Terms & Conditions
Effective Date: July 11, 2018


Version 1.01

Effective Date: 5 June 2021


The 3×3 Retailer Membership Program (the “Program”) is an offering of 3×3 INSIGHTS LLC, a Delaware limited liability company with offices located at 712 5th Avenue, 7th Floor, New York, New York 10019 (“3×3”).


PLEASE READ THESE TERMS AND CONDITIONS (the “Terms”) CAREFULLY. BY ACCESSING OR USING THE PROGRAM OR ANY PORTIONS THEREOF, OR IN ANY WAY, USING THE SERVICES, NETWORKS, AND RESOURCES AVAILABLE OR ENABLED VIA THE PROGRAM (collectively, the “Platform”), OR CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE REGISTRATION PROCESS ON THE PLATFORM YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF USE (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE RETAIL ESTABLISHMENT THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THESE TERMS OF USE OR OTHERWISE ACCESSING OR USING THE PLATFORM IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT: (a) THE TERMS “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND, AS APPLICABLE, SUCH INDIVIDUAL; AND (b) YOU REPRESENT AND WARRANT THAT THE INDIVIDUAL ENTERING INTO OF USE HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF USE ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE PROGRAM OR THE PLATFORM.

PLEASE BE AWARE THAT SECTION 14 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND 3×3 HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE PROGRAM OR THE PLATFORM WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

While base membership and aspects of participation in the Program are currently provided for free, your use of, and participation in, certain additional portions of or services offered on the Platform may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will be presented to you for your acceptance when you sign up to use that particular service.  Although the Program and Platform are provided without charge to you, you acknowledge and agree that 3×3 may charge a fee in connection with the Supplemental Terms. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control solely with respect to such service. These Terms and any applicable Supplemental Terms are referred to herein as the “Agreement.” You acknowledge and agree that this Agreement is a legally binding agreement between you and 3×3.

PLEASE NOTE THAT THESE TERMS ARE SUBJECT TO CHANGE BY 3×3 IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, 3×3 will make a new version of these Terms available through its Platform and any new Supplemental Terms will be made available from within, or through, the affected portion of the Platform. 3×3 will also update the “Effective Date” at the top of the Terms. Any changes to these Terms will be effective with respect to you and the Program. Unless otherwise stated, your continued use of the Platform constitutes your acceptance of such change(s). If you do not agree to any change(s) after receiving a notice of such change(s), you agree to stop all use of the Program and the Platform. PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS.

1. Defined Terms. Capitalized terms used but not otherwise defined in the Agreement shall have the following meanings:

a. “Deliverables” shall mean all documents, work product, and other materials that are delivered to you hereunder by or on behalf of 3×3 in connection with the Program.

b. “Pre-Existing Materials” shall mean 3×3’s pre-existing materials consisting of documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, in each case developed or acquired by 3×3 prior to the commencement or independently of this Agreement.

c. “Retailer’s Materials” shall mean the information, documents, samples, products, trademarks, logos, customer information, loyalty information or other material you provide relating to the retail establishment benefiting from participating in the Program.

2. Use of the Platform, Program and Content.

a. Subject to your compliance with this Agreement, 3×3 grants you the non-exclusive, limited right to access and use the Platform for your internal business purposes.

b. You understand that the Platform and Programming is evolving. As a result, 3×3 may update, add, improve, or remove any or all parts of the Platform or Program. You acknowledge and agree that 3×3 may update the Platform and Program with or without notifying you. You may need to update third-party software from time to time in order to use the Platform and Program. A current list of aspects of the Program are posted by 3×3 at https://www.3x3.us/retailer-membership-terms-conditions.

c. You agree that you will not: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform, Program or Services, or any portion of thereof, except for your sole benefit; (ii) use any metatags or other “hidden text” using 3×3’s name or trademarks; (iii) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the source code for the Platform except to the extent the foregoing restrictions are expressly prohibited by applicable law; (iv) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform; (v) access the Platform in order to build a similar or competitive website, application, or service; and (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Platform, the Services or the Program. Any future release, update, or other addition to the Platform, the Program or Services shall be subject to this Agreement. 3×3, its suppliers and service providers reserve all rights not granted in this Agreement. The rights granted to you hereunder are subject to your compliance with this section and the Agreement.

d. While accessing or using the Platform, Program and Services, you agree that you will not, under any circumstances:

i. breach or circumvent any laws or third party rights;

ii. interfere with or damage the Platform, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;

iii. bypass 3×3’s robot exclusion headers, interfere with the working of the Platform, or impose an unreasonable or disproportionately large load on 3×3’s infrastructure;

iv. transfer your account or username, or other access codes, to another party without 3×3’s consent;

v. upload, post, e-mail, transmit or otherwise make available (“Make Available”) any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;Make Available any content that: (A) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (B) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (C) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (D) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (E) promotes illegal or harmful activities.


e. In order to access certain features of the Platform, you may be required to register an account on the Platform (“Account”). If you access the Platform through a social networking service (“SNS”), such as LinkedIn or Facebook, as part of the functionality of the Platform, you may link your Account with the SNS account through which you connect to the Platform (each such account, a “Third-Party Account”), by allowing 3×3 to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to 3×3 and/or grant 3×3 access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating 3×3 to pay any fees or making 3×3 subject to any usage limitations imposed by such third-party service providers. By granting 3×3 access to any Third-Party Accounts, you understand that 3×3 may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Platform (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Platform via your Account.

Unless otherwise specified in this Agreement, all SNS Content shall be considered to be Your Content for all purposes of this Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Platform. Please note that if a Third-Party Account or associated service becomes unavailable or 3×3’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Platform. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND 3×3 DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. 3×3 makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and 3×3 is not responsible for any SNS Content.

f. In registering for an Account on the Platform, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Platform’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You may not share your Account or password with anyone, and you agree to notify 3×3 immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or 3×3 has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, 3×3 has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create an Account using a false identity or any false information, or on behalf of someone other than yourself. 3×3 may require you to participate in any additional registration checks as it deems necessary in its sole discretion. 3×3 reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Platform if you have been previously removed by 3×3, or if you have been previously banned from any of the Platform.

g. You acknowledge that all Content contained in the Platform, is the sole responsibility of the party from whom such Content originated. This means that you, and not 3×3, are entirely responsible for all Content that you Make Available through the Platform (“Your Content”). You acknowledge that 3×3 has no obligation to pre-screen Content (including, but not limited to, Your Content or any other User Content), although 3×3 reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that 3×3 pre-screens, refuses or removes any Content, you acknowledge that 3×3 will do so for 3×3’s benefit, not yours. Without limiting the foregoing, 3×3 shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. 3×3 is not responsible for and does not control Content uploaded by others. You use all Content at your own risk. Unless expressly agreed to by 3×3 in writing elsewhere, 3×3 has no obligation to store any of Your Content that you Make Available on the Platform. 3×3 has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Platform. Certain features of the Platform may enable you to specify the level at which the Platform restricts access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that 3×3 retains the right to create reasonable limits on 3×3’s use and storage of Content, including Your Content. The Platform hosts Content that is related to reviews of certain users. Such reviews are opinions and are not the opinion of 3×3, have not been verified by 3×3, and each user should undertake his or her own research to be satisfied concerning any specific user. You agree that 3×3 is not liable for any such Content.

h. 3×3 does not claim ownership of Your Content. However, when you Make Available Your Content on or through the Platform, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the purpose of providing the Platform. You grant 3×3 a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Platform to you and to others.

3. Fees, Costs and Taxes. If applicable, all fees payable by you under this Agreement will be stated in the Supplemental Terms and are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. 3×3 shall be responsible for any taxes imposed on, or with respect to, 3×3’s income, revenues, gross receipts, personnel, or real or personal property. You shall be solely responsible for the payment of any sales and use taxes assessed against the sale of goods and/or services.

4. Third Party Providers. 3×3, in its sole discretion, may enter into agreements with or otherwise engage any person or entity, including any independent consultant, contractor, subcontractor, or affiliate of 3×3 (each, a “Third Party Service Provider”), to provide the Program in connection with this Agreement. All Third Party Service Providers are intended third party beneficiaries of this Agreement.

5. No Exclusivity. We believe that promotion of the industry, establishments and the products offered benefits all retailers, wholesalers, and customers. 3×3 retains the right to perform the same or similar type of services to the Program provided hereunder for third parties at any time, including without limitation to your competitors.

6. Compliance. Each Party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits materially necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under this Agreement.

7. No Guaranty; LIMITS ON LIABILITY. You agree that 3×3 cannot guarantee the results or effectiveness of any of the Program, or any service rendered or to be rendered by 3×3 (“Services”). YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT SHALL BE TO CEASE USING THE PROGRAM, PLATFORM AND SERVICES.  IF THE FOREGOING IS NOT ENFORCEABLE, THEN UNDER NO CIRCUMSTANCES WILL 3×3 BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY 3×3 AS A RESULT OF YOUR USE OF THE PLATFORM, AND IF YOU HAVE NOT PAID 3×3 ANY AMOUNTS 3×3’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50). YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL 3×3 PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT 3×3 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY THEORY OF LIABILITY.

8. DISCLAIMER OF WARRANTIES; NON-RELIANCE. THE PROGRAM, PLATFORM AND ALL SERVICES ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE” AND NEITHER 3×3, NOR ANY OTHER PERSON ON ITS BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE. 3×3 HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. 3×3 SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE CONTROL OF 3×3. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN 3×3 AND YOU.

9. Indemnification.

You shall defend, indemnify, and hold harmless 3×3, and its officers, directors, members, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, “3×3 Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”) arising out of or resulting from any third-party claim or direct claim alleging:

a. material breach by you or your personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement; and

b. the negligence or more culpable act or omission of your or your personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and

c. that any of your webpages, products, goods or services promoted pursuant to this Agreement, Retailer Materials, your intellectual property or any use of the foregoing (i) infringes the intellectual property rights of any third party, (ii) contains software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programing routines (collectively, “Harmful Code”), or (iii) violates applicable law; and

d. your violation of applicable law; and

e. any use of the Platform, Program, the Services, Deliverables, data contained in any Deliverables or any Pre-Existing Materials in a manner not permitted under this Agreement or in a manner that is not expressly authorized by 3×3.


10. Term and Termination.

a.
Termination for With or Without Cause. 3×3 may terminate the Agreement at any time, with or without cause. You may cease using the Program, Platform, and Services at any time, with or without cause.

b. Effects of Termination. Upon cancellation or termination of the Program, Platform, Services or this Agreement by either party for any reason: (i) 3×3 may cease providing you the Program, Platform Services and terminate access your account; (ii) unless otherwise provided in these Terms, you will not be entitled to any refunds, and you shall pay us all unpaid amounts owing. All provisions of these Terms that by their nature are intended to survive, including but not limited to any dispute resolution, disclaimer of warranty, indemnification obligations, and limitation of liability provisions, shall survive the termination or expiry of this Agreement.

11. Intellectual Property. Subject to the terms herein and the licensed granted herein, all intellectual property belonging exclusively to each Party as of the execution of this Agreement, including but not limited to trademark, copyright, trade secret, and patent rights, whether registered or unregistered and whether registrable or unregistrable, as well as any derivative works, inventions or improvements made thereto or derived therefrom during or following the Term (collectively, the “Intellectual Property” of each Party), shall remain at all times the exclusive property of such respective Party.

12. Notices and Electronic Communications. 3×3’s dispatch of any e-mail to you shall constitute effective notice to you. You may provide notices to 3×3 at Attn: CEO, 3×3 INSIGHTS LLC, 712 5th Avenue, 7th Floor, New York, New York 10019. Such notice shall be deemed given when received by 3×3 by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address. The communications between you and 3×3 use electronic means, whether you visit the Platform or send 3×3 e-mails, or whether 3×3 posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from 3×3 in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that 3×3 provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

13. Waiver. No waiver by 3×3 of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by 3×3 shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14. DISPUTE RESOLUTION.Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires any users subject to this Agreement to arbitrate disputes with 3×3 and limits the manner in which you can seek relief from 3×3.

a. Applicability of Arbitration Agreement
.
You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Program, Platform, Services, Content or any offerings through the foregoing, or to any aspect of your relationship with 3×3, will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims or seek relief in small claims court if your claims qualify; and (ii) you or 3×3 may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

b. Arbitration Rules and Forum
. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to 3×3’s registered agent or Attn: CEO, 3×3 INSIGHTS LLC, 712 5th Avenue, 7th Floor, New York, New York 10019. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, 3×3 will pay them for you. In addition, 3×3 will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

c. Authority of Arbitrator. The arbitrator shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and 3×3. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

d. Waiver of Jury Trial. YOU AND 3×3 HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and 3×3 are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14(a) (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

e. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.

f. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.

g. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: OptOut@3x3.us or writing to 3×3 at the following address: Attn: CEO, 3×3 INSIGHTS LLC, 712 5th Avenue, 7th Floor, New York, New York 10019, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Account username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

h. Severability. Except as provided in Section 14(e) (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

i. Modification. Notwithstanding any provision in this Agreement to the contrary, 3×3 agrees that if 3×3 makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by emailing OptOut@3x3.us or writing to 3×3 at the following address: Attn: CEO, 3×3 INSIGHTS LLC, 712 5th Avenue, 7th Floor, New York, New York 10019.16.

16. Limitations Period.
ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PLATFORM, THE SERVICES, OR THE CONTENT WHICH IS BROUGHT BY YOU MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

17. Assignment. Retailer may not assign or transfer any of its rights or delegate any of its obligations hereunder without the prior written consent of 3×3. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. 3×3 may assign this Agreement at any time in its sole discretion.

18. Force Majeure. 3×3 shall not be liable or responsible, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the 3×3’s reasonable control, including, without limitation, the following force majeure events (each, a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; and (h) shortage of adequate power or transportation facilities.

19. Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. 3×3 is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.

20. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.