ONLINE TERMS OF SERVICE

Lack’s Valley Stores, Ltd. (“Lack’s”) has adopted the following Terms of Use for its current and future online and mobile websites, platforms, services, applications, and networks, including without limitation, lacksvalley.com (the “Site”).  Please take the time to read the full Terms of Use.  You accept and agree to be bound by these Terms of Use when you use the Site.

IMPORTANT NOTICE: THESE TERMS OF USE ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTIONS 10 and 11

1.         Terms of Use.

(a)        Governing Terms.  These Terms of Service, along with any additional terms and conditions that are referenced herein or that are presented elsewhere on the Site in relation to a specific service or feature (collectively, “Terms of Service”) and Lack’s Privacy Policy, set forth the terms and conditions that apply to your use of the lacksvalley.com Site.  By using the Site, you agree to comply with all of the terms and conditions hereof.  If you do not agree to these Terms of Service, you should not access or use the Site.

(b)       Changes to Terms of Service.  Lack’s may modify the Terms of Service, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting.  Your use of the Site after such posting shall be deemed to constitute acceptance by you of such modifications, additions or deletions.

(c)        Changes to Site.  Lack’s may change or discontinue any aspect, service or feature of the Site at any time, including, but not limited to, content, hours of availability and equipment needed for access or use.

(d)       Registration.  You may be given the opportunity to register via an online registration form to create a user account (“Your Account”) that may allow you to receive information from Lack’s, to apply for retail credit with Lack’s and/or to make a payment on your Lack’s account.  Lack’s will use the information you provide in accordance with its Privacy Policy.  By registering you represent and warrant that all information that you provide on the registration form is current, complete and accurate to the best of your knowledge.  You agree to maintain and promptly update your registration information on the Site so that it remains current, complete and accurate.  During the registration process, you may be required to choose a password and/or user name.  You acknowledge and agree that Lack’s may rely on this password or user name to identify you. You shall be responsible for protecting the confidentiality of your user name(s) or password(s), if any.  You are responsible for all use of Your Account, regardless of whether you authorized such access or use, and for ensuring that all use of Your Account complies fully with the provisions of these Terms of Service.

(e)        Equipment.  You are responsible for obtaining and maintaining all connectivity, computer software, hardware and other equipment needed for access to and use of the Site and all charges related to the same.

2.         User Content and Conduct; Community Guidelines. 

When using the Site, you agree to abide by the following rules of conduct:

You agree not to upload, post or otherwise transmit any content that:

  • violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk or threaten others.
  • you know to be false, misleading or inaccurate.
  • contains any unsolicited or unauthorized advertising or promotional materials with respect to products or services, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation.
  • You agree not to engage in activity that would constitute a criminal offense or give rise to a civil liability.
  • You agree not to impersonate any person or entity, including, but not limited to, Lack’s or any Lack’s employee, or falsely state or otherwise misrepresent your affiliation with any person or entity.
  • You agree not to upload, post or otherwise transmit any content, software or other materials which contain a virus or other harmful or disruptive component.
  • You agree not to interfere with or disrupt the Site or the servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site.
  • You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Site, use the Site, or access to the Site.

Any conduct that in Lack’s sole discretion restricts or inhibits anyone else from using or enjoying the Site will not be permitted.  Lack’s reserves the right in its sole discretion to terminate Your Account for any reason.

3.         Copyright Ownership.

The Site contains copyrighted material, trademarks and other proprietary information, and the entire contents of the Site are copyrighted as a collective work under the United States copyright laws.  Lack’s owns copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it.  You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part.

4.         Advertisements and Promotions.

Lack’s may run advertisements and promotions from third parties on the Site.  Your business dealings or correspondence with, or participation in promotions of, advertisers other than Lack’s, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party.  Lack’s is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Site.

5.         Disclaimer of Warranty; Limitation of Liability.

(a)        YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK.  NEITHER LACK’S, ITS PARENTs, SUBSIDIARIES, ITS OTHER AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE SITE.

(b)       THE SITE, INCLUDING, WITHOUT LIMITATION, ANY DOWNLOADABLE SOFTWARE, IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS OF SERVICE.

(c)        TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL LACK’S, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION OR FOR ANY FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION ARISING OUT OF USE OF THE SITE OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT OR DELAY IN SERVICE, OPERATION OR TRANSMISSION OF THE SITES, OR ANY ALLEGED COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF PROPERTY, AND/OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF OR POSTING OF ANY RECORD, CONTENT OR TECHNOLOGY, PERTAINING TO OR ON THE SITES.  YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHEHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF TURNER OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. 

(d)       Lack’s disclaims any and all liability of any kind for any unauthorized access to or use of your personally identifiable information.  By accessing the Site, you acknowledge and agree to Lack’s disclaimer of any such liability.  If you do not agree, you should not access or use the Site.

6.         Indemnification.

You agree to defend, indemnify and hold harmless Lack’s, its affiliates and their respective directors, officers, members, managers, partners, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of the Site by you or Your Account.  Lack’s reserves the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section 6.  In such event, you shall provide Lack’s with such cooperation as is reasonably requested by Lack’s.

7.         Termination.

Lack’s may terminate or suspend these Terms of Service at any time without notice to you.  Without limiting the foregoing, Lack’s shall have the right to immediately terminate Your Account in the event of any conduct by you which Lack’s, in its sole discretion, considers to be unacceptable, or in the event of any breach by you of these Terms of Service.  The provisions of Sections 1 through 12 shall survive termination of these Terms of Service.

8.         Trademarks.

Lack’s, its parent, subsidiaries and affiliates, own all rights to their logos and trademarks used in connection with the Site. 

9.         Governing Law.

Any and all disputes, claims and controversies arising out of or in connection with your access to, use of the Site, the provision of content, services and/or technology on or through the Site shall be governed by and construed exclusively in accordance with the laws and decisions of the State of Texas, without reference to its choice of law principles.  Except as set forth in Section 10, venue for any cause of action hereunder shall lie exclusively in Hidalgo County, Texas.

10.       Disputes/Arbitration.

PLEASE READ THIS SECTION 10 CAREFULLY -- IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Lack’s and you agree that these Terms of Use affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

In the event of a dispute, claim or controversy arising out of or in connection with your access to the Site, use of the Site and/or the provision of content, services and/or technology on or through the Site, Lack’s or you must give the other notice of the dispute, claim or controversy which notice will include a brief written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, claim or controversy and the relief requested.  You must send any such notice to Lack’s by email to _____________________ and by U.S. Mail to ___________________.  To the extent that Lack’s has your contact information, it will send any such notice to you by U.S. Mail or otherwise to your email address.  Lack’s and you will attempt to resolve any dispute, claim or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim or controversy is sent.  Lack’s and you shall use reasonable, good faith efforts to settle any dispute, claim or controversy through consultation and good faith negotiations.  After thirty (30) days, Lack’s or you may resort to the other alternatives described in this Section 10.

Except as otherwise specifically set forth below, any dispute, claim or controversy of any kind between Lack’s and you arising under these Terms of Use or in connection with your access to the Site, use of the Site and/or the provision of content, services and/or technology on or through the Site, if unresolved through informal discussions within thirty (30) days of receipt of notice, shall be resolved by binding arbitration to be held in Hidalgo County, Texas.  Lack’s and you agree to submit to the personal jurisdiction of any state or federal court in Hidalgo County, Texas to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.  The arbitration shall be conducted by a single arbitrator, hereunder shall be administered in accordance with the terms of these Terms of Service, the International Institute for Conflict Prevention & Resolution (“CPR”) Rules for Non-Administered Arbitration (the “Rules”), and to the maximum extent applicable, the Federal Arbitration Act (Title 9 of the United States Code).  The Rules and fee information are available at www.cpradr.org, or by calling CPR at 1- 212-949-6490.

Lack’s shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $10,000, unless the arbitrator finds the arbitration to be frivolous.  You are responsible for all other additional costs that you may incur in the arbitration including, but not limited to attorney’s fees and expert witness costs unless Lack’s is otherwise specifically required to pay such fees under applicable law.  For claims that total more than $10,000, the Rules will govern payment of filing fees and arbitration fees.  The decision of the arbitrator will be in writing and binding and conclusive on Lack’s and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction.  Lack’s and you agree that dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration.  The arbitrator must follow these Terms of Use and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Notwithstanding the foregoing, Lack’s and you agree not to seek any attorney’s fees and expert witness costs unless the arbitrator finds that a claim or defense was frivolous or asserted for an improper purpose.  Lack’s and you understand that, absent this mandatory arbitration provision, Lack’s and you would have the right to sue in court and have a jury trial.  Lack’s and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect.  In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, Lack’s and you agree to waive, to the fullest extent allowed by law, any trial by jury.  The terms of these arbitration provisions will also apply to any claims asserted by you against any present or future parent or affiliated company of Lack’s to the extent that any such claims arise out of your access to the Site, use of the Site and/or the provision of content, services and/or technology on or through the Site.

11.       Class Action Waiver.

 PLEASE READ THIS SECTION 12 CAREFULLY -- IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.

 Lack’s and you agree that Lack’s and you will resolve any disputes, claims or controversies on an individual basis, and that any claims brought under these Terms of Use in connection with the Site will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated or representative proceeding.  Lack’s and you further agree that Lack’s and you shall not participate in any consolidated, class or representative proceeding (existing or future) brought by any third party arising under these Terms of Use or in connection with the Site.  If any court or arbitrator determines that the class action waiver set forth in this Section 11 is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in Hidalgo County, Texas.  The terms of this provision will also apply to any claims asserted by you against any parent or affiliated company of Lack’s to the extent that any such claims arise out of your access to the Site, use of the Site and/or the provision of content, services and/or technology on or through the Site.

 

12.       Miscellaneous.

These Terms of Service and any operating rules for the Site established by Lack’s constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter.  The provisions of these Terms of Service are for the benefit of Lack’s, its parents, subsidiaries, other affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.  If you access the Site from any location other than the United States, you accept full responsibility for compliance with all local laws.  You are also subject to United States export controls and are responsible for any violations of United States embargoes or other federal rules and regulations restricting exports.  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.  If any part of these Terms of Use is found by a court of competent jurisdiction to be invalid or unenforceable, it will be replaced with language reflecting the original purpose in a valid and enforceable manner.  The enforceable sections of these Terms of Use will remain binding upon the parties.  The section headings used herein are for convenience only and shall not be given any legal import.

 

These Terms of Service were last updated on August 25, 2016.