Sears Holdings Management Corporation ("SHMC" together with its affiliates "SYW"), agrees to be bound by these SYW Terms.
As used herein, the term "SYW Website" includes any other websites or applications (mobile or otherwise) accessible from the SYW Website or that SYW allows
content from the ShopYourWay.com website to be posted upon. By accessing, registering for, using, or purchasing merchandise from the SYW Website, you agree to be bound by these SYW Terms.
SYW reserves the right to modify these SYW Terms at any time without prior notice to you. Any modifications to the SYW Terms will be effective upon posting. You agree to review the SYW Terms periodically to be aware of any modifications. Your continued use of the SYW Website after any modifications indicates acceptance of the modified SYW Terms. Therefore, SYW recommends that you read these SYW Terms carefully each time you use the SYW Website.
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 SYW Terms.
The participants in the online community on the SYW Website are SYW's associates, suppliers, vendors, and the public, all of whom are interested in voicing opinions, sharing ideas, and finding others who share the same interests. As a participant in this community, you may also post content and share it with other Users, read content generated by other Users of the SYW Website and other affiliated sites, and view third party postings and reviews regarding products and services. If you wishe to post content to, or participate in the SYW Website other than simply by reading product information and content and reviews posted by other users, you must register through the SYW Website.
These SYW Terms set out the legally binding terms with respect to your use of the SYW Website. If you are unwilling to be bound by these SYW Terms, you
should not access or use the SYW Website.
3. Eligibility. The SYW Website is not targeted towards, nor intended for use by, anyone under the age of 13. By using the SYW Website, you represent and warrant that you are thirteen (13) years of age or older. You may not access or use the SYW Website if you are unable to form a legal binding agreement with SYW. If you are not at least thirteen (13) years of age, do not access, use or register on the SYW Website. In the event SYW becomes aware that any User is under thirteen (13) years old, SYW will terminate any registration and account.
4. Use by Non-Exempt Associates. If you are a non-exempt associate (hourly or salaried) of Sears, Roebuck and Co., Kmart Corporation, or any of their affiliates, you may participate in the SYW Website for work-related reasons: (i) in the case of associates who clock in, only when the associate is clocked in, and (ii) in the case of associates who do not clock in, during regularly scheduled work hours. This includes time spent reading the SYW Website and composing content to post on SYW Website, and all other work related to SYW Website. Any participation when a non-exempt associate is not clocked in/outside of regularly scheduled work hours, other than paid time specifically authorized in advance by your manager, is voluntary, for your own benefit and not required, expected or encouraged as part of your employment (i.e., it is not considered work and must not be done on the Company's behalf).
5. Registration. In order to access some features of the SYW Website, you are required to register or log-in using your Membership credentials. To register, you must provide first name, last name, a user name (which shall consist of an email address you provide) (" User ID") and a password. You agree to provide SYW with 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 Website, you 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 subject to any rights of a person other than User without appropriate authorization. Failure to comply with the terms of this paragraph shall constitute a material breach of these SYW Terms, which may result in immediate termination of your account. In addition, SYW reserves the right to refuse registration of, or cancel a User ID in SYW's sole discretion. You shall be responsible for maintaining the confidentiality of the User ID and password, and you are fully responsible for all activities that occur under that User ID and password, whether or not you authorize such activities. You agree to (i) immediately notify SYW of any unauthorized use of a User ID or password of which you become aware, and (ii) ensure that you log out of your account at the end of each session.
If you select a username or similar identifier for your account or Profile Page, SYW reserves the right to remove or reclaim it (for example, such as when a trademark owner complains about a username that is similar to their trademark).
7. Use of the SYW Website. You may use the SYW Website to solicit opinions, ideas and other input from, and share ideas and opinions with, other Users, and to search the SYW Website for User Generated Content and business or product information. You may also invite people you know to join the SYW Website. You acknowledge and agree that SYW does not control the User Generated Content posted to the SYW Website, or any links to other websites, including the content of any messages, and that SYW does not guarantee the accuracy, integrity or quality of any User Generated Content. You further understand and agree that (a) SYW does not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, or statements or other User Generated Content posted on or otherwise displayed on or transmitted via the SYW Website, or (b) SYW does not make any promises, guarantees or warranties with respect to any of the User Generated Content or products, services, information, content or materials featured or mentioned on the SYW Website. All User Generated Content, including advice and opinions posted by Users, comprises the views and responsibility of those who post such User Generated Content, and does not necessarily represent SYW's views. You understand that, by using the SYW Website, you may be exposed to User Generated Content that is offensive, indecent or objectionable.
8. SYW Profile Page. Users shall have the ability to establish a SYW profile page ("Profile Page") as part of their account. You agree to provide your real name and accurate information to establish the Profile Page. At SYW's sole discretion, a SYW Profile Page and the related User ID and login may be combined with profile pages on and used to access other websites. When establishing a Profile Page, in addition to complying with the other sections of these SYW Terms, you agree to the following relating to registering and maintaining the security of your Profile Page:
(a) You will not provide any false personal information on SYW, or create an account for anyone other than you without permission.
(b) You will not create more than one personal account.
(c) If SYW disables your account, you will not create another one without SYW's permission.
(d) You will keep your contact information accurate and up-to-date.
9. SYW Tag Pages.
(a) Only authorized or official representatives for an entity or a public person may be an administrator ("Administrator") for a SYW tag page ("Tag Page"). Tag Pages also consist of "topic pages, and other specialized pages created by SYW from time to time. The name of each Tag Page name must accurately reflect the Tag Page's content, and cannot be changed without permission by SYW. SYW may remove administrative rights or require Administrator to change the Tag Page name for any Tag Page that fails to meet this requirement. Tag Page names must use proper, grammatically correct capitalization and may not include all capitals, except for acronyms unless that accurately reflects the trademark or service mark of the business.
(c) Content posted to a Tag Page is public and viewable by everyone who can see the Tag Page.
(d) Administrator (and/or its company, organization or public person) is responsible for all content posted to a Tag Page.
(e) An Administrator is required to restrict access to a Tag Page to the extent necessary to comply with applicable laws and SYW policies and procedures.
(f) No one can establish terms for a Tag Page that conflict with this Section 9 or any other terms and conditions of the SYW Website.
(g) SYW reserves the right to not approve or take down any Tag Pages or revoke any Administrator's rights in its sole discretion.
You shall be responsible for maintaining the confidentiality of your Administrator password, and you are fully responsible for all activities that occur under your Tag Page User ID and password, whether or not you authorize such activities. You agree to (x) immediately notify SYW of any unauthorized use of a Tag Page User ID or password of which you become aware, and (y) ensure that you log out of your Administrator account at the end of each session.
SYW reserves the right to publish each Administrator's Tag Page User ID, user name and stories that Administrators follows or reads. SYW further reserves the right to auto-follow certain Tag Pages.
11. Advertising and Promotions. Ads and commercial content (including Tag Page post content) are subject to SYW's review and SYW reserves the right to deny any the posting or use of any such content on the site. Third-party advertisements on Tag Pages are prohibited, without SYW's prior written consent. Use of Tag Pages for contests, sweepstakes and other promotion is prohibited without SYW's prior written consent and SYW may require a User to enter a separate agreement to use SYW's Sweeps application if User wishes to post a contest or sweepstakes on the SYW Website. If an Administrator uses SYW to communicate about or administer a promotion (such as a contest or sweepstakes), Administrator (and/or its company, organization or public person) is responsible for the lawful operation of that promotion, including the official rules, offer terms and eligibility requirements and compliance with all applicable laws, rules and regulations governing the promotion and all prizes offered in connection with the promotion (e.g., registration and obtaining necessary a regulatory approvals). Further, absent SYW's prior written consent, each such contest, sweepstake or promotion must:
(a) Include a complete release of SYW by each participant.
(b) Include an acknowledgment that the promotion is in no way sponsored, endorsed or administered by, or associated with, SYW.
(c) Include a disclosure as to whom the participant is providing information and making clear the participant is not providing information to SYW.
(d) Not condition registration or entry upon the participant taking any action using any SYW features or functionality other than viewing a Tag Page or connecting to the Administrator�s (and/or its company�s, organization�s or public person�s) app. For example, registration or entry cannot be conditioned upon shopping.
(e) Not use SYW features or functionality as a promotion's registration or entry mechanism. For example, the act of shopping cannot automatically register or enter a promotion participant.
(f) Not use SYW features or functionality as a voting mechanism for a promotion.
(g) Not notify winners through SYW, such as through messages, chat, or posts on profiles or Tag Pages.
Please note that compliance with the above requirements does not constitute a support or approval of the lawfulness of a promotion by SYW. SYW strongly recommends that any Administrator (and/or its company or organization) consult with an expert before running any promotions on SYW.
12. Mobile and Other Devices. SYW currently provides mobile applications for free, but please be aware that your carrier's normal rates and fees, such as text messaging fees, will still apply.
(a) In the event you change or deactivate the mobile telephone number connected to your User ID or account, you agree to update the account information on the SYW Website within forty-eight (48) hours to ensure that your messages are not sent to a person who acquires your old number.
(b) You further provide consent and all rights necessary to enable Users to sync (including through an application) their devices with any information that is visible to them on SYW.
13. Messaging. The SYW Website allows Users to send messages to other Users and non-Users, which may include, without limitation, through the use of a messaging account available through the SYW Website. Without limiting the generality of any other provisions of these SYW Terms, you agree that you will not:
(a) Generate or facilitate unsolicited commercial messages ("Spam"). Such activity includes, without limitation:
i. sending email in violation of the CAN-SPAM Act or any other applicable anti-Spam law;
ii. imitating or impersonating another person or his, her or its email or message address, or creating false accounts for the purpose of sending Spam;
iii. data mining any web property to find email/messaging addresses;
iv. sending unauthorized mail or messages via open, third-party servers;
v. sending emails or messages to users who have requested to be removed from a mailing list;
vi. selling, exchanging or distributing to a third party the email or message addresses of any person without such person's knowing and continued consent to such disclosure; or
vii. sending unsolicited emails or messages to significant numbers of email addresses belonging to individuals and/or entities with whom you have no preexisting relationship.
(b) Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content;
(c) Conduct or forward pyramid schemes and the like;
(d) Transmit content that may be harmful to minors; or
(e) Impersonate another person (via the use of an email or messaging address or otherwise) or otherwise misrepresent yourself or the source of any email or message.
14. Restrictions on Rights to Use. Without limiting the generality of any other provisions of these SYW Terms, you agree that you will not (and will not to allow any other individual or entity to):
(a) use SYW if you are a convicted sex offender;
(b) sell, trade, resell, or otherwise exploit or transfer any SYW account or portion thereof (including any Profile Page, Tag Page or application User administers) to anyone without first getting SYW's written permission;
(c) 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 SYW Website, except and to the extent expressly permitted under these SYW Terms;
(d) remove any copyright, trademark or other proprietary rights notice contained in or on the SYW Website;
(e) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the SYW Website;
(f) collect any information about other Users (including usernames, email or message addresses) for any purpose;
(g) reformat or frame any portion of any Web pages that are part of the SYW Website;
(h) create multiple User accounts or create User accounts by automated means or under false or fraudulent pretenses;
(i) interfere with other Users' enjoyment of the SYW Website;
(j) submit to the SYW Website any content that falsely states or implies that such content is sponsored or endorsed by SYW;
(k) transmit or upload to the SYW Website 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 SYW Website, any other Web site, or any computer or other device or system, or the enjoyment of the SYW Website by any User;
(l) use the SYW Website 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);
(m) submit to the SYW Website any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity; or otherwise use the SYW Website to transfer or store illegal material, including any material deemed threatening or obscene;
(n) copy or store any User Generated Content offered on the SYW Website other than for your personal, non-commercial use;
(o) take any action that imposes, or may impose, in SYW's sole discretion, an unreasonable or disproportionately large load on the SYW Website or the IT infrastructure used to operate and make the SYW Website available;
(p) use the SYW Website and/or any User Generated Content, intentionally or unintentionally, to violate any applicable local, state, federal or international law;
(q) collect or store personal data about other Users in connection with the prohibited activities described in this paragraph;
(r) Illegally transmit another's intellectual property or other proprietary information without such owner's or licensor's permission; or
(s) Use the SYW Website in connection with illegal peer-to-peer file sharing.
15. SYW Website Code of Conduct. The following is a non-exhaustive list of the kind of User Generated Content that is illegal and/or is prohibited on or through the SYW Website. You may not post any User Generated Content or other content that:
16. Copyrights / DMCA.
(a) Notice. If a person believes any User Generated Content or any other aspect of the SYW Website infringes such person's copyright, please send written notice of copyright infringement to SYW's designated copyright agent at the address given below. A Notice sent pursuant to this Section must meet the requirements of the Digital Millennium Copyright Act (as required under 17 U.S.C. 512) by providing the following information:
SYW's designated copyright agent for notice of claims of copyright infringement on the SYW Website may be reached at the following address:
Sears Holdings Management Corporation
3333 Beverly Road
Hoffman Estates, IL 60179
(b) Counter-Notice. If a User believes that any of User's User Generated Content that was removed (or to which access was disabled) is not infringing, or that User has the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the User Generated Content, User may send a counter-notice containing the following information to the Copyright Agent, listed above:
17. Ownership. As between you and SYW, the SYW Website, including all photographs, images, text, graphics, icons, audio clips, software
and other aspects thereof (excluding User Generated Content), all improvements or modifications thereof, all derivative works based thereon, and the
collection, arrangement, and assembly of the SYW Website, including all copyrights, trademarks, and other intellectual property or proprietary rights in
the foregoing, are owned by SYW or SYW's licensors. Nothing contained in these SYW 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 SYW or any of SYW's licensors.
Any trademarks, service marks, and other marks and indicators of source or origin that are displayed by SYW on the SYW Website are the property of SYW or its respective licensors, as applicable. None of such marks may be used in connection with any other product or service, in any 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 SYW Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by SYW. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the SYW Website without the express written permission of the trademark owner.
Nothing in these SYW Terms shall be deemed to grant to any User any license or right in or to any patent, copyright, trademark, trade secret or other proprietary right of SYW.
18. User Generated Content. The SYW Website may now or in the future permit the submission of User Generated Content. The nature of the SYW Website is interactive and public. In return for User's access to and use of the SYW Website, you acknowledge that you have read, understand and agree to the terms enumerated below with respect to any User Generated Content you post on the SYW Website:
(a) You may not post, upload or transmit any User Generated Content that (i) infringes, misappropriates 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.
(b) You understand and agree that SYW does not monitor but does reserve the right to review and delete any User Generated Content for any or no reason, including User Generated Content that, in SYW's sole discretion, (i) violates these SYW 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.
(c) You are solely responsible for any User Generated Content that you post, publish or display on the SYW Website or transmit to Users. SYW reserves 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 SYW Website. You are solely responsible for the resolution of any disputes that arise between you and any other User or any other entity or individual.
(d) You will post only User Generated Content you believe in good faith to be true and accurate, and you will not post to the SYW Website any User Generated Content that is false, inaccurate, misleading or fraudulent.
(e) As between you and SYW, subject to any licenses and rights expressly granted herein, any User Generated Content posted by you is owned by you. You are solely responsible for any User Generated Content you submit and the consequences of posting or publishing it.
(f) You grant SYW and its personnel, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, fully paid up, fully and partially sublicensable and transferable (without payment of any fees) license and right to use, copy, reproduce, distribute, edit, modify, translate, reformat, prepare derivative works based upon or incorporate into other works, such User Generated Content, with or without attribution, display and perform (in public and in private) and otherwise exploit (including but not limited to over the Internet, broadcast television, radio or any other uses or media), the User Generated Content, in whole or in part, including future rights that SYW (or its successor) may otherwise become entitled to that do not yet exist, as well as new uses, media, means and forms of exploitation throughout the universe exploiting current or future technology yet to be developed to the maximum extent permitted by applicable law. You acknowledge and agree that SYW may extend the foregoing rights to its other Users as SYW deems appropriate.
(h) User Generated Content will not be treated as confidential or proprietary and may be preserved or disclosed by SYW at SYW's discretion. Further, you understand that: (i) SYW may be working on the same or a similar idea to any ideas, expression of ideas or other materials that you submit as User Generated Content, (ii) SYW may already know of such User Generated Content from other sources, (iii) SYW may simply wish to develop the same (or similar) User Generated Content on SYW's own or (iv) SYW may have taken/will take some other action with respect to User Generated Content.
(i) You understand that SYW has no obligation, either express or implied, to develop or use any User Generated Content and that no compensation is due to you or anyone else for any inadvertent or intentional use of that User Generated Content, content similar to User Generated Content or content derived from such User Generated Content.
(j) You understands that SYW assumes no obligation with respect to any User Generated Content. For your own protection, SYW assumes that User will undertake any actions necessary for you to rely on whatever patent or other intellectual property protection that you may want to secure, or have already secured, in User Generated Content. In the absence of a separate formal contract, your rights in any User Generated Content shall be limited to those you have secured under the intellectual property laws of the United States; subject to the rights granted to SYW and its Users herein.
(k) If User Generated Content is the subject of a pending or issued patent or other intellectual property protection, you have and will disclose that fact to SYW and the SYW Website in a prominent manner.
(l) You understand that, except to the extent that these terms are superseded by a separate agreement in writing by you and SYW, you hereby irrevocably release and forever discharge SYW and its affiliates and subsidiaries from any and all actions, causes of actions, claims, damages, liabilities and demands, whether absolute or contingent and of any nature whatsoever, which you now have or hereafter can, shall or may have against SYW and its affiliates and subsidiaries or their respecting successors and assigns with respect to SYW and its Users� use of User Generated Content, including, without limitation, in respect of how SYW, directly or indirectly, uses the User Generated Content, with the sole exception in respect of the foregoing release and discharge being your right to bring a claim of patent infringement for use which occurs 30 days after you have put SYW on written notice of such patent.
(m) You hereby irrevocably waive and assign to SYW any and all moral rights or "droit moral" you may have in or with respect to any User Generated Content that you post to the SYW Website.
19. Disclaimer. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SYW WEBSITE, AND OF ANY USER GENERATED CONTENT, INFORMATION, ADVICE, SERVICES,
PRODUCTS, AND OTHER CONTENT, OR MATERIALS CONTAINED IN, ACCESSIBLE FROM OR DESCRIBED ON THE SYW WEBSITE, IS ENTIRELY AT YOUR OWN RISK, AND THAT ALL SUCH
INFORMATION AND MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SYW MAKES NO, AND HEREBY
DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND/OR USE OF THE SYW WEBSITE, INCLUDING
BUT NOT LIMITED TO ANY USER GENERATED CONTENT PROVIDED VIA THE SYW WEBSITE, AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS
CONTAINED IN, ACCESSIBLE FROM OR DESCRIBED ON THE SYW WEBSITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, SYW DOES NOT REPRESENT OR
WARRANT THAT THE INFORMATION AND CONTENT CONTAINED IN, ACCESSIBLE FROM OR DESCRIBED ON THE SYW WEBSITE IS ACCURATE, COMPLETE OR CURRENT, AND SYW IS NOT
RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM USE OF, INABILITY TO USE, OR RELIANCE ON ANY ASPECT OF THE
SYW WEBSITE, INCLUDING BUT NOT LIMITED TO USER GENERATED CONTENT AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED
IN, ACCESSIBLE FROM OR DESCRIBED ON THE SYW WEBSITE. FURTHER, SYW MAKES NO REPRESENTATIONS AND WARRANTIES THAT THE SYW WEBSITE OR THE USER GENERATED
CONTENT WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED
BY ANY USER FROM SYW OR THE SYW WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
20. 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 THE SYW WEBSITE INCLUDING ANY USER GENERATED CONTENT OR OTHER CONTENT, ANY ERROR OR OMISSION IN THE SYW WEBSITE INCLUDING ANY USER GENERATED CONTENT OR OTHER CONTENT, ANY CLAIM THAT ANY CONTENT, INCLUDING USER GENERATED 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. USER EXPRESSLY AGREES THAT YOU BEAR ANY AND ALL RISKS ASSOCIATED WITH YOUR ACCESS TO, CONTRIBUTION TO, USE OF AND/OR RELIANCE ON THE SYW WEBSITE INCLUDING, BUT NOT LIMITED TO, ANY USER GENERATED CONTENT OR OTHER 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 YOU OR ANY OTHER USER OR 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 WEBSITE INCLUDING, WITHOUT LIMITATION, ANY USER GENERATED CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER CONTENT, INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SYW WEBSITE, 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'S RESPECTIVE TOTAL MAXIMUM LIABILITY IN RESPECT OF THE SYW WEBSITE OR ANY PART THEREOF, INCLUDING ANY USER GENERATED CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SYW WEBSITE, 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.
21. Indemnity. You agree to indemnify and hold SYW and its, 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) your access to the SYW Website, (ii) your use of the SYW Website, (iii) any User Generated Content posted, uploaded or transmitted by you, (iv) your use or distribution of any content, including User Generated Content, and all other services, products, and other information and materials contained in, accessible from or described on the SYW Website, (v) your violation of these SYW Terms, (vi) any use of your User ID or password by you or any third party, or (vii) the infringement, misappropriation or other violation by you, or any third party using your account or User ID or password, of any intellectual property or other right of any person or entity.
22. Third Party Advertisements and Links to Third Party Sites. SYW may display on the SYW Website advertisements from third parties, such as banner advertisements and pop-up texts, content hosted by third parties, and links to third party websites and applications. SYW is not responsible for the content of such advertisements or links, any products, services or other materials relating to such advertisements, content or linked websites or applications, or any link contained in a linked website or application. The display of any third party, advertisement, content or link does not imply endorsement by SYW of the advertisement, content or linked website or application or any content therein. IN NO EVENT WILL SYW BE LIABLE, DIRECTLY OR INDIRECTLY, TO YOU OR ANY OTHER USER OR THIRD PARTY FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY ADVERTISEMENT OR CONTENT DISPLAYED ON THE SYW WEBSITE, ANY PRODUCTS, SERVICES OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT OR CONTENT, ANY LINKED THIRD-PARTY WEBSITE OR APPLICATION, OR ANY PRODUCTS, SERVICES, LINKS OR OTHER CONTENT CONTAINED IN OR MADE AVAILABLE THROUGH A LINKED WEBSITE OR APPLICATION.
25. Applicable Law. By visiting SYW Website, you agree that the laws of the State of Illinois, without regard to principles of conflict of laws, will govern these SYW Terms and any dispute of any sort that might arise between you and SYW relating to the SYW Website or the use or inability to use the SYW Website.
26. Confidential Arbitration: You agree that by entering into these SYW Terms, you and SYW are each waiving the right to trial by jury and the ability to participate in a class action.
ANY AND ALL DISPUTES SYW OR YOU HAS RELATING IN ANY WAY TO THE SYW WEBSITE OR YOUR USE THEREOF (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO USER GENERATED CONTENT, YOUR TRANSACTIONS WITH OR PURCHASES THROUGH THE SYW WEBSITE, ADVERTISEMENTS, YOUR USE OF OR RELIANCE ON ANY PRODUCTS, SERVICES, OR CONTENT PROVIDED BY SYW OR ANY THIRD PARTY THAT ARE MADE AVAILABLE ON OR THROUGH THE SYW WEBSITE AND LINKS ON THE SYW WEBSITE, EMAIL AND MOBILE SMS (TEXT) MESSAGES SYW SENDS TO YOU, OR THE USE OR DISCLOSURE OF ANY INFORMATION ABOUT YOU), THESE SYW TERMS, THE SYW WEBSITE PRIVACY POLICIES, OR YOUR STATUS AS A USER (COLLECTIVELY, �SUBJECT CLAIMS�) 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 SYW INTELLECTUAL PROPERTY RIGHT. SUBJECT CLAIMS INCLUDE CLAIMS BASED ON CONTRACT, TORT (INCLUDING INTENTIONAL TORT), FRAUD, AGENCY, YOUR OR SYW�S NEGLIGENCE, STATUTORY OR REGULATORY PROVISIONS, OR ANY OTHER SOURCE OF LAW.
A User who intends to seek arbitration must first send to SYW, by certified mail, a written Notice of Dispute ("Notice"). The Notice to SYW must be mailed
to 3333 Beverly Road, Hoffman Estates, IL, Attn: SVP Shop Your Way 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 you and SYW cannot reach
an agreement to resolve the claim within thirty (30) days after the Notice is received, you or SYW may commence arbitration.
All arbitrations required by these SYW Terms will be conducted under the Commercial Arbitration rules of the American Arbitration Association. The arbitrator�s award is binding and may be entered in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration brought under, or with respect to, Subject Claims is to be joined to an arbitration involving any other party subject to these SYW Terms whether through class arbitration proceedings or otherwise. Unless you and SYW agree otherwise, the arbitrator may not consolidate more than one person�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 SYW in accordance with this section (but not for any arbitration claim against you), SYW 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. Unless unlawful, SYW will pay its, and you will pay your, lawyers�, experts�, and witness fees, expenses, and costs with respect to all claims. 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.
TO THE EXTENT PERMITTED BY LAW, 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 SYW IN ANY COURT, OR IN ARBITRATION, WITH RESPECT TO ANY SUBJECT CLAIMS. THIS SECTION 26 (CONFIDENTIAL ARBITRATION) WILL SURVIVE THE TERMINATION OF THE RELATIONSHIP BETWEEN YOU AND SYW.
SYW or you may seek injunctive relief only in any state or federal court in Chicago, Illinois, USA, and SYW and you consent to the exclusive jurisdiction and venue in the state and federal courts in Chicago, Illinois, USA for injunctive relief purposes. The arbitrator shall have no authority to issue injunctive relief.
27. Miscellaneous. No agency, partnership, joint venture, or employment relationship is created as a result of these SYW Terms, and you do not have any authority of any kind to bind SYW in any respect whatsoever. SYW may provide you with notices, including those regarding changes to these SYW Terms, by email, regular mail, or postings on the SYW Website. SYW's failure to exercise or enforce any right or provision of these SYW Terms shall not constitute a waiver of the enforcement of such right or provision. If any provision of these SYW Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these SYW Terms shall otherwise remain in full force and effect and enforceable. These SYW Terms are not assignable, transferable or sublicensable by you, except with SYW's prior written consent. The headings in these SYW Terms are for convenience only and have no legal or contractual effect.
28. Contact and Violations. Please contact SYW with any questions regarding these SYW Terms. Please report any violations of the SYW Terms to email@example.com.
29. Patents. One or more patents may apply to this Web site, including without limitation: U.S. Patent Nos. 5,528,490, 5,761,649, 6,029,142, 5,970,474, 6,330,592, 7,963,441, 8,015,068, 8,301,504, D619,603, D619,604, D619,605, D619,606, D619,607, D620,021 and D644,649.
30. SYW Does Not Provide Medical Advice. The content appearing on the SYW Website is for informational purposes only, and is not intended to be a substitute for, and should not be construed as, professional medical advice, diagnosis, consultation, evaluation or treatment. SYW is not a medical organization and our staff cannot give you medical advice or diagnosis. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. You are advised to seek the advice of a physician or other qualified health provider before beginning any dietary, fitness, or health-related effort or regimen, including those mentioned or featured on the SYW Website.
If you are in the United States and think you may have a medical emergency, call 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain.
The SYW Website does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be mentioned on the SYW Website. Reliance on any information on the SYW Website is solely at your own risk.
The SYW Website may contain health- or medical-related content that contains nudity or other adult content. If you find such materials offensive, you should not visit or use the SYW Website.
31. Safety Notice. Before beginning any project, review the instructions carefully, and if any doubts or questions remain, consult local professionals or authorities. Because local codes and regulations vary greatly, you should always check with local authorities to ensure that your project complies with all applicable codes and regulations. Always read and observe all of the safety precautions provided by any tool or equipment manufacturer, and follow all accepted safety procedures. What follows are reminders, although not an exhaustive list, of safety measures you should be aware of if undertaking home improvements yourself. They are not substitutes for your own caution, care, good judgment and common sense.
(a) General Precautions:
(b) Wear the Correct Gear:
(c) Power Tool Precautions: