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Please carefully read these Standard
Membership Rules for Specialty Merchandise Corporation (SMC), which apply to all
SMC members. If you do not wish to comply with these Rules, you should
immediately cancel your membership in accordance with
Section 4
below.
1. Membership. Subject to your compliance
with these Rules and payment of the membership fees you agreed to when joining
SMC, you will have a membership with SMC including the right to purchase
merchandise from SMC.
2. Registration. You agree to provide us
with accurate and complete information, including your legal name, street
address, email address and telephone number. All information will be subject to
the standard
SMC Privacy
Policy. You warrant that any credit card or bank account information
you provide is accurate and that you have the right to use the account.
3. Renewal Fees. You must timely pay an
annual renewal fee (which is currently $49.95) to keep your membership active
and to be eligible to receive updated catalogs and/or other information
available to SMC members. SMC may change prices or institute new fees at any
time. The renewal fee will be automatically charged on the 19th day of your
anniversary month, or the next business day thereafter, to the credit card or
bank account you have provided us, unless you inactivate or cancel your
membership WITHIN 30 DAYS in accordance with
Section 4
below
4. Cancellation.
5. Fees and Credits. You are responsible for
all charges incurred, including your initial membership fee in accordance with
the payment plan you agreed to when joining, your annual renewal fee, and
payment for any merchandise or materials you order from SMC. Payments made by
electronic funds transfer (EFT) will result in a hold on shipment or account
status of approximately seven to nine business days. Except as specifically
provided in
Section 4
above, all amounts paid to SMC are nonrefundable. Upon suspension, cancellation,
or termination of your membership any unused credits or funds remaining in your
account remain the property of SMC.
6. Special Account Credits Special Account
Credits may be used for merchandise and supplies only, are non-refundable, may
not be used for recurring fees or charges or to purchase gift cards or
additional credits, and expire one year from the date of issuance.
7. Suspension. If you fail to pay for any
purchases from SMC, if any fees or charges are due but unpaid to SMC or its
affiliate
eMerchantClub, or if your account is delinquent, SMC may automatically apply any
credits in your account to pay the balance due, or your membership may be
suspended or canceled at SMC's discretion. Your account may be suspended if you
become inactive or do not place at least one merchandise order per year. If your
account is suspended you may reactivate your account by paying a reactivation
fee (which is currently $74.95).
8. Termination. SMC may immediately
terminate your membership, if you breach any provision of these Rules, engage in
any prohibited activities or aid and abet anyone listed in a Fraud Alert or if
you fail to pay any fees or charges when due. SMC also reserves the right to
terminate any membership upon refund of the most recent annual fee. If your
membership is terminated for any reason other than non-payment, you may not
rejoin SMC, either directly or through another person. The provisions of
Sections 8 through 21 will survive suspension, termination or cancellation.
9. Communication. Throughout the course of
your membership, SMC may contact you for administrative and promotional reasons
by mail, email or telephone, including pre-recorded messages. You may be able to
opt out of some of these communication channels by calling Member Support, or in
the case of email by using the ?opt out? function provided with each mailing.
10. Prohibited Activities. You may not
directly or indirectly (a) use the names SMC or Specialty Merchandise in the
conduct of your business, (b) infringe on any SMC trade names, trademarks or
copyrights, (c) contact or solicit other SMC members, (d) use your SMC
membership in any manner or for any purpose other than selling SMC products, (e)
distribute SMC products outside authorized sales channels, (f) engage in any
unlawful, unfair or deceptive business practice, (g) fail to conduct your
business in an honest and ethical manner, (h) engage in any abusive, tortious or
unprofessional language or conduct, (i) violate any applicable law or
regulation, (j) compete against SMC or its affiliates, (k) do anything to harm
SMC, its affiliates or other members, or degrade SMC's goodwill or reputation,
or (l) do business with any person who does any of the foregoing or is listed in
a
Fraud Alert.
11. Compliance. You are solely responsible
for all aspects of operating your business. You agree to comply with all
applicable federal, state and local laws, ordinances and regulations in
connection with the operation of your business and the sale and marketing of our
products. You agree to comply with any manufacturer?s restrictions on the sale
of their products. You agree to indemnify and defend SMC from any claims or
demands in connection with your negligence, misconduct or violation of any laws.
12. Taxes. You are solely responsible for
calculating, collecting, withholding, reporting and paying any and all
applicable taxes, duties and levies, including without limitation states and
local sales and use taxes, and federal and state income taxes.
13. Trademarks and Copyrights. You may not
use the names SMC® or Specialty Merchandise Corporation®,
the SMC logo or any other trademarks or trade names of SMC or its affiliates, or
any confusingly similar names, in any manner. You may not use the name or
likeness of any SMC spokesperson, employee or other member. You may not copy or
link to
www.smcorp.com or any other website of SMC or its affiliates. You
may not copy or use any copyrighted text, graphics, CD-ROM or online content of
SMC or its affiliates. You may only copy or use designated SMC product
descriptions, product photographs, and .jpg files on your website to advertise
products you purchased from SMC for sale to your customers, and not in any other
manner or for any other purpose. You may not delegate or authorize any other
person do so, whether on your behalf or otherwise.
14. Warranty Exclusion. SMC IS NOT LIABLE
FOR ANY LOSSES, COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR
MEMBERSHIP, THE SERVICES WE PROVIDE OR THE SALE OF OUR PRODUCTS. NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE IS GIVEN OR ASSUMED BY SMC OR ITS AFFILIATES, AND ALL SUCH
WARRANTIES, REPRESENTATIONS AND TERMS ARE HEREBY DISCLAIMED AND EXPRESSLY
EXCLUDED. NO ADVICE OR INFORMATION GIVEN BY SMC OR ANY OF OUR REPRESENTATIVES
SHALL CREATE ANY WARRANTY.
15. Damage Limitation. OUR CUMULATIVE
LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR
MEMBERSHIP SHALL NOT EXCEED THE TOTAL AMOUNT OF THE MEMBERSHIP FEES YOU HAVE
PAID TO US WITHIN THE PRIOR YEAR. SMC AND ITS AFFILIATES SHALL IN NO EVENT BE
LIABLE FOR ANY PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE
REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
16. Notice of Claims. You will promptly
notify us in writing if any third party makes any claim of infringement of any
copyright, trademark or patent. If in our judgment the sale or use of any SMC
products may be found to infringe the property rights of a third party or
presents a consumer safety hazard, we may, at our option, require you to return
the infringing products for a merchandise credit or exchange.
17. No Agency. You agree and acknowledge
that you and SMC have an independent business relationship. Nothing about your
membership or provided for in these Rules shall be deemed to create a
partnership, franchise, joint venture or agency, and neither party is the
other's partner, franchisee, employee, agent or representative. You will not
state, imply or hold yourself out to anyone as being associated, affiliated with
or endorsed by SMC, and have no right to obligate or bind SMC in any manner
whatsoever.
18. Third-Parties. These Rules are intended
and agreed to be solely for the benefit of you and SMC and its affiliates, and
no other party shall accrue any benefit, claim or right of any kind whatsoever
hereunder.
19. Arbitration. Any controversy, dispute,
claim or action of any nature whatsoever arising out of, in connection with, or
relating to your SMC membership or these Rules, or in any way involving you and
SMC, including any issues of arbitrability, the scope or applicability of this
agreement to arbitrate shall be resolved by binding arbitration before a retired
judge at JAMS (www.jamsadr.com) in Santa Monica, California,
pursuant to the JAMS Streamlined Arbitration Rules & Procedures and the JAMS
International Arbitration Rules. Any such controversy, dispute, claim or action
must be brought in your individual capacity, and not as a plaintiff or class
member in any purported class or representative proceeding. Judgment on any
interim or final award may be entered in any court having jurisdiction. The
prevailing party shall be awarded all costs and expenses, including without
limitation all arbitration, expert witness and attorneys fees, costs and
expenses.
20. California Law and Venue. Your
membership is deemed to be entered into and performed in Santa Monica,
California. These Rules shall be governed by and construed in accordance with
the laws of the State of California without regard to conflicts of law
provisions. You consent to exclusive personal jurisdiction and venue in Los
Angeles County, California, and agree that it shall be the sole forum and venue
for any and all disputes involving SMC, including without limitation small
claims actions.
21. Miscellaneous. If one or more provisions
of these Rules shall be held to be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not be
construed as a waiver. Neither your membership, these Rules, nor any of your
rights or obligations thereunder may be assigned, transferred or delegated to
any third party without SMC's prior written consent.
22. Amendments. The Rules may be revised or
amended by SMC at any time in its sole discretion, by posting the revised Rules
at
www.smcorp.com/rules and the amended Rules will become effective
30 days after posting. No representative or agent from SMC may modify or waive
any of these Rules, except in writing signed by the President of SMC.
23. Entire Agreement. The agreement you
entered into when you joined SMC, the
SMC Privacy
Policy,
Terms of Use and these Rules constitute the complete agreement between you and
SMC, and supersede any other promise, representation or agreement, whether
written or oral. Any Gift Card Redemption Website, SMC eCommerce Website, or
other website or services provided by eMerchantClub are subject to the
eMerchantClub
Standard Membership Rules |