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Terms & Conditions
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TriMark R.W. Smith Terms & Conditions

Revised as of June 25, 2018

TriMark Terms & Conditions

TriMarkUSA, LLC ("we," "us," or "TriMark USA") operate several websites with home pages at: www.TriMarkUSA.com; www.TriMarkPortal.com; www.TriMarkPremier.com; www.TriMarkKitchenSolutions.com; www.Adams-Burch.com; www.RWSmithCo.com; www.ISI-Texas.com; and www.Hockenbergs.com. These websites, together with our mobile site, mobile applications, email, text, or other electronic messages, constitute the "Website." These Terms and Conditions apply to your access and use of the Website. Your access or use of our Website, or your clicking to accept or agree to the Terms and Conditions when this option is made available to you, constitutes your agreement to the following Terms and Conditions and to be bound by them and our Privacy Policy [link], which is incorporated herein by this reference. If you do not agree to the following Terms and Conditions or the TriMark USA Privacy Policy, do not access or use the Website.

These Terms and Conditions are Subject to Change

TriMark USA reserves the rights to update or modify these Terms and Conditions at any time without prior notice. The changes will go into effect immediately upon posting to the Website. By continuing to use a TriMark USA Website, you are agreeing to the revised or modified Terms and Conditions. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

Users / Participants

Our Website is not intended for children under 13 years of age. No person under the age of 13 should use the Website. We strongly encourage all parents and guardians to monitor the Internet use by their children. Use of the Website by any user shall be deemed to be a representation that the user is 13 years of age or older. If you do not meet this requirement, you must not access or use the Website.

Use of Website

The TriMark USA Website is intended for the sole personal, non-commercial use of individuals and entities in the United States wishing to review, consider, purchase or otherwise engage in transactions involving TriMark USA's goods or services, or access resource and industry information made available on the Website. We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Website or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. TriMark USA has the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms and Conditions.

Intellectual Property Rights

The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by the TriMark USA, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website. Notwithstanding the foregoing, these Terms and Conditions authorize the following limited actions:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your web browser for display enhancement purposes.
  • You may download and/or print one (1) copy of this Website's content solely for your personal and internal use, provided you do not delete or modify any copyright, trademark, or other proprietary notices. You may not otherwise use, copy, modify, distribute, mirror, republish or transmit any of the content or materials of this Website without the prior written consent of TriMark.
  • If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
  • If we provide social media featureswith certain content, you may take such actions as are enabled by such features.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms and Conditions, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by TriMark USA. Any use of the Website not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark, and other laws.

TriMark USA's name and all related names, logos, product and service names, designs, and slogans displayed or used in the contents of this Website are trademarks of TriMark USA or its affiliates or licensors. You shall not use such marks without the prior written permission of TriMark USA. All third party names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

User Comments

We welcome your comments about our Website. However, any comments, feedback, notes, messages, ideas, suggestions or other communications regarding our Website sent to TriMark USA, including through correspondence or the "Contact Us" feature of the Website (collectively "Comments") shall be and remain the exclusive property of TriMarkUSA. Your submission of any such Comments shall constitute an assignment to TriMarkUSA all worldwide rights, titles and interests in all copyrights and other intellectual property rights in the comments. TriMarkUSA will be entitled to use, reproduce, disclose, publish and distribute any material you submit for any purpose whatsoever, without restriction and without compensating you in any way. Do not send us any comments that you do not wish to assign to us, including any confidential information, 3rd party or licensed content, or any original creative materials such as stories, product ideas or computer code.

Acceptable Use

You are responsible for your use of the Website, and for any use of the Website made using your account. Our goal is to create a positive, useful and safe user experience. To promote this goal, we prohibit specific kinds of conduct that may be harmful to other users or to us. When you use the Website, you may not:

  • Violate any law or regulation.
  • Violate, infringe, or misappropriate other people's intellectual property, privacy, publicity or other legal rights.
  • Post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful or otherwise objectionable.
  • Send unsolicited or unauthorized advertising or commercial communications, such as spam.
  • Engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Website.
  • Transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems.
  • Stalk, harass or harm another individual.
  • Impersonate any person or entity or perform any other similar fraudulent activity, such as phishing.
  • Use any means to scrape or crawl any web pages contained in the Website.
  • Attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Website.
  • Attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Website.
  • Advocate, encourage, or assist any third party in doing any of the foregoing.

We may take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website. We may also terminate or suspend your access to all or part of the Website for any or no reason, including without limitation any violation of these Terms and Conditions. However, we cannot undertake to review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party.

User Content

This Website may allow selective capabilities, such as personal web pages or profiles, forums or other interactive features, to upload, submit, store, send or receive content and data, including reviews, remarks, reactions or opinions provided by you to TriMark USA and others through our Website ("User Content"). Such User Content is non-confidential and considered non-proprietary.

When you upload, submit, send, or receive User Content to or through the Website, you grant to TriMark USA and its affiliates and service providers, and each of their and our respective licensees, successors and assigns, the perpetual right to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works or works better with the Website), publicly perform, publicly display, disclose and otherwise distribute to any third party your User Content, for any purpose whatsoever, without restriction and without compensating you in any way.

We may display advertisements in connection with your User Content or on pages where your User Content may be viewed by you or others, and we may use your User Content to advertise and promote TriMark USA or the Website. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Website.

  • You own and control all rights to your User Content or, alternatively, that you have the right to give us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the rights described above.
  • Your User Content does and will comply with these Terms and Conditions.
  • Your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.

We may refuse to accept or transmit User Content for any reason. We may remove User Content from the Website for any reason. You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not TriMark USA, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Content posted or submitted by you or any other user of the Website. We may also take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Terms and Conditions. We may disclose your identity or other information about you to any third party who claims that material posted by you violates their rights.

Privacy Policy

All information we collect on this Website is subject to our Privacy Policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Copyright Policy

We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent:

  • Your address, telephone number, and email address.
  • A description of the copyrighted work that you claim has been infringed.
  • A description of where the alleged infringing material is located.
  • A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
  • An electronic or physical signature of you or the person authorized to act on behalf of the owner of the copyright interest.
  • A statement by you, made under penalty of perjury, that the information in the written notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
  • Send correspondence to the Copyright Agent: Corporate Director of Ecommerce, TriMark USA, LLC, 603 West Street, Mansfield MA 02048, 508-399-2400, info@trimarkusa.com

For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all requirements of this section, your notice may not be validated. Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA. You understand and agree that: (1) TriMark USA assumes no liability or responsibility for any third party content or material of any kind that is submitted to or posted on the website by any other users or third parties, and (2) TriMark USA is merely a transmitter of any such content, and is acting solely as an Internet Service Provider as such term is defined in the DMCA.

If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the Copyright Agent described above containing the following information:

  • Your physical or electronic signature;
  • Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • A statement under penalty of perjury by you that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Massachusetts, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification, we will be unable to restore the material. If we do not receive such notification, we may reinstate the material. Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

Hyperlinks to other Websites

To the extent our Website contains hyperlinks to outside services and resources, the availability and content of which TriMark USA does not control, any concerns regarding any such service or resource, or any hyperlink thereto, should be directed to the particular outside service or resource. We have no control over the contents of those sites or resources, and 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 Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

Disclaimer

THIS WEBSITE, AND ALL CONTENT AVAILABLE ON THIS WEBSITE, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE, BY YOUR ACCESS OR USE OF THIS WEBSITE THAT YOUR ACCESS OR USE IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE, AND THAT OF TRIMARK USA AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS ("AFFILIATES") SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THIS WEBSITE.

IN PARTICULAR AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRIMARK USA AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE WEBSITE, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE WEBSITE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRIMARK USA AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE WEBSITE; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE WEBSITE BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE WEBSITE.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TRIMARK USA OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO THE WEBSITE, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TRIMARK USA'S OR ITS AFFILIATES' LIABILITY TO YOU OR ANY THIRD PARTY EXCEED $10.00.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any warranty or limit our liability, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.

Product and Pricing Information

The prices displayed on our Website may differ from prices that are available in stores or in catalogs. If you are in the U.S., Website prices will be displayed in U.S. Dollars. The prices displayed on our Website and in our print catalogs are quoted in U.S. Dollars and are valid and effective only in the U.S. While we take great care to ensure accuracy in our displayed prices, TriMark USA is not responsible for pricing errors, typographical mistakes or technical glitches. Users will be notified if an order includes a pricing error and steps will be taken to have the charge corrected.

All posted and printed prices are subject to change.

Additional terms and conditions may also apply to specific products, services or features of the Website. All such additional terms and conditions are hereby incorporated by this reference into these Terms and Conditions.

Special Offers

Occasionally we will offer special promotions to our customers that we refer to as a special offer. This can include a gift with purchase, free shipping, manufacturer offers, or other promotional activity associated with a product purchase. These offers may be for a limited time only and subject are to change or cancellation at any time.

Inaccuracy Disclaimer

The information presented on or through the Website is made available solely for general information purposes. From time to time there may be information on our Website or in our catalog that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. TriMark USA reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). If you do not wish to continue your purchase after pricing or other information has been corrected, please contact us right away and we may work with you to cancel or return your order in TriMark USA's sole discretion.

Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify and hold harmless TriMark USA and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney's fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms and Conditions by you or anyone using your account, or your use of the Website, including but not limited to your Comments or User Content. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.

Arbitration Agreement & Waiver of Certain Rights

You and TriMark USA agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and TriMark USA hereby waive any right to a jury trial of any Claim. All controversies, claims, counterclaims, or other disputes arising between you and TriMark USA relating to these Terms and Conditions of the Website (each a "Claim") shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association ("AAA Rules") applying the law of the State of Massachusetts. The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You agree that the arbitration will be kept confidential by you and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed by you beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.

This arbitration agreement does not preclude TriMark USA from seeking action by federal, state, or local government agencies. TriMark USA also has the right to bring qualifying claims in small claims court. In addition, TriMark USA retains the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms and Conditions, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms and Conditions.

You may not act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.

If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms and Conditions will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms and Conditions. This Section of the Terms and Conditions will survive the termination of your relationship with TriMark USA.

THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR TRIMARK USA WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

Other Provisions

Any action relating to the use of the Website, catalogs or any transaction with TriMark USA must be brought in the state or federal courts located in Massachusetts. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.

These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Massachusetts, without giving effect to any conflict of laws rules or provisions.

Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.

If any provision of these Terms and Conditions is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and Conditions and will not affect the enforceability of any other provisions.

The failure by us to enforce any right or provision of these Terms and Conditions will not prevent us from enforcing such right or provision in the future.

We may assign our rights and obligations under these Terms and Conditions, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. You may not assign rights and obligations under these Terms and Conditions, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law, without TriMark USA's prior written consent.

These Terms and Conditions and the Privacy Policy constitute the sole and entire agreement between you and TriMark USA regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.

For questions related to TriMark USA, contact us at info@trimarkusa.com or 1-888-662-6935.


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