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Terms Of Use

TERMS OF USE

 

Last Updated:  May 1, 2024

 

These Terms of Use form a legal agreement entered into by and between you, the user of this website (the “User” or “you” or “your”), and this website (the “Site”), and any organization on behalf of which you are using or accessing this website, and PT Intermediate Holdings IV, LLC and its affiliates and subsidiaries (including the PT Intermediate Holdings IV, LLC subsidiaries in the USA and in Canada) (collectively, "Encompass Supply Chain Solutions," "Genuine Replacement Parts," "Eldis Group" or also referred to herein as the “Company,” “we,” “us,” and “our”). If you are accessing the Site on behalf of, or as an agent for another person or entity, that person or entity is also a User and will be bound by this agreement. You represent that you are of the age of majority and have the capacity necessary to enter and be bound by the terms of this agreement. The information entered by or on behalf of User is incorporated herein and made a part of this agreement.  Further, by using or accessing the Site, and/or by clicking “I Agree” (or a similar button) to accept or agree to these Terms of Use when this option is made available to you, you signify your agreement to these Terms of Use as well as our Privacy Policy, which is incorporated herein by reference.

 

TERMS

 

These Terms of Use apply to your access to and use of the Site and do not alter in any way the terms and conditions of any other agreement you may have with us for products, services or otherwise. You represent and warrant that you have full power and authority to enter into these Terms of Use and in doing so will not violate any other agreement to which you are a party.

PLEASE READ THESE TERMS OF USE CAREFULLY. BY USING OR ACCESSING THE SITE, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE AND ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING YOUR COMPLIANCE WITH ANY APPLICABLE LOCAL LAWS. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOU SHALL NOT USE OR ACCESS THE SITE.

 

ELIGIBILITY

 

YOU MUST BE AT LEAST 18 YEARS OLD TO USE OR ACCESS THE SITE. IF YOU ARE A MINOR IN THE JURISDICTION IN WHICH YOU RESIDE, YOU MUST HAVE THE PERMISSION OF, AND BE DIRECTLY SUPERVISED BY, YOUR PARENT OR LEGAL GUARDIAN TO USE OR ACCESS THE SITE, AND YOUR PARENT OR LEGAL GUARDIAN MUST READ AND AGREE TO THESE TERMS OF USE PRIOR TO YOUR USING THE SITE. NOTWITHSTANDING THE FOREGOING, YOU ARE NOT AUTHORIZED TO USE THE SITE IF YOU ARE UNDER THE AGE OF 15.

 

OWNERSHIP OF THE SITE

 

All pages within the “Site , any material made available for download, as well as any of the Site’s contents, features, functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), and all information, products, and services offered by us to you in connection with the Site are the property of the Company. This Site is protected by United States and international copyright and trademark laws. The Contents of the Web site, including without limitation the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Web site ("Content") may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes of authorized or approved in writing by the Company, as more fully set forth in the Prohibited Uses section of these Terms of Use. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of the Company without our express written consent. Additionally, you may not use manual or automated software, devices, scripts, robots, spiders, other means or processes to access, "scrape", "crawl", retrieve, or index any portion of the Site or the Content.

 

These Terms of Use permit you to use the Site exclusively for your lawful, personal, informational, and other non-commercial use. You do not acquire ownership rights to the Site or any Content, other than those rights in the materials that you submit to us or otherwise enter through the Site, if any, that you may have or any rights that we may specifically grant you in writing, such as the limited license to use the Site, as further described herein. These Terms of Use do not grant you any right, title, interest, license (express or implied) to any patent, trademark, service mark, copyright, trade secret or other intellectual property right of the Company or the respective intellectual property owners. You will abide by any and all additional copyright notices, information, or restrictions contained in the Site or any Content. 

 

The Company respects the intellectual property of others, and we expect our users to do the same. If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials (or access to them) from the Site by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following: (a) your physical or electronic signature; (b) identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works, a representative list of such works; (c) identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material; (d) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); € a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law; (f) a statement that the information in the written notice is accurate; and (g) a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. Our designated copyright agent to receive DMCA Notices is:  Compliance, Attn: DMCA Agent, 1200 Greenbriar Drive, Addison, IL 60101. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. The Company has a policy of terminating, in appropriate circumstances, the accounts of users who are repeat infringers.

 

PROHIBITED USES

 

You may only use the Site and the Content as expressly permitted under these Terms of Use and only for lawful purposes.  Specifically, you agree that you will use the Site only in a manner that complies with all applicable laws and that your use of the Site is subject to all applicable laws and regulations; any other use is expressly prohibited. Any use of the Site or the Content not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws. Without limiting the foregoing, you agree that you will not attempt to or in fact:

 

  • Use the Site in any way that violates federal, state, local, or international law or regulation;
  • Use the Site to transmit or send unsolicited commercial communications;
  • Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others;
  • Post any infringing, obscene, indecent, or unlawful material or information;
  • Gain unauthorized access to, interfere with, damage, disrupt, or circumvent any of the security features of the Site (or the servers, networks, and databases associated with the Site);
  • Access the Site through any robot, spider, or other automated means;
  • “Screen scrape”, “monitor”, “mine”, “copy”, or “mirror” the Site;
  • Conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Site without our express written consent;
  • Engage in any activity that interferes with, disrupts, or imposes an unreasonable or disproportionately large load on the Site (or the servers, networks, and databases associated with the Site);
  • Introduce to the Site (or the servers, networks, and databases associated with the Site) any spyware, viruses, Trojan horses, worms, keystroke loggers, rootkits, logic bombs, or other material which is malicious or technologically harmful;
  • Use the Site to copy, store, host, transmit, send, use, publish, or distribute any material which consists of (or is linked to) any spyware, virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software;
  • Modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works from the Site or any Content;
  • Reproduce, redistribute, republish, duplicate, copy, display, sell, rent, sublicense, trade or resell any Content or other aspect of the Site for any commercial purpose (except for Content specifically and expressly made available for redistribution) without our prior written consent;
  • Remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, copyrights, warranties, disclaimers, or other proprietary notations;
  • Impersonate us, our employees, another user, or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing); and
  • Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Site or develop restricted or password-only access pages, or hidden pages or images.

 

SUBMISSIONS, REVIEWS, FEEDBACK AND OTHER POSTINGS TO THE SITE

 

If you submit, upload or post any comments, ideas, suggestions, information, files, images or other materials to us or our Web site ("Submissions"), you agree that the Company shall have a royalty-free, irrevocable, transferable right and license to use the Submissions however the Company desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such Submissions and/or incorporate such Submissions into any form, medium or technology throughout the world. The Company is and shall be under no obligation (1) to maintain any Submissions in confidence; (2) to pay to you any compensation for any Submissions; or (3) to respond to any user Submissions. The Company does not regularly review Submissions but does reserve the right (but not the obligation) to monitor and edit or remove any Submissions submitted to the Web site. You are and shall remain solely responsible for the content of any Submissions. The Company and its affiliates take no responsibility and assume no liability for any Submissions submitted by you or any third party, and you agree to defend, indemnify and hold the Company harmless from and against all third-party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by the Company arising out of any Submissions.

 

SALES OF GOODS

 

Acceptance of Orders. The Site only solicits offers to buy goods and is not an offer to sell. An order placed through the Site by User is User’s offer to buy, under this agreement, all goods, items, and products in the quantities and at the prices listed in the order (the “Goods”). The Company will not be obligated to sell the Goods to User unless and until the Company accepts the order. Acceptance of any order is subject to approval by the Company in its sole discretion. The Company will send User a confirmation email with the details of the Goods ordered after the Company’s acceptance. Acceptance of User’s order and the formation of the contract of sale between THE COMPANY and User will not take place unless and until the Company transmits the confirmation email. The Company shall sell to User and User shall purchase from the Company the Goods upon the terms and conditions set forth in confirmation and this agreement. BY PRESENTING AN ORDER TO THE COMPANY, USER CONFIRMS THAT THESE TERMS OF USE SHALL GOVERN ALL PURCHASES OF GOODS.

 

Prices. All prices are quoted wholesale in USD, or as otherwise noted. The price charged for a Good will be the price in effect at the time the order is accepted and as set out in the order confirmation email. All prices are exclusive of all charges for shipping and handling and sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by User. All such taxes and charges will be added to your total and will be itemized in your shopping cart and in your order confirmation email. User agrees to indemnify and defend the Company for any tax, penalty, and interest incurred as a result of the Company’s good faith acceptance of a tax exemption, reseller’s permit, or resale certificate that is later found to be incomplete or invalid.

 

All prices posted on this Site are subject to change without notice. Price increases will only apply to orders placed after such changes. 

 

IN THE EVENT OF A TYPOGRAPHICAL ERROR RELATING TO PRICE, CHARACTERISTICS, OR QUANTITY OF AN ITEM FEATURED OR DESCRIBED ON THE SITE, THE COMPANY RESERVES THE RIGHT TO REFUSE TO FILL ALL OR ANY PART OF ORDER(S) THAT RELY ON SUCH TYPOGRAPHICAL ERROR. ALL GOODS AND PRICES LISTED ON THE SITE ARE SUBJECT TO CHANGE, AVAILABILITY, PRIOR SALE, AND QUANTITY LIMITATIONS, EVEN IF YOU HAVE ALREADY PLACED AN ORDER. 

 

PAYMENT

 

Terms of payment are within the Company’s sole discretion and, unless otherwise agreed by the Company in writing, payment must be received by the Company before its acceptance of an order. the Company will refund payments made for orders not accepted. The Company accepts Visa, MasterCard, American Express, and Discover. If you have established  credit with the Company, checks are also accepted and payment terms are net 30 days from the date of shipment or pick-up. If you fail to make payment within 30 days, the Company may defer shipments until such payment is made, or may, at its option, cancel all or any part of unshipped orders. Delinquent balances over 30-days will accrue interest at a rate of 1.50% per month. User agrees to pay the cost of any and all expenses incurred by the Company to collect past due sums, including but not limited to legal, collection and court costs. Credit card sales are billed at the time of purchase. By submitting your order, you represent and warrant that you are authorized to use the designated card or payment method and you authorize us to charge your order (including taxes, shipping, handling, and any other amounts described on the Site) to that card or other payment method. If the card (or other payment method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. User expressly represents it is solvent at the time it places any order with the Company. You agree to keep all payment cards or other payment method information current, and you agree that we may submit charges for processing even if the card (or other method) has expired or changed by the time we submit it. You must resolve any problem we encounter in order to proceed with your order.

 

PRODUCT RETURNS

 

Please see our Return Policy.

 

DELIVERY; SHIPPING FEES; RISK OF LOSS 

 

User is responsible for additional applicable shipping and handling charges, surcharges, taxes, and duties or for providing valid sales tax exemption certificates.

 

The Company shall deliver the ordered Goods to the address specified by the User in the order (the “Delivery Point”) using the Company’s standard methods for packaging and shipping such Goods. If for any reason User fails to accept delivery of any of the Goods at the Delivery Point, or if the Company is unable to deliver the Goods at the Delivery Point because User has not provided appropriate instructions, documents, licenses, or authorizations: (i) the Goods shall be deemed to have been delivered; and (ii) the Company, at its option, may store the Goods until User picks them up, whereupon User shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

 

All shipments are FOB origin point of shipment from the Company’s facility and/or the vendor’s manufacturing facilities with freight costs and handling fees charged to you. COD shipments are not permitted. Other terms and conditions may apply to special orders including freight collect, export orders, hazardous materials, etc. If product is damaged in transit, you must file claim with the carrier Unless desired routing is specified on the order, a common carrier will be selected by the Company. If specified routing entails special charges, all charges will be added to the invoice. The carrier on FOB shipping point shipments becomes the agent for User, and User must file all damage claims with the carrier. The Company will deliver the Goods as close as possible to User’s requested delivery date(s). User acknowledges that shipment and delivery dates are estimates only and that the Company will not be liable for failure to meet such dates.

 

CANCELLATION

 

Any cancellation must be approved by the Company and may be subject to restocking and other charges.

CREDIT BALANCE

 

You agree that any credit balances will be applied within one (1) year of its issuance. IF NOT APPLIED OR REQUESTED WITHIN ONE (1) YEAR, ANY BALANCE REMAINING WILL BE SUBJECT TO CANCELLATION, AND THE COMPANYSHALL HAVE NO FURTHER LIABILITY.



FORCE MAJEURE

 

The Company shall not be liable for any delay in or impairment of performance resulting in whole or in part, directly or indirectly, from any force majeure event, including but not limited to acts of God, acts of terrorists or criminals, acts of domestic or foreign governments, change in any law or regulation, disruptions in communications, power, or other utilities, labor disruptions, shortages, inability to procure product, unavailability of supplies of raw materials, explosions, fires, floods, or other severe weather conditions, pandemics, or any other circumstances or cause beyond the control of the Company in the conduct of its businesses.

 

PRODUCT SUBSTITUTION

 

Products may be substituted by the manufacturer and may not always exactly match descriptions and/or images.

 

AVAILABILITY; REVISIONS; RELIANCE ON INFORMATION POSTED

 

The information presented on or through the Site, including the Content, is made available solely for general information purposes. We reserve the right to modify or discontinue the Site at any time with or without notice to you. We do not guarantee continuous, uninterrupted or secure access to the Site. The operation of the Site may be interfered with or adversely affected by numerous factors or circumstances outside of our control or through acts of God, as more fully set forth below.  

 

We reserve the right, at our sole discretion, for any reason, at any time, with or without notice to you, to modify or discontinue, temporarily or permanently, the Site (or any part thereof) or to terminate your username and account and/or your access to the Site (or any part thereof). Under no circumstances shall we be liable for any loss, damage, liability, or expense incurred or suffered which is claimed to result from your use of the Site, including without limitation, any fault, error, omission, interruption, or delay with respect thereto.

 

We use reasonable efforts to update the information on the Site, and the Contents are subject to change without notice. However, we do not make any commitment to update the Site or the Content. The Content and the Site may include technical, typographical, or photographic errors.

 

We do not warrant the accuracy, completeness, or usefulness of the Site or the Content. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site.

 

If you have questions about the information presented on the Site, please contact us using the information provided in “Contact Information” at the end of these Terms of Use.

 

USER RESPONSIBILITIES AND OBLIGATIONS

 

  1. User Connection to Site. User shall be responsible for selecting, obtaining, and maintaining any equipment, items, communications, and ancillary services needed to access the Site.

 

  1. Account Passwords and Data Security. User shall maintain the confidentiality of all user IDs and passwords of User. User shall be solely responsible for all use or misuse of the user IDs of User, and Company shall have no obligation to monitor for or report any use or attempted use of the user IDs of User.

 

  1. Indemnification. User agrees to indemnify, defend, and hold harmless Company and its successors and assigns and all of their respective officers, directors, agents, employees, and affiliates from and against any claims, liabilities, damages, judgments, awards, losses, obligations, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to (i) User’s use of the Site or Goods obtained through User’s account; (ii) User’s breach or violation of any of this agreement; or (iii) User’s violation of the rights of any third party, including any third party’s intellectual property rights.

 

  1. Privacy Policy.  User acknowledges and agrees that User has read and understood Company’s Privacy Policy, and User consents to and authorizes the processing, use, and disclosure of personal information as set forth therein.

 

LINKS FROM THE SITE; THIRD-PARTIES

 

This Site may contain links to other Internet sites that our partners and other third parties. These links are provided for your convenience only. Your use of those sites is subject to the terms of use, if any, that each of those sites have posted. We have not reviewed all the sites linked to the Site, and we are not responsible for any changes to or content on them. We have no control over the content of those sites or resources, and we accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites. Our inclusion of any content is not an endorsement of that material or linked site or the companies that own or operate the material or linked sites.

 

This Site may also include content provided by third parties. All statements and/or opinions expressed in these materials, and all content other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect our opinion. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.



DISCLAIMER OF WARRANTIES

 

THE COMPANY OFFERS THE PRODUCTS, THIS SITE, AND ANY AFFILIATED APPLICATIONS AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE SERVICES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THIS SITE AND ANY AFFILIATED APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CONTENT MADE AVAILABLE ON OR THROUGH THE SITE AND ANY AFFILIATED APPLICATIONS WILL BE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE AND ANY AFFILIATED APPLICATIONS USED BY THE COMPANY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE OF THE CONTENT AVAILABLE THROUGH THIS SITE AND ANY AFFILIATED APPLICATIONS IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE.

 

COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO THE USE OR MISUSE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY.

 

COMPANY WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO THE USE OR MISUSE OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. IN NO EVENT WILL COMPANY’S LIABILITY EXCEED THE VALUE OF THE PRODUCT(S) SOLD.

 

ALL USER REVIEWS ARE STRICTLY THE OPINION OF THE USER POSTING SUCH REVIEWS, AND WE DO NOT ENDORSE OR APPROVE ANY USER REVIEWS. WE DO NOT HAVE ANY RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, APPROPRIATENESS OR CONTENT OF USER REVIEWS.

 

TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, RANSOMWARE, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY CONTENT POSTED ON IT, OR ON ANY SITE LINKED TO IT.

 

IN ADDITION TO THAT WHICH IS SET FORTH IN THESE TERMS OF USE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS ARISING OUT OF OR RELATING TO (A) A FAILURE BY YOU TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THESE TERMS OF USE; (B) YOUR USE OF THE SITE; (C) YOUR RELIANCE ON THE SITE; AND (D) ACTS OR OMISSIONS OF USER OR ANY THIRD PARTY.

 

THE FOREGOING DOES NOT AFFECT ANY WARRANTY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

LIMITATION OF LIABILITY

 

MAXIMUM AGGREGATE LIABILITY. COMPANY’S TOTAL AGGREGATE LIABILITY TO USER OR TO ANY OTHER PERSON ARISING FROM OR RELATING TO THIS AGREEMENT, OR ANY PURCHASES GOVERNED BY THESE TERMS & CONDITIONS, OR FROM THE USE OF THE SITE OR GOODS FURNISHED UNDER THIS AGREEMENT, OR FROM ANY ADVICE, INFORMATION OR ASSISTANCE PROVIDED BY COMPANY (BY ANY METHOD, INCLUDING VIA THE SITE), UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, SHALL BE LIMITED TO THE GREATER OF $50 OR THE PRICE OF THE GOODS GIVING RISE TO THE CLAIM. 

 

EXCLUSION OF CERTAIN DAMAGES.  NEITHER COMPANY NOR ITS VENDORS SHALL BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (1) SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, ENHANCED, PUNITIVE, OR PENAL DAMAGES; (2) ANY BACK CHARGES, LABOR COSTS, OR COSTS OF REMOVAL, REPLACEMENT, TESTING, OR INSTALLATION; (3) LOSS OF EFFICIENCY, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED ITEMS OR SERVICES; (4) DAMAGE TO ASSOCIATED GOODS; (5) LATENESS OR DELAYS IN DELIVERY, UNAVAILABILITY OF GOODS; (6) COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME; (7) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (8) LOSS OF GOODWILL OR REPUTATION; (9) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (10) CLAIMS FROM THIRD PARTIES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

 

NO ADVICE. IF COMPANY FURNISHES USER WITH ADVICE OR OTHER ASSISTANCE WHICH CONCERNS ANY GOODS SUPPLIED HEREUNDER AND WHICH IS NOT REQUIRED PURSUANT TO THESE TERMS OF USE, THE FURNISHING OF SUCH ADVICE OR ASSISTANCE WILL NOT SUBJECT COMPANY TO ANY LIABILITY, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS.

 

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

GOVERNING LAW AND VENUE

 

All matters relating to the Site, the Content, or these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.

 

The courts having jurisdiction over the State of Delaware shall have exclusive jurisdiction over all disputes arising in connection with these Terms of Use, and the place of performance of these Terms of Use is agreed by you to be the State of Delaware.

 

ASSIGNMENT

 

These Terms of Use will be binding upon and inure to the benefit of the parties and their successors and assigns. You may not assign these Terms of Use or any of the rights or licenses granted hereunder.  Any attempted sublicense, transfer, or assignment in violation of these Terms of Use is void.

 

WAIVER 

 

No waiver by us of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by us to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision. Enforcement of these Terms of Use is in our sole discretion.

 

INDEMNIFICATION

 

You agree to indemnify, defend, and hold harmless us and our successors and assigns and all of their respective officers, directors, agents, employees, and affiliates from and against any claims, liabilities, damages, judgments, awards, losses, obligations, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to (i) your breach of these Terms of Use; (ii) your violation of any third party’s right, including, without limitation, any copyright, trademark, property right, or privacy right; or (iii) any claim that Content provided by you caused damage or loss to a third party. This defense and indemnification obligation will survive your use of the Site and any termination of these Terms of Use.

 

MATERIAL INDUCEMENT AND CONSIDERATION

 

YOU ACKNOWLEDGE THAT THE DISCLAIMERS, LIMITATIONS OF LIABILITY, AND INDEMNIFICATION PROVISIONS IN THESE TERMS OF USE ARE A MATERIAL INDUCEMENT AND CONSIDERATION FOR THE GRANT OF THE LICENSE CONTAINED HEREIN AND FOR PROVIDING YOU WITH ACCESS TO THE SITE.

 

TERMS OF USE MAY CHANGE

 

We may modify these Terms of Use from time to time in our sole discretion. We will provide notice by, at a minimum, updating this posting. You are expected to carefully review these Terms of Use from time to time so you are aware of any changes. However, if we make material changes to these Terms of Use, we will notify you either through the email address you have provided us or by means of a prominent notice on the Site before the change becomes effective. Any changes to these Terms of Use will be in effect as of the “Last Updated” date referenced at the top of these Terms of Use. Your continued use of the Site constitutes your binding acceptance to these Terms of Use, including any changes or modifications that we may make. If any part of these Terms or any future changes to these Terms are not acceptable to you, you must not use or access the Site.

 

ENTIRE AGREEMENT

 

These Terms of Use, together with any documents expressly referred to in them, including our Privacy Policy, constitute the sole and entire agreement between you and us with respect to the Site and Content, and they supersede all previously written or oral agreements regarding the Site and Content. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under this agreement, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.  

 

AMENDMENT 

 

Company reserves the right, at any time and from time to time, to update, revise, supplement, and to otherwise modify this agreement, and to impose new or additional rules, policies, terms, or conditions, with or without prior notice and for any reason. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this agreement as “Revised Terms”) will be effective immediately and incorporated into this agreement upon Company’s publishing them on the Site, which may be given by any means Company designates, including by posting to the Site. User acknowledges and agrees that User’s continued use of the Site will be deemed to conclusively indicate User’s acceptance of any and all such Revised Terms. All Revised Terms are incorporated into, and made a part of, this agreement by this reference. 

 

SEVERABILITY

 

If any provision of this agreement is ruled wholly or partly invalid or unenforceable by a court or other body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this agreement not ruled to be invalid or unenforceable will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court or other body making the ruling; (iii) the provision held wholly or partly invalid or unenforceable shall be deemed amended, and the court or other body is authorized to reform the provision, to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (iv) if the ruling or the controlling principle of law or equity leading to the ruling subsequently is overruled, modified, or amended by legislative, judicial, or administrative action, then the provision in question as originally set forth in this agreement shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.

 

TERM AND TERMINATION

 

This agreement is effective upon your acceptance of it or on first use of the Site, and it shall continue in effect until terminated in accordance with this section. You may terminate these Terms of Use at any time by closing your account, discontinuing your use of the Site and providing us with a notice of termination. We reserve the right, without notice and in our sole discretion, to terminate your right to use the Site, or any portion of the Site, and to block or prevent your future access to and use of the Site or any portion of the Site.  We may terminate this agreement at any time by disabling access to the Site or closing your account.

 

OTHER PROVISIONS

 

Notice.  Except as otherwise expressly provided herein, notices shall be given under this agreement in writing in the English language, signed by the party giving the same, and shall be given (i) personally (in which case such notices shall be deemed given when so delivered), (ii) by certified or registered U.S. Mail, properly addressed and postage pre-paid, from within the United States (in which case such notices shall be deemed given on the third business day after deposit), (iii) by generally recognized overnight courier, properly addressed and pre-paid, with next business day instruction (in which case such notices shall be deemed given on the next business day after deposit), or (iv) if to User, at Company’s  election, by e-mail (in which case such notice shall be deemed given upon transmission unless Company receives a non-delivery email message within a reasonable time thereafter). Such notices shall be sent to customerservice@encompass.com and to User at the address for notices or email address designated by User.  Either party may change its address for purposes of notice by written notice thereof to the other party.

 

Survival. 

 

The covenants herein concerning indemnification, post-termination procedures, and any other provision that, by its nature, is intended to survive this agreement shall survive any termination or expiration of this agreement.

 

Headings.  

 

The headings of the sections used in this agreement are included for convenience only and are not to be used in construing or interpreting this agreement.