Terms and Conditions of Use of AmeriMark Website
Welcome to the AmeriMark website, operated by AmeriMark Direct LLC ("we," or "our") and located at www.amerimark.com (the "Site"). The Site is provided as a service to our customers. The following terms and conditions ("Terms") govern your use of this Site. By accessing, viewing, or using the content, material, or services available on or through this Site, you indicate that you have read and understand these Terms, that you agree to them and intend to be legally bound by them. If you do not agree to these Terms, or if you are under 18 years of age, you are not granted permission to use this Site and must exit immediately.
- Informational Purposes Only. The Site Contents (as defined in Section 3 below) are for informational purposes only. The Site is not intended to be a substitute for professional medical or other advice and we do not provide any such advice or assurances. Purchasing and other decisions remain with you at all times. We are not responsible for any errors or omissions in the Site or Site Contents.
- Proprietary Rights. We own or license all materials, including images, illustrations, designs, icons, photographs, video clips, and any software concepts and documentation and other material on, in or made available through the Site ("Site Contents"), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Contents. All Site Contents are protected pursuant to copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Contents. All names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the Site are proprietary to us or our affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Site Contents, other than the right to use the Site Contents in accordance with these Terms.
- Use of This Site. The Site and the Site Contents are intended solely for personal, informational, and non-commercial use. YOU MAY NOT USE OUR PRODUCTS OR ANY OF THE MATERIALS MADE AVAILABLE THROUGH THE SITE TO RESELL OUR PRODUCTS TO ANY PERSON(S) THROUGH ANY OTHER WEBSITE, INCLUDING A PERSONAL WEBSITE OR AUCTION WEBSITE (E.G., THROUGH EBAY). You agree that you will not use the Site for: (a) any illegal or unauthorized purposes that violate any local, national, or international laws (including import, export, copyright, and trademark laws); (b) modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any of the Site Contents, unless otherwise authorized by these Terms or in a separate written agreement with us; (c) attempting to gain unauthorized access to our computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the Site or any services provided through the Site; (d) any resale or commercial use of the Site; (e) any downloading or copying of the Site Contents for any reason, or any use of data mining, robots or similar data gathering and extraction tools; (f) using the Site to access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including commercial purposes; or (g) removing, circumventing, disabling, damaging or otherwise interfering in any way with any security-related features of the Site aimed at preventing or restricting the unauthorized use of the Site or any of the Site Contents. You may use the Site and the Site Contents only as consistent with these Terms. Any other use of the Site or Site Contents, including any of the aforementioned unauthorized uses, without our prior written permission is strictly prohibited. You acknowledge and agree that the unauthorized use of the Site or the Site Contents could irreparably harm us and the Site and that, in the event of such unauthorized use, we shall be entitled to an injunction in addition to any other remedies available at law or in equity.
- Payment. Some products or services made available through the Site may be available for purchase. You may be able to purchase some products on a payment plan (i.e., with deferred payments or in installments), in which case you will be subject to any additional terms and conditions presented to you at the time of purchase. We use a third party payment processor to process credit card transaction made through the Site. If you purchase products from us or make any payments via the Site with your credit card, the credit card information that you submit to us will be protected by encryption, such as with the Secure Socket Layer (SSL) protocol. Encryption decreases the likelihood that your credit card information will be stolen or intercepted during transmission to us. You are responsible for all charges incurred under your account, whether made by you or another person using your account. If for any reason we do not receive payment for a purchase, we may exercise our rights in law and equity, including: (a) immediately suspending or terminating your account; (b) seeking collection of the outstanding amount owed; and (c) seeking legal action against you for the breach of these Terms. You are also responsible for paying any governmental taxes imposed in connection with use of the Site or the purchase or any products or services made available through the Site, including sales, use, and excise taxes (excluding only taxes on our net income).
- Prices and Orders. All prices displayed on the Site are quoted in U.S. dollars. We may restrict delivery to addresses within the United States and Canada. We will add shipping and handling fees and applicable sales/use tax in accordance with our then-current policies. We reserve the right to discontinue or change specifications and prices on products and services offered through the Site, without prior notice and without incurring any obligation to you. Products displayed on this Site are available only while supplies last. Descriptions of, or references to, products or services on this Site do not imply endorsement of that product or service, or constitute a warranty, by us. The receipt by you of an order confirmation does not constitute our acceptance of an order. Prior to our acceptance of an order, verification of information may be required. We reserve the right at any time after receipt of your order to accept or decline your order, or any portion thereof, even after your receipt of an order confirmation from us. We reserve the right to limit the order quantity on any item and to refuse service to any customer without prior notification. In the event that a product or service is listed at an incorrect price due to supplier pricing information or typographical error, we shall have the right to refuse or cancel orders placed for the product listed at the incorrect price, regardless of whether the order has been confirmed and your account charged. If your account has already been charged for the purchase and your order is canceled, we will promptly issue a credit to your account in the amount of the incorrect price, or provide you with a refund at your election. The risk of loss and title for all products purchased by you and shipped by us pass to you upon our delivery to the carrier for shipment. The risk of loss and title for all products purchased by you and shipped directly by one of our vendors pass from such vendor to you upon such vendor's delivery to the carrier for shipment.
- Colors. We have made every effort to display the colors of our products that appear on this Site as accurately as possible. However, since the actual colors you see depend upon your computer and monitor, we cannot guarantee that the colors displayed to you will be completely accurate.
- User Comments, Feedback, and Other Submissions. Certain features of the Site may allow you to contribute other materials and information for access, use, viewing and commentary by other users to the Site (collectively, "Comments"). By posting Comments, you represent that you have the full legal right to provide those Comments and that use of the Comments by us and all other persons and entities will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; or (c) constitute disclosure of any confidential information owned by any third party. Upon your submission of Comments or other material or information to us, you grant us a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the Comments, all without any compensation to you whatsoever. For the avoidance of doubt, we shall be under no obligation to: (1) maintain any Comments in confidence; (2) pay any compensation for any Comments; or (3) respond to any Comments. If you believe that any content or postings on the Site violate your intellectual property or other rights, please follow our Complaint Procedures in Section 9 of these Terms.
- Complaint Procedures. f you believe that any content or postings on this Site violates your intellectual property or other rights, please notify us through the Contact Customer Service form with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your email address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: "The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message."
- Third Party Websites and Features. The Site may contain links to other websites for the convenience of users in locating information, products, or services that may be of interest. Links to other websites, including those of our suppliers or vendors, do not constitute sponsorship, endorsement, or approval from us of the content, policies, or practices of such linked sites. The Site may also incorporate features and services provided by third parties, such as payment processing. Linked sites and incorporated features and services are not operated, controlled, or maintained by us and we are not responsible for the availability, content, security, policies, or practices of linked sites, including privacy policies and practices. Links to other sites are provided for your convenience only and you access them at your own risk.
- Changes in Terms and Termination. We have the right at any time and without prior notice, at our sole discretion, to revise these Terms or to impose new terms and conditions governing your access to or use of this Site. These revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including posting the revised or additional terms and conditions on this Site. You are responsible for reviewing this Site periodically for any modification to these Terms that may affect your rights or obligations hereunder. You agree that you shall be deemed to be apprised of and bound by any modification by us to these Terms. ANY ACCESS OR USE OF THIS SITE BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to these Terms by any party other than us shall be valid or enforceable against us unless expressly agreed to in writing signed by a duly authorized officer of our company. We may suspend or terminate your account and your ability to use the Site, or any services on the Site, for failure to comply with these Terms, for providing us with untrue or inaccurate information about yourself, for infringement upon our proprietary rights, or for any reason whatsoever or for no reason.
- Disclaimers We, our subsidiaries, and affiliates, are not responsible for and do not guarantee the accuracy or completeness of any Site Contents, Comments, data, links, advertisements or other items contained within the Site. We reserve the right to immediately remove any Site Contents or Comments for any reason, or for no reason. We cannot and do not review all communications, products, or services made available on or through the Site, but, although not obligated to, we may review, verify, make changes to or remove any Comments, Site Contents, or the Site, including information submitted in connection with the Site Contents or other features at any time, with or without notice in our sole discretion. You agree that you must evaluate and bear all risks associated with the use of Site Contents or Comments and that you may not rely on the Site Contents or Comments. THE SITE, THE SITE CONTENTS, COMMENTS, INFORMATION, AND OTHER MATERIALS MADE AVAILABLE THROUGH THE SITE ARE MADE AVAILABLE "AS IS" AND "WITH ALL FAULTS." USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITE, THE COMMENTS, THE SITE CONTENTS, DATA AND OTHER MATERIALS MADE AVAILABLE THROUGH THE SITE, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL COMMENTS, THE SITE, THE SITE CONTENTS, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, IS WITH YOU.
- Product and Service Warranties. We want you to be completed satisfied with your purchase. If for any reason you are not entirely pleased with a product you purchased on the Site, simply return the item in accordance with our 100% guarantee and easy returns policies. Many products are packaged with the manufacturer's warranty and service information detailing specific terms and conditions. Manufacturers' warranties may vary from product to product. PRODUCTS AND SERVICES SOLD BY US ARE SUBJECT TO ANY APPLICABLE WARRANTIES AND REPRESENTATIONS OF THEIR RESPECTIVE MANUFACTURERS. WE MAKE NO ADDITIONAL (AND HEREBY DISCLAIM ALL) REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY PRODUCT OR SERVICE SOLD TO YOU THROUGH THE SITE.
- Limitations of Liability. WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE SITE, THE COMMENTS, THE SITE CONTENTS, DATA, AND OTHER MATERIALS MADE AVAILABLE THROUGH THE SITE, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT EITHER OF US HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL OUR TOTAL LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE SITE, COMMENTS, THE SITE CONTENTS MADE AVAILABLE THROUGH THE SITE, OR THE SERVICES, PRODUCTS, DATA OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU TO US DURING THE YEAR PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
- Exceptions to Limitations and Exclusions of Liability. Please note that some jurisdictions, including New Jersey, do not permit some of the limitations or exclusions of liability set forth in Sections 12, 13, and 14 above - including, in New Jersey, limitations of warranties for consumer products and services. Accordingly, some of the foregoing exclusions may not apply to you. We encourage you to consult a local attorney for legal counsel on these issues. If any of the limitations or exclusions of liability set forth in these Terms is deemed invalid or unenforceable for any reason, then the limitation or exclusion shall apply to the greatest extent permitted by applicable law. If you are dissatisfied with the Site or any of these Terms, your sole and exclusive remedy is to discontinue using the Site.
- Indemnification. You agree to defend, indemnify, and hold harmless us, our vendors, owners, affiliates, related entities, and each of their respective directors, officers, employees, and agents from and against all claims, losses, damages, liabilities, and costs (including reasonable attorneys' fees and expert fees), arising out of or relating to your use of the Site, the Site Contents, or any services, products, or data obtained through the Site, as well as your fraud, violation of law, negligence, willful misconduct, and any breach by you of these Terms (each, a "Claim"). You may not settle any Claim without our prior written consent. We (or our licensors) may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel and to participate in the defense of any Claim. If we (or our licensors) do not notify you that we (or they) elect to undertake the defense of a Claim, you shall have the right to defend the Claim with counsel reasonably acceptable to us (or them).
- Internet Security. We use reasonable efforts to ensure that the Site is generally available. However, there may be occasions when access to the Site is interrupted or unavailable. We will use reasonable efforts to minimize such disruption where it is within our reasonable control. You agree that we shall not be liable to you for any modification, suspension, or discontinuance of the Site. You understand that the technical processing and transmission of materials to, from, or through the Site may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent from to, from, or through our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to, from, or through the Site or the Internet, including, for example, personal information such as your name and address.
- Applicable Law. These Terms will be governed by and construed in accordance with the laws of the State of Ohio, without reference to its conflict of law rules. By accessing, viewing, or using the services, works, content, or materials on the Site, you consent and agree to (a) the exclusive jurisdiction of the federal and state courts located in Cleveland, Ohio; (b) accept service of process by personal delivery or mail; and (c) irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available. If any provision of these Terms shall be deemed unlawful, invalid or unenforceable for any reason, then that provision shall be deemed severable from the Terms, and shall not affect the validity or enforceability of the remaining provisions.
- Entire Agreement. These Terms constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. No waiver by us of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The headings and captions in these Terms are intended for convenience only and shall in no way affect the interpretation of the Terms. Notwithstanding the foregoing, these Terms and the information provided in this Site in no way override the terms and conditions of your purchase of any product or service, except as specifically provided herein. To the extent any area within this Site contains SPECIFIC TERMS AND CONDITIONS concerning use of that particular area of the Site ("Specific Terms"), those Specific Terms are in addition to these Terms. To the extent there is a direct conflict between these Terms and the Specific Terms, the Specific Terms shall prevail.
- Acts Beyond Control. We shall not be liable for any nonperformance or delay in performance caused by any act beyond our reasonable control, including acts or omissions of third parties, unavailability of supplies, equipment failure, war, strikes, lock-outs, fire, flood, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.
- Miscellaneous. The Site is controlled and operated from within the United States. Without limiting anything else in these Terms or otherwise, we make no representation that the Site, Site Contents, Comments, services, products, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of us to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words "includes" and "including" and their syntactical variations shall be deemed followed by the words "without limitation."
Revised July 26, 2016