STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS
IN THE INVESTIGATION OF: Case No. L14-3-1081 SYSTEMAX, INC. and TIGERDIRECT, INC.
Respondents ------I ASSURANCE OF VOLUNTARY COMPLIANCE
I. PURSUANT to the provisions of Chapter 501 , Part II of the Florida
Statutes, Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"), the
Office of The Attorney General, Department of Legal Affairs (hereinafter referred to as the "Department"), caused an investigation to be made into certain acts and practices of Systemax, Inc. and Tiger Direct, Inc. (collectively hereinafter,
"Respondents").
2. Respondent Tiger Direct, Inc. ("TD") is a Florida corporation with its mailing address and principal place of business registered at 7795 West Flagler
Street, Suite 35, Miami, Florida 33144. TD is a reseller of various products including, but not limited to, electronics, computers and computer related goods, and markets and resells those products through its online consumer shopping website, TigerDirect.com (the "Website") and other sales channels, including its
1 Initials a:- three remaining retail stores located in Jefferson, Georgia; Miami, Florida; and
Guaynabo, Puerto Rico.
3. The Website operates under a registered Trademark owned by TD.
4. Respondent Systemax, Inc. ("Systemax") is a Delaware Corporation with its mailing address and principal place of business registered at 11 Harbor
Park Drive, Port Washington, New York 11050. Systemax is the ultimate parent company of Respondent TD.
5. Respondents make no admission that Respondents violated FDUTPA or any other law, statute or regulation applicable to Respondents or enforced by the
Department (collectively, the "Acts"), and have timely complied with the
Department's requests for information and have been fully cooperative during the
Department's investigation. Nonetheless, in order to promote consumer confidence, avoid the expenses associated with unnecessary litigation, and to amicably resolve the Department's investigation of Respondents, the Respondents are prepared to enter into this Assurance of Voluntary Compliance (hereafter referred to as the "AVC").
6. Pursuant to Section 501.207(6), Florida Statutes, the Department agrees to accept this A VC in termination of its investigation as to Respondents solely as to the acts and practices that were the subject of the investigation, as contained in Exhibit A.
2 Initials : ~ 7. The provisions of the Settlement Agreement which was fully executed on October 26, 2010, in Case No.:09-65667CA23 Office of the Attorney General,
Department of Legal Affairs, State of Florida vs. Onerebate.Com, Tigerdirect Inc., and Systemax Inc., remain in place and unchanged by this AVC.
STIPULATED DEFINITIONS & FACTS
8. The terms used herein shall have the following meanings:
a. "Online Order Submission" is defined as a consumer's initial
submission of an order for goods to the Respondent TD.
b. "Online Order Confirmation" is defined as Respondent TD's
online confirmation (i.e. not acceptance) of the receipt of
consumer's Online Order Submission to the Respondent TD.
c. "Purchase Payment" is defined as a transaction in which a
consumer's credit card, and/or bank account is debited and/or
charged for a consumer's accepted Online Order Submission
and such accepted Online Order Submission is believed to have
been shipped and billed complete.
d. "Order Details" is defined as the notice which provides a
description of the goods being ordered by a consumer that
appears prior to a consumer's Online Order Submission.
3 Initials: ~ e. "Unordered Goods Shipped in Error" means duplicate
goods, additional or wrong products, shipped in error to a
customer of Respondents intended to fill a customer order. f. "Service Track" means an entry recorded by TD' s Customer
Service Representatives in TD' s internal system in the event a
customer receives Unordered Goods Shipped in Error. Such
record is primarily used for following up with the recipient of
the Unordered Good( s) Shipped in Error. g. "Bill Only Order" means an order created in the customer's
account for the purpose of accounting for the Unordered Goods
Shipped in Error and also used to create an invoice for such
Unordered Goods Shipped in Error, when applicable. h. "Clear and Conspicuous" including "Clearly and
Conspicuously") means that a statement, representation, claim,
disclosure or term being conveyed is presented in a way that
complies with the requirements of the Federal Trade
Commission Act (or guidance published by the Federal Trade
Commission) and Florida law (or guidance or opinions
published by the Florida Office of the Attorney General). The
following, without limitations, shall be considered together, as
4 Initials: ~ applicable, in determining whether a statement, claim, term, or representation is clear and conspicuous:
1. Whether it is of sufficient prominence in terms of font,
size, placement, color, contrast, duration of appearance,
sound and speed, as compared with accompanying
statements, claims, terms, or representations so that it is
readily noticeable and understandable, and likely to be
read by the person to whom it is directed; and if written
or conveyed electronically, that it is not buried on the
back, bottom, or in the middle of a wall of text, or in a
hyperlink (it being acknowledged that use of hyperlinks
is not prohibited, as provided below), or in unrelated
information or placed on the page where a person would
not think it important to read;
ii. Whether it is visually unavoidable;
111. Whether it is presented to the person(s) to whom it is
directed in a coherent and meaningful sequence with
respect to other terms, representations, claims, or
statements being conveyed;
5 Initials: ~ iv. Whether it is near to or in close proximity to the
statement, representation, claim, or term it clarifies,
modifies, explains, or to which it otherwise relates.
Representations and/or disclosures that are accessed or
displayed through hyperlinks, interstitials, pop-ups, or
similar means may not be considered in close proximity,
unless such access or display referencing such
representations and/or disclosures are clearly and
conspicuously displayed;
v. Whether it contradicts, or renders ambiguous or
confusing, any other information with which it is
presented;
vi. Whether, if it is oral, it is at an understandable pace in the
same tone and volume as the sales offer;
vu. Whether it appears for a duration sufficient to allow
listeners or viewers to have a reasonable opportunity to
notice, read, or otherwise understand; vni. Whether the language and terms used are commonly
understood by the consumer in the context in which they
are used;
6 Initials: 1x. Whether it is presented in such a way as to be free of
distractions, including, but not limited to, sounds,
graphics, text or other offers that compete for the
attention of the consumer; and/or
x. Whether, in advertising on the Internet (including
representations and/or disclosures made through
hyperlinks, or a permissible reference to it as provided
above), is visually unavoidable and is made on the same
page as any other term, statement, claim or representation
that it modifies ( e.x. if the hyperlink provides
information regarding TD's policy relating to refunds and
returns for a specific item, or modifies TD' s standard
policies, the hyperlink shall be displayed clearly and
conspicuously on the product's dedicated page on the
Website (i.e. the Product Detail Page) and/or on TD's
Checkout Page, and shall not be buried on the back,
bottom, or in the middle of a wall of text, or in the middle
of unrelated information).
9. The Department and Respondents hereby agree and stipulate to the
following:
7 Initials: ~ a. During the time frame beginning at least February 2011,
Respondent TD engaged, in the business of marketing
and selling various products including, but not limited to,
electronics, computers and computer related goods to
consumers in Florida and elsewhere, on the Website and
other sales channels, including its retail store operations
(which closed in Spring 2015, except for the three
remaining stores). b. The Department investigated allegations that
Respondents committed unfair or deceptive acts toward
consumers in the State of Florida and elsewhere in
connection with the acts and practices described in a list
of consumer complaints provided to Respondents,
identified as Exhibit A. c. The Respondents became aware of the Department's
formal investigation in August 2014. The Respondents
cooperated fully with the Department by reviewing the
complaints and providing documents and infmmation
responsive to the Department's requests as contained in
8 Initials: £- Exhibit A. The Respondents make no admission of
violating any of the Acts.
10. This A VC is based upon the stipulated facts set forth herein. This
AVC is not, and shall not in any event, be construed, deemed to be, and/or used as an admission or evidence of the validity of any claim that the Department has or could assert against Respondents, or an admission of any alleged wrongdoing or liability by them in civil, criminal, or administrative court, administrative agency, or other tribunal anywhere in the country. The agreement of Respondents to comply with the provisions of this AVC is not an admission that Respondents ever engaged in any activity contrary to any law. The parties acknowledge that there has been no finding of fact, law or liability in favor of or against any Respondent, and that the Respondents enter into this AVC to avoid the expense, inconvenience, and uncertainty of legal proceedings. The Department shall not be estopped from taking further action in this matter should the facts described herein be shown to be incorrect in any material way or should this AVC not be complied with in full by
Respondents. The parties agree that this AVC has been entered into based on the truthfulness and accuracy of the information provided by Respondents.
9 Initials: ~ TERMS
11. Respondents shall implement all processes and/or procedures as necessary to comply with the terms in Paragraphs 12 through 15 of this A VC within one hundred twenty days (120) days of the Effective Date of this AVC.
12. TD represents and warrants that (a) it will use commercially reasonable efforts to maintain adequate process to ensure that when it sponsors and advertises a rebate, it will provide (or will cause the applicable rebate processing company to provide) a timely notice of denial of a rebate submission, when the rebate submission is denied due to insufficient documentation or other deviation from the terms of the advertised rebate and (b) in the event TD sponsors and advertises a rebate, which by its advertised terms expressly provides consumers an additional grace period of time to resubmit rebate documents after the submission deadline (assuming that the consumer's initial submission is received within the valid rebate submission period, but failed to include documents deemed sufficient by TD or the applicable rebate processing company), TD will use commercially reasonable efforts to maintain adequate process to honor the grace period as advertised in the terms of the applicable rebate. It is acknowledged however, that
TD is under no obligation to provide grace periods, except as when advertised and that such advertisements/grace periods may be cancelled at any time (except as
10 Initials: £ respects consumers who have already purchased an item with a rebate and sought rebates in reliance on such advertisement).
13 . TD represents and warrants that it will use commercially reasonable efforts to only advertise an item on the Website as being in stock when it has a reasonable basis to believe that the item is in stock and/or available for shipment by TD or its network of third party distributors/suppliers ("in stock"); it being acknowledged that reasonable delays are expected to occur in the ordinary course of business (ex. Delays due to technological and human limitations) when updating an item's availability on the Website, but generally do not exceed seventy-two (72) hours. Notwithstanding the foregoing, TD may advertise goods that are not in stock, such as by offering preorder or backorder sales, as long as TD clearly and conspicuously discloses the item's anticipated availability. Further, in the event an
Online Order Confirmation includes an item represented as being "in stock" and such item subsequently becomes out of stock, TD will use commercially reasonable efforts to maintain adequate process to notify the affected consumer within seventy-two (72) hours after TD becomes aware that such item is no longer in stock.
14. TD represents and warrants that as of the Effective Date of this AVC, when a consumer orders an item from the Website using a credit card and TD (or
TD's designated payment processor) is responsible for processing such payment,
11 Initials: ~ TD does not charge the consumer until it has a reasonable basis to believe the item ordered is picked, packed and available for shipment. This practice is subject to change (ex. Changes/improvements in technology, industry or credit card supplier/payment processor practices) and TD reserves the right to charge the consumer for an order in accordance with applicable law. Notwithstanding the foregoing, TD makes no representations or warranties with respect to the timing of the consumer being charged, when payment is made using a third party (ex.
PayPal) or when a consumer orders from a third party website (ex. Amazon), over which TD has no functional control or practical ability to control.
15. TD, including its representatives, agents, employees, successors, assigns, independent contractors, or any other person who acts under, by, through, or on behalf of TD, directly or indirectly, or through any corporate or other device
(except for those vendors or other third parties who provide services to TD or to
TD's customers or consumers such as, but not limited to, UPS, PayPal, similar delivery and/or payment service providers, etc., and over which TD has no functional control or practical ability to control):
a. Shall comply with the Florida Deceptive and Unfair Trade Practices Act, Chapter 501 , Part II, Florida Statutes;
b. Shall clearly and conspicuously disclose to consumers on the Website, the terms and conditions of TD's policy relating to refunds, returns, and typographical errors. Respondents may use hyperlinks to provide such disclosures, as long as the hyperlinks are clearly and conspicuously displayed
12 Initials: k on TD's Website (before requesting and/or obtaining the customer's payment information); c. Shall use commercially reasonable efforts to clearly and conspicuously disclose to consumers the material terms (including rebate redemption instructions) of a rebate advertised on the Website as required by applicable law. Respondents may use hyperlinks to provide such disclosures, as long as the hyperlinks are clearly and conspicuously displayed on TD' s Website. In the event a customer of Respondent TD claims that the customer has not received their rebate within the time frame specified in the rebate's terms, Respondent TD shall disclose the name of the rebate sponsor to its customer upon the customer's request, provided that such customer was eligible for the rebate; d. Shall use commercially reasonable efforts to provide reasonable assistance to consumers who contact TD to obtain information relating to the consumer's rebate. In the event TD is not the rebate sponsor, TD will contact the rebate sponsor and/or the rebate processor, on the consumer's behalf, and use commercially reasonable efforts to obtain information relating to the consumer' s rebate; e. Shall use commercially reasonable efforts to ensure that the material terms and conditions related to the items advertised on the Website, including, but not limited to, the item's specifications and refund policy are clearly and conspicuously disclosed to such consumer. Respondents may use hyperlinks to provide such disclosures, as long as the hyperlinks are clearly and conspicuously displayed on TD's Website, prior to TD's acceptance of the consumer's Purchase Payment; f. Shall use commercially reasonable efforts to maintain adequate process to not unilaterally cancel consumer orders without providing consumers with notice, concurrently or promptly following such cancellation; g. Shall use commercially reasonable efforts to ensure that Respondents' Customer Service Representatives are properly trained regarding Respondents' standard operating procedures concerning Unordered Goods Shipped in Error, and shall use commercially reasonable efforts to ensure such standard operating procedure is consistent with the terms of this AVC. In the event TD decides not to allow the customer to keep the Unordered
13 Initials: k Goods Shipped in Error free of charge, Customer Service Representatives will: (i) Open a Service Track; (ii) Use commercially reasonable efforts, after opening the Service Track, to contact the recipient of the Unordered Goods Shipped in Error via phone calls or electronic mail in order to make arrangements with the recipient of the Unordered Goods Shipped in Error to have the good(s) returned without charge; by ( 1) providing a prepaid method for the recipient to return the Unordered Goods Shipped in Error or (2) reimbursing the recipient for the cost of returning the Unordered Goods Shipped in Error when providing a prepaid method is not possible; (iii) If the above commercially reasonable efforts are unsuccessful, then Respondents shall contact the recipient of the Unordered Goods Shipped in Error via written correspondence return receipt requested twice with at least ten (10) working days between each correspondence to have the good( s) returned without charge; by (1) providing a prepaid method for the recipient to return the Unordered Goods Shipped in Error or (2) reimbursing the recipient for the cost of returning the Unordered Goods Shipped in Error when providing a prepaid method is not possible; (iv) The written correspondence shall include a notice that if the unordered good is not returned to Respondents within thirty (30) working days, then Respondents will create a Bill Only Order and send the Bill Only Order to the consumer requesting payment within thirty (30) additional working days); (v) After the second ten-day written notice is sent to the recipient of the Unordered Goods Shipped in Error and the additional efforts to contact the consumer have been exhausted and the Unordered Goods Shipped in Error are not returned or paid for by the recipient, Respondents may create and send a Bill Only Order requesting payment, which may include a notice that if the Unordered Goods Shipped in Error are not returned or paid for within thirty (30) additional days thereafter, the payment will be considered late; and (vi) Provided that Respondents adhere to the procedures set forth in this Section 15(g)(i)-(v), but the Unordered Goods Shipped in Error are not returned or paid for, Respondents may use any
14 Initials: A-- legal and commercially reasonable efforts to collect on the debt. h. Shall ensure that (i) TD's phone number is clearly and conspicuously posted on TD's Website, allowing customers to contact TD to request a return or obtain the status of an item returned to TD, (ii) a link to TD's standard return policy is clearly and conspicuously displayed on TD's Website, and (iii) in the event the return policy for an item advertised on the Website differs from TD's standard return policy for that item, TD will clearly and conspicuously disclose the terms of return for such item on the item's dedicated page on the Website (i.e. the Product Detail Page);
1. Shall use commercially reasonable efforts to authorize and/or provide refunds to consumers:
1. Within seven (7) working days from the date the return process is completed (i.e. inspection and determination of eligibility and conformance with policy, the "Return Process") and Respondent TD consequently accepts the return, provided that such goods were eligible for return and were returned in accordance with Respondent TD's return policy (including that the good was in the condition required.) The Return Process shall not take more than fifteen (15) working days from the date Respondent TD received the returned good from the consumer;
11. Within seven (7) working days of the date TD cancelled the good/order, provided that such good/order was cancelable and/or had not already shipped to the customer, and allowing for and subject to the period of time the payment processor or third party (ex. marketplace) requires to effect payment; and
111. Within seven (7) working days for goods/orders otherwise not received/delivered, following TD's investigation and verification of non-receipt/non-delivery which shall not exceed fifteen (15) working days from the date Respondent TD is informed of the non receipt/non-delivery; provided however, that if the consumer takes title and assumes the risk of loss at the time of shipment (ex. consumer elects to ship using their own account or other shipping carrier), then TD shall not be required to provide any refund if the good/order is not received/delivered;
15 Initials : ~ J. Shall accept the return of a good that is advertised as being eligible for return to TD, when such good is properly returned in full accordance with return requirements such as, but not limited to, being returned within the eligible return period; k. Shall clearly and conspicuously disclose to consumers on the Website, the terms and conditions of TD's policy relating to the non-payment/non reimbursement of shipping charges when returning defective goods. Respondent may use hyperlinks to provide such disclosures, as long as the hyperlinks are clearly and conspicuously displayed on TD's Website;
1. Shall use commercially reasonable efforts to maintain adequate process to remove from TD' s contact list consumers who have properly requested not to be contacted; provided that the foregoing shall not prohibit Respondents from contacting such consumer if permitted by law (ex. Contact relates to a transaction, consumer opted in to receive contact, etc.); m. Shall clearly and conspicuously disclose if a good is refurbished on the Product Detail Page; n. Shall continue providing trammg programs to all relevant employees of Respondents, including, but not limited to, providing training on clear and conspicuous disclosures to consumers regarding TD's terms and conditions (e.x. return policy, refund policy, reimbursement policy, etc.); so that Customer Service Representatives' oral representations, if any, are consistent with Respondents' written disclosures and policies and are also consistent with all provisions of this AVC; and so that Customer Service Representatives are trained on the Standard Operating Procedures regarding Unordered Goods Shipped in Error as provided in Paragraph 15(g); o. Shall continue providing training programs to all relevant employees of Respondents regarding the terms and conditions of this AVC, including, but not limited to, customer service and internal handling of consumer complaints, including the issuance of refunds consistent with Respondents' policies and the terms of this AVC; and p. Shall maintain a Customer Support telephone number and/or mail and email addresses for consumers to file complaints, and shall use commercially
16 Initials: ~ reasonable efforts to ensure all consumer complaints are responded to within five (5) working days.
BUSINESS RECORDS
16. Respondents shall preserve and retain all relevant business and financial records relating to the acts and practices at issue in this A VC and other information reasonably sufficient to establish compliance with the provisions of this AVC for two (2) years from the Effective Date of this A VC, and shall provide reasonable access to such documents and information to the Department reasonably promptly upon written request.
CUSTOMER RECORDS
I 7. There have been no findings against Respondents regarding any breach or misuse of consumer information and/or data. Respondents agree to use commercially reasonable efforts to maintain adequate process to ensure that any personal or financial information of consumers, in the custody, control or possess10n of Respondents shall be securely stored in such a manner as to reasonably protect against inadvertent disclosure of consumer information.
Respondents, including any representatives, agents, employees, successors, and assigns, shall not, directly or indirectly, market, sell, share or otherwise disclose the name, contact information, or financial information of any consumer or customer in the care, custody or control of Respondents except as allowed by applicable State and Federal law.
17 Initials : ~ WRITTEN NOTICE
18. Respondents shall use commercially reasonable efforts to make the substantive terms of compliance and conditions of this AVC known to any managers, members, officers, directors, employees, agents, independent contractors, telemarketers, or any other persons that are substantially affected by the terms of compliance and conditions of this A VC and are directly involved in the activities of Respondents that were subject to the Department's investigation and covered by this AVC. The obligations imposed by this AVC are continuing in nature and shall apply to Respondents' successors and assigns, as well as any and all new officers, employees, agents, representatives or any other persons who become engaged by Respondents or any new business entities created by
Respondents.
19. Respondents shall not affect any change in the form of doing business or the organizational identity of any of the existing business entities or create any new business entities in order to avoid the obligations and terms and conditions set forth in this AVC. Notwithstanding the foregoing, it is understood that Respondent
TD's closing of some or all of its retail store operations shall not be considered a violation of this provision.
18 Initials : ~ CONSUMER RESTITUTION
20. Consumer Restitution.
A. The consumers listed in the consumer spreadsheet compiled by the Parties and identified as Exhibit A have filed complaints relating directly or indirectly to Respondents with the Department, the Better Business Bureau, or another entity (the "prior complaints" or "prior complainants"). The
Department provided Respondents with a list of consumer complaints (the
"complaints"), identified in Exhibit A. Respondents cooperated fully with the
Department by reviewing the complaints and providing documents and information for each of the complaints responsive to the Department's requests
(the "responses"), also identified in Exhibit A. Respondents submitted an affidavit, identified as Exhibit B, attesting to the responses included in Exhibit
A, including rebates and/or refunds provided to consumers prior to the execution of this AVC. Based upon the representations set forth in Exhibit A, the parties agree that no refunds or other consumer redress is due with respect to any of the consumer complaints listed in Exhibit A. The Department shall not be estopped from taking further action in this matter should the responses provided by Respondents herein be shown to be inaccurate in any material way, it being acknowledged that the Department has no reason to believe at this time that any such responses are materially inaccurate.
19 Initi als : ~ B. The Department will provide Respondents with remammg consumer complaints that the Department received through the duration of its investigation (the "Additional Complaints") within seven (7) working days of the Execution Date of this A VC, for which a specific response is requested. The
Respondents will review and provide written responses as to the outcome of the
Additional Complaints (the "Additional Responses") and an affidavit attesting to the truthfulness of the Additional Responses within one hundred and twenty
(120) days after Respondents' receipt of the Additional Complaints, or such longer period as may be reasonably requested by Respondents and agreed to by the Department. The Department shall not be estopped from taking further action regarding the Additional Responses provided by Respondents should the
Additional Responses provided by Respondents be shown to be inaccurate in any material way or should the Respondents fail to assist consumers in a manner the Department deems consistent with the requirements of FDUTP A or applicable Florida law.
C. Respondents assert that Exhibit A, the responses, the Additional
Responses, as well as all other documents and information provided by
Respondents to the Department, relating to this AVC or the negotiations resulting in this A VC, contain confidential and/or proprietary information,
20 Initials: ~ exempt from Florida public records law. The Department has made no
determination regarding the validity of Respondents' assertions.
ATTORNEYS' FEES AND COSTS
21. Respondents shall contribute sixty-two thousand five hundred dollars
($62,500.00) to the Department pursuant to Section 501.2105, Florida Statutes, in
payment of attorneys' fees, costs and investigative fees regarding this investigation
and costs and investigative fees of reviewing the additional responses, payable by
cashier's check or other certified funds payable to the Department of Legal
Affairs Revolving Trust Fund. The payment due hereunder, along with the
original A VC bearing the notarized signature of Respondents shall be delivered to
the attention of Assistant Attorney General Ryann Flack, Office of Attorney
General, Consumer Protection Division, 444 Brickell Avenue, Suite 650, Miami,
Florida 33131.
CIVIL PENALTIES
22. Subject to Respondents ' full, complete and timely compliance with
the terms of this A VC, the Department is waiving and releasing pursuant to this
settlement, and in consideration of the Respondents' performance hereunder, the
civil penalties that could otherwise be due for the acts and practices at issue in this
AVC under Sections 501.2075 or 501.2077, Florida Statutes, of up to $15,000.00
21 Initials: ~ per violation. The imposition of any such penalties or other liability shall be subject to (1) a future determination made by a court of competent jurisdiction that such a violation has occurred, or (2) the agreement of Respondents in settlement of any such claims made by the Department. In consideration for the fulfillment of the various obligations set forth above, no penalties or additional monetary obligations are to be imposed under this A VC.
23. The original A VC bearing the notarized signatures of Respondents and the payment due hereunder will be delivered to the attention of Assistant
Attorney General Ryann Flack, Office of Attorney General, Consumer Protection ' Division, 444 Brickell Avenue, Suite 650, Miami, Florida 33131.
POTENTIAL FUTURE VIOLATIONS
24. It is hereby agreed by the parties that any failure to comply with the terms and conditions of this AVC by Respondents is by statute prima facie evidence of a violation of Chapter 501 , Part II, Florida Statutes, and will subject
Respondents to any and all civil penalties and sanctions authorized by law, including attorneys' fees and costs. It is acknowledged that due to the high volume nature of Respondents' business, as well as the possibility of technical or human error, that occasion~! and/or sporadic future occurrences of the types of events described and/or proscribed above and/or the types of events investigated by the
Department could occur. Therefore, for a period commencing upon the Effective
22 Initials: ~~- Date and terminating two (2) years thereafter, for the purpose of resolving disputes with respect to Respondents' compliance with this AVC, should the Department have a reasonable basis to allege that Respondents have failed to comply with the terms of this AVC, then the Department will notify Respondents in writing of the specific failure of compliance, identify with particularity the term(s) of this A VC that the practice appears to violate, and provide Respondents with thirty (30) days to respond to the notification. Nothing in this provision shall preclude the
Department from instituting any action or proceeding to enforce this AVC in accordance with Florida Statutes, §501.207(6). In the event that a court of competent jurisdiction makes a determination that a violation of any condition of this A VC has occurred, then Respondents shall be liable for a consent judgment of up to $10,000.00 per violation as authorized by Florida Statutes, Section 501.2075, or up to $15,000.00 per violation as authorized by Florida Statutes, Section
501.2077, as well as attorneys' fees and costs and any other legal or equitable relief as the court may determine appropriate. The Department reserves the right to seek Chapter 501 penalties for any future violation(s) of Chapter 501, Part II,
Florida Statutes.
EFFECTIVE DATE
25. The effective date of this A VC shall be the date of its execution by all parties. Acceptance by the Department shall be established by the signature of the
23 Initials: ~ Director, Consumer Protection Division, Department of Legal Affairs, Office of
the Attorney General. This AVC shall become effective on the "Effective Date," which shall be the date on which the Director accepts and executes this AVC. The receipt by the Department of any monies pursuant to the A VC does not constitute
acceptance by the Department, and any monies received shall be returned to
Respondents if this AVC is not accepted and fully executed by the Department.
MISCELLANEOUS
26. It is further agreed that facsimile copies of signatures and notary seals may be accepted as original for the purposes of establishing the existence of this
agreement, and this AVC may be executed in counterparts the compilation of which shall constitute the full and final agreement.
27. Notice to any of the parties to this AVC as may be required shall be made by certified mail at the addresses set forth below unless any party notifies the
other parties in writing of another address to which notices should be provided.
To Respondents:
Eric M. Lerner Senior Vice President & General Counsel Systemax, Inc. 11 Harbor Park Drive Port Washington, New York 11050
To the Department:
Ryann Flack, Assistant Attorney General Consumer Protection Division
24 Initial s : ~ Office of the Attorney General 444 Brickell Avenue, Suite 650 Miami, Florida 33131
28. Nothing in this AVC is to be construed as a waiver of any private rights of any person or release of any private rights, causes of action, or remedies of any person against Respondents or any other person or entity.
29. It is a condition of each of the Department's obligations under this
AVC that Respondents have fully and timely performed all of Respondents' obligations previously due under this AVC.
30. This A VC is the final, complete, and exclusive statement of the parties' agreement on the matters contained in this AVC , and it supersedes all previous negotiations and agreements other than the prior Settlement Agreement which remains in full force and effect and is unchanged by this AVC. Other than any representation expressly stated in this AVC, the parties have not made any representations or warranties to each other, and neither party's decision to enter into this A VC is based upon any statements by the other party outside of those in this AVC.
31. It is further agreed that the parties jointly participated in the negotiation of the terms of this A VC. No provision of this A VC shall be construed for or against any party on the grounds that one party had more control over establishing the terms of this A VC than another.
25 Initials: ~ 32. By my signature, I hereby affirm that I have authority to execute this
AVC on behalf of the party indicated and, to the extent I am acting in a
representative capacity, I am acting within the scope of my authority as corporate representative, as-w0l.I-as-tn-m-y-iflffi.v-icltta1-eftpacity;-and that by my signature I am .ck-
4-binding HtySelf.lift& the businesses/parties indicated to the terms and conditions of ~~ this AVC.
SIGNATURES ON SEPARATE PAGE(S)
26 Initials : ~ s~s~ ,~ T1r-\~'*"-, ~t.. I '"" -...n By: ~----"~=----=---'--~~~~~~~~~~~- ~~~ \) ~ \>~\~ ~ ~'i)~)-c- . k~ ~ T\~ ~' J:...<-. STATE OF FLORIDA ) ) ss: COUNTY OF DADE )
BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, personally appeared E"" ~~ ~"-~ , who produced o.. N·'t· \)\w, L~ as identification. ~e who acknowledged before me that t he executed the foregoing instrument for the purposes therein stated on the ~ day of ~~~ , 2015.
Personally known__ or Produced Identification / (check one)
Type of Identification Produced: N'f ~\,~ l~~ l COUNSEL -FO! ~ By: ~~ Eric M. Lerner Senior Vice President & General Counsel Systemax, Inc. 11 Harbor Park Drive Port Washington, New York 11050
27 Initials: k-- OFFICE OF THE A ,-TORNEY GENERAL
By: Rit hard P. Lawson / Director, Consumer Protection Division Department of Legal Affairs Office of the Attorney General 107 W Gaines Street Tallahassee, Florida 32399 (850) 414-3824 ~ Dated: 9/ z5// )
By: Ryann Flack Florida Bar No.: 0018442 Assistant Attorney General [email protected] Viviana Escobar Florida Bar No.: 0106610 Assistant Attorney General [email protected] 444 Brickell Avenue, Suite 650 Miami, Florida 33131 Tel: (305) 377-5850 ext. 562 Fax: (305) 349-1403
Dated: 9/;r;-/15•
28 Initials: -- EXHIBITB TO ASSURANCE OF VOLUNTARY COMPLIANCE
STATE OF FLORIDA ) ) COUNTY OF MIAMI-DADE )
AFFIDAVIT
I. My name is Tony Jones. I am, and at all relevant times have been, a resident of the State of Florida and the Executive Vice President of Operations & Services of Tiger Direct, Inc., an active Florida corporation ("Tiger Direct"). I have personal knowledge of the matters set fo1th herein and I am competent to give this affidavit.
2. This Affidavit is given pursuant to Paragraph 20A of the Assurance of Voluntary Compliance (the "AVC") entered into by Systemax, Inc., an active Delaware corporation, and Tiger Direct ("Respondents") with the Consumer Protection Division of the Office of the Attorney General, Department of Legal Affairs for the State of Florida under Case Number L 14-3-1081 to which this Affidavit is attached.
3. To the best of my knowledge, I attest that the responses described in "Tiger Direct's Responses" contained in Exhibit "A" to the AVC are true, accurate, and complete based upon the information contained within the books and records of the Respondents, which books and records are to the best of my knowledge, prepared, compiled and maintained in the ordinary course of business, including but not limited to the rebates and/or refunds provided to consumers prior to the execution of this AVC.
4. To the best of my knowledge, I declare that the foregoing is true and correct.
5. I am signing this affidavit in my representative capacity for Tiger Direct, and not in any personal capacity.
~~! ~_ _ _ -______Tony Jones, Executi~~~s ident Operations & Services
BEFORE ME, the undersigned authority, personally appeared, Tony Jones, as the Executive Vice President for Tiger Direct, Inc., who is known to me to be the person described and after being duly sworn and deposed, executing the foregoing instrument, upon his personal knowledge and acknowledges to and before me that same was/is true and correct to the best of his knowledge and belief.
SWORN TO AND SUBSCRIBED BEFORE ME, this l.L. day of ~Yl Jut 2015.
Print Name: /.L.._-r,.._ ~ ':1.. j'l'f'l!CC) Notary Public, State of __7 ,L__ _ My Commission Expires: t:L/1D{t7
....-;, \-;A1'.'HJ;;;~ LISA BUCHILLON ;:f}:.).';;:*\ MY COMMISSION nEE 864997 ~.~:;,.-J EXPIRES: February 10, 2017 '•,:t:.'if. ,\~~~-- Bonded Thru Notary Public Underwriters EXHIBITB TO ASSURANCE OF VOLUNTARY COMPLIANCE
STATE OF NEW YORK ) ) COUNTY OF NASSAU )
AFFIDAVIT
1. My name is Eric Lerner. I am, and at all relevant times have been, a resident of the State of New York and the Senior Vice President of Systemax, Inc., an active Delaware corporation ("Systemax"). I have personal knowledge of the matters set forth herein and I am competent to give this affidavit.
2. To the best of my knowledge, this Affidavit is given pursuant to Paragraph 20A of the Assurance of Voluntary Compliance (the "AVC") entered into by Systemax and Tiger Direct, Inc., an active Florida corporation ("Respondents") with the Consumer Protection Division of the Office of the Attorney General, Department of Legal Affairs for the State of Florida under Case Number L14-3-1081 to which this Affidavit is attached. 3. To the best of my knowledge, I attest that the responses described in "Tiger Direct's Responses" contained in Exhibit "A" to the A VC are true, accurate, and complete based upon the information contained within the books and records of the Respondents, which books and records are to the best of my knowledge, prepared, compiled and maintained in the ordinary course of business, including but not limited to the rebates and/or refunds provided to consumers prior to the execution of this AVC. 4. To the best of my knowledge, I declare that the foregoing is true and correct.
5. I am signing this affidavit in my representative"capacity for Systemax, and not in any personal capacity. Systemax, Inc.,
By ~ Eric Lerner, Senior Vice President
BEFORE ME, the undersigned authority, personally appeared, Eric Lerner, as the Senior Vice President for Systemax, Inc., who is known to me to be the person described and after being duly sworn and deposed, executing the foregoing instrument, upon his personal knowledge and acknowledges to and before me that same was/is true and correct to the best of his knowledge and belief.
SWORN TO AND SUBSCRIBED BEFORE ME, this n+hday of ~('", 2015.
NOTARY PUBLIC STATE OF Nt0 lfbe.K COUNTY OF NASSAU
)(is personally known to me o produced a Ni S Driver's License as identification o produced ______as identificatio , and id/tpke a oa11h . r\ l~_..j I . ,__.. Print Name: -:C:.'i ~r; o ' ' Y1 Notary Public, State of IJ .z.t,J '-/ cr k ...,... of. .,.~....._- My Commission Expires: I ~~PUSUC.~te __ ,...,.. No 01KASOS7&n Q J"$1 d. in~UOo'i ·flb"? O Jq ·"GlllTlillion ellP!,.,. Jll.-v ~ I