These terms and conditions (“Terms”) are entered into by and between you and Commerce Media Holdings LLC, doing business as NTWRK, a Delaware limited liability company (“NTWRK”). Please note that, notwithstanding anything to the contrary herein, or in any linked, incorporated or otherwise referenced document, policy, terms or conditions, sections 10 “Disclaimer and Limitation of Liability as to the NTWRK Content”, 11 “Disclaimer and Limitation of Liability as to Products and Services”, and 13 “Indemnification” herein shall not apply to you if you are a resident of New Jersey. In consideration for your use and access to NTWRK’s mobile services, NTWRK’s software applications downloaded to your cellular device and NTWRK’s web application (“NTWRK Services”), and the promises and obligations herein, and intending to be legally bound, you and NTWRK hereby agree as follows:
Your access to and use of the NTWRK Services is subject to these Terms, which incorporate NTWRK’s separately posted Privacy Statement and other policies and modifications issued by NTWRK from time to time. Please read these Terms with care before you use the NTWRK Services. By using the NTWRK Services, you agree to and will be deemed to be bound by these Terms and all other applicable policies. If you do not want to be bound to these Terms for any reason, please do not use or access the NTWRK Services in any manner.
Arbitration Notice: Except for certain types of disputes described in section 16 below, you agree that disputes between you and NTWRK will be resolved by binding, individual arbitration. That means that there will be less discovery and less appellate review than in court and that an arbitrator, not a judge or jury, will decide any dispute. By using or accessing the NTWRK Services, you waive your right to bring an action in court before a judge or jury. You also waive your right to bring proceedings, or participate in, a class, consolidated, or representative, action or arbitration; and you hereby waive your right to a jury trial.
- Changes in Terms
NTWRK shall have the right at any time in its sole discretion to revise these Terms or to impose new terms and conditions with respect to the access or use of the NTWRK Services. Such revisions and additions shall be effective immediately upon notice thereof or as otherwise described in the notice, which may be given by any means, including without limitation, posting the revised or additional Terms on the NTWRK Services. You are responsible for reviewing these Terms periodically for any modification that may affect your rights or obligations hereunder. Any access or use of the NTWRK Services by you after notice of revisions or additions to these Terms shall constitute and be deemed to be your agreement to such revisions or additions. No modification to these Terms by any party other than NTWRK shall be valid or enforceable against NTWRK unless expressly agreed to in a writing signed by a duly authorized officer of NTWRK.
These Terms are effective until terminated by NTWRK. NTWRK may terminate these Terms without notice and at any time. In the event of termination, you are no longer authorized to access the NTWRK Services. Notwithstanding any termination of these Terms, all ownership provisions, disclaimers, indemnities and limitations of liability set forth in these Terms shall survive termination.
NTWRK shall have the right without notice and at any time to terminate all or any portion of the NTWRK Services, or any products or services offered through them, or to terminate any individual’s right to access or use all or any portion of the NTWRK Services.
- Compliance with Laws
You agree to comply with all laws, statutes, ordinances and regulations regarding your use of the NTWRK Services and your purchase of products or services through them. You must be at least 13 years old to use the NTWRK Services. Notwithstanding the foregoing, NTWRK has the right to raise the minimum age for its users at any time, whether permanently or temporarily, and may require you to submit information, including without limitation, your date of birth, to confirm your age. You will be informed of any such change when you attempt to login to the NTWRK Services. By using the NTWRK Services, you hereby confirm that you are at least the minimum age as required by NTWRK, but in no event less than 13 years old.
- Acceptable Use/Prohibited Conduct
As a condition of use, you promise not to use the NTWRK Services for any purpose that is prohibited by these Terms. You are responsible for all of your activity in connection with the NTWRK Service. You expressly agree that any action that you take on or through the NTWRK Service will not be: (1) defamatory, libelous, abusive or obscene, and without limitation, shall not include material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, federal or international law; (2) infringe on the copyright or any other proprietary right of any person or entity; (3) invade the privacy of any person; (4) contain a virus, worm, Trojan Horse, time bomb, or any other harmful program or component; or (5) otherwise be inappropriate or unlawful.
You also agree that you will not use the NTWRK Service to: (1) spam others or create mass emails; (2) continue inappropriate behavior if you have been warned of such; (3) use or launch any automated system or automated means, including without limitation, “robots”, “spiders” or “offline readers”; and/or (4) create a false identity. You agree not to copy, scrape, re-post, take screen shots of, save, share distribute, modify, reverse engineer, or make derivative works of any content or materials provided through the NTWRK Service, except as expressly provided through the NTWRK’s Service’s functionality and in the Terms.
You agree not to collect or harvest any personally identifiable information, including account names, from the NTWRK Service.
- NTWRK/Third-Party Content
The text, images, photographs, videos, graphics, logos, illustrations, descriptions, data, and other material provided by NTWRK on or through the NTWRK Services, as well as the selection, assembly and arrangement thereof, are collectively referred to as the “Content”.
The Content may contain errors and omissions or may be out of date. NTWRK may change, delete, or update any Content at any time with or without notice. The Content is provided for informational and entertainment purposes only and is not binding on NTWRK in any way.
Unless otherwise noted, all Content is protected by copyrights, trademarks, service marks, and other proprietary rights that are owned by NTWRK or third parties that have licensed their use to NTWRK. You may view and use the Content only for your personal entertainment and for shopping and ordering on or through the NTWRK Services. Except as provided in the foregoing, NTWRK does not grant you or any person the right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method or process whatsoever, whether now known or hereafter developed, any of the Content on or transmitted through the NTWRK Services, including without limitation, transferring, downloading, or otherwise copying any Content onto any storage medium. Any use of the Content, except as specifically permitted in these Terms or in a signed writing by NTWRK, is strictly prohibited.
As part of the NTWRK Services and/or your purchase of any product or service, NTWRK may, in its sole discretion, donate a specified dollar amount to a non-profit entity that NTWRK designates to receive such donation. NTWRK makes these donations at its sole discretion and makes no representations or warranties with respect to any particular non-profit, including without limitation, guaranteeing that the non-profit will receive the donation or use the donation for any specific purpose or result. Any tax benefits associated with donation will accrue, to the extent possible, to NTWRK.
NTWRK Content may incorporate a host and/or other talent (collectively, “Talent”) who strive to entertain you. Any Talent is not part of the NTWRK team and is not an official spokesperson or representative of NTWRK or any NTWRK product or service. As such, statements that Talent makes regarding products and services are made for entertainment purposes only, and may not be accurate, and you agree that NTWRK shall not be liable, either directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance on, any such content.
- Your Content
You are solely responsible for Your Content and the consequences of posting or publishing it. NTWRK assumes no responsibility for Your Content submitted by you or any other users of the NTWRK Service. You hereby affirm, represent and warrant that you own Your Content or that you have obtained all necessary licenses, rights, consents, and permissions to enable NTWRK to publish and otherwise utilize Your Content as authorized in these Terms.
You understand that the NTWRK Service is intended for public use and not for private communications and any submission of Your Content by you is made at your own risk.
NTWRK has no obligation to screen, edit, implement or monitor any of Your Content or other content accessed via the NTWRK Services or return Your Content to you for any reason. NTWRK reserves the right, and has absolute discretion, to remove, screen or edit any information posted or stored on the NTWRK Services at any time and for any reason without notice.
Notice and Procedure for Making Claims of Intellectual Property Infringement
If you are a copyright owner or an agent thereof, and believe that your work has been copied in a way that constitutes copyright infringement or your intellectual property rights have otherwise been violated pursuant to the Digital Millennium Copyright Act (“DMCA”), please provide the NTWRK designated copyright agent the written information specified below (see 17 U.S.C. Section 512(c)(3) for further detail):
- An electronic or physical signature of the person authorized to act on behalf of the copyright owner or other intellectual property interest;
- A description of the copyrighted work(s) or other intellectual property(ies) that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the NTWRK Services, if applicable, with reasonable specificity sufficient to permit NTWRK to locate the material;
- Your address, telephone number, facsimile 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 or other intellectual property owner, its agent, or the law; and
- A statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or other intellectual property owner or are authorized to act on behalf of the copyright or other intellectual property owner.
NTWRK copyright agent for notice of claims of copyright of other intellectual property infringement can be reached as follows:
P.O. Box 1058
1800 N Highland Avenue
Los Angeles CA, 90028
NTWRK will process any notices of alleged copyright infringement and will take appropriate actions under the DMCA. Upon receipt of notices complying with the DMCA, NTWRK will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity.
NTWRK may notify the owner of the affected content so that he or she can make a notification pursuant to his or her rights under the DMCA. If you receive such a notice, you may provide counter-notification in writing to the NTWRK designated copyright agent. To be effective, the counter-notification must be a written communication that includes the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared on the NTWRK Services before it was removed or access to it was disabled;
- A statement from you under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
- Your address, telephone number, facsimile number, and email address; and
- A statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside the United States, for any judicial district in which NTWRK may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or any agent of such person.
- Third-Party Sites and Content
Links to internet sites and mobile applications operated by third-parties, including NTWRK vendors and partners (“Linked Sites”), do not constitute sponsorship, endorsement or approval by NTWRK of the content, policies or practices of such Linked Sites. Linked Sites are not operated, controlled or maintained by NTWRK, and NTWRK is not responsible for the availability, content, security, policies or practices of Linked Sites, including without limitation, privacy policies and practices, and the quality, safety, legality or efficiency of any third-party products. Links to other sites, including without limitation, Linked Sites, are provided for your convenience and/or entertainment only, and you access them at your own risk.
To the extent any Content is provided by third parties, NTWRK includes it for informational purposes only. Pursuant to Section 230 of the Federal Communications Decency Act, providers of interactive computer services are not treated as publishers or speakers of information that is provided by other information content providers.
- NTWRK Account Registration
In order to access most of the features of the NTWRK Service, you are required to create and login to an account via certain account registration options as NTWRK may provide from time to time (“Account”). Your Account is free to create and maintain. You may only hold one Account per individual. You are solely responsible for any activities or actions taken on your Account, whether or not you have authorized such activities or actions. You agree that the information you provide to us about yourself (“Personal Information”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Personal Information to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use an Account that you are not authorized to use. If you become aware of any unauthorized use of your Account, you agree to notify us immediately at firstname.lastname@example.org.
- Prices; Orders; Shipping and Handling
All prices displayed on the NTWRK Services are quoted in United States Dollars. For Users purchasing outside of the United States, exchange rates are determined by the User’s financial institution. NTWRK does not have any control over the exchange rates applied to any particular transaction. NTWRK may restrict delivery to addresses located in the United States, outside of the United States or certain territories in NTWRK’s sole discretion. NTWRK will add shipping and handling fees and applicable sales/use tax. NTWRK reserves the right to discontinue or change specifications and prices on products and services offered through the NTWRK Services without prior notice and without incurring any obligation to you. Products and services offered on the NTWRK Services are available only while supplies last. NTWRK reserves the right to limit product orders to a maximum number of products per Account (including per shipping and/or billing address), as determined by NTWRK in its sole discretion. Descriptions of, or references to, products or services offered by the NTWRK Services do not imply endorsement of that product or service, or constitute a warranty, by NTWRK. All product images and descriptions on the NTWRK Service are shown for entertainment purposes only and may not be wholly representative of the products offered via the NTWRK Services and their features. Products may have slight variations, including but not limited to, variations in color, size and packaging, from the images shown on the NTWRK Service.
Your receipt of an order confirmation (whether via email, through the NTWRK Services, or otherwise) does not constitute NTWRK’s acceptance of an order. Prior to, and as a condition of, acceptance of an order, verification of information and approval of the order may be required. NTWRK reserves the right at any time after receipt of your order to accept or decline your order, or any portion thereof, even after your receipt of an order confirmation from NTWRK, for any reason. NTWRK reserves the right to refuse service to any customer without prior notification.
The risk of loss and title for all products purchased by you and shipped by NTWRK or one of NTWRK’s vendors shall pass to you upon NTWRK or NTWRK’s vendor’s delivery to the carrier for shipment.
Shipping and handling fees include, among other things, labor costs to receive, select and package the item for shipment, the costs of packaging and other supplies, internal (overhead) costs to process the other and fees paid to the carriers who ship and deliver the item to you, so the shipping and handling fee may exceed the actual fee paid by NTWRK to its carriers to send the item to you. Sales tax may be assessed on the shipping and handling fee in certain states, where applicable.
- Disclaimer and Limitation of Liability as to the NTWRK Content
NTWRK MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE NTWRK SERVICES, ANY LINKED SITE, OR THE CONTENT, INCLUDING WITHOUT LIMITATION, THE AVAILABILITY OF ANY SITE OR THE CONTENT, INFORMATION AND MATERIALS ON IT, OR THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE CONTENT, INFORMATION AND MATERIAL. NTWRK DOES NOT WARRANT OR REPRESENT THAT YOUR ACCESS TO, OR USE OF, THE NTWRK SERVICES OR ANY LINKED SITE WILL BE UNINTERRUPTED, FREE FROM ERRORS OR OMISSIONS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE NTWRK SERVICES OR ANY LINKED SITE IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, ALL CONTENT PROVIDED ON OR THROUGH THE NTWRK SERVICES IS PROVIDED TO USERS “AS-IS”, WITH NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. THE “AS-IS” CONDITION OF CONTENT IS EXPRESSLY MADE A CONDITION OF ANY TRANSACTION ARISING THROUGH OR AS A RESULT OF THE NTWRK SERVICES. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
UNDER NO CIRCUMSTANCES SHALL NTWRK, ITS AFFILIATED AND RELATED ENTITIES, ITS AND THEIR SUPPLIERS, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE “NTWRK RELEASEES”) BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, ARISING IN ANY WAY OUT OF ACCESS TO, OR USE OF, OR INABILITY TO ACCESS OR USE ANY OF THE NTWRK SERVICES OR ANY LINKED SITE OR ITS CONTENTS, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, WITHOUT REGARD TO WHETHER NTWRK IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Disclaimer and Limitation of Liability as to Products and Services
ALL PRODUCTS SOLD BY NTWRK ARE SUBJECT TO ANY APPLICABLE WARRANTIES AND REPRESENTATIONS OF THEIR RESPECTIVE MANUFACTURERS, IF ANY. ACCORDINGLY, NTWRK MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY PRODUCT OR SERVICE AVAILABLE OR SOLD ON THE NTWRK SERVICES. EXCEPT AS EXPRESSLY STATED HEREIN, NTWRK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO PRODUCTS OR SERVICES AVAILABLE OR SOLD THROUGH THE NTWRK SERVICES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
UNDER NO CIRCUMSTANCES SHALL THE NTWRK RELEASEES BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, ARISING IN ANY WAY OUT OF ANY PRODUCT OR SERVICE AVAILABLE, SOLD OR PROVIDED THROUGH THE NTWRK SERVICES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, WITHOUT REGARD TO WHETHER NTWRK IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NTWRK’S LIABILITY EXCEED THE PRICE YOU PAID FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM.
All sales are final, and all products and services are provided “AS IS” and on an “AS AVAILABLE” basis. There are no refunds on products purchased via the NTWRK Services, and THE ENTIRE RISK AS TO THE PRODUCT PURCHASED IS ASSUMED BY YOU. We may in our sole discretion and without any obligation, assist you in returning or exchanging a product in the event the product is damaged or defective.
You agree to defend, indemnify and hold harmless NTWRK, NTWRK’s vendors, and its and their affiliated and related entities and its and their respective directors, officers, employees and agents from and against all claims, losses, damages, liabilities and costs (including without limitation, reasonable attorneys’ fees, reasonable expert witness fees and court costs), arising out of or related to your breach of these Terms or your access to, use or misuse of, the NTWRK Services, including without limitation, Your Content, and your violation of the rights of any third party. The foregoing indemnification obligation shall survive termination of these Terms and the operation of the NTWRK Services or any services or product available, sold or provided to you arising out of or related to your use of the NTWRK Services. NTWRK reserves the right in its sole election, and at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify NTWRK, and you agree to cooperate with NTWRK’s defense of any such claims.
- Messages and Notifications
You may have the opportunity to elect to receive text messages, emails, newsletters, push notifications and/or other means by which NTWRK may communicate with you, including without limitation, regarding the NTWRK Services and products and services available through the NTWRK Services (collectively, “Communications”). The Communications may be communicated by any lawful means, including without limitation, automatic telephone dialing systems, MMS, SMS or other technology, regardless of whether you have opted in to the National Do Not Call List, any state Do Not Call List, or the internal Do Not Call List of any company. You may be required to respond to an initial message as instructed to complete your registration and confirm your consent to receive Communications. The enrollment process may include information regarding the approximate frequency of Communication you can expect to receive, as well as an option to cancel your enrollment. You may also cancel your enrollment at any time by submitting a request here. If you choose to cancel text messaging, you agree to receive a final text message confirming your cancellation. In the event you change or deactivate your mobile telephone number, you agree to promptly notify us in order to ensure that your messages are not sent to the person who acquires your old mobile phone number. Your consent to receive Communications is not required as a condition of purchase products or services using the NTWRK Services.
- Mobile Services
The NTWRK Services include services that are available to you via your mobile phone or other mobile device (“Mobile Services”). The Mobile Services may include the ability to use your mobile device to place orders, receive and reply to Communications, and access certain other features of the NTWRK Services. Although NTWRK does not charge you for these Mobile Services, your mobile carrier's standard data and other rates and fees may apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you.
You agree that any Dispute between you and NTWRK shall be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and less appellate review than in court. "Dispute" shall be interpreted broadly and shall include any claim or controversy arising from or relating to these Terms or your purchase or use of any product or services, including for example any: (1) claims for relief or theories of liability, whether based in contract, tort, statute or otherwise; (2) claims that arose before these Terms; and (3) claims that arise after the cancelation or expiration of these Terms. "Dispute" shall not, however, include any issues relating to the existence, scope, or validity of this arbitration provision.
Notwithstanding anything in this arbitration provision to the contrary, either you or NTWRK may bring an individual action in small claims court if the claim is within the jurisdiction of that court.
For all Disputes whether pursued in small claims court or arbitration, you must first give NTWRK an opportunity to resolve your claim through good faith negotiation by sending a written description of your claim to Commerce Media Holdings LLC, Attn.: General Counsel, P.O. Box 1058, 8033 Sunset Blvd., Los Angeles, CA 90046. If NTWRK is unable to resolve the claim within 60 days after NTWRK’s receipt thereof, you may pursue your claim in arbitration (or in small claims court, if applicable). You agree that if you fail to timely pay amounts due, NTWRK may assign your account for collection, and the collection agency may pursue though any lawful means, including in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law.
In order to initiate arbitration proceedings pursuant to these Terms, you must send a letter requesting arbitration and describing your claim to our registered agent, The Corporation Trust Company, to begin arbitration, at the following address:
Commerce Media Holdings LLC, doing business as NTWRK
c/o The Corporation Trust Company
1209 Orange Street
Corporation Trust Center
Wilmington, DE 19801
You agree that the Federal Arbitration Act and federal arbitration laws apply to these Terms. The Dispute will be arbitrated by a mutually agreeable neutral arbitrator. If you and NTWRK cannot agree on the selection of an arbitrator within 30 days of the date that the request for arbitration was received by The Corporation Trust Company, the Dispute will be arbitrated by JAMS arbitration services. Unless you and NTWRK agree to use a different set of rules, the arbitrator will use the applicable JAMS arbitration rules. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-JAMS.
Upon filing of the arbitration request, NTWRK will pay all filing, administration, and arbitrator fees for the arbitration proceeding. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys' fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys' fees and costs regardless of whether they would have been available in a court unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration were frivolous or brought for an improper purpose pursuant to the Federal Rules of Civil Procedure.
YOU AND NTWRK AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU AND NTWRK WAIVE THE RIGHT TO PROSECUTE OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, OR OTHER REPRESENTATIVE ACTION. YOU AND NTWRK MAY SEEK RELIEF ONLY ON BEHALF OF THE RESPECTIVE PARTIES AND ONLY TO THE EXTENT NECESSARY TO REMEDY THE RESPECTIVE PARTIES’ INDIVIDUAL CLAIMS. THIS CLASS ACTION WAIVER IS A MATERIAL AND ESSENTIAL PART OF AND CANNOT BE SEVERED FROM THIS ARBITRATION PROVISION. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION. IF A CLAIM OR ACTION PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND NTWRK WAIVE ANY RIGHT TO A JURY TRIAL.
- Governing Law
Access to or use of the NTWRK Services shall not be construed as NTWRK’s purposeful availment of the privilege or benefits of doing business in any state or legal jurisdiction other than Delaware. These Terms, and any claim or action arising out of or relating to these Terms, shall be governed by and construed in accordance with the Federal Arbitration Act, applicable federal law, and the laws of Delaware, without regard to conflicts of law provisions; provided, however, that if you are a resident of the State of New Jersey, these Terms, and any claim or action arising out of or relating to these Terms, shall be governed by and construed in accordance with the Federal Arbitration Act, applicable federal law, and the laws of the State of New Jersey, without regard to conflict of law provisions. If any claim or action proceeds in court rather than through arbitration, the sole and exclusive jurisdiction for any such claim or action shall be in the state courts of California for Los Angeles County and the federal courts for the Central District of California; provided, however, that if you are a resident of the State of New Jersey, the sole and exclusive jurisdiction for any such claim or action shall be in the state courts of the State of New Jersey for the County of Gloucester and the federal courts for the District of New Jersey.
- Invite A Friend
The “Invite A Friend” promotion (“Promotion”) allows users to earn monetary credits (“Credits”) toward future purchases by referring friends to become new users of the NTWRK Services. Registered users of the NTWRK Services (“Users”) can earn Credits by: (i) inviting a friend to register for the NTWRK Services, if and when such friend creates a valid user account that complies with these Terms; or (ii) being invited by an existing User to create a user account, and actually creating a valid user account that complies with these Terms.
The maximum Credit that can be earned per registered User is the equivalent of One Thousand United States Dollars ($1,000) total, unless otherwise determined by NTWRK in its sole discretion. NTWRK reserves the right to determine the amount of Credits to be earned in connection with inviting a friend and similar transactions, and NTWRK may change such amount at any time in its sole discretion. NTWRK further reserves the right to cap the total amount of Credits that can be applied toward any single transaction and/or item or disallow the use of Credits to purchase a particular item. NTWRK further reserves the right to limit the amount of time for which Credits are valid. Credits may only be redeemed through the NTWRK Services. Credits are coupons issued for promotional purposes; they have no cash value and may not be transferred (to other users or otherwise) or exchanged for cash. Credits may not be earned by creating multiple user accounts. Credits from multiple accounts may not be combined into one NTWRK account.
If for any reason you believe that there is a discrepancy regarding your balance of Credits, please contact us. NTWRK may require to you to submit additional information in order to make a determination regarding your balance. All decisions regarding your balance will be final and at NTWRK’s sole discretion.
You are responsible for all tax consequences, if any, that may result from your redemption or use of Credits. Credit may only be applied to the list purchase price of a product and may not be applied toward any charges in connection with taxes and/or shipping, which costs shall be borne solely by the purchaser.
Referrals may only be used for personal and non-commercial purposes. Referral links and codes should not be published or distributed on commercial websites (for example, Reddit or Wikipedia) and/or personal blogs or social media profiles. Users are prohibited from “spamming” anyone with referral links and/or referral codes. This includes, without limitation, mass emailing, advertising, texting or messaging people you do not know or using automated systems or bots through any channel to distribute your referral link and/or referral code.
NTWRK may suspend or terminate the Promotion and/or a User’s ability to participate in the Promotion at any time for any reason in NTWRK’s sole discretion. NTWRK reserves the right to suspend User accounts and/or rescind Credits if we notice any activity that we believe in our sole discretion is abusive, fraudulent, or in violation of the Terms or any other agreement between User and NTWRK.
The scope, variety and type of services and products that you may obtain by redeeming Credits are subject to change at any time in NTWRK’s sole discretion.
NTWRK may, from time to time, offer Users the opportunity to purchase products using a random entry system (“Drawing”).
NO PURCHASE IS NECESSARY TO ENTER OR PARTICIPATE IN A DRAWING. A PURCHASE OR PAYMENTS OF ANY KIND WILL NOT INCREASE YOUR CHANCES OF BEING ELIGIBLE TO PURCHASE A PRODUCT THROUGH A DRAWING. VOID WHERE PROHIBITED.
Drawings are only open to Users who are thirteen (18) years or older at the time of entry. Your participation in any Drawing constitutes your full and unconditional agreement to these Terms and the decision of any Drawing sponsor (“Sponsor”), which is final and binding in all matters related to the Drawing. Eligibility is contingent upon fulfilling all requirements set forth herein.
Please note, Apple Inc. is not a sponsor, or involved in any manner, in any drawings that Commerce Media Holdings LLC are operating.
Unless otherwise specified by NTWRK or Sponsor, Users are limited to up to (2) entries per person, subject to these Terms. Subsequent registrations will be void. NTWRK employees, family members of NTWRK employees, and cohabitants of NTWRK employees (collectively, “NTWRK Employees”) are not eligible to participate in any Drawing. In the event a NTWRK Employee wins a Drawing, any prize shall be forfeited, and in NTWRK’s sole discretion, NTWRK will randomly select an alternate winner.
Users are entitled to one (1) entry each. Users may be entitled to additional entries, subject to the following: (i) User may share User’s personalized code with an unlimited number of friends; (ii) for each one (1) of User’s friends who sign up for the NTWRK Services, enter User’s personalized code, and enter a Drawing, User shall receive one (1) additional entry. Users may use up to two (2) entries per Drawing. Users are entitled to save any remaining entries and apply them toward future Drawings.
NTWRK or the Sponsor will select the winners of the Drawing randomly from all entries received for each available size. The odds of receiving eligibility to purchase a designated product depend on the number of eligible entries received and the availability of products by size. When a User enters a Drawing, NTWRK will place a hold on the User’s credit card for the full retail price of the applicable product or other amount as specified by NTWRK or Sponsor. The winners will be notified by email and/or text message within twenty-four (24) hours of the Drawing closing, and winners’ credit cards will automatically be charged for the price of the product or other amount as specified by NTWRK or Sponsor plus shipping and handling and the applicable sales tax. In the event that any winner’s credit card is declined and/or the charge does not go through for any reason, then NTWRK may, in its sole discretion, select an alternate winner. In the event any winner violates these Terms, then NTWRK may, in its sole discretion, select an alternate winner. All credit card holds for non-winning entrants shall be released within a reasonable amount of time following the conclusion of the applicable Drawing, subject to the applicable bank or credit card’s policies.
Any details not specified above will be determined by NTWRK or Sponsor in its sole discretion. Eligibility to purchase products is not transferable and must be accepted as awarded by NTWRK or Sponsor in its sole discretion. No cash or other substitution may be made, except by NTWRK or Sponsor in its sole discretion, who reserves the right to substitute eligibility with another promotion if the product is not available for any reason as determined by NTWRK or Sponsor in its sole discretion. The winner is responsible for any and all other costs and expenses not listed above, including all tax consequences.
NTWRK and Sponsor reserve the right to block and/or refuse sale to any participant in the Drawing that NTWRK or Sponsor, in its sole discretion, deems has attempted to cheat or abuse the process, including through the use of programs or scripts that allow users to automate their entries, or engaged in behavior that NTWRK or Sponsor deems inappropriate and/or in violation of these Terms. NTWRK and Sponsor reserve the right to block any User from the NTWRK Services, the NTWRK mobile and web applications, and any official NTWRK and Sponsor social media accounts or websites, which would prevent the user from participation in the Drawing. Factors that would cause NTWRK or Sponsor to block Users include, but are not limited to, threats, harassment, annoyance or any other behavior that NTWRK or Sponsor deems inappropriate in its sole discretion. Any attempt by any person to undermine the legitimate operation of the Drawing may be a violation of criminal and civil law, and, should such an attempt be made, the Sponsor reserves the right to seek damages from any such person to the fullest extent permitted by law. Failure by the Sponsor to enforce any term of these Terms and Conditions shall not constitute a waiver of that provision.
Users with winning entries must comply with all post-confirmation steps as notified to User by NTWRK or Sponsor in order to purchase the applicable product.
While Sponsor attempts to fulfill all confirmed winning entries, Sponsor does not guarantee or warrant that every winning entry for a product order will be fulfilled. The Drawing is subject to federal, state, and local laws and regulations and is void where prohibited by law. In the event that the operation, security, or administration of the Drawing is impaired in any way for any reason, including, but not limited to fraud, virus, or other technical problem, the Sponsor may, in its sole discretion, either:(a)cancel or terminate the Drawing; (b) suspend the Drawing to address the impairment and then resume the Drawing in a manner that best conforms to the spirit of these Terms; or(c)award the eligibility to purchase product at random from among the eligible entries received up to the time of the impairment. In the event Sponsor is prevented from continuing with the Drawing or the integrity and/or feasibility of the Drawing is severely undermined by any event beyond the control of Sponsor, including but not limited to fire, flood, epidemic, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, war (declared or undeclared), terrorist threat or activity, or any federal, state or local government law, order, or regulation, order of any court or jurisdiction, infection by computer virus, unauthorized intervention, technical failures or other cause not reasonably within the control of Sponsor (each a "Force Majeure" event or occurrence), Sponsor shall have the right, in its sole discretion, to abbreviate, modify, suspend, cancel or terminate the Drawing without any further obligation.
By participating in the Drawing, Users agree to release and hold harmless NTWRK, the Sponsor, its and their parent and related companies, and their respective officers, directors, employees, and agents (the "Released Parties") from and against any claim or cause of action arising out of participation in the Drawing or purchase of product, including, but not limited to:(a) unauthorized human intervention in the Drawing; (b) technical errors related to computers, servers, providers, or telephone or network lines; (c) printing errors; (d) errors in the administration of the Drawing or the processing of entries; or (e) injury or damage to persons or property which may be caused, directly or indirectly, in whole or in part, from User’s participation in the Drawing or purchase of product. Entrant further agrees that in any cause of action, the Released Parties' liability will be limited to the cost of the applicable product, and in no event shall the Released Parties be liable for attorney's fees. User waives the right to claim any damages whatsoever, including, but not limited to, punitive, consequential, direct, or indirect damages. User agrees that the Released Parties have made no warranty, representation or guarantee, expressed or implied, in fact or in law, relating to any eligibility to purchase any product.
NTWRK may, from time to time, offer games and other interactive experiences through the
NTWRK Services (“Games”). NTWRK may, in its sole discretion, award prizes to Users based on
their performance in a Game (e.g., NTWRK may award a prize(s) to the high scorer(s) in any
NTWRK reserves the right to disqualify any User who NTWRK, in its sole discretion, deems has
attempted to cheat or abuse the process, including creating duplicate accounts, utilizing bots or
any other automated method of participating in the Games and/or engaging in behavior that
NTWRK believes, in its sole discretion, is fraudulent or in violation of the Terms or any other
agreement between User and NTWRK. In the event that multiple user accounts are linked to
the same device ID, NTWRK will use the lowest score linked to any single device ID for the
purpose of determining prize recipients, and all other scores shall be disqualified.
NTWRK is a marketplace where Users can view, shop, and purchase items through the NTWRK Services. As part of the NTWRK Services, Users may purchase products in live show auctions (“Auction(s)”). By using the Services in any manner, you agree to be bound by the terms and conditions set forth in these Terms.
In allowing third party sellers (“Seller(s)”) to list products for sale by Auction (each an “Auction Product” or “Product”) on NTWRK Services, NTWRK acts as an intermediary platform provider allowing you to communicate and connect with Sellers and other Users in connection with any product offered for sale, made available for promotion, advertised or sold through the NTWRK Services. NTWRK is not an auction house and we are not conducting live auctions. The purchase of any product through the NTWRK Services forms a binding contractual agreement solely between you, as the buyer, and the Seller.
If you participate in an Auction, you agree to pay all fees and costs in accordance with the Prices; Orders; Shipping and Handling section of these Terms and to be bound by the following Auction Rules, as may be updated by NTWRK from time to time.
- You Bid, You Buy. It's important for the integrity of an Auction—If you bid on something you should be prepared to buy it. If you fail to pay or complete any transaction, NTWRK may, in its sole discretion, deactivate your account and/or terminate your use of the Services completely.
- Clear Errors or Glitches. If there has been a clear error by a user (e.g., bidding $1,050.00 instead of $50.00), NTWRK may cancel the original Auction, and the Auction Product may be re-auctioned thereafter.
- No Shill Bidding. You can only bid if you intend to buy the Auction Product. Any evidence of bidding up prices may result in permanent termination of your account. Shill bidding (i.e., bidding on Auction Products listed for auction to artificially inflate prices, including without limitation, placing consecutive or successive bids or bids in response to other Bidders) is strictly prohibited by NTWRK.
- All Sales Are Final. NTWRK operates under an All Sales Final Policy. All sales made on the NTWRK Services, including Auction sales, are final sale, except in cases of fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information.
NTWRK has eligibility requirements that must be met by users in order to participate in an Auction. You may be required to apply for or obtain approval from NTWRK in order to partake in an Auction. NTWRK reserves the right to establish additional and/or alternative eligibility requirements at any time, whether permanently or temporarily, as NTWRK deems reasonable.
Prior to participating in a live show Auction, NTWRK users must have a valid payment method on file. If you do not have a valid payment method on file, you are restricted from participating in the Auction and placing a bid. A user without a form of payment on file (a “Viewer”) may only watch the live show Auction as a viewer. A user with a payment method on file (a “Bidder”) may watch the live show Auction, bid on the Auction Product(s), and participate in the Auction until the close of the Auction. All users have a real-time view of how the Auction is performing during the live show.
NTWRK provides a platform for Sellers to facilitate live auctions and Users to purchase the auctioned products. You agree that NTWRK will not be a party to any consignment agreement or any other contractual relationship between you and the Seller or any other third party in connection with the sale, purchase, and/or transfer of the Auction Product.
Auctions begin with the price of the Auction Product set at the initial minimum bid for the Product, and Bidders have the opportunity to bid up the price from the time the Auction begins to the close of the Auction. When an Auction closes, the highest Bidder at the time of close has won the Auction, and the Product.
You may also have the ability to purchase Auction Products at a “Buy Now” Price. Bidders are able to purchase Products through NTWRK’s “Buy Now” feature when the Seller sets a specific fixed price for which the Auction Product will automatically sell at (the “Buy Now Price”). In doing so, Sellers create a binding offer to sell the Auction Product at the Buy Now Price. When the Buy Now Price aligns with a Bidder’s specified buying price, the Auction Product will be withdrawn from the Auction, the transaction will be processed, and the Auction will close, regardless of the Auction Length.
If you are the winning Bidder, you agree to be solely responsible for and bear all risk associated with the purchase of the Auction Product, include the associated risk of loss and title as set forth herein.
REMOVAL OF PRODUCTS
NTWRK may remove a Product listing or live show Auction Products without any notice if, in NTWRK’s sole discretion (i) there is doubt as to the accuracy of the Product information, (ii) there is doubt about the authenticity or legitimacy of the Seller, or the validity of the Seller’s business or Product, (iii) there is doubt as to clear title or ownership, including ownership of intellectual property, of the Product, or (iv) such Product offering may expose NTWRK to potential liability or the threat of litigation. NTWRK shall not have any liability for removal of property under this section.
BIDDING, BUYING AND CONDITIONS OF SALE
The rules for how bids are accepted, bid increments, bid retraction and cancellation, the conditions user must meet to purchase a Product, as well as the specific conditions of sale may change for each Auction.
Manual bidding is a bidding method that lets Bidders customize and set their own bid during a live show Auction. This differs from automated bid strategies, which sets bid amounts for you. Manual bidding gives Bidders control to customize each bid the Bidder places on an Auction Product.
Automatic bidding is a bidding method that allows Bidders to quickly place a bid on an Auction Product where the price the Bidder bids is determined by the current bid price for the Auction Product. Through NTWRK’s automatic bidding process, when Bidders place a bid, the Bidder enters the maximum amount that they are willing to pay for the Auction Product (“Maximum Bid”). The amount the Bidder enters can be the next minimum bid indicated on the live show Auction page or any greater amount.
When you enter a Maximum Bid, the system will automatically place a bid for you at the amount of the next minimum bid, according to our automatic bidding increments. As the Auction continues, the system will continue to bid automatically for you by increments, up to your Maximum Bid, only as much as necessary to maintain your position as the highest bidder.
The increments are based on the current bid of each Product and increase at the following intervals, when the current bid is:
- <$20: Increment by $1
- <$20 to $50: Increment by $2
- $50 to $100: Increment by $5
- $100 to $500: Increment by $10
- $500 to $1000: Increment by $20
- $1000 to $2000: Increment by $50
- $2000 to $4000: Increment by $100
- $4000 to $8000: Increment by $200
- $8000 and above: Increment by $300
NTWRK reserved the right modify, add or remove bidding increments at our sole discretion at any time before, during or after any Auction.
All Bids are Final
Once you have participated in an Auction, placed a bid on the Auction Product, and your bid is confirmed on the NTWRK Services, your bid cannot be withdrawn, except in cases where the completion of the transaction would violate any applicable laws or in cases of fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information.
Each Bidder that places a bid is required to complete the transaction if they place the winning bid (or their bid is otherwise accepted), as a bid is a legally binding commitment to purchase the Auction Product if the Bidder is the winner of the Auction. When you place a bid on any Product, you are accepting personal liability for the purchase price, any applicable taxes, any and all shipping costs, and all other applicable charges in accordance with these Terms.
At the close of the Auction, the winner of the Auction (i.e., the Bidder with the highest bid as of the Auction close) will be announced to the Seller hosting the Auction, Bidders partaking in the Auction, and Viewers viewing the Auction. Immediately at the time of Auction close, the transaction for the Auction Product should automatically be processed based on the winning Bidder’s default shipping destination and payment method on file. Winning Bidders will be charged the total amount of the transaction, which includes the purchase price plus all applicable fees as set forth herein and on the NTWRK Services.
Failure to Purchase
If you are the winning Bidder and the transaction fails to process at the conclusion of an Auction, whether due to a declined or expired payment method or otherwise, you will be prompted to complete the purchase for the Auction Product by either reviewing the default payment method on file or providing an alternative valid payment method in an attempt to process the transaction.
If the reprocess attempt is unsuccessful, you will have three (3) days to resolve the processing issue and provide a valid payment method. During this time period, you are blocked from participating in any Auctions on the NTWRK Services until you complete the purchase and the transaction is processed. If within this three (3) day window, you do not provide information sufficient to allow for the transaction to be processed, or the Seller does not cancel the transaction before you provide a valid payment method, NTWRK may terminate your use of the NTWRK Services and/or deactivate your account.
You shall be responsible for and agree to defend, indemnify, and hold NTWRK, its shareholders, members, partners, officers, directors, employees, agents, parent company, subsidiaries, affiliates, joint venturers, successors and assigns, harmless from, and against, any causes of action, suits, claims, demands, judgments, liabilities, losses, damages, awards, penalties, fines, costs and expenses (including, but not limited to, reasonable attorney's fees), arising out of, relating to, or resulting from, any Action(s) you purchased Product(s) through as the winning Bidder and/or attempted to purchase Product(s) through, and all transactions, whether attempted, invalid, completed or uncompleted in association therewith.
These Terms constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all previous written or oral agreements between the parties with respect to such subject matter. No waiver by NTWRK of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The headings and captions in these Terms are intended for convenience only and shall in no way affect the interpretation of the Terms. Nothing in these Terms shall be construed to create a partnership, joint venture or agency relationship between you and NTWRK. You may not assign any of your rights or delegate any of your duties under these Terms without the prior written consent of NTWRK. NTWRK may assign these Terms and/or any of its rights, and delegate its duties in its discretion. Any purported assignment which is inconsistent with the foregoing shall be null and void. In the event any provision of these Terms shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. All representations, warranties and indemnities contained herein or made by you in connection herewith shall survive any termination, expiration or suspension of your rights under these Terms. These Terms cannot be amended except by a writing signed by both parties. No party hereto has relied on any statement, representation or promise of any other party or with any other officer, agent, employee or attorney for the other party in executing these Terms, except as expressly stated herein.
NTWRK shall not be liable for any nonperformance or delay in performance caused by any act beyond its reasonable control, including without limitation, acts or omissions of third-parties, unavailability of supplies, equipment failure, war, strikes, lock-outs, fire, flood, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.