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This agreement (“Agreement”) is made between Trilegiant Corporation ("Trilegiant"), a Delaware corporation with offices at 6 High Ridge Park, Stamford, CT 06905, providing a membership program called Netmarket® (“Netmarket” or the “Program”), and the person specified on the accompanying Netmarket membership card (referred to herein as “you”). By enrolling in the Program, you agree to be bound by the terms of this Agreement.
1. SERVICE –
(a) The service which Trilegiant shall provide to you during the term of your membership shall include: (i) computer access to product information and prices and to order merchandise through Netmarket's independent vendors; (ii) automatic extension of the manufacturer's U.S. warranty to two years from the original purchase date on eligible products purchased through the shopping service; (iii) Netmarket Cash on qualified merchandise purchased through Netmarket (details on awards, exclusions, redemption, and refunds of Netmarket Cash are included in the membership welcome kit and are incorporated herein by reference); and (iv) Low Price Guarantee (as described herein). (b) Low Price Guarantee: If you see a dated, printed advertisement from an authorized dealer showing a lower price for exactly the same item you purchased from Netmarket within sixty (60) days of your purchase (fifteen (15) days for computer products and digital cameras), you are entitled to a refund for the difference in price plus 100% of such difference. (Example: If you buy a product for $100 and find the product elsewhere for $90, Netmarket will give you a credit for $20.00). Also, if we lower our own prices within sixty (60) days of your purchase (fifteen (15) days for computer products and digital cameras), on exactly the same item that you purchased from Netmarket, we will refund the difference between the old and new prices. This Low Price Guarantee is not insurance and this description is not an insurance policy or contract for insurance. The following additional terms apply for members joining after August 1, 2003: Low Price Guarantee claims for camcorders and video games must be made within fifteen (15) days of purchase. Refunds are limited to a maximum of three (3) claims on any one type of item per member per twelve-month period and up to a maximum of $1,000 per member per twelve-month period. "Exactly the same" means an item with the same model number, manufacturer's U.S. warranty and accessories as the item you purchased from Netmarket. Pagers, cellular phones, motorized vehicles, demonstration models, items purchased at limited sales, one-of-a-kind items, food products and collectible items are excluded. A dated print ad from a retailer, URL, or printout must be submitted. Only these items will be considered as proof for the refund. Calculation of the amount of your credit will not take into account sales tax and shipping. Please allow two (2) weeks for a response to your claim. Further details on obtaining a refund are included in the membership welcome kit. (c) Member savings are determined by calculating the difference in price when shopping as a member versus a non-member. We compute member savings by subtracting member price from non-member price. The pricing difference is the savings you will receive by shopping as a member. (d) Cancellation and Return of Orders: (i) Upon request to cancel a merchandise order on your behalf, Netmarket will promptly refund any money deposited with Netmarket for that order, provided that the product ordered: has not yet been received by the vendor; has not yet been shipped to you by the vendor; or the service ordered has not yet been performed for you. In the event that the order has been processed, the shipment has been sent or performance has occurred, Netmarket will use its reasonable efforts to seek a refund from the vendor involved on a case-by-case basis. Products will be deemed acceptable by you unless Netmarket is notified of your dissatisfaction with the delivered product within sixty (60) working days of the time you receive it. Notebook and handheld computers, non-cellular telephones and digital cameras must be returned within fifteen (15) days of purchase. Members must call a Netmarket customer satisfaction representative at 1-888-696-2753 to receive return instructions. Unauthorized or late returns may be subject to a re-stocking charge up to but not to exceed 15% of the product cost. To avoid a re-stocking charge, please return your merchandise in the original box and packing, including all accessories and the owner's manual. Do not destroy or discard packaging for thirty (30) days. The value of missing accessories will be deducted from the credited amount of a return. Personalized items, opened personal care, household items, pierced earrings, computer software items, computer disks, printer cartridges, phone cards and special order merchandise are not returnable. Certain merchandise may require manufacturer’s service first before the return is allowed. (e) Trilegiant reserves the right to change the terms and conditions of this Agreement and any membership policies at any time without notice. Trilegiant may cancel this Agreement upon written notice and refund of the current-term's membership fee unless the reason for such termination is your failure to pay or your misuse of Netmarket in which event no such refund will be made to you. (f) We reserve the right to limit sales and benefits (including Low Price Guarantee) to resellers.
2. WHO MAY USE – You agree that you will use Netmarket’s services only for your own behalf and for the members of your immediate family residing in your household. You will be responsible for all use of your membership number and must notify Trilegiant immediately of any unauthorized use of your membership number, or the theft or misplacement of your membership number. Merchandise purchased through Netmarket may not be used for resale.
3. LIABILITY – TRILEGIANT AND ITS AFFILIATES SHALL HAVE NO LIABILITY TO YOU AS A SELLER OF ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR ANY DEFECTIVE PRODUCTS, PROVIDED TO YOU THROUGH THE PROGRAM. NEITHER TRILEGIANT NOR ANY OF ITS AFFILIATES MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES SOLD OR INFORMATION DELIVERED OR PROVIDED TO YOU IN CONNECTION WITH THE PROGRAM, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER TRILEGIANT NOR ANY OF ITS AFFILIATES MAKE ANY GUARANTEE OR ANY REPRESENTATION REGARDING THE QUALITY OF, OR ACCURACY OF ADVERTISEMENTS FOR, ANY MERCHANDISE, PRODUCTS, OR SERVICES OFFERED OR PROVIDED BY VENDORS PARTICIPATING IN THE PROGRAM. TRILEGIANT AND ITS AFFILIATES SHALL NOT ASSUME ANY LIABILITY FOR DAMAGES, DIRECT OR INDIRECT, CONSEQUENTIAL OR INCIDENTAL, IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES DESCRIBED HEREIN OR YOUR REQUEST, USE OR ATTEMPTED USE OF SUCH SERVICES. IN NO EVENT SHALL TRILEGIANT'S AND ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT OF THE PROGRAM MEMBERSHIP FEE PAID BY YOU TO TRILEGIANT. NEITHER TRILEGIANT NOR ANY OF ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY DELAY OR FAILURE IN PERFORMANCE OR DELIVERY DUE TO ANY CAUSE BEYOND THEIR CONTROL, INCLUDING DELAY DUE TO UNION DISPUTES OR FACTORY PRODUCTION SCHEDULES. THE TERMS OF THIS SECTION 3 SHALL SURVIVE ANY TERMINATION, CANCELLATION OR EXPIRATION OF THIS AGREEMENT.
4. INDEMNIFICATION - YOU AGREE TO INDEMNIFY AND HOLD HARMLESS TRILEGIANT, ITS AFFILIATES, VENDORS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY'S FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE PROGRAM, THE VIOLATION OF THIS AGREEMENT BY YOU, OR THE INFRINGEMENT BY YOU OR ANY OTHER USER OF THE PROGRAM USING YOUR ACCOUNT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY, OR AS A RESULT OF ANY THREATENING, LIBELOUS, OBSCENE, HARASSING OR OFFENSIVE MATERIAL CONTAINED IN ANY COMMUNICATION SENT BY YOU OR ANY OTHER USER OF THE PROGRAM USING YOUR ACCOUNT.
5. GOVERNING LAW - This Agreement, and the respective rights and obligations of the parties hereunder, shall be governed by, and construed in accordance with, the laws of the State of Connecticut. The terms of this section shall survive any termination, cancellation or expiration of this Agreement.
6. ARBITRATION - You and Trilegiant agree that any claim or dispute ("Claim") between us shall, at the election of either of us, be resolved by binding arbitration administered by the American Arbitration Association under its rules for consumer arbitrations. It is the parties' intent that this arbitration provision be construed broadly, including that this arbitration agreement include any Claims against Trilegiant as well as its corporate affiliates. You agree that, by entering into this Agreement, you and Trilegiant are each waiving the right to a trial by jury or to participate in a class action. At your request, we will pay the first $125 of your arbitration fees. You will be solely responsible for your arbitration fees and costs in excess of $125. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual Claim. YOU AND TRILEGIANT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Trilegiant agree otherwise, the arbitrator may not consolidate more than one person's Claims, and may not otherwise preside over any form of a representative or class proceeding. If the specific provision in the preceding sentence is found to be unenforceable, then the entirety of this arbitration provision in this Section 6 shall be null and void. Notwithstanding any of the foregoing provisions, either party may bring an individual action in small claims court. The parties to this Agreement acknowledge that this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"). Judgment upon any arbitration award may be entered in any court having jurisdiction. The arbitrator shall follow substantive law to the extent consistent with the FAA and shall honor any claims or privileges recognized by law. The terms of this section shall survive any termination, cancellation or expiration of this Agreement.
7. MEMBERSHIP FEE – For your convenience, your membership fee will be automatically billed to the credit or debit card account (or to the related checking account) you designated when you enrolled in Netmarket (designated the billing source), in accordance with the billing terms furnished to you upon your enrollment in Netmarket.
8. RENEWALS – Unless you notify Trilegiant that you do not wish to renew your membership, Trilegiant will automatically renew your membership at the end of each term and bill the then-current renewal fee to the credit or debit card account (or to the related checking account) designated by you when you joined Netmarket. You will be notified of any price increase and may cancel your membership if you do not want to continue to be billed at the new price.
9. RIGHT TO CANCEL MEMBERSHIP – (a) You have the right to cancel this Agreement at any time. You may cancel this Agreement by calling 1-888-696-2753 or writing to: Netmarket, P.O. Box 41279, Nashville, TN 37204, Attention: Membership Department. Cancel this Agreement during your x-day trial, and you will owe nothing; at any time thereafter you will owe nothing further. You will remain liable for any other fees, purchases or charges to be paid pursuant to this Agreement. (b) If Trilegiant determines it is unable to bill the membership fee due hereunder to your designated billing source, Trilegiant shall have the right to terminate this Agreement in which event you will no longer have access to any of the Netmarket benefits. In addition to Trilegiant's termination rights set forth above, Trilegiant may elect in its sole discretion to keep this Agreement in effect, but suspend your access to all of the Netmarket benefits, until such time (if any) as Trilegiant is able to bill the membership fee due hereunder to your designated billing source.
10. CONFIDENTIALITY - All information and software provided through the Program is and shall remain the sole and exclusive property of Trilegiant. You shall not publish, broadcast, retransmit or otherwise reproduce the information or software in any medium. Any violation of this restriction is an infringement of copyright or proprietary rights in the information and software.
11. TERMINATING THE PROGRAM’S WEB SITE - Trilegiant retains the right at any time and from time to time to discontinue or modify, or temporarily or permanently terminate, the Program’s web site, www.netmarket.com (the “Program’s Web Site”), (or any part thereof) with or without notifying you. If Trilegiant discontinues the Program’s Web Site, Trilegiant will not be liable to you or any third party for such discontinuance, modification or termination.
12. VIRUSES; DESTRUCTION OF THE PROGRAM’S WEB SITE - By participating on the Program’s Web Site, you agree to not upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You also agree to not interfere with the servers or networks connected to the Program’s Web Site or to disobey any requirements, procedures, policies or regulations of networks connected to the Program’s Web Site. ANY ATTEMPT BY A USER TO DELIBERATELY DAMAGE THE PROGRAM’S WEB SITE OR TO UNDERMINE THE LEGITIMATE OPERATION OF SUCH SITE IS A VIOLATION OF CRIMINAL AND CIVIL LAWS; IF SUCH AN ATTEMPT IS MADE, TRILEGIANT RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES FROM THE USER TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CRIMINAL PROSECUTION. Trilegiant assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property due to your access to, use of, or browsing in the Program’s Web Site or your downloading of any materials, data, text, images, video or audio from such site.
13. TECHNICAL ISSUES - By utilizing the Program, you acknowledge that technical processing and transmission of the Program’s Web Site, including the information you enter, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. TRILEGIANT MAKES NO WARRANTY THAT THE FUNCTIONS OF THE PROGRAM’S WEB SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE OR THAT ANY ERRORS ON SUCH SITE WILL BE CORRECTED. TRILEGIANT ASSUMES NO RESPONSIBILITY FOR (I) ANY PROBLEMS RELATING TO TECHNICAL MALFUNCTION OR DELAYS OF TELEPHONE NETWORKS OR LINES, COMPUTER ON-LINE SYSTEMS, SERVERS, PROVIDERS, COMPUTER EQUIPMENT, OR SOFTWARE, (II) FAILURE OF ANY E-MAIL TO BE RECEIVED DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION OF THE INTERNET, TRILEGIANT SITES, OR ANY COMBINATION THEREOF, AND/OR FOR (III) ANY INJURY OR DAMAGE TO USERS’ COMPUTERS OR ANY OTHER COMPUTER RESULTING FROM DOWNLOADING ANY MATERIALS RELATING TO THE PROGRAM’S WEB SITE.
14. ELECTRONIC COMMUNICATIONS: Trilegiant, at its option, may communicate with you regarding the Program by mail, by telephone or by electronic communications. Trilegiant may communicate with you electronically by means of electronic mail to the e-mail address you provide when you sign up for the Program and/or postings to the Program’s website. Trilegiant may communicate electronically to you the following types of communications: Membership Terms and Conditions (including any amendments thereto), notices or disclosures regarding the Program, payment and billing authorizations, and other matters relating to your use of the Netmarket service.
You may contact Trilegiant at the telephone number and address listed above to request another electronic copy of an electronic communication without a fee. You may also request a paper copy of the terms of the payment authorization without a fee. You may contact Trilegiant at the same telephone number or e-mail address listed above to update your contact information or to withdraw your consent to receive electronic communications. Trilegiant reserves the right to terminate your use of the Program if you decline or withdraw your consent to receive electronic communications from Trilegiant.
You will need the following software and hardware to access electronic communications sent to you by Trilegiant as part of your Program membership: IBM or MAC compatible computer, Internet access, a working e-mail address, and Internet Browser (Internet Explorer version 5.2 or a later version). To retain copies of electronic communications, you must print a copy using a printer attached to your computer, or save an electronic copy to your computer's disk or other storage device.
Netmarket is a service provided by Trilegiant Corporation in conjunction with Trilegiant Insurance Services, Inc. The service may be modified or improved at any time and without prior notice. Netmarket is a registered service mark of Affinion Publishing, LLC.
© 2015, Trilegiant Corporation