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Terms of Use

Terms of Use

These terms are effective as of June 8, 2016.

Please read carefully! These Terms of Use set forth important details about your relationship with Sears, including the rights you grant to Sears, restrictions on how you can use this web site, and our agreement to resolve disputes via binding arbitration without resort to class action litigation.

This web site or mobile application (the "Sears Site") is owned and operated by Sears Holdings Management Corporation, on behalf of itself and for its subsidiaries and affiliates (collectively, "Sears," "We" or "Us").By accessing, using, registering for, or purchasing merchandise from the Sears Site, you agree to be bound by these terms of use (the "Terms"). All visitors to and users of any aspects of the Sears Site (collectively,"Users") are bound by these Terms. Sears reserve the right to modify the Terms at any time without prior notice to you, and therefore, Sears recommends that you read these Terms carefully each time you use the Sears Site. By signing in or registering to use the Sears Site, you accept all the provisions of these Terms. If you are unwilling to be bound by these Terms, you should not access, use, register for, or purchase merchandise from the Sears Site.

Please note that the guidelines, policies and other terms and conditions of service and use of other web sites affiliated with Sears may vary from these Terms. If a Sears affiliate has separate terms of use for its website(s), or a separate agreement governing its use, the provisions of the affiliate site's terms shall control in the event of a conflict with these Terms. Except as supplemented or superseded as described herein, these Terms apply to the entire network of Sears Sites, and control your use thereof. Except in the event of a conflict, as described int his paragraph, these Terms apply in addition to any other policies or agreements that may apply to you related to any contests, sweepstakes, rewards or loyalty programs, surveys, transactions or purchases of goods or services, or other engagements you have with the Sears Site.


Eligibility

The Shop Your Way Site is not targeted towards, nor intended for use by, anyone under the age of 18. By using the Shop Your Way Site, you represent and warrant that you are 18 years of age or older. If you are not at least 18 years of age, do not access, use, register or purchase merchandise on the Shop Your Way Site. In the event we become aware you are under 18, we will terminate your registration. Some merchandise offered forsake on the Shop Your Way Site may be restricted for sale to persons of a certain age(depending on the state or jurisdiction of residence) and we will require you to submit or provide valid proof of your age before purchasing or receiving age-restricted merchandise.

Privacy

Sears believes strongly in the protection of the privacy of Users and our customers. Our data collection and use practices are set forth in our Privacy Policy, which we encourage you to review.

Changes to the Sears Site

You agree and understand that the Sears Site, including any and all features available via the Sears Site and any User Content (as defined below), may be modified by us, in our sole discretion, at any time without prior notice. Unless expressly stated otherwise,any new features, new services, enhancements or modifications to the Sears Site implemented after your initial access to the Sears Site shall be subject to these Terms. We do not actively monitor, and undertake no obligation to monitor or modify, any reviews, information, content, data, text, links to third party websites, User profile information, sounds, photographs, graphics, video,messages or other materials uploaded or made available via the Sears Site by or on behalf of any User (all such items provided by or on behalf of Users,collectively, "User Content"). Nonetheless, we reserve the right to investigate and take appropriate action, including legal action, in our sole discretion, against anyone who violates these Terms, including without limitation,by removing any User Content posted in violation of these Terms, terminating the registration of such violators or blocking such violators' use of the Sears Site.

Registration

In order to access some features of the Sears Site, you may be required to register and to select a password and user name, which shall consist of an email address you provide("User ID"). To register, use the registration form available by clicking the "register" link near the top of any page on the Sears Site. By registering, you will also be enrolled as a member in the Shop Your Way program and must agree to the Program Terms and Conditions for Membership in the Shop Your Way Program available here.If you register, you agree to provide us with accurate and complete registration information, and to inform us immediately of any updates or other changes to such information. For example, you may not: (i) enter, select or use a false name or an email address owned or controlled by another person with the intent to impersonate that person, or (ii) use as a User ID a name subject to any rights of a person other than yourself without appropriate authorization.Failure to comply with the terms of this paragraph shall constitute a material breach of these Terms, which may result in immediate termination of your account. In addition, we reserve the right to refuse registration of, or cancel, a User ID in our discretion.

Security

You are responsible for maintaining the confidentiality of your password and you are fully responsible for all activities that occur under your User ID and password, whether or not you authorize such activities. Any User ID and password for your access to the Sears Site shall be for your personal, non-commercial use only. You agree to(a) immediately notify us of any unauthorized use of your User ID or password of which you become aware, and (b) ensure that you exit from your account at the end of each session.

Use of the Sears Site/License/Services

Sears grants you a limited license to make personal use of the Sears Site. This license grant does not include: (a) any resale or commercial use of the Sears Site or content therein;(b) the collection and use of any product listings or descriptions; (c) making derivative uses of the Sears Site and its contents; or (d) use of any data mining, robots, or similar data gathering and extraction methods on the Sears Site. Except as noted above, Users of the Sears Site are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent,trademark, copyright, or proprietary right of Sears or any third party.

You may not use, frame or utilize framing techniques to enclose any Sears trademark, logo, content or other proprietary information (including the images found at this Site, the content of any text or the layout/design of any page or form contained on a page) without Sears' express written consent. Further, you may not use any meta tags or any other "hidden text" utilizing a Sears name, trademark, or product name without Sears' express written consent.

Any unauthorized use of the Sears Site will terminate the permission or license granted by these Terms and may violate copyright laws, trademark laws (including trade dress), and communications regulations and statutes. All violators will be prosecuted to the fullest extent of the law.

Permitted uses of the Sears Site include soliciting opinions, ideas and other input from Users; sharing ideas and opinions with other Users, searching the Sears Site for User Content(as defined herein) and business or product information, and purchasing goods or services from the Sears Site for personal use, not for resale. You may also invite people you know to join the Sears Site. You acknowledge and agree that we do not control the User Content posted to the Sears Site, or any links to other websites, including the content of any messages posted by Users, and that we do not guarantee the accuracy, integrity or quality of any User Content. You further understand and agree that we do not necessarily endorse, support,sanction, encourage, verify, or agree with the comments, opinions, or statements or other User Content posted on or otherwise displayed on or transmitted via the Sears Site. All User Content, including advice and opinions posted by Users, comprises the views and responsibility of those who post such User Content, and does not necessarily represent the views of Sears. You understand that, by using the Sears Site, you may be exposed to User Content that is offensive, indecent or objectionable.

Restrictions on Rights to Use

Without limiting the generality of any other provisions of these Terms, you agree you shall not (and you agree not to allow any other individual or entity using your User ID to):

· download,modify, reproduce, adapt, translate, reverse engineer, create derivative works based upon, publicly display, sell, rent, license, or in any way commercially exploit any portion of the Sears Site, except and to the extent expressly permitted under these Terms;

· remove any copyright, trademark or other proprietary rights notice contained in or on the Sears Site;

· use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Sears Site;

· collect any information about other Users (including usernames and/or email addresses)for any purpose other than to solicit and/or share reviews with other Users;

· reformat or frame any portion of any Web pages that are part of the Sears Site;

· create user accounts by automated means or under false or fraudulent pretenses;

· create or transmit to other Users unsolicited electronic communications, such as"spam," or otherwise interfere with other Users' enjoyment of the Sears Site;

· submit to the Sears Site any content that falsely states or implies that such content is sponsored or endorsed by us;

· transmit or upload to the Sears Site any item containing or embodying any virus, worm,defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Sears Site, any other Web site, or any computer or other device or system, or the enjoyment of the Sears Site by any User;

· use the Sears Site to violate the security of or gain unauthorized access to any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes);

· submit to the Sears Site any content that is unlawful or facilitates, constitutes,promotes or encourages illegal activity; or otherwise use the Sears Site to transfer or store illegal material, including any material deemed threatening or obscene;

· copy or store any User Content offered on the Sears Site other than for your personal, non-commercial use;

· take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large data or traffic load on the Sears Site or the IT infrastructure used to operate and make the Sears Site available;

· use the Sears Site and/ or any User Content, intentionally or unintentionally, to violate any applicable local, state, federal or international law; or

· collector store personal data about other Users in connection with the prohibited activities described in this paragraph.


User Content Posted on the Sears Site

Subject to the following restrictions, registered Users may post, upload or transmit User Content on the Sears Site. Without limiting the generality of any other provisions of these Terms, you agree:

· You may not post, upload or transmit any User Content that (i) infringes or otherwise violates any copyright, patent, trademark, trade secret, publicity or privacy right or other proprietary right of any party, or (ii) is proprietary to a third party, without such third party's prior written consent.

· You understand and agree that we do not monitor but reserve the right to review and delete any User Content, including User Content that, in our sole discretion,(i) violates these Terms, (ii) is offensive or illegal, or (iii) may harm,violate the rights of or threaten the safety of any User and/or any other individual or entity.

· You are solely responsible for any User Content you post, publish or display on the Sears Site or transmit to Users. We reserve the right, but undertake no obligation, to monitor disputes between you and any other User, or any other entity or individual, in connection with the Sears Site. You are solely responsible for the resolution of any disputes that arise between you and any other User or any other entity or individual.

· You will post only User Content you believe in good faith to be true and accurate,and you will not post to the Sears Site any User Content that is false,inaccurate, misleading or fraudulent.

· If you are employed by Sears or if you have received or will receive any compensation or consideration from Sears, including but not limited to product samples and Shop Your Way points, directly or indirectly in exchange for any opinion,endorsement, review or critique that you post, upload or transmit on the Sears Site, you must clearly and conspicuously disclose the nature of your connection to Sears.

· By uploading User Content to the Sears Site, you represent and warrant that you have all rights and authority necessary to grant, and do hereby grant: (i)Sears, its Affiliates, our respective contractors, and our business partners,an irrevocable, perpetual, non-exclusive, royalty-free, fully sublicensable,fully paid up, worldwide license and right to use, copy, publicly perform,digitally perform, publicly display, and distribute such User Content and to prepare derivative works based on, or incorporate into other works, such User Content, with or without attribution; and (ii) subject to the restrictions set forth in these Terms, all Users an irrevocable, perpetual, non-exclusive,royalty-free license and right to use such User Content for each such User's personal, non-commercial use. You further represent and warrant that you did not work with parties in conjunction with your User Content who are: a)represented under contract (e.g., by a talent agent or manager) that would limit or impair our ability to display your User Content in any media form; b)subject to an acting or modeling contract that would make your/their appearance in the User Content a violation of any third-party rights; or c) under any other contractual relationship, including but not limited to guild and/or union memberships, that may prevent us from being able to use the User Content worldwide in all media in perpetuity on a royalty-free basis, without any payment or fee obligations. You hereby irrevocably waive and assign to us any and all so-called moral rights or "droit moral" you may have in or with respect to any User Content you post to the Sears Site.

· You understand that Sears may be working on the same or a similar idea or concept to any ideas, expression of ideas or other materials you submit within your User Content, or that Sears may already know of such an idea or concept from other sources, or that Sears may simply wish to develop this (or a similar idea) on its own or it may have taken/will take some other action.

· In return for your access to and use of the Sears Site, you acknowledge that you have read, understand and agree to the terms enumerated below with respect to any User Content you submit on the Sears Site:

· To the best of your knowledge, the User Content represents your own original work, you have all necessary rights to disclose the User Content to Sears and in doing so Sears' use of the User Content will not infringe upon any other individual's or entity's rights.

· You understand that disclosure of your User Content to Sears does not establish a confidential relationship or obligate Sears to treat the User Content (or any related materials) as secret or confidential.

· You understand that Sears has no obligation, either express or implied, to develop or use your User Content and that no compensation is due to you or anyone else for any inadvertent or intentional use of User Content, or other content derived from your User Content. You understand that Sears assumes no obligation with respect to any User Content. For your own protection, we assume that you will rely on whatever patent protection you may want to secure, or have already secured, in your idea. In the absence of a separate formal contact, your rights shall be limited to those existing under the patent laws of the United States.

· If your User Content is the subject of a pending or issued patent, you have disclosed or will disclose that fact to Sears.

· The following is a partial list of the kind of User Content that is illegal and/oris prohibited on or through the Sears Site. You may not post any User Content that:

· is patently offensive to Users, such as content that promotes racism, bigotry,hatred or physical harm of any kind against any group or individual;

· harasses or advocates harassment of another person or User;

· promotes illegal activities or conduct that is abusive;

· is threatening, obscene, defamatory or libelous;

· is pornographic or sexually explicit in nature; or

· seeks,or recommends providers of, material that exploits people under the age of 18in a sexual or violent manner, or seeks or recommends providers that solicit personal information from anyone under 18.

Sears retains the right to remove any User Content from its websites that in Sears' sole discretion violates any of the restrictions or guidelines defined in these Terms.


Copyrights

If you believe any User Content or any other aspect of the Sears Site infringes your copyright, you should send written notice of copyright infringement to our designated copyright agent at the address given below. Your notice must meet the requirements of the Digital Millennium Copyright Act (as required under 17U.S.C. 512) by providing the following information:

· A description of the copyrighted work that you claim has been infringed;

· A description of where the material that you claim is infringing is located on the Sears Site;

· Your address, telephone number and email address;

· A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;

· A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the copyright at issue orare authorized to act on the copyright owner's behalf; and

· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.

Our designated copyright agent for notice of claims of copyright infringement on the Sears Site may be reached at the following address:

Copyright Agent
Sears Holdings Management Corporation
3333 Beverly Road
Hoffman Estates, IL 60179

Or by email: shmcdmca@searshc.com

Counter-Notice

If you believe that your User Content that was removed (or to which access was disabled) pursuant to a Digital Millennium Copyright Act notice we received is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to law, to post and use the content in your User Content,you may send a counter-notice containing the following information to the Copyright Agent at the address listed above:

· Your physical or electronic signature;

· Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

· A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

· Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Cook County, Illinois, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Sears may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider,member or user, the removed content may be replaced, or access to it restored,in 10 to 14 business days or more after receipt of the counter-notice, at Sears' sole discretion.

Ownership

As between you and us, the Sears Site, including all photographs, images, text, graphics, icons, audio clips, software and other aspects thereof (excluding User Content), all improvements or modifications thereof, all derivative works based thereon, and the collection, arrangement, and assembly of the Sears Site, including all copyrights, trademarks, and other intellectual property or proprietary rights in the foregoing, are owned by us or our licensors. As between you and us,subject to any licenses and rights expressly granted herein, any User Content posted by you is owned by you. Nothing contained in these Terms shall be deemed to grant to you or any other User any rights, title or interest in or to any copyright, trademark or other proprietary right of ours or any of our licensors.

Any trademarks, service marks, and other marks and indicators of source or origin that are displayed on the Sears Site are the proprietary property of Sears or their respective owners, as applicable. None of such marks may be used in connection with any other product or service in a manner that is likely to cause confusion among consumers, or to disparage or discredit the owner of such mark or its affiliates. Any trademarks of third parties that appear on the Sears Site are the property of their respective owners, who may or may not be affiliated with,connected to, or sponsored by us. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the Sears Site without the express written permission of the trademark owner.

Nothing in these Terms shall be deemed to grant to you or any other User any license or right in or to any patent, copyright, trademark, trade secret or other proprietary right of Sears.


Third Party Advertisements and Links to Third Party Sites

We may display advertisements from third parties on the Sears Site, such as banner advertisements, pop-up texts, and links to third party sites. We are not responsible for the content of such advertisements or links, or for any products, services or other materials relating to such advertisements, any linked site, or any link contained in a linked site. The display of any advertisement or link does not imply endorsement by us of the advertisement or linked site or any content therein.


Returns and Cancellations

Orders you submit online may be cancelled until they are processed. Orders with a status of"Processing" may not be cancelled, and you must wait until your receive the merchandise in order to return it. Order status can be checked online by logging into your user account. All returns of merchandise are subject to the Sears Returns & Cancellations policy. Please click on the policy for more details. Products fulfilled by third party merchants, such as items sold by Sears Marketplace sellers, are subject to the third party merchant's individual returns and cancellations policies. If you are purchasing an item from a third party merchant, please see the third party merchant's page for details.


Placing an Order

For details on how to place orders on the Sears Site, please click here. Sears currently ships to locations within the 50 United States via UPS, and APO/FPO addresses via USPS. Sears currently ships to some international locations via a third party partner. For details on international shipping, please see Sears International Shipping policy.

To see Sears' shipping and delivery policies in more detail, including product specific guidelines, please see the Sears Shipping & Delivery policy. Sears offers optional store pickup for items ordered online, according to the Ship to a Sears Store guidelines. Sears does not currently ship to Puerto Rico, Guam or the US Virgin Islands. Some over sized items requiring freight delivery cannot be shipped to Alaska or Hawaii. Sears gift cards are shipped via USPS within the continental United States, as well as Alaska, Hawaii and Puerto Rico. The risk of loss and title for all merchandise ordered on the Sears Site passes to you when the merchandise is delivered to the shipping carrier. You may purchase merchandise from the Sears Site by using any one of the options listed in “Payment Options” section of our How to Order page. Sears reserves the right to change its payment procedures at any time without prior notice to you.

Sears charges sales tax for merchandise ordered on the Sears Site based on the applicable state sales tax rate of the location to which the order is being shipped.

Some products offered through the Sears Site may be fulfilled by third-party sellers, such as Sears Marketplace items. Third-party/Marketplace sellers' shipping and delivery policies may differ from those offered by Sears. When ordering a product sold by a third-party or Marketplace seller, you should check their page for details on their shipping and delivery policies. Sears is an agent of third-party/Marketplace sellers for the sole and express purpose of receiving funds as payment for their merchandise sold on the Sears Site, and transmitting those funds to the third party/Marketplace seller. You agree that Sears' receipt of funds on behalf of a Marketplace seller is tantamount to receipt of the funds directly by the Marketplace seller, even if such funds are not subsequently remitted to the Marketplace seller for any reason; when you tender payment to Sears for third-party/Marketplace merchandise, you have fulfilled your obligation to purchase such merchandise.

You should contact third-party/Marketplace sellers directly via the contact information provided for any inquiries or customer service issues related to their merchandise, such as returns, or warranty issues. As payment agent, Sears will refund any money to you for returns of third-party/Marketplace merchandise via the payment method used to purchase the merchandise, after we receive notice from the third-party/Marketplace seller that you have returned merchandise to them in accordance with their return policy.

Sears reserves the right to refuse or cancel any orders placed for products and/or services which the sale or use of such product and/or service in your state or jurisdiction is restricted or prohibited.

To properly serve all customers, Sears reserves the right to limit quantities of orders to only one(1) of any such item(s) purchased. Sears further reserves the right to cancel multiple orders of any limited quantity item purchased by the same User and/or shipped to the same delivery address. Commercial use of the Sears site is expressly prohibited. Sears reserves the right to cancel any orders that it determines in its sole discretion are made for commercial resale purposes.

Sears may display advertising prints for products sold through a Sears Site. Sears attempts to display the colors of the products shown on the Sears Site as accurately as possible. However, we cannot guarantee that the color you see matches the product color, as the display color depends, in part, upon the monitor used by you.

Pricing errors may occur on the Sears Site from time to time, on items sold by Sears, or items sold by third party sellers on Sears Marketplace. Sears attempts to correct all pricing errors as soon as they are discovered, or as soon as Sears receives notice of an error. Sears reserves the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Sears. Any payments you make to Sears for orders that are cancelled due to pricing errors will be refunded.


Changes to Terms

We reserve the right to make changes at any time to these Terms. Any modifications to these Terms will be effective upon posting. You agree to review the Terms periodically so that you are aware of any modifications. Your continued use of the Sears Site after any modifications indicates your acceptance of the modified Terms.

Confidential Arbitration

You agree that by entering into these Terms, you and Sears are each waiving the right to go to court to assert or defend your rights under these Terms and the ability to participate in a class action.

ALL DISPUTES BETWEEN YOU AND SEARS RELATING IN ANY WAY TO THE SEARS SITE (INCLUDING WITHOUT LIMITATION ORDERS MADE FROM THE SEARS SITE, SEARS’ ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS (TEXT) MESSAGES SEARS SENDS TO YOU, OR RELATING TO THE COLLECTION OR USE OF ANY INFORMATION ABOUT YOU IN CONNECTION WITH THE SEARS SITE), THESE TERMS, OR YOUR STATUS AS A USER WILL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN THE FEDERAL JUDICIAL DISTRICT IN WHICH YOU RESIDE, EXCEPT TO THE EXTENT THAT YOU HAVE, IN ANY WAY, VIOLATED OR THREATENED TO VIOLATE ANY COMPANY INTELLECTUAL PROPERTY RIGHT.

Any User who intends to seek arbitration must first send to Sears, by certified mail, a written Notice of Dispute ("Notice"). The Notice must be mailed to 3333 Beverly Road, Hoffman Estates, IL, Attn: Arbitration Intake and copied to Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, IL 60179, Attn:General Counsel. The Notice shall describe the nature and basis of the claim or disputes and the specific relief sought. If we cannot reach an agreement to resolve the claim within thirty (30) days after the Notice is received, either party may commence arbitration.

All arbitrations required by these Terms will be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award is binding and may be entered in any court of competent jurisdiction. No arbitration brought under, or with respect to, the Sears Site (including, without limitation, any Sears advertisement or disclosure, any email or mobile SMS (text) message that Sears sends to you, the collection o ruse of any information about you in connection with the Sears Site), these Terms or your status as a User is to be joined to an arbitration involving any other party subject to these Terms whether through class arbitration proceedings or otherwise. Unless Sears and you agree otherwise, the arbitrator may not consolidate more than one User’s claims, and may not otherwise preside over any form of a representative, private attorney general or class proceeding.

For arbitration claims you assert against Sears in accordance with this section (but not for any arbitration claim against you) Sears will pay all of your administrative,hearing, and arbitrator’s fees and costs for the arbitration (but not the fees,expenses, and costs of your lawyers, experts, or witnesses) in excess of any filing fee you would have been required to pay to file the claim as a lawsuit in a state or federal court (whichever is greater) in the judicial district in which you reside. Sears will pay its, and you will pay your,lawyers’, experts’, and witness fees, expenses, and costs with respect to all claims during the arbitration. The arbitrator may award money or equitable relief in favor of only the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Similarly, an arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself. To reduce the time and expense of the arbitration, the arbitrator will not provide a statement of reasons for his or her award unless requested to do so by all parties.

YOU WILL NOT AGREE TO ACT AS A REPRESENTATIVE OR A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT AGAINST SEARS IN ANY COURT, OR IN ARBITRATION, WITH RESPECT TO ANY CLAIMS RELATING IN ANY WAY TO THE SEARS SITE(INCLUDING WITHOUT LIMITATION ORDERS MADE FROM THE SEARS SITE, SEARS’ ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS (TEXT) MESSAGES SEARS SENDS TO YOU, OR RELATING TO THE COLLECTION OR USE OF ANY INFORMATION ABOUT YOU IN CONNECTION WITH THE SEARS SITE), THESE TERMS, OR YOUR STATUS AS A USER. THIS SECTION (CONFIDENTIAL ARBITRATION) WILL SURVIVE THE TERMINATION OF THE RELATIONSHIP BETWEEN YOU AND SEARS.

Sears or you may seek injunctive relief in any state or federal court in Chicago, Illinois, USA, and Company and you consent to the exclusive jurisdiction and venue in the state and federal courts in Chicago, Illinois, USA for injunctive relief purposes.


Applicable law

By visiting the Sears Site,you agree that the laws of the State of Illinois, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and Sears.


Miscellaneous

No agency, partnership,joint venture, or employment relationship is created as a result of these Terms, and you do not have any authority of any kind to bind Sears in any respect whatsoever. We may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Sears Site.These Terms, which shall be deemed accepted by you upon your use of the Sears Site, constitute the entire agreement among you and Sears regarding use of the Sears Site. Sears' failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of the enforcement of such right or provision.If any provision of these Terms is deemed to be illegal or unenforceable, the remainder of the Terms shall be unaffected and shall continue to be fully valid, binding and enforceable. These Terms are not assignable, transferable or sublicensable by you, except with our prior written consent. The headings in these Terms are for convenience only and have no legal or contractual effect. These Terms include and incorporate by reference the Privacy Policy for the Sears Site and any notices regarding the Sears Site.


Contact and Violations

Please contact us with any questions regarding these Terms. Please report any violations of the Terms to webmaster@customerservice.sears.com.

For claims or requests for arbitration, see the Confidential Arbitration section of these Terms of Use.


Patents

One or more patents may apply to this Web site, including without limitation: U.S. Patent Nos.5,761,649, 5,970,474, 6,330,592, 7,963,441, 8,015,068, 8,301,504, D619,603,D619,604, D619,605, D619,06, D620,021, and D644,649.


SYW Developer Terms

1. Introduction.

The effective date of these Developer Terms is July 27, 2012 (“Developer Terms”).

Any person (“Developer”) that accesses, registers or uses the ShopYourWay.com Platform for developers or creates an application (“Application”) available for use in connection with the ShopYourWay.com website (“SYW Website”) which is operated and managed by Sears Holdings Management Corporation (“SYW”) (collectively, the “SYW Platform”) agrees to be bound by these Developer Terms.

SYW reserves the right to modify theses Developer Terms at any time without prior notice to Developer. Any modifications to the Developer Terms will be effective upon posting. Developer agrees to review the Developer Terms periodically to be aware of any modifications. Developer’s continued use of the SYW Platform after any modifications indicates acceptance of the modified Developer Terms. Therefore, SYW recommend that Developer read these Developer Terms carefully each time Developer visits the SYW Platform.

Please note that the guidelines, policies and other terms and conditions of service and use of other web sites affiliated with SYW may vary from these Developer Terms.

If Developer is unwilling to be bound by these Developer Terms, Developer should not access, register, use or create or develop an Application on the SYW Platform.


2. Other Policies and Procedures.

These Developer Terms are subject to the following other policies and procedures of SYW:

(a) SYW Terms of Services; and

(b) Sears Holdings Privacy Policy, California Privacy Policy and Children’s Privacy Policy


3. Developer Applications Generally.

3.1 Eligibility. The SYW Platform is not targeted towards, nor intended for use by, anyone under the age of 18. By using the SYW Platform, Developer represents and warrants that he or she is 18 years of age or older.

3.2 Developer Registration. In order to access the SYW Platform, Developer will be required to register and to select a password and user name, which shall consist of an email address and a screen name (“User ID”). Developer agrees to provide accurate and complete registration information, and to inform SYW immediately of any updates or other changes to such information. With respect to registration to the SYW Platform, Developer may not: (a) enter, select or use a false name or an email address owned or controlled by another person with the intent to impersonate that person, or (b) use as a User ID a name of another person without appropriate authorization. Failure to comply with the terms of this paragraph shall constitute a material breach of these Developer Terms, which may result in immediate termination of Developer’s account. In addition, SYW reserves the right to refuse registration of or cancel a User ID and account in our discretion. Developer shall be responsible for maintaining the confidentiality of the User ID and password, and Developer is fully responsible for all activities that occur under that User ID and password, whether or not Developer authorizes such activities. Developer agrees to (i) immediately notify SYW of any unauthorized use of a User ID or password of which Developer become aware, and (ii) ensure that Developer logs-out of its account at the end of each session.

3.3 Developer Confidentiality. Developer agrees that, as between Developer (and those acting on behalf of Developer) and SYW, any and all non-public application protocol interfaces (“APIs”), other “Software” (as defined below), reports, research, materials, data or other information viewed, accessed or provided in connection with APIs and the SYW Platform, including information regarding SYW, its other developers and its users, will be deemed and treated by Developer as confidential information of SYW (“SYW Confidential Information”). Developer shall not disclose such information to any third party without prior written approval by SYW; provided that Developer may, without SYW’s approval, share such SYW Confidential Information with third parties that Developer has hired to develop Applications on its behalf solely for purposes of developing such Application (each a “Sub-Developer”); provided Developer has required such third parties to agree to these Developer Terms including the obligations of confidentiality. Further, Developer shall be responsible for: (a) ensuring that each such Sub-Developer complies with these Developer Terms, and (b) any act or omission of each such Sub-Developer(s). Use of Data is subject to the additional terms set forth herein.

3.4 Developer Application Configuration. In order to provide an Application on the SYW Platform, Developer will have to configure an Application in accordance with the most recent API guidelines (“API Guidelines”) published by SYW from time to time.


4. Developer Application Licenses.

4.1 SYW Platform APIs. The APIs and any other software provided or made available by SYW, its Affiliates or its/their respective employees, agents, contractors or representations (collectively “Personnel”), necessary to create and develop an Application on the SYW Platform (collectively, “Software”) are licensed to Developer under these Developer Terms. Developer acknowledges and agrees that the Software is owned by SYW. Subject to the terms and conditions of this Agreement, SYW grants to Developer a limited term, non-exclusive, non-transferable, non-sublicensable license to use the Software solely to create and develop applications on the SYW Platform.

4.2 Restrictions on Use of APIs. Developer shall not, directly or indirectly, or permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; (b) modify, translate, or create derivative works based on the Software; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Software; (d) use the Software on behalf of any third party other than registered SYW users (e.g., for timesharing, service bureau or other purposes); (e) remove any proprietary notices from the Software or any other materials furnished or made available hereunder; (f) publish or disclose to third parties any evaluation of the Software (unless such restriction is otherwise prohibited by law); or (g) use the Software in automatic, semi-automatic or manual tools designed to create virus signatures, virus detection routines, or any other data or code for detecting malicious code or data.

4.3 Mobile Developer Applications. Developer agrees that, as between Developer (and those acting on behalf of Developer) and SYW, any mobile software development kits (“SDKs”) distributed by SYW are owned or licensed by SYW.


5. ShopYourWay.com Rewards.

Applications that are games must use “ShopYourWay.com Rewards Points” as their sole and exclusive payment method for all virtual goods and currencies made available to users within the game. Developers who wish to issue “ShopYourWay.com Rewards Points” will be required to sign a separate agreement with SYW. All other payment options are prohibited within games that are Applications unless they use ShopYourWay.com Rewards Points rather than directly through that payment option. By “Payment Method” SYW means any method that allows a user to complete a transaction where the user receives virtual currency or virtual goods in a game that is an Application in exchange for anything of value, including by exchanging monetary value for virtual currency or virtual goods, whether directly at the time of purchase or via any previous transaction such as the user’s earlier purchase of a prepaid gift card or electronic code. In-game rewards of virtual currency or virtual goods earned by users through game-play activity alone are exempt from this definition.


6. Charges.

6.1 Payment Account / Processor. These Developer Terms cover Applications that are distributed for free or for a charge. In order to charge for an Application, the Developer must use a payment process pre-approved by SYW (which may include Developer agreeing to additional terms and conditions required by SYW).

6.2 Pricing and Taxes. Developer has the right to establish any or no charge for an Application. The charge set for an Application will determine the amount of payment Developer will receive. Developer is responsible for determining if an Application is taxable and the applicable tax rate. Developer is responsible for remitting taxes to the appropriate taxing authority.


7. Applications Purposes and Restrictions.

7.1 General Compliance.

(a) Developer shall not violate any laws, rules, regulations or the rights of any individual or entity, including any privacy laws, rule, regulations, and shall not expose SYW or any SYW Website users to harm or legal liability as determined by SYW in our sole discretion. In particular Developer will (if applicable): (i) comply with the Video Privacy Protection Act (VPPA), and (ii) obtain any opt-in consent necessary from users so that user data subject to the VPPA may be shared on the SYW Website. Developer represents that any disclosure to SYW will not be incidental to the ordinary course of Developer’s business.

(b) Developer will not violate any of the policies or procedures of the SYW Platform, including that Developer will not collect User IDs or passwords from the SYW Website. Developer must not include functionality that proxies, requests or collects User IDs, passwords or information regarding payment methods.

(c) Developer shall not circumvent (or claim to circumvent) our intended limitations on core features and functionality.

(d) If Developer offers a service for a user that integrates user data into a physical product (such as a scrapbook or calendar), Developer must only create a physical product for that user’s personal and non-commercial use.

(e) Nothing under these Developer Terms grants Developer any permission to use any trademarks or service marks (including logos or slogans), copyrights or other intellectual property rights of SYW.

(f) Developer shall not use or make derivative use of SYW icons, or use terms for SYW features and functionality, if such use could confuse users into thinking that the reference is to SYW features or functionality.

(g) Developer must follow the guidelines set forth in most recent SYW Branding Guidelines published by SYW from time to time.

(h) Developer will not promote an application so that it falsely creates an association between SYW and Developer or otherwise falsely misleads users into believing there is an association between SYW and Developer.

(i) Developer must not: (I) include advertisements or promotions in any Application, (II) cross-promote any application (or version of any application) not available on the SYW Platform, or (III) provide web search functionality in content distributed through the SYW Platform.

7.2 Technical Compliance.

(a) An Application may not exceed the following thresholds: (>100,000 MAU) or (>500,000 API calls per day) or (>500,000 impressions per day). If an Application exceeds or may exceed these thresholds, please contact SYW at platform@shopyourway.com for approval. As of the Effective Date, SYW does not impose charges on Applications. SYW reserves the right to impose charges in the future on Applications that exceed a certain level of usage (e.g., those that exceed 50,000 monthly page views).

(b) Developer’s Application will not integrate with or redirect to any other application on third party application SYW Platform.

7.3 SYW Website and SYW Platform Policies.

(a) The purpose of Applications should not be to redirect users outside of the SYW Website. An Application may not integrate, link to, promote, distribute, or redirect to any app on any other competing social or ecommerce SYW Platform.

(b) Any applications created or developed on the SYW Platform shall be unique to the SYW Platform and not available on third party applications SYW Platforms unless expressly authorized in writing by SYW or under these Developer Terms.

(c) Developer will obtain the express permission of a user in order to use any information provided through the SYW Website outside of the SYW Website. Developer will not use any information from a third party obtained through a user.

(d) When a user visits a page for an Application on the SYW Website or a page for Developer’s company on the SYW Website, if they have not given explicit permission by authorizing an Application or directly provided information to company page, Developer may only use information obtained from SYW and the user’s interaction with the company page in connection with that company page. For example, although Developer may use aggregate analytics for a company page, but Developer will not combine information from any other sources to customize the user’s experience on that page and may not use any information about the user’s interaction with such page in any other context (such as analytics or customization across other pages or websites).

(e) Developer will not transfer any data (including aggregate or anonymized data) received from SYW through any means for any purposes (including for an Application or for any third party) regardless if the user consents to such transfer. Developer will not directly or indirectly transfer any data Developer receives from SYW or through the SYW Platform, including user data or User IDs, to (or use such data in connection with) any ad network, ad exchange, data broker, or other advertising or monetization related toolset, even if a user consents to such transfer or use. By indirectly, SYW means Developer cannot, for example, transfer data to a third party who then transfers the data to an ad network. By any data, SYW means all data obtained through the SYW Platform (API, Social Plugins, etc.), including aggregate, anonymous or derivative data.

7.4 Developer’s Application.

(a) Developer will have and provide to all users of an Application a privacy policy that complies with all applicable laws and these Developer Terms and describes to users what data Developer are going to use, how Developer will use the data and that Developer will be sharing all data gathered by the Application with SYW. Developer will further have to provide applicable Developer Terms and ensure that an Application is compliance with all applicable laws, rules and regulations including the Digital Millennium Copyright Act.

(b) Developer will only request the data Developer needs to operate its Application. Developer will not transfer any data for use outside of an Application. A user’s friends’ data provided by SYW for use by a user can only be used in the context of that user’s experience on an Application.

(c) Subject to certain restrictions, including on transfer, users give Developer their Basic Information (defined below) when they connect with an Application. For all other data obtained through use of the API, Developer must obtain explicit consent from the user who provided the data to SYW before using it for any purpose other than displaying it back to the user on an Application.

(d) Developer will not use User IDs for any purpose outside an Application (e.g., infrastructure, code, or services necessary to build and run an Application). User IDs may be used with external services that Developer uses to build and run an Application, such as a web infrastructure service or a distributed computing SYW Platform, but only if those services are necessary to running an Application, are designed and operated in a secure manner that protects the User IDs and the service has a contractual obligation with Developer to keep User IDs confidential.

(e) Developer must receive SYW express written permission to share SYW Confidential Information outside of the Application. If Developer needs an anonymous unique identifier to share outside an Application with third parties such as content partners, advertisers, or ad networks, Developer must use a number provided by SYW via its API. Developer must never share this anonymous unique identifier with a data broker, information broker, or any other service that SYW may define as such under our sole discretion.

(f) Developer will not sell any data. If Developer is acquired by or merges with a third party, Developer can continue to use user data within an Application, but cannot transfer data outside an Application.

(g) Developer will at regular intervals (as determined by SYW), and immediately upon SYW’s request provide SYW with all data gather by the Application from SYW users.

(h) Unless otherwise agreed to in writing by SYW, if Developer stops using the SYW Platform or SYW disables an Application, Developer shall notify SYW and shall, at SYW’s option, either transfer all data to SYW or delete all data unless: (i) Developer has received explicit consent from the user to retain their data; or (ii) Developer is otherwise required by law to retain such information.

(i) Developer cannot use a user’s list of friends outside of an Application, even if a user consents to such use, but Developer can use connections between users who have both connected to an Application.

(j) Developer will delete all data Developer receives from SYW concerning a user if the user asks Developer to do so, and will provide an easily accessible mechanism for users to make such a request. SYW may require Developer to delete data received from the API if Developer violates our Developer Terms.

(k) Developer will not include data received from SYW concerning a user in any advertising creative, even if a user consents to such use.

(l) Developer must not give Developer’s secret access key (or other account identifiers) to another party, unless that party is an agent acting on Developer’s behalf as an operator of an Application. Developer is responsible for all activities that occur under Developer’s account identifiers.

(m) Developer will cease use of all data if Developer stops use of the SYW Platform or SYW terminates Developer’s account or Application unless Developer has received express written consent from the user to use such data outside of the application after termination or cessation of Developer’s account or application.

(n) All Applications must run on the server side and must not install software on the user device. Applications may reward users with virtual currency or virtual goods in exchange for user actions that do not involve third parties, but rewards for user actions that involve third parties must be powered by SYW Rewards Points. Developer must purchase from SYW, pursuant to a separate agreement, any and all SYW Reward Points it wishes to offer. For example, Developer may not reward users with virtual currency or virtual goods in exchange for any action in which personally identifiable information is shared with a third party, Developer may not reward users with virtual currency or virtual goods in exchange for third party downloads, such as toolbars or ringtones, and Developer may not reward users with virtual currency for engaging in passive actions offered by third parties, such as watching a video, playing a mini-game, or taking an anonymous poll.

(o) Developer is responsible for all content of and within an Application, including advertisements, user-generated content, and any content hosted, streamed or otherwise delivered to users by third parties. Developer must make it clear that this content is not provided by SYW.

(p) Developer will ensure that Developer has all rights necessary to provide an Application including rights to such Application and to the content within such Application. Developer shall use commercially reasonable technology to block access to an Application or an Application’s content in countries where Developer is unauthorized to deliver such content, or where delivery of such content would otherwise infringe, violate or misappropriate the rights of a third party.

(q) Developer must ensure that it owns or has secured all rights necessary to copy, display, distribute, deliver, render and publicly perform all content of or within an Application to users in all countries where Developer makes the content available.

(r) Developer is responsible for all licensing, reporting and payout obligations to third parties required in connection with content of or within an Application.

(s) Although SYW has no obligation to do so, in our sole discretion SYW may request, and Developer is required to provide SYW, proof that an Application and any content of or within an Application is properly licensed.

7.5 Prohibited Content.

(a) Developer agrees that Developer will not promote, or provide content referencing, facilitating, containing or using, the following:

  • Alcohol-related content, or sale of tobacco products, ammunition and/or firearms;
  • Content that infringes upon the rights of any third party, including intellectual property rights, privacy, publicity, moral or other personal or proprietary right, or that is deceptive or fraudulent;
  • Online gambling, games of skill or lotteries, including online casinos, sports books, bingo, or poker.
  • Illegal activity and/or illegal contests, pyramid schemes, sweepstakes or chain letters.
  • Content that is hateful, threatening, defamatory, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.

(b) Developer must not pre-fill fields on SYW where user generated information is requested.

(c) If a user grants Developer the right to publish content on the user’s behalf, Developer must still obtain consent from the user before taking any action on the user’s behalf, such as publishing content or creating a poll. Developer must at all times respect the privacy settings of the user and most ensure that such privacy preferences are followed for content generated by the Application on the user’s behalf.

(d) SYW Platform integrations, including social plugins:

  • Developer’s advertisements must not include or be paired with any SYW Platform integrations, including social plugins such as a Like It, Want It or Have it button or a SYW box pluggin (each a “SYW External Feature”) , without our written permission.
  • Developer must not sell or purchase placement of a SYW External Feature.
  • Developer must not incentivize users to provide feedback such as “Like it, Want it, or Have it” for any Application other than Developer’s own Application, and any incentive Developer provides must be non-monetary and must be available to new and existing users who perform such actions.
  • Developer must not obscure or cover elements of our social plugins, such as the SYW External Feature.
  • Ad networks, ad exchanges, and data brokers must not use the SYW Platform, logos, and trademarks (including APIs, and social plugins).

(e) Messaging (e.g., email sent to an @shopyourway.com address) is designed for communication between users, and not a channel for Applications (or Developers) to communicate directly with users. Applications and Developers must use communicate with users on the SYW Platform through the means provided by SYW APIs. Applications (and Developers) must receive express consent from the user before communicating with them outside of the SYW Platform. All communication (whether on SYW Platform or off) by an Application or a Developer must conform all requirements of these Developer Terms.

7.6 Application Support.

(a) Developer will be solely responsible for support and maintenance of Applications and any complaints about an Application. Developer’s contact information will be displayed in each application detail page and made available to users for customer support purposes.

(b) Failure to provide adequate support for an Application may result in low Application ratings, less prominent product exposure, low sales and billing disputes.


8. Special Provisions.

(a) Developer is responsible for an Application and its content and all uses Developer makes of the SYW Platform. This includes ensuring an Application or use of the SYW Platform meets our Developer Terms.

(b) Developer will only request data Developer needs to operate an Application.

(c) Developer will have a privacy policy that tells users what user data Developer is going to use and how Developer will use, display, share, or transfer that data and Developer will include Developer’s privacy policy URL in the Application.

(d) Developer will not use, display, share, or transfer a user’s data in a manner inconsistent with Developer’s privacy policy.

(e) Developer will delete all data Developer receives from SYW concerning a user if the user asks Developer to do so, and will provide a mechanism for users to make such a request.

(f) Developer will not include data Developer receives from SYW concerning a user in any advertising creative.

(g) Developer will not directly or indirectly transfer any data Developer receives from SYW to (or use such data in connection with) any ad network, ad exchange, data broker, or other advertising related toolset, even if a user consents to that transfer or use.

(h) Developer will not sell user data. If Developer is acquired by or merges with a third party, Developer can continue to use user data within an Application, but Developer cannot transfer user data outside of an Application.

(i) SYW can require Developer to delete user data if Developer uses it in a way that SYW determines is inconsistent with users’ expectations.

(j) SYW can limit Developer’s access to data.

(k) Developer will comply with all other restrictions contained in our Developer Terms.

(l) Developer will not give SYW information that Developer independently collects from a user or a user’s content without that user’s consent.

(m) Developer will make it easy for users to remove or disconnect from an Application.

(n) Developer will make it easy for users to contact Developer. SYW can also share Developer’s email address with users and others claiming that Developer has infringed or otherwise violated their rights.

(o) Developer will provide customer support for an Application.

(p) Developer will not show third party ads or web search boxes on SYW.

(q) Developer will not sell, transfer, or sublicense our Software to anyone.

(r) Developer will not misrepresent Developer’s relationship with SYW to others.

(s) Developer may use the logos SYW makes available to developers, in the manner provided, subject to SYW rules regarding their use and SYW’s right to revoke such right at any time.

(t) SYW can issue a press release describing our relationship with Developer. Developer will not publicly discuss our relationship without SYW prior written approval.

(u) Developer will comply with all applicable laws, including having a policy for removing infringing content and terminating repeat infringers that complies with the Digital Millennium Copyright Act.

(v) SYW does not guarantee that the SYW Platform will always be free.

(w) Developer gives SYW all rights necessary to enable an Application to work with SYW, including the right to incorporate content and information Developer provide to SYW into streams, profiles, and user action stories.

(x) Developer gives SYW the right to link to or frame an Application, and place content, including ads, around an Application.

(y) SYW can analyze an Application, content, and data for any purpose, including commercial (such as for targeting the delivery of advertisements and indexing content for search).

(z) To ensure an Application is safe for users, SYW can audit it.

(aa) SYW can create applications that offer the same or similar features and services to, or otherwise compete with, an Application.

(bb) Notwithstanding any other provision of these Developer Terms, all approvals or consents that SYW is entitled to giver hereunder shall be at SYW sole discretion; and SYW may condition its approval/consent upon changes or additions to the Developer Terms, Developer agreeing to new Terms, and/or the payment of monies.


9. Definitions.

(a) By “Application”, SYW means an application, SYW Platform integration, or any other technical integration SYW has assigned an application identification number.

(b) By “SYW social channel”, App Tag Page, Feed, Requests (including invites), or any other feature of a user profile or SYW communication channel in which or through which an application can provide, display, or deliver content directed at, on behalf of, or by permission of a user.

(c) By “Basic Information”, SYW means name, email, gender, birthday, current city, and profile picture URL, to the extent available.

(d) By “User data you receive from SYW”, SYW means any data or content (including any images, text, or other information or materials) Developer receives from SYW, that was provided by users to SYW, or was associated by SYW with a particular user.


10. Enforcement.

SYW can take enforcement action against Developer and any or all Applications if SYW determines in our sole judgment that Developer or an Application violates these Developer Terms. Enforcement action includes self help, both automated and manual, and can include disabling an Application, restricting Developer and an Application’s access to the SYW Platform functionality, terminating our agreements with Developer, or any other action as SYW, in our sole discretion, deems appropriate.

Communication with developers takes place via an email sent from the SYW Website to the Developer contact email address registered to the application. To stay in touch, please ensure that Developer’s email address is current and that Developer does not filter out any such messages.


11. Limitations on Liability.

IN NO EVENT WILL SYW BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS OF ANY NATURE WHATSOEVER ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY USER CONTENT, ANY ERROR OR OMISSION IN ANY USER CONTENT, ANY CLAIM THAT ANY USER CONTENT IS DEFAMATORY, LIBELOUS OR VIOLATES ANY RIGHT OF ANY THIRD PARTY, OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY. DEVELOPER EXPRESSLY AGREES THAT DEVELOPER BEARS ANY AND ALL RISKS ASSOCIATED WITH DEVELOPER’S ACCESS TO, CONTRIBUTION TO, USE OF AND/OR RELIANCE ON USER CONTENT. IN NO EVENT SHALL SYW, ITS AFFILIATES, OR ITS/THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF ANY OF THE FOREGOING, BE LIABLE TO DEVELOPER OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND (INCLUDING ANY DIRECT, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, UNAVAILABILITY OF, INABILITY TO USE, OR IMPROPER USE OF THE SYW PLATFORM, INCLUDING ANY USER CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SYW PLATFORM, OR THE DISCLOSURE OR MISUSE OF ANY USER’S PERSONAL INFORMATION, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IN ANY EVENT, SYW’ RESPECTIVE TOTAL MAXIMUM LIABILITY IN RESPECT OF THE SYW PLATFORM OR ANY PART THEREOF, INCLUDING THE USER CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SYW PLATFORM, IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS ($100.00). THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.


12. Indemnity.

Developer agrees to indemnify and hold SYW and their respective affiliates, licensors, directors, officers, members, managers, employees, agents, and representatives, harmless from and against any losses, costs, expenses or damages of any nature whatsoever (including attorneys fees and court costs) arising from any claim, cause of action, suit or demand of any third party due to, arising out of or related to (i) Developer’s access, registration or use of the SYW Platform, (ii) an Application or creation or development or an Application on the SYW Platform, (iii) any content posted, uploaded or transmitted by or through Developer or an Application, (iv) Developer’s violation of these Developer Terms, (v) any use of Developer’s User ID or password by Developer or any third party, or (vi) the infringement, misappropriation or other violation by Developer, or any third party using Developer’s account or User ID or password, of any intellectual property or other right of any person or entity.


13. Disputes.

Any dispute relative to the SYW Platform or use or inability to use the SYW Platform will be governed by the laws of the State of Illinois, without regard to its conflict of law provisions. Any dispute relating in any way to Developer’s visit to or participation on the SYW Platform shall be submitted to confidential arbitration in Chicago, Illinois, except that, to the extent Developer have in any manner violated or threatened to violate our intellectual property rights, SYW may seek injunctive or other appropriate relief in any state or federal court in the State of Illinois, and Developer consent to exclusive jurisdiction and venue in such courts. Arbitration under these Developer Terms shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Developer Terms shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration involving any other party subject to these Developer Terms, whether through class arbitration proceedings or otherwise.

14. Applicable Law and Disputes and Arbitration.

For clarity, we note that the Sections in the Terms of Use entitled Applicable Law (i.e., Illinois law) and Disputes (including the requirement for Arbitration in Chicago, IL) also apply to this Agreement.


15. Miscellaneous.

No agency, partnership, joint venture, or employment relationship is created as a result of these Developer Terms, and Developer does not have any authority of any kind to bind SYW in any respect whatsoever. SYW may provide Developer with notices, including those regarding changes to these Developer Terms, by email, regular mail, or postings on the SYW Platform. Our failure to exercise or enforce any right or provision of these Developer Terms shall not constitute a waiver of the enforcement of such right or provision. If any provision of these Developer Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Developer Terms shall otherwise remain in full force and effect and enforceable. These Developer Terms are not assignable, transferable or sublicensable by Developer, except with our prior written consent. The headings in these Developer Terms are for convenience only and have no legal or contractual effect. These Developer Terms include and incorporate the Privacy Policy for the SYW Platform and any notices regarding the SYW Platform. In these Developer Terms, the term "include" and its derivatives ("including," "e.g." and others) mean "including but not limited to."


16. No Assignment.

You may not assign these Developer Terms or your rights or obligations hereunder without the prior written consent of SYW.


17. Not Our Agent.

Developer is not authorized to, and Developer will not enter into any agreement, make purchases or incur any other obligation or expense of any kind in the name of or on behalf of SYW under any circumstances.


18. Contact and Violations.

Please contact SYW with any questions regarding these Developer Terms. Please report any violations of the Developer Terms to support@shopyourway.com.