REWARDS TERMS & CONDITIONS

Effective Date: 11/1/2024

PLEASE READ THIS AGREEMENT CAREFULLY.  IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR PARTICIPATION IN THE SOFACLUB REWARDS PROGRAM.  AS FURTHER DETAILED IN SECTION 14 BELOW, THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US ON AN INDIVIDUAL BASIS ONLY, AND BY USING THE SERVICE AND ENTERING INTO THESE TERMS, YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN ANY COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT (INCLUDING AS A CLASS REPRESENTATIVE OR MEMBER OF ANY PUTATIVE CLASS). Juniper NY LLC LLC d/b/a SOFACLUB CANNABIS, and their related companies and affiliates (collectively, “SOFACLUB” or “SOFACLUB CANNABIS”) offer the SOFACLUB Rewards Program (this “Program”), which is a loyalty rewards program where eligible SOFACLUB customers have an opportunity to accumulate Points (defined below) by participating in offered activities, subject to the terms and conditions set forth in these Terms and Conditions (these “Terms”).  By participating in the Program, you agree to these Terms and all future Program terms and conditions or rules as a Program member (“Member,” “you,” or “your”).  As used in these Terms, the terms “we,” “us,” and “our” shall be deemed to refer to SOFACLUB. By participating in the Program, you accept and agree to be legally bound by these Terms, whether or not you sign up as a Member of the Program.  If you wish to become a Member and participate in the Program, please read these Terms and indicate your acceptance to these Terms by following the instructions in the Program sign-up process .  It is important that you review these Terms regularly.  We may impose limits on certain features, activities, promotions, or services and may restrict, suspend, or terminate your access to the Program, in whole or in part, at any time and for any or no reason, with or without prior notice and without liability. These Terms incorporate by reference all of the terms and conditions set forth in SOFACLUB Terms of Use. Capitalized terms herein that are undefined shall have their meaning as specifically set forth in SOFACLUB Terms of Use.  In the event of any conflict between these Terms and SOFACLUB Terms of Use, these Terms will control.  Each time you participate and/or use the Program, you agree to be bound by and comply with these Terms and any Additional Terms (defined below).  If you do not agree to these Terms, please do not participate in the Program.  The business realities associated with operating the Program are such that, without the limitations that are set forth in these Terms—such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of  certain disputes—we would not make the Program available to you.

In some instances, both these Terms and separate guidelines, rules, or terms of service, setting forth additional or different terms and/or conditions will apply to your use of the Program (in each such instance, and collectively, “Additional Terms”).  For example, in addition to these Terms, any contest, sweepstakes, or other promotion we may offer as part of the Program or to Program members, is and will also be subject to separate official rules which may be posted at our retail locations or on our website, www.sofaclub.nyc (the “Website”), during the applicable promotion period and which will govern Members’ participation, and our execution, of each such promotion.  To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.  Any information Members provide to us in connection with this Program or any contest, sweepstakes, or other promotion or offer operated in connection with this Program is subject to SOFACLUB’s Privacy Policy.

For use only by adults twenty-one (21) years of age and older.  Keep out of reach of children and pets.  In case of accidental ingestion or overconsumption, contact the National Poison Control Center hotline 1-800-222-1222 or call 9-1-1.  Please consume responsibly.  Cannabis is not recommended for use by persons who are pregnant or nursing.  Concerned about your cannabis use?  Text HOPENY, call 1-877-8-HOPENY, or visit oasas.ny.gov/HOPELine.

1. GENERAL INFORMATION AND CHANGES


The Program provides SOFACLUB customers with benefits in exchange for points earned by purchasing products at SOFACLUB’s retail locations and other benefits in exchange for completing other actions (collectively, the “Benefits”).  Specifically, after signing up for the Program, the Program allows you to earn points (“Points”) based on the dollars you spend on qualifying purchases at our retail locations and receive other Benefits tied to your membership tier, as described in Section 3 below.

Participation in the Program and its Benefits are offered at the sole discretion of SOFACLUB.  These Terms apply to all aspects of your use of the Program, including, but not limited to, Program membership, earning Points, exclusive reward (“Reward”) redemption, all other Program benefits, any purchase made using your Program membership information, and all disputes between you and SOFACLUB.

SOFACLUB MAY, AT ANY TIME, CHANGE ANY AND ALL ASPECTS OF THE PROGRAM, SPECIAL PROMOTIONS, AND THESE TERMS, OR OTHERWISE END THE PROGRAM.  SOFACLUB makes no guarantee or representation as to the length of time during which the Program will be offered, and the Program could end at any date (the “Program End Date”).  See Section 10 for additional details regarding any cancellation of the Program and updates to the Terms.

The Program is intended for personal use only and commercial use is prohibited.  You are limited to one (1) Program membership.  Your membership is personal to you.  You may not transfer to others your membership in the Program, or any benefit of any kind.  Moreover, Program components are not transferable and may not be combined or conveyed by any means to anyone, including through your estate, and may not pass to your successors and assigns and, as such, Points are not transferable by you (a) upon death, (b) as part of domestic relations proceedings, or (c) otherwise.

1. ELIGIBILITY; ENROLLMENT AND WITHDRAWAL OF PROGRAM


Members must be twenty-one (21) years of age or older to participate in the Program.  There are two (2) types of membership to the Program: free membership (“Sofaclub Membership”) or paid yearly membership (“ sofaclub rewards membership”).

To enroll to become a Sofaclub Member, you may submit your information online at https://www.sofaclub.nyc/rewards by providing your full name, your mobile phone number, your email address, and your date of birth, and submitting the enrollment form.  To enroll to become a sofaclub rewards member, you must submit your information, including payment information, by visiting a SOFACLUB retail location and requesting to be a Sofaclub Rewards Program member to a SOFACLUB representative (a “budtender”).  The budtender will then provide you with instructions to electronically sign up for a sofaclub rewards membership at the retail location, which may involve entering your full name, your mobile phone number, your email address, and your payment information into an electronic enrollment form and submitting the form, at the retail location.  Once your information is submitted, your payment method will be immediately charged at the then-current rate for sofaclub rewards membership for one (1) year (see Section 3 below for more details).  To continue to receive the Benefits associated with your sofaclub rewards membership, you must renew your membership yearly by visiting a SOFACLUB retail location and speaking to a budtender to authorize SOFACLUB to charge your payment method on file for the subsequent year’s then-current membership fee.  Renew your membership before your current membership period expires to continue receiving Sofaclub Frequent Flyer Benefits without interruption, otherwise your membership will automatically convert to the standard Sofaclub Membership upon expiration of your sofaclub rewards membership.  For clarity, you must provide a valid email address and mobile phone number to be eligible to receive any Benefits associated with the Program under either Sofaclub Membership or sofaclub rewards membership, and must also provide valid payment information to receive any Benefits associated with the sofaclub rewards membership. When signing up for the Program, you agree that: (a) You will not use an email address or phone number that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive.  We may reject the use of any email address or password (if applicable) for any reason in our sole discretion; (b) You will provide true, accurate, current, and complete information about yourself in connection with the membership registration process and, as permitted, maintain and update it promptly to keep it accurate, current, and complete, by notifying a budtender at a SOFACLUB retail location of any updates to your information or utilizing any electronic account, wallet or other mechanism made available to you by us to update your information; (c) You are solely responsible for all activities that occur under your membership, email address, and password (if applicable)—whether or not you authorized the activity; (d) You are solely responsible for maintaining the confidentiality of your membership information, account, and password (if applicable) and for restricting access to your device so that others may not access your membership, account, or any password protected portion of your account or the Website using your email address or password (if applicable); (e) You will immediately notify us of any unauthorized use of your membership, account, email address, or password (if applicable) or any other breach of security; and (f) You will not sell, transfer, or assign your membership, account, or any rights you have under the account.  We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability, or failure for any reason, to comply with any of the foregoing obligations. Program membership is nontransferable and subject to present and future Terms.  You may terminate your participation in the Program in accordance with Section 12 below at any time.  Unless you terminate your membership or are in breach of these Terms, you will remain enrolled in the Program until any Program End Date.  We may withdraw the Program or deny, suspend, revoke, or discontinue your participation in the Program at any time for any reason, with or without notice. This includes, without limitation, the right to cancel your participation in the Program or suspend accrued Points and the right to terminate your membership or account.  Without limiting the foregoing, SOFACLUB will revoke participation in the Program (including, without limitation, all Benefits) for evidence of fraud, abuse of privileges, creating any disturbance in a SOFACLUB retail location or for any unlawful act related to the Program or SOFACLUB, violation of these Terms, transfer of Program benefits or Points, or the holding of multiple memberships or accounts by an individual.  “Participation” includes earning Points and Rewards redemptions, and receiving any other Benefits associated with the Program.  Enrollment becomes effective and acceptance of these Terms begins when you complete the process of signing up for a membership through the Website or at a retail location (according to which membership tier your sign up for), as described herein.

1. BENEFITS OF THE PROGRAM

The Program provides the following Benefits subject to the terms and conditions contained in these Terms:

• Sofaclub Membership (free to join):
• Earn one (1) Point for every one dollar ($1.00) spent on any purchases made at any of SOFACLUB’s retail locations or purchases ordered through the Website and picked up at a retail location (excluding any purchase of gift cards). Points do not apply to any shipping fees, taxes, or other fees.
• Be the first to know about new products, premiere bundles, and signature events (which we will communicate to you via email and/or text).

You acknowledge and agree that if any such disclosures are included by SOFACLUB within any messaging that you share from the Program, you will not edit, alter or otherwise remove these disclosures from the message.  You acknowledge that any failure to abide by the requirements set forth in the previous sentence may result in the termination of your Member account and forfeiture of all your Points.  Additionally, if you choose to share any SOFACLUB Content  or otherwise disclose your participation in the Program on your own or if the share functionality does not auto-generate the required disclosures, you agree to include the following statements as part of any message that mentions or otherwise references the Program, SOFACLUB Content, or SOFACLUB itself: (i) solely, for posts on the X (f/k/a Twitter) platform, you agree to include the hashtags “#sofaclubrewards” and “#SponsoredByTheSofaclub” at the beginning of the post; and (ii) in any other message posted on any other social media platform, site, or blog, you agree to include at least one (1) of the following statements, as applicable, at the beginning of the message: “I receive benefits from SOFACLUB as a member of the Sofaclub Rewards Program” or “In exchange for sharing content about SOFACLUB, I may earn Points or entries into promotions as part of Sofaclub Rewards.”  Members agree and represent and warrant to the following statements:

1. I will not post any information or content or conduct any activity that may violate, or which encourages the violation of, applicable local, state, or federal laws or regulations and will promptly remove any such content upon request by SOFACLUB.
2. I will not post any information or content that may infringe any intellectual property or other right of any third party and will promptly remove any such third party content upon request by SOFACLUB.
3. I have read and will fully comply with the Federal Trade Commission’s (“FTC’s”) Endorsement and Testimonial Guides (https://www.federalregister.gov/documents/2023/07/26/2023-14795/guides-concerning-the-use-of-endorsements-and-testimonials-in-advertising) (the “Guides”) when talking or writing about SOFACLUB. Further, and without limitation, I:
1. Will clearly and conspicuously disclose my true identity and that I have received compensation and product and/or other incentive items from SOFACLUB (as applicable) proximate to any mention by me of SOFACLUB, and will make such disclosure visually if the mention is made visually and/or audibly if the mention is made audibly;
2. Will not make any false, misleading, or deceptive statements about SOFACLUB’s products or services;

1. Will ensure that all my statements accurately reflect only my honest, current opinions and beliefs based on my personal experience;
2. Will not purport to speak on behalf of SOFACLUB; and
3. Maintain my social media activities related to this Program in a manner appropriate for a family audience and will not be rude or abusive.
4. I will follow the guidance at https://www.ftc.gov/business-guidance/resources/ftcs-endorsement-guides-what-people-are-asking.
5. I will strictly comply with all applicable Approved Site terms of service, membership agreements, privacy policies, and other similar applicable governing documents of any third-party sites, services, or venues that I use in performing Program activities, including, without limitation, X’s Terms of Service and Facebook’s Statement of Rights and Responsibilities.

Additional Guidelines for Customer Reviews: The following guidelines apply to user-generated content (“User Content”) that constitutes a review of a SOFACLUB product or service (a “Review”), and these additional guidelines shall apply in the event that your User Content is a Review:

1. Reviews may only be of products or services sold by SOFACLUB in its retail locations or the Website, and you must be a bona-fide user of SOFACLUB product or service that you reference in your Review;
2. Reviews must be appropriate to the forum. For example, Reviews aren’t the place for rants about political ideologies, SOFACLUB’s employment practices, extraordinary circumstances, or other matters that don’t address SOFACLUB product or service you are reviewing;
3. Reviews should reflect your genuine experience with SOFACLUB’s products and services and be a true and accurate reflection of your honest experience(s), view(s), finding(s), belief(s), and opinion(s) based on your personal use of SOFACLUB product/service you are reviewing;
4. Don’t post fake Reviews, don’t post the same Review multiple times, and don’t post Reviews for the same product or service from multiple accounts;
5. Reviews should reflect your first-hand experience, not what you heard from someone else, or what you saw in the news. Tell your own opinion without resorting to broad generalizations and conclusory allegations;
6. Make sure your Review is factually correct. Feel free to express your opinions, but don’t exaggerate or misrepresent your experience;
7. Reviews should not make any product performance or attribute claims about SOFACLUB products or services;
8. If you receive Points for leaving a Review or if you receive a SOFACLUB product or service from SOFACLUB for free (as a gift from us or otherwise) (a “Gift”), in order to comply with your obligations set forth in the Guides, your Review must contain a disclosure of the fact that you received the Gift free of charge from SOFACLUB (the “Disclosure”). Such Disclosure must be unavoidable, clear, and conspicuous and communicated in a way that a reader of your Review is likely to notice and understand.  Additionally, the Disclosure must be made visually if your Review is made visually and/or audibly if your Review is made audibly.  It’s not too complicated—it should just be straightforward and upfront.  Here are a couple of examples of how this Disclosure can be made very easily and simply:

• “I accepted a free [insert description of item(s) received] from SOFACLUB in connection with my review.”
• “Thanks SOFACLUB for the free [insert description of item(s) received] and I think…”

1. Any SOFACLUB team member or employee who writes a Review must disclose that they are affiliated with or compensated by SOFACLUB.
2. We may restrict your ability to submit or post a Review when we detect unusual reviewing behavior, or to maintain the best possible customer experience; and
3. If your Review is removed or rejected because it does not comply with these Terms, you may not resubmit a Review on the same product or service, even if the resubmitted Review includes different content.

Thus, if a Member posts a Review of a product that they received from SOFACLUB, the Member represents and warrants that they have read and will fully comply with the Guides when submitted or posting the Review on any website or elsewhere.  Further, and without limitation, in such instance Member will: (i) clearly and conspicuously disclose their true identity and that they have received a free product and/or other incentive items from SOFACLUB (as applicable) proximate to and in the same manner (i.e., visually or audibly) as any mention by the Member of SOFACLUB; (ii) will not make any false, misleading, or deceptive statements about SOFACLUB’s products or services; and (iii) will ensure that all statements accurately reflect only the Member’s honest, current opinions and beliefs based on the Member’s personal experience.

1. EARNING POINTS

SOFACLUB RESERVES THE RIGHT, WITHOUT LIMITATION, TO TERMINATE, CHANGE, LIMIT, MODIFY, OR CANCEL ANY OF THE MEANS OF EARNING POINTS AND THE NUMBER OF POINTS EARNED (WHETHER THROUGH PURCHASE OR ENGAGEMENT), AT ANY TIME, WITH OR WITHOUT NOTICE.

The Program is limited to earning Points or other Benefits in connection with qualifying purchases in-store at any SOFACLUB retail location or Website pre-orders purchased and picked up in-store at any SOFACLUB retail location, and other actions as described in Section 3 above.  Qualifying purchases exclude purchases of gift cards and any merchandise items that are excluded in particular promotions as stated by SOFACLUB, and shall be calculated based on the final sale prices of merchandise after any applicable discounts and coupons are applied (including Rewards redeemed, if applicable) and before sales tax and shipping and handling (if applicable) is added, rounded to the nearest dollar.  Points shall be calculated based on the final sale prices in U.S. dollars.

Points are not earned on returns, refunds, credit adjustments, unauthorized or fraudulent charges, charges that violate these Terms or any additional terms that apply to the Program, purchases made by or for a business or for a business purpose, fees, or other account activities not listed as accruing Points in any Program materials or these Terms.  Other exclusions may apply.  We have the right to deduct Points from your Points balance for charges that were not or do not remain qualifying purchases.  If your Points balance goes negative, you must first earn Points to bring your Points balance to zero (0) before earning any Points eligible for redemption.  Points you earn may not be combined with Points earned in connection with any other Program membership or account.  Points you earn may not be combined with Points earned by anyone else.  POINTS EARNED HAVE NO CASH VALUE AND MAY NOT BE USED AS PAYMENT OF ANY OUTSTANDING OBLIGATION TO SOFACLUB.  Points earned from a qualifying purchase shall be deducted from the Member’s account if the qualifying purchase is returned or exchanged. Points from a qualifying purchase will accrue in your account within twenty-four (24) hours after the date of the qualifying purchase.  At any time, we may verify and adjust your Points balance based on our records and based on certain purchases not constituting, or no longer constituting, qualifying purchases.  Points from other actions as described in Section 3 above other than from a qualifying purchase will accrue in your account up to seven (7) days after you have completed the action, as determined by SOFACLUB in its sole discretion.  Points will remain available in your Points balance until they are redeemed, forfeited, or expire.  Send an email to one of our retail locations (see https://www.sofaclub.nyc for applicable retail location email addresses) or ask a budtender in-store at one of our retail locations to receive your Points balance.  You may also view your Points balance via our email and/or text communications, as well as any other electronic account or wallet that we make available to you.  All Points will expire twelve (12) months from the date of your last qualifying purchase as described herein.  Additionally, except as otherwise provided by applicable law, you will forfeit all unused Points if your participation in the Program is terminated or your membership is cancelled for any reason.  You will also forfeit Points as described below.  You will not receive any compensation or new Points for your Points that expire or are forfeited.

Points are not your property and are not transferable to anyone by operation of law or otherwise.  Points may not be sold, purchased, brokered, bartered, transferred, or altered in any way by you.  Any attempted transaction of such sort will automatically be void.  Anyone engaging in such transactions will be liable for damages to us, including, but not limited to, consequential damages, third party damages, transaction costs, attorney’s fees, and court costs.  Any violation of these provisions will result in termination of your eligibility to participate in the Program and forfeiture of unused Points.  Anyone selling, purchasing, brokering, bartering, transferring, or altering Points, either wholly or partially, shall be liable for payment of the applicable full retail price of any Rewards obtained with them, as well as all damages, including, but not limited to, consequential damages, transaction costs, and litigation costs (including attorney’s fees and costs at trial and on appeal and in any bankruptcy proceeding).  Any brokered, bartered, altered, sold, or purchased Points shall likewise be void and may be deducted from your Points balance.  Any violation of these provisions will result in termination of your eligibility to participate in the Program and forfeiture of unused Points.

1. REWARDS

If you are a Member of the Program, you may redeem your Points in-store at any SOFACLUB retail location, at the point of purchase, with the budtender that is checking you out, by providing the telephone number you used to sign up for the Program.  You may add products or Rewards to an online pre-order on the Website or your in-store kiosk order, but you can only redeem Points when you’re at the point of purchase at a SOFACLUB retail location.  The items you can redeem using Points and the amount of Points necessary to redeem each item are listed on our Website, https://www.sofaclub.nyc/rewards/; please check the Website frequently, as the items you can redeem using Points may change. You may not combine a Reward discount or coupon with any other discount or certificate, except as otherwise provided in the offer.  Rewards shall not be refunded if you return or exchange merchandise purchased using a Reward discount or coupon.  Reward discounts and coupons have no cash value, may not be applied to taxes or shipping charges, and may not be redeemed for partial Rewards, merchandise, or any other value.  Reward discounts and coupons will not be honored retroactively in connection with any prior purchases.  Reward discounts or coupons may not be used as payment of any outstanding obligations to any other party other than SOFACLUB.  Any additional exclusions or limitations for use of Reward discounts or coupons will be provided to you on the Reward via phone, email, or other methods permitted under applicable law.  To the extent allowed by applicable law, we may cancel any earned Reward discount or coupon if we become insolvent, unable to pay our debts when due, file an action under the U.S. Bankruptcy Code, or have such an action filed against us.  All Rewards are subject to change without notice, and are valued in U.S. dollars.

1.COMMUNICATIONS, PROGRAM ACTIVITY, AND CUSTOMER SERVICE

We may contact you about the Program by phone, email, or other methods permitted under applicable law.  Additionally, we may offer, from time to time, communications including, for example, those made by or on or behalf of SOFACLUB though the use of short messaging services (“SMS”) or multimedia messaging services (“MMS,” together with SMS, “Messages”), through which recurring autodialed marketing Messages may be sent regarding SOFACLUB and/or third-party offers, including discounts and coupons.  You can opt in to receiving Messages by joining SOFACLUB’s member list (the “SMS Member List”) by indicating your consent to receive marketing Messages when signing up for a Program membership or making a purchase with SOFACLUB.  You are not required to opt in to the Member List as a condition of making a purchase from SOFACLUB. You may opt-out of the SMS Member List at any time by replying to any message received from SOFACLUB or to shortcode 16073001198 with an opt-out command such as “STOP”.  When opting out of the SMS Member List, you acknowledge and agree to receive a final one-time opt-out confirmation Message; this message may also seek to clarify the scope of your opt-out.  You may text HELP for help at any time. There is no cost to join the SMS Member List.  However, standard messaging, data, and other fees may be charged by your carrier for messages sent to you through the SMS Member List.  By opting in to the SMS Member List, you represent and warrant that you are authorized to incur such charges and acknowledge that SOFACLUB, its agents, and its affiliates are not responsible for such charges. You also agree to receive ongoing and/or recurring transactional and/or marketing Messages from and/or on behalf of SOFACLUB, or its agents and/or affiliates, through your wireless provider to the mobile number provided, including but not limited to Messages sent using an autodialer and/or any other automated system or method.  You acknowledge that automated marketing calls or text Messages may be made to your telephone number(s) even if your telephone number(s) is/are registered on any state or federal Do Not Call list.  You expressly agree that SOFACLUB may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means.  You agree to receive automated calls and text messages from SOFACLUB, our agents, and affiliates even if you terminate your relationship with us.

It is your sole responsibility to notify us if you no longer want to receive automated text messages.  You waive any rights to bring claims for unauthorized or undesired text messages by failing to opt out.  Please allow up to ten (10) business days to process any opt-out request.  Even if you opt out of automated Messages, we reserve the right to send non-automated Messages to you.  For more information, contact us at [email protected]. You must notify us immediately of any breach of security or unauthorized use of your telephone device.  Although we, our agents, and affiliates will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.  You are responsible for maintaining accurate and updated personal information with SOFACLUB.  As needed, you agree to promptly update your contact information by notifying a budtender at a SOFACLUB retail location of any updates to your contact information.  SOFACLUB is not responsible for communications or Rewards (if applicable) that are lost or undelivered due to incorrect or outdated contact information.  We may email you regarding any matter related to the Program or send you marketing emails regarding SOFACLUB offers and the latest new arrivals.  You may opt out of marketing email materials by following the unsubscribe link provided in each marketing email.  However, if your membership remains active, you will continue to receive relationship/operational emails primarily related to the Program unless your account is cancelled or otherwise terminated.  E-receipts are neither marketing nor emails related to the Program, but merely confirmations of purchases.  You can view your Program activity by sending an email to one of our retail locations (see https://www.sofaclub.nyC/ for applicable email addresses) or asking a budtender in-store at one of our retail locations.  You may also view your Program activity via our email and/or text communications, as well as any other electronic account or wallet that we make available to you.  SOFACLUB is not responsible for any lost, stolen, expired, damaged, or otherwise misdirected communications or Points due to change of address, email address or for any other reason.  Points Components will not be reissued.  You are solely responsible for updating any changes to your contact and account information.  We are not responsible for technical, hardware, network connections, or incomplete or delayed computer transmissions, regardless of cause.

1. POINTS DISPUTES

If Points you believe were earned have not timely accrued to your Points balance, you may dispute your Points balance (“Points Dispute”) by immediately notifying us at: [email protected].  We will use reasonable efforts to investigate your Points Dispute if you notify us within thirty (30) days of the posting date.  If you do not notify us within that period, you waive your right to make a Points Dispute with respect to that purchase.  We may require you to provide written confirmation of the dispute and the applicable purchase receipt and may decline to investigate further if you do not provide the requested confirmation or a valid receipt.  Upon completion of the investigation, we will have no further responsibilities if you later reassert the same Points Dispute.  Your sole and exclusive remedy and our maximum liability to you in the event you prevail in a Points Dispute is for us to credit the disputed Points to your Points balance.  Please note that the dispute rights under this Section 7 only apply to Points Disputes and do not apply to your other rights and obligations under the Program, which must be resolved solely as set forth in these Terms.

1. LIMITATION OF LIABILITY

Unless otherwise required by law or our agreements with you, SOFACLUB, nor any of our affiliates, officers, directors, employees, service providers, or agents will be liable to you, or anyone making a claim on your behalf, in connection with: (a) any termination of, change in, or suspension of the Program; (b) any Rewards, Benefits, or products purchased using any Points, Rewards discount or coupon, or Benefits or otherwise obtained through the Program; (c) any loss, damage, expense, or inconvenience caused by any occurrence outside of our control; or (d) any taxes that you incur as a result of receiving or redeeming Points.  Further, UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:

(a)        the Program, the Website, or you participation in the Program at any of SOFACLUB’s retail locations;

(b)        your activities in connection with the Program and Website;

(c)        your use of or inability to use the Program, or the performance of any website associated with the Program;

(d)        any action taken in connection with an investigation by us or law enforcement authorities regarding your access to or use of the Program or your use of SOFACLUB products or services;

(e)        any action taken in connection with copyright or other intellectual property owners or other rights owners;

(f)         any errors or omissions in the Program’s and Website’s technical operation; or

(g)        any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if we were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Program).  Notwithstanding the foregoing, any liability that we may have to you in connection with the Program shall be limited to the amount of any Points, Benefits, or Rewards you have earned in accordance with these Terms.

1. DISCLAIMER OF WARRANTIES

YOUR ACCESS TO AND USE OF THE PROGRAM IS AT YOUR SOLE RISK. THE PROGRAM IS PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.  Therefore, to the fullest extent permissible by law, SOFACLUB and our parent companies, affiliated entities, and each of their respective subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, successors, and assigns (collectively, “Program Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

• the Program, the Website, or SOFACLUB’s retail locations;
• the functions, features, or any other elements on, or made accessible through, the Program, the Website, or any of SOFACLUB’s retail locations;
• any products, services, or instructions offered or referenced at or linked through the Program, the Website;
• security associated with the transmission of any content you transmit to us via the Program or the Website, or any of SOFACLUB’s retail locations;
• whether the Website or the servers that make the Website available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your device);
• whether the information (including any instructions) on the Website or provided at any of SOFACLUB’s retail locations is accurate, complete, correct, adequate, useful, timely, or reliable;
• whether any defects to or errors on the Website will be repaired or corrected;
• whether your access to the Website or any of SOFACLUB’s retail locations will be uninterrupted;
• whether the Website will be available at any particular time or location or SOFACLUB’s retail locations will be open for business at any particular time; and
• whether your use of the Program (including, without limitation, any Rewards redeemed) or the Website, or your purchase of SOFACLUB products or services, is lawful in any particular jurisdiction.

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A PROGRAM PARTY, THE PROGRAM PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

This section survives the termination of the Program.

1. CHANGES/ENDING THE PROGRAM

Subject to any requirements or limitations of applicable law, we may at any time for any reason add to, change, limit, or terminate the Program or these Terms.  To the extent allowed by applicable law, (a) changes may apply retroactively, and may affect outstanding transactions and Points, and may result in you involuntarily forfeiting Points you have earned, and (b) changes will not affect issued or redeemed Reward discounts or coupons except to the extent allowed by applicable law.  These Terms, in the form posted at the time of your use of the Program, shall govern such use (including transactions entered during such use). AS OUR PROGRAM EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE PROGRAM MAY BE MODIFIED AND WE MAY CEASE OFFERING THE PROGRAM UNDER THE TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU PARTICIPATE IN OR USE THE PROGRAM, YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM AT A SOFACLUB RETAIL LOCATION AND/OR POSTING THEM ON THE WEBSITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT, INCLUDING, BUT NOT LIMITED TO, VIA EMAIL), AND THAT YOUR USE OF THE PROGRAM AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE REVISED TERMS.  Therefore, you should review the posted Terms each time you participate in or use the Program.  The revised Terms will be effective as of the time that we post them, or such later date as may be specified in them or in other notice to you.  In the event any notice to you of new, revised, or additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement to Terms occurs.  You should frequently check the Website, the email you associated with your membership for notices, and your local SOFACLUB retail location, all of which you agree are reasonable manners of providing you notice.  You can reject any new or revised Terms by discontinuing use of the Program.

SOFACLUB makes no guarantee or representation as to the length of time during which the Program will be offered, and the Program could end at any time.  SOFACLUB reserves the right to cancel, modify, restrict, suspend, or terminate this Program or any aspect or feature of the Program, including Points, and/or extend or shorten the current Program period at any time without notice.  After the Program End Date (if any), Members will no longer be permitted to earn/accrue Points.  Members will have sixty (60) days after the Program End Date (or the specific number of days noted in the Program ending announcement) during which to redeem any remaining Points associated with their membership.  After such sixty (60) day period, all Points will expire and the Program will no longer be available, and no further liability will be owed by us to any Member.  Any Points remaining in an account sixty (60) days after the Program End Date will be forfeited without compensation.

1. TAXES

You are solely liable for any applicable taxes arising out of the accrual or use of Points, Benefits, or Rewards.  Consult your tax advisor concerning such tax consequences.

1. TERMINATING PROGRAM PARTICIPATION

You may terminate your participation in the Program at any time by contacting [email protected] to have your Program membership deactivated.  If you terminate your participation in the Program, you will no longer earn Points and you will forfeit your unused and unexpired Points.  Your cancellation will not affect any previously issued or received Rewards.

1. GOVERNING LAW; ASSIGNMENT

The Program and these Terms are governed by federal law and the laws of the State of New York, without any reference to its choice of law provisions.  You may not assign your rights or obligations under these Terms to any other person or entity.  YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS ARISING FROM OR RELATING TO THESE TERMS ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

“Claim,” as used in these Terms means any claim, dispute or controversy that in any way arises from or relates to these Terms.

1. AGREEMENT TO ARBITRATE

PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING INDIVIDUAL ARBITRATION, AMONG OTHER THINGS.

(A) First – Try to Resolve Disputes and Excluded Disputes.  If any controversy, allegation, or claim arises out of or relates to the Program, your User Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of SOFACLUB’s actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in Section 14(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such contact information exists or if such information is not current, then we have no obligation under this Section 14(A).  Your notice to us must be sent via certified U.S. mail to: SOFACLUB, 835 Broadway, New York, NY 10003 (Attn: Legal Department).  The written description included in your notice must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought.  For a period of sixty (60) days from the date of receipt of notice from the other party, SOFACLUB and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, through an informal telephonic dispute resolution conference between you and SOFACLUB in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or SOFACLUB to resolve the Dispute or Excluded Dispute on terms with respect to which you and SOFACLUB, in each of our sole discretion, are not comfortable.  The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference.  If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference.  This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding.  The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process.  Certain portions of this Section 14(A) are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act.  You and SOFACLUB agree that we intend that this Section 14(A) satisfies the “writing” requirement of the Federal Arbitration Act (“FAA”).

(B) Binding Arbitration.  If we cannot resolve a Dispute as set forth in Section 14(A) within sixty (60) days of receipt of the notice, then ANY DISPUTE ARISING BETWEEN YOU AND SOFACLUB OR ANY OF ITS AGENTS, VENDORS, CONTRACTORS, OR OTHER THIRD PARTY BENEFICIARY OF THESE TERMS (whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, any other intentional tort or negligence), common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these Terms, MUST BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION.  The FAA, not state law, shall govern the arbitrability of all disputes between SOFACLUB and you regarding these Terms (and any Additional Terms) and the Program including the “No Class Action Matters” Section below.  BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.  SOFACLUB and you agree, however, that the applicable state or federal law, as contemplated in Section 14(J) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and SOFACLUB regarding these Terms and the Program, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.  An Excluded Dispute will only be subject to binding arbitration pursuant to this Section 14 if the parties mutually agree.  Any Dispute will be resolved solely by binding arbitration in accordance with the then-current: (i) Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in effect since the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1; and if such Consumer Arbitration Rules do not apply then: (ii) the Commercial Arbitration Rules (collectively, “Rules”) of the AAA, except as modified herein, and the arbitration will be administered by the AAA.  If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’s streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of SOFACLUB consent to in writing.

(C) Arbitration Process.  If after sixty (60) days the informal dispute resolution procedure set forth in Section 14(A) above is unsuccessful in resolving the parties’ dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf  (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf.)  The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside.  The parties will first attempt to agree on an arbitrator.  If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules.  The arbitration may be conducted by telephone or based on written submissions, and if an in-person hearing is required, then it will be conducted in the county where you live or at another mutually agreed upon location.  You and we will pay the administrative and arbitrator’s fees and other costs (and please note that you will be responsible for a portion or percentage of such fees) in accordance with the requirements of the Rules; but if the Rules (or other applicable arbitration rules or laws) require SOFACLUB to pay a greater portion or all of such fees and costs in order for this Section 14 to be enforceable, then SOFACLUB will have the right to elect to pay the fees and costs and proceed to arbitration.  Except as set forth in Section 14(D), the arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim.  The arbitrator will render an award within the time frame specified in the Rules.  The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.  The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Rules, and these Terms.  The arbitrator’s award of damages and/or other relief must be consistent with the terms of the Limitation of our Liability Section above as to the types and the amounts of damages or other relief for which a party may be held liable.  If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated.  In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court.  In no event will a claim for public injunctive relief be arbitrated.  All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide.  Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.  If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), SOFACLUB will have the right to recover its attorneys’ fees and expenses.  This arbitration provision shall survive termination of these Terms or the Program.  You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.

(D) Special Additional Procedures for Mass Arbitration.  If twenty-five (25) or more similar claims are asserted against SOFACLUB by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed.  You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule.  Counsel for the claimants and counsel for SOFACLUB shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required to agree in writing to modify the number of cases to be included in the bellwether process.  The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision.  In the bellwether process, a single arbitrator shall preside over each case.  Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise.  After decisions have been rendered in the first ten (10) cases, SOFACLUB and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases.  If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.  After decisions have been rendered in the second group of twenty (20) cases, SOFACLUB and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein.  Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration provider shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch.  You agree to cooperate in good faith with SOFACLUB and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims.  This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind.  SOFACLUB does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 14(D).  The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Section 14(D) from the time of the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn, or otherwise resolved.  A court shall have authority to enforce this Section 14(D) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against SOFACLUB.

(E) Limited Time to File Claims.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 14(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES—OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (i) by delivery of written notice as set forth above in Section 14(A), (ii) filing for arbitration with JAMS as set forth in Section 14(B), or (iii) filing an action in state or federal court.  The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.

(F) Injunctive Relief.  The foregoing provisions of this Section 14 will not apply to any legal action taken by SOFACLUB to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Program, your User Content, these Terms, and/or SOFACLUB’s intellectual property rights (including such that SOFACLUB may claim that may be in dispute), SOFACLUB’s operations, and/or SOFACLUB’s products or services.

(G) No Class Action Matters.  YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION.  Except as expressly contemplated for mass arbitrations set forth in Section 14(D), Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.  There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.  But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 14(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 14(H).  Notwithstanding any other provision of this Section 14, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator.  The arbitrator does not have the power to vary these class action waiver provisions.  Notwithstanding any other provision of this Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire arbitration agreement shall be void.  If any portion of this arbitration agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration agreement.

(H) Federal and State Courts in New York, New York.  Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or federal court in New York, New York.  Accordingly, you and SOFACLUB consent to the exclusive personal jurisdiction and venue of such courts for such matters.

(I) Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court on an individual basis for disputes and actions within the scope of such court’s competent jurisdiction.

(J) Governing Law.  These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions.

1. MISCELLANEOUS

Entire Agreement; Severability; Conflicts; No Waiver.  These Terms contain the entire agreement between you and us regarding the Program, and supersede any previous terms and conditions governing the Program we may have provided to you.  The Program is not available where and to the extent prohibited by law.  If any part of these Terms conflict with applicable law, that provision will be deemed severed from these Terms and the remainder of the Terms will remain in effect.  We will not lose our rights under these Terms because we delay or do not enforce them.  All waivers of any of these Terms by us must be in a writing executed by someone with authority to bind us.

Operation of Website; Availability of Program.  SOFACLUB controls and operates the Program and the Website from its U.S.-based offices in New York, New York, and SOFACLUB makes no representation that the Website or Program is appropriate or available for use beyond the U.S.A.  If you participate in the Program or use the Website from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  The Program or the Website may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide.  We reserve the right to limit the availability of the Program or the Website and/or the provision of any content, program, product, service, or other feature described or available through the Program or on the Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.  You and we disclaim any application to this Agreement of the Convention on Contracts for the International Sale of Goods. Fraud.  

Fraud or abuse relating to the account registration process, providing of personal information, or earning or redemption of Points is a violation of these Terms.  You are solely responsible for any fraudulent use that may occur due to the theft of or sharing of your Program membership information.  You agree to immediately notify us of any unauthorized use of your membership information or any other breach of security known to you.  The Program is a service provided to an individual participant, not a company or other entity, and a company or other entity may not direct, encourage or allow individuals to participate in the Program for anything other than individual use.  SOFACLUB reserves the right to take any of the actions set forth in these Terms if you engage in fraudulent activity or otherwise use this Program other than in accordance with these Terms and applicable law.  ANY ATTEMPT BY YOU OR ANY OTHER INDIVIDUAL OR ENTITY TO DAMAGE ANY WEBSITE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM IS A VIOLATION OF THESE TERMS.  SOFACLUB RESERVES THE RIGHT TO INVESTIGATE ANY SUSPICIOUS ACTIVITY AND TO SEEK DAMAGES FROM ANY SUCH PERSON TO THE FULLEST EXTENT PERMITTED BY LAW AND THIS AGREEMENT.

Waiver of Injunctive or Other Equitable Relief.  IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND.  THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITES, APPLICATION, CONTENT, THE PROGRAM, USER CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY US.

Indemnity.  In exchange for the right to participate in the Program and/or SMS Member List, you agree to indemnify, defend (at our option), and hold us harmless from and against any and all damages, losses, liabilities, privacy, tort, or other claims, costs, investigations, judgments, fines, penalties, settlements, interest, expenses, or demands, including, but not limited to, claims under the Federal Telephone Consumer Protection Act or any state law equivalents, relating to your voluntary provision of a telephone number that is not owned by you and/or failure to notify us of any changes in your contact information, including telephone number, personal injury, death, or damage to or loss of property, that directly or indirectly arise from or are related to: (a) your use of the Program (including, without limitation, Benefits and Rewards) and your activities in connection with the Program; (b) your actual or alleged breach or anticipatory breach of these Terms (as updated from time to time); (c) your actual or alleged violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Program (including, without limitation, Benefits and Rewards) or your activities in connection with the Website and/or the Program; (d) any misrepresentation made by you; and (e) our use of the information that you submit to us (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by us in the defense of any Claim and Losses.  Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all Claims and Losses.  We reserve the right to assume the exclusive defense and control of any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of SOFACLUB.

1. NOTICE OF FINANCIAL INCENTIVES

We may offer exclusive price discounts, rewards, offers, deals, coupons, services, and other perks for (a) customers who enjoy our loyalty and rewards programs; (b) recipients of our mailing lists who were presented with a financial incentive to sign up; and (c) applicants or registrants who were presented with a financial incentive for their application or registration (collectively, “programs”).  Through these program offerings, consumers may provide us with some personal information (e.g., name, postal address, email address, phone number, birthday, and other similar forms of personal information) when they join our programs.  There is no obligation to join our programs and consumers may opt out.  The details of each program are contained in the program offering.  We offer these programs to, among other things, enhance our relationship with customers.  The value to our business, in the aggregate, of customers’ personal information depends on specific facts, such as whether and to what extent they take advantage of any offerings.  The value we place on the personal data that we collect in connection with these programs is calculated by determining the approximate additional spending per promotion participant, compared to individuals for whom we do not have email addresses, shopping history, and preferences, or other collected information.

You may join our programs by signing up in the manner invited for an individual program.  And you can opt out of these programs by contacting us at [email protected]. For more information on how we use your data, see our Privacy Policy.