OSTEO BI-FLEX FLEXER REWARDS LOYALTY PROGRAM
PLEASE NOTE THAT THESE TERMS AND CONDITIONS REQUIRE THAT DISPUTES BE RESOLVED ONLY BY FINAL AND BINDING INDIVIDUAL ARBITRATION (AND NOT BY COURT LITIGATION). THIS MEANS THAT YOU WAIVE ANY RIGHT TO A JURY TRIAL, AND WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN CLASS ACTIONS AGAINST US. IN ARBITRATION, THERE IS NO JURY, LESS DISCOVERY, AND LIMITED APPELLATE REVIEW AS COMPARED TO COURT LITIGATION. Please review the provision Arbitration Agreement and Class Action Waiver in Section 14 of these Terms and Conditions for complete details. PLEASE REVIEW CAREFULLY.
California Residents: The Osteo Bi-Flex Flexer Rewards Loyalty Program may be considered a “financial incentive” under California law. Please review our California Notice of Financial Incentive.
NHS U.S., LLC, 121 River Street, 9th Floor, Hoboken, NJ 07030 ("Sponsor").
OVERVIEW OF OSTEO BI-FLEX FLEXER REWARDS LOYALTY PROGRAM
The Osteo Bi-Flex Flexer Rewards Loyalty Program ("Program") is a loyalty program through which eligible, registered participants ("Participants", "you" or "your") may earn points ("Points") by purchasing qualifying Osteo Bi-Flex® brand products during the Program Period (as defined below), and participating in activities such as providing proof of purchase documentation (as described below in Section 4) for such products, reviewing products, profile completion, referring another member, answering surveys, answering polls and birthday recognition on osteoflexerrewards.urewards.com (the "Website"), and redeeming your Points for Rewards (as defined in the How to Claim Rewards and Points Redemption Section 6 below) on the Website, subject to the terms and conditions set forth in these Program Terms and Conditions ("Terms").
- PROGRAM PERIOD AND ELIGIBILITY
Program Period: The Program will begin on or about 12:00 A.M. Eastern Time ("ET") on 12/08/2023, will end on a date and time to be determined by Sponsor in its sole discretion (the "Program Period" or "term"). Sponsor reserves the right to shorten, extend, suspend, modify, terminate, or cancel the Program or any element thereof, at its discretion, at any time. The clock on the Administrator's (defined below) server shall be the official time keeping device for this Program. All times referenced in connection with the Program will be Eastern Time. Unused Points will expire at 11:59 P.M. ET on the last day of the Program Period (or as may be extended or modified). After the conclusion of the Program Period, any and all Points remaining in a Participant Account (defined below) after the Program Period end date will be forfeited without compensation, will be void and the Program will no longer be available, and no further liability will be owed to any Participant or any other person or entity.
Eligibility: The Program is open to legal residents of the fifty (50) United States or the District of Columbia who are eighteen (18) years of age or older at the time of registration ("Participant") (or 19 years of age or older for residents of Alabama and Nebraska). In order to access and use the Program, Participants must have Internet access and a camera-capable mobile device ("Device"). Employees, officers, directors of Sponsor and Brandmovers, Inc. 1519 Carroll Drive NW Atlanta, GA 30318 ("Administrator"), their respective parent companies, and each of their respective subsidiaries and affiliated companies, advertising and promotion agencies, entities or individuals engaged in the development, administration, production, or distribution of materials for, or implementation of the Program (collectively referred to herein as the "Program Entities"), and the immediate family members (i.e., spouse, siblings, children and parents including foster and step-relations) or those living in their same household (whether or not related) of such individuals are not eligible to participate in the Program. As used in these Terms, the terms "we," "us," and "our" shall be deemed to collectively refer to both Sponsor and Administrator.
Sponsor reserves the right to revise or change these Terms at any time (including without limitation modifying, altering, adding or deleting Program benefits, Points values, Qualifying Products, redemption levels, conversion ratios, Rewards, delivery methods and conditions for active enrollment, participation, and eligibility) and these changes may affect the value of the Points already accumulated. Each Participant is responsible for remaining knowledgeable as to the current Terms. If the Terms are updated, any changes will apply to all Participants enrolled in the Program on the date the revised Terms are posted on the Website. AS THE PROGRAM EVOLVES, THE TERMS AND CONDITIONS OF THE PROGRAM MAY BE MODIFIED. WE MAY CEASE OFFERING THE PROGRAM UNDER THE TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO, ACCESS, OR OTHERWISE USE THE PROGRAM, YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS, AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE WEBSITE (OR IN ANY OTHER REASONABLE MANNER) AND THAT YOUR USE OF THE PROGRAM AND WEBSITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING-FORWARD AGREEMENT TO THE REVISED TERMS. Therefore, you should review the posted Terms each time you access the Website and use the Program. However, the Terms that applied when you previously used the Program will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. You should frequently check the Website, and the email associated with your Participant Account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised, or additional Terms by discontinuing participation in this Program. Each Participant's continued participation in the Program constitutes the Participant's acceptance of any changes to these Terms. The most current version of these Terms will be available on the Website.
- PROGRAM REGISTRATION AND PARTICIPANT ACCOUNT
You must first register in the Program to become a Participant. To register, visit the Website and provide your First Name, Last Name, Email Address, Birthdate and Password, and follow all registration instructions (“Registration Process”). There is no purchase necessary to register. Upon verification, registered Participants will have an account (referred to herein as the "Participant Account"). A Participant Account must be and remain in good-standing to receive and redeem Points. Participant Account "in good-standing" means, among other things, that the Participant Account has not been subject to any inquiry for fraud or other suspect activity, all Points therein are earned by valid means, and the Participant Account is maintained by an eligible Participant, all pursuant to and in compliance with these Terms. Purchases made outside of the Program Period or made prior to Program registration are not eligible to receive Points.
Program Entities are not responsible for any incorrect or inaccurate information supplied by Participants while participating in the Program. Each Participant is responsible for all usage or activity in their Participant Account and all information, passwords, and access in connection therewith. Fraud or abuse relating to registration, providing of personal information, participation, Points, or redemption of Rewards is a violation of these Terms. In connection with your Participant Account, you agree that: (i) You will provide true, accurate, current, and complete information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (ii) You are solely responsible for all activities that occur under your Participant Account; (iii) You are solely responsible for maintaining the confidentiality of your Participant Account and for restricting access to your personal computer, mobile phone so that others may not access the Program or your Participant Account using your name, or password; (iv) You will immediately notify us of any unauthorized use of your Participant Account, password, or any other breach of security by contacting us using the "Contact Us" feature on the Website; and (v) You will not sell, transfer, or assign your Participant Account. Program Entities 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. Participants are solely responsible for any fraudulent use that may occur due to the theft of or sharing of a Participant's Account and related information.
If any information that a Participant provides, or if we have reasonable grounds to suspect that any information provided, is false, inaccurate, outdated, incomplete, or violates these Terms, or any applicable law, then we may suspend or terminate participation in the Program and void all Points in Participant's Account. We also reserve the right to terminate your Participant Account or suspend or otherwise deny you access to your Participant Account, your Points and/or your Rewards in our sole discretion, for any reason, and without advance notice, obligation or liability.
Limit one (1) Participant Account per email address. Participant may not: (a) activate or use more than one (1) Participant Account, name or email address; (b) use a false or misleading name, address, or email address in connection with their participation in the Program or Participant Account; or (c) present or supply false or misleading information to any Program Entity. Duplicate Participant Accounts are subject to cancellation, and any Points accumulated in multiple Participant Accounts will be forfeited. Participants must keep all Participant Account information current at all times. Participants may update their Participant Account by logging into the "Profile" section of the Website.
In the event of a dispute over the identity of a Participant, the owner of the Participant Account will be deemed to be the authorized account holder of the email address associated with the Participant Account. "Authorized account holder" is defined as the natural person who is assigned to an email address by an internet service provider, on-line service provider or organization (e.g., business, educational institution, etc.) that is responsible for assigning the email address or the domain associated with the email address submitted.
- HOW TO EARN POINTS
Participants can earn Points for activities including, but not limited to, the activities shown in the table below.
Sign up and successfully complete registration
Answer A Poll or Survey
50 Points per Poll or Survey
Referring a Member**
100 Points (** You will earn points upon your referred member’s successful registration and acceptance of these terms and conditions)
For the activities above, Points will be automatically deposited into your Participant Account and can be converted by you into Rewards when the task in the "Activity" column is completed. Points will post to your Participant Account in approximately two (2) business days.
Participants can also earn Points for purchasing Qualifying Products. Qualifying Products are defined as participating Osteo Bi-Flex brand products listed on the Website, purchased by you during the Program Period, and for which you have and can show proper proof of purchase documentation (as described below)("Qualifying Products"). Any products suspected of being counterfeit, or otherwise received, purchased, or obtained from illegal, illegitimate, or unauthorized channels, inconsistent with or not in compliance with these Terms do not constitute Qualifying Products.
Points and Point values may be added, eliminated, or otherwise modified at any time at our sole discretion. The purchase of any products not on the eligible list of Qualifying Products (as may be revised from time to time), or products that are specifically excluded do not constitute Qualifying Products for purposes of the Program.
PROOF OF PURCHASE DOCUMENTS REQUIRED AND HOW TO CLAIM POINTS FOR PURCHASE
To earn Points, register and access your Participant Account on the Website. Then, follow the on-screen instructions to submit a clear photo of your receipt(s) of Qualifying Products - and a clear photo of the UPC code from each Qualifying Product package within 60 calendar days of purchase, as dated on the receipt ("Purchase Documentation"). To be valid and earn Points, your receipt must include: purchase date, retailer, Qualifying Product name and quantity.
Purchase Documentation which indicates - or that we suspect indicates - that the Qualifying Products were not actually purchased, were purchased for purposes of resale or distribution as opposed to personal use/consumption, were not purchased in good faith, depict offensive or inappropriate content, are counterfeit, duplicative of another redemption, or are otherwise not in compliance with these Terms or instructions on the Website, will not be valid.
Once the Qualifying Product(s) and Purchase Documentation has been properly submitted and verified, the Points that correlate to that Qualifying Product at the time your Purchase Documentation is electronically submitted will be deposited into your Participant Account and can be converted by you into Rewards (as defined in the How to Claim Rewards and Points Redemption Section). Points have no purpose or use except in exchange for Rewards (if any) offered via the Program. Points will post to your Participant Account in approximately two (2) business days.
POINT LIMITATIONS AND RESTRICTIONS
We reserve the right, in our sole discretion, at any time during the Program Period, all as set forth in these Terms, to: (i) change the number of Points awarded, or to give no Points for any particular Qualifying Product, (ii) offer additional or new participating Qualifying Products for a limited time or permanently, (iii) delete any or all means to earn Points, (iv) increase or limit the number of times or frequency a Participant may earn Points for any particular Qualifying Product, (v) allow greater Points for multiple Qualifying Products purchased together, or within a specified time-frame, or in combination, (vi) offer different Points values to select groups of Participants, and (vii) offer unique Points earning opportunities to select groups of Participants. Points are always subject to verification and eligibility as determined by us, in our sole and absolute discretion. Once provided, Points can be used as soon as they are reflected in the Participant's Account and/or may be accrued over time for later use during the Program Period. NOTE: all Points are null and void at the conclusion of the Program Period (as it may be extended or modified by Sponsor).
Participant's Account, as displayed on the Website, is comprised of Points that are available for use. Points redeemed for a Reward (as defined in the How to Claim Rewards and Points Redemption Section) will be immediately deducted from the Participant's Account Points balance upon confirmation of the transaction. Administrator will use reasonable efforts to ensure Points are allocated and accrued correctly; however, Participants should review their Participant Account to ensure that their Points are properly credited. If a Participant believes that their Participant Account balance is incorrect, within six (6) weeks of the applicable transaction in which Participant did not receive Points, the Participant should go to the "Contact Us" page on the Website. The "Contact Us" submission should include the Participant's name, email address and specific information concerning the Points in question. Administrator will investigate the matter and respond back to the Participant. Points subsequently determined, in the sole discretion of Administrator, to be invalid, will be removed from a Participant's accumulation total. Points subsequently determined, in the sole discretion of Administrator during the Program Period, to be valid, will be added to Participant's Account. All decisions made by Sponsor and/or Administrator are final and binding.
Points are considered limited, non-exclusive, revocable, non-assignable, personal, non-transferable, and solely for use towards Rewards in this Program only. Accordingly, Participant has no property, proprietary, intellectual property, ownership, or monetary interest in their Points, which remain Sponsor property at all times. Points have no "real world" value, may not be used as legal tender, and are not redeemable for cash, transferable or assignable for any reason or otherwise by operation of law. Points may be revoked at any time by Sponsor and/or Administrator as set forth herein. Participants may not combine, accumulate, or transfer Points with other Participant Accounts. Points are not considered to be property of a Participant and as such, a Participant cannot purchase, sell, barter, trade, transfer, or assign their Points to any other person. Any attempt to combine or transfer Points will result in disqualification from the Program and forfeiture of all Points in any applicable Participant Accounts. Points will not be valid unless Points are in strict compliance with the requirements as established and intended by us, and Participant shall not attempt to get Points by any means (including, without limitation, by using any script, bot or other automated means) that only simulates compliance with the applicable requirements.
- POINTS EXPIRATION AND FORFEITURE FOR PARTICIPANT ACCOUNT CANCELLATION OR INACTIVITY
Points will expire two (2) years from the date they are earned.
Sponsor and/or Administrator may terminate any Participant's Account, in their sole discretion if the Participant is in violation of any of these Terms, including, without limitation, failure to follow Program policies and procedures, the sale or barter of Points or Rewards, any misrepresentation of fact, or other improper conduct as determined by Sponsor and/or Administrator. Upon termination of a Participant's Account by Sponsor, the Points within the Participant's Account will be immediately forfeited. If a Participant is disqualified or if Points/Rewards are forfeited for any reason, as stated in these Terms, the Points/Rewards will be void, will not be reinstated, and Participant will not be compensated therefore in any manner. In Sponsor's and/Administrator's sole discretion, Participant may be disqualified from future participation in the Program permanently or from participation in similar Sponsor loyalty programs.
Participants may terminate their enrollment in Program at any time by logging into the Website and using the "Contact Us" form available to request that we deactivate your Participant Account and delete any personal data that we have collected from or about you in relation to your loyalty account. We will respond to your deletion request within forty-five (45) days of receipt of your request to terminate enrollment. By terminating enrollment, all of Participant's accumulated Points will be immediately forfeited.
- HOW TO CLAIM REWARDS AND POINTS REDEMPTION
Points may be redeemed for Osteo Bi-Flex coupons ("Rewards").
General: The available Rewards - and the number of Points required for each Reward- are listed in the Osteo Bi-Flex Flexer Rewards Loyalty Program Catalog on the Website. Sponsor reserves the right to modify the Points value(s) for any Reward, at any time and for any reason, during the Program Period, and you understand and agree that we may set and/or vary the Points conversion ratio for any such Rewards in our sole and absolute discretion at any time throughout the Program Period. The conversion ratio for Points into Rewards may vary and all details regarding the specific conversion ratio applicable to a Reward will be determined by us. The items listed as Rewards on the Website will fluctuate as available items are redeemed and additional items are added or modified by us. All Rewards are available on a first-come, first-serve basis, many in limited quantities and while supplies last. Rewards, and the redemption thereof, and any other related information are subject to Reward availability, Participant's eligibility, and compliance with these Terms in our absolute discretion. Rewards pictured on the Website are for illustrative purposes and may not necessarily reflect exact colors, styles, models or features of actual Reward. SPONSOR MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES OR COVENANTS THAT ANY PARTICULAR REWARD WILL BE (OR WILL CONTINUE TO BE) AVAILABLE OR OFFERED IN THE PROGRAM. Sponsor reserves the absolute right to modify, change, delete or add Rewards, or any element thereof at any time.
Redemption: To redeem Points, view the items listed on the Rewards catalog on the Website. You can choose any item still available for which you have accumulated sufficient Points for redemption. Click the image corresponding to the item you wish to redeem and follow the links and instructions to complete the redemption process. As part of the redemption process, you will receive a confirmation email and when applicable, an email confirming that your request for the item has been processed. Emails will be sent to the email address associated with the Participant's Account. The total number of Points a Participant can use to redeem an item at any given time is the total number of Points available in their Participant Account at the time of redemption. Once a Participant has ordered an item from the Rewards catalog, and the order is final, then the appropriate number of Points will be deducted from the Participant Account.
Each Participant is responsible for ensuring the information associated with their Participant Account is accurate and up to date. We are not responsible for non-receipt of an item shipped or emailed to the mailing/email address associated with a Participant's Account. Changes to a Participant’s Account, or the information associated with a Participant’s Account, should only be made by the individual Participant associated with the applicable Participant Account.
All Points/Reward Redemptions are Final: All Point redemptions for Rewards are final and cannot be modified. Points will not be reinstated or placed back into a Participant’s Account, unless an error was reported and verified as provided herein. We will not reinstate any quantity of redeemable Points for any reason after an order has been placed for a Reward. Merchandise may not be returned to Sponsor for any reason. Refunds, exchanges, and other issues regarding a third-party supplied Reward (if applicable) are governed by the manufacturer and/or third-party vendor's terms and conditions applicable to the Reward, if any, and are not the responsibility of Sponsor or any other Program Entity.
Rewards with Limited Availability: Many items available in the Rewards catalog on the Website may be available in limited quantities, or for a limited time, and will be noted as such. Once the total available number of any such Reward has been claimed, or once the limited time to redeem such a Reward has expired, that item will be removed from the Rewards catalogue and/or marked as "Sold Out". If there is a particular Reward offered that you would like to receive, you should redeem your Points for that Reward as soon as possible (once you have enough Points) because supplies or redemption time may be limited (or the Program may be discontinued at any time in our sole discretion). If you redeem your Points for a Reward, and we determine that the Reward was unavailable, out of stock, or for any other reason, cannot be provided to you, we will reinstate to your Participant Account the Points that you exchanged for the Reward.
- DELIVERY, TAXES AND WARRANTY
Rewards will be delivered via U.S. mail or via email at Administrator's sole discretion. All Rewards will be delivered to the U.S. mailing address/email address as provided by the Participant during the registration or redemption process. All physical Rewards will be shipped via U.S. mail (or other carrier at the discretion of Sponsor) within three (3) to six (6) weeks from date of order/notification unless the Website states a different schedule or the particular Reward you ordered is limited in quantity, backordered, or out of stock. Merchandise can only be shipped within the U.S. and cannot be shipped to a P.O. Box. Digital Rewards in the form of online gift certificates/cards/codes, if any, will be sent via email to the email address listed in the Participant's Account in approximately two (2) business days from the date of the order/notification. Any such gift cards are subject to the terms and conditions of issuer. Rewards that are returned, unclaimed, or undeliverable for whatever reason (including incorrect or invalid Participant Account or redemption information) will not be re-sent and are forfeited, and the Points will be forfeited and not reinstated, and Sponsor shall have no further obligation to award said item to Participant.
Participants are responsible for all applicable federal, state, and local taxes associated with any item or Reward given under the Program.
PROGRAM ENTITIES DO NOT ENDORSE OR ASSUME LIABILITY OR RESPONSIBILITY FOR: (A) ANY OF THE SUPPLIERS, VENDORS, MANUFACTURERS, OR PROVIDERS OF MERCHANDISE, REWARDS, OR ITEMS (COLLECTIVELY, "REWARD SUPPLIERS"); (B) ANY OF SAID REWARD SUPPLIERS' PRODUCTS, SERVICES, ITEMS OR GIFT CARDS; AND (C) FOR ANY OF SAID REWARD SUPPLIERS' PRACTICES, POLICIES OR TERMS AND CONDITIONS.
REWARDS ARE PROVIDED TO PARTICIPANTS "AS IS." PROGRAM ENTITIES DO NOT MAKE AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
- COMMUNICATIONS, NOTICES AND CUSTOMER SERVICE
By enrolling and participating in the Program, Participants agree that we may provide notices of important matters related to the Program by prominently posting the notice on the Website, by sending you an email to the email address associated with your Participant Account, or in another reasonable manner we determine in our sole discretion. You agree to promptly notify us if you change your email or mailing address by updating your Participant Account. Neither Sponsor nor Administrator is responsible for any change of email address, mailing address and/or telephone number of any Participant.
If you have a question regarding using the Program, you may contact us using the "Contact Us" form available on the Website. You acknowledge that any response or the provision of customer support is at our sole discretion and that we have no obligation to provide you with customer support of any kind.
- MODIFICATIONS AND TERMINATION OF THE PROGRAM
Sponsor reserves the right, in its sole discretion to shorten, extend, modify, cancel or terminate the Program in whole or in part at any time, for any reason even though termination may affect a Participant's ability to accrue Points, claim a Reward, or any other benefit or service under the Program. In the event the Program is cancelled or terminated prior to the anticipated Program Period end date (not due to a Technical Difficulty (defined below)), a notice will be posted on the Website and if reasonably commercially practicable to do so, a notice will also be sent to all Participants via email approximately thirty (30) days prior to the date of termination. Participants will have until the revised date of Program termination, or another date clearly communicated by Sponsor, to redeem their Points.
If for any reason the Program, or any element thereof, is impaired, not capable of running as planned, including infection by computer virus, bugs, tampering, unauthorized intervention, fraud, cheating, bots/scripts, mechanical or other artifice, regularly-scheduled maintenance, equipment failure, technical or any other failures, a force majeure event, human or any other error, or any other causes similar or dissimilar which corrupt or affect the administration, security, fairness, integrity, or proper conduct of the Program, or any element thereof (as determined by us in our absolute discretion) (referred to collectively as a "Technical Difficulty"), we reserve the right to rescind Points or forfeit Rewards (even if already in the process of redemption but not yet delivered to a Participant's Account), or to modify the Program or any element thereof in a manner that best conforms to the spirit of these Terms without suspending it, suspend the Program or any element thereof to address the impairment and then resume in a manner that best conforms to the spirit of these Terms, or cancel, terminate, suspend or modify the Program, in whole or in part. Under such a circumstance of Technical Difficulty and provided in Sponsor's sole discretion it is reasonably commercially practicable and equitable given the situation affecting the Program, Sponsor will attempt to provide Participants thirty (30) days' notice from the date Program termination is announced to redeem any Rewards with eligible, non-suspect Points.
Without limitation, any attempt or suspected attempt, directly or indirectly, by any individual, entity or Participant to use or benefit from the use, in our discretion, of any form of manipulation, exploitation or abuse of the Program, any artifice, mechanical, robotic, repetitive, automatic, bots/scripts, programmed or similar participation or other methods, agents or services will immediately invalidate the Participant Account, Points and/or Rewards of such individual(s) suspected of engaging in or benefiting from such methods, and they will be disqualified from the Program permanently. We reserve the right to review any Participant's participation, logs, and activities of any individual and/or Participant Account at any time. Without limiting the foregoing, we reserve the right to suspend or terminate any Participant who, in our sole discretion, is suspected of tampering with or abusing any aspect of the Program or Website, using the Program in a manner in violation of or inconsistent with these Terms, engaging in cheating or fraudulent activity or artifice, or violating any federal, state or local, laws, statutes or ordinances, and any such activities will result in the loss of all accumulated Points, and/or Rewards without compensation therefor and such Participants will be disqualified from the Program permanently. FURTHER ANY ATTEMPT BY ANY PERSON TO DAMAGE THE WEBSITE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM IS IN VIOLATION OF ANY APPLICABLE LAWS, AND SHOULD SUCH AN ATTEMPT BE MADE, SPONSOR RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES FROM ANY SUCH PERSON TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CRIMINAL PROSECUTION.
- GENERAL CONDITIONS
We have the sole discretion to interpret and apply the Terms and all elements thereof. All issues, concerns, questions or disputes regarding the Terms, the Program, or any element thereof, including, but not limited to, participation and/or a Participant's eligibility and compliance with these Terms will be resolved by us in our absolute discretion. By participating in the Program, you agree to be bound to these Terms and our decisions, which are final and binding.
We are not responsible for lost, late, misdirected, incomplete, unintelligible, illegible, stolen, returned, or undelivered mail or email, or for lost, interrupted or unavailable satellite, network, server, Internet Service Provider (ISP), Website, app, or other connections availability, accessibility or traffic congestion, or miscommunications, or failed computer, network, telephone, satellite, cable hardware, software or lines, or technical failure, or jumbled, scrambled, delayed, or misdirected transmissions, or computer hardware or software malfunctions, failures or difficulties, incompatibility, or errors of any kind whether human, mechanical, electronic or network, or the incorrect or inaccurate capture of information, nor for the failure to capture any such information in connection with the Program, or any element thereof. We are not responsible for injury or damage to Participants' or to any other person's computer or Device related to or resulting from participating in this Program or downloading materials from or use of the Website. In the event of any discrepancy, ambiguity, inconsistency, printing or any other error or miscommunication on the Website, in any advertising, Program materials and/or any other information or communications in whatever media or medium relating to this Program, these Terms shall govern.
We are not liable to Participants or any other person or entity for failure to execute the Program or any element thereof or supply any Points, items or Rewards or any part thereof, by reason of any act of God, any action(s), regulation(s) order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulation(s), order(s) or request(s) prove(s) to be invalid), equipment failure, terrorist act, cyber-attack, earthquake, war, fire, flood, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, pandemic or other health emergencies, civil disturbance, insurrection, riot, or any similar or dissimilar event beyond our reasonable control.
If any provision of these Terms is found to be invalid or unenforceable, such provision shall be severed from the remainder of these Terms, which will otherwise remain in full force and effect. To the extent permitted by applicable law, Participants waive any applicable statutory and common law that may permit a contract to be construed against its drafter.
We reserve the right, without limitation, to: (i) investigate any suspected breaches of the Website's security or its information technology or other systems or networks; (ii) investigate any suspected breaches of these Terms; (iii) investigate any information obtained by reviewing law enforcement databases; (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; (v) prosecute violators of these Terms; and (vi) discontinue the Program, in whole or in part, or, suspend or terminate Participant's access to it, in whole or in part, including any Participant Accounts or registration, at any time, without notice, for any reason and without any obligation to Participants or any third party. Any suspension or termination will not affect Participant's obligations to us under these Terms. Upon suspension or termination of Participant's access to the Program, or upon notice from us, all privileges granted to Participants under these Terms will cease immediately, and Participants agree that they will immediately discontinue use of the Program. The provisions of these Terms, which by their nature should survive suspension or termination will survive, including the rights and licenses Participants grant to us in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
We may assign our rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by Participants, and Participants may not delegate Participant's duties under them. Headings are provided for convenience only.
- INDEMNITY, RELEASE AND LIMITATIONS OF LIABILITY
In exchange for the right to participate in the Program, Participants agree to indemnify, defend and hold harmless Sponsor, Administrator, all other Program Entities, and their parent, affiliated and subsidiary companies, advertising and promotion agencies, and their respective distributors, officers, directors, employees, independent contractors, representatives, assigns and agents ("Released Parties") from and against any and all causes of action, damages, losses, liabilities, claims, costs, investigations, judgments, fines, penalties, settlements, interest, expenses or demands ("Claims"), that directly or indirectly arise from or are related to: (i) Participant's use of the Program, the Website, and any activities in connection with the Program; (ii) Participant's breach of these Terms or any Additional Terms; (iii) Participant's violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with Participant's use of the Program or Website or activities in connection therewith; (iv) information or material transmitted by Participant or through Participant's Device(s), even if not submitted by Participant, including but not limited to information or material that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (v) any misrepresentation made by Participant; (vi) the acceptance, possession, use, misdirection, or misuse of any item claimed as a Reward or any element thereof; and (vii) our use of the information that Participants submit to us (all of the foregoing collectively, "Claims and Losses"). Participants will cooperate as fully required by us in the defense of any Claims 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. Participants will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Sponsor. BY PARTICIPATING IN THE PROGRAM, A PARTICIPANT INDEMNIFIES AND HOLDS THE RELEASED PARTIES HARMLESS FROM AND WAIVES ANY AND ALL RIGHTS TO BRING ANY CLAIM OR ACTION RELATED TO SUCH CLAIMS AND LOSSES IN ANY FORUM BEYOND ONE (1) YEAR AFTER THE FIRST OCCURRENCE OF THE KIND OF ACT, EVENT, CONDITION OR OMISSION UPON WHICH THE CLAIM OR LOSS IS BASED.
IN NO EVENT WILL THE RELEASED PARTIES BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM THIS PROGRAM OR PARTICIPATION THEREIN OR ANY ELEMENT THEREOF.
To the fullest extent permitted by law, the foregoing releases will apply even if any of the foregoing Claims and Losses were foreseeable and even if Released Parties were advised of or should have known of the possibility of such Claims and Losses, regardless of whether Participants bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, force majeure, Technical Difficulties, or destruction of the Program).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RELEASED PARTIES' TOTAL LIABILITY TO A PARTICIPANT, FOR ALL POSSIBLE CLAIMS AND LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH PARTICIPANT'S ACCESS TO AND USE OF THE PROGRAM OR WEBSITE AND PARTICIPANT'S RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID FOR THE PRODUCT IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLY THE CLAIM(S).
- RIGHT OF PUBLICITY
By participating in the Program, Participants hereby irrevocably grant to Sponsor (and its affiliated companies and their respective authorized representatives) where lawful, the non-exclusive, royalty-free, worldwide irrevocable right to the use (but without obligation) their name, image, photographs, videotape, likeness, hometown name, biographical information, voice as well as any statements made by Participants regarding the Program, Sponsor or Sponsor's products for publicity, trade, advertising and promotional purposes in all media now known or hereafter developed worldwide, including, but not limited to, the Internet, mobile devices, and World Wide Web, without additional compensation, and without the right of review, notification or approval.
- WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
IF A PARTICIPANT CLAIMS THAT THEY HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH THEIR PARTICIPATION IN THE PROGRAM, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE ANY PARTICIPANT TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH ANY CLAIM, PARTICIPANTS AGREE THAT THEY WILL NOT SEEK, AND THAT THEY WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION IN ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITES, APPLICATION, CONTENT, USER CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY US.
- DISPUTE RESOLUTION; ARBITRATION AGREEMENT; CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. IT LIMITS THE RIGHT TO OBTAIN DISCOVERY OTHER THAN AS PERMITTED BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”), AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR SPONSOR WOULD HAVE IN COURT, SUCH AS APPELLATE REVIEW, ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
For purposes of this Section, “Sponsor” shall include its subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns.
(a) Mandatory Notice Of Dispute And Informal Dispute Resolution Process. If you and Sponsor have a Dispute (defined below), you and Sponsor agree to make a good faith effort to resolve the Dispute informally prior to initiating a formal arbitration proceeding. Before initiating an arbitration, you and Sponsor each agree to first provide the other with a detailed written notice (“Notice of Dispute”). The Notice of Dispute must include (i) the name, telephone number, mailing address, and email address of the person or entity providing the notice; (ii) a statement of the legal claims asserted and the factual basis for those claims; and (iii) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy.
If you provide a Notice of Dispute to Sponsor, the Notice of Dispute must be mailed via first-class mail, FedEx, or UPS to: NHS U.S., LLC, Attn: Legal Department, 121 River Street, 9th Floor, Hoboken, NJ 07030. Your Notice of Dispute must include your personal signature. If Sponsor provides you with a Notice of Dispute, Sponsor will mail the notice via first-class mail, FedEx, or UPS to the billing address associated with your Account and/or billing information (the “Notice Address”). If Sponsor is unable to reach you at the Notice Address, it may provide a Notice of Dispute to you via email at the email address associated with your Account.
If requested by the party that receives the Notice of Dispute, the other party must personally appear at and participate in a telephone settlement conference (if a party is represented by counsel, counsel may also participate) to discuss the Dispute.
For a period of sixty (60) days from the date of receipt of a complete Notice of Dispute, you and Sponsor agree to make attempts to resolve the Dispute prior to commencing an arbitration and not to commence an arbitration proceeding until the 60-day post-notice resolution period expires, which period may be extended by agreement of the parties. If an agreement cannot be reached within 60 days of receipt of the Notice of Dispute, you or Sponsor may commence an arbitration proceeding, pursuant to the procedure outlined below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing any formal dispute resolution proceeding, including a demand for arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this informal dispute resolution process.
If the sufficiency of a Notice of Dispute or compliance with this mandatory informal dispute resolution process is at issue, it may be decided by a court of competent jurisdiction at either party's election, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration or the assessment or payment of arbitration fees. You or we may also elect to raise non-compliance with this informal dispute resolution process and seek relief in arbitration.
(b) ARBITRATION AGREEMENT. IF WE ARE UNABLE TO RESOLVE ANY DISPUTE THROUGH THE INFORMAL DISPUTE RESOLUTION PROCESS, YOU AND WE AGREE THAT ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND ANY SPONSOR PARTIES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENTS, AFFILIATES, SUBSIDIARIES AND/OR RELATED COMPANIES, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, ARISING OUT OF OR RELATING TO THE SITES, TO THE USE OR ACCESS THEREOF, TO THE PRODUCTS, SERVICES, MATERIALS, PROMOTIONS, PROGRAMS OR OTHER FEATURES OFFERED ON OR THROUGH THE SITES, AND/OR TO THE APPLICATION, ENFORCEABILITY, SCOPE, OR INTERPRETATION OF THIS AGREEMENT TO ARBITRATE (“Disputes”), SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION. THE SOLE EXCEPTIONS TO THIS REQUIREMENT ARE THAT (I) YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY, as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis); and (II) each party may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Dispute will be given the broadest possible meaning permitted by law. It includes claims that arose before this or any prior agreement or that arise after the termination of this agreement. BY AGREEING TO THESE TERMS, YOU GIVE UP YOUR RIGHT TO BRING AND PROSECUTE ANY DISPUTES WITH SPONSOR IN A COURT OF LAW OR BEFORE A JURY TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS OR REPRESENTATIVE ACTIONS.
ALL DISPUTES SHALL BE DETERMINED BY BINDING ARBITRATION (1) ADMINISTERED BY JAMS, PURSUANT TO THE JAMS STREAMLINED ARBITRATION RULES & PROCEDURES EFFECTIVE JUNE 1, 2021 (THE “JAMS RULES”), AND AS MODIFIED BY THIS AGREEMENT TO ARBITRATE; (2) CONDUCTED BY A SINGLE, NEUTRAL ARBITRATOR; AND (3) TAKE PLACE TELEPHONICALLY UNLESS AN IN-PERSON HEARING IS SPECIFICALLY REQUESTED BY EITHER PARTY. IF AN IN-PERSON HEARING IS REQUESTED, SUCH IN-PERSON HEARINGS SHALL TAKE PLACE IN THE COUNTY OF THE BILLING ADDRESS ASSOCIATED WITH YOUR MEMBERSHIP IN THE REWARDS PROGRAM, OR THE COUNTY WHERE YOU RESIDE, IN THE INSTANCE WHERE NO ACCOUNT EXISTS. TO THE EXTENT THAT THIS AGREEMENT TO ARBITRATE CONFLICTS WITH THE JAMS POLICY ON CONSUMER ARBITRATIONS PURSUANT TO PRE-DISPUTE CLAUSES MINIMUM STANDARDS OF PROCEDURAL FAIRNESS (THE “MINIMUM STANDARDS”), THE MINIMUM STANDARD IN THAT REGARD WILL APPLY. You and a Sponsor representative shall personally appear (with counsel if you and we are represented) at an initial telephone conference with a case manager before an arbitrator is appointed and at a hearing should one be scheduled by the arbitrator.
DISPUTES MAY ALSO BE REFERRED TO ANOTHER ARBITRATION ORGANIZATION IF YOU AND SPONSOR AGREE IN WRITING, OR TO AN ARBITRATOR APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT.
The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/ or by calling JAMS at 800-352-5267. To commence an arbitration, a Demand for Arbitration is required to be executed and served on Sponsor. Service of the Demand for Arbitration on Sponsor can be mailed to NHS U.S., LLC, Attn: Legal Department, 121 River Street, 9th Floor, Hoboken, NJ 07030, pursuant to the instructions provided by JAMS to submit a Dispute for arbitration. Service of the Demand for Arbitration on you will be sent to the Notice Address. Further instructions on submitting a Demand for Arbitration can be found at www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages), and must follow the terms of these Terms.
Except as expressly provided in this Dispute Resolution section, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or formation of this Dispute Resolution section including, but not limited to, a claim that all or any part of it is void or voidable. The parties shall be responsible for their own attorneys' fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. The arbitrator shall have the authority under Federal Rule of Civil Procedure 11 to issue sanctions against any party and counsel as a court would. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the arbitrator. Notwithstanding anything to the contrary, Sponsor will pay all fees and costs that we are required by law to pay.
BECAUSE THE REWARDS PROGRAM PROVIDED TO YOU BY SPONSOR CONCERNS INTERSTATE COMMERCE, THE FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THE ARBITRABILITY OF ALL DISPUTES. HOWEVER, APPLICABLE NEW YORK STATE OR U.S. FEDERAL LAW MAY ALSO APPLY TO THE SUBSTANCE OF ANY DISPUTES. YOU AND WE VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT YOU OR WE HAVE TO A JURY TRIAL.
(c) Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against Sponsor by the same or coordinated counsel or are otherwise coordinated (and your claim is one such claim), you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following process. Counsel for the claimants and counsel for Sponsor shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any JAMS fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of a staged process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge, and Sponsor shall pay the mediator's fee. If the parties are unable to resolve the remaining matters in mediation at this time, each side shall select twenty (20) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any JAMS fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. If the parties are unable to resolve the remaining cases after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge, and Sponsor shall pay the mediator's fee. If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by JAMS in staged sets, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, Sponsor agrees to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Dispute Resolution section where a Notice of Dispute or Demand for Arbitration has been submitted, from the time the first cases are selected for a bellwether process until the time your case is selected, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Sponsor. Should a court of competent jurisdiction decline to enforce these “Special Additional Procedures for Mass Arbitration,” you and we agree that your and our counsel shall engage in good faith with the assistance of a Process Arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with JAMS to address reductions in arbitration fees.
(d) NO CLASS ACTIONS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT ANY AND ALL DISPUTES WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS, COLLECTIVE OR REPRESENTATIVE ACTION. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION OR ARBITRATE ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Further, unless both you and Sponsor expressly agree otherwise, the arbitrator may not consolidate more than one person’s claim and the arbitrator may not otherwise preside over any form of a class, consolidated, representative, collective, or private attorney general proceeding.
If a court determines that any of the prohibitions on non-individualized relief; class, representative, and private attorney general claims; and consolidation are unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically, and notwithstanding anything to the contrary in this Section (Dispute Resolution), the arbitrator may not issue a “public injunction” and any such “public injunction,” if permitted, may be awarded only by a federal or state court. If either party is permitted to seek a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any such prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party's claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. If this prohibition of class, representative, or consolidated arbitration is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(e) Except as specifically provided in this section (e.g., the Additional Procedures for Mass Filings), if any part or parts of the mandatory informal dispute resolution process, arbitration agreement, class action waiver, is/are found by a court of competent jurisdiction to be invalid or unenforceable as to your Dispute, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of this section shall continue in full force and effect. The mandatory informal dispute resolution process, arbitration agreement, and class action waiver will survive the termination of these Terms.