Welcome to www.berensonhardware.com (the “Site”), a website provided by Berenson Corp, a New York Corporation (“Berenson”). This website enables the individual (“you”) to shop, and through third-party sites, purchase Berenson’s products and have them shipped to you. These terms govern your use of the Site.
2. InformationIn using the Site, Berenson will not collect data and/or other information from you or the computer (or mobile device) being used by you to access the Site. All such data and other information will be handled by third-party vendors and third-party sites which Berenson relies on to fulfill order requests.
3. AccountIn using the Site to order a Product, User must establish an account with Berenson that is accessible using a user name and password selected by User. User’s user name and password must comply with whatever protocol is from time to time established by Berenson for user names and passwords, and must not be disclosed by User to third parties. User (a) is responsible for maintaining the confidentiality of User’s user name and password, and (b) must immediately notify Berenson in writing of any loss, or any unauthorized access, disclosure or use, of User’s user name or password. Berenson will not have any liability to User or any third party arising from User’s failure to keep User’s user name or password confidential and may at any time, in its sole discretion and without notice to User, terminate or temporarily disable User’s access to such account. In addition, Berenson may rely on any use of User’s user name or password, whether by User or a third party, as having been authorized by User, unless (a) User previously notified Berenson in writing of any loss, or any unauthorized access, disclosure or use, of User’s user name or password, (b) Berenson has had a reasonable opportunity of not less than five days to act on such notice and (c) Berenson’s acting on such notice would have clearly avoided any third-party use of such account that was not authorized by User.4. Your ResponsibilitiesYou are solely responsible and liable for (a) obtaining and maintaining all third-party equipment, software and services necessary to use the Site, (b) protecting access to, and security of, all equipment, software and services used to connect to the Site, (c) performing all of your obligations pursuant to these terms, (d) obtaining and maintaining appropriate licenses and rights for use of any third-party products (including, but not limited to, web-browser software), equipment or services in connection with using the Site, and for paying all fees associated therewith, (e) promptly reporting to Berenson in writing any defect or error in, shortcoming of, and other problem with, the Site, (f) your compliance with applicable law in connection with all matters for which you are responsible hereunder and your use of the Site, and (g) obtaining from any third party any required approval, authorization, consent, license, permission and permit to use the Site as contemplated herein.
5. ContentAll right, title and interest in any content (including, but not limited to, all intellectual property rights therein) made available through the Site (collectively “Content”) belongs to, or is licensed by, Berenson, unless stated otherwise in writing by Berenson. You may access and use any Content solely in connection with your authorized use of the Site, and for no other purpose; provided, however, that you may not, in any case, use any Content for any purpose prohibited by (a) Berenson, in its sole discretion, after you receive notice of such prohibition, (b) these terms, or (c) any applicable law.
6. Third-Party VendorsBerenson may rely on third parties to provide products, services and content in connection with the Site or these terms (individually a “Third-Party Vendor”), and Berenson will have no responsibility or liability with respect to any Third-Party Vendor or any Third-Party Vendor’s products, services or content. A Third-Party Vendor may impose additional terms upon your use of such products, services and content, and you will be bound by such terms. If you desire to receive a copy of such terms, you should request it directly from such Third-Party Vendor.7. Third-Party SitesThe Site may contain links to, or may be accessible through links on, other websites that are not maintained by Berenson. For example, the Site will provide a link to go directly to another website to purchase its products. Berenson is not responsible for any content contained on, or otherwise with respect to, such other websites. No link from the Site to another website, or from another website to the Site, is an endorsement, sponsorship or recommendation by Berenson of such other website and links are provided only for your convenience. Berenson has no responsibility or liability to you arising from any link between the Site and another website.
8. Right to MonitorBerenson may monitor your use of the Site to confirm that you are complying with your obligations pursuant to these terms or for other legitimate business purposes; provided, however, that Berenson has no obligation to do so and any such monitoring will be at Berenson’s sole discretion. Berenson will have no liability to you or any third party in connection with its monitoring (or not monitoring) such use.
9. DisclaimerTHE SITE IS MADE AVAILABLE TO YOU “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, BERENSON DISCLAIMS ALL IMPLIED WARRANTIES (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE).10. Limitation of LiabilityBERENSON WILL NOT BE LIABLE TO YOU WITH RESPECT TO THE SITE, AN ACCOUNT, THESE TERMS OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES. EXCEPT ONLY IN THE CASE OF ANY GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY BERENSON, IN NO EVENT WILL ANY LIABILITY OF BERENSON WITH RESPECT TO THE SITE, AN ACCOUNT, THESE TERMS OR OTHERWISE EXCEED THE LESSER OF (A) ALL DIRECT DAMAGES ACTUALLY INCURRED BY YOU OR (B) $100. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT), EVEN IF THE POSSIBILITY OF ANY DAMAGES SHOULD HAVE BEEN FORESEEN BY BERENSON, AND EVEN IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
11. IndemnificationYou shall indemnify, defend and hold harmless Berenson from all costs, damages, expenses, fines, liabilities, losses, penalties and other payments (including, but not limited to, fees and disbursements of counsel) resulting from, or relating to, (a) your failure to perform any obligation or assume any responsibility pursuant to these terms or any applicable law, (b) any warranty or representation made by you in these terms being untrue or misleading in any respect, (c) any unauthorized use of the Site by you, (d) any products, services or content of Third-Party Vendors, or (e) any action taken, or not taken, by you or any third party in reliance on the Site or any other use of the Site.
12. SeverabilityWhenever possible, these terms will be interpreted in such a manner as to be effective and valid under applicable law. If, however, any of such terms is prohibited by or invalid under such law, it will be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it will be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder thereof being prohibited or invalid.
13. RevisionsBerenson may revise any of these terms from time to time by (a) posting the revision so that it is accessible on the Site. Any such revision will be effective immediately upon such posting as set forth in this Section. You are responsible for periodically checking the Site for revisions to these terms. Any other revision to these terms must be in a writing signed by Berenson and you.
14. Dispute ResolutionIf you have a complaint regarding the Site, an Account, or these terms, you must first submit it to Berenson as set forth in Section 15, and Berenson must be given a reasonable opportunity of not less than 30 days to investigate and respond to such complaint. Upon Berenson’s completing such investigation and so responding, you and Berenson must then attempt, in good faith, to promptly resolve any remaining aspects of such complaint. If any aspect of such complaint remains unresolved after an additional reasonable period of not less than 30 days, and you desire to pursue other remedies, you may, within one year after Berenson received your initial complaint, commence a lawsuit against Berenson in connection with the unresolved portion of such complaint only in a court located in Erie County, New York, and having subject matter jurisdiction over such complaint. You consent to any such court being a proper venue for such complaint, and waive any right to object to such court being an improper venue, whether for inconvenience or otherwise. If any such lawsuit is commenced as set forth herein, you waive any right to a jury trial, and any right to bring or join any claim against Berenson as a member or other participant in any class action or other similar form of litigation.
15. NoticesYou must send notices to Berenson relating to the Site, an Account, or these terms at: Berenson Corp., 2495 Main Street, Suite 111, Buffalo, NY 14214 or firstname.lastname@example.org. Any such notice will be effective upon actual receipt by Berenson. Berenson may send any such notices to you through e-mail or a general posting on the Site. Any such notice from Berenson will be effective (a) immediately upon Berenson’s sending such notice to you at the e-mail address it has in its records for you, and (b) immediately upon your entering the Site after such notice is posted on the Site.
By use of this Site, you represent and warrant to Berenson that you (1) have carefully read and agree to these terms, (2) are agreeing to these on your own behalf, and (3) have sufficient capacity to agree to these terms.