These terms and conditions form the agreement (the "Agreement") between you ("You" or "Customer") and Lexmark International, Inc. and its affiliates and subsidiaries ("Company"). The Program is open to legal residents of the 50 United States (and the District of Columbia) and Canada who are 18 years and older at the time of enrollment and who are not acquiring cartridges for resale. Lexmark employees and contractors (including members of their households) are not eligible to participate in this program.
1. AGREEMENT TO TERMS. YOU AGREE TO READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE LEXMARK SMART-SUPPLY PROGRAM (referred to herein as the "Program"). If you do not agree to these terms and conditions, you may not participate in the Program. Use of the Program signifies your agreement to contract with Lexmark electronically, as well as your agreement to the terms and conditions of use set forth below
2. MODIFICATION OF AGREEMENT. Company reserves the right, at its sole and absolute discretion, to change, modify, add to, or remove any portion of this Agreement, in whole or in part, at any time. Notification of changes in the Agreement will be posted on Lexmark.com. You acknowledge and agree that any use of or other participation in the Program after such notice will be considered Your agreement to be bound by any such changes.
3. HOW THE SMART-SUPPLY PROGRAM WORKS
The new Smart-Supply program process consists of three elements:
a. Program Sign Up: Program enrollment takes place on the Smart-Supply homepage, where customer creates an account, selects user preferences and places an initial Welcome Kit order. A Welcome Kit purchase is required in order to be enrolled in the program. Upon enrollment, customer receives a program welcome email sent to the email address associated with their Lexmark.com user account.
b. Smart Supply Homepage: This serves as the tool for quick replenishment selection and reorder. The Smart Supply homepage is accessible via the Lexmark.com customer account and displays all eligible printers and their associated eligible supplies.
c. Smart Supply Replenishment: The new Smart Supply replenishment process is supported by a series of email reminders. By enrolling in Smart-Supply, customer agrees to receive emails from Lexmark.com for the purpose of the Smart-Supply program. Customer has the option of disabling email reminders via the preference settings in customer's Smart-Supply home page.
Replenishment email reminders will contain links that redirect customers to their personalized homepage where they can place quick replenishment orders. Replenishment orders receive a 10% discount (excluding the 105XL series) and free shipping. Inkjet cartridges must be purchased in any combination of two or more cartridges in order to be eligible for free shipping.
Customer must elect to save his or her credit card information in the account management settings in order to utilize the Smart-Supply program quick-reorder functionality.
There is no cost to join the Program.
Not all Lexmark printers are available for the Program. See the Smart-Supply home page for a list of eligible printers.
Only Lexmark-branded Return Program cartridges are available for purchase through the Program. These cartridges are sold at a special price subject to the restriction that the cartridge may be used only once. Following their initial use, you agree to return the empty toner cartridge to Lexmark for remanufacturing and/or recycling.
A customer can choose to cancel their participation in Smart-Supply at any time.
OTHER THINGS YOU NEED TO KNOW
Replenishment orders will be sent within 3-8 business days of your online order transaction
Inkjet cartridges must be purchased in any combination of two or more cartridges in order to be eligible for free shipping.
Standard shipping is the only shipping option eligible for free shipping.
Customers will be notified by email when a replacement cartridge is shipped.
4. RIGHT TO CHANGE PROGRAMS.
Company may change, suspend or discontinue any aspect of the Program at any time without prior notice. Company may also impose limits on certain features and services or restrict your access to some or all of the Program features without notice or liability. Company reserves the right, in its sole and absolute discretion, to refuse service or cancel Your membership, at any time, with or without cause.
5. CONSENT TO COLLECTION AND USE OF PERSONAL DATA.
If you participate in the Program, you agree that Lexmark may collect and use your personal data. Personal data that Lexmark may collect and use includes, but is not limited to your name, address, and email address. Your personal data will be transferred to, processed, and maintained in a database located in the United States. Lexmark will use your personal data to administer the Program. By participating, you further consent to the transfer of the personal data, excluding credit card or payment information to the administrators of the Program from Lexmark.com, which You provide when you purchase eligible cartridges. Lexmark will not rent, sell, or trade your personal data. Lexmark will not disclose Your personal data to any third party, except for the purpose of administering the Program. For more information on Lexmark's privacy practices, please see the Lexmark Privacy Statement.
By participating in the Program, you also agree to participate in the Lexmark Connect, which collects information on the use of your printer.
Finally, by participating in the Program, you also agree that Lexmark may combine the personal data you provide in relation to the Program with information collected by Lexmark using the Lexmark Connect program. The data will be used to help Lexmark understand how customers use their products and to design new products, marketing programs, and offerings.
6. INDEMNIFICATION FOR YOUR BREACH OF AGREEMENT.
You hereby agree to indemnify, defend and hold harmless Company, and all its officers, directors, owners, agents, employees, information providers, licensors and licensees (collectively, the "Indemnified Parties") from and against any and all liabilities and costs incurred by the Indemnified Parties in connection with any claim arising out of any breach by You of the Agreement or the foregoing representations, warranties and covenants, including, without limitation, attorneys fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and You shall not in any event settle any matter without the written consent of Company.
7. NO WARRANTY.
PROGRAM CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE TO YOU OR ACCESSED BY YOU, IS PROVIDED "AS IS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS ("WE" or "OUR") MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT OF THE PROGRAM OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE. FURTHER, COMPANY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES ARISING FROM YOUR PARTICIPATION IN THE PROGRAM, INCLUDING LOSS OF DATA OR DAMAGE TO YOUR HARDWARE AND/OR SOFTWARE. WE SHALL NOT BE LIABLE FOR THE USE OF THE PROGRAM, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. WE SHALL NOT BE LIABLE FOR ANY FAILURE OF THE PROGRAM, WHICH RESULTS FROM ACTS OR EVENTS BEYOND OUR REASONABLE CONTROL. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS STATED IN THIS SECTION 7 MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES ARISING OUT OF THE USE OF THE PROGRAM. THIS INCLUDES WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, DAMAGE TO EQUIPMENT, COMPUTER PROGRAMS, OR INFORMATION SYSTEM, OR THE LOSS OF ANY INFORMATION OR DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY'S MAXIMUM LIABILITY COLLECTIVELY SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100) FOR ANY DAMAGES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INTENTIONAL CONDUCT AND/OR GROSS NEGLIGENCE, ARISING IN CONTRACT, TORT OR OTHERWISE.
If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect.
10. GOVERNING LAW/DISPUTE RESOLUTION.
This Agreement shall be construed under, and governed by, the laws of the Commonwealth of Kentucky without regard to its choice of law principals. Any and all disputes, claims, and causes of action arising out of or connected with this Program, or any rewards obtained through the Program, shall be resolved individually, without resort to any form of class action and exclusively by arbitration under the arbitration rules of the American Arbitration Association. Arbitration and will take place in Fayette County, Kentucky; (2) any and all claims, judgments and rewards shall be limited to actual out-of-pocket costs incurred, including costs associated with participating in this Program, but in no event attorneys' fees; and (3) under no circumstances will You be permitted to seek recovery for, and You hereby waives all rights to claim, punitive, incidental and consequential damages and any other damages, other than for actual out-of-pocket expenses. You waive any and all rights to have any and all damages multiplied or otherwise increased and further waive the right to trial by jury.
11. AGREEMENT TO CONTRACT ELECTRONICALLY.
You and Company agree to form this Agreement electronically. This means that when you complete the Program registration process you acknowledge your agreement to these terms and conditions and that you are doing so with the intent to enter a contract with Company.
12. CAPACITY AND AUTHORITY TO CONTRACT.
You represent that you are of the legal age of majority in the place you sign this Agreement and, if applicable, you are duly authorized by your employer or principal to enter into this contract.
13. ENTIRE AGREEMENT/OTHER.
This Agreement is the entire agreement between you and Company relating to the subject matter of this Agreement. Except as otherwise provided for herein, these terms and conditions supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Program or any other subject matter covered by this Agreement (except to the extent such extraneous terms do not conflict with the terms of this Agreement or any other written agreement signed by you and Lexmark relating to the subject matter of this Agreement). To the extent any Company policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control. Section titles used herein are for convenience only and shall not be resorted to in construing it. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will otherwise remain in full force and effect.
14. NO TRANSFER.
You agree that your Lexmark Program account is non-transferable, and any rights to your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.