Sam’s Club Photo and Customization Terms and Conditions

INTRODUCTION

Welcome to the Sam’s Club Photos and Customization website (the “Site”). Sam’s West, Inc., together with its subsidiaries, affiliates, licensors, and its and their subcontractors and service providers (collectively, “Sam’s”) provide you access and use of the Site, subject to your compliance with these Terms and Conditions (as defined below) and the Sam’s Club Terms and Conditions. This Site is provided as a service to the Sam’s members who (i) accept the Terms and Conditions as provided for below and (ii) are active Sam’s members (“End User”, “You”, or “Your”). Please review the following terms and conditions (the "Terms and Conditions") that govern Your use of the Site and the goods, software and services provided, licensed or sold through or in connection with the Site (the "Products"). Please note that Your use of the Site and Your clicking of the “I Accept” button constitutes Your unconditional agreement to follow and be bound by the Terms and Conditions and the Sam’s Privacy Policy then in effect. Although You may "bookmark" a particular portion of this Site and thereby bypass the display of these Terms and Conditions, Your use of this Site still binds You to these Terms and Conditions then in effect. Sam’s reserves the right to update or modify these Terms and Conditions at any time without prior notice. Your use of the Site following any such change constitutes Your unconditional agreement to follow and be bound by these Terms and Conditions as changed. For this reason, Sam’s encourages You to review the effective date of the Terms and Conditions (which appears at the very top of this document) each time You access this Site and, if these Terms and Conditions have been revised since Your last visit to the Site, to review the revised Terms and Conditions which will apply to Your visit, Your use of the Site, and the use and purchase (as the case may be) of Products. In the event that You do not agree to these Terms and Conditions, You should cease use of the Site.

KEY TERMS FOR MEMBER USE OF SAM’S CLUB PHOTOS AND CUSTOMIZATION SERVICES

You acknowledge and agree that in order to utilize the Site and order the Products, You must be a Sam’s member with an active Sam’s membership.

If You do not agree to be bound by the Terms and Conditions and applicable law each time you access and use the Site or You do not have sufficient authority to agree to and accept the Terms and Conditions, You may not use the Site.

Sam’s may at any time, in its sole discretion and without prior notice to You delete any Materials (as defined herein). Further, You acknowledge and agree that in the event that You do not order Products from the Site for a period of 2 years or Your Sam’s membership terminates or expires for any reason, Sam’s may delete all of Your Materials on the Site without notice or liability to You or any third party.

OTHER PERSON'S RIGHTS: Your use of the Site, Products, and Content must not infringe, violate or misappropriate the legal rights of any other person (including, but not limited to, privacy and personality rights, moral rights, or other Intellectual Property Rights). You may not use the Site, Products, or Content in any manner that may be indecent, offensive, defamatory, derogatory, fraudulent, deceptive, harmful, abusive, threatening, vulgar, profane, pornographic, obscene, sexually explicit, sexist, racist, hateful, offensive, harassing, invasive of the privacy rights of others, or that may otherwise be objectionable, as determined by Sam’s in its sole discretion. This prohibition extends to the posting or uploading of any materials that depict, encourage, indicate, advocate or tend to incite any such conduct. Your use of the Site must not dilute or depreciate the name and reputation of Sam’s.

In the event that You suspect copyright infringement by another user, please provide notice pursuant to the Digital Millennium Copyright Act (“DMCA”) at: https://help.samsclub.com/app/answers/detail/a_id/250/~/copyright-infringement-policy.

SAM’S INTELLECTUAL PROPERTY OWNERSHIP

Unless otherwise noted, all materials, including images, text, illustrations, designs, icons, photographs, programs, video clips and written and other materials that are part of this Site (collectively, the "Content") are subject to intellectual property and other proprietary rights, including without in any way limiting the generality of the foregoing, copyrights, patents, trademarks, service marks, trade secrets and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”), held by or licensed to Sam’s, and are protected by U.S. and international copyright, trademark or other applicable laws. The compilation (meaning the collection, arrangement, and assembly) of all Content on this Site is the exclusive property of Sam’s and is also protected by U.S. and international copyright laws. Sam’s expressly reserves all Intellectual Property Rights in all Content which appears on or is available through this Site. Access to this Site does not confer and shall not be considered as conferring upon anyone any license to any of Sam’s or any third party's Intellectual Property Rights. The Sam’s names and logos and all related product names, design marks and slogans are the trademarks of Sam’s. All other trademarks are the property of their respective owners. No trademark license is granted in connection with the materials or Content contained on or offered through this Site, or the Intellectual Property Rights embodied therein, arising therefrom or represented thereby. Access to this Site does not authorize anyone to use any name, logo or trademark in any manner whatsoever or to reproduce any Content. References on this Site to any third party names, trademarks or products or any hypertext links to third party sites or information are provided solely as a convenience to You and do not in any way constitute or imply Sam’s approval, endorsement, sponsorship or recommendation of such third party, such sites or such products or any representation or warranty as to the accuracy, adequacy, lawfulness or completeness of any such information. Sam’s is not responsible for the content of any third party sites and does not make any representations regarding the content or the lawfulness, accuracy, adequacy or completeness of material on such sites. If You decide to link to any such third party websites, You do so entirely at Your own risk.

PERMITTED USE OF THE SITE

Acceptable Conduct

All End Users of the Site must use the Site responsibly and with respect for all persons, in compliance with these Terms and Conditions and applicable law. Your use of the Site, including, without limitation, uploading materials on the Site, and Your use of Products and Content must be lawful, ethical, and respectful of the legal rights and interests of all other persons, including without limitation Sam’s.

Without limiting the above, the following rules apply to Your use of the Site:

LAWFUL USE: Your use of the Site, Content, and/or the Products must be lawful and must comply with all applicable domestic and foreign laws, regulations, rules, policies, treaties and tariffs, whether civil, criminal or otherwise. Access to the Site from locations where the Site or the Products may be illegal is prohibited.

SECURITY AND PERFORMANCE: The Site must not be used by You with any action, device, software, or routine which could directly or indirectly interfere (or attempt to interfere) with the proper working of the Site, compromise the security measures for the Site or impose an unreasonable or disproportionately large load or burden on the system on which it is stored and/or hosted or its infrastructure. You may not modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Site, Content, or the software underlying or offered on the Site, or delete, obscure or modify any proprietary notice contained on the Site or assist others in undertaking any of the foregoing. End Users are prohibited from violating or compromising or attempting to violate or compromise the security of the Site, including, without limitation, (i) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service or Site to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, "flooding," "spamming," "mailbombing" or "crashing," including without limitation any distributed denial of service attack; (iv) sending unsolicited email, including promotions and/or advertising of products or services; or (v) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. Sam’s may investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree, further, not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search this Site other than the search engine and search agents available from samsclub.com on this Site and other than generally available third party web browsers (e.g., Netscape Navigator, Microsoft Explorer, etc.).

NO DATA COLLECTION: Your use of the Site must not involve any data matching or data mining, including without limitation the collection or use of information about other members or other users (including their email addresses).

Sam’s reserves the right, in its sole discretion, to determine whether any use by You of the Site, Products, or Content is in contravention of these Terms and Conditions.

ELIGIBILITY TO USE THE SITE AND ORDER PRODUCTS; ACCOUNT REQUIREMENTS

Eligibility Requirements

The Site can only be used by residents of the United States who are at least 18 years or older (or the age of majority in his or her relevant jurisdiction) and are otherwise in compliance with the Sam’s Club Member Terms and Conditions. End Users who wish to use, acquire and/or purchase Products (as the case may be) or use the Site must be capable of forming legally binding contracts under applicable law. The Site may not be used by persons who have previously had their Site membership or account revoked or by individuals in jurisdictions where the accessing or use of the Site, Content, Products, or materials contained on or accessible through the Site, may be illegal. It is solely Your responsibility to determine whether Your use of the Site is lawful, and You must comply with all laws applicable in Your jurisdiction, including any export restrictions. Sam’s reserves the right to limit the availability of the Site or the Products to any person, geographic area, or jurisdiction it may designate, at any time and in its sole discretion, and to limit the quantities or terms and conditions relating to any service, good, program, or other product that Sam’s provides or may provide. ANY OFFER OF SALE OF ANY GOOD OR SERVICE THROUGH THIS SITE IS VOID WHERE PROHIBITED.

Accounts

If Your Sam’s membership becomes inactive, suspended or terminated for any reason, Sam’s may delete or take down Your Materials (as defined below) without any further notice or obligation to You.

THE SECURITY AND PRIVACY PROVIDED BY PASSWORDS IS NOT COMPLETE, AND CAN BE CIRCUMVENTED. YOUR USE OF PASSWORDS IS AT YOUR OWN RISK. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES (INCLUDING, WITHOUT LIMITATION, ANY PURCHASES) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You must ensure that all use of Your account, whether by You or by any third party, complies with these Terms and Conditions.

All user IDs and passwords remain the property of Sam’s, and Your account may be cancelled or suspended at any time by Sam’s in Sam’s sole discretion without any prior notice or any liability to You or any other person.

You must respond promptly to all email and other correspondence from Sam’s which requests or requires a reply from You, including, without limitation, email and correspondence concerning complaints or concerns regarding Your use of the Site and the use of Your account.

License and Warranties

For all materials You may use or allow others to use in connection with the Site, including materials and photographs posted, uploaded or submitted to the Site (the "Materials"):

You grant to Sam’s a non-exclusive, royalty-free, perpetual, irrevocable, transferable, universal, sub-licensable, unrestricted, world-wide right and license to access, use, copy, reproduce, distribute, transmit, display, perform, communicate to the public, modify, adapt, publish, translate, create derivative works from, postprocess, transform or compress original Materials uploaded by you, in particular by transforming them into data vectors or multidimensional matrices for the purpose of being processed by neural networks, and otherwise use such Materials (in whole or in part) in connection with the Site and/or the Products, using any form, media or technology now known or later developed, without providing compensation to You or any other person, without any liability to You or any other person, and free from any obligation of confidence or other duties on the part of Sam’s;

You represent and warrant to Sam’s and all users of the Site that (i) the Materials and Sam’s and all users of the Site’s use of the Materials do not and will not violate, misappropriate or infringe the rights (including copyright, moral rights, and other Intellectual Property Rights and privacy and personality rights) of any other person or any applicable laws; and (ii) You have all the rights necessary to grant all rights and licenses set forth above; and

You also grant to Sam’s the right to use Your name in connection with the Materials.

Notwithstanding the foregoing, except as otherwise permitted herein, Sam’s will not disclose, use or modify Materials for marketing purposes without obtaining Your express permission unless required to do so by law.

Photos and Customization Services

End Users of the Site may be permitted to submit Materials to the Site for processing and purchase of prints or for the production and purchase of customized merchandise incorporating the Materials. Any such processing by Sam’s is expressly subject to the terms of these Terms and Conditions, including without limitation all disclaimers, limitation of liability, exclusions and indemnities. The acceptance of such Materials by the Site does not create any obligation for Sam’s to preserve or retain such Materials.

FEES, CHARGES AND TAXES, AVAILABILITY, PRICES, MISPRINTS AND ERRORS, ORDERS AND RETURNS

All fees and charges will be at the rates in effect at the time the charges were incurred. Charges incurred under these Terms and Conditions may include charges related to use (or in certain cases acquisition) of the Products, as well as charges related to goods and services provided by third parties but acquired through the Site. You are responsible for paying all fees, charges and applicable taxes associated with Your use (or acquisition) of the Products and any use (or acquisition) of the Products by any person using Your user ID or password. All amounts appearing on the Site are quoted in U.S. dollars.

Sam’s endeavors to provide current and accurate information on the Site. Nevertheless, misprints or other errors may occur. Accordingly, Sam’s reserves the right to change the prices, fees and charges associated with any of the Products, including without limitation any goods and services available through the Site, at any time and from time to time without any notice or any liability to You or any other person. Also, due to the popularity of some goods and services, Sam’s cannot guarantee that Products, goods, or services advertised on the Site will be available when ordered or thereafter. Sam’s also reserves the right at any time and in its sole discretion to reject, correct, cancel or terminate any order made through the Site.

The advertisements on the Site are invitations for purchase orders, and are not offers to sell. Your properly completed and delivered order form constitutes Your offer to purchase the Products, goods, or services referenced in Your order. Your order shall be deemed to be accepted only if and when the Site sends an order acceptance email to Your email address. You may not cancel an order after having submitted Your purchase order unless otherwise specified in the applicable purchase order or email confirmation. The order acceptance may provide You with confirmation of the terms of the transaction and may also provide You with certain information regarding availability and/or delivery of the relevant Product.

All payments by You are due at the time You place an order on the Site. If any payment due is not made by You, Sam’s may, in addition to any other remedies it may have and at its sole discretion and without notice to You, suspend and/or terminate its performance under these Terms and Conditions and revoke Your account and Your access to and use of the Site. If legal action is necessary to collect any amount which You owe, then You will reimburse Sam’s for any and all expenses incurred in collecting such amount, including without limitation all legal fees, all costs and all disbursements.

All transactions initiated and/or conducted through the Site are governed by these Terms and Conditions and the terms of Sam’s Privacy Policy found at, https://corporate.walmart.com/about/samsclub/sams-club-privacy-notice.

All Products in connection with this Site are subject to Sam’s return policy at: https://www.samsclub.com/content/returns.

Sam’s has made reasonable efforts to display as accurately as possible the colors of Products (including without limitation digital images and custom merchandise) that appear on or are displayed on or through the Site. However, as the actual colors You see will depend on Your monitor, Sam’s cannot guarantee that Your monitor's display of any color will be accurate.

INDEMNIFICATION

You agree to defend, indemnify and hold Sam’s and its respective directors, officers, employees and agents harmless from and against any and all allegations, investigation demands, actions, claims, suits and proceedings (“Claims”) and all resulting damages, judgments, losses, assessments, deficiencies, costs and expenses, including legal fees, court costs, and disbursements, arising from or related to (i) Your use of the Site (regardless as to whether or not such use is permitted under these Terms and Conditions), (ii) any Materials You submit or post on the Site, including, but not limited to, any claims that the Materials infringe, violate, or misappropriate the Intellectual Property Rights of a third party, (iii) Your use of the Products, (iv) any breach (or alleged breach) of these Term and Conditions, or (v) any violation of any applicable law. This provision shall survive the termination of these Terms and Conditions and remain in full force and effect after any such termination.

You shall promptly notify Sam’s of the assertion, filing, or service of any Claim that is or may be covered by this indemnity, and shall immediately take such action as may be necessary or appropriate to protect the interests of Sam’s, its officers, directors, employees and agents. Sam’s shall select the legal counsel to defend the interests of Sam’s at Your sole cost and expense. Upon Sam’s request, You will promptly provide reasonable cooperation and assistance to Sam’s with respect to any Claim involving Sam’s that relates to these Terms and Conditions or Your acts or omissions. Sam’s shall at all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any lawsuit, claim, demand or liability asserted against Sam’s or any of its officers, directors, employees or agents, and You will not settle or resolve any portion of any such claim or lawsuit without Sam’s prior written approval.

PRIVACY AND PERSONAL INFORMATION

Personal information which may be collected from individuals who access this Site, including without limitation names, postal addresses, telephone numbers, email addresses, age, and any metadata embedded in uploaded photos will only be collected for the purposes of providing the Products and operating the Site. Our collection and use of Your personal information are governed by the Sam’s Privacy Policy , and You consent to all actions we take with respect to your information consistent with our Online Privacy Policy.

The use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy | Google for Developers , including the Limited Use requirements.

TERMINATION OF THESE TERMS AND CONDITIONS

These Terms and Conditions (as same may be amended from time to time by Sam’s in its sole discretion) constitute an agreement between You and Sam’s, effective upon Your initial entry to the Site unless and until terminated by Sam’s.

If You breach any provision of these Terms and Conditions, then Sam’s may (but is not obligated to) revoke Your account and terminate these Terms and Conditions, may prohibit You from using the Site, from using and/or acquiring the Products, and/or terminate Your Sam’s membership.

Sam’s may, in its sole discretion and at any time, change, suspend, discontinue, or terminate, temporarily or permanently, the Site or any part of it or Products, for any reason and for convenience, without any notice to You and without any liability towards You or any other person.

Sam’s may at any time and for any reason, with or without cause, and in its sole discretion, immediately: (i) suspend or terminate (in whole or in part) Your authorization to use the Site and any account You may have; (ii) suspend or terminate and permanently delete and destroy any user ID, password or account information; (iii) remove from the Site and permanently delete and destroy any Materials that You or others may have posted or submitted to the Site (and for purposes of these Terms and Conditions, "posted" and "submitted" includes transmission on or through the Internet and in hardcopy format through facsimile or post) for any reason or for convenience; (iv) restrict access to the Materials posted or submitted to the Site and to any account You may have; and (v) bar You from any future use of the Site; all without any prior notice or liability to You or any other person.

Sam’s is not required to assess or otherwise determine the validity or legitimacy of any complaints or demands that it may receive regarding any Materials that You may use or allow others to use in connection with or via the Site (including Materials posted or submitted to the Site) before Sam’s takes any remedial action that it considers, in its sole discretion, to be appropriate.

If these Terms and Conditions are terminated by Sam’s for any reason, then: (i) these Terms and Conditions will continue to apply and be binding upon You in respect of Your prior use of the Site, including payment of any charges accrued in connection with use of the Site, including without limitation purchases of any Products; (ii) Sam’s may immediately, but does not have the obligation to, remove from the Site and permanently delete and destroy any Materials that You or others may have posted or submitted to the Site without any prior notice or liability to You or any other person; (iii) any fees and charges previously paid by You for unused services will not be refunded; and (iv) You must promptly destroy all materials downloaded or otherwise obtained from this Site, as well as all copies of such materials, whether made under the Terms and Conditions or otherwise.

DISCLAIMER OF WARRANTIES

THIS SITE AND THE PRODUCTS PROVIDED THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SAM’S MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SAM’S DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, PERFORMANCE OR DURABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SAM’S DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY PRODUCT AVAILABLE THROUGH THIS SITE. YOU ACKNOWLEDGE AND AGREE, BY YOUR USE OF THE SITE, THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS AND CONDITIONS.

WITHOUT ANY LIMITATION TO THE FOREGOING:

THE OPERATION OF THE SITE MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND SAM’S CONTROL. THE OPERATION OF THE SITE MAY NOT BE CONTINUOUS OR UNINTERRUPTED OR SECURE. SECURITY AND PRIVACY RISKS CANNOT BE ELIMINATED. PASSWORD PROTECTION MAY NOT PREVENT UNAUTHORIZED ACCESS TO MATERIALS YOU MAY USE OR ALLOW ANY OTHER PERSON TO USE IN CONNECTION WITH THE SITE, INCLUDING MATERIALS POSTED OR SUBMITTED TO THE SITE;

THIS SITE AND THE PRODUCTS PROVIDED ARE MADE AVAILABLE TO END USERS IN THE UNITED STATES, AND SAM’S MAKES NO WARRANTY OR REPRESENTATION THAT THE SITE OR THE PRODUCTS ARE APPROPRIATE FOR USE IN OTHER LOCATIONS. NO PART OF THIS SITE OR THE PRODUCTS SHOULD BE CONSTRUED AS AN OFFER OR SOLICITATION BY OR TO ANYONE TO WHOM SUCH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE;

SAM’S MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, THAT PASSWORD PROTECTION FOR MATERIALS YOU MAY USE OR ALLOW OTHERS TO USE IN CONNECTION WITH THE SITE, INCLUDING MATERIALS POSTED OR SUBMITTED TO THE SITE, WILL PREVENT UNAUTHORIZED ACCESS TO THOSE MATERIALS OR THAT THE MATERIALS YOU MAY USE OR ALLOW OTHERS TO USE IN CONNECTION WITH THE SITE, INCLUDING MATERIALS POSTED OR SUBMITTED TO THE SITE, WILL NOT BE MISUSED BY ANY OTHER PERSON;

YOU ARE SOLELY RESPONSIBLE FOR PROVISIONING, CONFIGURING AND MAINTAINING ALL EQUIPMENT AND SOFTWARE YOU USE OR ALLOW OTHERS TO USE IN CONNECTION WITH YOUR USE OF THE SITE AND THE ACQUISITION OF PRODUCTS, INCLUDING ALL COMPUTERS, TELEPHONE AND INTERNET SERVICE AND RELATED EQUIPMENT, PHOTOGRAPHIC EQUIPMENT, AND SOFTWARE;

SAM’S MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, THAT THE SITE AND/OR PRODUCTS WILL MEET YOUR REQUIREMENTS OR WILL BE COMPATIBLE WITH YOUR COMPUTER AND RELATED EQUIPMENT, PHOTOGRAPHIC EQUIPMENT AND SOFTWARE;

SAM’S IS UNDER NO OBLIGATION TO VERIFY THE IDENTITY OF THE USERS OF THE SITE OR OTHER USERS OF THE PRODUCT;

SAM’S DOES NOT CONTROL THE MATERIALS POSTED OR SUBMITTED TO THE SITE AND DOES NOT MONITOR, SCREEN, POLICE OR EDIT THOSE MATERIALS FOR COMPLIANCE WITH APPLICABLE LAWS OR THESE TERMS AND CONDITIONS;

YOU MAY FIND SOME OF THE MATERIALS POSTED AND MADE AVAILABLE TO YOU TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. YOU SHOULD USE CAUTION AND COMMON SENSE WHEN USING THE SITE AND RELATED PRODUCTS;

SAM’S MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, THAT THE SITE WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL BE CORRECTED;

SAM’S MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, THAT THE SITE, THE INFORMATION OBTAINED THROUGH THE SITE, OR ANY RESULTS OR INFORMATION THAT MAY BE OBTAINED THROUGH THE USE OF THE SITE WILL BE ACCURATE, COMPLETE, RELIABLE, TIMELY, OR AUTHENTIC;

SAM’S MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, THAT THE USE OF THE SITE, INCLUDING THE BROWSING AND DOWNLOADING OF ANY MATERIALS FROM THE SITE, WILL BE FREE OF VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS OR BUGS; AND

SAM’S MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, THAT THE USE OF THE SITE, INCLUDING THE DOWNLOADING AND REPRODUCTION OF MATERIALS POSTED OR SUBMITTED TO THE SITE, WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER RIGHTS OF ANY PERSON.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT WILL SAM'S, OR ITS DIRECTORS, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR TO ANY OTHER PERSON, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL LOSSES OR DAMAGES, OR ANY OTHER LOSSES OR DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO YOUR MEMBERSHIP OR PARTICIPATION IN SAM'S CLUB SERVICES OR YOUR USE OF THE SITE, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE. TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, THIS DISCLAIMER APPLIES TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION FAILURE, NETWORK OR SYSTEM OUTAGE, THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OF USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. SUBJECT TO THE FOREGOING, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, NO SAM'S ENTITY WILL BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF THE SITE AND YOUR MEMBERSHIP DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, NO SAM'S ENTITY WILL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY SELLER (INCLUDING ANY MARKETPLACE RETAILER), SHOPPER, OR OTHER USER OF THE SITE.

GENERAL PROVISIONS; DISPUTE RESOLUTION, ARBITRATION, AND APPLICABLE LAW

A. Arbitration Agreement.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, YOU AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND SAM’S CLUB, INCLUDING ANY PRODUCTS OR SERVICES OFFERED OR SOLD BY SAM’S CLUB, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A SINGLE NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS, YOU AND SAM’S CLUB AGREE THAT EACH IS WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. This paragraph may be referred to as the Arbitration Agreement in these Terms and Conditions.

B. Class Action and Mass Action Waiver.
YOU AND SAM’S CLUB AGREE THAT ANY ARBITRATION REQUIRED BY THE ARBITRATION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS. You and Sam’s Club each agree to waive the right to have any dispute or claim subject to the Arbitration Agreement brought, heard, administered, resolved, or arbitrated as a class arbitration, class action, collective action, or Mass Action to the maximum extent permitted by law. “Mass Action” means a situation in which a party is represented by a law firm or other representative, or a collection of law firms or other representatives, that has initiated more than one hundred (100) arbitration Demands with common questions of law or fact against Sam’s Club within 180 days of initiating your arbitration Demand. This paragraph may be referred to as the “Class Action and Mass Action Waiver” in these Terms and Conditions. Nothing in these Terms and Conditions precludes you from bringing issues to the attention of federal, state, or local government agencies and, if the applicable law allows, such agencies may seek relief against Sam’s Club for you.

C. Initiating a Demand for Arbitration.
Any arbitration required by the Arbitration Agreement shall be initiated by You or Sam’s Club by sending the other a written demand for arbitration (“Demand”) only via first-class mail, FedEx, or UPS within the statute of limitations period. Your Demand shall be delivered to: Sam’s Club Legal Department, 702 SW 8th Street, Mailstop 0215, Bentonville, AR 72716. The Demand must include (i) the name, telephone number, mailing address, and email address of the person or entity seeking arbitration; (ii) a statement of the legal claims asserted and the factual basis for those claims; (iii) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy; (iv) the original personal signature of the party seeking arbitration; and (v) the original personal signature of any legal counsel or other representative purporting to represent the party seeking arbitration. For purposes of this paragraph, “original personal signature” does not include any digital, scanned, electronic, copied, or facsimile signature. An original personal signature on the Demand certifies the following: (i) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (ii) the claims and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The original personal signature by the party seeking arbitration shall verify under penalty of perjury that the factual statements contained in the Demand are true and correct. Compliance with this paragraph tolls any applicable statute of limitations as to any dispute or claim subject to the Arbitration Agreement that is stated in the Demand.

D. Filing a Demand for Arbitration.
A party seeking arbitration of any dispute or claim subject to the Arbitration Agreement shall submit a copy of the Demand to the American Arbitration Association (“AAA”) sixty (60) or more days after the Demand is initiated pursuant these Terms and Conditions. The arbitration will be administered by the AAA pursuant to the current AAA Consumer Arbitration Rules, except to the extent modified by these Terms and Conditions. The AAA rules and instructions are available on the AAA website at www.adr.org/consumer.

E. Conduct of Arbitration.
In any arbitration of a dispute or claim that is subject to the Arbitration Agreement:

You or Sam’s Club may file such dispositive motions as would be permitted by the Federal Rules of Civil Procedure without obtaining permission from the arbitrator. Upon the filing of any dispositive motion, the arbitrator may stay all further action and deadlines in the arbitration until deciding such motion.
The parties shall have the right to conduct such discovery from the opposing party or any third party that is proportional to the needs of the claim or dispute, considering the importance of the issues at stake, the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Proportionality shall be decided by the arbitrator when requested by either party.
The arbitrator shall conduct any calls, conferences, or hearings by teleconference or videoconference, unless the arbitrator determines that an in-person hearing is appropriate. Any in-person hearing will be held at a location that is reasonably convenient. You and an employee of Sam’s Club shall attend all arbitrator calls, conferences, and hearings.
A party may make a written offer of judgment at least seven (7) days before the date set for the arbitration hearing.
If the arbitrator finds that a party’s claim, counterclaim, or appeal was frivolous, asserted in bad faith, or pursued for purposes of harassment, the arbitrator shall award the opposing party its attorneys’ fees, costs, and expenses and all amounts charged by AAA for the arbitration.
The arbitrator will follow these Terms and Conditions and the law. The arbitrator shall not have the authority to commit errors of law or legal reasoning. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award relief for or against anyone who is not a party, though the individual relief awarded by the arbitrator may incidentally affect non-parties.
You or Sam’s Club may appeal an arbitration award that manifestly disregards the law by filing a notice of appeal with the AAA within 30 days after an award is rendered and delivered to the parties. The appeal shall be heard by a single arbitrator unless the parties agree to a multi-arbitrator appellate panel. The arbitrator(s) assigned to the appeal shall be selected by agreement of the parties from among those on the AAA Appellate Panel. If the parties are unable to agree, AAA shall appoint the arbitrator(s) from among those on the AAA Appellate Panel. An arbitrator who previously presided over any aspect of a case shall be ineligible from serving as an appellate arbitrator in that same case. The appeal, including briefing, shall be conducted pursuant to the parties’ agreement or the appellate arbitrator(s)’ orders if the parties are unable to agree.

F. Process for Arbitration Bellwether Demands.
If twenty-five (25) or more Demands for arbitration of a dispute or claim subject to the Arbitration Agreement are initiated (i) that involve common questions of law or fact and (ii) where the initiating parties are represented by the same law firm, the same group of coordinated law firms, or the same representative, then such Demands shall be coordinated pursuant to this paragraph. The group of claimants and group of respondents shall each select five (5) Demands, for a total of ten (10), to be filed with AAA (collectively the “Bellwether Demands”). Each of the Bellwether Demands shall be assigned by AAA to a different arbitrator chosen from its national roster. After ninety (90) days from the date all Bellwether Demands have been arbitrated and any appeals exhausted, any remaining Demands subject to this paragraph may be filed with AAA. The AAA Supplementary Rules for Multiple Case Filings shall apply to the extent they are not inconsistent with this paragraph. Notwithstanding any other provision in the Terms and Conditions, You and Sam’s Club agree that a court of competent jurisdiction shall have authority to enforce the terms of this paragraph with injunctive or other relief.

G. Severability.
If (i) any dispute or claim subject to the Arbitration Agreement is filed as a class arbitration, class action, collective action, representative action, or Mass Action and (ii) if the Class Action and Mass Action Waiver is held invalid or unenforceable as to such dispute or claim, then the Arbitration Agreement does not apply to that dispute or claim and such dispute or claim must be brought in a court of competent jurisdiction. If any provision other than the Class Action and Mass Action Waiver is held invalid or unenforceable as to a particular dispute or claim, then such provision shall be severed from the Terms and Conditions, and the remainder of the Terms and Conditions shall be enforceable to the maximum extent permitted by law.

H. Applicable Law.
The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of these Terms and Conditions. If the FAA is found not to apply to any portion of these Terms and Conditions, then the applicable laws of the State of Arkansas shall apply without regard to choice-of-law principles.