Retailer Agreement

This Retailer Agreement (hereinafter, the contract), effective immediately upon submission of the Retail Setup Form "https://nationalgift.com/retail_setup_new.aspx" (Effective Date), is made and entered into and digitally signed by and between HapCaps, LLC dba NationalGift.com, hereinafter referred to as Company, and you and your Company, hereinafter referred to as Merchant.

Merchant Statement of Qualification:  Merchant hereby warrants that it is a properly licensed retail business located in the United States and that it will furnish a valid Social Security Number or Tax ID Number if requested.  Merchant hereby attests that it has independently evaluated the desirability of participating in Company's Drop Ship Program and is not relying on any representation, guarantee or statement other than what is set forth in this contract and the Terms of Use, Shipping Policy and Privacy Policy posted on the NationalGift.com website.

Participation:   In its sole discretion, Company shall have the right to deny participation to any applicant requesting membership in the Wholesale Drop Ship Program for any reason.

Setup Fees:   Merchant understands that Company has waived the setup fees or other up front charges for setting up a wholesale drop ship account for Merchant.  As such, Merchant agrees to give Company at least 45 days written notice of any intent to cancel this contract.

Product Pricing:   Company agrees to sell its products to Merchant at a discount of 50% off the Suggested Retail Price. Suggested Retail Prices are subjective prices based on Company's experience with similar products sold on the Internet. Merchant is free to resell products at any price, either above or below Company's Suggested Retail Price.

Term:   Merchant and Company agree that the term of the contract shall commence on the Effective Date and shall continue for a period of 12 months, and will be automatically renewed for a subsequent term if no notice of cancellation or a notice of non-renew is not received in writing from either party 30 days prior to the expiration of the original term.

Notices:  Notices shall be in writing to the address submitted via the online Retail Setup Form for Merchant; and 12550 West Colfax Avenue, Suite 119, Lakewood, Colorado 80215, or by fax to 1-888-658-8714 for Company.

Termination:   Either party may terminate the contract by providing 45 days written notice of their intent to cancel to the other party by regular mail or fax to the current address for receipt of Notices.  All terms of this contract will remain in full force and effect until the actual termination date.  Any request for termination or cancellation of this contract by email is not an acceptable notice and does not change the terms or term of this contract.  Proof of mailing or fax transmittal is sufficient proof of Notice to the other party of the request for termination.

Limited License To Use Product Images:  Merchant desires to sell and promote the products offered by Company and Company hereby grants Merchant a non-exclusive license to use the product images, product descriptions and other marketing materials that may be provided either directly to Merchant or via the NationalGift.com website. Merchant hereby agrees not to sell, convey or otherwise distribute any images, descriptions or marketing materials owned by Company unless it is for the express purpose of promoting the products or services of NationalGift.com. Merchant agrees to remove all images and descriptions from any website(s) and destroy any other marketing materials upon termination of this contract.

Company Policy Regarding Marketing to Merchant's Customers:  Company will not market to Merchant's customers in an attempt to have them purchase directly from NationalGift.com. Company may from time to time contact Merchant's customer to handle issues related to delivery, gift messages or other routine processing matters.  Additionally, Company will place a blind return address on all outgoing boxes, but will not knowingly include any marketing materials or other solicitation in an effort to have customer contact Company directly for the purpose of purchasing product or becoming a Merchant.

Use of Merchant's Logo and Store Name:   In order for Company to use Merchant's logo or store information on packing materials, Merchant hereby grants Company an all inclusive license to use its logo or a likeness of its logo on the packing materials, gift message, boxes or other documents shipped with an order or on Company's website. Company will make a reasonable attempt to include a logo and contact information in every shipment on behalf of Merchant but will not be required to re-ship or replace orders or to reimburse Merchant in the event this information is not included.

Order Payment:  In order to pay for orders or any other fees due to Company, Merchant agrees to only use a credit card or PayPal account on which Merchant is an authorized cardholder or accountholder.  Merchant agrees to pay all product costs, shipping and applicable taxes at the time of order by using a valid payment method as indicated on the NationalGift.com website.  If for any reason the payment to Company is declined by a credit card processor or PayPal, or otherwise not authorized by Merchant's Bank, the order will not ship until Merchant provides a valid payment method that allows Company to obtain payment for the order.  Company will make reasonable attempts to contact Merchant, but is not obligated to do so whenever a payment is declined.

Order Processing:  At the time of signup, Merchant will be provided a login name and temporary password.  Merchant agrees to use the provided login and temporary password to log on to the NationalGift.com website and change the password within 24 hours of the effective date and time of this contract.  To place an order from NationalGift.com, Merchant will select the desired product(s) on the website, enter Merchant's desired shipping method, ship date and shipping address and enter a gift message if desired. After the payment is processed, the order will be shipped by Company or Company's supplier.  Company will make its best efforts to update tracking information on the site by 5:00 PM Mountain time every business day for all shipments.

Substitutions:   Company will use its best efforts to supply products as represented on the NationalGift.com website, however will occasionally substitute ingredients, packing materials, containers, decorations or other items when necessary to fill an order for a product.  Company will not be required to make an adjustment in price for Merchant or for Merchant's customer or to communicate substitutions.  Company will attempt to use a higher value item or items when it is necessary to substitute.

Allergy Disclaimer:   Merchant hereby acknowledges that Company uses nuts, fruit, grain and milk products in its gift products.  In many cases, products are processed using the same equipment and it is not possible to ensure that traces of various nuts, milk products, grains or fruit will not be in packages labeled otherwise. Therefore Merchant agrees to post the following warning prominently on their website and in marketing materials.  Merchant agrees to indemnify Company in the event of allergic reactions to foodstuffs by Merchant's customers or recipients.  

"Warning: While our suppliers make every effort to ensure that only the ingredients shown are included in your gift, it is very likely that your gift ingredients may have been processed using equipment that has traces of a variety of nut, fruit, grain or dairy products.  If your potential recipient or others that might consume the gifts are highly allergic to common food products, for their safety, we highly recommend that you order one of our non-food gifts".

Website Availability & Security:  Company agrees to maintains its website, NationalGift.com, in a commercially responsible manner.  Best efforts will be used to have said website available 24 hours a day, however Merchant agrees that the liability of Company to Merchant for a site outage or downtime shall not exceed Merchant's average monthly sales divided by the hours in the current month, multiplied by the hours of outage.   Also, Company agrees to use its best efforts to keep Merchant's credit card and personal information secure, however it is agreed that in the event of any breach of security, Company's liability to Merchant or Merchant's bank, credit card processor, or PayPal shall not exceed $100 per account record.

Authorization To Bill Merchant's Credit Card For Any Fees, Purchases or Services:  Merchant authorizes Company to charge the credit card furnished via the Retail Signup Form or any credit card furnished at any time to purchase products or services on the NationalGift.com website, for any fees, interest, charges or ChargeBacks due to Company under this contract.  Company accepts Visa, MasterCard, Discover, American Express and PayPal, but payment methods are subject to change at any time. Merchant expressly authorizes and directs Company to use any credit card or PayPal account ever used in connection with any order placed on the NationalGift.com website for any fees, interest, charges or chargebacks in the event Merchant's primary payment method on file is declined for any reason.   Decline of any supplied credit card for any amounts due from Merchant may result in the loss of Merchant's wholesale discount and may result in collection action against Merchant by Company if any amounts due to Company remain unpaid for more than 30 days. Merchant hereby authorizes Company to attempt re-billing at various intervals for a period of up to 90 days of any of Merchant's credit cards used in collection of any purchase, service or fee.

Sales Taxes:  Company is domiciled and has offices in the State of Colorado and is obligated to collect State Sales Taxes whenever an ordered product is delivered to a Colorado address. Company is not obligated to determine whether sales tax applies to state or local taxes for any order shipped to any location other than the State of Colorado.  

Order Cancellations by Company:  Company will use its best efforts to fulfil every order for Merchant, but reserves the right to cancel any order for any reason. Company will immediately notify merchant of the cancellation and refund any monies paid by Merchant for the order.  

Order Cancellation or Modifications: Merchant is not able to alter or cancel an order once it is placed on the NationalGift.com website.  Merchant may be able to contact Company by phone or email prior to the cutoff time on the shipping date and have a Customer Service Representative cancel the original order, however, Company does not offer this service and does not warrant that a Customer Service Representative will be available to perform such service.  If Merchant is successful in having Company cancel the original order, a new order may be placed, however must be placed prior to the normal cutoff time on the expected shipping date.

Shipping and Delivery:   Company will ship products in accordance with the Terms of Use, Shipping Rates and Shipping Policy posted on the NationalGift.com website. Merchant shall choose at the time of purchase the shipping method desired for each shipment.  No delivery date is guaranteed unless the Next Day or 2nd Day shipment method is chosen by Merchant, however Company will use its best efforts to deliver on or near the 'Expected Delivery Date' chosen at the time the order was placed.

Courtesy Shipping Credit:  In the event Company fails to ship a product on time or it fails to arrive on time, a $10.00 Courtesy Shipping Credit may be issued to the Merchant's credit card or PayPal account used to pay for the initial shipment.  This shall be the sole remedy for missed or delayed shipping dates or delivery dates and must be requested by Merchant with 10 days of the original order's shipping date.

Address Corrections:   An Address Correction Fee of $10.00 will be charged to Merchant's payment method on file to offset the costs assessed by shipping carrier(s) for correcting and rerouting a shipment with an incorrect address.   An Address Correction Fee is assessed whenever Merchant enters an incorrect street address for an order and there is a discrepancy from the address of record shown the US postal records or in the records of the shipping carrier.  Address Correction fees are assessed within 10 to 30 days of the shipment date shortly after Company is notified of the event by the shipping carrier(s).

Return Policy:   Company will honor returns to its Returns Center for up to 15 days from the original shipment date during which time Merchant or Merchant's customer can return a gift for any reason. All returns must be sent to "Returns Center, 15700 W. 6th Ave., Golden, CO 80401" at the Merchant's or Merchant customer's expense.  A return credit for product cost (less shipping) will be issued within 15 days of receipt in the Returns Center to the credit card or PayPal Account used for the original purchase.  For Returns caused by delivery attempts to bad addresses, shipments refused by the recipient, or that are undeliverable for any reason other than errors attributed to Company, there will be a $20.00 minimum charge per order deducted from the refund credit to be issued to Merchant.

Goodwill Adjustment:   Company has a Refund Policy, Damaged Product Adjustment Policy and Courtesy Shipping Credit which governs adjustments for consumer or Merchant concerns about product quality or service.  Therefore, Company does not issue goodwill adjustments in the form of credit to a Merchant if a customer is dissatisfied with a product or service.  

Damaged Product Adjustment:  In order to handle claims of damage to an ingredient, container or other component of a gift, Company has established a policy of issuing a rapid credit of up to 20% of the original product cost to Merchant.  In order to receive this credit for a damaged product, Merchant must contact Company by email, fax or in writing within 10 days of the original shipment date of the order.  Merchant may either request an immediate credit of 20% of the product cost or may request full reimbursement of the product cost by requesting that Company file a 'Damaged Goods Claim' with the shipping carrier.  Company will reimburse Merchant upon receiving funds from a successful claim from the carrier.

Dispute Resolution and ChargeBack Procedure:   Company will make every effort to provide the services as specified in this contract.  Any balance remaining unpaid if charges are successfully reversed due to a ChargeBack will be turned over to Company’s collection agency(s), attorney(s), various anti-fraud databases and the three primary credit bureaus.  Merchant understands that Company’s collection efforts may adversely affect Merchant’s credit rating and ability to make further purchases on the Internet.

Minimum Purchase Requirement:   In the event Merchant fails to order more than forty-nine dollars worth of products from the NationalGift.com website each month, for the first full month and every month thereafter, the difference between what was ordered and forty-nine dollars shall be due and charged to the credit card on file.  For example, if Merchant only ordered thirty-nine dollars worth of product in a month, then the monthly minimum purchase requirement for that month would be due of ten dollars.  If no products are ordered, then forty-nine dollars would be due and charged to the credit card on file. In the event the credit card on file is declined for any reason, Merchant authorizes Company to use any credit card used by Merchant for previous product purchases.  In the event of a pending termination of this contract, the minimum purchase requirement amount due will be prorated and charged up to the termination date.

Bulk Orders:  Company's primary business is to support individual Retail web-based businesses by providing dropshipping services, usually one gift at a time.  However, in order to accommodate Merchant in the event they receive volume orders from corporations or other large businesses, Company has established a Wholesale/Bulk gift category on the NationalGift.com website. Merchant agrees that any order for the shipment of more than 10 items will be ordered from the Wholesale/Bulk section or will be subject to a longer lead time than the stated shipping dates on the website.

Advertising:   Merchant may advertise using Company's product images, descriptions or other marketing materials in any lawful manner or means while this contract is in force.   In the event of termination of this contract for any reason, Merchant will cease all advertising or marketing using Company's images, descriptions or other marketing materials as of the termination date. Continued use of Company's images by Merchant shall incurr a licensing fee of fifty dollars a month for any portion of the month(s) in which images were in use by Merchant.

Collections of Unpaid Balances:   Merchant agrees to pay all balances when due for any product payment or other fees due under this contract. Failure to pay any balance when due shall result in Company taking further collection action or legal action.  Company shall have the right to pursue any legal action or to turn over any unpaid balance to its collection agency or attorney(s).  Merchant also understands and agrees that Company shall have the right to report directly or through its assigned attorney or collection agency to the three major credit bureaus any unpaid balance and the delinquent status.

Ownership and Use of Intellectual Property:  Merchant shall grant to Company the right to use, redistribute, publish, patent, trademark or otherwise claim ownership of any product idea, marketing tactic, email communication or other design furnished to Company by Merchant.  This shall include the publishing of all or part of emails as testimonials or any other legal use by Company in marketing materials or as postings to any website.

Modifications to contract:   Company retains the right to modify this contract and policies incorporated herein by reference, at any time. Continued participation, use of website, or placing of orders by Merchant will constitute acceptance of the modifications to this contract and to other policies posted to the NationalGift.com website, specifically the Terms of Use, Shipping Policy, Shipping Rates, Privacy Policy or any other policy posted and incorporated.

Venue:  If legal action is brought against any party to this contract, venue will be Colorado.

Severability:   If any provision or section of this contract shall be deemed unlawful, void, or for any reason unenforceable, then that provision or section shall be deemed severable from this contract or the incorporated documents referenced on the NationalGift.com website and shall not affect the validity and enforceability of any remaining provisions.

---last modified October 10, 2008