ENCORE COMMERCIALPRODUCTS, INC. (“Encore”)
TERMS ANDCONDITIONS OF USE
EFFECTIVE MAY 1, 2017
Encore reserves the right, at any time, and from time to time, in its sole discretion, to modify, change, revise, add to, remove from and otherwise edit these Terms at any time by removing these Terms or posting new or updated Terms on our Encore Owned Websites. Any removal of and/or modifications, changes, revisions, or additions to these Terms are effective at the time they are posted or removed unless you are using an Encore Owned Website at the time of such posting or removal. In this event, any removal, modification, change, revision, or addition will be effective the next time that you access or use an Encore Owned Website. For this reason it is your responsibility and Encore encourages you to check these Terms each time you visit any of our Encore Owned Websites. Your continued use of an Encore Owned Website following the removal of or the posting of any modifications, changes, revisions, and/or additions means that you accept and agree to them. As long as you comply with these and any other modified, updated Terms, Encore grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access and use our Encore Owned Websites, including but not limited to any Content contained on or accessible from an Encore Owned Website.
All material(s) and content including but not limited to images, text, graphics, software, user interfaces, visual interfaces, sounds, trademarks, logos, artwork and computer code (collectively "Content") contained on any of our Encore Owned Website are owned, controlled or licensed by or to Encore, and are protected by trade dress, copyright, patent and trademark laws, and various other intellectual property or proprietary rights and laws.
You may use information on or about Encore Products and services purposely made available by Encore for downloading from any of our Encore Owned Websites, provided that you (1) do not remove or change any copyright, trademark, patent and/or other intellectual or proprietary notice or registration language, (2) use such information only for your lawful purposes and do not copy or post such content or information on any networked computer or broadcast it in any media, (3) make no modifications or revisions to any such content or information, and (4) do not make any additional representations, information, or warranties relating to such content or information.
There are a number of Encore proprietary logos, trademarks and service marks (collectively "Trademarks") displayed on the Encore Owned Websites. All such Trademarks (whether registered or not registered) are the property of Encore. By displaying any Trademarks on any Encore Owned Websites, Encore is not granting and does not grant you a license, permission, or the right to use any of the Trademarks, nor should anything contained in or on any of our Encore Owned Websites be construed or interpreted as granting you by implication or otherwise a license or any right to use any of the Trademarks without the prior express written permission of Encore in each instance.
Except as expressly provided in these Terms, no part of any Encore Owned Website and no Content and/or Software may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial purpose, without Encore's express prior written consent in each instance.
LINKS TO NON-ENCORE OWNED WEBSITES
Encore Owned Websites may provide links to other websites which are not owned by Encore and are owned by companies or parties which are either affiliated or unaffiliated with Encore (collectively "Non-Encore Owned Websites"). These links to Non-Encore Owned Websites are provided to you solely as a matter of convenience and for informational purposes. If you access any of these links, you will no longer be on a Encore Owned Website. We do not endorse or make any representation about Non-Encore Owned Websites, and we are not responsible for and we disclaim all warranties, express or implied, as to the privacy, content or security of such Non-Encore Owned Websites. You are responsible for reviewing, and we expressly encourage you to carefully review the Policies and Terms of such Non-Encore Owned Websites.
By using any of our Encore Owned Websites, you understand, acknowledge and agree that internet transmissions and/or communications are never completely private or secure and that any Information you send or submit to any of our Encore Owned Websites may be intercepted and read by third parties, unless there is a specific indication or notice that a particular transmission (e.g., credit card information) is encrypted.
Encore Owned Websites may from time to time, present promotions that offer prizes, discounts, and other benefits, or that require you to send in requested material or information, which often requires submission of personally identifiable information about yourself. Each promotion or opportunity has its own rules, conditions, and requirements which you must read and agree to before you may access or participate in the promotion.
In the event any software is available for downloading on or from any of our Encore Owned Websites, such software is the copyrighted work and property of Encore and/or its suppliers (the “Software”). Use of any such Software is subject to the terms and conditions of the license agreement that are provided with or accompanying such Software. Unless expressly permitted by the license agreement provided with or accompanying such Software, any reproduction or copying of any such Software is strictly prohibited. In no event are you permitted to create derivative works of such Software or to reverse engineer, disassemble, decompile or otherwise tamper with any such Software.
PRODUCTS AND SERVICES
Any Products and services displayed for sale on current Encore Owned Websites are intended for sale only in the U.S. and/or Canada. Displaying all such Products and services does not mean, and should not be interpreted to mean, that all such Products and services will be available at any given time. All Encore-authorized dealers and resellers of Encore’s Products or other Encore authorized sources for Encore Products referenced or identified on Encore Owned Websites are independent businesses, and are identified only as a convenience to those seeking to purchase Encore Products, which may be readily available in various geographical areas, or to obtain Encore Products from a nearby source which can provide Product-related services. Encore authorized dealers and resellers determine in their sole discretion their own selling prices for Encore Products and what, if any, Product-related services it may offer.
ANY SPECIFICATIONS, DESCRIPTIONS OR OTHER INFORMATION PERTAINING TO ANY PRODUCTS AND/OR SERVICES ON ANY OF OUR ENCORE OWNED WEBSITES ARE SUBJECT TO CHANGE WITHOUT NOTICE. IN ADDITION, PRODUCTS BEING PURCHASED FROM ENCORE WEBSITE SHALL BE SUBJECT TO TERMS, PROVISIONS, AND CONDITIONS RELATED TO PRODUCT SALES, SUCH AS MINIMUM OR MAXIMUM QUANTITIES FOR PRODUCTS, SPECIAL OR DIFFERENT TERMS, DEADLINES, ETC.
DISCLAIMERS OF WARRANTIES AND LIMITATION OFLIABILITY AND DAMAGES
ENCORE DOES NOT REPRESENT OR WARRANT THAT ANY OF OUR ENCORE OWNED WEBSITES, INCLUDING BUT NOT LIMITED TO, ANY OF THE CONTENT, INFORMATION, SERVICES, AND/OR SOFTWARE CONTAINED ON OR ACCESSIBLE TO YOU FROM ANY OF OUR ENCORE OWNED WEBSITES, WILL BE ERROR-FREE, FREE OF VIRUSES,CONTAMINATION OR OTHER HARMFUL OR DESTRUCTIVE ELEMENTS, CONTINUOUSLY AVAILABLE,OR UNINTERRUPTED, OR THAT ANY DEFECTS, WHETHER KNOWN OR UNKNOWN, WILL BE CORRECTED, OR THAT YOUR USE OF ANY OF OUR ENCORE OWNED WEBSITES OR ANY COMPONENTS OR FUNCTIONALITY WILL PROVIDE SPECIFIC DESIRED OR INTENDED RESULTS. THE ENCORE OWNED WEBSITES, INCLUDING, BUT NOT LIMITED TO, THE CONTENT AND THE SOFTWARE CONTAINED ON OR ACCESSIBLE FROM ANY OF OUR ENCORE OWNED WEBSITES ARE MADE AVAILABLE ON AN "AS- IS" AND "AS-AVAILABLE" BASIS. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, WITH REGARD TO ANY OF THE ENCORE OWNED WEBSITES, CONTENT AND/OR SOFTWARE CONTAINED THEREON OR ACCESSIBLE, ENCORE DISCLAIMS ALL WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF ANY ACCESSIBILITY, ELEMENTS, OR FUNCTIONALITY OF OUR ENCORE OWNED WEBSITES AND ANY LINKED NON-ENCORE OWNED WEBSITES. YOUR SOLE REMEDY AGAINST ENCORE FOR DISSATISFACTION WITH ANY OF OUR ENCORE OWNED WEBSITES OR ANY CONTENT CONTAINED ON OR ACCESSIBLE FROM ANY OF OUR ENCORE OWNED WEBSITES IS TO STOP USING SUCH ENCORE OWNED WEBSITES OR SUCH CONTENT, SOFTWARE, ELEMENTS, OR FUNCTIONALITY.
UNDER NO CIRCUMSTANCES WHATSOEVER, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL ENCORE BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT FROM, ARISE OUT OF, OR IN ANY WAY RELATE TO YOUR USE OR INABILITY TO USE ANY OF OUR ENCORE OWNED WEBSITES, INCLUDING BUT NOT LIMITED TO, ANY CONTENT CONTAINED ON, IN, AND/OR FUNCTIONS ACCESSIBLE FROM ANY OF OUR ENCORE OWNED WEBSITES, EVEN IF ENCORE HAS BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, THE POSSIBILITY OF ANY SUCH DAMAGES.
NOTWITHSTANDING THE ABSOLUTE EXCLUSIONARY PROVISIONS, AND LIMITATION OF LIABILITY AND DAMAGES TERMS SET FORTH ABOVE, IN NO EVENT SHALL ENCORE'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) EXCEED $250.00 IN THE AGGREGATE.
YOU AGREE TO BE LIABLE TO, FOR, AND TO FULLY INDEMNIFY, DEFEND, PROTECT, AND SAVE ENCORE, ITS AFFILIATES, SUBSIDIARIES, LICENSORS, LICENSEES AND ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS,MEMBERS, PARTNERS, HOLDERS OF EQUITY OR SIMILAR INTERESTS, EMPLOYEES, SERVANTS,REPRESENTATIVES, CONTRACTORS, AND AGENTS, (COLLECTIVELY "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES,LOSSES, DEFAULTS, LIABILITIES, FEES AND COSTS (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES AND LEGAL COSTS) IN ANY WAY AND/OR MANNER ARISING OUT OF OR RELATED TO (I) ANY BREACH OF THESE TERMS BY YOU OR ANYONE ACTING UNDER YOUR DIRECTION,AUTHORITY AND/OR CONTROL (ANY SUCH PERSONS BEING INCLUDED IN THE DEFINITION OF“YOU” OR “YOUR”), AND/OR (II) YOUR MISUSE OF ANY OF OUR ENCORE OWNED WEBSITES. YOU AGREE THAT ENCORE SHALL HAVE THE RIGHT TO SELECT ITS OWN ATTORNEYS, AT YOUR EXPENSE, TO DEFEND ANY OF THE INDEMNIFIED PARTIES REGARDING ANY CLAIMS SUBJECT TO INDEMNIFICATION BY YOU. YOU ALSO AGREE THAT YOU SHALL NOT SETTLE ANY CLAIM INVOLVING ANY OF THE INDEMNIFIED PARTIES WITHOUT THE PRIOR WRITTEN CONSENT OF ENCORE.
RESERVATION OF RIGHTS
ENCORE RESERVES THE RIGHT TO DO ANY OF THE FOLLOWING, AT ANY TIME, WITHOUT NOTICE: (1) TO REVISE, CHANGE, SUSPEND, INTERRUPT OR TERMINATE OPERATION OF OR ACCESS TO ANY OF THE ENCORE OWNED WEBSITES, OR ANY PORTION OF ANY OF THE ENCORE OWNED WEBSITES, FOR ANY REASON WHATSOEVER AS SHALL BE DETERMINED BY ENCORE IN ITS SOLE AND ABSOLUTE DISCRETION; AND (2) TO REVISE, ADD TO, REMOVE OR CHANGE ANY OF THE ENCORE OWNED WEBSITES, OR ANY PORTION, CONTENT, SOFTWARE OR FUNCTIONALITY OF ANY OF THE ENCORE OWNED WEBSITES, AND ANY APPLICABLE POLICIES OR TERMS.
You agree not to use,download, transmit, export or re-export any Content and/or Software contained on or accessible from any of the Encore Owned Websites in violation of any applicable laws or regulations including but not limited to any U.S. export control laws and regulations.
You agree that these Terms and any dispute or action relating to, or arising out of the use of any Encore Owned Website or any Content contained on or used in connection with any Encore Owned Website will be governed by and construed in accordance with the laws of the State of Michigan and the United States, as such laws are applied to agreements entered into and to be performed entirely within the State of Michigan between State of Michigan residents, without regard to its conflict of laws principles.
DISPUTE RESOLUTION; INFORMAL RESOLUTION AND FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER
Except for any disputes, claims or controversies relating to the enforcement of Encore’s intellectual property rights including, without limitation, the Trademarks, and all other proprietary, confidential, trade secret, or other Intellectual property (broadly construed), you and Encore each agree that any legal or equitable claim, dispute or controversy in any manner relating to, or arising out of, or relating to, use of any of the Encore Owned Websites, or any Content contained on or used in connection with any of the Encore Owned Websites or the interpretation, enforceability or applicability of these Terms (collectively a “Claim”) will be resolved only as follows:
A. INFORMAL RESOLUTION:
You and Encore will first attempt to resolve any Claim disagreement informally through direct negotiations, with or without the assistance of third persons, including an attorney. In the event that any Claim arises between you and Encore, you or Encore, as the case may be, must send to the other party a Notice of Claim which indicates in writing, the name, address and contact information of the party sending the Notice of Claim, and which Notice shall include the facts and any other relevant information explaining and/or pertaining to the Claim, and to the extent possible, the party’s proposed resolution as to the Claim, and as previously stated, the Notice of Claim information, such as complete name, address, phone and fax numbers, email address, etc. You must send (or email) any Notice of Claim to Encore as follows: Encore, 37525 Interchange Dr., Farmington Hills, MI 48335, Attention: Arbitration Claim/Legal Matter. Encore will send any Notice of Claim to you at the contact information that Encore has for you. You and Encore agree to try, in good faith, to promptly resolve any Claim informally. In the event a Claim is not resolved within 60 days after either you or Encore (as the case may be), receives a Notice of Claim from the other, either you or Encore can initiate binding arbitration proceedings as hereinafter provided, as the exclusive means for resolving any such Claims or disputes. The information below is intended to provide a general summary of commercial arbitration proceedings.
B. FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER:
READ THE FOLLOWING MANDATORY ARBITRATION PROVISION CAREFULLY, IT LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO BRING, MAINTAIN, AND TO HAVE THE DISPUTE RESOLVED BY A JUDGE OR JURY IN A COURT ACTION BEFORE A JUDGE OR JURY. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. In the event that you and Encore do not try or unable to resolve the Claim informally, as suggested above, the Claim shall be resolved only through binding arbitration before a neutral arbitrator whose decision will be and constitute the final resolution of the Claim under the laws of the State of Michigan and the U.S. Federal Arbitration Act.
The rules in arbitration are different. There is no judge or jury, and review of the final arbitration award is very limited, but an arbitrator may award the same type, kind, and amount of damages and relief to you individually, just as a court could, and must honor the same provisions stated in these Terms as a court could. Arbitration will be conducted under the American Arbitration Association(“AAA”) Commercial Arbitration Rules then in effect (hereinafter the “AAA Rules”), and under the provisions set forth in these Terms. If there is a conflict between AAA Rules and the provisions set forth in these Terms, the rules set forth in these Terms shall govern. If you decide to initiate arbitration, you will be required to, and agree to, pay the AAA arbitration initiation fee and any additional monetary deposit required by AAA to proceed with the arbitration. You and Encore each agree to pay your portion of the costs of the arbitration proceeding as billed by the AAA. Under the AAA rules, each party is responsible for payment of its own arbitration-related costs, attorney fees, expenses of travel, hotel, food, etc., and other applicable fees will be paid in accordance with AAA Rules. Arbitration will be held at a location in or nearest to Encore’s corporate headquarters in Farmington Hills, Michigan, unless you and Encore both agree to another location. To initiate arbitration, a party must comply with the applicable AAA Rules, procedures, and requirements for initiating an arbitration, all of which are set forth on the AAA website located at https://www.adr.org.
The arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction. Neither you nor Encore shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity, or in any other proceeding in which either you or Encore proposes to act in a representative capacity. THIS MEANS THAT ALL PARTIES WAIVE AND HAVE NO RIGHT TO PARTICIPATE IN A MULTIPLE CLAIMANT ARBITRATION OR ANY OTHER RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS M CONSOLIDATED OR OTHER ACTION WHATSOEVER. A court may sever any portion of this dispute resolution provision if it finds such unenforceable, except for the prohibition on class actions, representative actions, multi-Claimant and/or private attorney general arbitrations.
CHOICE OF FORUM/INTELLECTUAL PROPERTY CLAIMS
You agree that any disputes, claims or controversies relating to the enforcement of any of Encore’s intellectual property or similar Encore owned or licensed proprietary rights, including without limitation the Trademarks, service marks, trade dress, names, patents,and copyrights are not subject to the foregoing mandatory arbitration provisions, and if filed, shall be filed, and that venue shall exist only in the state or federal courts located in, or nearest to, Oakland County, Michigan, and that you specifically agree, consent, and submit to the personal jurisdiction of such courts for the purpose of litigating any such disputes,claims or controversies.
LIMITED TIME TO FILE CLAIMS
You agree that you will assert any Claim (whether known or unknown) within one (1) year after the earlier of the date the Claim arises or becomes known, or such Claim will be barred with prejudice, forever.
ENFORCEABILITY, ENTIRE AGREEMENT, NO WAIVER
You agree that these Terms will be enforceable by Encore and its representatives, successors, transferees, assigns, and against you and your heirs, beneficiaries, successors, and assigns. You agree that if any provision within these Terms is found to be void or unenforceable, it will not affect the validity of the balance or remainder of these Terms, which shall remain valid and enforceable to the maximum extent.
B. Entire Agreement
These Terms and any additions, changes, edits and/or revisions made thereto by Encore, constitute the entire agreement between you and Encore and supersede in their entirety any and all written or oral agreements previously existing between you and Encore.
C. No Waiver
Neither these Terms relative to arbitration, nor any other terms or provisions hereof may be modified, waived, amended, supplemented or discharged except by a document or writing signed by Encore, or as otherwise permitted herein. The failure to enforce at any time any of the provisions of these Terms shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of these Terms or the right thereafter to enforce one or more of the provisions thereof. No waiver by either you or Encore, whether express or implied, of any provision of these Terms and any additions, changes, edits and/or modifications made by Encore, or any breach thereof, shall constitute a continuing waiver of such provision or a waiver of any other provision of these Terms.