HVAC SAVINGS PROGRAM PARTICIPATION AGREEMENT
IMPORTANT – READ CAREFULLY – THIS PARTICIPATION AGREEMENT (referenced herein as the “Agreement”) IS A LEGAL CONTRACT THAT GOVERNS PARTICIPATION IN THE SEARS HVAC SAVINGS PROGRAM (referenced herein as the “Program”) OFFERED BY SEARS HOLDINGS MANAGEMENT CORPORATION (referenced herein as “Sears”). BEFORE PARTICIPATING IN THE PROGRAM, YOU (with “You” or “your” herein referring to each participant in the Program) SHOULD READ CAREFULLY THIS AGREEMENT. PARTICIPATION IN THE PROGRAM WILL AUTOMATICALLY MEAN AND ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT (https://www.searshomeservices.com/more/hvacsavingsterms), THAT YOU UNDERSTAND IT AND ITS TERMS AND CONDITIONS, AND THAT YOU AGREE TO BE BOUND LEGALLY BY IT AND ITS TERMS AND CONDITIONS.
1. HVAC SAVINGS PROGRAM Customers are enrolled into the Program and credits are earned automatically upon completing an HVAC paid repair and/or maintenance service by Sears Home Services (excluding the purchase of Nest Learning Thermostat™ or Sears warranty products, including, but not limited to, Sears Protection Agreements, Sears Maintenance Agreements, and Sears Home Warranties). The start date for earning eligibility for the Program is the later of 1/1/16 or the date on which you complete an HVAC paid repair or maintenance service by Sears Home Services, with the start date for redemption eligibility for the Program occurring on or after 9/5/17. Members will earn dollar-for-dollar savings credits from paid HVAC repair and maintenance services from Sears Home Services, excluding the items noted above. The Program allows you to redeem your savings credits towards a new HVAC unit or system (“New HVAC System”) from Sears Home Services up to a maximum of 10% saving of the total New HVAC System purchase price (collectively referenced herein as the “Saving(s)”). For the purpose of calculating the 10% Saving(s), the New HVAC System is deemed to include the new HVAC equipment, any installation costs for same, and any other items (except any warranty purchases) that are part of the total price shown on the applicable Sears HVAC member agreement (“Member Agreement”), except for taxes. Saving(s) are to be redeemed at the time of the purchase of a New HVAC System, and can be combined with other marketing offers made available by Sears for such unit or system, except that savings cannot be combined with other rewards programs, including but not limited to the Initial Visit Rewards program. Saving(s) balance updates will be sent out on a regular basis to customers that are enrolled in the Program and have given Sears, or otherwise permitted Sears to use (or consented to the use of), their email address with permission to email them.
2. PARTICIPATION REQUIREMENTS. The Program is provided to individuals only. Corporations, associations, and other groups may not participate in the Program. The Program is open to residents of the fifty (50) United States and the District of Columbia. To participate in the Program, You must be at least eighteen (18) years of age (or the legal age of majority (whichever is greater)) and, at all times, provide true, accurate, current, and complete information. You also acknowledge that Sears and its affiliate organizations have the authority to establish policies, procedures, and rules for the administration and enforcement of the Program, and You agree to be bound by all such policies, procedures, and rules. Sears reserves the right to suspend or discontinue the eligibility of any person who uses, or, in the case of suspension, is suspected of using, the Program in a manner in violation of this Agreement or any federal or state laws, statutes or ordinances. In addition to suspension or discontinuance of Program eligibility, Sears shall have the right to take appropriate administrative and/or legal action, including alerting legal authorities, as it deems necessary in its sole discretion.
3. USE OF SAVING(S). Saving(s) do not constitute property, do not entitle You to a vested right or interest, and have no cash value. As such, Saving(s) are not redeemable for cash or assignable for any reason. Moreover, the sale or transfer of Saving(s) is strictly prohibited. Saving(s) may not be sold on any secondary market, and any transfer of Saving(s) to a secondary market shall be deemed void. Any Saving(s) remaining (and applicable to You) if the Program is canceled or terminated will be forfeited without compensation. There shall be no carry over or transfer of Saving(s) to other Sears programs, unless otherwise determined by Sears in its sole and absolute discretion. You are responsible for the payment of all taxes which may result from participation in the Program and any transactions for the purchase of products or services undertaken using a Saving(s).
4. ELIGIBILITY FOR SAVING(S). In the case of any failure by You to follow this Agreement or if You engage in fraud, misrepresentation, or abuse related to the Program, including but not limited to your engaging in a pattern of returning or canceling products or services after the corresponding Saving(s) have been credited, as determined by Sears in Sears’ sole discretion, Sears reserves the right to make any adjustments to your Saving(s) and to take appropriate administrative or legal action. In such a case, some or all of your Saving(s) earned through the Program may be forfeited, and Sears reserves the right to seek reimbursement from You for the cost of any Saving(s) You receive upon redemption of Saving(s) that are subsequently forfeited.
5. LICENSE GRANTS. Conditioned on your continued compliance with the terms and conditions of this Agreement, this Agreement provides to You a personal (use only), revocable, limited, non-exclusive, and nontransferable license to use any (print or electronic) materials provided in connection with the Program (collectively, “Sears Materials”) in the form or format made available by Sears. Any rights granted hereby are licensed and not sold or otherwise transferred or assigned to You or any third party. All rights not expressly granted to You herein are hereby expressly reserved by Sears. Accordingly, without Sears’ separate written permission, Sears Materials may not, in whole or in part, be reproduced, copied, disseminated, or otherwise utilized, in any form or manner or by any means inconsistent with this Agreement. In addition, You may not remove or alter any proprietary notice on the Sears Materials.
7. PROPRIETARY RIGHTS. The Program and Sears Materials, unless otherwise indicated, are owned, controlled, and licensed by Sears and/or its affiliates. Sears Materials and its contents are Copyright © 2017 Sears Holdings Management Corporation and/or its licensors. All rights reserved. SEARS and all other names, designs, logos, and icons identifying Sears, the Program, and Sears’ other products, services, programs, and events are proprietary trademarks of Sears or its affiliates, and any use of such marks, including, without limitation, as domain names or account identifiers, without the express written permission of Sears is strictly prohibited. Other product, service, or company names mentioned may be the trademarks and/or service marks of third parties.
8. FEEDBACK. Sears welcomes your feedback and suggestions about Sears’ programs or services or with respect to how to improve the Program and/or Sears Materials. By transmitting any feedback and suggestions (and associated information, material, or other content) (collectively, “Feedback”) to Sears, You represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party and that You have all rights necessary to grant the following license to Sears and enable Sears to use such Feedback. In addition, any Feedback received through Sears Materials will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for Sears to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and You hereby waive any claim to the contrary.
9. REPRESENTATIONS AND WARRANTIES. You represent and warrant that (a) You are authorized to enter into the Agreement and perform or fulfill its obligations; (b) the information provided by You to Sears in connection with this Program is accurate, to your knowledge; and (c) You have all necessary consents, rights, permissions, licenses, clearance, or authority (including any further reasonable proof thereof (if requested by Sears)) to permit Sears to use any information in connection with the Program. Sears represents that Sears has the full authority and right to enter into the Agreement.
10. DISCLAIMER. THE PROGRAM AND SEARS MATERIALS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MOREOVER, SEARS MAY MAKE MODIFICATIONS AND/OR CHANGES TO SEARS MATERIALS OR THE PROGRAM. SEARS EXPRESSLY DISCLAIMS (TO THE FULLEST EXTENT OF THE LAW) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
11. LIMITATION OF LIABILITY. YOU EXPRESSLY ABSOLVE AND RELEASE SEARS FROM ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND SEARS’ CONTROL. YOU FURTHER AGREE THAT IN NO EVENT SHALL SEARS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PROGRAM OR THE USE OF SEARS MATERIALS BY YOU OR ANYONE ELSE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF SEARS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, SEARS ASSUMES NO RESPONSIBILITY FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT OR INFORMATION. WITHOUT LIMITATION OF THE FOREGOING, THE TOTAL LIABILITY OF SEARS FOR ANY REASON WHATSOEVER RELATED TO PARTICIPATION IN THE PROGRAM OR USE OF SEARS MATERIALS OR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED $1,000 (USD).
12. INDEMNIFICATION. You agree to defend, indemnify, and hold harmless Sears and all of its affiliates, employees, agents, directors, officers, employees, shareholders, attorneys, successors, and assigns, from and against any and all third party claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from your breach of your respective obligations, representations, or warranties in the Agreement. Sears will promptly notify You of any claim or action with respect to any claim for indemnification hereunder, and You will undertake the defense or settlement and all related costs and expenses of any claim or action for which it has an indemnification obligation. You will have the right to settle or compromise any action to which its indemnification is applicable, except that You may not agree to any settlement without the prior written consent of Sears if such settlement would cause Sears to undertake any action, assume any liability, pay any monies, acknowledge any wrongdoing, or have a judgment entered against it. Notwithstanding the foregoing, Sears will have the right at any time to undertake the defense of any claim asserted against it at your expense in the event that (a) You fail to assume the defense of such claim, (b) Sears reasonably determines that an adverse outcome could be material to Sears’ business, (c) there are conflicts between Sears’ and your interests in such litigation, or (d) Sears reasonably believes that You do not have the financial resources needed to satisfy its indemnification obligation in the event of an adverse outcome, provided that any settlement of such claim by Sears will be subject to your consent, not to be unreasonably withheld.
13. GOVERNING LAW. This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of Illinois as applied to agreements entered into and completely performed in the State of Illinois.
14. DISPUTE RESOLUTION. If You believe that your applicable Saving(s) is incorrect, You must notify Sears Home Services within sixty (60) days or it will be deemed correct. You may be required to submit documentation to support your claim. All questions or disputes regarding eligibility for the Program, the availability of New HVAC Systems, or your compliance with this Agreement will be resolved by Sears in its sole discretion. In the event a dispute arises out of or relating to this Agreement, You and Sears agree to first make a good-faith effort to resolve such dispute within thirty (30) days after written notice of the dispute was first given, or as otherwise agreed upon. Upon failing, You and Sears further agree to engage in non-binding mediation with a mediator to be mutually agreed on by You and Sears. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, which You and Sears cannot settle informally or through mediation, shall be settled by binding arbitration in the State of Illinois, and administered by the American Arbitration Association in accordance with its then-existing Commercial Arbitration Rules (or the rules of another mutually acceptable impartial organization). The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The parties consent to, and waive any right to object to, jurisdiction with respect to the resolution of disputes hereunder in the state of Illinois.
15. INJUNCTIVE RELIEF. You acknowledge that any breach, threatened or actual, of this Agreement will cause irreparable injury to Sears, such injury would not be quantifiable in monetary damages, and Sears would not have an adequate remedy at law. You therefore agree that, notwithstanding the Dispute Resolution provision above, Sears shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement. Accordingly, You hereby waive any requirement that Sears post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Sears to enforce any provision of this Agreement.
16. TERM AND TERMINATION. You will be automatically enrolled in the Program and this Agreement will take effect and apply to You at the moment You complete an HVAC repair or other maintenance and is effective until terminated as set forth below. Sears reserves the right to terminate this Agreement at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this Agreement and to deny your access to the Program or Sears Materials. Sears may also terminate this Agreement if You fail to comply with its terms and conditions, subject to the survival rights of certain provisions identified below. You may choose to not participate in the Program at any time by ceasing to use Sears Materials or take advantage of the applicable Saving(s) earned, but all applicable provisions of this Agreement will survive termination, as identified below. Upon termination, You must immediately cease all use of Sears Materials and destroy all copies of any aspect of Sears Materials in your possession. The provisions concerning Sears’ proprietary rights, Feedback, disclaimers of warranty, limitations of liability, and the miscellaneous provisions will survive the termination of this Agreement for any reason. If for any reason Sears chooses to terminate this Program, Sears will provide notice of termination and You will then have twelve (12) months from the date of such notice to use the applicable Saving(s) earned.
18. MISCELLANEOUS. This Agreement supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between You and Sears with respect to use of Sears Materials and participation in the Program. Sears’ obligations, if any, with respect to the Program are governed by this Agreement. Failure to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver of that or any subsequent default or failure of performance. No joint venture, partnership, employment, alliance, or agency relationship exists between You and Sears as result of this Agreement, your utilization of the Sears Materials or participation in the Program. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect. This Agreement and any rights granted by Sears may not be assigned or transferred by You without the prior express written consent of Sears. This Agreement shall inure to the benefit of Sears and its respective legal representatives, successors, and assigns.