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MEMBER AGREEMENT
1. Definitions1.1. "Member Agreement" means this head agreement and the following attachments, as amended from time to time, which may be viewed online on the Website:
- Marketplace Rules. The Marketplace Rules describe the terms and conditions applicable to your use of the ITEX Marketplace ("Marketplace") as well as your use of our services under the domain and subdomains of www.itex.com (the "Website"). Our Fee Policy is set forth as a part of the Marketplace Rules. The purpose of the Marketplace Rules is to enable and facilitate fair transactions among and between ITEX Marketplace Members ("Members") by fostering a system of good business practices. They set out the means by which ITEX provides you with services and the way in which you must conduct transactions and other business with other Members.
- Privacy Policy. Our Privacy Policy sets out our commitment to the privacy of our Members and the practices applicable to information collected from or submitted by Members.
1.2. "Services" means the services provided by ITEX in providing a marketplace for cashless business transactions and acting as a third party record-keeper and administer of the clearinghouse function of the Marketplace for Members who subscribe to our record keeping and payment processing services. We may, in our sole and absolute discretion, contract with others to provide all or part of such record-keeping, administrative or payment processing services.
1.3. "Member" or "You" means: (a) in the case of the hard-copy version of the Member Agreement, the business entity signing the Member Agreement whether a corporation, a sole proprietorship, a partnership or approved individual; and (b) in the case of the on-line version of the Member Agreement, the business entity or approved individual accessing this Member Agreement and accepting the same who then obtains a unique Member ID and password to continue to use the ITEX Services.
2. Changes to Member Agreement. ITEX reserves the right to alter and change the terms of the Member Agreement and the Attachments. We may amend this Member Agreement at any time by posting the amended terms on the Website. Unless otherwise amended in a writing signed by you and ITEX, all amended terms shall automatically be effective 28 days after they are initially posted on the Website. In addition, you will be notified of such alteration or change to the Member Agreement by email. You agree that your use of our Services after notification of any changes to the Member Agreement constitutes agreement to the terms of the changed Member Agreement.
3. Services and payment. ITEX is a cashless payment processing and transaction clearinghouse providing a set of Services to its Members on the basis set out in this Member Agreement. You have elected to pay for such Services in accordance with the terms specified in our Fee Policy (currently set forth as Section C of the Marketplace Rules entitled "Continuing Service and Transaction Fees" and incorporated herein by reference).
4. Representations and Covenants of Member
4.1. You represent and warrant that:
(a) You are over the age of 18 and have the power, authority and capacity to enter into the Member Agreement and to bind yourself to the terms, conditions and obligations set forth therein and herein. If you are registering as a business entity, such entity is a bona fide and legal corporation, sole proprietorship or partnership, and you have the authority to bind the entity to our Member Agreement;
(b) The information provided by you on the Member Agreement is true, accurate and correct and properly describes you and your business;
(c) You have provided ITEX a valid credit card, debit card, checking account information, or other method of payment of fees; and
(d) You have carefully read, understand and accept the Member Agreement, the Marketplace Rules (including the Fee Policy), the Privacy Policy, and the terms, conditions and obligations set forth in the Member Agreement.
4.2. You will indemnify ITEX (together with its officers, directors and agents) and to hold it (and them) harmless from any and all claims, damages and expenses, including reasonable attorney fees, arising out of: (1) your actions or conduct in violation of the Member Agreement, which incorporates the Marketplace Rules and the Privacy Policy by reference; (2) your disputes with other Members or with third parties (3) any actions we take to comply with federal, state or provincial, and local tax laws; (4) any transaction wherein you are a buyer or seller; (5) any debit to your account utilizing your Member password on the Website; (6) any breach of the Website terms and conditions, including any use of content other than as expressly authorized; (7) your offer to sell, sale, or purchase any prohibited product or service through the Marketplace; and (8) any transaction or attempted transaction with an ITEX Broker or its employees when Broker is acting as a principal to the transaction.
4.3. You understand, acknowledge and agree that:
(a) ITEX dollars are not considered legal tender, securities or commodities by ITEX or its Members and may not be redeemed for cash (See Section D of the Marketplace Rules).
(b) Transactions involving ITEX dollars are generally treated as taxable events for federal, state or provincial, and local tax purposes, and you will seek independent professional tax advice if you need it (See Section 3.22 of the Marketplace Rules).
(c) In the event of investigations of violations of Rules or use of the Website, ITEX will cooperate with all government officials, international organizations and law enforcement authorities seeking to clarify whether any Member has violated the law.
(d) We reserve the right to accept or reject your application as a prospective Member of the Marketplace for any reason, in our sole discretion.
(e) Your acceptance as a Member is subject to our approval of your credit standing. By signing below, you agree to allow us to obtain a credit report from a regional credit-reporting agency at our expense, for the purpose of evaluating your credit risk. You acknowledge that we report delinquencies to credit reporting agencies.
5. Miscellaneous
5.1. Counterparts; Fax and Email Signatures. This Agreement may be executed in any number of counterparts and the parties agree that each such counterpart shall be deemed an original. ITEX may, and Member agrees that ITEX may, accept a faxed or emailed signature as an original, legal signature.
5.2. No Waiver of Right. ITEX's failure or delay in exercising any right will not operate as a waiver of that right, nor shall the partial exercise of a right preclude any other or further exercise of any right. ITEX's remedies are cumulative and are not exclusive of any remedies provided by law.
5.3. Entire Agreement/Severability. This Agreement and the Attachments constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof. If any provision of this Agreement is determined by any court to be invalid, illegal, or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of the parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the remainder of this Agreement shall be enforced as if such invalid, illegal, or unenforceable clause or provision had (to the extent not enforceable) never been contained in this Agreement.
5.4. Attorney's Fees. In the event an arbitration, suit or action is brought by any party under this Agreement (including the documents referred to herein), to enforce any of its terms, or in any appeal therefrom, it is agreed that the prevailing party shall be entitled to reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or appellate court, in the action and on appeal. Any sums, which may be awarded to ITEX by judgment, shall be in United States dollars rather than ITEX dollars.
5.5 Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to that body of laws pertaining to conflicts of law. Any dispute, claim or other litigable difference between them arising out of or relating to this Agreement shall be exclusively resolved by submission to binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association; provided, however, that either party may seek preliminary injunctive or other equitable relief pending arbitration to prevent irreparable harm, and further provided, that a cause of action may be brought by ITEX or its assignee against Member in any judicial district for debt collection purposes. Arbitration shall be held in King County, Washington. The prevailing party shall be entitled to an award from the arbitrator of declaratory relief, preliminary and permanent injunctive relief, compensatory damages, reasonable attorney fees and costs of the action. The decision of the arbitrator shall be entitled to enforcement in any court of competent jurisdiction.
5.6. Venue. Any action brought by any party to this agreement shall be filed, and venue shall lie only in the courts of King County, Washington, United States of America, to which jurisdiction and venue Member hereby specifically consents, provided however, that if ITEX has assigned its cause of action against Member to any debt collector or collection agency, such action may be brought in a judicial district or under the jurisdiction of the court having the venue where Member resides, or is doing business, or is situated.
5.7. Assignment. Member may not assign any of its rights under this Agreement without the consent of ITEX. Only the Member entering in to this Member Agreement or Authorized Users designated by Member and approved by ITEX may utilize the Services provided by ITEX. ITEX may, in its sole discretion, assign and transfer its rights under this Agreement, including without limitation, all right, title and interest in and to Member's accounts receivable, and all proceeds and collections relating thereto, which outstanding receivables arose from dues and fees billed to and balances owed by Member.
