2. Legal Disputes and Arbitration Agreement
PLEASE READ THIS FOLLOWING CLAUSE CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
a. Initial Dispute Resolution. We are available by email at Privacy@itworksglobal.com to address any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. Each of you and It Works! agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
THE PARTIES UNDERSTAND THAT, IN LIGHT OF THIS MANDATORY PROVISION, THEY ARE WAIVING THEIR RIGHTS TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879. TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST. IF WE ARE REQUIRED TO PAY THE ADDITIONAL COST OF THE FILING FEES, YOU SHOULD SUBMIT A REQUEST FOR PAYMENT OF FEES TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO AAA. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEY’S FEES IN CERTAIN CIRCUMSTANCES.
c. CLASS ACTION AND CLASS ARBITRATION WAIVER. YOU AND IT WORKS! EACH FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN YOUR RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND YOU AND IT WORKS! EACH EXPRESSLY WAIVE YOUR RESPECTIVE RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. IF ANY COURT OR ARBITRATOR DETERMINES THAT THE CLASS ACTION WAIVER SET FORTH IN THIS PARAGRAPH IS VOID OR UNENFORCEABLE FOR ANY REASON OR THAT AN ARBITRATION CAN PROCEED ON A CLASS BASIS, THEN THE ARBITRATION PROVISION SET FORTH ABOVE IN SECTION 2(B) SHALL BE DEEMED NULL AND VOID IN ITS ENTIRETY AND THE PARTIES SHALL BE DEEMED TO HAVE NOT AGREED TO ARBITRATE DISPUTES.
d. Exception - Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
e. 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 2(b), 2(c), and 2(d) by sending written notice of your decision to opt-out to the following email: email@example.com. The notice must be sent within thirty (30) days of registering to use the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
f. Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 2(b) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Manatee County, Florida, (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Florida for any litigation other than small claims court actions.
Survival. This Section 2 will survive the termination of any or all of your transactions with It Works!.
5. Member Accounts and Registration
a. Member Registration. You can visit and browse the Site without becoming a registered member of the Service, but you will not be able to use the interactive portion of the Service unless you are a registered member of the Service. You can sign up to become a registered member of the Service by completing the registration process at www.itworks.com. If you sign up to become a registered member of the Service, you agree: (i) to provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); (ii) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete; and (iii) that you will comply with the rules governing Contributions in Section 6 below. It Works! prohibits the creation of, and you agree that you will not create an account for anyone, other than yourself.
b. Member Accounts. You will be required to create a user I.D. and password that will be associated with your member account. You may only create one user I.D. that will be associated with your member account. You may not: (i) select or use as a user I.D. a name of another person with the intent to impersonate that person; (ii) use as a user I.D. a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a user I.D. a name that is otherwise offensive, vulgar or obscene. We reserve the right to refuse registration of, or to cancel, a user I.D., in our sole discretion. You will be responsible for maintaining the confidentiality of your user I.D. and password and you are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights without the express written permission of It Works!. As part of your member account, you will be able to Download app(s), sign up as a Distributor, and sign up as a customer.
6. Rules Governing User Contributions; Prohibited Activities.
a. User Contributions. If you are a member of the Service and you are logged in to your member account, you may be able to submit comments and content to the Service (collectively, “Contributions”). You are entirely responsible for the content of, and any harm resulting from, any Contributions that you post on or through the Service. When you create or make available a Contribution on or through the Service, you represent and warrant that you:
i. own or have sufficient rights to post your Contributions on or through the Service;
ii. the posting and use of your Contributions on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights;
iii. have fully complied with any third-party licenses relating to Contributions and shall pay all royalties, fees and any other monies required to be paid in connection with Contributions that you post on or through the Service;
iv. will not post Contributions that: (A) are defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (B) incite, encourage or threaten immediate physical harm against another, including but not limited to, Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (C) contain material that solicits personal information from anyone under the age of 13 or exploits anyone in a sexual or violent manner;
v. will not post Contributions that contain advertisements or solicit any person to buy or sell products or services; and
vi. will not post Contributions that constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on our or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party.
b. Prohibited Activities. In addition to the obligations described in Section 6(a), you agree that in connection with your use of the Service, you will not:
i. change, modify, adapt or alter the Service or change, modify or alter another website so as to falsely imply that it is associated with the Service or It Works!;
ii. use the Service for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Service without our express written consent;
iii. transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service, including without limitation, hacking into the Service, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
iv. impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
v. post advertisements or solicitations for jobs or employment on the Service, or otherwise use the Service to hire any person to perform work, including, without limitation, posting advertisements;
vi. decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Service, or any portion thereof;
vii. circumvent, disable or otherwise interfere with security related features of the Service or features that prevent or restrict use or copying of any Materials (as defined in Section 8) or enforce limitations on use of the Service or the Materials on the Service;
viii. interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any It Works! page is rendered or displayed in a user's browser or device;
ix. create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper; or
7. Rights in Contributions
a. Ownership of Contributions. We do not claim any ownership rights in the Contributions that you post on or through the Service. After posting your Contributions on the Service, you continue to retain any rights you may have in your Contributions, including any intellectual property rights or other proprietary rights associated with your Contributions, subject to the license you grant to us below.
8. Our Intellectual Property Rights. Except for your Contributions and the Contributions of other users of the Service, all of the content on the Service (“Materials”) and the trademarks, service marks, and logos contained on the Service, are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Service and the Materials are for your information and personal use only and not for commercial exploitation and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Materials. We reserve all rights in and to the Service and the Materials. If you download or print a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials.
9. Our Management of the Service; User Misconduct
b. Interactions with other Users. You are solely responsible for your interactions with other users of the Service. Please note that there are risks that may arise when dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post on the Service and that you give to other users of the Service. You are discouraged from publicly posting your telephone number or street address on the Service. Information posted to the Service by other users of the Service may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through the Service. Opinions and other statements included in users’ Contributions do not represent the opinions or statements of It Works! and the posting of a Contribution on the Service does not constitute It Works’! support or endorsement of any opinions or statements expressed in the applicable Contribution.
11. Availability of the Service; Backup of Contributions. You will be solely responsible for (a) obtaining all equipment necessary for your own Internet connection, including computer and modem, or smart phone; (b) obtaining access to the Internet, and (c) paying any fees related with such connection. Although it is It Works!' intention for the Service to be available as much as possible, there will be occasions when the Service may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. Also, It Works! reserves the right to remove any Contributions from the Service for any reason, without prior notice. Contributions removed from the Service may continue to be stored by It Works!, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, It Works! encourages you to maintain your own backup of your Contributions. In other words, It Works! is not a backup service and you agree that you will not rely on the Service for the purposes of Contribution backup or storage. It Works! will not be liable to you for any modification, suspension, or discontinuation of the Service, or the loss of any Contribution. You also acknowledge that the Internet may be subject to breaches of security and that the submission of Contribution or other information may not be secure.
12. Warranty Disclaimer; Limitation on Liability
a. Disclaimer of Warranties
i. TO THE EXTENT PERMITTED BY LAW, THE SERVICE, INCLUDING, WITHOUT LIMITATION, all Materials, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER IT WORKS! NOR ITS PARENT COMPANY, AFFILIATES OR SUBSIDIARIES NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE "IT WORKS! PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE Materials; (C) USER contributions; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO IT WORKS! OR VIA THE SERVICE. IN ADDITION, THE IT WORKS! PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
ii. TO THE EXTENT PERMITTED BY LAW, THE IT WORKS! PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE IT WORKS! PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE IT WORKS! PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE IT WORKS! PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.
iii. PRODUCT SPECIFICATIONS AND OTHER INFORMATION HAVE EITHER BEEN PROVIDED BY IT WORKS! VENDORS OR COLLECTED FROM PUBLICLY AVAILABLE SOURCES. WHILE IT WORKS! MAKES EVERY EFFORT TO ENSURE THAT THE INFORMATION IN THE SERVICE IS ACCURATE, IT CAN MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION PROVIDED IN THE SERVICE. IT WORKS! MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH REGARD TO ANY PRODUCT PROVIDED OR OFFERED BY IT WORKS! THROUGH ITS VENDORS, AND YOU ACKNOWLEDGE THAT ANY RELIANCE ON REPRESENTATIONS AND WARRANTIES OTHER THAN THOSE DESCRIBED ABOVE SHALL BE AT YOUR OWN RISK.
b. Limitation of Liability
i. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL THE IT WORKS! PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE Materials; (C) USER Contributions; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE IT WORKS! PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE IT WORKS! PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE IT WORKS! PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. IN NO EVENT WILL THE IT WORKS! PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00). for new jersey residents, the limitation on liability is inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute.
ii. TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF IT WORKS!' ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE IT WORKS! PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE IT WORKS! PARTIES.
iii. BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
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