTLET MALL AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ONLINE THREASURE HUNTER’S OUTLET MALL SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS. MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF TREASURE HUNTER’S OUTLET MALL IS DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. LOST TREASURE, INC. AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF LOST TREASURE, INC. IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT ’S USE OR INABILITY TO USE THE ONLINE TREASURE HUNTER’S OUTLET MALL SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE TREASURE HUNTER’S OUTLET MALL SERVICES OR THE SOFTWARE. LOST TREASURE’S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO LOST TREASURE, INC. OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 12.0 NO RESALE OR ASSIGNMENT OF SERVICE Merchant agrees not to resell or assign or otherwise transfer its rights or obligations under the THOMMA without the express written authorization of Lost Treasure, Inc. 13.0 FORCE MAJEURE Neither party shall be liable to the other for any delay or failure in performance under the THOMMA resulting directly or indirectly from acts of nature or causes beyond its reasonable control. 14.0 NOTICES Any notices or communications under the THOMMA shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to Lost Treasure, Inc. such notices shall be addressed to OutLetmall@losttreasure.com or P.O. Box 451589, Grove, OK 74345, USA. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with Lost Treasure, Inc., or such other address as either party may give the other by notice as provided above. 15.0 ENTIRE AGREEMENT The THOMMA constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties. 16.0 GENERAL The THOMMA and the relationship between Merchant and Lost Treasure, Inc. shall be governed by the laws of the state of Oklahoma without regard to its conflict of law provisions. Merchant and Lost Treasure, Inc. agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of Oklahoma for the County of Delaware or the United States District Court for Oklahoma. Lost Treasure’s failure to exercise or enforce any right or provision of the THOMMA shall not constitute a waiver of such right or provision. If any provision of the THOMMA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and agree that the other provisions of the THOMMA remain in full force and effect. Merchant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of TH’ers OutLet Mall or the THOMMA must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the THOMMA are for convenience only and have no legal or contractual effect. 17.0 ADDITIONAL CONSIDERATIONS FOR TREASURE HUNTER’S OUTLET MALL. 17.1 Eligibility for TH’ers OutLet Mall. In order to become eligible for discretionary placement with the TH’ers OutLet Mall, Merchant agrees to the following: (a) Merchant will comply with the TH’ers OutLet Mall Merchant Guidelines, currently located at http://www.losttreasure.com/Agreement/guidelines.htm and (b) Merchant grants to Lost Treasure, Inc. a non-exclusive, worldwide, royalty-free license to modify certain pages within the TH’ers OutLet Mall solely for purpose of implementing features and functionality of TH’ers OutLet Mall that, in Lost Treasure’s reasonable discretion, either facilitate transactions or promote TH’ers OutLet Mall or Lost Treasure, Inc. 17.2 Discretionary Placement within TH’ers OutLet Mall. Subject to Section 17.1 above, Lost Treasure, Inc. will consider Merchant for discretionary placement within TH’ers OutLet Mall, which might include a Merchant listing in other areas of the Lost Treasure, Inc. web sites. Lost Treasure, Inc. will be entitled to revoke any discretionary placement at any time in its sole discretion. I Agree I Disagree