Last updated: June 30, 2010
These Website Terms of Service (including any document incorporated by reference herein) for the Express Flooring, LLC. (“EF”) websites, located at “www.expressflooring.com” and such other websites as may be owned and/or controlled by EF (collectively the “websites”) that contain these Website Terms of Service (“Terms of Service”), constitutes a legal contract between you and EF and covers all aspects of your use of the websites and, to the extent not superseded by the terms and conditions of any contract we may sign with you, of any product or service that we may supply to you.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING OR OTHERWISE USING THE WEBSITES YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF AT ANY TIME YOU DISAGREE WITH ANY OF THESE TERMS AND CONDITIONS, YOU SHOULD IMMEDIATELY CEASE YOUR USE OF THE WEBSITES.
1. Eligibility; Privacy.
The products and services offered through the websites are not available to persons under the age of 18 or to persons who are not legal residents of the United States, by visa or otherwise. BY CLICKING ANY “SUBMIT” OR OTHER BUTTON OR BY ACCESSING, BROWSING OR OTHERWISE USING THE WEBSITES YOU REPRESENT AND WARRANT TO US THAT YOU ARE AT LEAST 18 YEARS OF AGE AND ARE A LEGAL RESIDENT OF THE UNITED STATES.
Some of the products and services offered through the websites may be subject to additional terms and conditions, including those products and services offered by or through third-party providers. To the extent not inconsistent with these Terms of Service, these additional terms and conditions are hereby incorporated herein by reference; however, in the case of any inconsistency between these Terms of Service and any other document that is incorporated by reference herein, these Terms of Service shall control.
2. Products and Services.
Certain of the websites function as an online marketplace where visitors can research and submit requests for various flooring types and research different types of home and commercial products and services. You understand and agree that if you submit a request for a product or service or for further information relating to a product or service offered through any of the websites, EF will share such of your information as may be required in order to match you with selected providers of the products and/or services that you request.
By submitting your contact information to us, you are expressly consenting to be contacted by us or by one or more providers of products and services by telephone, email or postal mail even if you have opted into the national Do Not Call List administered by the Federal Trade Commission, any state equivalent Do Not Call List or the Do Not Call List of any specific institution.
3. Modification of These Terms of Service.
EF reserves the right to change, modify, add or remove portions of these Terms of Service at any time by posting amended Terms of Service. Please check these Terms of Service periodically for changes. Your continued use of any of the websites after the posting of changes constitutes your binding acceptance of such changes. Except as stated elsewhere, such amended Terms of Service will be effective immediately and without further notice.
4. License Grants.
Subject to your compliance with these Terms of Service, EF hereby grants you a personal, limited, non-exclusive, non-transferable revocable license to use the websites for purposes of accessing the information and contacting the providers of the products and services contained therein.
EF expressly reserves all rights not specifically granted herein, including but not limited to the right to exercise whatever lawful means it deems necessary or appropriate to prevent unauthorized use of the websites.
5. Prohibited Conduct.
By using the websites, you agree not to :
- Use the websites for any purpose other than to access the information and contact the providers of the products and services advertised therein;
- submit, transmit or facilitate the distribution of information or content that is illegal, harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, or in a reasonable person’s view, objectionable;
- attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the websites or bypass the measures we may use to prevent or restrict access to the websites;
- take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- use any robot, spider, scraper or other similar system to access the websites;
- impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity; or
- submit, upload, post, email, transmit or otherwise make available any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.
6. Ownership & Proprietary Rights.
The websites are owned and operated by EF. All content displayed on the websites, as well as all visual interfaces, graphics, designs, information, computer code (including source code or object code), software and all other elements of the websites are protected by United States copyright, trade dress, patent and trade/service mark laws, international conventions, where applicable, and all other relevant intellectual property and proprietary rights and laws. Except as otherwise specified on the websites, all content contained on the websites is the property of EF and/or its third-party licensors. Except as expressly authorized by EF, you may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from or otherwise make any unauthorized use of such content.
7. Links to Third-Party Sites; Dealings with Third Parties.
The websites may include links or references to other web sites owned or operated by third parties with which EF may have a relationship. EF has no control over such third party web sites and, thus, is not responsible for their availability, content or advertising, or any products or services available from such third parties. Your correspondence or business dealings with such third parties are solely between you and such third party. Access and use of such web sites is solely at your own risk.
Your correspondence or business dealings with any third parties, including, but not limited to, business dealings with carpet and grout cleaning companies, or any other product or service provider are solely between you and such third party. EF is not responsible for any terms, conditions, warranties or representations associated with such dealings or liable for any loss or damage of any sort incurred as the result of such dealings.
By using the websites as directed, you are acknowledging that EF does not make credit decisions in connection with any product or service offered to you, does not recommend, endorse, warrant or guarantee the products or services of any third party and is not party to any discussions that you may have or agreement that you may make with any third party. EF does not charge anyone a fee to use the websites.
8. Termination; Exclusive Remedy.
EF at any time, in its sole discretion, for any or no reason, and without penalty or liability, may terminate your use of the websites and terminate any session. EF may also in its sole discretion and at any time discontinue providing access to one or more websites. Any termination of access to the websites may be effected with or without prior notice, and EF will not be liable to you or to any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.
Your sole and exclusive remedy with respect to any dissatisfaction with (i) the websites, (ii) any term or condition of these Terms of Service or (iii) any policy or practice of EF in operating any website is to terminate your access to and discontinuing use of the websites.
You agree to indemnify, save and hold EF and its contractors, employees, agents and its third party suppliers and business partners harmless from any claims, losses, damages and liabilities, including legal fees and expenses, arising out of your use or misuse of the websites, any violation by you of these Terms of Service or any breach of the representations, warranties and covenants made by you herein. EF reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with EF’s defense of any such claims. EF will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
10. No Warranty; Disclaimers.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EF AND ITS THIRD PARTY SUPPLIERS AND BUSINESS PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EF OR THROUGH THE WEBSITES WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE.
THE USE OF THE WEBSITES IS AT YOUR SOLE RISK. THE WEBSITES AND ANY DATA, INFORMATION, COMMERCIAL CONTENT, THIRD-PARTY WEB SITES, PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THE WEBSITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE,” “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
NONE OF EF OR ITS THIRD PARTY SUPPLIERS AND BUSINESS PARTNERS WARRANT THAT ANY DATA, INFORMATION, COMMERCIAL CONTENT, THIRD-PARTY WEB SITES, PRODUCTS OR SERVICES OFFERED ON OR THROUGH THE WEBSITES OR ANY THIRD PARTY WEB SITES WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT ANY OF THE FOREGOING, IF PRESENT, WILL BE CURED OR STOPPED. YOUR USE OF THE WEBSITES OR ANY THIRD PARTY WEB SITES IS AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OF SUCH WEBSITES.
11. Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL EF OR ITS THIRD PARTY SUPPLIERS AND BUSINESS PARTNERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE WEBSITES OR ANY THIRD-PARTY WEB SITE OR ANY OTHER INTERACTIONS WITH EF, EVEN IF EF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, EF’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
BY YOUR USE OF ANY EF WEBSITE, YOU ARE AGREEING TO RELEASE AND DISCHARGE EF AND ITS THIRD PARTY SUPPLIERS AND BUSINESS PARTNERS AND EACH OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES AND ALL OTHER RELATED PERSONS OR ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS AND EXPENSES OF ANY KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
13. Dispute Resolution.
In the event of a dispute between you and EF that arises out of these Terms of Service or any product or service you obtain through the websites (“Claim”), you and EF agree to resolve that Claim in accordance with the procedures set forth below or as we may otherwise agree in writing. Before resorting to these dispute resolution mechanisms, you must first contact us directly to seek a resolution. If, however, we are unable to resolve our differences informally, EF will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
For any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, either party may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider chosen by the party seeking arbitration. The ADR provider and the parties must comply with the following rules:
- the arbitration shall be conducted by telephone or online and be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;
- the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
- any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.1 Notice. EF may provide you with notices by e-mail, regular mail or postings on any website. Notice will be deemed given twenty-four hours after e-mail is sent, unless EF is notified that the e-mail address used is invalid. Alternatively, EF may give you legal notice by mail to a postal address, if provided by you through any website. In such case, notice will be deemed given three (3) calendar days after the date of mailing.
All notices to EF must be made in writing and mailed to:
Express Flooring, LLC.
4101 West Washington St, Suite 100
Phoenix, AZ 85009
Attn: Customer Services
14.2 Waiver and Severability of Terms. The failure of EF to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by EF. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the other provisions of these Terms of Service shall remain in full force and effect and the parties agree that such court should endeavor to give effect to the parties’ intentions.
14.3 Choice of Law; Forum. These Terms of Service shall be governed in all respects by the laws of the State of Arizona as they apply to agreements entered into and to be performed entirely within Arizona between Arizona residents, without regard to conflict of law provisions.
Any claim or dispute you may have against EF must be resolved by a court located in Phoenix, Arizona, except as otherwise agreed by the parties or as described in Paragraph 13. You agree to submit to the personal jurisdiction of the courts located within Maricopa County, Arizona for the purpose of litigating all such claims or disputes.
All claims filed or brought contrary to either Section 13 or this Section 14.3 shall be considered improperly filed. Should you file a claim improperly, EF may recover reasonable attorneys’ fees and costs, provided that EF has notified you in writing of the improperly filed claim and you have failed to withdraw the claim promptly.
14.4 Assignment. You may not transfer or assign any of your rights and obligations under these Terms of Service without the express prior written consent of EF, give in its sole discretion. However, you acknowledge and agree that EF may freely and without restriction or limitation assign or transfer any of its rights and obligations under these Terms of Service.
14.5 Entire Agreement.These Terms of Service and any document incorporated by reference herein constitute the entire agreement between you and EF and govern your use of the websites, superseding any prior agreements between you and EF. Notwithstanding the foregoing, you also may be subject to additional terms and conditions that may apply when you use or purchase certain products and/or services provided by EF or one of EF’s third party business partners.
The following paragraphs shall survive termination or your refusal to continue to use the Service: 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14.
PLEASE PRINT AND RETAIN A COPY OF THESE TERMS OF SERVICE FOR YOUR RECORDS.
© Express Flooring, LLC, 2010. All rights reserved.