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.