Checking the “I Agree” box displayed as part of the registration process, evidences agreement to the following terms and conditions. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, please do not check the box or participate in the THX Retailer Program.
1. LICENSE
1.1. Governing Agreement
These Terms and Conditions (or “Terms”) govern the relationship between you (“Retailer”) and THX Ltd. (hereinafter “THX” or “Us” or “We”) regarding your participation in the THX Retailer Program. In this agreement, “THX” means THX Ltd. located at 1255 Battery Street, Suite 100, San Francisco, California 94111, USA.
1.2. Privacy Policy
Participation in the THX Retailer Program is also governed by THX’s Privacy Policy, which can be found at http://www.thx.com/company-resources/thx-privacy-policy/.
1.3. Updates to the Terms and Conditions
THX reserves the right, at our discretion, to change, modify, add or remove portions of these Terms and Conditions at any time. The changes will be effective upon posting the amended Terms on the THX Retailer Program Portal. If the changes are major in nature, you may also be given additional notice, such as an e-mail message or messaging within the THX Retailer Program Portal of any changes. You will be deemed to have accepted such changes by continuing to participate in the THX Retailer Program. THX may also revise other policies, codes or rules at any time, and the new versions will be available at www.THX.com. No amendment to the Terms and Conditions shall apply to any dispute of which THX had actual notice before the date of the amendment. Changes to the Terms and Conditions will always be prospective, not retroactive.
If at any point you do not agree to any portion of the then-current version of our Terms and Conditions relating to your participation in the THX Retailer Program, you shall immediately terminate your Account and stop using the Licensed Mark.
To the extent the Terms and Conditions conflict with any other THX terms, policy, rules or codes of conduct, the terms contained in these Terms and Conditions shall govern.
1.4. Grant of a Limited License to Use the Licensed Mark
Subject to your admission to the THX Retailer Program and your agreement and continuing compliance with these Terms and Conditions and any other relevant THX policies, THX grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in Section 1.6 to reproduce the graphic representation(s) of the THX Certified Products Sold Here logo (the “Licensed Mark”) solely in connection with the promotion and advertising of THX Certified products. You agree not to use the Licensed Mark for any other purpose. You are granted no right to use any trademarks or logos of THX other than the Licensed Mark. You shall have no right to grant sublicenses to use the Licensed Mark. No rights or licenses, express or implied, are granted other than as expressly set forth above.
1.5. Account Information
When setting up an Account to participate in the THX Retailer Program, you may be requested or required to provide THX with certain personal/business information, including but not limited to your name, business address, phone number, website url, and e-mail address. This information will be held and used in accordance with THX’s Privacy Policy and relevant notices, if any, provided at the point of information collection or use. You agree that you will supply accurate and complete information to THX.
1.6. License Limitations
Any use of the Licensed Mark in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license, and may subject you to liability for violations of law.
You agree that you will:
Perform all of your sales and services (“Services”) in good and workmanlike manner, and be solely responsible for such Services;
Use all efforts to ensure preservation of the brand and image of THX, and not take any action that could negatively affect such brand and image, or tarnish THX’s reputation in the industry and with consumers;
Be a registered business with a brick and mortar business location from which you sell and display THX Certified products; and
Be an authorized retailer of a manufacturer of THX Certified products.
You agree that you will not, under any circumstances:
Use the Licensed Mark in a country embargoed by the United States or that has been designated by the U.S. Government as a “terrorist supporting” country;
Participate in the THX Retailer Program or use the Licensed Mark if you are on the U.S. Treasury Department’s list of Specially Designated Nationals or any other U.S. Government list of prohibited or restricted parties;
Sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account or the Licensed Mark to anyone without THX’s written permission;
Engage in any act that THX deems to be in conflict with the spirit or intent of the THX Retailer Program, including but not limited to circumventing or manipulating these Terms or our policies;
Participate in the THX Retailer Program or use the Licensed Mark, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
Without THX’s express written consent, modify or cause to be modified the Licensed Mark or any materials provided by THX in connection with the THX Retailer Program;
Copy, modify or distribute rights or content or THX’s copyrights or trademarks or use any method to copy or distribute the content of the THX Retailer Program except as specifically allowed in these Terms and Conditions;
Display the Licensed Mark in any manner inconsistent with these Terms and Conditions and/or in any manner which suggests or implies that your general business operations or non-THX Certified products are certified by THX;
Display the Licensed Mark in any manner which suggests that the parties hereto are related in any manner other than as THX and participant in the THX Retailer Program;
Use the Licensed Mark in any way which might endanger THX’s right in, and ownership of, the Licensed Mark, or tarnish the reputation or image of THX in the marketplace and with consumers and business partners;
File any application for the registration of the Licensed Mark or any mark, symbol or phrase, in any language, which is similar to or may be confused with the Licensed Mark, in any country; and/or
Challenge the validity of the Licensed Mark at any time.
1.7. Termination
THX reserves the right to stop offering and/or supporting the THX Retailer Program or part of the THX Retailer Program at any time either permanently or temporarily, at which point your license to use the Licensed Mark will be automatically terminated. Upon termination, you shall immediately cease using the Licensed Mark and remove all uses of the Licensed Mark from your website, marketing collateral, and business location.
1.8. Ownership
Retailer acknowledges that THX (together with its suppliers) is the exclusive owner of the Licensed Mark, sales guide, sales and marketing support collateral, and all other materials provided by THX (the “IP”), and that THX owns all intellectual property rights included in such IP. Use by Retailer of the Licensed Mark and IP shall inure to the sole benefit of THX and nothing herein shall be construed as a grant to Retailer of any ownership rights in or to the Licensed Mark or the IP.
2. RELATIONSHIP OF THE PARTIES
Use by Retailer of the Licensed Mark signifies the fact that Retailer sells THX Certified products, and nothing more. Retailer acknowledges and agrees that nothing in these Terms and Conditions shall be construed to place the parties in the relationship of partners, independent contractors, or joint venturers; and neither party shall have any right to obligate or bind the other in any manner. Retailer agrees that it will not hold itself out as an authorized agent with power to bind THX in any manner.
3. NO THIRD PARTY BENEFICIARIES
Notwithstanding anything to the contrary herein, no provision of these Terms and Conditions are intended or shall be construed to confer upon or give to any person or entity other than you or THX any rights, remedies or other benefits under or by reason of these Terms and Conditions.
4. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
4.1. DISCLAIMER OF WARRANTIES
You acknowledge and agree that the Licensed Mark and IP are being provided “AS IS.” You are solely responsible for the performance of your Services, and THX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE LICENSED MARK OR IP PROVIDED TO YOU.
4.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE LICENSED MARK OR IP OR FROM PARTICIPATION IN THE THX RETAILER PROGRAM UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THX SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE LICENSED MARK OR IP OR YOUR PARTICIPATION IN, OR INABILITY TO PARTICIPATE IN, THE THX RETAILER PROGRAM.
4.3. Indemnification
You agree to indemnify, save, and hold THX, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Licensed Mark or IP, any violation by you of these Terms and Conditions, or any breach of the representations, warranties, and covenants made by you herein. THX reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify THX, and you agree to cooperate with THX’s defense of these claims. THX will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of your participation in the THX Retailer Program.
5. DISPUTE RESOLUTION
5.1. General
If a dispute arises between you and THX, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and THX agree that We will resolve any claim or controversy at law or equity that arises out of these Terms and/or your participation in the THX Retailer Program in accordance with one of the subsections below or as We and you otherwise agree in writing. Before resorting to these alternatives, We strongly encourage you to first contact Us directly to seek a resolution by going to Customer Support. THX Customer Support can be reached at retailers@thx.com and (415) 492-3907 with any questions, complaints, or claims with respect to the THX Retailer Program. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
5.2. Law and Forum for Legal Disputes
This agreement and any dispute arising out of or related to it or the THX Retailer Program shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions. You agree that any claim or dispute you may have against THX must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
6. GENERAL PROVISIONS
6.1. Assignment
THX may assign or delegate these Terms and Conditions, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms and Conditions without THX’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.
6.2. Supplemental Policies
THX may publish additional policies related to specific services such as forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms and Conditions.
6.3. Entire Agreement
These Terms and Conditions, any supplemental policies and any documents expressly incorporated by reference herein, contain the entire understanding of you and THX, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Us with respect to the THX Retailer Program.
6.4. Severability
You and THX agree that if any portion of these Terms and Conditions is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect.
6.5. Language of the Terms and Conditions
If We provide you with a translation of the English language version of these Terms and Conditions or any other policy (collectively “THX Policies”), then you agree that the translation is provided for informational purposes only and does not modify the English language version of the THX Policies.
In the event of a conflict between a translation of the THX Policies and the English version, the English version of the THX Policies will control.
6.6. No Waiver
The failure of THX to require or enforce strict performance by you of any provision of these Terms and Conditions or failure to exercise any right under them shall not be construed as a waiver or relinquishment of THX’s right to assert or rely upon any such provision or right in that or any other instance.
The express waiver by THX of any provision, condition, or requirement of these Terms and Conditions shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Except as expressly and specifically set forth in this these Terms and Conditions, no representations, statements, consents, waivers, or other acts or omissions by THX shall be deemed a modification of these Terms and Conditions nor be legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of THX.
6.7. Notices
We may notify you via postings on the THX Retailer Program Portal, and via e-mail or any other communications means to contact information you provide to Us. All notices given by you or required from you under these Terms and Conditions shall be in writing and addressed to: THX Ltd., Attn: LEGAL DEPARTMENT, 1255 Battery Street, Suite 100, San Francisco, California 94111, USA.
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
6.8. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms and Conditions to THX are of a unique and irreplaceable nature, the loss of which shall irreparably harm THX and which cannot be replaced by monetary damages alone. Accordingly, THX shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the THX Retailer Program, exploitation of any advertising or other materials issued in connection therewith, and agree to limit your claims to claims for monetary damages, limited by Section 4.2 (if any).
6.9. Force Majeure
THX shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of THX, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond THX’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
Rev 092713