ITEX - Member Agreement

Revision Date: March 5, 2020

These terms of service govern your access to the services and website of ITEX Corporation (“ITEX”), and your use of the ITEX Marketplace (defined in Section 1.1 below) and ITEX Mobile. Our Marketplace Rules, Privacy Policy and your Membership Application are incorporated into and are an integral part of this Member Agreement. This Member Agreement, together with your Membership Application, the Marketplace Rules (including the appended Policies), and Privacy Policy, as amended from time to time, are hereafter referred to collectively as the “Member Agreement” (see Section 1.1 below).

Please read your Member Agreement carefully. By using the Marketplace or any of our Services (defined in Section 1.2 below), which include the access or use of our website, including the domain and subdomains of www.itex.com and its related sites and services (our “Website”), or the use of ITEX Mobile, you accept this Member Agreement and agree to these terms of service. Your use of the Marketplace or our Services is governed by the then current version of the Member Agreement in effect on the date of use.

This Member Agreement is effective on April 1, 2020, for current Members, and upon acceptance for new Members. The previous amendment to this Member Agreement was effective for all Members on March 1, 2018.

Please be advised that this Member Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimers and Limitations; Release of ITEX and Disputes provisions below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. You will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding.

1. Definitions

1.1. “Member Agreement” means this ITEX Member Agreement, together with your Membership Application, the Marketplace Rules (including the appended Policies) and Privacy Policy, as amended from time to time, which may be viewed on our Website and which are incorporated herein by reference and in their entirety:

Marketplace Rules. The Marketplace Rules describe the terms and conditions applicable to your use of the ITEX Marketplace, which is the forum in which Members can trade products and services without exchanging cash, including, without limitation, our trading community, our Members, our franchisees and brokers (“Brokers”), our payment systems, our Services, our Website, ITEX Mobile and our social media pages (together, the “Marketplace”). Our Fee Policy is set forth as a part of the Marketplace Rules (see Section 3 below). One of the purposes of the Marketplace Rules is to enable and facilitate fair transactions among and between ITEX Marketplace Members (“Members”) and other authorized parties by fostering a system of good business practices. The Marketplace Rules set forth the means by which ITEX provides you with Services and the way in which you must conduct transactions and other business with other Members or parties who are authorized to transact in the Marketplace. The Marketplace Rules include the following policies which provide additional terms and conditions related to specific products and services offered in the Marketplace:
- Prohibited or Restricted Products and Services Policy
- Real Estate Policy
- Travel Service Policy
Privacy Policy. Our Privacy Policy sets forth 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 administrator of the clearinghouse function of the Marketplace, including the access and use of our Website, ITEX Mobile, our social media pages, and any services directed toward or for the benefit of Members or provided through our Marketplace or through our Brokers. We may, in our sole and absolute discretion, contract with others to provide all or part of our record keeping, administrative, payment processing or other services.

1.3. “Member” or “You” means: (a) the business entity (whether a corporation, limited liability company, partnership or sole proprietorship) or approved individual signing the Membership Application; or (b) in the case of the online version of the Member Agreement, the business entity or approved individual accessing and accepting the Member Agreement. Member desires to exchange its products and services with other Members of the Marketplace, accepting “ITEX dollars” as payment, and subscribes to ITEX’s Services.

2. Changes to Member Agreement; Website. Your use of the Marketplace or our Services is governed by the then current version of the Member Agreement in effect on the date of use. ITEX reserves the right, in its sole discretion, without any obligation and without any notice requirement, at any time to alter and change the terms of the Member Agreement (including, without limitation, any terms, policies or notices incorporated herein by reference such as the Marketplace Rules and Privacy Policy). By using and accessing the Marketplace or our Services, you acknowledge and agree to review the most current version of this document prior to each such use. The amended terms shall be effective upon posting on the Website. Your use of and access to the Marketplace or our Services after any changes to the Member Agreement are posted, constitutes your acceptance of the changes and acknowledgement of, and agreement to, the then current Member Agreement. This Member Agreement may not be otherwise amended except in writing, signed by you and us.

We reserve the right, in our sole discretion, without any obligation and without any notice requirement, to change, improve or correct the information, materials and descriptions on the Website and to suspend and/or deny access to any portion of the Website for scheduled or unscheduled maintenance, upgrades, improvements or corrections. The information and materials on the Website may contain typographical errors or inaccuracies. Any dated information is published as of its date only, and we do not undertake any obligation or responsibility to update or amend any such information. We may discontinue or change any product or service described in or offered on our Website at any time. We further reserve the right, in our sole discretion, to block or otherwise discontinue your access and use of the Website at any time and for any reason. You agree that ITEX and its affiliates, Brokers and agents will not be liable to you or to any third party for any such modification, suspension or discontinuance.

3. Fees and Services. We charge fees for using our Services. The fees we charge for using our Services are listed in our Fee Policy (currently set forth as Section 3 of the Marketplace Rules entitled “Service and Transaction Fees” and incorporated herein by reference), which we may change from time to time. Changes to our Fee Policy are effective after we provide you with at least 28 days’ notice, either in writing, by email notice or by posting the changes on our Website. Unless otherwise stated, all fees are quoted in United States Dollars. You are responsible for paying all fees and applicable taxes associated with your use of the Marketplace, our Services or the Website with a valid payment method by the payment due date.

4. Representations and Covenants of Member

4.1. You represent and warrant that:

(a) If you are an individual, you are at least 18 years old and have all required legal capacity to enter into this Member Agreement as a binding agreement. If you are accepting these terms on behalf of a company or other legal entity, you have full authority to act for and bind that entity to this Member Agreement;

(b) The personal, business and other information provided by you on the Membership Application (and the Reinstatement Application, if applicable) and in connection with this Member Agreement is true, accurate and correct;

(c) If there are any changes to the information provided by you on the Membership Application (and the Reinstatement Application, if applicable), you will promptly notify ITEX of any such changes;

(d) You have provided ITEX a valid method for payment of fees as required by our Fee Policy; and

(e) You will comply with all applicable laws in performing your obligations under the Member Agreement and your use of our Services, the Marketplace and Website. Your obligation to comply with all applicable laws includes, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, regulatory requirements, and the procurement of permits, certificates, approvals, inspections and licenses, when needed.

4.2. You understand, acknowledge, and agree that:

(a) ITEX dollars are not considered legal tender, securities, or commodities by ITEX and may not be redeemed for cash (see Section 4 of the Marketplace Rules entitled "Administration of the Marketplace and ITEX Dollars");

(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 or desire it (see Section 2.22 of the Marketplace Rules);

(c) You will not be admitted as a Member unless and until your application is accepted by ITEX. We reserve the right to accept or reject your application as a prospective Member of the Marketplace for any reason, in our sole discretion. Your acceptance as a Member may be subject to our approval of your credit standing. By submitting your Member Application, 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;

(d) You authorize us to debit ITEX dollars from your Account for the amount of any purchase transaction, to credit ITEX dollars to your Account for the amount of any sale transaction, and charge you all applicable fees specified in our Fee Policy;

(e) If you are a business entity, the Business Owner/Authorized Officer signing the Membership Application (together with any additional designated Business Owner or Authorized Officer), personally and in his or her individual capacity, will be jointly and severally liable for all charges, fees and transactions made on your Member Account(s); and

(f) Without limiting other remedies, for violation of the Member Agreement we may limit, suspend or terminate our Services to you, limit, suspend or terminate your membership or use of an Account or your right to transact in the Marketplace, prohibit access to our Website, delay or remove posted content and your information, and take technical and legal steps to keep you off the Website if we think that you are acting illegally, creating problems, creating possible legal liabilities, or acting inconsistently with the letter or spirit of our Marketplace Rules. We also may reverse disputed transactions and close accounts that are delinquent, abandoned or in Default (as defined in the Marketplace Rules).

4.3. Indemnification. Indemnification. You will defend, indemnify and hold us (and our subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and agents) harmless from any and all losses, liabilities, actions, damages, expenses, costs, penalties, fines and fees (including reasonable attorneys’ fees and costs) incurred by us due to any Member or third party claims, demands, or legal proceedings (including government agencies), in connection with or arising from: (1) your actions, omissions, or conduct in violation of (or in breach of) this Member Agreement (which includes the Marketplace Rules and the Privacy Policy), or your violation of any law or the rights of a third party; (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 Marketplace transaction wherein you are a buyer or seller; (5) any ITEX dollar debit to your account utilizing your ITEX Checks or your Member password on the Website; (6) any breach of your representations and warranties contained in the Membership Application or this Member Agreement; (7) your offer to sell, sale, or your purchase of any prohibited product or service through the Marketplace; (8) your negligence and willful misconduct relating to the Marketplace; (9) your use of the information accessed on or through the Website; (10) any information posted or listed by you which infringes upon the copyright, trademark or other intellectual property rights of third parties; and (11) with respect to ITEX only (together with its subsidiaries, affiliates, directors, officers, employees, and agents), any transaction or attempted transaction with an ITEX Broker or its employees when the Broker is acting as a principal to the transaction.

5. Disclaimers and Limitations; Release of ITEX

5.1. You acknowledge that 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. You will not hold ITEX responsible for the content, actions or inactions, or listed items by Members, Brokers, or third parties. We are not involved in the actual transaction between buyers and sellers (unless ITEX notifies a Member in writing that ITEX is acting as a buyer or seller in a transaction).

5.2. 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:

(A) 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, BROKER OR THIRD PARTY;

(B) THE ACCURACY, RELIABILITY, OR INTEGRITY OF ANY INFORMATION PROVIDED TO ITEX BY A SELLING MEMBER, BROKER OR THIRD PARTY AND DISSEMINATED BY ITEX ON BEHALF OF THAT SELLING MEMBER, BROKER OR THIRD PARTY;

(D) THE AVAILABILITY OF PRODUCTS OR SERVICES WITHIN THE MARKETPLACE, OR THE ABILITY OF ANY BUYING MEMBER OR THIRD PARTY TO BUY PRODUCTS OR SERVICES;

(E) THE VOLUME OF BUSINESS THAT ANY MEMBER WILL DERIVE FROM PARTICIPATION IN THE MARKETPLACE OR THROUGH USE OF ITEX DOLLARS;

(F) THE VALUE OF ITEX DOLLARS OR OF THE FUTURE EXISTENCE OR VIABILITY OF THE MARKETPLACE;

(G) THAT THERE WILL BE ADEQUATE ITEX DOLLAR RESERVES TO COVER ALL OUTSTANDING CLAIMS IN THE MARKETPLACE;

(H) 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

(I) THE ACCURACY, RELIABILITY, INTEGRITY, OR LEGALITY OF ANY OFFER, PROPOSAL, STATEMENT, MEMBER RATING OR MEMBER REVIEW, DATA, OPINION, OR OTHER CONTENT DISPLAYED OR DISTRIBUTED THROUGH THE MARKETPLACE.

ITEX MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AND DISCLAIMS ALL LIABILITY, AS TO THE FITNESS, QUALITY, DELIVERY DATE, MERCHANTABILITY, PRICE, OR ANY TERM OF ANY TRANSACTION.

5.3. Release. In the event that you have a dispute with one or more Members or with one or more third parties (including government agencies), you release ITEX (and its subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and agents) from any and all claims, demands and damages (actual and consequential) of every kind and nature (including, but not limited to, attorneys’ fees and costs), 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 us or against our subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and other agents. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

5.4. Limitation of Liability. ITEX (and its subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and agents) will not be liable for any incidental, indirect, consequential, or special damages arising out of or in connection with your use of the Marketplace or our Services, or this Member Agreement, 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. Regardless of the disclaimers and limitations of this Section, if we are found to be liable, in no event will the collective liability of ITEX (and its subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and agents) to you or to any third party (regardless of the form of action, whether in contract, tort or otherwise) exceed the amount Member has paid to ITEX in connection with Member’s use of the Marketplace for the 12 months preceding the date that the incident giving rise to liability occurred.

6. Disputes

You and ITEX each agree that any and all disputes or claims that have arisen or may arise between you and ITEX relating in any way to or arising out of this or previous versions of the Member Agreement, or your use of or access to the Marketplace or our Services, shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Member Agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Member Agreement as a court would.

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim (“Notice of Dispute”) to our registered agent InCorp Services, Inc., 3773 Howard Hughes Pkwy Ste 500S, Las Vegas, NV 89169. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. ITEX will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous or that the claim was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b). You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

7. Miscellaneous

7.1. 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 in this Member Agreement are cumulative and are not exclusive of any other remedies provided at law or in equity to which ITEX may be entitled.

7.2. Entire Agreement/Severability. This Member Agreement (including the incorporated Membership Application, Marketplace Rules and Privacy Policy) constitutes the entire agreement and understanding of the parties with respect to its subject matter, and supersedes all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter herein. If any provision of this Member 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 Member Agreement and the remainder of this Member 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 Member Agreement.

7.3. Attorneys’ Fees. If either party submits a claim for arbitration or commences an action against the other relating to this Member Agreement (including the Attachments referred to herein), including, without limitation, to enforce any of its terms or for failure to abide by any of its terms, the prevailing party in such action will be entitled to recover all costs including, without limitation, reasonable attorneys’ fees associated with the action to be fixed by the arbitrator, trial court, and/or appellate court, in the action and on appeal. Such relief is in addition to any other relief that may be awarded to the prevailing party. Any sums, which may be awarded to ITEX in arbitration or by judgment, shall be payable in United States dollars only.

7.4. Governing Law; Jurisdiction and Venue. This Member Agreement and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of, or relate to this Member Agreement, or the negotiation, validity, execution, interpretation or performance of this Member Agreement (collectively, “Causes of Action”) will be governed by, construed under, and resolved exclusively in accordance with the laws of the State of Washington, without regard to its principles of conflicts of law which would require or permit the application of the laws of another jurisdiction. The parties hereby irrevocably submit to the exclusive personal jurisdiction of the state or federal courts located in the State of Washington, King County, for purposes of any dispute, suit, action or other proceeding based on a Cause of Action or any of the transactions contemplated under this Member Agreement, and each party hereby irrevocably agrees that all Causes of Action shall be heard and determined exclusively in the State of Washington, King County. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection, which they may now or hereafter have to the laying of venue of any such dispute brought in King County or any defense of inconvenient forum for the maintenance of such dispute. Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the parties hereto hereby waives any right to trial by jury. Notwithstanding the above, 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.

7.5. Assignment. Member may not assign any of its rights under this Member Agreement without the consent of ITEX, which consent ITEX may withhold in its sole discretion. 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 Member 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 fees billed to, and cash and ITEX dollar balances owed by, Member.

7.6. Relationship of the Parties. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Member Agreement. The parties are independent contractors and Member will be solely responsible for any costs and expenses it may incur in the performance of its obligations under this Member Agreement, or in Member’s use of our Services, the Marketplace or the Website. Neither party nor its employees will be eligible for any employment benefits provided by the other to its employees.