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RULES OF THE ITEX MARKETPLACE
Effective January 1, 2007
Table of Contents
A. OVERVIEW
These Marketplace Rules ("Rules") are part of the Member Agreement between you as an ITEX Marketplace Member ("Member") and ITEX Corporation ("ITEX"). They describe the terms and conditions applicable to your use of the ITEX Marketplace ("Marketplace"), and your use of our services under the domain and subdomains of www.itex.com (the "Website"). The purpose of the Rules is to enable and facilitate fair transactions between ITEX and Marketplace Members by fostering a system of good business practices, by educating you in the ways ITEX provides you with services, and the way in which you must conduct business with other Members.
Opening an ITEX Account ("Account") as a Member constitutes your acceptance of all terms and conditions of these Rules as most recently published by ITEX. If you do not agree to be bound by these Rules, do not become a Member or use or access our services. In addition to these Rules, Members must read, agree and accept all of the terms and conditions contained in our Member Agreement and Privacy Policy. We may amend these Rules at any time by posting the amended terms on the Website. Except as stated below, all amended terms shall automatically be effective 28 days after they are initially posted on the Website. In addition, we will notify you of amendments by email. These Rules may not be otherwise amended except in a writing signed by you and ITEX. These Rules are effective upon our acceptance of you as a new Member, and are otherwise effective on November 1, 2006 for all Members.
B. PARTICIPATION IN THE ITEX MARKETPLACE1. Nature of the Parties
1.1. ITEX provides a marketplace for cashless business transactions, and acts as a third party record-keeper and administrator 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.
1.2. ITEX contracts with Franchisees, Independent Contractors and Independent Licensed Brokers (collectively, "Brokers"), for the provision, by these Brokers, of member support or brokerage services associated with operation of the Marketplace. Brokers operate from business locations other than our executive office in Washington, and function as independent business entities. Brokers are not employees of ITEX, and their authority to bind ITEX is strictly limited by applicable policies and contractual obligations that are binding on Brokers. As independent contractors, Brokers are solely responsible for the employment, acts and omissions, control and direction of their employees and assignees.
1.3. Member is a bona fide and legal corporation, sole proprietorship, partnership or approved individual that desires to exchange its products, services, materials and/or labor ("products and services") with other Members of the Marketplace, accepting ITEX dollars ("ITEX dollars") as payment, and subscribes to ITEX’s record keeping, payment processing and related services. See Section D. 1 for a description of "ITEX dollars."
2. Member Eligibility
Only individuals and businesses who meet our qualifications can become Members and transact through the Marketplace. Members may designate authorized persons ("Authorized User") to transact in the Marketplace, subject to our approval. We reserve the right to approve or deny membership or use of an Account to any business or individual, in our sole discretion. Our services are available only to, and may only be used by, business entities or individuals who can form legally binding contracts under applicable law, including those with respect to payments, transactions, and fees. We may require that, at any time, each Member provide ITEX a valid credit card, debit card, checking account information, or other guarantee of payment of fees. If you are registering as a business entity, you represent that you have the authority to bind the entity to our Member Agreement. Our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended Members.
3. Conduct of Transactions
3.1. Legal Right to Sell Listed Products and Services. You may list on the Marketplace only those products and services that you have the legal right to sell through the Marketplace. Only Members holding the appropriate license may sell products or services that are permitted to be sold only by licensed sellers under federal, state or provincial, and local law, including but not limited to travel services, alcohol, real estate, insurance, professional services and securities.
3.2. Member Listings. All listed products and services for sale on the Website must be listed in an appropriate category. We reserve the right to remove any Member Listing ("Listing") or change its location on the Website. All Listings of a Member must comply with the Rules. Members are not permitted to manipulate, alter, interfere with, or otherwise affect another Member’s Listings. Listings that promote bonus items, giveaways, or random drawings or prizes as an enticement for buyers must be legal promotions in all jurisdictions where the promotion is available. It is your responsibility to determine the legality of your promotion. We reserve the right to request documentation supporting your ITEX dollar valuation of a listed product or service with evidence of other valid cash sales at the same price. Failure to provide adequate documentation of cash sales to support the listed price may result in the deletion of any Member’s Listing from the Marketplace.
3.3. Selling Products and Services for ITEX Dollars. You agree to sell products and services for ITEX dollars in accordance with the terms and conditions set forth in these Rules at prevailing or normally advertised prices, but you may exclude "sale" items. You agree to sell your products and services for 100% ITEX dollars, except for tax and shipping costs, and except in the case of a single transaction exceeding $5,000.00 ITEX dollars. Buyer and Seller MAY negotiate for a portion of the excess of the price over $5,000.00 ITEX dollars in a single transaction to be paid in cash. Any required cash payments, e.g. shipping or tax, are the sole responsibility of the Buyer and Seller and are not the responsibility of ITEX. We are not a guarantor of any Marketplace transaction. Our only responsibility is to record transactions according to the terms and conditions outlined herein, and ITEX is not responsible for the interpretation or fulfillment of any of the obligations of the Buyer and Seller.
3.4. Transaction Documents and Payment Methods. The following may be used as payment for Marketplace transactions:
a. ITEX checks
b. Scrip
c. Broker Posting Ledger or Group Buyer Record
d. Direct payment through the Website
e. Signed invoices or other billing documents authorizing payment through ITEX
f. Faxes or e-mails from Buyer authorizing payment through ITEX
3.5. Transaction Procedure. We are obligated to process the transfer of ITEX dollars represented by ITEX checks or other Buyer authorized posting documents only when the procedures outlined below are followed:a. ITEX checks and other Buyer authorized transaction documents are properly completed with account numbers, names, date, and signature. ITEX checks received without the Buyer’s signature may be returned to the Seller or Seller’s broker.
b. An authorization number is secured from ITEX Transaction Clearance at 1-800-426-5777 or through the Website for each transaction.
c. Authorization is obtained at the time of sale and an authorized Broker or the ITEX corporate office receives the approved transaction materials within fourteen (14) days from the date authorized. We reserve the right to refuse to issue an authorization number if: (i) the Buyer does not have sufficient ITEX dollars to cover the purchase; (ii) either party is not a Member in good standing (See Section B. 3.13. below); (iii) ITEX has reason to believe the transaction is prohibited by law or by the terms of these Rules; or (iv) the transaction is prohibited by agreement with the other party to the transaction.
d. ITEX checks and other Buyer authorized transaction documents are considered void twelve (12) months from the date written. We are under no obligation to post ITEX checks and other Buyer authorized transaction documents that are more than twelve (12) months old.
e. International transactions are always denoted in the currency of the Seller’s country. The ITEX dollars deducted from the Buyer’s account will be converted to their country’s currency at the rate available at the time of posting as determined by the XE.com currency website.
f. It is the responsibility of the Seller and Seller’s Broker to maintain any written documentation of the transaction (contract, invoice, etc.), including an authorizing signature from the Buyer. In case of dispute, if no signed authorization from the Buyer is kept, the transaction may be reversed at the Buyer’s written request. ITEX is not under any obligation to review transactions after one hundred twenty (120) days from the date of the disputed transaction posting. We may, in our sole discretion, reverse a transaction older than 120 days, if we deem it appropriate.
Notwithstanding the foregoing, we have no obligation to evaluate the lawfulness of any transaction conducted through the Marketplace.3.6. Online Transaction Procedure.
a. You may make purchases or payments directly on the Website. Members who wish to use the Website to list a product or service for sale, make a purchase, or make a payment, must enter their approved password. It is important that you guard the identity of this password because the use of the password to make a purchase represents your consent as Buyer to debit your account. You agree to indemnify and hold ITEX harmless for any debit to your account utilizing your Member password.
b. Members may NOT post sales directly on the Website. However, a Seller may approve a transaction initiated on the Website by a Buyer, resulting in the transfer of ITEX dollars from Buyer’s account to Seller’s Account.
c. For Terms and Conditions governing your use of the Website, See Section G. of these Rules, "Website Terms and Conditions of Usage."
3.7. On Hold Status. You may initiate "On Hold" status with respect to the products and services offered by you as a Member, ONLY during the cycle(s) you maintain a positive ITEX dollar balance. To initiate On Hold status, you must (i) give advance notice in writing to your assigned Broker and (ii) inform other Members who call for products and services that you are On Hold and will be accepting ITEX dollars in the near future.3.8. Transaction Assistance; Real estate. We will use reasonable commercial efforts to assist Members to transact among themselves by, among other things, making Member information available on the Website; maintaining current Member information; and appointing, at our sole and absolute discretion, independent persons or entities as Brokers to provide information on Members’ products and services available through the Marketplace. Whenever you either enter into a transaction, or make an offer to enter into a transaction through the Marketplace, you acknowledge that the sole parties to any Marketplace transaction are the buying and selling Members involved and not ITEX, that each transaction is entered into voluntarily and incurs normal risks associated with any business transaction, that each Member will engage in appropriate due diligence, with the assistance of professional counsel and consultants if appropriate, prior to entering into the transaction, and that neither ITEX, its Brokers, nor the Marketplace is a guarantor of any transaction or ITEX dollar transfer. We will use reasonable commercial efforts to record transactions accurately, to administer the Rules in accordance with their terms, and to assist in the sale of your products and services to other Members. However, the initiative for using our services for your economic benefit is exclusively yours and neither ITEX, its Brokers nor the Marketplace guarantees or warrants any level of business through the Marketplace.
Any Member that participates in a transaction involving the sale or lease of real estate agrees to the following:
- Any real estate transaction conducted in the Marketplace shall not be deemed a legally binding contract until all requisite documents have been executed and the transaction has been completed in accordance with the laws of the jurisdiction in which such property is located. You are strongly advised to seek the help of a licensed real estate professional or real estate attorney to help you in the negotiation, purchase or sale of any real estate.
- All offers to sell real property are solicited by the seller thereof and not by ITEX. Any Member offering real estate in the Marketplace shall have a valid real estate license in the jurisdiction in which such offered property is located, or shall be the legal owner of that property.
- All real estate advertising in the Marketplace is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, or discrimination because of race, color, religion, sex, handicap, familial status, or national origin," as well as state and local requirements.
3.10. Prohibited Products and Services. No Member shall offer for sale or purchase any product or service through the Marketplace in a manner that violates federal, state or provincial and local law. No offer to sell or purchase any such prohibited product or service shall be deemed to be authorized by ITEX. Only Members holding the appropriate license may sell products and services that are permitted to be sold only by licensed sellers under federal, state or provincial, and local law, including but not limited to travel services, alcohol, real estate, insurance, professional services and securities. Member shall indemnify and hold harmless ITEX and the Marketplace from any claim, demand, judgment, or fine made by any third party, including government agencies, due to or arising from Member’s offer to sell, sale, or purchase of a prohibited product or service through the Marketplace.
3.11. Availability of Products and Services. We will use reasonable commercial efforts to enroll new businesses with products and services to meet the needs of Members. Neither ITEX, its Brokers nor the Marketplace is responsible if Member cannot find specific products or services to purchase, or customers for their products and services within the Marketplace.
3.12. No Control over Member and Third-Party Information. We are not responsible for, and do not control, represent or endorse the accuracy, reliability, integrity, or legality of any information provided by Members, Brokers and third parties available through the Marketplace, including information that is transmitted on behalf of Members by Brokers or their employees. Members and third parties are solely responsible for their respective information.
3.13. Definition of "Member in Good Standing." A Member who complies with the current Rules and any other agreements in effect with ITEX, who is current in the payment of any cash or ITEX dollar fees owing to ITEX, and who has a valid Member account, is a "Member in good standing." Only Members in good standing are entitled to the services of ITEX.
3.14. Advertising Authorization. Unless we are otherwise notified in writing, you authorize us to inform other Members of the availability of your products and services. This authorization includes, without limitation, listings in local, regional or national directories, Website listing, and e-mail broadcasts. Member information that will be publicly available may be the name of the business, address, contact person, telephone number, fax number, email address, website URL, and product and service availability, unless Member directs otherwise. We are neither a party to these sales listings nor responsible for their accuracy. Any inaccuracies should be immediately reported to us, in writing. We reserve the right to restrict or deny the publishing or promotion of products and services that we, in our sole discretion, deem to be inappropriate.
3.15. Consent to Receive Electronic Mail from ITEX. You hereby expressly consent to receive from us (and from our Brokers) electronic mail messages containing information promoting the sale, lease, or other disposition of products and services made available through the Marketplace, or containing information regarding the operation of the Marketplace. You agree that we are not responsible for, and do not control, represent or endorse the accuracy, reliability, integrity or legality of any email, advertising or other information provided by Members or Brokers.
3.16. Record Keeping
a. We will issue periodic statements to you reflecting your account activity and amounts due and owing to ITEX. Statements are deemed accurate as produced unless you notify the ITEX corporate office in writing of any discrepancy, within four weeks of the statement date. We are under no obligation to reverse transactions entered on an account one hundred twenty (120) days after the date of the posting of the transaction. Interim account activity summaries may be requested at any time at no charge and are available at the Website. If you request copies of processed ITEX checks or other Buyer authorized transaction documents over one hundred twenty (120) days old, you may be charged a cash research fee per copy unless the examination reveals an accounting error.
b. ITEX operates on a four (4) week accounting cycle ("Cycle") that may or may not conform to any given calendar month. Each Cycle begins on a Friday and ends at midnight on the fourth Thursday following.
c. We have the right, but not the obligation, to reverse transactions due to non-compliance with these Rules or failure to provide products or services, in which event it will be the Seller’s responsibility to collect from the Buyer. Transactions are subject to final audit and verification by ITEX and, in case of inaccuracies or non-compliance, we may debit or credit your account without notice.
3.17. Funds in Transit. The following applies to transactions involving special or long distance orders, construction jobs, service work, long term leases and other work-in-progress transactions. ITEX dollar transactions should be conducted in the same manner as cash transactions. For instance, Buyer should consider obtaining a written estimate or description of product or service and price before authorizing work to begin or shipments to be made. Before starting work or shipping a product, Seller should consider obtaining a deposit or down payment in ITEX dollars in the same manner as a seller would in a cash transaction. The Funds-In-Transit (FIT) Program has been designed to assist Members with transactions in excess of $1,500.00 ITEX dollars or those transactions that require more time than the ITEX authorization process allows (14 days). The FIT Program is designed to assure the Seller that Buyer funds have been set aside for the specific transaction. An ITEX check or other authorized transaction documents and a FIT Initiation Form must be submitted to the ITEX corporate office before funds may be deposited into a FIT account. Before funds can be released from a FIT account, a FIT Release Form must be completed and signed by the Buyer and submitted to the ITEX corporate office.3.18. Products or Services sold by ITEX. On all products or services owned and sold by ITEX, the only warranty ITEX makes is that it has title free and clear from any lien or encumbrance. All products or services are sold "as is, where is." ITEX makes no warranty either express or implied, by operation of law or otherwise as to the merchantability or fitness for a particular purpose of any products or services sold in transactions in which ITEX may act as principal, and Buyer shall look solely to the manufacturer, distributor or retailer of such merchandise for any warranty.
3.19. Disclaimer of Warranty and Liability on Marketplace Transactions. ITEX is not a guarantor of any transaction conducted in the Marketplace. ITEX does not guarantee, warrant, or make any representation regarding any of the following:
- The quality, quantity, delivery, value, condition, safety, legality, merchantability, fitness for a particular use or purpose, timeliness or accuracy, or any other characteristics of any products or services placed into or purchased through or otherwise advertised on or through the Marketplace by a Member or third party;
- The accuracy, reliability, or integrity of any information provided to ITEX by a selling Member or third party and disseminated by ITEX on behalf of that selling Member or third party;
- The ability of any selling Member or third party to sell products or services;
- The availability of products or services within the Marketplace, or the ability of any buying Member or third party to buy products or services;
- The volume of business that any Member will derive from participation in the Marketplace or through use of ITEX dollars;
- The value of ITEX dollars or of the future existence or viability of the Marketplace;
- That there will be adequate ITEX dollar reserves to cover all outstanding claims in the Marketplace;
- That the Member will be satisfied with the selection of products or services offered through the Marketplace at any given time, or with the prices for such products or services; or
- The accuracy, reliability, integrity or legality of any offer, proposal, statement, data, opinion, or other content displayed or distributed through the Marketplace.
3.20. Member Transactions with Brokers. Brokers and their employees, both in the United States and Canada, are free to buy and sell in the Marketplace with ITEX dollars on their own behalf and for their own account. Every provision of the Rules applies equally to Brokers and their employees, as well as to Members. You agree to indemnify and hold ITEX harmless from any claim arising from a transaction or attempted transaction with a Broker or its employees when Broker is acting as a principal to the transaction.
3.21. Release. ITEX is merely a third party record-keeper and administrator of the clearinghouse function of the Marketplace, and not involved in any actual transaction between Members, or between a Member and a Third Party through the Marketplace. In the event that you have a dispute with one or more other Members or with one or more Third Parties, you release ITEX (and subsidiaries, directors, officers, employees, independent contractors, and other agents) from any and all 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 dispute. You agree that if a Seller fails to deliver products or services pursuant to agreed-upon terms, Buyer’s only recourse shall be against the Seller, and not against ITEX or against ITEX’s subsidiaries, directors, officers, employees, or Brokers.
3.22. Taxes. Each Member must provide a valid and correct taxpayer identification number (or, if applicable, social security number) to ITEX before engaging in any transaction through the Marketplace. By signing a Member application, you thereby declare and affirm that your taxpayer identification number (or, if applicable, social security number) you provide to ITEX is valid and correct. Members shall be solely responsible to collect and remit, and to declare and report all applicable federal, state, provincial, local and municipal taxes, including appropriate sales and excise taxes and GST, resulting from any trade transaction to the appropriate taxing authorities as required by law. Under no circumstances are we responsible to pay any sales, excise, GST, use or other taxes on behalf of any Member. Transactions involving ITEX dollars are generally treated as taxable events for federal, state or provincial, and local tax purposes. It is Member’s responsibility to seek independent professional tax advice as needed. The declaration and reporting of applicable taxes resulting from ITEX dollar transactions rests solely with you. In the U.S., we are required by law to submit a 1099B for each Member account to the IRS each year reporting the gross sales of the account. In Canada, transactions are deemed within the purview of the Income Tax Act, and transactions should be reported to Revenue Canada per applicable law. You agree to indemnify and hold ITEX harmless for any actions we take to comply with federal, state or provincial, and local laws.
3.23. Disputes
a. Transaction disputes concerning the quality, fulfillment, or deliverability of products and/or services purchased are between the Buyer and Seller ONLY, and ITEX has no responsibility in connection therewith other than recording transactions. You should exercise the same discretion in evaluating sellers, inspecting products, conducting due diligence, and ensuring delivery in ITEX dollar transactions as you do in cash transactions. We are not responsible for use of ITEX dollars by unauthorized persons or for transactions that do not comply with the Rules. ITEX is not a Buyer or Seller in any transaction unless it so states in writing.
b. In situations in which Buyer disputes having entered into a transaction, it shall be the responsibility of the Seller or the Seller’s broker to provide ITEX with: (1) written verification from the Buyer authorizing the transaction (e.g., signed ITEX check or other authorized transaction documents); or (2) written verification that Buyer is rescinding the dispute within five (5) business days of notice being given by ITEX to Seller or Seller’s broker of the disputed transaction. If such documentation is not received within that time, the transaction will be reversed. We are under no obligation to reverse transactions after one hundred twenty (120) days from the date of the disputed transaction posting. Except in the case of an accounting error, if a transaction is reversed, Member may still be charged the appropriate transaction and/or association fees.
c. In situations in which Buyer disputes the fulfillment or deliverability of products and/or services, it is the Buyer’s responsibility to complete and submit to ITEX corporate headquarters a Complaint Report, available on the Website. We, in our sole discretion, will determine, in accordance with these Rules, whether or not the dispute warrants our involvement. In cases in which disputes are deemed valid and within 120 days of the posting of the transaction, ITEX will forward the Complaint Report to the Seller, requesting a response within five (5) business days. Upon receipt of Seller’s response, our Dispute Resolution Committee ("DRC") will review all available information and will determine whether the transaction remains as posted or if the transaction shall be reversed. Failure of Seller to respond to the Complaint Report will, in most cases, result in the disputed transaction being reversed. Neither ITEX nor the DRC is under any obligation to review transactions after one hundred twenty (120) days from the date of the disputed transaction posting.
d. If you have three (3) Complaint Reports filed against you within a one (1) year period which we deem to be valid complaints in accordance with these Rules, you may be deemed to be in Default and your Account may be terminated in accordance with Section E. of these Rules.
C. CONTINUING SERVICE AND TRANSACTION FEES
Each Member will pay ITEX continuing service fees for record keeping and administrative services, transaction fees for sales and purchases and other fees (collectively, the "Fees"). Cash transaction fees are due upon receipt of your ITEX statement and must be paid by cash, business check, cashier’s check, money order, or credit card. "Preferred Members," as defined below, have their fees paid with an approved credit card or through electronic funds transfer. Unless you are a transitional Member with express approval from ITEX, these Fees are:
1.1. Association Fees: $20.00 cash and $10.00 ITEX dollars are charged to your account each four week accounting and billing cycle ("Billing Cycle") for your right to participate in the Marketplace. ITEX dollar fees are automatically deducted from your account.
1.2. Purchase Fee/Sales Fee: Members who elect to pay fees on open billing (upon receipt of an invoice) rather than with an approved credit card or through electronic funds transfer ("EFT"), pay a seven and one-half percent (7.5%) cash fee on purchases (payable by Buyer), and a seven and one-half percent (7.5%) cash fee on sales (payable by Seller). The Purchase/Sales Fees will be charged on the full amount of transactions, including the cash portion of an authorized part ITEX dollar/part cash transaction.
1.3. Preferred Member Status: Preferred Member status is extended to Members who have agreed to pay cash fees with an approved credit card or through electronic funds transfer ("EFT") on a continuing basis. Members electing to pay their cash fees with a credit card or by EFT from a checking account are charged a six percent (6%) cash fee on purchases (payable by Buyer) and a six percent (6%) cash fee on sales (payable by Seller). If your credit card is declined or the EFT is returned and is still being dishonored by the end of the Billing Cycle, your Preferred Member Status will be revoked and your purchase or sales fees will be calculated at 7.5% per transaction in future Billing Cycles. Your Preferred Member status can be reestablished for the next Billing Cycle if you demonstrate that the EFT or credit card used for that Billing Cycle is not dishonored.
1.4. Credit Line Interest: If a Member’s account has a negative ITEX dollar balance at the end of any cycle, credit line interest of one and one-half percent (1.5%), or the maximum rate permitted by law, will be charged, in ITEX dollars.
1.5. Over-Limit Fee: If a Member’s account has a negative ITEX dollar balance at the end of any cycle that exceeds their approved credit line, or if Member has no credit line, an over-limit fee of $25 will be charged in CASH each cycle, until the negative ITEX dollar balance is within their established line of credit.
1.6. Cash Finance Charge/Late Fee: A cash finance charge of one and one-half percent (1.5%), but not less than a minimum Late Fee of $7.50, will be charged if the cash fees you owe are not received by ITEX within one Billing Cycle of your statement date.
1.7. EFT Returns, Chargebacks, and NSF: EFT returns, credit card chargebacks, and Non-Sufficient Funds (NSF) cash check returns will be charged $25.00 cash per incident against the originating account. Until the payment is honored by your bank or credit card issuer, your ITEX dollar balance will be frozen.
1.8. NSF ITEX checks: Non-sufficient Funds ITEX checks or other authorized posting documents may be charged $25 ITEX dollars, per incident.
1.9. Statement Fee: A $1.00 cash statement fee will be assessed per Billing Cycle to those Members who elect to have their ITEX statement (showing account activity and fees owed) delivered via the United States or Canadian Postal System. The Statement Fee will be waived if you elect to receive your ITEX statement by email delivery or email notification, and you are a Member in good standing.
1.10. Due Date of Cash Fees: Cash fees are due and payable upon receipt of your statement (Preferred Members have their fees automatically billed to their credit card or checking account). Cash fees are payable directly to ITEX Corporation (not to a Broker) and sent to us at the address shown on the statement. The date of receipt of your payment is the date that funds are received by us at the address designated on the statement.
1.11. Checkbook Re-order Fee: A $10 cash checkbook re-order fee will be assessed on each checkbook ordered in excess of five (5) checkbooks within a calendar year.
1.12. Fees Are Non-Refundable: Unless otherwise agreed to in writing by ITEX, your payment of Fees to ITEX is non-refundable. If Buyers or Sellers do not complete a transaction, the posting of a transaction is disputed, or if a previously posted transaction is reversed, we will not be obligated to refund any fees we have received. In certain circumstances a cash credit may be approved and applied to your Account.
1.13. Payment of Fees. Other than association fees, all fees and charges that you pay ITEX are for one or more of the following services rendered; processing Members into the Marketplace, maintaining records, operating the clearinghouse, administering the Rules, collecting funds, and facilitating your use of the Marketplace. If cash fees are past due on the date of the second Billing Cycle (typically fifty-six (56) days) after the date originally invoiced, you waive all rights to the use of any positive ITEX dollar balance in your account and grant ITEX the right to freeze your ITEX dollar balance until the past-due fees are paid.
1.14. Modification of Fees. We may modify our Fee policy and the Fees assessed to your Account at any time in our discretion, by written or email notice, or by posting the amended terms on the Website. As stated in Section A above, all amended terms shall automatically be effective 28 days after they are initially posted on the Website. In addition, we will notify you of amendments by email. Your use of the Marketplace or the Website after the changes are implemented constitutes your acceptance of the changes. Even in the absence of a transaction, the implemented changes will apply to any negative Account balance remaining outstanding, any cash Fees remaining unpaid, and any pending (but not yet authorized) or future transactions by you or any Authorized User.
1.15. If your Account is delinquent more than two times within a period of six (6) Billing Cycles, you will be required to provide ITEX a valid credit card number and, in so doing, you authorize ITEX to charge such credit card for all past or future Fees owed or payable by you.
1.16. We may close without prior notice any Account continuing in a delinquent status for three (3) consecutive Billing Cycles. ITEX dollars in such Account will be forfeited unless outstanding Fees are paid. If your Account has a negative ITEX dollar balance on the date of Account forfeiture, an amount equal to the dollar equivalent, in the currency of the country in which the Member’s Account resides, of the negative Account Balance shall be immediately due and payable by you to ITEX (regardless of any Credit Line in place at the time of Account closure). The Account may be reestablished and the ITEX dollars returned to such Account if the Member pays ITEX all outstanding Fees, together with all Fees that would have accrued during the period between Account closure and its re-establishment.
1.17. ITEX may, in its sole discretion, require advance payment of Fees.
D. ADMINISTRATION OF THE MARKETPLACE AND ITEX DOLLARS
1. Nature of ITEX Dollars. The term "ITEX dollar" refers to a book entry with an assigned arbitrary value that serves as a practical method of recording the value of every transaction that results in a transfer of products and services among Members of the Marketplace. ITEX dollars denote the right to receive products or services available from other Members, or the obligation to provide products or services to other Members. ITEX dollars are not legal tender, securities, or commodities, are not an obligation of ITEX, and cannot be redeemed for cash or legal tender. In no event shall ITEX be required to refund, redeem or pay any amounts to any Member for any ITEX dollars, or allow conversion or liquidation of ITEX dollars into cash or legal tender. ITEX dollars may not be bought or sold for cash. Offers to buy or sell ITEX dollars for cash can lead to immediate termination of Member’s Account and forfeiture without recourse of all ITEX balances. Transactions found to be in violation of this provision can be reversed without notice and participating Members accounts closed for cause. For purposes of transacting and record-keeping within the Marketplace, one ITEX dollar shall be assigned a value equivalent to one dollar of the country in which the Member’s Account resides. ITEX dollars shall not be transferable, and shall not be transferred, assigned, pledged or hypothecated by Members in any way, directly or indirectly, except as required for:
- The bona fide payment for products and services through the Marketplace,
- The payment of Fees,
- or a Credit Line expressly authorized by ITEX,
2.0. Member’s Account
2.1. General. ITEX is not a bank. Your Account is denominated solely in ITEX dollars (except to the extent you may be billed for selected cash Fees pursuant to Section C above). Your Account is not insured by the Federal Deposit Insurance Corporation (FDIC) or any other such governmental or quasi-governmental agency. All ITEX dollars generated by transactions entered into by Member will be commingled in your Account, and can be used (i) by you or any Authorized User as Buyers in other transactions, (ii) by us to set-off any amounts (including, but not limited to, Fees) denominated in ITEX dollars owed by Member under this Agreement, (iii) by us to reduce any negative Account Balance arising from transactions previously entered into by you or any Authorized User. We will not pay interest on positive Account balances and do not guarantee that there will be adequate ITEX dollar reserves to cover all outstanding claims against the Marketplace.
2.2. Positive and Negative Balances. A positive Account balance (i.e. a credit balance) denotes your right to purchase goods and services offered by other Members willing to accept ITEX dollars in payment for those products and services. A negative Account balance (i.e. a debit balance) creates an obligation on the Member to sell products or services to other Members to the extent of the ITEX dollar deficit.
2.3. Restrictions. We may, in our sole discretion:
- Restrict the use of ITEX dollars deposited in the Account for a transaction for a period of time after the completion of such transaction and thereafter pending resolution of any dispute regarding such transaction,
- Modify, reduce, or eliminate any Credit Line assigned to an Account, for any reason or for no reason, with or without prior notice to Member;
- Require escrow, vesting or other procedures before the Member can use ITEX dollars in the Account, or
- Cancel, freeze and/or otherwise restrict sales or purchases or the use of ITEX dollars in the Account by the Member in connection with a Default by Member (see Section E. below).
2.5. Security Interest. You hereby grant ITEX a security interest in all ITEX dollars credited and to be credited to your Account to secure the amount of all of your unpaid Fees and other obligations to ITEX (whether payable in ITEX Dollars or cash), whether incurred by Member or any Authorized User. If Member becomes insolvent or bankrupt, all cash fees shall be due and payable in full. ITEX shall have the option in lieu of filing as a creditor of treating the ITEX dollar balance as equal in value to the amount of cash fees owing, and terminating the account; provided however, that if ITEX does receive all of its cash fees in full, ITEX shall reinstate the ITEX dollars to the Member’s account.
2.6. Special Offers and Promotions. We may, in our sole discretion, make special offers and promotions, such as reduced fees, incentives or other benefits, available to all or some Members without creating any obligation on our part other than as explicitly set forth in such offers or promotions, including, but not limited to, any obligation to continue such offers or promotions on an ongoing basis. We may also enter into contracts with third party providers to offer their products or services to Members through the Marketplace in exchange for payment from Members partially in the currency of the country in which the Member’s Account resides and partially in ITEX dollars. We, at our sole discretion, may designate such providers as the exclusive provider of particular classes of products or services within the Marketplace and prohibit other Members from transacting such classes of products or services during any period of exclusivity granted to the third party provider.
3. ITEX Dollar Extensions of Credit. You understand and acknowledge that all aspects of ITEX dollar Extensions of Credit ("Credit Line") are within the sole discretion of ITEX. Members wishing to apply for a Credit Line may be required to submit a line of credit application, financial statement, credit agreements, promissory note, provide collateral or to prepay cash service fees prior to approval. We may, in our sole discretion and without liability to Member or any Authorized User, at any time for any reason without prior notice, change the amount of a Member’s Credit Line.
Any Account owing past-due cash fees on the date of the second Billing Cycle (typically fifty-six (56) days) after the date originally invoiced, will have any Credit Line immediately revoked by ITEX at that time or any time thereafter unless or until all Fees and charges are paid in full.
4. Allocation of Products and/or Services. Member acknowledges that regulation of purchases, credit extension, and allocation of products and services in short supply are inherent in ITEX’s responsibilities. These responsibilities, in our sole discretion, may include the need for some Members to be designated as "Broker Managed" Accounts and for all contact and transactions to be handled through their assigned Broker. You acknowledge that certain accounts may be primarily or solely for the use of ITEX, its Brokers or employees. With respect to those accounts, we are bound by these Rules in the same manner as Members.
5. Compliance with Rules and Policies.
5.1. Member and each of its Authorized Users shall adhere to all of ITEX’s rules and policies, as amended from time to time, posted on the Website or otherwise provided to such Member, including the following:
- Privacy Policy. The practices of our Privacy Policy apply to all information collected from or submitted by Members and may be viewed online on our Website. By becoming a Member you agree to be bound by the terms and conditions of this Privacy Policy.
- Fee Policy. Our Fee Policy is set forth as Section C. of these Rules. It may be modified at any time upon written notice or by posting the amended terms on the Website as set forth Section C. 1.13 above.
E. BREACH OF RULES; PROHIBITIONS
1. Rule Violations. We have the right, but are not obligated to inquire into complaints of Rule violations by Member. You grant to ITEX the right to take such actions, which, in our sole discretion, are deemed necessary to adjudicate or resolve your complaint. Violations of these Rules may result in termination of your Account and immediate adjustment to the transactions involved, and may result in the assessment of increased Fees as specified herein. If you fail to buy from and sell to other Members in good standing in accordance with these Rules, you will be in material breach of these Rules. If you violate any term of the Rules, we may immediately terminate your Account or may freeze all activity in the Account without prior notice. In our sole discretion, we may reinstate you as a Member or unfreeze your account.
2. Default. Definition of Default. A Member is in "Default" of the Member Agreement to which these Rules are appended if any one of the following occurs:
- Member does not make a required Fee payment by the due date,
- Member becomes generally unable to pay its debts or obligations (including, but not limited to, a negative ITEX Dollar Account balance) as and when they become due,
- Member provides ITEX with any false or misleading Information or a false signature on the ITEX Member Application or Member Agreement, or such Member fails to notify ITEX if any such information previously provided becomes false or misleading,
- Member ceases to do business as a going concern or, in the case of individuals, such Member dies, becomes incapacitated or otherwise incapable of decision-making,
- A petition in bankruptcy is filed against, or proceedings for dissolution, winding up or liquidation are instituted, by or against Member under the U.S. Federal Bankruptcy Code or any similar laws,
- We believe that the likelihood of Member performing its obligations under these Rules or the Member Agreement has been impaired,
- Member is found, or is reasonably believed by us, to have engaged in deceitful transaction practices or otherwise fraudulent, undesirable or harmful conduct as determined by ITEX,
- Member violates these Rules (inclusive of any policies or documents it incorporates by reference) or breaches the Member Agreement,
- ITEX cannot verify or authenticate information delivered by such Member to ITEX or other Members, or placed on, in or through the Marketplace by such Member,
- Member is in default of any obligation to ITEX, a Member or any Third Party,
- Member is the subject of an investigation by a government agency or other authority,
- ITEX concludes in its sole discretion that any act or omission of Member may cause legal liability for ITEX, the Member or other Members, or
- Any of the events described above with respect to a Member occurs with respect to any Authorized User.
- Terminate Member’s Account (see Section E. 5.),
- Declare any negative Account balance and any Fees arising from Transactions entered into by such Member or any Authorized User, to be immediately due and payable in U.S. Dollars by the Member to ITEX, with or without prior notice to Member, subject to the other terms and conditions of these Rules,
- Immediately delete any listings or other information of Member,
- Require modification of payment terms or Fees in order to continue or reinstate access or use by Member of services provided by the Marketplace;
- Temporarily suspend, indefinitely suspend or terminate the rights of Member to transact in (as a Seller and/or Buyer), access or otherwise use the Marketplace or ITEX Dollars in the Account,
- Issue a warning to such Member, and/or
- Refuse to provide services to Member.
4. Past Due Fees. In our sole discretion, we may terminate your Account without prior notice if it continues in a delinquent status for three (3) consecutive Billing Cycles.
5. Termination. Either party may terminate this Agreement upon five (5) days written notice to the other party. Upon termination:
5.1. All cash and ITEX dollar fees outstanding become due and payable. No fees will be refunded.
5.2. Any Member with a negative ITEX dollar balance (where purchases exceed sales) must balance its account by depositing ITEX dollars into it within four (4) weeks of termination date. After this four (4) week period, Member must immediately pay ITEX any remaining negative balance in cash. ITEX reserves the right to charge any fees due against credit cards or EFT authorizations on file.
5.3. Spend Down Status. Any Member with a positive ITEX dollar balance (where sales exceed purchases) may spend the positive balance after paying ITEX the cash Fees then owing plus the Purchase Fee on the positive balance. After payment of fees, ITEX will convert the account to a Spend Down Status and no further cash or ITEX dollar transaction or association fees will be assessed, if the Member spends the remaining ITEX dollar balance within twelve months from the date of the conversion to Spend Down Status. While in Spend Down Status, the account is restricted from any further deposits of ITEX dollars. Spend Down accounts are assessed the $1 cash Statement Fee if Member elects printed statements (see C. 1.8). At the end of the twelve month period following the conversion to Spend Down status, ITEX, in its sole discretion, may either terminate the Account, regardless of any remaining positive ITEX dollar balance, or may opt to assess an annual maintenance fee of $200 ITEX dollars on the anniversary date of the conversion until the Account’s balance is reduced to zero and the account is thereby closed. Member has the option to forfeit all positive ITEX dollar balances by so instructing ITEX in writing and no further fees will be assessed.
6. Reinstatement of Member Account. At Member’s written request and approval of ITEX, a Member Account will be reinstated upon Member’s payment of any outstanding cash fees. Member will be reinstated at the current ITEX Fee Policy rates as published on the Website.
7. Direct Transactions and Check Passing. A "direct transaction" is a transaction whereby two Members directly exchange their products or services for the purpose of avoiding fees due to ITEX. "Check Passing" occurs when a Seller directs a Buyer to make out an ITEX check or other Buyer authorized transaction documents to a third party. No Member shall give or receive an ITEX check with the Seller’s name, account number or amount of the ITEX check left blank or receive a third-party ITEX check. It is also deemed Check Passing and/or a direct transaction for one Member to make purchases for another or to allow another Member to make purchases directly out of its Account. Submission of improperly completed ITEX checks or other Buyer authorized transaction documents to ITEX may result in delays or denial of posting. Direct transactions and Check Passing between Members are prohibited, and if consummated, both parties are subject to a fifteen percent (15%) cash transaction fee payable upon demand. When ITEX learns of Check Passing or direct transactions, ITEX has the right to re-post transactions to each Member’s Account to properly reflect the transaction. Direct transactions and Check Passing may also result in suspension of transaction privileges or termination of Member’s Account subject to the provisions of paragraph E.5 above.
8. Spend Out/Cancellation. If ITEX reasonably believes that a Member is spending out its ITEX dollar balance in anticipation of canceling future participation in the Marketplace, or if Member has requested termination of its account, then ITEX shall require the prepayment of cash Fees on the remaining ITEX dollar balance held in Member’s account.
9. Joint and Several Liability. If Member’s Application is accepted and an ITEX Account is opened, Member and any individual signing for the Member hereby assume joint and several responsibility for all transactions and fees as outlined in this Agreement.
F. INTELLECTUAL PROPERTY; WEBSITE USAGE; MEMBER INFORMATION
1.0. Intellectual Property Rights. All ITEX trademarks, logos, all right, title and interest in and to the Website contents, including any and all copyrights, data, URLs, domain names, technology, software, codes, user interfaces, and "look and feel" are the property of ITEX and may not be used without the prior written consent of ITEX.
2.0. Website Terms and Conditions of Usage. These Terms and Conditions govern the use of the Website by Members, and are subject to change by ITEX at any time in its discretion. Your use of the Website after such changes are implemented constitutes your acceptance of the changes.
2.1. Permitted Use. Member has a nonexclusive, nontransferable, limited, and revocable right to use the Website solely for Member’s personal and business use in conducting transactions in the Marketplace and between ITEX and other Marketplace Members. Member will not use the Website for any other purpose, including any commercial purpose, without ITEX’s express prior written consent. For example, Member will not, and will not authorize any other person to, (i) co-brand the Website or portion thereof, or (ii) frame the Website or portion thereof (whereby the Website or portion thereof will appear on the same screen with a portion of another web site). "Co-branding" means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner reasonably likely to give a Member the impression that such other party has the right to display, publish, or distribute the Website or content accessible within the Website (the "Content"). Member agrees to cooperate with ITEX in causing any unauthorized co-branding, framing or linking to immediately cease.
2.2. Proprietary Information. You acknowledge and agree that the Content accessible within the Website is the proprietary information of ITEX and its content providers, and ITEX and its content providers retain all right, title, and interest in the Content. Accordingly, you will not reproduce, transmit, publish or distribute such Content to any third party without the express written consent of ITEX or the applicable content provider, except that you may print out a copy of Content solely for your personal use. In doing so, you will not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content.
2.3. Disclaimer. You may have access to a variety of sources of content through the Website and the Internet, including links to third-party websites. ITEX does not verify the accuracy or suitability of any information contained in any such third-party sources. Accordingly, ITEX will have no liability or responsibility whatsoever for any content contained within any such sources. You will access, use, and rely upon such content at your own risk. ITEX has no control over and accepts no responsibility whatsoever for such materials. You understand that, except for information, products or services clearly identified as being supplied by ITEX, ITEX does not operate, control or endorse any information, products or services on the Internet in any way, whether offered by Members or Brokers. You also understand that ITEX cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. Each Member is responsible for implementing sufficient procedures and checkpoints to satisfy Member’s particular requirements for accuracy of data input and output, and for maintaining a means external to the Website for the reconstruction of any lost data. ITEX does not assume any responsibility or risk for Member’s use of the Website or the Internet. ITEX expressly disclaims all warranties with respect to any content accessible within or through the Website, express, or implied, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement.
2.4. Limitation on Liability. ITEX, its Licensors, service providers, content providers, employees, agents, officers and directors will not be liable for any incidental, indirect, consequential, or special damages, including loss of revenue or income, pain and suffering, emotional distress or similar damages, even if ITEX has been advised of the possibility of such damages. In no event will the collective liability of ITEX and its Licensors, service providers, content providers, employees, agents, officers and directors to any party (regardless of the form of action, whether in contract, tort or otherwise) exceed the amount Member has paid to ITEX for the applicable Content or service out of which liability arose.
2.5. Indemnity. Member will indemnify and hold ITEX, its Licensors, content providers, service providers and contractors (the "Indemnified Parties") harmless from any breach of these Terms and Conditions by Member, including any use of Content other than as expressly authorized in these Terms and Conditions. Member agrees that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and agrees to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Indemnified Parties in connection therewith. Member will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of Member’s use of the information accessed from the Website.
2.6. Forums. Information posted on forums, bulletin boards, or similar portions of the Website ("Forums") is supplied by third parties and other Members unless ITEX or its authorized representative identifies itself as the content poster. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties or any other Member are those of the respective author(s) and not of ITEX. Member will not post any of the following material in any Forum:
- material which threatens or abuses others, or which is defamatory, libelous, or invasive of another’s privacy;
- material which Member does not have the right to post, including the proprietary material of any third party;
- material which advocates illegal activity or discusses an intent to commit an illegal act;
- material which is vulgar, obscene, pornographic, or indecent; or
- material that does not pertain directly to the subject matter of the particular forum.
3.0. Member Information
3.1. All information (including listings and advertisements of Member’s products and services) provided by Member or its Authorized Users to ITEX or to the Marketplace ("Member Information"):
- Shall not be not false, inaccurate or misleading,
- Shall not include materials that constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, regulation, ordinance, rule or industry (or similar) standard,
- Shall not infringe, plagiarize or violate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy,
- Shall not be obscene, defamatory, libelous, slanderous, harassing, abusive, vulgar, threatening, racially or ethnically hateful, or otherwise objectionable (including, but not limited to, that pertaining to sexual orientation) or otherwise result in any actionable injury, damage or harm to any third party,
- Shall not create any liability for ITEX or cause ITEX to lose (in whole or in part) the services of our suppliers or partners,
- Shall not include descriptions of, or otherwise offer to sell, products or services that violate ITEX policy or that are otherwise prohibited under the Rules (inclusive of any documents it incorporates by reference),
- Shall include all required and appropriate warnings, information and disclosures in connection with listing, buying or selling products and services by Member on, in or through the ITEX Marketplace, including, but not limited to, disclosure on: (i) all amounts to be paid by Buyer, including, but not limited to, any sales or other taxes and shipping costs, (ii) shipping information (if applicable), customer service, warranties and exchange/refund policies and (iii) all applicable restrictions and all disclosures required by law,
- Shall be promptly updated by Member as necessary or appropriate to keep all of Member’s Information (including, but not limited to, listings) current, complete and accurate,
- Shall not contain a virus or other harmful component, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, and
- Shall not contain any materials for which Member does not have all necessary rights and licenses to transmit under any law or under contractual or fiduciary relationships.
- To modify and edit, reproduce and distribute its Member Information on, in, or through the Marketplace as ITEX deems necessary or appropriate, on, in or through any media now known or hereafter developed, and
- To reproduce and distribute reasonable excerpts of its Member Information in connection with our advertising, marketing and promotion of the Marketplace and Member’s participation in the Marketplace on, in or through any media now known or hereafter developed.
