THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 20 TO RESOLVE ANY DISPUTE RELATED TO THE ITEMS.COM SITE, SOFTWARE, OR SERVICE PROVIDED BY ITEMS.COM.
AGE REQUIREMENT: The Services provided by Items.com are offered and available to people who are eighteen (18) years of age or older and who are not a person barred from receiving the Services under the laws of the United States of America or other applicable jurisdiction. You must be at least eighteen (18) years of age to make any purchases from Merchants on our Items.com Site or using our Software. By using the Items.com Site, our Software, or any part of our Services, you represent and warrant that you are of legal age to form a binding contract with Items.com and meet the foregoing eligibility requirement. If you are not at least eighteen years of age or if you do not agree to this Agreement, you must not access or use the Items.com Site. Items.com do not knowingly collect any data from anyone under the age of 18 years old. NOW, therefore, for good and adequate consideration, the receipt of which is acknowledged, the parties agree as follows:
DEFINITIONS: "Account" means an Items.com user account you create on the Items.com Site to sign up as a registered user and which is required as a condition to accessing certain features that are provided by the Service such as Cashback. "Active Account" means you have made at least one Qualifying Purchase during each one (1) year period commencing on the date of your last Qualifying Purchase in which you earned Cash Back.
"Browser Extension" means the proprietary browser extension software named "Items.com," which is owned and operated by Items.com (available for download on the Website, the Mozilla Firefox Add-On Store, the Chrome Web Store, and Microsoft Edge Store), which enables you to access and receive coupons and/or cashback offers while shopping online from Merchants. "Cash Back" means cashback payments Merchants pay to Items.com and which Items.com receives from Merchants as a result of you clicking Merchant Ads containing cashback offers, as a direct result of you making a Qualifying Purchase on the Merchant's website from a Third Party Store.
"Intellectual Property" means copyrights, trademarks, trade dress, trade secrets, database rights, rights of confidentiality, and patents.
"Marks" means Items.com' trademarks, service marks, logos, and trade dress. "Merchant" means any Third Party entity or person that is in Items.com’ merchant network and displays Merchant Ads on the Items.com Site and/or through the Software, to show offers for products and services in the merchant's Third Party Store, which is not affiliated with Items.com in any way. "Merchant Ad" means advertisements displayed through the Items.com Site by Merchants, which include but are not limited to, coupons, cashback offers, and other promotions of a Merchant.
"Qualifying Purchase" means a non-fraudulent, non-commercial, purchase by you of a Merchant's product or service after having clicked a Merchant Ad on the Website or by using the Software, and such purchase was determined to be a "qualified purchase" for a Cash Back payment by both Items.com and the Merchant whom you purchased from in the Merchant's Third Party Store which results in Items.com receiving a Cash Back payment from the Merchant.
"Services" means the services provided by Items.com via the Items.com Site, and Browser Extension.
USING OUR SERVICES: Items.com reserve the right in its sole discretion to suspend or cancel your Account, the provision of any Service in connection with the Items.com Site, Browser Extension, and/or to refuse you access to the Items.com Site, Browser Extension, without notice to you. Deletion of Software Upon Items.com' Request. Items.com reserve the right in its sole discretion to request that you delete the Browser Extension from your computing device where you have installed the Browser Extension at any time, and you shall promptly comply with any such request. Fraud Items.com regularly monitor your use of the Services for any suspicious activities, including but not limited to, engaging in fraudulent behavior.
Items.com reserve the right to freeze any transactions regardless if such transaction was deemed a Qualifying Purchase, to suspend or terminate your Account, and/or block your access to any part of the Service offered by Items.com if Items.com determines you have engaged in any suspicious behavior, or have otherwise violated the terms and conditions in this Agreement. If Items.com determines you have engaged in any fraudulent behavior and Items.com terminates your Account, you agree Items.com’ decision is final and controlling, and Items.com will have no liability to you for any Cash Back that was not paid out to you or which was expected to be credited to your account for any transactions previously determined to be a Qualified Purchase.
LICENSE AND INTELLECTUAL PROPERTY
Ownership Rights. End-User acknowledges and agrees on Items.com and/or its licensors own all Intellectual Property in connection with the Items.com Site and Software. Except as expressly stated herein, this Agreement does not grant End-User any Intellectual Property rights or licenses in or to the Items.com Site or Software. Items.com will retain all right, title, and interest in and to the Service, the Items.com Site, Software, and all data generated by Items.com, including without limitation, data generated by its click tracking system and other performance measurement applications, and all associated Intellectual Property and proprietary rights worldwide (including, but not limited to, ownership of all copyrights, trademarks, patents, derivative works, modifications, lists of advertisers and information, algorithms, taxonomies, trade secrets, and other intellectual property rights therein). Except as expressly stated herein, this Agreement does not grant End-User any rights to, or in, copyrights, database rights, trademarks, trade names, trade secrets (registered or unregistered), or any other rights or licenses in respect to the Items.com Site, Software, or the Service.
License Grant. Subject to all terms, limitations, and conditions herein, Items.com grants to End-User a limited, non-exclusive, revocable, non-sublicensable, and non-transferable license during the Term to access the Items.com Site, and download, install & access the Browser Extension. All rights granted by Items.com to End-User shall expire upon termination of this Agreement. All rights not granted herein are reserved.
Intellectual Property Infringement Claims. In no event shall Items.com, its employees, agents or subcontractors be liable to End User for any alleged Intellectual Property infringements (i) based on a modification of the Software or Items.com Site by anyone other than Items.com; (ii) if End User has been notified of the alleged or actual infringement by Items.com or any appropriate authority, and End User continued to use the Service after such notice was given; or (iii) if End User uses the Software or Items.com Site, or any portion thereof, in way that is contrary to the instructions provided by Items.com, whether by email, on the Items.com Site, or the Software. The foregoing constitutes your sole and exclusive remedy and Items.com’ sole liability in the event of any claim regarding infringement of any Intellectual Property.
LIMITATIONS ON LICENSE
Limitations on License Grant The license granted above is conditioned upon End-User's, observance of the following restrictions: (i) except as expressly permitted herein, End-User will not display, use, reproduce, cache, store, distribute, make derivative works of, modify, sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way any materials in connection with the Items.com Site, Software, or Service, except under the terms of this Agreement; (ii) End-User will not display, sublicense or syndicate the Software, or any links from the Software or Items.com Site, on or to any Third Party or website, unless it first obtains Items.com’ prior written consent; and (iii) Items.com reserves the right, in its sole discretion, to modify, discontinue or terminate this Agreement or the Service, in whole or in part, at any time.
Account Creation. As a condition to accessing and using certain features of the Items.com Service, including but not limited to Cash Back, you will be required to create an Account on the Items.com Site by following the instructions as provided on the Items.com Site. Items.com shall have the right to deny, approve, or terminate any Account at any time in its sole discretion with or without cause. You shall provide Items.com with accurate, complete, and updated registration information.
Failure to do so may result in immediate termination or suspension of your Account. You acknowledge and agree that your credited funds in your Account may be delayed if your Account information is not up-to-date, complete, and accurate. Misrepresenting ownership or fraudulently claiming control over an Account is strictly prohibited and may result in a permanent ban from use of the Items.com Site and Software.
Items.com reserves the right to suspend, deny, and/or revoke access to the Items.com Site, Software, and/or Account at its discretion if your activities are reasonably deemed a threat to the integrity of the Items.com Site, Software, Merchants, or any part of the Items.com Service. Items.com reserve the right to withhold any payments you earn from Cash Back to investigate any breach of this Agreement, or to determine if any fraud has occurred. Items.com will not credit your Account for any Cash Back until Items.com first receives the Cash Back payment for your Qualifying Purchase from the Merchant. I
If you cancel your Items.com Account at any time, or if your Account is terminated by Items.com for your breach of any term of this Agreement as determined solely by Items.com, you agree that you forfeit all Cash Back credit and/or any other types of payment credits in your Account at the time your account was terminated. Items.com shall have no liability to refund you for any credits that you forfeit as a result of you or Items.com terminating your Account. Your Account is at all times owned by Items.com and all Accounts are part of the Items.com Service. You agree you have no ownership interest whatsoever in your Account.
YOU WAIVE ALL RIGHTS AND AGREE TO HOLD ITEMS.COM HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ITEMS.COM DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER ITEMS.COM OR LAW ENFORCEMENT AUTHORITIES.
Unauthorized Access. Account access is provided on a password-protected basis. You will be solely responsible for keeping your Account password confidential and for all use of your password and Account, including any unauthorized use. If you become aware of any unauthorized use of your Account, you must notify us immediately by writing to support@Items.com Items.com will not be liable for any loss or damage arising from the unauthorized access to or use of your Account. Upon termination of this Agreement for any reason, Items.com may disable and/or delete your Account
Requirements and Limitations. In order to earn Cash Back through the Items.com Site and/or by using the Software all of the following conditions must be met:
(i) Items.com must have first received Cash Back from the Merchant for your Qualifying Purchase;
(ii) you must be at least eighteen (18) years old;
(iii) you must have an updated Active Account with your current and truthful information;
(iv) you must have earned Cash Back for a Qualifying Purchase using the link from a Merchant Ad as supplied by Items.com on the Items.com Site or Software, and which is traced by Items.com to you;
(v) you must have a credit balance in your Account exceeding the minimum balance for any withdrawal of Cashback from your Account as determined by Items.com and disclosed to you in your Account;
(vi) you must provide Items.com with a valid PayPal email address; and
(vii) you must be logged in to your Items.com Account at the time you make a Qualifying Purchase;
(vii) all Cash Back may only be earned from a Merchant's Third Party Store that has the United States-based domain ending in ".com."; and
(xi) you must not have requested a chargeback from your credit card company and caused Items.com to incur any fees as a result of submitting a chargeback request.
THERE IS A MAXIMUM AGGREGATE AMOUNT OF FIVE THOUSAND DOLLARS ($5,000) PER YEAR FROM ALL CASHBACK YOU MAY RECEIVE THROUGH THE ITEMS.COM SITE AND SOFTWARE, AND FOR WHICH YOUR ACCOUNT MAY BE CREDITED.
If you exceed this maximum amount, you will no longer receive any Cash Back for the remainder of the year, notwithstanding any Cash Back amounts offered to you on the Items.com Site and/or through the Software. You are limited to a maximum of one (1) Account. If Items.com determines in its sole discretion you have more than one Account, Items.com reserves the right to immediately terminate all of your Accounts without any liability to you, and you agree to forfeit all payment credits in your Account. A single PayPal email address is not permitted to be used for multiple Items.com Accounts. Cash Back is only offered and paid on the net purchase amount of a Qualifying Purchase, which excludes fees, discounts, coupon codes, rebates, taxes, shipping costs, return and cancellation costs. All Cashback is paid in United States currency. All Cash Back payments are conditioned on you not being a resident of any country currently subject to economic or trade sanctions by any entity of the United States government. All Cash Back payments are further conditioned on verification methods to prove your identity as may reasonably be requested by Items.com.
ITEMS.COM RESERVES THE RIGHT TO CHANGE ITS CASHBACK PROGRAM AND CASHBACK AMOUNTS OFFERED THROUGH MERCHANT ADS AT ANY TIME WITH OR WITHOUT NOTICE TO YOU.
How Cash Back Works. Items.com work with Third-Party networks and vendors to offer Cash Back from certain Merchant Ads and for certain Qualifying Purchases you make from a Merchant's Third Party Store after clicking through a Merchant Ad on the Items.com Site or through the Software. The Items.com Site and Software display Merchant Ads, which may show you Cash Back opportunities and the amount of Cash Back being offered by a Merchant if you complete a Qualifying Purchase of a service or product as more fully described in the Merchant Ad. Each Qualifying Purchase must be directly tracked by the Items.com to your click of the Merchant Ad, and the Purchase must be completed in the same session while you are logged in to your Items.com Account.
Items.com are paid directly by its affiliate networks and vendors for specific purchases you make around the web from Third Party Merchants within Items.com’ network of Merchants. Once Items.com receive complete payment for your Qualifying Purchase by the affiliate network and/or Third-Party Merchant, Items.com will display the Cash Back credit in your account, which may take up to ninety (90) days before the credit is displayed. The balance in your account can be cashed out and will be paid via the valid PayPal email address you provided if your balance exceeds the minimum threshold amount required to cash out, as communicated to you in your Account's "Withdrawal" page or similarly named location. No payments shall be issued until your balance exceeds this minimum amount. All Cash Back accrual rates vary and are subject to the Third Party Store's policies and payment schedules. Cash Back for certain purchases, such as travel, may not accrue until you have completed the travel-related activity.
Cashback Modifications and Withholdings. Items.com, in its sole discretion, may modify or remove the amount of Cash Back credited to your account or the payment schedule at any time in its sole discretion if Items.com determine you are engaged in suspicious activity, fraud, and/or have violated any term in this Agreement. Items.com may delay or withhold payment as a result of suspicion of fraud, violation of any term in this Agreement, or any change to the Third Party Store's policies. YOU AGREE THAT YOU WILL IMMEDIATELY FORFEIT ALL CASHBACK IN THE EVENT YOU HAVE INITIATED A CHARGEBACK REQUEST WITH YOUR CREDIT CARD COMPANY AND ITEMS.COM INCURRED FEES AS A RESULT OF THE CHARGEBACK REQUEST. YOU AGREE TO SUBMIT ALL FEE DISPUTES TO ITEMS.COM BEFORE CONTACTING YOUR CREDIT CARD COMPANY TO ATTEMPT TO RESOLVE ANY FEE DISPUTES.
Cash Back Expiration. All Cash Back credited to your Account and which has not been withdrawn will expire if you have not completed a Qualifying Purchase within one (1) year after your last Qualifying Purchase. Items.com deem your Account to be inactive and abandoned if you have not made a Qualifying Purchase in each one (1) year period after your last Qualifying Purchase. You agree that you will forfeit all Cash Back, which may include Cash Back (defined below) if one (1) year has passed since you have made a Qualifying Purchase on the Items.com Site.
Taxes. You are solely liable for any taxes, levies, duties, or fees owed to any applicable government authority as a result of the Cash Back paid to you by Items.com.
Items.com’ Link Only. To qualify to receive any Cash-Backs, you must only use the links to Third-Party Merchant products and services in Third-Party Stores that are provided by the Items.com Software or Items.com Site. Use of any links provided by Items.com outside the Items.com Software and Items.com Site, such as on social media platforms, newsgroups, online bulletins, chat rooms, or similar Third Party locations, is prohibited and you acknowledge you will forfeit any Cash Back accrued as a result of your misuse of the links provided by Items.com. If you access a Third Party link before a purchase transaction, and/or use any Third Party discount code, you may not be paid any Cash Back, because your purchase might be associated with an outside service that was not provided by Items.com.
Cookies Required for Cash Back. If you disable cookies, you may not earn Cash Back for your purchase transaction, since cookies are used to verify eligible Accounts for the Service.
Cash Back Exclusions. Cash Back is only available for Qualifying Purchases and only after Items.com receives the Cash Back from the Merchant you made a Qualifying Purchase from after clicking a Merchant Ad on the Items.com Site and/or Software, All Cash Back may be subject to additional terms, exclusions listed on the Items.com Site and Software, in a Merchant's Third Party Store, in the terms of the offer in the Merchant Ad, and/or on the Third Party Store's checkout page.
Shipping Monitoring – Items.com tracks merchant shipping delays and advises you of any shipping delays for which you may qualify for a payment from the merchant due to a shipping delay
Price Monitoring – Items.com tracks your purchases from merchants Items.com monitors to alert you if there has been a price drop since your purchase for which you may qualify for a payment from the merchant due to the price drop.
Delivery Monitoring – Items.com tracks certain on-demand delivery services, such as food service orders, and notifies you of any late deliveries for which you may qualify for a payment from the merchant or on-demand platform due to the delay.
Return Monitoring – Items.com track the amount of time you have left to return an item you purchased from merchants’ Items.com monitors and notifies you of any upcoming deadlines to return Items.com you purchased.
You agree that Items.com shall not be liable to you or any third party in any way for any errors or omissions in the Order Protection services provided to you by Items.com or as a result of the Order Protection services being taken offline or otherwise not available to you. Items.com are not liable to you for any lost emails or damages caused to your email inbox that may result from your use of the Order Protection services. You agree that the use of the Order Services is entirely at your own risk. Items.com reserve the right to suspend, terminate, or otherwise limit your access to the Order Protection services at any time and with or without notice to you.
Termination by Items.com. You agree and acknowledge that Items.com shall not be liable to you, and shall not be obligated to refund any payments made to Items.com in the event (1) Items.com terminates this Agreement with or without cause, (2) Items.com determines you have engaged in fraudulent behavior, (3) Items.com is subject to bankruptcy proceedings, and/or (4) Items.com is dissolved. In the event any of the foregoing occurs, you agree you forfeit all credits for payments in your Account.
No Affiliation. All products and services purchased in connection with the Service, are products purchased from a Third Party Store, which is not affiliated with Items.com in any way. Items.com and such Third Party Store have an independent relationship, and you agree Items.com is not an agent of such Third Party Store.
No Liability.Items.com shall not be liable for any product purchased through a Third Party Store, and any purchase or participation in an offer or promotion is between you and the Third Party Store. Items.com shall have no liability for any Third Party Store's withdrawal from the Items.com Services, any changes, or any effect on your accrual of Cash Back caused by such Third Party Store's changes, or withdrawal from the Service.
FRAUDULENT USE OF SERVICES
Items.com reserve the right to investigate any suspicious activity, and all determinations of fraud shall be in Items.com’ sole and absolute discretion. Fraudulent activity includes, but is not limited to, using multiple Items.com Accounts, repeatedly and consistently returning products after Cash Back has been credited, engaging in fraudulent referrals, and/or fraudulently manipulating tracking system technology to give your Account credit for purchases made by third parties ("Fraud").
Items.com shall not be liable to pay you for any activity determined to be the result of Fraud, and shall be entitled to withhold any Cash Back amounts that have accrued, and/or terminate your ability to earn any future Cash Back amounts. Additionally, for any Cash Back amounts that have been paid to you, Items.com shall be entitled to charge-back any amounts paid to you resulting from Fraud.
You may remove the Items.com Browser Extension at any time, by following the instructions at the following link: http://items.com/uninstall
SERVICE MODIFICATIONS BY ITEMS.COM
The Items.com Site, Software, Service, or any part thereof may be modified, suspended, or terminated by Items.com at any time in its sole discretion and without notice.
END-USER REPRESENTATIONS AND WARRANTIES
End-User represents and warrants it has the full right and authority to enter into this Agreement and to perform the acts and obligations required of it hereunder.
End-User represents and warrants that execution of this Agreement and performance of its obligations hereunder do not and will not violate any agreement to which it is a party or by which it is bound, and it will comply with all applicable laws, rules, and regulations (including, without limitation, privacy and data control laws).
End-User represents and warrants that the information provided to Items.com in any registration application, forms, and otherwise is accurate, complete, and does not contain any untruthful statements.
End-User shall not use the Service, the Items.com Site, the Software, or any part thereof, or any technology learned from the relationship covered in this Agreement to build (i) a service that competes with the Service; (ii) assist any other person or company to compete with the Service; or (iii) in any other way compete with the Items.com Service.
Data Communications Security. You acknowledge and agree email communications are generally not an encrypted form of communication, and Items.com shall not be responsible for any interception of Data by third-parties, that is sent to Items.com by way of email or other forms of unencrypted electronic communication.
Prohibited Data. In no event shall you send Items.com any data that is generally considered highly sensitive or falls under the "special categories of personal data" under the GDPR. This includes, but is not limited to, personal data revealing racial or ethnic origin, religious beliefs, genetic data, data concerning a person's health, a person's sexual orientation, trade union membership, or biometric data.
You agree to indemnify and hold Items.com and its officers, directors, agents, affiliates, licensors, and employees harmless from and against any claims, actions, liabilities, losses, expenses, damages, and costs, whether based on active negligence, passive negligence, or gross negligence (including without limitation all attorneys' fees and costs of every kind, including expert fees and not limited to statutory costs), arising out of (1) your acts or omissions arising out of or related to your use of the Service, (2) your breach of any term, warranty, representation or covenant in this Agreement, (3) any claims by any Third Party in connection with this Agreement, or (4) your violation of any applicable law, rule, or regulation. End User's obligation to indemnify Items.com is conditioned upon Items.com providing prompt notification of any such claims, unless the failure to notify does not materially and adversely affect the defense. Items.com will reasonably cooperate with End User in the defense and/or settlement thereof, at End User's expense. Items.com may have their counsel in attendance at all proceedings and substantive negotiations relating to such claim at the Items.com’ sole cost and expense. End-User shall not settle any Third Party claim in a manner detrimental to Items.com without the written consent of Items.com, not to be unreasonably withheld or delayed.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ITEMS.COM HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE), WITH RESPECT TO THE PROVISION OF THE SERVICES PROVIDED TO END USER HEREIN. ABSENT ANY PROVISION TO THE CONTRARY HEREIN, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, END-USER ACKNOWLEDGES THAT THE ITEMS.COM SITE, SOFTWARE, AND ALL SERVICES PROVIDED BY ITEMS.COM HEREIN ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND.
Items.com are not responsible if the Service, Software, Items.com Site, or related services provided by Items.com is inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Items.com may undertake from time to time; or (iii) other causes beyond the control of Items.com, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ITEMS.COM OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE SOFTWARE, SERVICE, ITEMS.COM SITE, OR ANY OTHER INTERACTIONS WITH ITEMS.COM, EVEN IF ITEMS.COM OR AN ITEMS.COM AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, ITEMS.COM' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
ANY LIABILITY OF ITEMS.COM, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE OR INFORMATION, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF ITEMS.COM' RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL NOT EXCEED FIFTY DOLLARS ($50.00).
YOU ACKNOWLEDGE AND AGREE THAT (A) THE REMEDIES, EXCLUSIONS, LIMITATIONS OF LIABILITY, AND LIMITATION OF DAMAGES HEREIN, REFLECT A REASONABLE ALLOCATION OF RISKS; (B) THAT YOU AND ITEMS.COM WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE EXCLUSIONS, LIMITATIONS OF LIABILITY, AND ALL OTHER TERMS IN THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE TERMS CONTAINED IN THIS AGREEMENT ARE A FAIR ALLOCATION OF RISKS BETWEEN YOU AND ITEMS.COM.
ASSIGNMENT: CHANGE OF CONTROL
End-User shall not assign any of its rights or obligations under this Agreement, in whole or in part, without Items.com’ written consent.
Items.com may at any time assign, in whole or in part, its rights or obligations under this Agreement without the consent of and without prior notification of End-User.
Confidential Arbitration. Any dispute arising out of or related to this Agreement shall be resolved by confidential arbitration before a single arbitrator. The arbitration shall be conducted under the current and applicable rules of the American Arbitration Association ("AAA"). All arbitration-related hearings shall be conducted in Los Angeles, California. The arbitrator shall be selected by the mutual agreement of the parties. If the parties cannot agree on a single arbitrator, then the arbitrator shall be selected under the then in effect rules of the American Bar Association. Once selected, the Arbitrator shall be empowered to hear and resolve any and all issues related to, arising from, based upon, or in any way related to the dispute, whether based in law or equity. The Arbitrator shall issue rulings, decisions, orders, judgments, and permanent injunctions as applicable and appropriate. The prevailing party in said arbitration shall be awarded, Attorney's fees and costs as well as the costs of the arbitrator. If a party files a motion or petition to compel arbitration, then the prevailing party in said motion or petition shall be awarded interim attorney's fees and costs related to the motion or petition. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL.
Arbitration Procedure. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for You, by electronic mail ("Notice"). Items.com' address for Notice is Items.com, Attention Legal :21200 W Oxnard St,#429 Woodland Hills, ca 91367. The Notice must (a) describe the nature and basis of the claim or dispute, and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if We do not reach an agreement to do so within 30 days after the Notice is received, You or Items.com may commence an arbitration proceeding.
Individual Capacity. You specifically agree that any claim or cause of action You may have arising out of this Agreement will be brought only in Your capacity. You agree and acknowledge that You will not be a Party, class member, or representative of any class action proceedings against Us. Also, an arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
Time To Bring Claim. ANY CLAIM OR CAUSE OF ACTION RELATING TO OR ABOUT THIS AGREEMENT MUST BE ARBITRATED AS SET OUT IN THIS SECTION 18 WITHIN ONE (1) YEAR OF THE OCCURRENCE GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. THIS TIME LIMITATION APPLIES TO ALL TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. ALL CLAIMS OR CAUSES OF ACTION NOT INITIATED WITHIN THE TIME RESTRICTION AS OUTLINED IN THIS SECTION 18.4 ARE PERMANENTLY BARRED.
GOVERNING LAW; VENUE
This Agreement will be governed by and construed under the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of the parties. Arbitration hearings shall be held solely in Los Angeles, California for all actions arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ITEMS.COM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION CONCERNING ANY CLAIM, COUNTERCLAIM, OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
Any notice or other communication to be given hereunder will be in writing and will be (as elected by the party giving such notice): (i) personally delivered; or (ii) sent by prepaid overnight delivery services such as FedEx or USPS Express Mail, with delivery confirmation and/or return receipt; a courtesy copy shall also be sent by email or facsimile. Unless otherwise provided herein, all notices will be deemed to have been duly given on the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally. Either party may change its address for purposes hereof on not less than three (3) business days prior notice to the other party.
Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions.
SEVERABILITY AND WAIVER
If any of the provisions of this Agreement are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.
Failure of either Party to require strict performance by the other party of any provision shall not affect the Party's right to require strict performance thereafter. A waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
This Agreement is the complete and exclusive agreement between the parties concerning the subject matter hereof, superseding and terminating all previous communications, representations, or agreements, whether written or oral between the parties relating to the services provided hereunder.
This Agreement may be executed in two or more counterparts, each of which shall be an original or copy and all of which together shall constitute one instrument.
RELATIONSHIP OF THE PARTIES
Neither party shall be deemed to be an employee, agent, or legal representative of the other party hereto for any purpose and neither party hereto shall have any right, power, or authority to create any obligation or responsibility on behalf of the other party hereto nor shall this be deemed an exclusive or fiduciary relationship. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.