Effective Date: March 20th, 2021
These Terms of Service (“Terms”) govern your use of our website (the “Site”) and related products and services, including any content or information provided as part of the Site or such related products, services or websites (the “Products”), which are owned or operated by Otrio Capital LLC, a North Carolina limited liability company (“Motor Supply”, “we”, “our” or “us”).
These Terms may apply to you individually, the business or other legal entity user you represent, or both. If you are using the Site or ordering Products on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of such entity. By accessing the Site, registering for or ordering the Products, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. As used in these Terms and unless separately identified as applicable to either an individual or entity, “you” and “your” refer to both you individually and the entity on behalf of which you are entering into these Terms.
1. Access & proprietary information
As a condition of gaining access to, and utilizing the benefits of, the online Motor Supply Co Inc store, you, the “Site User”, acknowledge and agree to the following:
- Site User qualifies for access to the Motor Supply Co Inc store (www.MotorSupplyCo.com) and is a customer or potential customer of Motor Supply Co Inc and wishes to obtain access to the Motor Supply Co Inc store.
- All Site information is Motor Supply Co Inc. Proprietary Information.
- Participation in the store is a privilege, not a right and may be terminated by Motor Supply Co Inc with or without notice at any time for any reason.
- Participation is limited to Site User and must be for the Site User’s personal use only.
- Sharing pricing or other information from this site with anyone is prohibited
- The Motor Supply Co Inc store (including all pages of this website) contains confidential and proprietary information, including without limitation, sensitive product, pricing and promotional information and sales and delivery terms.
- You may not disclose this information, or the fact that it is being made available to Site Users via the Motor Supply Co Inc store, to any person or entity except as necessary to fulfill the buy-sell relationship between Site User and Motor Supply Co Inc. Examples of permissible disclosure include to your shop employees (e.g. shop manager, inventory and ordering associate) and financial and tax professionals. Price sharing with anyone, including with these professionals, is strictly prohibited.
- SPECIFICALLY, AND WITHOUT LIMITING YOUR OTHER OBLIGATIONS NOT DISCLOSE MOTOR SUPPLY CO INC CONFIDENTIAL INFORMATION, SITE USER MAY NOT IN ANY CIRCUMSTANCES DISCLOSE MOTOR SUPPLY CO INC CONFIDENTIAL INFORMATION TO ANY PERSON OR ENTITY FOR COMPARISON SHOPPING PURPOSES!
3. Your Eligibility; Your Responsibility
To be eligible to order the Products, you represent and warrant that you: (i) are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside; (ii) are not currently restricted from the Products and are not otherwise prohibited from having an account related thereto; (iii) will only maintain one account at any given time; (iv) will only provide accurate information to Motor Supply; (v) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (vi) will not violate any rights of Motor Supply or a third party.
You assume all responsibility for your use of, and access to, the Products. Accounts are for a single user, company or other legal entity, as applicable. Any multiple-party use, other than individual use on behalf of a company or other legal entity, is prohibited. For example, sharing a login between non-entity individual users is prohibited.
We reserve the right to change these Terms from time to time by publishing the changed Terms on the Site. You agree to review these Terms periodically to be aware of such changes. Your continuing access or use of the Site following such publication shall be deemed your conclusive acceptance of these Terms, as revised. We reserve the right to add, modify, or remove the Site or any information, feature, specification, or other part of the Site (at any time and without notice to you).
5. Your privacy
6. Our intellectual property
The entire content of the Site is protected by copyright and other laws of United States, and under similar laws and international conventions abroad. You acknowledge and agree that all copyright and other intellectual property rights that may subsist in the Site including without limitation text, illustrations, photographs, video, music, sounds, layout, designs, source code, logos, trademarks, or domain names belong to us or to our licensors (together, our “Intellectual Property”). We value our Intellectual Property and will vigorously enforce those rights to the fullest extent permitted by law.
7. Limited permission to use
You may view, download, or print portions of the Site (and you may otherwise use the permitted functionality of the Site) solely for your own personal use, provided that you agree not to change or delete any copyright or proprietary notices from such portions. You must not otherwise print or reproduce any part of the Site for any reason except with our prior written consent in each instance. By making the Site available to you, we do not give you any other right, title, interest, or license in or to any of our Intellectual Property.
You must not access or use the Site other than in accordance with these Terms. In the course of accessing and using the Site, you must not:
- copy, distribute, resupply, republish, upload, post, transmit, sell, prepare derivative works from, or otherwise deal with our intellectual property except as expressly permitted under these Terms or otherwise with our prior written consent in each instance;
- disrupt or interfere with the Site, or any other software, hardware or network associated with the Site;
- use simultaneous, unattended, or continuous connections to the Site or otherwise use the Site in a manner that adversely affects the availability of its resources to other users;
- send unsolicited electronic messages or to otherwise harass, threaten, abuse, embarrass, or cause distress, unwanted attention, or harm to any person;
- transmit any files or material of any kind which contain a virus, corrupted data, or other malicious code (whether via the Site or in any email that you send to us);
- transmit any files or material of any kind that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
- transmit any files or material of any kind that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights;
- transmit any files or material of any kind that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- gain, or attempt to gain, unauthorized access to any part of the Site (including any other user’s account), any other computer system, or any email or other private message not intended for you;
- infringe, or attempt to infringe, the intellectual property rights of any person; or
- engage in any monitoring or interception of data not intended for you without authorization;
- engage in any monitoring or interception of data not intended for you without authorization;
- falsify user identification information;
- impersonate any person or entity, including, but not limited to, an Motor Supply representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- violate any laws, rules, or regulations applying to or relating to your access to or use of the Site.
9. Third party trade marks
All third party trademarks appearing on the Site are the property of their respective owners, and are used on the Site merely to refer to the trade mark proprietor or its products. The use of any third party trademarks on the Site is not intended to imply any connection between us or our products and services and the trade mark proprietor or any of its products or services, nor any endorsement of our products or services by the trademark proprietor.
10. Account creation and account details
In order to be able to access certain information and functionality offered on the Site, you must create an account. To create your account, you must provide all requested account registration details in the manner described on the Site (including selecting a username and password which we will use to verify your identity when you use the Site). You must ensure that your account details are complete and accurate when submitted to us, and you must keep your account details up-to-date.
11. Your username and password
Your username and password are personal to you and you must at all times maintain the confidentiality of your username and password and not disclose them to any third party. Your username and password may be used by one person only, i.e. a single login is not permitted to be shared by multiple people. You agree that you are solely responsible for any use of the Site by any person using your username and password and you agree to indemnify us against any and all claims arising out of your failure to maintain the confidentiality of your username or password. We will not be liable for any loss that you may incur as a result of someone else using your password or account (whether with or without your knowledge). You agree to notify us immediately of any unauthorized use of your account or any other breach of security.
12. User content
The Site may enable you to create, modify, transmit, upload, or submit images and other materials and information (together, ‘user content’). By creating, modifying, transmitting, uploading, or submitting any user content (‘your user content’), you:
- grant us a non-exclusive, royalty-free, fully paid-up, worldwide, perpetual, irrevocable, license to (i) use, copy, modify, distribute, transmit, broadcast, create derivative works of, publicly display and publicly perform your user content (by all means and in any media now known or hereafter developed); (ii) license, sell, rent, lease, or lend copies of your user content (and derivative works thereof); (iii) sublicense to third parties any or all of the aforementioned rights (including the right to sublicense to further third parties); (iv) use and publish your name and alias in connection with your user content as well as in connection with all advertising, marketing and promotional material that we may publish in relation to your user content; and (v) make your user content available to other users of the Site for their personal use (and you permit those users to use, modify, copy, distribute, transmit, display, perform, reproduce, publish, and create derivative works of your user content in accordance with the permitted functionality of the Site and otherwise as permitted by us); and
- acknowledge and agree that no royalties or other compensation will be paid or payable to you for your user content, or for the granting of the rights described above.
13. Feedback and unsolicited ideas
If you give us feedback about the Site or our products or services, you grant us the right to use that feedback for the purpose of improving our website, products or services (and for any other purpose we deem necessary or desirable) without being obliged to pay you any compensation in respect of our use of that feedback. We (and our employees and agents) do not accept or consider unsolicited ideas, including artwork, demos, samples, and other ideas for new promotions, products, product names, processes, technologies, or materials (‘unsolicited ideas’). You must not send unsolicited ideas to us. If you do send us unsolicited ideas:
- we do not warrant or represent that those unsolicited ideas will be treated as confidential or proprietary; and
- such unsolicited ideas will be treated and licensed as if they were ‘user content’ in accordance with these Terms.
14. Interactions between users
You are solely responsible for your interactions with other users of the Site or any of our Products. We reserve the right, but have no obligation, to monitor interactions, discussions, or disputes between you and other users. You hereby release Motor Supply from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Site or Products, (ii) any dispute between you and another user, or (iii) arising out of any Products which originated through the Site or were otherwise provided by a user. Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Site or Products.
15. Monitoring and termination
We have no obligation to you to monitor the Site or any user content. However, we reserve the right to review any user content and to remove any user content if we receive a complaint about that user content, or otherwise in our sole discretion. We may at any time edit, refuse to display, or remove any part of the Site (including your user content) as we deem necessary to satisfy any applicable law, regulation, legal process or governmental request. We may (at any time and without notice to you) suspend or terminate your account if you breach any of these Terms, or otherwise for any reason whatsoever.
16. Your warranties
You must not create, modify, transmit, upload, or submit any user content that does not comply with all of the warranties and representations described below. You warrant and represent that:
- you own or otherwise have all rights necessary for you to create, modify, transmit, upload, or submit your user content and grant the rights described in clause 10;
- where copyright (or any other intellectual property right) in any part of your user content does not belong to you, the owner of that part has granted you permission to use that part in accordance with the permitted functionality of the Site and to license that part in accordance with clause 10;
- your user content does not contain any viruses, worms, spyware, or other components or instructions that are malicious, deceptive, or designed to limit or harm the functionality of a computer;
- your user content does not contain or comprise material that is unlawful, objectionable, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive; encourages conduct that would be considered a criminal offence, give rise to civil liability, violate any law; contains any falsehood or misrepresentation that could damage us or any third party; or is otherwise inappropriate; and
- each person depicted in your user content (if any) has provided consent to the use of your user content as permitted through the functionality of the Site and the licensing of your user content in accordance with clause 10 (including, without limitation, the copying, distribution, public display of your user content).
Your purchase of each Product shall be governed by these Terms and any additional terms that we communicate to you at the time of purchase.
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19. Contract formation
The Site and the information on it constitute an invitation to treat and not an offer to supply Products. When you order Products from us, this constitutes an offer from you to buy those Products in accordance with these Terms. Only when we have accepted your order through the website following our receipt of your payment for that order shall a contract be formed between you and us.
20. Order Process
You must complete and agree to all the terms and conditions in the pre-approval form (“Pre-Approval Form”) provided by us to you prior to ordering any Products. We will determine, in our sole discretion, if you may order Products from us. IF WE REJECT YOUR PRE-APPROVAL FORM, YOU MAY NOT ORDER THE PRODUCTS WITH CREDIT TERMS, AND MUST PREPAY WITH A CREDIT CARD FOR YOUR ORDER TO BE PROCESSED.
If we accept your Pre-Approval Form, you may order Products from us by completing the relevant form online and providing us with the details of your order. You must provide all required information (including your name and email address). We shall then accept or reject your order through the Site following our receipt of your payment for that order.
21. Permissible Purpose and Consents
You understand and agree that, by establishing an account with Motor Supply, or inquiring about or purchasing any Product, you have provided “written instructions” in accordance with the Fair Credit Reporting Act, as amended (“FCRA”), for Motor Supply to obtain your credit report and/or credit score(s) on a recurring basis to determine your Customer Credit (as defined in the Pre-Approval Form) while you have an account with Motor Supply, and such information may be obtained from CreditSafe or any other credit reporting company (“Credit Bureaus”). You understand and agree that, pursuant to such authorization, Motor Supply may access your credit profile, including without limitation, your credit report, credit score(s) and any other written, oral, or other communication of information by a Credit Bureau bearing on your credit standing, character, or general reputation. You further understand and agree that, by establishing an account with Motor Supply, or submitting your order or inquiring about purchasing any Product, you have provided “written instructions” in accordance with the FCRA for Motor Supply to obtain and use the information you have provided, and your credit report(s) and/or score(s) to notify you of your Customer Credit and other products and services that may be available to you through Motor Supply.
You hereby authorize Motor Supply or its authorized agents, for purposes of determining Customer Credit for the purchase of Products, to obtain or prepare consumer reports at any time after it receives this authorization. You authorize law enforcement agencies, public and private schools, federal, state and local agencies and courts, credit bureaus, information bureaus, current and former employers, financial institutions, licensing agencies, governmental agencies, the military, and other individuals and entities to provide any and all information that is requested by the Credit Bureaus, other consumer reporting agencies, or Motor Supply. You understand and agree that any information you provide to Motor Supply may be used to obtain consumer reports.
22. Our discretion in rejecting or accepting orders
No order shall be deemed accepted by us until you have received an order confirmation from us. We reserve the right to accept or reject (for any reason whatsoever and in whole or in part) any order submitted by you. If we reject your order (or part of your order), any money paid by you in relation to the rejected part of that order shall be refunded and we shall have no further liability to you in relation to the rejected part of that order.
The price payable by you for any Product ordered by you shall be the price quoted on the Site at the time your order is submitted. We may vary any prices on the Site at any time and without notice to you.
Except where specifically stated in relation to a particular good or services, the prices for the goods or services are stated and payable in United States dollars (USD).
25. Taxes and other charges
All prices on the Site are exclusive of all import fees, duties, tariffs, taxes or other imposts or charges which may be payable in relation to your order. You shall be liable to pay any import fees, duties, taxes, and other imposts or charges which are payable in relation to your order. We shall not be liable for any import fees, duties, tariffs, taxes or other imposts or charges which may be payable in relation to your order.
We may charge fees or other amounts to access certain aspects of the Products available on the Site. We have no obligation to supply Products unless and until we receive payment of all prices and fees. You are fully liable for all charges incurred under your account whether or not authorized by you. You must pay for your orders using the third-party payments service selected by us, such as Clickbank.com or PayPal. You agree to pay for your orders by authorizing our nominated third-party payment service to charge your credit card account for the total price of the goods or services ordered and the applicable delivery charges (if any). You agree to be bound by the terms of these third-party payment services.
27. Recurring payments
You agree to pay for any Subscription Products by recurring payment. We will automatically charge you the relevant charges on a recurring basis. If you elect to subscribe for a Subscription Product on a monthly basis, then we will automatically charge you the relevant charges for the subsequent month unless you cancel your subscription before the new monthly subscription term begins. If you elect to subscribe for a Subscription Product annually, we will automatically charge you the relevant charges for the subsequent year, unless you cancel your subscription before the new annual subscription terms begins. You accept responsibility for all recurring charges incurred prior to cancellation. You agree that we may make periodic charges relating to your subscription without further authorization from you.
28. Problems with payments
If there is a problem with your payment (for example, if your credit card transaction is declined), we may contact you to make alternative payment arrangements. You will be liable for all debt collection costs where you fail to make payment for any order.
29. Availability of Products, accuracy
All orders are subject to the availability of the Products we provide. If for any reason a Product is not available, we will endeavor to notify the non-availability on the Site. We may revise the range of Products or the specification of any product at any time and without notice to you.
Although we have endeavored to ensure that the Products and pricing information provided on the Site is accurate, complete, and current, we do not provide any representations or warranties as to its accuracy, completeness or currency of information, and we shall not be responsible or liable for any inaccurate, incomplete, or out-of-date information on the Site.
30. Cancellation of orders: Non-Subscription Products
You may cancel your order any time prior to our order confirmation. Because downloadable goods or services are available to you, and could be copied by you on delivery, you cannot cancel once we have confirmed your order. If you cancel an order in accordance with these Terms before confirmation, we will refund your money as soon as reasonably possible and in any event within 30 days of cancellation of your order.
31. Cancellation of orders: Subscription Products
You may cancel your subscription for any Subscription Product any time by giving us 48 hours’ notice that you wish to cancel your subscription. If you cancel an order in accordance with these Terms, we will cancel future subscription instalment payments as soon as reasonably possible. Please note that if you give us notice of cancellation fewer than 48 hours before a pending subscription instalment payment is due to be charged, we cannot guarantee that that payment will be cancelled.
32. Incorrect Information
Where any Product is listed on the Site with an incorrect price or with incorrect information, we reserve the right to cancel your order (regardless of whether you have made payment for that order). Where you have already made payment for an order that is subsequently cancelled by us we will refund the amount paid by you in relation to that order.
33. Ownership and risk
You agree that all Products made available to you through the Site are for personal use and cannot be copied, distributed, resupplied, or otherwise deal with except as expressly permitted under these Terms or otherwise with our prior written consent in each instance. Any software made available through the Site (through purchase or otherwise) is licensed not sold.
34. Availability of website
Your use of the Site and any associated services may sometimes be subject to interruption or delay. Due to the nature of the Internet and electronic communications, we and our service providers do not make any warranty that the Site or any associated services will be error free, without interruption or delay, or free from defects in design. We will not be liable for any damages or refunds should the Site become interrupted or delayed for any reason.
While we endeavor to ensure that the content of the Site is free from errors, we do not give any warranty or other assurance as to the content of material appearing on the Site, its accuracy, completeness, timeliness or fitness for any particular purpose.
36. Outbound hyperlinks
The Site may contain hyperlinks to third party websites (“Outbound Hyperlinks”). Outbound Hyperlinks are provided for your convenience only and may not remain current or be maintained. We make no endorsement of, and accept no responsibility for, any content accessible through any Outbound Hyperlink. You are responsible for complying with any terms and conditions imposed by third party websites.
37. Inbound hyperlinks
You agree that you will not publish or distribute any hyperlinks, hotlinks, or deep-links to the Site (“Inbound Hyperlink”) without our prior written permission in each instance. If you do create an Inbound Hyperlink, you will be responsible for all losses (whether direct or indirect) that we may suffer as a result of that hyperlink. Publishing or distributing Inbound Hyperlinks is done at your own risk.
38. Malicious code
Although we endeavor to prevent the introduction of viruses or other malicious code (together, ‘malicious code’) to the Site, we do not guarantee or warrant that the Site, or any data available from it, does not contain malicious code. We will not be liable for any damages or harm attributable to malicious code. You are responsible for ensuring that the process that you employ for accessing the Site does not expose your computer system to the risk of interference or damage from malicious code.
Although we endeavor to protect the security of your personal information you acknowledge that there is a risk of unauthorized access to (or alteration of) your transmissions or data or of the information contained on your computer system or on the Site. We do not accept responsibility or liability of any nature for any losses that you may sustain as a result of such unauthorized access or alteration. All information transmitted to you or from you is transmitted at your risk, and you assume total responsibility and risk for your use of the Site and the Internet. We do not accept responsibility for any interference or damage to your own computer system which arises in connection with your accessing of the Site or any outbound hyperlink.
40. Third party products and services
You acknowledge and agree that, except for information, products or services clearly identified as being supplied by us, we do not operate, control or endorse any third party, information, products or services on the Internet in any way. Except for information, products or services clearly identified as being supplied by us, all information, products and services offered through the Site (or on the Internet generally) are offered by third parties that are not affiliated with us.
41. Third party materials, websites, and interfaces
Certain Products available via the Site may include materials owned by third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any person and that we are not in any way responsible for any such use by you. We may provide links to third-party websites as a convenience to you. We do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You acknowledge that you may be subject to additional terms and conditions that apply when you use those third party materials, websites or interfaces (or affiliate services, third-party content, or third-party software).
42. Disclaimer of warranties
Actual service coverage, speeds, locations and quality may vary. Motor Supply will attempt to provide the Products at all times, except for limited periods for maintenance and repair. However, the Products may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Products or communications Products or networks. We may impose usage or Products limits, suspend the Products, or block certain kinds of usage in our sole discretion to protect users or the Products. The accuracy and timeliness of data received is not guaranteed.
YOUR USE OF THE PRODUCTS IS AT YOUR SOLE RISK. ALL SITE CONTENT AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. MOTOR SUPPLY DOES NOT WARRANT THAT THE PRODUCTS WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. MOTOR SUPPLY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, MOTOR SUPPLY’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION
43. Requested data disclaimer
The information or data that you acquire or specifically request using the tools or services of the Site (‘Requested Data’) may be licensed to us from third parties (each a ‘Data Provider’). We do not in any way represent or warrant the accuracy, completeness, timeliness or good title to any Requested Data sub-licensed to you. Your access to and use of Requested Data is conditional on your acceptance and acknowledgement of the terms of this clause (‘Requested Data Disclaimer’). We do not undertake any evaluation, further inquiries, or investigations into or in respect of the source of the data. You agree that you will direct or bring any queries, claims, or disputes concerning the Requested Data to the attention of, or against, the relevant Data Provider. The Requested Data is provided to you by us on an ‘as is’ basis. We do not give any warranty or other assurance as to the Requested Data or any other content or material appearing on or accessed through the Site, including its accuracy, completeness, timeliness or fitness for any particular purpose. To the maximum and fullest extent permissible at law we disclaim all responsibility for any damages or losses including, without limitation, financial loss, damages, loss in business projects, loss of profits or indirect or consequential losses arising in contract, tort (including negligence) or otherwise from our provision of the Requested Data or any other content or your use of, or inability to use the Requested Data, or any material appearing on or accessed through the Site, or from any action or decision taken as a result of using the Requested Data, or any such material, information, or data. We may terminate our supply of the Requested Data to you at any time for any reason.
44. License to use Requested Data
You are permitted to use any Requested Data that is provided to you through the Site for your internal business purposes only. Any other use of the Requested Data or any other materials in which any Data Provider has intellectual property rights in will be a violation or infringement of those rights. As a licensee of in respect of the Requested Data we reserve our rights to enforce any infringement of those intellectual property rights and you agree that each Data Provider shall also have the right to bring actions, claims, or other legal proceedings against you with respect of your misuse or infringement of its intellectual property rights.
45. Limitation of liability
UNDER NO CIRCUMSTANCES WILL MOTOR SUPPLY, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“MOTOR SUPPLY PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
AN MOTOR SUPPLY PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID MOTOR SUPPLY FOR YOUR USE OF THE PRODUCTS IN THE PRIOR THREE (3) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE MOTOR SUPPLY PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MOTOR SUPPLY TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE SECTION ABOVE WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
You agree to defend, indemnify and hold the Motor Supply Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you submit or otherwise transmit through our Products; (iii) your violation of any rights of another; or (iv) your use of the Products. Motor Supply reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
47. Dispute Resolution
Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
48. Electronic Notices and Disclosures
You acknowledge and agree that Motor Supply may provide notices and other disclosures to you electronically by posting such notices or other disclosures on Motor Supply’s website or by emailing it to you at any email address provided to Motor Supply by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
49. Other terms
These Terms, along with any rules, guidelines, or policies published on the Motor Supply homepage constitute the entire agreement between Motor Supply and you with respect to your use of our Site and Products. If there is any conflict between the Terms and any other rules or instructions posted on the Site, the Terms shall control. No amendment to these Terms by you by shall be effective unless acknowledged in writing by Motor Supply. Notwithstanding the foregoing, Motor Supply reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above. These Terms shall be governed by, and construed in accordance with, the laws of the state of Georgia, without reference to its choice of law rules. Subject to the arbitration provisions above, exclusive venue for any action arising out of or in connection with this agreement shall be in Atlanta, Georgia. The parties each hereby consent to the jurisdiction and venue in Atlanta, Georgia and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that Motor Supply shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Site or the Products must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect. You may not assign your rights or obligations under these Terms without the prior written consent of Motor Supply. Motor Supply’s failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms. These Terms do not limit any rights that Motor Supply may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to Motor Supply, pursuant to this Agreement or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Motor Supply. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Site or the Products, or any other materials issued in connection therewith, or exploitation of the Products or any content or other material used or displayed through the Site. Except as otherwise expressly set forth herein, there shall exist no right of any person, other than you and Motor Supply, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by this Agreement.
If you have any questions, complaints, or claims, you may contact Motor Supply at:
Via e-mail: firstname.lastname@example.org
By writing to us:
Motor Supply Co.
9311-K Monroe Rd,
Charlotte, NC 28270