Revision Date: January 31, 2013
Please read your Member Agreement carefully. By using the Marketplace or any of our Services (defined in Section 1.2 below) or accessing or using our website, including the domain and subdomains of www.itex.com and its related sites and services (our "Website"), you accept this Member Agreement and agree to these terms of service. Your use of the Marketplace, our Services, or access or use of the Website is governed by the then current version of the Member Agreement in effect on the date of use.
This Member Agreement is effective on March 7, 2013, for current Members, and upon acceptance for new Members. The previous amendment to this Member Agreement was effective for all Members on January 15, 2010.
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, as well any services directed toward or for the benefit of Members or provided through our Marketplace, our Website, our social media pages, and by our franchisees and brokers ("Brokers"). We may, in our sole and absolute discretion, contract with others to provide all or part of such record keeping, administrative or 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.
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 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 2.23 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; and
(e) 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 Member 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).
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;
(C) THE ABILITY OF ANY SELLING MEMBER, BROKER OR THIRD PARTY TO SELL PRODUCTS OR SERVICES;
(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, 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 our Website, our Services, the Marketplace, 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.
6.1. 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.
6.3 Binding Arbitration. Any dispute, claim or other litigable difference between the parties arising out of or relating to this Member Agreement or its subject matter will be (except as stated below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall bind the other. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") (available on the AAA web site www.adr.org) before a single arbitrator conducted in King County, Washington; 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. The decision of the arbitrator will be final and binding and shall be entitled to enforcement in any court of competent jurisdiction. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE THE RIGHT TO A JURY TRIAL.
6.4. 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.
6.5 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.
6.6. 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.
6.7. 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 the Marketplace. Neither party nor its employees will be eligible for any employment benefits provided by the other to its employees.