This agreement ("Agreement") is made between Trans World Entertainment Corporation (“TWEC”), a New York corporation, with offices at 38 Corporate Circle, Albany, New York 12203, providing a membership program called f.y.e. Backstage Pass VIP (the "Program"), and the purchaser of the f.y.e. Backstage Pass VIP membership (referred to herein as "you"). By enrolling in the Program, you agree to be bound by the terms of this Agreement
1. SERVICE - (a) The services and benefits which TWEC shall provide to you during the term of your Program membership shall include the following: (i) a discount travel service that shall provide a toll-free reservations number and documents necessary for you to obtain travel services which you have ordered through the Program; (ii) a dining and leisure activities discount service through which TWEC shall act as your agent for the purpose of securing discounts for dining at participating restaurants and discounts for leisure activities at participating attractions (where prohibited by law, discounts for alcoholic beverages are excluded); (iii) discounts on certain gift cards available for purchase through the Program; gift card/gift certificate purchases are limited to a total of 10 per day per member and (iv) 10% off on certain purchases at any of the f.y.e. participating stores (even if the eligible item is already on sale at a discount) and 20% off on certain in-store purchases at any of the f.y.e. participating stores made on your birthday (as indicated by your driver's license or other documentation acceptable to f.y.e.), as well as e-mails of upcoming merchandise releases and exclusive offers*. As a Program member, you have access to a toll-free number, 1-877-351-2131, that will assist you in using the services described above. (b) TWEC shall not be deemed a merchant, vendor, or supplier of any product or service (other than those products described in item (iv) above) provided to you through the Program. (c) TWEC reserves the right to change the terms and conditions of this Agreement at any time and without notice. TWEC may terminate this Agreement upon written notice and refund you the current term's membership fee unless the reason for such termination is your failure to pay or your misuse of the Program in which event no such refund shall be made to you.
2. CASH BACK NETWORK - (a) Purchases made by you online in accordance with this Section 2 are eligible for cash back (the “Cash Back Network”). To qualify for cash back, you must access the participating merchants’ Web sites through www.fyevip.com (the “Program’s Web Site”), and pay for your online purchase. Purchases you make by going directly to a participating merchant’s Web site do not qualify for cash back. The Cash Back Network is only available via access to the Program’s Web Site. (b) Subject to the terms and conditions described in this Agreement, you will be credited in the form of a check a percentage of the net purchases made by you at the online merchants affiliated with the Cash Back Network (each, an "Affiliated Merchant"). The percentage credited to you will be set forth on the Program’s Web Site for each Affiliated Merchant. The net purchase is defined as the total amount paid to the Affiliated Merchant minus tax, gift wrapping, shipping, promotional credits, returns, cancellations, and transaction fees or as is otherwise set forth on the Program’s Web Site with respect to such Affiliated Merchant, whichever is less. Purchases made by you from Affiliated Merchants will be deemed a "Qualified Purchase" and will be subject to earn cash back if and only if all of the following criteria are satisfied: (1) "cookies", both first and third party (if applicable), must be enabled on your Web browser; (2) all potential Qualified Purchases must begin by clicking on the Affiliated Merchant's link that appears on the Program’s Web Site and being successfully connected to the Affiliated Merchant's Web site based upon that click; and (3) such purchases do not violate any Affiliated Merchant specific terms set forth on the landing page for that merchant. The Program’s Web Site may, at all times, route your request to an Affiliated Merchant site through specific links, in order to assure that the sale can be tracked correctly. Any alteration of these links will invalidate your sale, which will not be deemed a Qualified Purchase. The determination of whether a purchase made through an Affiliated Merchant is a "Qualified Purchase" is at the sole discretion of TWEC. Cash back awarded to you hereunder is subject to adjustments for returns, cancellations, and other events. TWEC may apply such adjustments to your Program account at any time at its sole discretion. If you disagree with any adjustments made to your Program account, your sole remedy is to withdraw from the Program. Certain Affiliated Merchants have a list of purchases that are not eligible for accrual or payment of cash back rewards. Those restrictions are set forth on the landing page for that Affiliated Merchant. In addition, prescription medication, monthly deliveries, such as wine-of-the-month clubs and pet foods, gift certificates (with the exception of Spa Wish), and purchases that are picked up at a warehouse or a store location will not be deemed a Qualifying Purchase. In addition, if you place more than ten (10) orders or transactions from a single Affiliated Merchant in any single calendar day, any items contained in orders placed after the tenth order will not be deemed Qualifying Purchases. (c) Accrued cash back for Qualifying Purchases will be sent to you via postal mail to the address on file in your member profile. If there is no address on file, we will retain your cash back until we receive a mailing address from you. It is your responsibility to keep your account information current in order to facilitate your receipt of your cash back rewards. In the event that your information is not current at the time your cash back rewards would otherwise have been paid to you, we will retain such cash back in your account until you provide a valid postal address. You authorize the Program to receive any account information from any Affiliated Merchant including, but not limited to, information regarding the Qualified Purchase such as the products ordered, the order number, the time and date the Qualified Purchase occurred, and the email address entered for the Qualified Purchase.
3. WHO MAY USE - You agree that you will use the Program's services only for your own behalf and for the members of your immediate family residing in your household. You will be responsible for all use of your membership number and must notify TWEC immediately of any unauthorized use of your membership number, or the theft or misplacement of your membership number. TWEC is entitled to act on instructions received under your password, which is provided to you with your membership materials. You are responsible for keeping your email address, password, Program account numbers, and other Program account information confidential. TWEC is not responsible for any credits or debits made to your Program account by someone else who uses your Program account.
4. LIABILITY - (a) TWEC AND ITS AFFILIATES SHALL HAVE NO LIABILITY TO YOU AS A SELLER OF ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR ANY DEFECTIVE PRODUCTS, PROVIDED TO YOU THROUGH THE PROGRAM. NEITHER TWEC NOR ANY OF ITS AFFILIATES MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES SOLD OR INFORMATION DELIVERED OR PROVIDED TO YOU IN CONNECTION WITH THE PROGRAM, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER TWEC NOR ANY OF ITS AFFILIATES WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE QUALITY OF, OR ACCURACY OF ADVERTISEMENTS FOR, ANY MERCHANDISE, PRODUCTS, OR SERVICES OFFERED OR PROVIDED BY AFFILIATED MERCHANTS OR OTHER VENDORS (AS DEFINED BELOW). NEITHER TWEC NOR ANY OF ITS AFFILIATES ASSUME ANY LIABILITY FOR DAMAGES, DIRECT OR INDIRECT, CONSEQUENTIAL OR INCIDENTAL, IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES DESCRIBED HEREIN OR YOUR REQUEST, USE OR ATTEMPTED USE OF SUCH SERVICES. IN NO EVENT SHALL TWEC'S AND ITS AFFILIATES' AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT OF THE PROGRAM MEMBERSHIP FEE PAID BY YOU TO TWEC. TWEC AND ITS AFFILIATES SHALL HAVE NO LIABILITY FOR ANY DELAY OR FAILURE IN PERFORMANCE OR DELIVERY DUE TO ANY CAUSE BEYOND THEIR CONTROL, INCLUDING DELAY DUE TO UNION DISPUTES OR FACTORY PRODUCTION SCHEDULES. THE PROGRAM IS NOT A CREDIT COUNSELING SERVICE AND DOES NOT PROMISE TO HELP YOU OBTAIN A LOAN OR IMPROVE YOUR CREDIT RECORD, HISTORY, OR RATING. (b) All Vendors operate independently of, and are not under the control of, the Program in any way. The Program may provide an index page or other description on the Program’s Web Site of certain Affiliated Merchant's terms which is for convenience only. Neither TWEC nor any of its affiliates is responsible for changes to, or discontinuance of, any special offer or coupon code. It is your responsibility to make sure that all specials are valid. If you choose to use coupons and specials that are listed or are not listed on the Affiliated Merchant's landing page, we cannot guarantee that you will be eligible to receive a discount and/or cash back on your purchases. You understand that neither TWEC nor any of its affiliates operate or control the products or services offered by third parties, promotional partners or participating Affiliated Merchants or other Vendors. Third-party Web sites and online merchants accessed through the Program are responsible for all aspects of order processing, order fulfillment, shipping and handling, billing and customer service. TWEC's sole obligation hereunder shall be to forward to the applicable Vendor all payments for services or products ordered, and to forward to you all necessary travel documents for travel reservations made by you through the Program. Subject to the cancellation and refund policies of the providers of travel services, upon receipt of your request to cancel a reservation for travel services you placed through the Program, TWEC shall use its reasonable best efforts to obtain from such provider a refund of any amount you paid for such reservation, less any applicable cancellation fees or penalties. TWEC is not a party to the transactions entered into between you and the Vendors with which you choose to do business. If you buy products or services from any Vendor you become a customer of such Vendor and therefore must direct any comments, complaints or inquiries regarding your purchases to such Vendor, and not to TWEC. All rules, policies (including privacy policies) and operating procedures of those Vendors will apply to you while you are using those Vendors' Web sites or local store locations. No reference to a third party product or service indicates an endorsement by the Program. TWEC reserves the right to eliminate merchants, including Affiliated Merchants, vendors, or suppliers (collectively, "Vendors"), as participants in the Program. Program members can locate participating Vendors online at www.fyevip.com. TWEC is not responsible for any refund to you or any effect on accrual of rewards due to Vendor closure, discontinuance as a participant in the Program, or restrictions in the event their products or services are no longer available to you. (c) You agree that any claim with regard to services or products shall be made against the Vendor of such services or products, as applicable, and not TWEC. (d) TWEC and its affiliates assume no responsibility or liability in connection with the service of any train, vessel, carriage, aircraft, motor vehicle, or other conveyance (collectively, "Vehicle") which may be used, either wholly or in part, in connection with the services ordered, nor will any of them be responsible for any act, error, or omission, or for any injury, loss, accident, delay, or irregularity, which may be occasioned by reason of any defect in any Vehicle, or through the neglect of any person engaged in carrying out the purpose for which tickets or coupons are issued including, but not limited to, tour guides, vehicle operators, and hotel administration and staff. TWEC and its affiliates shall have no liability in the event any itinerary or arrangements are altered by a Vendor. Any information provided by TWEC to you is subject to change without notice. All services ordered are subject to the availability of such services from the applicable Vendor. (e) The terms of this Section 4 shall survive any termination, cancellation or expiration of this Agreement.
INDEMNIFICATION - YOU AGREE TO INDEMNIFY AND HOLD HARMLESS TWEC, ITS AFFILIATES, VENDORS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY'S FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE PROGRAM, THE VIOLATION OF THIS AGREEMENT BY YOU, OR THE INFRINGEMENT BY YOU OR ANY OTHER USER OF THE PROGRAM USING YOUR ACCOUNT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY, OR AS A RESULT OF ANY THREATENING, LIBELOUS, OBSCENE, HARASSING OR OFFENSIVE MATERIAL CONTAINED IN ANY COMMUNICATION SENT BY YOU OR ANY OTHER USER OF THE PROGRAM USING YOUR ACCOUNT.
6. GOVERNING LAW - This Agreement, and the respective rights and obligations of the parties hereunder, shall be governed by, and construed in accordance with, the laws of the State of New York. The terms of this section shall survive any termination, cancellation or expiration of this Agreement.
7. ARBITRATION - You and TWEC agree that any claim or dispute ("Claim") between us shall, at the election of either of us, be resolved by binding arbitration administered by the American Arbitration Association under its rules for consumer arbitrations. It is the parties' intent that this arbitration provision be construed broadly, including that this arbitration agreement include any Claims against TWEC as well as its corporate affiliates. You agree that, by entering into this Agreement, you and TWEC are each waiving the right to a trial by jury or to participate in a class action. At your request, we will pay the first $125 of your arbitration fees. You will be solely responsible for your arbitration fees and costs in excess of $125. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual Claim. YOU AND TWEC 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. Further, unless both you and TWEC agree otherwise, the arbitrator may not consolidate more than one person's Claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision in the preceding sentence is found to be unenforceable, then the entirety of this arbitration provision in Section 7 shall be null and void. Notwithstanding any of the foregoing provisions, either party may bring an individual action in small claims court. The parties to this Agreement acknowledge that this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"). Judgment upon any arbitration award may be entered in any court having jurisdiction. The arbitrator shall follow substantive law to the extent consistent with the FAA and shall honor any claims or privileges recognized by law. The terms of this section shall survive any termination, cancellation or expiration of this Agreement.
8. MEMBERSHIP FEE - For your convenience, at the end of your trial period, you authorize TWEC to bill the then-current membership fee, automatically to your credit or debit card (or to the related checking account) (in each case, designated the billing source), selected at the time of enrollment, unless you call to cancel during your trial.
9. RENEWALS - Unless you notify TWEC that you do not wish to renew your membership, you authorize TWEC to automatically renew your membership at the end of each month and bill the then-current renewal fee to your designated billing source. You will be notified of any price increase and may cancel your membership if you do not want to continue to be billed at the new price.
10. RIGHT TO CANCEL MEMBERSHIP - (a) You have the right to cancel this Agreement at any time. You may cancel this Agreement by calling 1-877-351-2131, writing to: f.y.e. Backstage Pass VIP, P.O. Box 41248, Nashville, TN 37204, Attention: Membership Department, emailing firstname.lastname@example.org or clicking the cancel link on the Customer Center page. Cancel this Agreement during your 30-day trial, and you will owe nothing more; at any time thereafter you will owe nothing further. You will remain liable for any other fees, purchases or charges to be paid pursuant to this Agreement. (b) If TWEC determines it is unable to bill the membership fee due hereunder to your designated billing source, TWEC shall have the right to terminate this Agreement in which event you will no longer have access to any of the Program benefits. In addition to TWEC's termination rights set forth above, TWEC may elect in its sole discretion to keep this Agreement in effect, but suspend your access to all of the Program benefits until such time (if any) as TWEC is able to bill the membership fee due hereunder to your designated billing source.
11. CONFIDENTIALITY - All information and software provided through the Program is and shall remain the sole and exclusive property of TWEC. You shall not publish, broadcast, retransmit or otherwise reproduce the information or software in any medium. Any violation of this restriction is an infringement of copyright or proprietary rights in the information and software.
12. TERMINATING THE PROGRAM’S WEB SITE - TWEC retains the right at any time and from time to time to discontinue or modify, or temporarily or permanently terminate, the Program’s Web Site (or any part thereof) with or without notifying you. If TWEC discontinues the Program’s Web Site, TWEC will not be liable to you or any third party for such discontinuance, modification or termination.
13. VIRUSES; DESTRUCTION OF THE PROGRAM’S WEB SITE - By participating on the Program’s Web Site, you agree to not upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You also agree to not interfere with the servers or networks connected to the Program’s Web Site or to disobey any requirements, procedures, policies or regulations of networks connected to the Program’s Web Site. ANY ATTEMPT BY A USER TO DELIBERATELY DAMAGE THE PROGRAM’S WEB SITE OR TO UNDERMINE THE LEGITIMATE OPERATION OF SUCH SITE IS A VIOLATION OF CRIMINAL AND CIVIL LAWS; IF SUCH AN ATTEMPT IS MADE, TWEC RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES FROM THE USER TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CRIMINAL PROSECUTION. TWEC assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect your computer equipment or other property due to your access to, use of, or browsing in the Program’s Web Site or your downloading of any materials, data, text, images, video or audio from such site.
14. TECHNICAL ISSUES - By utilizing the Program, you acknowledge that technical processing and transmission of the Program’s Web Site, including the information you enter, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. TWEC MAKES NO WARRANTY THAT THE FUNCTIONS OF THE PROGRAM’S WEB SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE OR THAT ANY ERRORS ON SUCH SITE WILL BE CORRECTED. TWEC ASSUMES NO RESPONSIBILITY FOR (I) ANY PROBLEMS RELATING TO TECHNICAL MALFUNCTION OR DELAYS OF TELEPHONE NETWORKS OR LINES, COMPUTER ON-LINE SYSTEMS, SERVERS, PROVIDERS, COMPUTER EQUIPMENT, OR SOFTWARE, (II) FAILURE OF ANY E-MAIL TO BE RECEIVED DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION OF THE INTERNET, TWEC SITES, OR ANY COMBINATION THEREOF, AND/OR FOR (III) ANY INJURY OR DAMAGE TO USERS’ COMPUTERS OR ANY OTHER COMPUTER RESULTING FROM DOWNLOADING ANY MATERIALS RELATING TO THE PROGRAM’S WEB SITE.
15. NO AGENCY RELATIONSHIP - Nothing in this Agreement shall be construed as creating or constituting a partnership, joint venture or agency relationship between TWEC and the Affiliated Merchants or between TWEC and any other Vendor. Neither the Affiliated Merchants nor any other Vendor shall have the ability to create any obligation on behalf of TWEC.
16. ELECTRONIC COMMUNICATIONS - TWEC, at its option, may communicate with you regarding the Program by mail, by telephone or by electronic communications. TWEC may communicate with you electronically by means of electronic mail to the e-mail address you provide when you sign up for the Program and/or postings to the Program’s website. TWEC may communicate electronically to you the following types of communications: Membership Terms and Conditions (including any amendments thereto), notices or disclosures regarding the Program, payment and billing authorizations, and other matters relating to your use of the service.
You may contact TWEC at the telephone number and address listed above to request another electronic copy of an electronic communication without a fee. You may also request a paper copy of the terms of the payment authorization without a fee. You may contact TWEC at the same telephone number or e-mail address listed above to update your contact information or to withdraw your consent to receive electronic communications. TWEC reserves the right to terminate your use of the Program if you decline or withdraw your consent to receive electronic communications from TWEC.
You will need the following software and hardware to access electronic communications sent to you by TWEC as part of your Program membership: IBM or MAC compatible computer, Internet access, a working e-mail address, and Internet Browser (Internet Explorer version 8.0 and greater, Chrome and Firefox). To retain copies of electronic communications, you must print a copy using a printer attached to your computer, or save an electronic copy to your computer's disk or other storage device.
17. THIRD-PARTY BENEFICIARIES – You agree that the terms of this Agreement, including the arbitration provision contained in Section 7 and the limitation on liability contained in Section 4, shall confer third-party beneficiary status on any entity or person that assists TWEC in providing the Program with respect to any claims relating thereto. The terms of this section shall survive any termination, cancellation or expiration of this Agreement.
* f.y.e. reserves the right to exclude certain merchandise from participation in the f.y.e. Backstage Pass VIP program. Gift cards, gift coins, phone cards, tickets, iPod units and video game hardware are excluded.
Institutional account holders are not eligible for the f.y.e. Backstage Pass VIP program.
The f.y.e. Backstage Pass VIP membership card is not a charge card.
f.y.e. Backstage Pass VIP is a service provided by TWEC, which may modify or improve any part of the service at any time and without prior notice.
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