ItAllCounts Terms and Conditions:
The ItAllCounts Terms and Conditions ("Agreement") contains details about the relationship between you and us relating to the ItAllCounts service. You have to accept the terms of the Agreement in order to become an ItAllCounts member. By enrolling as an ItAllCounts member, you agree to these terms and conditions and that your use of this site and your participation in the ItAllCounts service is subject to this Agreement.
By enrolling in the ItAllCounts Service, you acknowledge that you have read and understood this Agreement and that you agree to be bound by all of its terms. If you do not agree to all of the terms of this Agreement, then do not enroll in ItAllCounts.
You also acknowledge that you have had an opportunity to review the ItAllCounts Privacy Statement or that it has been made available to you.
This Agreement constitutes a legally binding agreement between ItAllCounts, LLC., a limited liability company existing and operating under the laws of the State of Kansas ("ItAllCounts"), and each individual who registers with the ItAllCounts Program, as described below (the "Service"), by completing the registration form on the ItAllCounts website ("you" or the "Member"). As used in this Agreement, the terms "we" and "us" mean ItAllCounts, and the term "our" means ItAllCounts's.
- 1. Registration. You represent that you are a person of legal age in the state in which you live (generally at least 18 to 21, depending on the state) and are a U.S. citizen or residing in the United States or its territories. You agree that it is your responsibility to keep your Member information current, complete and accurate by periodically updating your information in the appropriate section of our website.
- 2. License. Subject to this Agreement, we hereby grant you a non-exclusive, non-transferable license (without the right to sublicense) for so long as you participate in the Service and adhere to this Agreement, to access, participate in and use the Service. You agree that you obtain no rights other than the rights and licenses expressly granted in this Agreement.
- 3. Fees. We do not charge a fee to join ItAllCounts. Some of the businesses that will participate in the Service by rebating a portion of Members' purchases at or with those businesses (each a "Contributing Company") may charge fees with respect to some of their offers related to the Service. Any such fees will be disclosed in the description of those Contributing Companies' offers, and each Contributing Company reserves the right to change such fees or institute new or additional fees in the future.
- 4. Policies. You agree to comply with this Agreement, and all other policies, rules and terms and conditions as set forth in Service materials, including materials of Contributing Companies, either in print or on our website (collectively, the "Policies"). The Policies, including any amendments which may be made from time to time, are hereby incorporated by reference into this Agreement. We may modify this Agreement or the Policies at any time in accordance with Section 17 of this Agreement. You acknowledge and agree that any information you provide to a Contributing Company is subject to that Contributing Company's own privacy and data collection policies.
- 5. No Unauthorized Use of the Service. You agree that you will not, and will not permit others to:
- provide any unauthorized third party with access to the Service or any information, data, text, links, images, software, chat, communications and other content available through the Internet and proprietary to ItAllCounts (collectively, "Content") by any means;
- modify, reverse engineer, reverse assemble or decompile any of the software applications used by you in connection with your participation in the Service;
- engage in any activity that does not comply with U.S. law or other applicable law and regulations or otherwise engage in any illegal, manipulative or misleading activity through the use of the Service;
- introduce into the Service any code intended to disrupt the Service, alter or delete its Content, access confidential Content on our website or interfere with the operation of the Service, including, but not limited to, distribution of unsolicited advertising or mail messages and propagation of computer worms and viruses;
- post any material in any form whatsoever on our website or within the Service that is defamatory, obscene or otherwise unlawful or violates any third party's right of privacy or publicity; or
- infringe any third party's patent, copyright, service mark, trademark or other intellectual property right of any kind or misappropriate the trade secrets of any third party in connection with your use of the Service.
- 6. Security. You will maintain the confidentiality of the user IDs and passwords by which you access the Service, and will allow access to the Service only by authorized persons, and not by any program, expert system, electronic agent, "bot" or other automated means. Any use of your assigned user IDs or passwords will be deemed to be your use. If there is a breach of security through your account, you will immediately change your password and notify us of such breach. You agree that, unless you have first notified us immediately of any such breach, we should assume that any instruction transmitted using your user ID and password is yours and has been authorized by you, and we will have no obligation to inquire into the propriety of such instruction. You will not permit any use of the Service that would damage, interfere with or unreasonably overload the Service. You acknowledge that ItAllCounts will not contact you to solicit your user ID or password.
- 7. Discontinuation or Suspension of Use. We may, in our sole discretion, at any time and without prior notice:
- discontinue transmitting all or any part of the Content related to the Service;
- change, discontinue or limit access to the Service or any functionality, feature or other component of the Service; or
- if we reasonably believe you have breached this Agreement, suspend or terminate your use of or access to the Program upon giving you notice of such suspension or termination.
Contributing Company Offers and Contributions
- 8. Contributions. Subject to the terms of this Agreement, you will earn contributions denominated in U.S. dollars on all Qualifying Transactions made at, from or with Contributing Companies, and will credited to your ItAllCounts Account, in the amounts or percentages set by those Contributing Companies and subject to those Contributing Companies' terms and conditions. You acknowledge and agree that you have no right to a cash withdrawal of your Contributions until you have accumulated the minimum withdrawal threshold set forth in Section 15 of this Agreement, and until such time all Contributions in the Contribution Account shall remain the property of ItAllCounts unless and until otherwise distributed in accordance with the terms of this Agreement. Contributing Companies may impose conditions or restrictions different from, or in addition to, those described on the pages of the ItAllCounts website or in other promotional materials. ItAllCounts is not responsible for setting or maintaining the amount of the Contributions offered by any Contributing Company or for requirements of any Contributing Company's program or offer. Each Contributing Company has reserved the right to change at any time, and without notice, the amount or percentage of any Contributions it offers, the fees that it may impose relating thereto, as well as the terms and conditions of any qualifying purchase. Your continued use of the Program thereafter will constitute acceptance of such terms and conditions. ItAllCounts does not represent or warrant that any particular Contributing Company will participate in the Program at the time you join the Program or at any time thereafter. For the purposes of this Agreement, a purchase is a "Qualifying Purchase" once all conditions in a Contributing Company's offer with respect to that purchase, including any waiting periods, have been satisfied.
- 9. Your ItAllCounts Account and the Contribution Account.
- Contributions you accrue as a result of Qualifying Transactions will be posted to your individual account on the records of ItAllCounts (your “ItAllCounts Account) and split 50% to your personal distribution (“Personal Contributions”) and 50% to your non-profit organization distribution (“Non-Profit Contributions”). Collectively these two distributions represent your ItAllCounts Account. Once received by the Contributing Companies, Contributions posted to your ItAllCounts Account will be held in one or more accounts established and maintained by ItAllCounts as trustee for the exclusive benefit of ItAllCounts Members (the "Contribution Account"). The ItAllCounts website will display a summary of activity in your ItAllCounts Account. Generally, Contributions will be posted to your ItAllCounts Account within thirty (30) days of notice from a Contributing Company to ItAllCounts of your relevant transaction. However, we will not be liable for damages resulting from any failure to post Contributions to your ItAllCounts Account in a timely manner. For your convenience, we may post pending Contributions from Contributing Companies in your ItAllCounts Account prior to our receipt of the actual Contribution. However, you will not have any rights to such Contributions unless and until the applicable Contributing Company makes the entire Contribution to the Contribution Account. You acknowledge and accept that you are solely responsible for checking your ItAllCounts Account regularly to verify that Contributions have been properly posted. If you believe that a Contribution has not been properly posted to your ItAllCounts Account, then you must inform ItAllCounts within one year of the qualified transaction for which you are claiming that a Contribution should have been posted and must be able to provide proof of such transaction acceptable to ItAllCounts. ItAllCounts reserves the right to determine whether a Contribution should have been posted to your ItAllCounts Account.
- ItAllCounts will maintain a record of the Contributions received in the Contribution Account. You will not be entitled to receive interest on any Contributions. Except as contemplated by Section 12, Contributions will remain in the Contribution Account until (i) you direct us to distribute such Contributions in accordance with Section 15 of this Agreement, or (ii) we exercise our rights under Section 16(b) below. Contributing Companies have no role in verifying, administering or maintaining any Contribution Account or any ItAllCounts Account. The amount of Contributions available for distribution in accordance with Sections 15 and 16 of this Agreement is the amount of Contributions in the Contribution Account, which may differ from the amount of Contributions posted to your ItAllCounts Account, generally because your ItAllCounts Account may also include pending Contributions. Only ItAllCounts is authorized to act upon your instructions with respect to the disposition of Contributions in the Contribution Account in accordance with this Section and Section 15 of this Agreement.
- 10. No Responsibility for Contributing Companies. You agree that ItAllCounts is not an agent of any Contributing Company and that Contributing Companies operate independently of, and are not under the control of ItAllCounts with respect to the Service or otherwise. Accordingly, we do not represent or warrant, or give any assurances, that any Contributing Company will provide a Contribution for any particular transaction even where such transaction would appear to qualify for such Contribution under either ItAllCounts or Contributing Company statements. We are not responsible for the failure of any Contributing Company to pay Contributions in accordance with the terms of that Contributing Company's offer. Further, your participation in offers or promotions of, or correspondence with, any Contributing Company is solely between you and that Contributing Company. We do not assume any liability, obligation or responsibility for any part of any such correspondence, offer or promotion, including without limitation the withdrawal or modification of any such offer or promotion. Also, no Contributing Company assumes any liability, obligation or responsibility for our conduct with respect to the Service.
- 11. Online Affiliates. In the case of certain online Contributing Companies ("Online Affiliates"), the Online Affiliates have agreed to pay us certain affiliate or referral fees when Members purchase goods or services from such Online Affiliates through our website. We agree to transfer all or portion of the affiliate or referral fee we receive as a result of your Qualified Transactions with Online Affiliates (as specified on our website for each particular Contributing Company) as a Contribution in the Contribution Account upon receipt of the entire affiliate or referral fee. No Contribution associated with any purchase from an Online Affiliate will be made to the Contribution Account unless and until the entire associated affiliate or referral fee has been made by such Online Affiliate to ItAllCounts. ItAllCounts reserves the right to change its offer with respect to the amount of the Contribution associated with any Online Affiliate at any time, but no such change will affect any Contributions received prior to such change.
- 12. Returning and Rescinding Contributions; Escheatment.
- We may withdraw Contributions from the Contributions Account and deduct Contributions posted to your ItAllCounts Account in order to make adjustments for returns and cancellations with respect to Qualifying Transactions. In the event that you have withdrawn a Contribution or have elected to have it transferred to a Linked Account (as defined in Section 15(a) below) and you subsequently reverse the transaction with a Contributing Company that generated such Contribution, or otherwise are required to return the Contribution to the Contributing Company pursuant to the terms of the applicable offer, whether or not you are still participating in the Service, you will remain solely responsible for the return of the Contribution credited from such purchase, and we may apply future Contributions against such obligation and/or apply any remaining Contributions to address the discrepancy. In the event you fail to return the Contribution, we reserve the right to take any and all legal action necessary to collect the Contribution from you, including but not limited to pursuing such claim in a court of law, employing a collection agency or reporting such claim to a credit reporting agency. We reserve the right to rescind Contributions and to bar further Contributions to, and/or terminate your membership if we believe in our discretion that you are abusing or have abused the Service, including, without limitation, by engaging in fraudulent activities, by engaging in a pattern of returning products after the corresponding Contribution has been credited, by creating or attempting to create or participating in any market in Contributions, by engaging in or accepting any broad-based solicitation of Contributions or by attempting to receive Contributions from transactions that have not been made by you. We will notify you if we determine you have engaged in any such activities, and in such event you agree to forfeit any and all Contributions in the Contribution Account.
- Each state has its own escheatment law which requires companies to turn over to the state property of its residents that the state deems to be unclaimed or abandoned. If your ItAllCounts Account has not had any activity, as defined by your state of residence according to our records, for a certain period of time (generally three to five years), ItAllCounts may be required by law to remit the Contributions in the Contribution Account to the state of your last known address. Similarly, if you have a check issued by ItAllCounts that has not been cashed after a certain period of time (also generally three to five years), ItAllCounts may be required by law to remit the amount of the uncashed check to the state of your last known address. If we remit funds to your state of residence as required by law, you will need to contact the state directly to obtain the funds.
- 13. Account Adjustments. In the event of any abusive or fraudulent activity related to the Service, we reserve the right, following notice to you, to make any adjustments to your ItAllCounts Account and/or the Contributions in the Contribution Account in accordance with this Agreement, the Policies, any applicable laws, rules or regulations, and the terms of any Contributing Company offers.
Use of Information
- 14. Use of Information. You acknowledge that in order to administer the Service, we will collect information about you, your purchases from Contributing Companies and your Linked Accounts with Linked (as defined in Section 15 below). You authorize Contributing Companies and their respective agents to disclose to us any and all information with respect to your purchases from such Contributing Company. You also authorize Linked Account and their agents to disclose to us any and all information with respect to your Linked Accounts as is necessary to fulfill the terms of this Agreement or to provide any aspect of the Service as set forth on our website. You authorize us to use any such information and to disclose such information (a) to our representatives and agents, (b) to third parties, where necessary or convenient for transfer or withdrawal of your accumulated Contributions or otherwise in connection with the Service, (c) to comply with requests, orders or subpoenas from courts of law or any regulatory, legislative or administrative bodies and (d) otherwise in accordance with the terms of the ItAllCounts Privacy Statement on our website.
Use of Contributions
- 15. Use of Contributions:
- Personal Contributions. You may choose to direct us to distribute Personal Contributions in the Contribution Account in either of the following ways, or in any other manner that we may establish from time to time and set forth on the ItAllCounts website or otherwise disclosed to you. Members may select or change their distribution options in the My ItAllCounts section of ItAllCounts.com
- Check. Provided the Personal Contributions in the Contribution Account equal or exceed the minimum amount of ten dollars ($10.00), you will receive a check. This is the default method of distribution and will be used unless Linked Accounts are setup in your account profile.
- Linked Accounts. Solely as a convenience to you, ItAllCounts provides the option of linking financial institutions and financial accounts (“Linked Accounts”) to your ItAllCounts Account. This allows you to direct us to distribute Personal Contributions in the Contribution Account directly to a linked financial institution via “ACH” transfer provided the above mentioned ($10.00) minimum is held in the Contribution Account.
- Non-Profit Contributions. ItAllCounts will automatically distribute Non-Profit Contributions in the Contribution Account to the Non-Profit Organization(s) specified in your ItAllCounts Account.
- Distributions of Contributions from the Contribution Account in accordance with this Section 15 will be made in accordance with the applicable distribution procedures we establish from time to time and set forth on our website or otherwise disclose to you.
- You acknowledge and accept that none of the Contributing Companies or ItAllCounts is the agent of any Linked Account. You further acknowledge and accept that no Linked Account will have any liability, obligation or responsibility for the conduct of ItAllCounts with respect to the Service. In furtherance of the foregoing, you acknowledge and accept that no Linked Account will have any responsibility for or liability with respect to any Contributions until such Contributions have been transferred to the Linked Account.
- 16. Termination; Expiration or Forfeiture of Membership and ItAllCounts Accounts; Rights to Contributions.
- This Agreement is effective when accepted by you, as described in the first paragraph of this Agreement, and will remain in effect and legally bind you and us until you or we terminate your membership in the Service. We may terminate your membership in the Service with or without cause at any time immediately after notice to you of such termination. Upon any termination of your membership, your ItAllCounts Account automatically will be closed effective upon such termination. Likewise, if either you or we close your ItAllCounts Account for any reason, your membership in the Service automatically will terminate effective upon closure of your ItAllCounts Account.
- If your ItAllCounts Account is inactive, you have not made a shopping transaction, for six (6) consecutive calendar months, or if this Agreement has terminated, then ItAllCounts reserves the right to either charge your account a monthly maintenance fee of $2.50 or close your ItAllCounts Account and distribute any accrued Contributions remaining in your ItAllCounts Account as you have directed us in accordance with Section 15. In the event that we close your ItAllCounts Account and you have not directed your contributions, or if ItAllCounts is not able to verify your payment address or Linked Account, we will make at least three attempts, via a combination of email, phone, and direct mail, to contact you to determine how you would like your Contributions distributed. After three months, if we are not able to contact you, and you do not respond to our inquiries, you agree to forfeit any accrued contributions to ItAllCounts to cover administrative costs.
- Upon any termination of this Agreement, your right to use and access the Service and to receive Contributions will terminate. Subject to the limitations set forth in this Agreement, termination will not prejudice either your or our remedies at law or in equity.
- 17. Certain Disclaimers; Indemnification.
- Disclaimer of Warranties.
- THE SERVICE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS, OR VALIDITY OF ANY MATERIALS RELATED TO THE SERVICE AND DO NOT WARRANT THAT THE FUNCTIONALITY OF SUCH SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT SUCH SERVICE OR THE SERVER(S) THAT MAKE(S) IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- ITALLCOUNTS'S WEBSITE AND THE SERVICE MAY CONTAIN FACTS, VIEWS, OPINIONS, STATEMENTS, OR RECOMMENDATIONS OF THIRD-PARTY INDIVIDUALS AND ORGANIZATIONS. WE DO NOT REPRESENT OR ENDORSE THE ACCURACY, CURRENTNESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, RECOMMENDATIONS, OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED THROUGH THE ITALLCOUNTS WEBSITE. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, STATEMENT, RECOMMENDATIONS OR INFORMATION WILL BE AT YOUR SOLE RISK. FURTHERMORE, WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE QUALITY OF, OR ACCURACY OF ADVERTISEMENTS FOR, ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ITS CONTRIBUTING COMPANIES OR SUPPLIERS IN CONJUNCTION WITH THE SERVICE.
- Exclusion of Certain Damages. WE WILL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING FROM:
- ANY FAILURE TO SCREEN USERS OR MEMBERS OF THE SERVICE;
- ACTS OR OMISSIONS OF ANY USERS OR MEMBERS OF THE SERVICE;
- MATERIALS POSTED BY, OR OF, ANY PARTY OTHER THAN ITALLCOUNTS OR ITALLCOUNTS INVESTMENTS OR ANY USE THEREOF;
- THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER OR OBTAINED USING THE INTERNET; OR
- ANY FAILURE TO PERFORM ANY OBLIGATION HEREUNDER, OR FROM ANY DELAY IN THE PERFORMANCE THEREOF, DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING THE ELEMENTS, ACTS OF GOD, LABOR DISPUTES, ACTS OF TERRORISM, ACTS OF CIVIL OR MILITARY AUTHORITY, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, FAILURE OR ERRATIC BEHAVIOR OF TELECOMMUNICATIONS OR POWER SYSTEM, SABOTAGE, ARMED HOSTILITIES, RIOTS OR GOVERNMENT REGULATION OF THE INTERNET.
In addition to the foregoing, on occasion, Contributing Companies, Online Affiliates, ItAllCounts and/or any of their respective third party agents may fail to track your Qualified Transactions due to computer system failures or interruptions beyond the reasonable control of the tracking party. Furthermore, certain hardware devices and software such as pop-up blockers, ad blocking software, viruses, worms, Trojans, adware, spyware and malware can interfere with the tracking of Contributions and/or the operation of our website. NEITHER ITALLCOUNTS NOR ANY CONTRIBUTING COMPANY, ONLINE AFFILIATE OR THIRD PARTY TRACKING AGENT SHALL BE LIABLE FOR YOUR FAILURE TO RECEIVE A CONTRIBUTION OR IMPORTANT INFORMATION ABOUT THE SERVICE AS A RESULT OF A COMPUTER SYSTEM FAILURE OR INTERRUPTION OR HARDWARE DEVICES OR SOFTWARE ON YOUR COMPUTER OR NETWORK.
- Indemnification. You agree to indemnify ItAllCounts, any Contributing Company, Linked Account Manager, and any bank having custody of your Contributions (a "Custody Bank"), as well as their respective officers, directors, employees, successors, agents, and affiliates, for any and all claims, damages, losses and causes of action (including attorneys' fees and court costs) arising out of or relating to your breach of this Agreement (including without limitation relating to a breach by you of Section 5), or for any materials in any form whatsoever that are provided by you (or through your user ID and/or password). You agree to cooperate as fully as reasonably required in our defense and/or settlement of any claim. We reserve in our reasonable discretion the right to assume exclusive control over the defense and settlement of any matter subject to indemnification by you.
- Tax Advice. Nothing contained on our website is intended to constitute personal tax advice. The tax consequences of participation in the Service will depend on your particular tax circumstances. You are responsible for obtaining your own tax advice with respect to participation in the Service. You agree that we will not have any liability for any information contained on or omitted from the ItAllCounts website with respect to taxes and that we have no obligation to inform you of changes in the tax laws.
- Investment Advice. Nothing contained on our website is intended to constitute investment advice, nor do we give advice or offer any opinion or recommendation on the suitability of any security or investment strategy. We will not be deemed to have solicited any investments directed by you in Linked Accounts established by you with the Linked Account Managers. Although you may be able to obtain investment related reports and information through the Service and our website, the availability of such information does not constitute a recommendation by us to buy or sell any security or other property discussed in such reports or information. Any investment decision you make will be based solely on your own evaluation of the merits of the particular investment decision in light of your financial circumstances and investment objectives.
- 18. Limitation of Liability.
- NONE OF ITALLCOUNTS, ANY CONTRIBUTING COMPANY, LINKED ACCOUNT MANAGER OR CUSTODY BANK, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, OR AFFILIATES ARE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE, THE INFORMATION CONTAINED ON THE ITALLCOUNTS WEBSITE, OR (EXCEPT IN THE CASE OF THE APPLICABLE CONTRIBUTING COMPANY OR SUPPLIER) ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED BY CONTRIBUTING COMPANIES OR SUPPLIERS IN CONJUNCTION WITH THE SERVICE, EVEN IF ANY SUCH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
- IN NO EVENT WILL ITALLCOUNTS'S TOTAL LIABILITY TO YOU FROM ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE ITALLCOUNTS WEBSITE OR PARTICIPATION IN THE SERVICE, WHETHER IN CONTRACT, TORT, (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE LARGEST AMOUNT OF CONTRIBUTIONS IN THE CONTRIBUTION ACCOUNT WHILE THIS AGREEMENT IS IN EFFECT.
- 19. Electronic and Oral Communications.
- Member Instructions. We may rely on your oral and electronic instructions. In addition, you consent to the monitoring and recording of your telephone conversations with us for training or compliance purposes or to provide a record of your instructions. You agree that we will not be liable for honoring oral instructions received from any person claiming to be you, provided reasonable verification procedures have been followed. We may follow any instructions received by electronic means through the ItAllCounts website just as if you had given such instructions in person, regardless of whether or not you have personally initiated such instructions.
- ItAllCounts Communications. You consent to the receipt of all reports, transaction confirmations, account statements, correspondence and other information from us electronically through either (i) access to your ItAllCounts Account on the ItAllCounts website or (ii) the email address provided by you to ItAllCounts. We will not be responsible for your inability to connect to the Internet or to access the ItAllCounts website or otherwise not to receive electronic communications. Electronic communications are presumed to be delivered to and received by you when sent by us, whether actually received or not. You acknowledge that you have access to hardware and software meeting the system requirements set forth on the ItAllCounts website necessary to receive from us correspondence and records in electronic form.
- 20. General.
- Governing Law. The validity, construction and interpretation of this Agreement, and the rights and duties of the parties hereto, will be governed by and construed in accordance with the laws of the State of Kansas, excluding its conflicts of laws principles. Each party hereto agrees that all claims relating to this Agreement will be heard exclusively by a state or federal court in Kansas. Accordingly, each party hereby consents to the exclusive jurisdiction of any state or federal court in the State of Kansas over any proceeding related to this Agreement, irrevocably waives any objection to the venue of any such court, and irrevocably waives any claim that any such proceeding in such a court has been brought in an inconvenient forum.
- Assignment. You may not assign your rights and obligations under this Agreement, in whole or in part, without our prior written consent, and any such assignment without such consent will be null and void. We may assign our rights and obligations under this Agreement, in whole or in part, without your consent. This Agreement will inure to the benefit and burden of the parties hereto and their permitted successors and assigns.
- Notices. Except as otherwise set forth in this Agreement, any notice by one party hereto to the other will be in writing (which may include email) and either personally delivered, delivered by Internet email, or sent via reputable overnight courier or certified mail, postage prepaid and return receipt requested. Notices will be sent to you at the Internet email address or the mailing address specified in your account profile and to us at 12505 West 129th Street, Overland Park, KS 66213, Attn.: Customer Service, or any other address of which either party hereto may from time to time notify the other in accordance with this Section 22(c). All notices will be in English. All paper notices will be deemed effective on the date of personal delivery, upon signed receipt from an overnight courier, or five days after deposit with the U.S. Postal Service, as applicable. All email notices will be deemed effective when sent by us to the email address specified in your account, whether actually received or not, and all notices on our website will be deemed effective upon posting on our website, whether or not reviewed by you.
- No Waiver; Severability. The waiver by either party hereto of a breach or default of any provision of this Agreement by the other party hereto will not be construed as a waiver of any succeeding breach or default of the same or any other provision, nor will any delay or omission on the part of either party hereto to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party. If any provision of this Agreement is held to be invalid, such invalidity shall not affect the remaining provisions.
- Relief. You acknowledge and accept that any breach of Section 5 above is likely to irreparably harm us and will not be susceptible of cure by monetary damages. Consequently, if you breach any provisions of Section 5 above, then we will be entitled to obtain injunctive or other equitable relief in addition to any remedies it may have at law.
- Third Party Beneficiary. Each Contributing Company, Linked Account Manager, and Custody Bank is hereby expressly made a third party beneficiary of this Agreement and may enforce this Agreement directly against you.
- Entire Agreement. This Agreement represents the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof (including without limitation, earlier versions of this Agreement that may have been accepted by you through the ItAllCounts website or otherwise). ). We reserve the right to modify this Agreement at any time. Your non-termination and continued membership in ItAllCounts after notice of any modification of this Agreement will constitute affirmative acceptance by you of such modification and your consent to abide by any terms thereof. You acknowledge that the most recent version of this Agreement will be located on the ItAllCounts website under Terms and Conditions. No other act, document, usage or custom will be deemed to amend or modify this Agreement.