Club Orchard Member Agreement
This Orchard Supply Hardware LLC (Orchard) Member Agreement contains details about the relationship between you and us relating to the Club Orchard service. You have to accept the terms of the Member Agreement in order to become a Club Orchard member. By enrolling as a Club Orchard member, you agree to these terms and conditions and that your use of this site and your participation in the Club Orchard service is subject to this Member Agreement.
By enrolling in the Club Orchard Service, you acknowledge that you have read and understood this Member Agreement and that you agree to be bound by all of its terms. If you do not agree to all of the terms of this Agreement, then do not click the "join" button to finish joining.
You also acknowledge that you have had an opportunity to review the Orchard Privacy Statement or that it has been made available to you.
This Agreement constitutes a legally binding agreement between Orchard, a California corporation Orchard") and each individual who registers with the Club Orchard, as described below by completing the registration form on the Club Orchard website. As used in this Agreement, the terms "we", "our" and "us" mean Orchard
- Earn a point for nearly every $1 spent
- For every 250 points earned, receive a rewards certificate for $5 on your next purchase at an Orchard Store or online at osh.com
- Exclusive Club Orchard pricing on select merchandise and access to member only sale days
- Get exclusive access to member-only offers, money saving coupons and pre-sale notifications
- Registration. You represent that you are a person of legal age in the state in which you live (generally at least 18 to 21, depending on the state) and are a legal resident of the United States and its territories. You agree that it is your responsibility to keep your Member information current, complete and accurate by periodically updating your information in the appropriate section of the Club Orchard website.
- License. Subject to this Agreement, Orchard hereby grants you a non-exclusive, non-transferable license (without the right to sublicense) for so long as you participate in the Service and adhere to this Agreement, to access, participate in and use the Service. You agree that you obtain no rights other than the rights and licenses expressly granted in this Agreement.
- Fees. Orchard does not charge any membership fee.
- Policies. You agree to comply with this Agreement, and all other policies and rules as set forth in Service materials, including materials of Clients, either in print or on the Club Orchard website (collectively, the "Policies"). The Policies, including any amendments which may be made from time to time, are hereby incorporated by reference into this Agreement. Orchard may modify this Agreement or the Policies at any time. This Agreement and the Policies as so amended will be posted on the Club Orchard website, and your continued use of the Service thereafter will constitute acceptance of any such amendment.
- No Unauthorized Use of the Service. You agree that you will not, and will not permit others to:
- Provide any unauthorized third party with access to the Service or any information, data, text, links, images, software, chat, communications and other content available through the Internet and proprietary to (collectively, "Content") by any means;
- Modify, reverse engineer, reverse assemble or decompile any of the software applications used by you in connection with your participation in the Service;
- Engage in any activity that does not comply with U.S. law or other applicable law and regulations or otherwise engage in any illegal, manipulative or misleading activity through the use of the Service;
- Introduce into the Service any code intended to disrupt the Service, alter or delete its Content, access confidential Content on the Orchard website or interfere with the operation of the Service, including, but not limited to, distribution of unsolicited advertising or mail messages and propagation of computer worms and viruses;
- Post any material in any form whatsoever on the Orchard website or within the Service that is defamatory, obscene or otherwise unlawful or violates any third party's right of privacy or publicity.
- Infringe any third party's patent, copyright, service mark, trademark or other intellectual property right of any kind or misappropriate the trade secrets of any third party in connection with your use of the Service.
- Security. You will maintain the confidentiality of the user IDs and passwords by which you access the Service, and will allow access to the Service only by authorized persons, and not by any program, expert system, electronic agent, "bot" or other automated means. If you desire, you may authorize an account guest to contact Orchard customer care to take certain actions on your behalf with respect to your account. The Club Orchard website will set forth our Policies regarding account guests. Any use of your assigned user IDs or passwords will be deemed to be your use. If there is a breach of security through your account, you will immediately change your password and notify us of such breach. You agree that, unless you have first notified us immediately of any such breach, we should assume that any instruction transmitted using your user ID and password is yours and has been authorized by you, and we will have no obligation to inquire into the propriety of such instruction. In addition, you agree that we should assume that any instruction by an account guest that is in compliance with the Policies has been authorized by you, and we will have no obligation to inquire into the propriety of such instruction. You will not permit any use of the Service that would damage, interfere with or unreasonably overload the Service. You acknowledge that Orchard will not contact you to solicit your user ID or password.
- Discontinuation or Suspension of Use. We may, in our sole discretion, at any time and without prior notice:
- Discontinue transmitting all or any part of the Content related to the Service;
- Change, discontinue or limit access to the Service or any functionality, feature or other component of the Service; or
- If we reasonably believe you have breached this Agreement, suspend or terminate your use of or access to the Service upon giving you notice of such suspension or termination.
Client Offers and Payment of Rewards
- Rewards. Subject to this Agreement, you will receive cash rebates and other payments denominated in U.S. dollars (each a "Reward") on all Qualifying Purchases made at, from Orchard. Rewards you accrue as a result of Qualifying Purchases will be posted to your Club Orchard Account. The Club Orchard website will display a summary of activity in your Club Orchard Account. Generally, Rewards will be posted to your Club Orchard Account within thirty (30) days of notice from a Client to Club Orchard of your relevant transaction. However, we will not be liable for damages resulting from any failure to post Rewards to an Club Orchard Account in a timely manner. You acknowledge and accept that you are solely responsible for checking your Club Orchard Account regularly to verify that Rewards have been properly posted. If you believe that a Reward has not been properly posted to your Club Orchard Account, then you must inform Orchard within one year of the qualified transaction for which you are claiming that a Reward should have been posted and must be able to provide proof of such transaction acceptable to Orchard. Orchard reserves the right, however, to determine, in its sole and absolute discretion, whether a Reward should have been posted to your Club Orchard Account. You acknowledge that any such determination by Orchard will be final and binding.
- Returning and Rescinding Contributions. In our sole discretion, we may deduct Contributions from your Club Orchard Account in order to make adjustments for returns and cancellations with respect to Qualifying Purchases. In the event that you have redeemed a Reward from your Club Orchard Account and you subsequently reverse the transaction with a Client that generated such Reward, or otherwise are required to return the Reward to the Client pursuant to the terms of the applicable offer, whether or not you are still participating in the Service. We reserve the right to rescind Rewards and to bar further Rewards to, or terminate the Membership of, any Member that we believe, in our sole discretion, is abusing or has abused the Service, including, without limitation, by engaging in fraudulent activities, by engaging in a pattern of returning products after the corresponding Reward has been credited, or creating or attempting to create or participating in any market in Rewards, or engaging in or accepting any broad-based solicitation of Rewards, and you agree to forfeit any and all Rewards you have received through the Service in the event you have engaged in any such activities.
- Account Adjustments. In the event of any abusive or fraudulent activity related to the Service, as determined by us in our sole discretion, we reserve the right to make any adjustments to your Club Orchard Account at any time. Any such adjustments, however, will be made in accordance with this Agreement, the Policies, any applicable laws, rules or regulations, and the terms of any Client offers.
Use of Information
- Use of Information.
a. You acknowledge that in order to administer the Service, we will collect information about you and your purchases from Clients.
- Termination; Expiration or Forfeiture of Club Orchard Accounts.
- This Agreement is effective when accepted by you, as described in the first paragraph of this Agreement, and will remain in effect and legally bind you and us until you or we terminate your membership in the Service. You may terminate your membership in the Service at any time in accordance with the procedures established on the Club Orchard website from time to time. We may terminate this Agreement without cause immediately after notice to you of such termination.
- If you have not received a Reward in your Club Orchard Account for twelve (12) consecutive calendar months, or if this Agreement has terminated, then we may close your Club Orchard Account and if you do not supply direction for transfer of rewards to you within sixty (60) days of our notice to you that we intend to close your Club Orchard Account, then Club Orchard will distribute such rewards in cash to you at your most recent email address provided to us.
- Upon any termination of this Agreement, your right to use and access the Service and to receive Contributions will terminate and Sections 5, 8, 9, 10, 11, 12, 13, 14 and 16 hereof will survive in accordance with their terms. Subject to the limitations set forth in this Agreement, termination will not prejudice either your or our remedies at law or in equity.
- Certain Disclaimers; Indemnification.
- Disclaimer of Warranties.
- THE SERVICE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS, OR VALIDITY OF ANY MATERIALS RELATED TO THE SERVICE AND DO NOT WARRANT THAT THE FUNCTIONALITY OF SUCH SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT SUCH SERVICE OR THE SERVER(S) THAT MAKE(S) IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- Orchard 'S WEBSITE AND THE SERVICE MAY CONTAIN FACTS, VIEWS, OPINIONS, STATEMENTS, OR RECOMMENDATIONS OF THIRD-PARTY INDIVIDUALS AND ORGANIZATIONS. WE DO NOT REPRESENT OR ENDORSE THE ACCURACY, CURRENTNESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, RECOMMENDATIONS, OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED THROUGH THE Orchard WEBSITE. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, STATEMENT, RECOMMENDATIONS OR INFORMATION WILL BE AT YOUR SOLE RISK. FURTHERMORE, Orchard DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE QUALITY OF, OR ACCURACY OF ADVERTISEMENTS FOR, ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ITS CLIENTS IN CONJUNCTION WITH THE SERVICE.
- Exclusion of Certain Damages. We will not be liable for any damages, including indirect or consequential, arising from:
- Any failure to screen users or Members of the Service;
- Acts or omissions of any users or Members of the Service;
- Materials posted by, or of, any party other than Orchard or any use thereof
- The accuracy, dependability, privacy, security, authenticity or completeness of data transmitted over or obtained using the Internet; or
- Any failure to perform any obligation hereunder, or from any delay in the performance thereof, due to causes beyond its reasonable control, including the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power system, sabotage, armed hostilities, riots or government regulation of the Internet.
In addition to the foregoing, on occasion, Orchard and/or any of their respective third party agents may fail to track your Qualified Purchases due to computer system failures or interruptions beyond the reasonable control of the tracking party. Neither Orchard nor any Client or third party tracking agent shall be liable for your failure to receive a Reward as a result of a computer system failure or interruption.
- Indemnification. You agree to indemnify Orchard and any Client, as well as their respective officers, directors, employees, successors, agents, and affiliates, for any and all claims, damages, losses and causes of action (including attorneys' fees and court costs) arising out of or relating to your breach of this Agreement (including without limitation relating to a breach by you of Section 5), or for any materials in any form whatsoever that are provided by you or your account guest (or through your user ID and/ or password). You agree to cooperate as fully as reasonably required in our defense and/or settlement of any claim. Orchard reserves in their reasonable discretion the right to assume exclusive control over the defense and settlement of any matter subject to indemnification by you.
- Limitation of Liability.
- NONE OF ORCHARD OR ANY CLIENT, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, OR AFFILIATES ARE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE, THE INFORMATION CONTAINED ON THE ORCHARD WEBSITE, OR (EXCEPT IN THE CASE OF THE APPLICABLE CLIENT) ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED BY ORCHARD 'S CLIENTS IN CONJUNCTION WITH THE SERVICE, EVEN IF ANY SUCH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
b. IN NO EVENT WILL ORCHARD 'S TOTAL LIABILITY TO YOU FROM ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE ORCHARD WEBSITE OR PARTICIPATION IN THE SERVICE, WHETHER IN CONTRACT, TORT, (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE MAXIMUM AMOUNT OF FUNDS IN YOUR ORCHARD ACCOUNT WHILE THIS AGREEMENT IS IN EFFECT.
- Electronic and Oral Communications.
- Member and Account Guest Instructions. We may rely on your oral and electronic instructions and on your account guest's oral instructions. In addition, you consent to the monitoring and recording of your and your account guest's telephone conversations with us for training or compliance purposes or to provide a record of your instructions. You agree that we will not be liable for honoring oral instructions received from any person claiming to be you or your account guest, provided normal verification procedures have been followed. We may follow any instructions received by electronic means through the Orchard website just as if you had given such instructions in person, regardless of whether or not you have personally initiated such instructions.
- ORCHARD Communications. You consent to the receipt of all reports, transaction confirmations, account statements, correspondence and other information from us electronically through either (i) access to your Club Orchard Account on the Orchard website or (ii) the e-mail address provided by you to Orchard. We will not be responsible for your inability to connect to the Internet or to access the Orchard website or otherwise not to receive electronic communications. Electronic communications are presumed to be delivered to and received by you when sent by us, whether actually received or not. You acknowledge that you have access to hardware and software meeting the system requirements set forth on the Orchard website necessary to receive from us correspondence and records in electronic form. You may withdraw the consent to have those records provided or made available in electronic form by mailing written notice to Orchard. Such request will be made by mailing a written request to Orchard Supply Hardware, 6450 Via Del Oro San Jose CA 95119, Attn: Club Orchard. If you withdraw such consent, we reserve the right to terminate this Member Agreement.
- Governing Law. The validity, construction and interpretation of this Agreement, and the rights and duties of the parties hereto, will be governed by and construed in accordance with the laws of California. Each party hereto agrees that all claims relating to this Agreement will be heard exclusively by a state or federal court in California. Accordingly, each party hereby consents to the exclusive jurisdiction of any state or federal court in California over any proceeding related to this Agreement, irrevocably waives any objection to the venue of any such court, and irrevocably waives any claim that any such proceeding in such a court has been brought in an inconvenient forum.
- Assignment. You may not assign your rights and obligations under this Agreement, in whole or in part, without our prior written consent, and any such assignment without such consent will be null and void. Orchard may assign their rights and obligations under this Agreement, in whole or in part, without your consent. This Agreement will inure to the benefit and burden of the parties hereto and their permitted successors and assigns.
- Notices. Any notice by one party hereto to the other will be in writing (which may include e-mail) and either personally delivered, delivered by ClubOrchard@osh.com, or sent via reputable overnight courier or certified mail, postage prepaid and return receipt requested. Notices will be sent to you at the Internet e-mail address or the mailing Orchard Supply Hardware, 6450 Via Del Oro San Jose CA 95119, Attn: Club Orchard, or any other address of which either party hereto may from time to time notify the other in accordance with this Section 16(c). All notices will be in English and will be deemed effective on the date of personal delivery, upon confirmation of e-mail transmission, upon signed receipt from an overnight courier, or five days after deposit with the U.S. Postal Service.
- No Waiver; Severability. The waiver by either party hereto of a breach or default of any provision of this Agreement by the other party hereto will not be construed as a waiver of any succeeding breach or default of the same or any other provision, nor will any delay or omission on the part of either party hereto to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party. If any provision of this Agreement is held to be invalid, such invalidity shall not effect the remaining provisions.
- Relief. You acknowledge and accept that any breach of Section 5 above is likely to irreparably harm us and will not be susceptible of cure by monetary damages. Consequently, if you breach any provisions of Section 5 above, then we will be entitled to obtain injunctive or other equitable relief in addition to any remedies it may have at law.
- Third-Party Beneficiary. Each Client is hereby expressly made a third party beneficiary of this Agreement and may enforce this Agreement directly against you.
- Entire Agreement. This Agreement represents the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof (including without limitation, earlier versions of this Agreement that may have been accepted by you through the Orchard website or otherwise). We reserve the right to modify this Agreement at any time. Your non-termination and continued membership in Club Orchard after notice of any modification of this Agreement will constitute affirmative acceptance by you of such modification and your consent to abide by any terms thereof. You acknowledge that the most recent version of this Agreement will be located on the Orchard website under Member Agreement. No other act, document, usage or custom will be deemed to amend or modify this Agreement.
Revision Date 9/23/2011