Last Updated: 12/4/2024
Welcome to TopModern
Net Retailers, LLC together with its brands LuxeDecor, PatioLiving, TopModern and PatioContract (and their affiliates, subsidiaries, and related companies, "Net Retailers", "we", "us" or "our"), provide website features and other products and services to you when you visit or shop our family of websites (including mobile websites) and, or use our software in connection with any of the foregoing, in each case subject to your compliance with these Terms of Use. Our family of websites and applications includes LuxeDecor.com, PatioLiving.com, TopModern.com, PatioContract.com and NetRetailers.net (collectively, the "Sites").
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SITES. These Terms of Use constitute an agreement between Net Retailers and you. Additional terms and conditions apply to some services offered on the Sites (e.g., the Net Retailers Trade Program and Gift Certificates) or through other channels. Those terms and conditions can be found where the relevant service is offered on the Sites or otherwise and are incorporated into these Terms of Use by reference. We recommend that you print out a copy of these Terms of Use for your records.
By using, access, or otherwise browsing the Sites, you affirm that you are able and legally competent to agree to and comply with these Terms of Use. You agree that the agreement formed by these Terms of Use is like any written, negotiated agreement signed by you, and you agree to be bound by, and fully comply with, its terms. You represent and warrant that you have all necessary rights, power, and authority to enter into this agreement and to perform and otherwise discharge all of your obligations hereunder, whether on behalf of yourself or any entity that you represent. If you do not agree to these Terms of Use or if you are not legally competent to agree to them, then you may not use the Sites.
IMPORTANT: Please note that these Terms of Use contain provisions that govern the resolution of claims between Net Retailers and you, including an arbitration agreement, class action waiver, and jury trial waiver that affect your rights. Except where prohibited by applicable law, these Terms of Use require you to arbitrate disputes with us rather than resolve disputes through a judge or jury trial, or any court proceedings, or class actions of any kind. In arbitration, there is no judge or jury and less discovery and appellate review than in court. By accessing, or using the Sites, you hereby waive any and all rights to initiate or participate in any class action lawsuit or representative action with respect to any disputes or claims arising out of or relating to these Terms of Use or the Sites. Please see the Legal Disputes section for complete details and review carefully.
Privacy & Security
Please review our Privacy Notice, which is incorporated into these Terms of Use and also governs your use of the Sites. To the extent there is a conflict between the terms of the Privacy Notice and these Terms of Use, the Terms of Use govern.
Information security is important to Net Retailers. We have established appropriate physical, electronic and managerial safeguards designed to protect the information that we collect from or about our users from reasonably anticipated threats. Without limiting the terms of our Privacy Notice, Net Retailers does, however, reserve the right at all times to disclose any information as Net Retailers deems necessary to satisfy any applicable law, regulation, legal process or governmental request. Please click here for more information.
You are responsible for all activities that occur under your account on the Sites, and for establishing security procedures for maintaining the security and confidentiality of passwords associated with your account. You are deemed to have taken any and all acts or omissions that occur under your account. You may not share your account or password with anyone, and you agree to (1) notify Net Retailers immediately of any unauthorized access to or use of your password or any other breach of security; and (2) exit from your account at the end of each session on the Sites. You agree not to create an account using a false identity or information, or on behalf of someone other than yourself.
Changes
Net Retailers reserves the right, at any time, to change these Terms of Use, our Privacy Notice or the Sites. Changes, however, shall not apply retroactively to claims for which you or Net Retailers have given notice. Any changes we make to these Terms of Use, our Privacy Notice, or the Sites will be effective immediately upon posting. Your use of the Sites following any such change constitutes your agreement to follow and be bound by the Terms of Use and/or Privacy Notice as revised. The revised Terms of Use and/or Privacy Notice supersede all previous versions, notices or statements regarding the Sites. If we request, you agree to sign a non-electronic version of these Terms of Use.
We will notify you of any change to these Terms of Use by any reasonable means, such as by updating the "Last Updated" date at the top of these Terms of Use.
Net Retailers reserves the right at any time and with or without notice to you, to change (i) the Sites, including, without limitation, eliminating, supplementing, modifying, adding, or discontinuing any content, feature, data, or service on or available through the Sites, or the hours during which they are available; and (ii) the prices and fees (if any) set forth on the Sites. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Sites, or any component of, or good or product listed on the Sites. We reserve the right to limit the availability of the Site, Site Content, or goods or products offered thereon to any person, geographic area, or jurisdiction we so desire, at any time and in our sole discretion.
General Conditions and Disclaimers
The Sites are only for personal use. You may not use the Sites in any way that is unlawful, that violates these Terms of Use, or that Harms us or any other person or entity.
We reserve the right to refuse service, and/or use of or access to the Sites to anyone at any time. You hereby acknowledge and agree that we have no liability for interruptions or omissions in Internet, network, or hosting services, and does not warrant that the Sites or the services which make the Sites available or electronic communications sent by Net Retailers will be available and free from viruses or any other harmful elements.
Any material downloaded or otherwise obtained through the use of the Sites is done at your own discretion and risk. You are and will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
Occasionally there may be information on our Sites that contains typographical errors, inaccuracies, or omissions that may relate to item descriptions, pricing, promotions, offers, shipping charges, transit times, and availability. We reserve the right, but are not obligated, to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Sites or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). Notwithstanding the above, we undertake no obligation to update, amend or clarify information on the Sites or on any related website, including, without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Sites or on any related website should be taken to indicate that all information in the Sites or on any related website has been modified or updated.
Intellectual Property Rights
The Sites contain valuable trademarks, service marks, and other intellectual property rights owned and used by Net Retailers, including but not limited to, Net Retailers, the Net Retailers design logo, Net Retailers (collectively, the "Net Retailer Marks"). Any use of the Net Retailers Marks without the prior written permission of Net Retailers is strictly prohibited. The arrangement and layout of the Sites, including but not limited to, the Net Retailers Marks, images, text, graphics, buttons, screenshots, music, digitally downloadable files, and other content or material (collectively, the "Site Content"), are the sole and exclusive property of Net Retailers. Any unauthorized use of any Site Content or Net Retailer Marks is prohibited and may be prosecuted to the fullest extent of the law. No licenses, express or implied, are granted by Net Retailers to you under any patent, copyright, trademark, trade secret, or other intellectual property right of Net Retailers and all such rights are reserved and retained by Net Retailers. ALL RIGHTS RESERVED.
If you download or use Site Content, you agree that such materials are licensed for your limited personal use only and not sold or assigned and: (i) may only be used for your personal and non-commercial use; (ii) may not be modified, used to create a derivative work, incorporated into any other work or otherwise exploited without Net Retailer’s prior written permission; and (iii) shall only be used in compliance these Terms of Use and with any additional license terms accompanying such materials. Net Retailers does not transfer either the title or the intellectual property rights to Site Content and retains full and complete title to Site Content as well as all intellectual property rights therein. You agree not to sell, share, redistribute, or reproduce the Site Content. You further agree not to decompile, reverse-engineer, disassemble, or otherwise convert any compiled Site Content or the Sites into a human-perceivable form. Any unauthorized use of the materials appearing on the Sites, Site Content or Net Retailer Marks may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
UNAUTHORIZED COPYING, REPRODUCTION, MODIFYING, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING, MAKING DERIVATIVE WORKS OF OR DUPLICATING ALL OR ANY PART OF THE SITES, NET RETAILER MARKS, OR SITE CONTENT IS PROHIBITED.
Net Retailers uses a network of independent product and content suppliers, distributors and other such third parties to supply some of the products and content advertised on the Sites. All other trademarks, service marks, product names, package designs and company names or logos associated with these product and content suppliers, distributors and other such third parties that are not owned by us but appear on the Sites are the property of their respective owners.
Copyright Policy
If you know or suspect that any of the materials on the Sites have been used or copied in a way that constitutes copyright infringement, please send notice to our designated agent identified below. According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:
The designated agent for notice of copyright infringement claims may be reached as follows: Net Retailers, LLC, legal@netretailers.net, 888-862-1777, 980 N. Michigan Ave. Ste 1325 Chicago, IL 60611.
The preceding information is provided exclusively for notifying us that your copyrighted material may have been infringed. All other inquiries, such as questions related to items available for purchase on the Services and requests or concerns regarding improper content, will not receive a response through this process.
Product Reviews, Social Media, and other User-Generated Content
From time to time, the Sites permit the submission of content, such as comments, photographs, text, graphics, moving images, sound, illustrations, blogs and product reviews, or any content or information that you publish through social media (including, for example, that content you feature using the Net Retailers Social Tags (as defined herein) (in each case, "User Content"). User Content is governed by these Terms of Use.
You, alone, are solely responsible for your own User Content and the consequences of posting or publishing it. Any User Content or other material, information or ideas that you submit to or post or publish on the Sites is non-confidential and non-proprietary. You understand and acknowledge that certain features of the Sites may allow or require user Content that you provide to be made available, including publicly available, to other Site users and that, accordingly, those other users may be able to access and use that User Content. You acknowledge that you will not be paid for Net Retailers’ use of your User Content.
By submitting User Content directly or by using the Net Retailers Social Tags (as defined herein), you represent and warrant to Net Retailers that: (i) you have used and are personally familiar with the product that is the subject of your User Content, (ii) your User Content is accurate, honest, and reflects your opinion, (iii) your User Content contains clear and conspicuous disclosures if your User Generated Content is submitted as a result of a sweepstakes entry or gift from Net Retailers, (iii) does not violate any copyright, trademark, trade secret, patent or other intellectual property right, any right of privacy or publicity of any third party or any applicable law, rule or regulation, (iv) you own or have the legal right to use and authorize Net Retailers to use your User Content, including written consent to use of any product or the name, voice, likeness or any other applicable personal rights of each identifiable person featured or referenced in your User Content and (v) your User Content does not violate Net Retailers’ Acceptable Use Policy set forth below; (vi) and that you will indemnify Net Retailers for all claims resulting from User Content that you supply.
As between you and Net Retailers, you will retain all of your ownership rights in and to your User Content. By submitting User Content to Net Retailers, you hereby grant to Net Retailers a perpetual, worldwide, non-exclusive, irrevocable, royalty-free, sublicensable (through multiple tiers) and transferable right and license to use, reproduce, distribute, edit, modify, adapt, translate, reformat, publish, prepare derivative works based upon, display publicly, perform publicly and otherwise exploit (including but not limited to over the Internet, broadcast television or any other uses or media) your User Content, in whole or in part, including, without limitation, future rights that Net Retailers (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. You also hereby grant: (i) to Net Retailers the right to use the name and social media user profile associated with your User Content, and (ii) to each user of the Sites a non-exclusive license to access your User Content through the Sites and to use, access, watch, reproduce, distribute, transmit, forward, display and perform such User Content in whole or in part, to the extent permitted by the Sites under these Terms of Use. We may display your User Content or create and display derivative works, including but not limited to advertisements, from your User Content on pages or mediums where your User Content may be viewed by you or others, and we may use your User Content or the created derivative works to advertise, market and promote Net Retailers or the Sites.
Net Retailers does not endorse any User Content or any opinion, recommendation, or advice expressed therein. Net Retailers reserves the right but is not obligated to at any time and for any reason: review, prescreen, edit, redact, otherwise modify, reorganize, or recategorize User Content; delete User Content from the Site; and archive or otherwise store any User Content. Net Retailers reserves the right to impose limits on Sites features (e.g., the ability to provide User Content) and to restrict your access to all or parts of the Sites at any time for any reason, including any breach of these Terms of Use. Net Retailers has the right to refuse, remove, edit or delete any User Content and/or to terminate any user’s access to the Sites for any reason in its sole and absolute discretion. Net Retailers takes no responsibility and assumes no liability for User Content. To the extent that User requires that User Content must be taken down due to third party copyright claims, please review our Copyright Policy set forth in this Terms of Use.
Social Media Tag Usage
When you tag us, we may want to share the User Content that you post.
BY USING #NET RETAILERS, #LUXEDECOR, #TOPMODERN, #PATIOLIVING, #PATIOCONTRACT, AND ANY OTHER SIMILAR SOCIAL MEDIA TAG IN ANY WAY RELATED TO ANY OF THE SITES (THE “NET RETAILERS SOCIAL TAGS”), EACH USER AGREES TO PROVIDE AND HEREBY DOES PROVIDE NET RETAILERS WITH AN UNRESTRICTED, IRREVOCABLE, ROYALTY-FREE, PERPETUAL, FULLY PAID-UP, TRANSFERABLE, WORLDWIDE LICENSE TO USE THE UPLOADED IMAGE(S), TEXT, GRAPHICS, MOVING IMAGES, SOUND, AND ILLUSTRATIONS, OR ANY OTHER MATERIALS IN ANY AND ALL MARKETING MATERIALS, ON SPONSOR’S WEBSITES, AND THROUGH ALL SOCIAL MEDIA CHANNELS. EACH USER REPRESENTS AND WARRANTS THAT UPLOADED IMAGES DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, COPYRIGHTS AND TRADEMARK RIGHTS.
Acceptable Use Policy
By submitting User Content and otherwise using the Sites, you agree not to: (i) submit any User Content that is protected by or otherwise subject to any third party intellectual property or proprietary rights (including any privacy and publicity rights) unless you own, or have permission from the rightful owner of such rights to post such User Content and to grant Net Retailers all of the rights granted herein; (ii) submit any User Content containing minors’ likenesses that does not comport with relevant laws, rules, and regulations or (iii) upload, post, e-mail or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful or racially, ethnically or otherwise objectionable.
Additionally, you represent and warrant that you will not and will not allow any third party to: (i) use the Sites to harm any person or entity, including Net Retailers; (ii) impersonate any person or entity, including but not limited to, a representative of Net Retailers, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted to or through the Sites; (iv) upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail or any other form of solicitation; (v) upload, post, e-mail or otherwise transmit any content that contains computer viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of the Sites or any other computer software or hardware or telecommunications equipment; (vi) intentionally or unintentionally violate any applicable local, state, national or international laws, rules or regulations, including but not limited to those promulgated by the U.S. Federal Trade Commission, U.S. Securities and Exchange Commission; (vii) collect, store or use personal information about other users of the Sites without their consent; (viii) use the Sites (including through submission of User Content) to disparage or make unsubstantiated claims about any person, third party or its/their products or services; (ix) use any of the Sites in any manner that could overburden or impair any of the Sites or the networks or systems connected to the Sites; (x) attempt to disable, damage, overburden, impair, or gain unauthorized access to the Sites or our servers; (xi) engage in data mining or similar data gathering or extraction activities or retrieve data or other content from the Sites (including, without limitation, using spiders, crawlers, robots, indexing agents, and screen scrapers) for purposes of creating or compiling that content for any purpose; (xii) work around any of the technical limitations of the Sites or use any tool to enable features or functionalities that are otherwise disabled on the Sites; (xiii) delete, obscure, or change any copyright, trademark, or other proprietary designations, notices, or markings in or on the Sites; (xiv) translate, merge, adapt, update, modify, reconfigure, reverse-engineer, disassemble, decompile, prepare any derivative works of, discover the underlying ideas behind, or discover the source code of the Sites, or combine the Sites or any part thereof with any other computer code, programs, materials, or services; (xv) copy, reproduce, display, duplicate, sell, publish, disclose, post, license, rent, scrape, or distribute the Sites or any part thereof or (xvi) use any device, software or instrumentality to interfere with the proper working of the Sites or disobey any requirements, procedures, policies or regulations of networks connected to the Sites.
You also agree that you will not violate or attempt to violate the security of the Sites. Violations of system or network security may result in civil or criminal liability. Net Retailers reserves the right to investigate occurrences which may involve such violations and may involve and cooperate with law enforcement authorities in prosecuting users who have participated in such violations.
You further agree that you may not use, or allow any other person or entity to use, any materials found on this website for the purpose of investigating, supporting, threatening or filing any intellectual property infringement claim against Net Retailers or its affiliates or for the purpose of developing or using an offering or product directly or indirectly competing with an offering or product from Net Retailers.
Your failure to comply with these prohibitions, or with the requirements set forth in these Terms of Use, constitutes breach of these Terms of Use with respect to the materials at issue. Net Retailers may, at any time and for any reason, in its sole discretion, and without notice or liability, suspend, deactivate, or terminate your access to or use of the Sites, and may terminate these Terms of Use, including, without limitation, if you breach these Terms of Use or any other applicable agreement or if you act in a manner inconsistent with applicable laws or regulations.
Product Orders
The receipt of an order number or an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. Net Retailers reserves the right, without prior notification, to limit the order quantity on any item and/or to refuse service to any customer. Verification of information may be required prior to the acceptance of an order. However, by confirming your purchase at the end of the checkout process, you agree to accept and pay for the products as well as the shipping and handling charges and applicable taxes. The sales tax is based on the applicable state and local tax rates and laws, as well as the relevant circumstances such as the shipping, destination and/or service location of your order. Please consult a tax professional for more information regarding the applicable sales tax on your order. Your email order confirmation and invoice will identify the seller of record for your order and the applicable sales tax rate. Prices and availability of products on the Sites are subject to change without notice. Errors will be corrected when discovered and Net Retailers reserves the right to revoke any stated offer and to correct any error, inaccuracy, or omission (including after an order has been submitted). Certain orders constitute improper use of the Sites. Net Retailers reserves the right, at its sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at Net Retailers 's sole discretion. Items purchased pursuant to a quantity discount may be re-priced upon cancellation.
Product and Purchase Terms
Order Acceptance: Receiving an order number or email order confirmation does not guarantee the acceptance of your order or confirm an offer to sell. Net Retailers reserves the right, without prior notification, to limit the quantity of any item or refuse service to any customer. Verification of certain information, such as prices or fraud, may be required before an order is accepted. Prices and product availability are subject to change without notice. Net Retailers reserves the right to correct errors, inaccuracies, or omissions at any time, including after an order has been submitted, and revoke any stated offers accordingly.
Swatch images are provided for illustrative purposes only. The appearance of colors may vary depending on screen resolution, display calibration, device settings, lighting, and other technical factors. As such, Net Retailers cannot guarantee that the colors displayed on your device will exactly match the actual product. To view swatches in person, follow the link provided on the product page, where available (some manufacturers excluded).
Product Warranty: Most items sold through Net Retailers are covered by warranties provided by the product's manufacturer. While Net Retailers does not directly provide warranties for the products we sell, we are here to support you with any issues that may arise during the warranty period. If you encounter any problems with a product that includes a manufacturer’s warranty, please reach out to us. Please review the item detail page of the product for warranty details. We will work with you to resolve the issue or connect you directly with the manufacturer for assistance.
TopModern has partnered with Mulberry to offer extended warranty protection plans at the time of purchase. A Mulberry plan can be purchased during the checkout process or can be added at any time within 30 days of purchase by contacting our customer service team.
Notice to California Residents: In compliance with California Proposition 65, we are required to inform you that certain products may contain chemicals known by the State of California to cause cancer, birth defects, or reproductive harm. These chemicals may be present in products like some tools, leaded crystal glassware, ceramic tableware, Tiffany-style lamps, and electrical cords. The use of these items may expose you to harmful substances, depending on usage and the exposure limits set by the state. If you have any concerns or questions about the safety of specific products, please contact us before making a purchase. Under California Civil Code Section 1789.3, Net Retailers provides the following notice to users in California: You may direct complaints to the Consumer Information Division of the California Department of Consumer Affairs by writing to 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by calling 800-952-5210.
Additional Charges: Any changes to your order following confirmation of your order may incur fees. These instances can include but are not limited to:
Cancellation Information: All cancellations must be submitted via the Contact Us page. Net Retailers will make every effort to cancel the order but cannot guarantee that the request will be honored. Orders must be canceled before they are processed, placed into production, or shipped. Some exceptions may apply. If your purchase is subject to restocking fees and the order has already been placed into production or shipped, the applicable restocking fee will apply. Please refer to our Return Policy for restocking fee information.
Returns: At Net Retailers, we understand that the purchase of home furnishings represents a significant investment of both time and resources and so strive to ensure a worry-free shopping experience for all customers. Please visit our Return Policy to learn about our 30 day returns.
Payment: For more information about the processes in place to handle payment and the information collected at the time of purchase, please see our Privacy Notice. After placing an order, you will receive an email confirmation with your order number, authorization number, and order details. Full payment is charged at the time of order placement. If you do not agree with these terms, you must cancel your order by contacting us via telephone or through the Contact Us page within 24 hours of placing your order.
Brand Promotion Code Exclusions: Due to manufacturer restrictions, the following brands are excluded from email list and sitewide banner promotion codes: #ExclusionBrands
Communications with Net Retailers; Marketing Communications
For all communications made to or with Net Retailers, including but not limited to feedback, questions, comments, suggestions and the like: (i) you will have no right to confidentiality in your communications and Net Retailers will have no obligation to protect your communications from disclosure; (ii) Net Retailers will be free to reproduce, use, disclose and distribute your communications to others without limitation; and (iii) Net Retailers will be free to use any ideas, concepts, know-how, content or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information.
If you sign up or otherwise opt in to receive updates, promotional communications, or related materials from us, we will use your contact information to provide you with promotional and other communications pertaining to our and our affiliates’ products and services via email, physical mail, or telephone, as applicable. You may opt out of receiving promotional or marketing communications from us at any time by following the unsubscribe instructions in the applicable email or by contacting us as set forth herein. We may use third-party providers to deliver these communications to you.
Please note that if you opt out of such marketing or promotional communications, you may still receive communications with us as necessary for administrative purposes such as at your request or pursuant to providing the Sites to you.
Mobile Access and Text Messaging Terms
If you opt in to receiving text messages and/or telephone calls when prompted, we may send you autodialed and other text messages at the telephone number you provide. Consenting to receiving text messages is not required to buy goods or services or to otherwise do business with us. Message and data rates may apply.
If you enroll in our text messaging (SMS) program, you will be asked to consent expressly — evidenced by provision of your mobile telephone number, specified prompted key word(s), or SMS/MMS or other text message affirmative response (e.g., Y or zip code) as your signature to agree to receive recurring marketing messages, including such messages sent through an automatic telephone dialing system, where such messages may be sent by us or our vendors to the mobile number you provided at opt-in. Such consent is not a condition of making any purchase. While you consent to receive messages sent using an automatic telephone dialing system, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system.
You can opt out from receiving SMS/MMS text messages by responding STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any message you receive in our text messaging program, or just texting STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to the number from which you currently are receiving our text messages. In either case, you will receive one additional message confirming that your request has been processed. If you do not receive this confirmatory text message, please contact service@topmodern.com for help. You may also opt out by emailing us at service@topmodern.com. For all other help inquiries, please text HELP to the number from which you are currently receiving the message. As always, message and data rates may apply for any messages sent to and by you. Message frequencies may vary. If you have any questions about your text plan or data plan, it is best to contact our wireless provider.
Indemnity
You agree to indemnify, and upon request, indemnify and hold Net Retailers and its agents and licensors harmless from any claim, losses, costs, demand, and expense, including, without limitation, reasonable attorneys’ fees, arising out of or otherwise related to (i) your use of the Sites, including any User Content you submit, post to or transmit through the Sites, Site Content, or any products or goods procured through the Sites (ii) your violation of these Terms of Use or (iii) your violation of any rights of another user (including, without limitation, any intellectual property, proprietary, privacy or other rights held by a third party). We reserve, and you grant to us, the right, at your own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such matter without the prior written consent of Net Retailers. This indemnification section will survive any termination or expiration of these Terms of Use.
Disclaimer of Warranties
The Sites and data contained in the Sites (including, without limitation, all Site Content and User Content) and any products or goods procured through the Sites are provided ‘AS IS’ and “AS AVAILABLE”. You expressly agree that your use of the Sites, Site Content and User Content, and any information contained therein, any products or goods procured through the Sites is at your sole risk. Accordingly, to the extent permitted by applicable law, NET RETAILERS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES AND CONDITIONS OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES AND CONDITIONS THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NET RETAILERS DOES NOT REPRESENT OR WARRANT THAT THE SITE, SITE CONTENT, USER CONTENT, ANY PRODUCTS OR GOODS PROCURED THROUGH THE SITES WILL MEET YOUR REQUIREMENTS OR THAT THEIR USE WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE. Some jurisdictions do not allow the disclaimer of warranties or conditions so such disclaimers may not apply to you. This disclaimer section will survive any termination or expiration of these Terms of Use.
Limitation on Liability
IN NO EVENT WILL NET RETAILERS OR ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DISTRIBUTORS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE OR VIA OTHER CHANNELS, INCLUDING BUT NOT LIMITED TO PHONE AND EMAIL, BE LIABLE TO ANY USER OF THE SITES OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITES, SITE CONTENT, USER CONTENT, ANY PRODUCTS OR GOODS PROCURED THROUGH THE SITES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF NET RETAILERS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
You hereby acknowledge that the preceding limitation on liability will apply to all content, merchandise, products, goods and services available through the Sites or other channels. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, in such jurisdictions liability is limited to the fullest extent permitted by law. OUR MAXIMUM, AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR $100.00 USD. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW Net Retailers’ maximum, aggregate liability to you or to any third party for any cause whatsoever and regardless of the form of action, is at all times limited to the lesser of (a) the amounts paid, if any, to us by you in the twelve (12) months prior to the action giving rise to the liability or (b) USD $100.
IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU MUST PROVIDE NOTICE TO NET RETAILERS OR NET RETAILERS, PURSUANT TO THE PROCESS REFERENCED BELOW, OF ANY CLAIM WITHIN ONE YEAR OF ITS ACCRUAL OR YOUR CLAIM IS WAIVED AND TIME-BARRED.
This limitation on liability section will survive any termination or expiration of these Terms of Use.
Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. EXCEPT AS THE TERMS OF USE OTHERWISE PROVIDE, YOU WAIVE YOUR RIGHTS TO TRY ANY CLAIM IN COURT BEFORE A JUDGE OR JURY AND TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE, OR OTHER REPRESENTATIVE ACTION. Other rights that you would have if you went to court, such as access to discovery or appeals, also might be unavailable or limited in arbitration.
Agreement to Binding Arbitration; Class Action Waiver
Any dispute, claim or controversy (that is not resolved informally as set forth below) between you and Net Retailers or Net Retailers, its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this section, 'Net Retailers') arising from or relating in any way to: (1) these Terms of Use and their interpretation or the breach, termination or validity thereof, and the relationships which result from these Terms of Use; (2) your use of any website owned or operated by Net Retailers and its affiliated brands; or (3) any products or services sold or distributed by Net Retailers and its affiliated brands or through any website owned or operated by Net Retailers and its affiliated brands (collectively, “Covered Disputes”) will be resolved by binding arbitration, rather than in court. Covered Disputes shall be interpreted broadly.
Most concerns can be resolved by contacting customer service via Contact Us. In the event we are unable to resolve a complaint to your satisfaction, this Section explains how any dispute will be resolved.
Mandatory Informal Dispute Resolution
Net Retailers values its customers and seeks to resolve disputes informally where possible. Before formally pursuing a Covered Dispute in arbitration, you agree to first send a detailed notice (“Notice”) to Net Retailers by email at legal@netretailers.net. If Net Retailers has a dispute with you, Net Retailers agrees to first send a detailed Notice to your e-mail address on file with us. Your Notice must contain all of the following information: (1) your full name; (2) your address, telephone number, and email address; (3) information sufficient for Net Retailers to identify any transaction at issue (e.g., your order number, order confirmation communication, etc.); and (4) a detailed description of your dispute, the nature and basis of your claim(s), and the nature and basis of the relief you are seeking with a calculation for it. You must personally sign this Notice. Net Retailers’ Notice will likewise set forth (1) information sufficient for you to identify any transaction at issue and (2) a detailed description of our dispute, the nature and basis of our claim(s), and the nature and basis of the relief we are seeking with a calculation for it. You and Net Retailers agree to negotiate in good faith about the dispute in an effort to swiftly resolve it to your satisfaction without the need for a formal proceeding. Should Net Retailers request a telephone conference with you in an effort to resolve your dispute as part of this informal process, you agree to personally participate (with your counsel if you are represented). This process should result in resolution of the dispute, but if for some reason it is not resolved within 60 days after receipt of a fully completed Notice and the parties have not agreed to extend this time period, you or Net Retailers may initiate an arbitration. Compliance with and completion of this mandatory informal dispute resolution process is a condition precedent to filing any demand for arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this process. Unless prohibited by applicable law, the arbitration administrator shall not accept or administer any demand for arbitration unless the claimant has certified in writing that they have fully complied with this process. This certification shall be personally signed by you or Net Retailers. A court shall have the authority to enjoin the filing or prosecution of arbitrations without first providing a fully completed Notice and participating in good faith in this informal dispute resolution process.
Initiating Arbitration and Arbitration Rules
Any arbitration between you and Net Retailers shall be administered by National Arbitration and Mediation (“NAM”) in accordance with NAM’s operative Comprehensive Dispute Resolution Rules and Procedures (the “NAM Rules”) in effect at the time any demand for arbitration is filed with NAM, as modified by this Legal Disputes Section. For a copy of the NAM Rules, please visit https://www.namadr.com/resources/rules-fees-forms or contact NAM at NAM’s National Processing Center at 990 Stewart Avenue, 1st Floor, Garden City, NY 11530 and email address commercial@namadr.com. If NAM is unavailable or unwilling to administer the proceeding under the Legal Disputes Section as written, the parties agree that the arbitration shall be administered by the American Arbitration Association (“AAA”) pursuant to the AAA Consumer Arbitration Rules and the Consumer Due Process Protocol (collectively, "AAA Rules") in effect at the time any demand for arbitration is filed with AAA, as modified by this Legal Disputes Section. If the AAA is unavailable or unwilling to apply this Legal Disputes Section as written, the parties shall mutually agree on an alternative administrator that will administer the proceeding under the Legal Disputes Section as written. If the parties are unable to agree, they will petition a court of competent jurisdiction to appoint an arbitration administrator that will do so. Any arbitration will be held before a single neutral arbitrator.
To begin an arbitration proceeding, you must send the demand for arbitration or arbitration notice form made available from the arbitration administrator and supplement that form with a detailed description of your claim, including with the information required for your Notice and the accompanying signed certification of compliance with the informal process referenced above (collectively referred to as “demand for arbitration”), to NAM (or to AAA if it is the administrator as set forth above). You must personally sign your demand for arbitration. You agree to also send Net Retailers a copy of your demand for arbitration at legal@netretailers.net. If Net Retailers initiates arbitration, we will send a copy of our demand for arbitration to your email address on file with us.
You may choose to have the arbitration conducted by telephone, virtually, based on written submissions, or in person in the county where you live or at another location reasonably convenient for you, or at a mutually agreed-upon location. Net Retailers reserves the right to request an in-person or videoconference hearing at any point within 14 days after its deadline to file any answer. After that time, Net Retailers retains the right to request an in-person or virtual hearing from the arbitrator, which the arbitrator may elect to require along with your participation (with your counsel if you are represented). Should a hearing take place in person, it shall take place consistent with the geographic parameters set forth above.
Arbitration Fees
Payment of all filing, administration and arbitrator fees will be governed by the NAM Rules (or the AAA Rules should AAA be the designated administrator as set forth above). Upon a showing of financial hardship, Net Retailers will consider your request to promptly reimburse your portion of the arbitration fees provided for in the NAM (or AAA) Rules.
Arbitrator Authority
The arbitrator has the sole authority to and shall address all claims or arguments by both parties concerning the formation, legality, and enforceability of this arbitration clause, the scope of this clause, and the arbitrability of any claim or issue arising between us.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator may not award relief for or against anyone who is not a party to the proceeding. The arbitrator is bound by and must follow the terms of these Terms of Use as a court would. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to address the essential findings and conclusions of law on which the award is based. The arbitration award shall be binding only between you and Net Retailers and shall have no preclusive effect in any other arbitration or proceeding involving a different party, provided that the arbitrator may consider rulings in other arbitrations involving different individuals. The arbitrator may award fees and costs as provided by the NAM Rules (or the AAA Rules if AAA is the designated administrator as set forth above) or to the extent such fees and costs could be awarded in court or if the arbitrator determines that a claim, proceeding, or defense was frivolous or brought for harassment, for an improper purpose, or in bad faith. The arbitrator shall apply the provisions of Federal Rule of Civil Procedure 68 after entry of the award.
Sole Exceptions to Arbitration
Notwithstanding the foregoing, in lieu of arbitration: (1) either you or Net Retailers may elect to have an individual claim heard in small claims court consistent with any applicable jurisdictional and monetary limits that may apply, provided that it is brought and maintained as an individual claim and is not appealed or removed to any court of general jurisdiction; and (2) you agree that you or Net Retailers may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Jury Trial and Class Action Waiver
Except as the Terms of Use otherwise provide and to the fullest extent permitted by law, you and Net Retailers acknowledge and agree that you are each waiving the right to a trial by jury and to the litigation of disputes in state or federal courts of general jurisdiction. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action/class arbitration or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. You and Net Retailers may not be plaintiffs or class members in any purported class, collective, private attorney general, or representative proceeding, or otherwise make or proceed with any claim on a collective or consolidated basis, and may each bring claims against the other only in your or its individual capacity. As referenced above, the arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the individual claim. If a court determines that this class action waiver is not enforceable as to a particular claim or request for relief and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief shall proceed in court but shall be stayed pending arbitration of the remaining claims.
Special Additional Procedures for Mass Arbitration
If 25 or more individuals seek to initiate arbitrations with Net Retailers raising similar claims, and counsel for the individuals bringing the claims are the same or coordinated or the claims are otherwise coordinated (“Mass Claims”), you and Net Retailers agree that these additional procedures shall apply, along with the applicable NAM Rules (or the applicable AAA Rules if AAA is the administrator as set forth above). You understand and agree that if you choose to initiate your claim as part of Mass Claims, the adjudication of your claim might be delayed. Counsel for the individuals and counsel for Net Retailers shall each select 15 cases (per side) to be filed in and proceed in arbitration in bellwether proceedings to be resolved individually. Each case shall be assigned to a separate and different arbitrator. In the meantime, no other cases may be filed or deemed filed in arbitration, and the arbitration administrator shall not accept or administer arbitrations commenced in violation of these procedures. If the parties are unable to resolve the remaining cases after the conclusion of the first stage of bellwether proceedings, each side may select another 15 cases (per side) to be filed in and proceed in arbitration in a second set of bellwether proceedings to be resolved individually. Each case shall be assigned to a separate and different arbitrator. This process shall continue consistent with this staged process of administering and moving forward a maximum of 30 individual arbitration proceedings at a time until the parties are able to resolve all of the Mass Claims, either through settlement or arbitration. If these additional mass arbitration procedures apply to your claim, any applicable statute of limitations shall be tolled from the time the first cases are selected for a bellwether proceeding until your claim is selected for a bellwether proceeding, withdrawn, or otherwise resolved. A court shall have the authority to enforce these mass arbitration procedures and, if necessary, to enjoin the filing or prosecution of arbitrations.
Governing Law
You and Net Retailers agree that any claim between us involves commerce under, and is governed exclusively by, the Federal Arbitration Act ("FAA") and federal law, and not by any state or local laws, or the laws of other countries, concerning or purporting to place limits on the availability or scope of arbitration or in any way imposing requirements beyond or inconsistent with those set forth in the FAA. Where otherwise applicable, the laws of the State of Illinois apply. Should any action proceed in court (other than in small claims court), you consent to the exclusive jurisdiction of the federal and state courts of Cook County, Illinois.
Other
To the extent that any other provision of the Terms of Use is found to be inconsistent with rights, duties, and requirements of this arbitration agreement, or where the application of such a provision would change or render unenforceable any part of this arbitration agreement, such provision shall be null and void and the terms of this arbitration agreement shall control.
Termination
Your ability to access and use the Sites remains in effect until terminated in accordance with these Terms of Use. You agree that Net Retailers, in its sole discretion, may terminate your account and your use of the Sites and may remove and delete your User Content if Net Retailers believes that you have violated or acted inconsistently with these Terms of Use or for any other reason. Net Retailers also may in its sole discretion and at any time discontinue providing the Sites, or any part thereof, with or without notice. You agree that any termination of your access to the Sites may be effected without prior notice and you acknowledge and agree that Net Retailers may bar any further access to the Sites. Further, you agree that Net Retailers will not be liable to you or any third-party for any termination of access to the Sites.
For instructions for deleting your account, please see the "Registering for the Service" section of our Privacy Notice.
The provisions of the Intellectual Property Rights, User-Generated Content, Acceptable Use Policy, Disclaimer of Warranties, Indemnity, Limitation of Liability, Legal Dispute sections, together with and any other rights and obligations which by their nature are reasonably intended to survive such termination, will survive any termination of these Terms of Use.
Right to Access
YOU MUST BE AT LEAST AGE 16 TO USE THE SITES. By using the Sites, you affirm that you are over age 16. If you are under age 16, you may not access or use the Sites.
IF YOU ARE A PARENT OR GUARDIAN THAT PROVIDES CONSENT TO YOUR TEENAGER'S REGISTRATION WITH AND USE OF THE SITES, YOU AGREE TO BE BOUND BY THESE TERMS IN RESPECT OF SUCH TEENAGER'S USE OF THE SITES.
Outages
Net Retailers periodically schedules system downtime for the Sites for maintenance and other purposes. Unplanned system outages also may occur. You agree that Net Retailers has no responsibility and is not liable for: (a) the unavailability of any of the Sites; (b) any loss of data, information or materials caused by such system outages; (c) the resultant delay, mis-delivery or non-delivery of data, information or materials caused by such system outages; or (d) any outages caused by any third parties, including without limitation any companies or servers hosting any of the Sites, any Internet service providers or otherwise.
Third-Party Products; Linked Services
The Sites may provide links to third party websites for your convenience only. The inclusion of these links does not imply that Net Retailers monitors or endorses these websites or their respective practices. Net Retailers does not accept any responsibility for such websites. Net Retailers shall not be responsible or liable, directly or indirectly, for any damage or loss, caused or alleged to be caused by or in connection with the use of or the reliance upon any information, content, goods or services available on or through any third-party websites or linked resources. These Terms of Use and our Privacy Notice do not apply to your use of any third-party websites, so be sure to review any applicable terms and policies of third-party sites.
Jurisdictional Issues
The Sites are intended for users who reside in the United States of America. Net Retailers makes no representations or warranties that the Sites or any materials contained in them are valid, appropriate or available for use outside of the United States. If you access and use the Sites outside the United States, you do so at your own risk and are responsible for compliance with applicable local laws. Net Retailers reserves the right to limit the availability of the Sites and/or the provision of any service, program or other product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion. Any software on the Sites is subject to United States export controls and may not be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the United States has embargoed goods or which is subject to other applicable U.S. trade sanctions; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any software from the Sites, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
General Information
No waiver of any provision or any breach of this Agreement will constitute a waiver of any other provisions or any other or further breach. In the event that any provision of this Agreement is determined to be illegal or unenforceable, the balance of the Agreement shall continue to be fully valid, binding, and enforceable. These Terms of Use set forth the entire Agreement between you and Net Retailers with respect to use of the Sites and supersede any prior agreements between you and Net Retailers relating to such subject matter. The Terms are not assignable, transferable or sublicensable by you except with Net Retailers' prior written consent. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms of Use. Any heading, caption or section title contained herein is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. Net Retailers' performance of these Terms of Use is subject to existing laws and legal process, and nothing contained in these Terms of Use is in derogation of Net Retailers' right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Sites or information provided to or gathered by Net Retailers with respect to such use. A printed version of these Terms of Use and of any notices given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The parties agree that all correspondence relating to these Terms of Use must be written in the English language.
