Last Updated: August 16, 2017
Subject to the terms and conditions of this Agreement, we will provide you with access to our Port website, including http://sellwithport.com and all of our webpages, subdomains and subparts (collectively, our “Site”), our services provided on or made available through the Site, and all of our mobile applications (collectively, our “Services”). As part of our Services, we will also provide an accounting to you of our fees and charges for each admittance and product sold through the Services.
Customer Information. In connection with registering for and using our Services, you may be required to provide us with information concerning you or your Venue. This information may include your current address, business name, description of your Venue, certain payment information and other personal information. This information may be used to verify your identity and the validity and legality of, and qualification for, the use of our Services for the sale of your products. You agree that all information submitted to Port regarding your products, including, without limitation, your Venue, will be true, accurate and complete at the time submitted and that you will promptly update this information to ensure that it remains true, accurate and complete at all times. If we determine, in our discretion, that any information submitted regarding you or your Venue is untrue, inaccurate or incomplete, we may cancel your use of our Services and issue a refund to purchasers for any of your products as provided in this Agreement.
Fulfillment. Port issues an order confirmation and number for each order placed by a purchaser. You agree to unconditionally, accept, honor and fulfill all admission, registration, donation and other commitments that have been confirmed by Port through the Services, and it is solely your responsibility to verify a purchaser’s confirmation number, membership status (if applicable) and any restrictions prior to such purchaser’s purchase of your products, including any admission into your Venue. We reserve the right, in our discretion, to terminate your account and use of our Services, without any liability or further obligation, if you fail to honor your commitments pursuant to this Agreement.
Product and Venue Restrictions. It is your responsibility to provide any restrictions associated with your products and Venue. Any product or Venue that requires a restriction for purchase or admission, including, but not limited to, age, school or organizational affiliation, or other characteristics or requirements, must be clearly described by you to purchasers. You are responsible for ensuring that any such restrictions comply with and do not violate any federal, state, or local laws, or any applicable foreign laws. It is also your responsibility to verify that all purchasers can receive your products and be admitted to your Venue. You are solely responsible and liable for the safety, quality and fitness for its intended purpose of your products and Venue and for maintaining any insurance or other security with respect to your products and Venue.
Limited Disclosure of Information
For all sales by you through the Services, Port charges a fee and an additional payment processing or credit card fee (collectively, the “Fees”). Customer agrees to pay Port all applicable Fees for each sale or donation solicited through the Services. Fees are processed by us through our Payment Processors, as more fully described in Section 3.2 below. The current amount of such Fees is set forth in our pricing policy, which is available at https://support.sellwithport.com/hc/en-us/articles/222355467-What-are-the-fees-for-using-Port- and is incorporated herein by reference. The Fees set forth in our pricing policy are subject to change from time to time. Such changes will apply to any sales or other transactions that occur after such change. Please check our pricing policy to confirm our current Fees. All Fees and any other monies contemplated by this Agreement are payable in U.S. Dollars, or in any foreign currency accepted by Port for your Venue in another country or jurisdiction, as shown on our Site.
Payment processing occurs directly by Port. You must establish the applicable fees for your products and Venue through the Services. We will collect all registration fees through our Payment Processors on your behalf in the established amount from each purchaser. We will also charge and collect from such purchasers the applicable Fees described above in Section 3.1. We will pay all fees that we receive less any amounts that you owe to us for any reason via Direct Deposit into the account you authorize. You represent, warrant and agree that checking account information provided to us is accurate and you will update this information as necessary to maintain its accuracy. Port will use commercially reasonable efforts to pay any collected fees to you on a weekly basis; provided that we reserve the right to withhold funds and maintain reserves of funds as we, in our discretion, determine to be necessary for the processing and settlement of returns and refunds, disputed charges, customer complaints, allegations of fraud, chargebacks, expected chargebacks, other discrepancies, changes in your credit status or the risk profile of a Venue.
Customer agrees that any collected fees relating to a specific product or event (instead of fees relating to general admission to your Venue) at Customer’s Venue are earned by Customer only following the delivery of the applicable product or the conclusion of the applicable event. Customer agrees that any payment of fees by Port to Customer made in advance of the delivery of the applicable product or conclusion of an event at Customer’s Venue will constitute an advance of amounts due or that may become due hereunder. Customer further agrees that Port may, in its discretion, demand return of any such advances or portion thereof from time to time based upon the amount of returns and refunds, disputed charges, customer complaints, allegations of fraud, chargebacks, expected chargebacks, other discrepancies, changes in Customer’s credit status, the risk profile of a product or Venue, or breaches of this Agreement. Upon receipt of any such demand, Customer will promptly pay Port the portion of any such advanced amount. Customer agrees that Port may withhold funds pursuant to this Agreement.
Port does not and will not provide banking, deposit taking, stored value, insurance or any other financial services to you other than serving as a limited payment collection agent as described in this Agreement. In serving as your limited payment collection agent, we use Payment Processors, which are third party payment processing gateways, payment processors and merchant banks, with which we have relationships. Customers are subject to the rules and regulations of such Payment Processors. The amount of applicable registration fees collected by our Payment Processors represents only a general unsecured claim against Port and not a store of value or a deposit or current account.
Port will determine, it its discretion, whether you are qualified to use our Payment Processors. If you are not qualified to use our Payment Processors, you will not be permitted to use the Services. For risk management and security reasons and to meet the requirements of our Payment Processors, we may from time to time in our discretion impose a transaction limit on the amount of any given transaction that you process through our Payment Processors and you authorize us to reject any transaction over that limit. You are neither a party nor a third party beneficiary to our agreements with our Payment Processors.
You understand and agree that payment processing services may, at times, be inaccessible or inoperable for any reason, including, but not limited to: (i) equipment or communications malfunctions or internet outages; (ii) periodic maintenance, repairs, or administrative reviews that we may undertake from time-to-time; or (iii) causes beyond our reasonable control or which are not reasonably foreseeable by us, such as acts of government or the malicious or criminal acts of third parties. Accordingly, we will have no liability with respect to the unavailability of such services.
Customer hereby appoints Port as Customer’s limited payment collection agent solely for the purpose of collecting payments made by purchasers for Customer’s products or Venue through our Payment Processors. Customer agrees that a payment made by a purchaser to Port will be considered the same as a payment made by a purchaser directly to Customer, and Customer will sell or provide all advertised goods and services to the purchaser if Customer had directly received the applicable registration fees from such purchaser, regardless of whether the registration fees have yet to be received from Port. Customer further agrees that, in its role as limited agent, Port is authorized to: (a) enable purchasers to transfer or upgrade an admission, registration or product (if such transfers are permitted by Customer during the registration process); (b) hold, disburse and retain proceeds on Customer’s behalf pursuant to this Agreement; (c) issue refunds to purchasers pursuant to this Agreement; and (d) manage credit card chargebacks. In accepting appointment as the limited agent of Customer, Port will have no liability for any acts or omissions of Customer, and Customer acknowledges and agrees that Port’s obligation to pay Customer is subject to and conditioned upon receipt of the registration fees from purchasers.
No payments will be made to Customer with respect to any event at Customer’s Venue or with respect to any admission for access to Customer’s Venue or any sales of products that have been cancelled or with respect to which Port reasonable believes there is a risk of cancellation or nonperformance by Customer. If payments have already been disbursed to Customer for a cancelled event, admission or product, Customer will immediately return all such payments to Port or its designee for the purpose of providing refunds to purchasers.
Customer agrees to communicate its refund policy to its purchasers with respect to any admission to its Venue sold through the Services and to administer such policy in accordance with its terms and this Agreement. Customer’s refund policy will meet the requirements of and be consistent with Port’s refund policy described in this Section 3.2(vi), and to the extent of any inconsistency, Port’s refund policy expressly supersedes Customer’s refund policy. You will also ensure that your refund policy is consistent with the payment and refund processes included in the Services and all applicable legal, regulatory and other governmental requirements. All communications or disputes regarding returns and refunds are between the Customer and the purchaser, and Port will not be liable for any decision to issue or not issue refunds in the course of the use of our Services and Payment Processors.
Individual Refunds. If a purchaser desires to request a refund, the purchaser must request the refund from the Customer. Port has no obligation to issue refunds; however, at our discretion, Port will use commercially reasonable efforts to process, in a timely manner, refunds issued and requested to be issued by the Customer in accordance with this Agreement. In addition, Port may deduct the cost of the refunds from such Customer’s outstanding balance or send an invoice to such Customer for costs if no balance exists.
Canceled or Rescheduled Events. If any products or admissions are cancelled, Customer agrees that all purchasers affected by such cancellation will be entitled to a refund. Customer may request that Port process refunds for such cancellations. In such event, Port will invoice Customer for all Fees due to Port for such cancellations. Upon payment by Customer of such invoiced Fees, Port will issue a full refund to such purchasers. If Customer fails to submit payment to Port for its Fees in a timely manner, Port will process refunds for the applicable cancellation, less all applicable Fees. Upon processing of such partial refunds by Port, Customer will be solely responsible for issuing, and will be required to issue, refunds for the remaining amounts directly to purchasers, and Port will have no further liability or obligation in connection with such refunds. If an event is rescheduled or postponed, Port will, in its discretion, determine whether such rescheduling or postponement qualifies for a refund in accordance with the terms of this Section 3.2(vi) and will promptly notify Customer of any such determination. Customer agrees that it is solely liable and responsible for all insurance and costs incurred from cancelled, rescheduled or postponed events.
Other Refunds. Notwithstanding the foregoing, Customer acknowledges and agrees that Port will have the right (but not the obligation) to provide refunds to purchasers of any and all amounts paid for products or admission at any time for any reason or no reason, including without limitation, as a result of complaints from purchasers or Customer’s breach of this Agreement, if Port believes, in its discretion, that purchases should be refunded under Customer’s refund policy, or if Port determines, in its discretion, that the Customer has engaged in any fraudulent activity or made any misrepresentations or that there is a risk of nonperformance by Customer. Port will have no liability whatsoever to Customer in connection with or arising from any such decision to provide refunds. Because all sales are made by Customer, Customer agrees to promptly and fully reimburse Port upon demand for refunds that Port makes pursuant to this Agreement.
Any credit card chargebacks or other transaction reversals initiated by a purchaser for any reason and all related processing, penalty and other fees will be charged back to and the sole responsibility of the Customer. Customer agrees to promptly and fully reimburse Port for such amounts. Port, in its discretion, may either (i) deduct these costs from such Customer’s outstanding balance, or (ii) send an invoice to such Customer for such costs if no balance exists. If payment for such invoice is not received by Port within thirty (30) days after the invoice date, Port reserves the right, in its discretion, to terminate or cancel Customer’s use of the Services. Port will have no liability whatsoever for any damages, claims or losses incurred by Customer in connection with any such termination or cancellation. All communications and disputes regarding chargebacks are between the Customer and its purchasers, and Port will not be responsible or liable in any way for chargebacks or other transaction reversals issued in the course of using our payment processing services. Customer acknowledges and agrees that chargebacks will result in losses to Port in excess of the amount of the underlying transaction and that, by refunding transactions in accordance with this Agreement in advance of a chargeback, Port is mitigating such losses and its damages with respect to Customer’s breach of this Agreement.
In the event that you do not pay to Port any amount required to be paid by you under this Agreement when due and following a late payment notice delivered by Port, such amount will bear interest calculated from the date due until paid in full at a rate equal to the lesser of (i) one percent (1%) per month, compounded monthly, and (ii) the maximum amount permitted by applicable law. In addition to any other remedies available at law or in equity, Port may (a) withhold amounts due to Customer, whether or not for a particular product, Venue or event, and use the withheld amount to set-off the amount owed, and (b) send an invoice to Customer for such amounts to the extent Customer’s outstanding balance is insufficient to cover such costs, which invoice will be paid by Customer to Port within thirty (30) days after the date of invoice. In addition to the foregoing, Port will be entitled to recover from you, in addition to any amounts otherwise owing, its reasonable costs of collection, including without limitation, collection agency fees, reasonable attorneys’ fees and court costs.
In addition to the foregoing and any other remedies that we may have under law or equity, Port reserves the right to withhold, temporarily or permanently, the payment of any amounts owed to you hereunder if Port suspects or determines, in its discretion, that such amounts have been generated in (1) a fraudulent manner, (2) breach of this Agreement, or (3) violation of any applicable laws or regulations.
You are solely responsible for (and hereby indemnify and hold harmless Port against) all taxes or other governmental charges, including without limitation, sales, use, amusement, value-added, consumption, excise and other duties, levies and charges, applicable to your sales through the Services (excepting taxes based on Port’s net income). It is your responsibility to know if any applicable laws apply to you and to adjust the price accordingly to account for your payment of such taxes and charges. You agree to collect, remit and report the correct amounts of all such taxes and charges to the applicable governmental authorities. If you determine to collect taxes on your sales the Services, such taxes will be treated similar to registration fees and Port will pay such amounts to you at the same time as the underlying registration fees.
If Port determines that it is required to collect or pay any such taxes or other charges, it may deduct such amounts from any balance payable to you under this Agreement or else invoice you for such taxes or other charges. Port cannot and does not provide legal or tax advice. Accordingly, we recommend that you consult with your own tax and legal advisor about taxes and charges applicable to your use of the Services. In the event any governmental authority requires Port to pay any taxes or charges in connection with your use of the Services, you agree to promptly and fully reimburse Port for such taxes and charges and all costs, penalties, interest and expenses related thereto.
Under the regulations of the Internal Revenue Service (“IRS”), if we (i) issue amounts to you in excess of $20,000 in gross sales and (ii) process in excess of 200,000 transactions, in each case during a calendar year and in the aggregate from your use of the Services, we are required to report to the IRS: (a) the gross amount of transactions for which we have paid you in the applicable calendar year and in each month of such year; (b) your name; (c) your address; and (d) your tax identification number. Pursuant to IRS regulations, we are required to either collect such tax information or determine that you are foreign person not subject to U.S. taxes before. Accordingly, once your use of the Services exceeds the thresholds in clauses (i) and (ii) of this section, we will not pay any additional amounts to you until we receive such tax information or confirm that you are not subject to U.S. taxes.
YOU ARE SOLELY LIABLE FOR ALL CLAIMS, EXPENSES, FINES AND LIABILITIES WE INCUR ARISING OUT OF: (I) A RETURN, REFUND, DISPUTED CHARGE, CUSTOMER COMPLIANT, CHARGEBACK, OVER-PAYMENT, PAYMENT ERROR, OR OTHER INVALID PAYMENT OR DISCREPANCY; (II) ANY ACT OR OMISSION, INCLUDING WITHOUT LIMITATION, ANY ERROR, NEGLIGENCE, MISCONDUCT OR FRAUD, OF YOU, YOUR EMPLOYEES, OR ANY PERSON ACTING ON YOUR BEHALF; AND (III) ANY LOSSES RESULTING FROM YOUR FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT OR YOUR USAGE OF OUR SERVICES OR OUR PAYMENT PROCESSING SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, Port AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, AGENTS, LICENSORS, EMPLOYEES AND PARTNERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR (I) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF OUR SERVICES OR OUR PAYMENT PROCESSING SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE (EVEN IF Port HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), AND WHETHER BASED ON BREACH OF AN EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISINTERPRETATION, NEGLIGENCE, STRICT LIABILITY OR OTHER CAUSE OF ACTION, (II) THE COST TO PROCURE SUBSTITUTE SERVICES, (III) ANY OF YOUR CONTENT OR OTHER INFORMATION THAT YOU PROVIDE IN CONNECTION WITH YOUR USE OF THE SERVICES, OR (IV) ANY MATTERS OUTSIDE OF Port’S REASONABLE CONTROL. IN ADDITION, EXCEPT WITH RESPECT TO REGISTRATION FEES PAYABLE TO CUSTOMER HEREUNDER, THE TOTAL AGGREGATE LIABILITY OF Port AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, AGENTS, LICENSORS, EMPLOYEES AND PARTNERS FOR ANY DAMAGES, LOSSES, LIABILITIES, COSTS AND EXPENSES UNDER ANY LEGAL THEORY WITH RESPECT TO, ARISING OUT OF OR RELATED TO THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE TO Port BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
Our Services facilitate the purchase and sale of products and admission to Venues. We cannot however be responsible for the acts and omissions of different purchasers, merchants and other third parties that use the Services. Accordingly, as an inducement to Port’s authorizing your access to and use of the Services, you hereby release Port and its affiliates and their officers, directors, agents, licensors, employees and partners from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of or in connection with disputes between you and third parties (including other users) in connection with the Services or any sale made by you through the Services. In addition, you waive any applicable law or statute that provides that a general release does not extend to claims that the releasing party does not know or suspect to exist at the time of executing such release.
You agree to indemnify, defend and hold harmless Port and its affiliates and their officers, directors, agents, licensors, employees and partners from and against any lawsuit, claim, liability, loss, damage, penalty or other expense (including attorneys’, investigators and accounting fees and costs of defense) arising out of or resulting from: (i) your breach of this Agreement or any other agreement you enter into with Port or our partners in connection with your use of our Services; (ii) your improper use of our Services or our payment processing services; (iii) your violation of any applicable law, regulation, judgment, order or association rules and requirements; or (iv) your products or Venue or the fact that Port was providing Services with respect to your products or Venue, provided that solely with respect to clause (iv), such indemnification will not apply to the extent that any such liability arises out of Port’s gross negligence or willful misconduct.
In addition to any other representations and warranties in this Agreement, you represent and warrant that: (i) you are a producer, promoter, presenter, owner or manager of the products or Venue sold, marketed, promoted or processed through the Services; (ii) if you represent an entity, such entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of formation; (iii) you, or the entity that you represent, have all requisite power and authority to enter into this Agreement and perform your obligations hereunder and the transactions contemplated hereby, including without limitation, the offer, sale, and acceptance of your products and admission to your Venue through our Services; (iv) your entry into and performance of this Agreement by you, or if you represent an entity by the entity you represent, will not result in any breach of, or constitute default under, any applicable law, rule, regulation, judgment or order or other agreement to which you or it is a party, including without limitation, any other agreement for the sale of products and admissions; (v) if you represent an entity, you have the full right, power and authority to bind such entity to the terms and conditions of this Agreement; and (vi) your use of the Services and the sale of admission to your products and Venue do not and will not constitute a violation of any applicable law, rule, regulation, judgment or order.
You understand and acknowledge that Port is the owner of valuable trade secrets and confidential, non-public, and proprietary information (collectively “Confidential Information”) and acknowledge that the Services involve our furnishing of Confidential Information to you. Our Confidential Information includes, but is not limited to: (i) customer names, mailing addresses, and other personally-identifiable information; (ii) sales; (iii) market demographics; (iv) pricing; and (v) business strategy, and that the goodwill and competitive position of Port depend, in part, upon you maintaining the confidentiality of such Confidential Information. You agree to use your best efforts to protect our Confidential Information and to implement security measures to keep such Confidential Information confidential. Except pursuant to court order or with our prior written consent, you agree that you will not disclose, distribute, sell, license, transmit, or disseminate any Confidential Information to any other party or permit or cause any unauthorized party to disclose, examine, and/or reproduce any reports, documents, transmissions, or data containing Confidential Information prepared or owned by us. If you are requested or required to disclose Confidential Information pursuant to legal proceedings, you will promptly notify us so that we may prepare a response to such request or requirement and you will cooperate with our efforts to obtain a suitable protective order or other remedy.
You agree that you will not solicit or contact for the purpose of soliciting, or assist anyone else in soliciting or contacting for the purpose of soliciting, via e-mail or through other means, any of our customers (including any purchaser or merchant that you interact with through the Site or the Services) in order to purchase, buy, acquire, or obtain any other product, service, or other solicitation, or for the purpose of terminating, altering, or in any way modifying our customers’ relationship with us.
Port will not solicit or contact, for the purpose of soliciting, any of your customers or purchasers in order to sell, promote or advertise our products or services.
We will not use your company or organizational name, logos or trademarks for any purposes without first obtaining your consent, except that we may use such information in advertising and promotional materials for our prospective customers.
Except as provided elsewhere in this Agreement, either party may terminate this Agreement at any time upon seven (7) calendar days’ advance notice to the other party as provided in the paragraph titled “Notice” in our Terms of Service. In addition to our other rights to terminate your use of our Services under this Agreement, Port may immediately terminate this Agreement and your right to use the Services if you are in violation or breach of this Agreement.