These Terms and Conditions of Use (“Terms”) are entered into by and between you and ELBECO INCORPORATED (“ELBECO”). In consideration of your use of and access to the Dealer Portal (the “Site”), and the promises and obligations herein, and intending to be legally bound, you and ELBECO hereby agree as follows:
GENERAL; AGREEMENT TO TERMS.
This Site may be accessed and used solely by authorized dealers of ELBECO products that have valid and effective Distributor Agreements in place, and their employees (each, a “Dealer”). If you are not a Dealer, you must discontinue use of the Site and services provided on or through the Site. Each Dealer is responsible for compliance with these Terms by the individual employee users whom it has authorized to use this Site.
Your access to and use of this Site is subject to and governed by these Terms. By using this Site, you agree to comply with and will be deemed to be bound by these Terms and all applicable laws and regulations in connection with your use of the Site. If you do not agree to be bound by these Terms and all applicable laws and regulations you are required to leave the Site and discontinue use of the Site.
Among other things, this Site provides general information concerning ELBECO’s products. Accessing the Dealer Portal requires registration. ELBECO reserves the right to refuse to allow registration for or access to the Dealer Portal to any person or entity, for any reason, at any time, in its sole discretion.
These Terms and the information provided on the Site do not modify or supersede and in no way override the terms and conditions of the Distributor Agreement between you and ELBECO. IN CASE OF A CONFLICT BETWEEN THE TERMS AND CONDITIONS OF YOUR DISTRIBUTOR AGREEMENT AND THESE TERMS, THESE TERMS WILL CONTROL, BUT ONLY WITH RESPECT TO YOUR ACCESS AND USE OF THIS SITE.
You may not use any automatic device, extraction tool, robot, program or technology, or any equivalent manual process, to access, acquire, copy, probe, test or monitor any portion of the Site or Content (as defined below), or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site.
2. CHANGES IN TERMS; TERMINATION.
ELBECO shall have the right, in its sole discretion, at any time and without prior notice, to revise these Terms or to impose new terms and conditions with respect to access to or use of the Site. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including but not limited to posting the revised or additional terms and conditions on the Site. The date of the last revision of the Terms will appear at the top of these Terms. You are responsible for reviewing the Site periodically for any modification to these Terms. You agree that you shall be deemed to be apprised of and bound by any revisions or additions by ELBECO to the Terms. Your continued use of the Site with any such changes to the Terms constitutes your acceptance of the new Terms, whether or not you actually reviewed them. No modification to these Terms by any party other than ELBECO shall be valid or enforceable against ELBECO unless expressly agreed to by ELBECO in writing signed by a duly authorized officer of ELBECO.
3. DISCONTINUED OPERATION OF SITE.
ELBECO shall have the right, in its sole discretion, without notice and at any time and for any reason to discontinue operation of the Site, or any portion thereof, or any products offered through or advertised on this Site, or to terminate yours or any individual’s access to or use of the Site.
ELBECO shall also have the right to terminate your access to the Site at any time, in its sole discretion, for any or no reason, and in such case you will not be able to access the Site. The restrictions imposed on you, the disclaimers, indemnities and limitations of liability set forth in these Terms shall survive any termination of the Site or your use thereof.
4. SITE CONTENT; TRADEMARK AND COPYRIGHT.
The text, images, photographs, graphics, logos, illustrations, descriptions, data and other material provided on the Site, as well as the selection, assembly and arrangement thereof, are referred to collectively as the “Content.”
The Content may contain errors, omissions, or typographical errors or may be out of date. ELBECO may change, delete, or update any Content at any time and without prior notice. The Content is provided for informational purposes only and is not binding on ELBECO in any way except to the extent it is expressly provided to be so.
The Content is protected by copyrights, trademarks, service marks, and other proprietary rights that are owned by ELBECO or by third parties that have licensed their use to ELBECO. Except in connection with marketing materials provided on the Site specifically for your use in marketing or selling ELBECO products, you may view and use the Content only for your internal business operations as a Dealer, and for no other purpose. You may not otherwise use, reproduce, copy, modify, transmit, display, publish, sell, license, publicly perform, distribute or commercially exploit any of the Content. You may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of ELBECO without the express, written consent of ELBECO. Any use of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in a writing signed by an authorized representative of ELBECO is strictly prohibited.
With respect to any feature of the Site, if any, that allows you to upload, post or otherwise submit Content (if any), you may not upload, post or submit through the Site any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material or information of any kind, including but not limited to any material or information that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. If we are notified of any such material or information provided by you, we may investigate the allegation and determine, in our sole discretion, whether to remove or request the removal of such materials and information from the Site. The unauthorized submission of copyrighted or other proprietary Content is illegal and could subject you to civil and criminal liability.
You will be liable for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from an unauthorized submission or submission of any material prohibited by these Terms, and you hereby agree to defend, indemnify, and hold harmless ELBECO and its directors, officers, employees, and agents from and against all claims, losses, damages, liabilities, and costs (including but not limited to reasonable attorneys’ fees and court costs), arising out of or related to any of the foregoing.
6. LINKED THIRD PARTY SITES.
Links to other websites operated by third parties do not constitute sponsorship, endorsement, or approval by ELBECO of the content, policies, or practices of such linked sites. Linked sites are not operated or controlled by ELBECO, and ELBECO is not responsible for the availability, content, policies, or practices of linked sites, including without limitation privacy policies or practices. Links to other sites are provided for your convenience only, and you access them at your own risk.
ELBECO reserves the right without prior notice to discontinue or change specifications and prices on products advertised on the Site without incurring any obligation to you. Products displayed on the Site are not guaranteed to be available. Descriptions of, or references to, products on the Site are subject to error or change, and do not constitute a warranty by ELBECO. 8.PASSWORDS.
Dealer is responsible for maintaining the confidentiality of account information, including your password, and for all activity that occurs under your account. You will not disclose your password to unauthorized individuals. You agree to notify ELBECO immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for any losses incurred by ELBECO or any other users of the Site due to someone else using your password or Dealer account. You may not use anyone else’s password or Dealer account. You may not attempt to gain unauthorized access to the Site, and if you attempt to do so, or assist others in making such attempts, then ELBECO may terminate your online account. You are solely responsible for changing your password from time to time, and the Site will not require you or prompt you to do this.
By accessing any part of this Site that is password protected you are agreeing you are the proper and authorized individual/user of the username and password being used to obtain access. Unauthorized individuals may be subject to prosecution.
9. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY AS TO THE SITE AND CONTENT.
ELBECO DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE SITE OR ANY LINKED SITE OR ITS CONTENT, INCLUDING THE AVAILABILITY OF THE SITE OR THE CONTENT, INFORMATION AND MATERIALS ON IT OR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THAT CONTENT, INFORMATION AND MATERIALS. ELBECO ALSO DOES NOT WARRANT OR REPRESENT THAT YOUR ACCESS TO OR USE OF THE SITE OR ANY LINKED SITE WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR ANY LINKED SITE IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, ALL CONTENT, INFORMATION AND MATERIAL PROVIDED ON THE SITE IS PROVIDED TO USERS “AS IS” WITH NO WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. THE “AS IS” CONDITION OF THE CONTENT, INFORMATION AND MATERIALS PROVIDED ON THIS SITE OR ANY LINKED SITE IS EXPRESSLY MADE A CONDITION OF ANY TRANSACTION ARISING THROUGH OR AS A RESULT OF THE SITE. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THE EXCLUSION OF IMPLIED WARRANTIES.
UNDER NO CIRCUMSTANCES SHALL ELBECO OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, ARISING IN ANY WAY OUT OF ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THIS SITE OR ITS CONTENT OR ANY LINKED SITE, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, EVEN IF ELBECO IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. DISCLAIMER OF WARRANTY AS TO PRODUCTS.
THE ONLY WARRANTIES, IF ANY, MADE BY ELBECO WITH RESPECT TO PRODUCTS PURCHASED BY YOU, WHETHER THROUGH THIS SITE, IF AVAILABLE, OR OTHERWISE ARE CONTAINED IN THE DISTRIBUTORSHIP AGREEMENT OR OTHER WRITTEN WARRANTIES OF ELBECO APPLICABLE TO SUCH PRODUCT. EXCEPT FOR ANY SUCH WARRANTIES, ELBECO FURNISHES OR SELLS ALL PRODUCTS ON AN “AS IS” BASIS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THE EXCLUSION OF IMPLIED WARRANTIES. 11.INDEMNIFICATION.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ELBECO AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, AND COSTS (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES AND COURT COSTS), ARISING OUT OF OR RELATING TO YOUR BREACH OF THESE TERMS OR YOUR ACCESS TO OR USE OF THIS SITE. THE FOREGOING INDEMNIFICATION OBLIGATION SHALL SURVIVE TERMINATION OF THESE TERMS AND THE SITE OR YOUR DISCONTINUANCE OF YOUR USE OF THE SITE.
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 terms and conditions of use between the parties with respect to such subject matter. These Terms and Conditions of Use do not supersede any Distributor Agreement or other agreements between you and ELBECO.
Waiver and Severability — No waiver by ELBECO of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any other provisions of the Terms. The headings and captions in these Terms are intended for convenience only and shall in no way affect the interpretation of the Terms.
Nonperformance or Delay in Performance — ELBECO shall not be liable for any nonperformance or delay in performance caused by any act beyond its reasonable control.
The section titles in these Terms are for convenience only and have no legal or contractual effect.
e. This Site may be unavailable from time to time, including for system maintenance and upgrades. When this occurs, a message will be displayed on-line when you sign on to the Dealer Portal.
These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law principles.
If you have any questions about these Terms please contact us at:
P.O. Box 13099
Reading, PA 19612