TERMS AND CONDITIONS
Acceptance of Terms
In order to access and use certain areas or features of the Site, you may need to provide certain information and/or answer certain questions. Each registration is for a single user only. You agree to (a) provide accurate, current and complete information, (b) maintain and promptly update, as necessary, your information, (c) be responsible for the acts or omissions of any third party who has authority to access or use the Site on your behalf, and (d) immediately notify PSW if you discover or otherwise suspect any security breaches related to the Site. If you provide information that is untrue, inaccurate, not current or incomplete, we may suspend and/or terminate any and all current or future use of the Site.
By providing information and/or answering questions, you also consent to receive electronic communications from PSW (e.g., via email or by posting notices to the Site). These communications may include notices and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from PSW by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
Access to your account on the Site is accomplished through the use of an email address and a password, which you will create. Your password should be kept strictly confidential to prevent unauthorized use. You agree to notify PSW promptly of any unauthorized use of your password and you will remain liable for any use of the Site until you notify PSW of the unauthorized use of your password.
License to Access and Use the Site
Unless otherwise indicated in writing by us, the Site and all content and other materials contained therein, including, without limitation, the PSW logo and all designs, text, graphics, pictures, information, data, software, User Content (as defined in Section 6), other files and the selection and arrangement thereof (collectively, "Content") are the property of PSW or our licensors or users, as applicable, and are protected by U.S. and international copyright and other laws.
Subject to these Terms, you are hereby granted a personal, non-exclusive, non-transferable, non-sublicensable license to access and make personal, non-commercial use of the Site and Content. All rights not expressly granted herein are reserved. You do not acquire any ownership interest in the Site or Content under these Terms, or any other rights thereto other than to use the Site in accordance with the license granted, and subject to all terms, conditions and restrictions of these Terms.
However, such license is subject to these Terms and does not include any right to, and you shall not, directly or indirectly: (a) sell, resell or use commercially the Site or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Site or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than page caching) any portion of the Site or Content, except as expressly permitted by us, (f) use the Site to stalk, threaten, or otherwise violate the rights of others, including without limitation others' privacy rights or rights of publicity; (g) interfere with the Site or servers or networks used in connection with the Site; or (h) use the Site or Content other than for their intended purposes.
Any use of the Site or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of PSW or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Content.
THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS CONTAINED IN THE SITE, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED ON AN "AS IS" BASIS WITH NO WARRANTY, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PSW DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH INFORMATION, SERVICES, PRODUCTS, AND MATERIALS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL ELEMENTS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. PSW DOES NOT WARRANTY THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. IN ADDITION, PSW DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS SITE IS ACCURATE, COMPLETE OR CURRENT. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE. NOTHING IN THIS SECTION LIMITS THE TERMS OF ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF SUCH PRODUCT THAT IS SOLD TO USE THROUGH THE SITE.
PSW often obtains item photographs from third party vendors and/or manufacturers. We do not investigate to determine if information is accurate nor can we provide assurance that all data is free of typographical errors. We cannot guarantee information displayed on the Site to be 100% accurate.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PSW OR ITS SUBSIDIARIES, AFFILIATED COMPANIES, EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF PSW HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE SITE, OR ANY INFORMATION OR MATERIALS PROVIDED ON THE SITE OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR SERVICE, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM PSW, OR FROM EVENTS BEYOND PSW'S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PSW RECORDS, PROGRAMS OR SYSTEMS). PSW IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING (WITHOUT LIMITATION) COMPENSATORY, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND/OR CLAIMS OF THIRD PARTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF PSW ARISING OUT OF OR IN ANY WAY RELATED TO THE SITE EXCEED THE AMOUNT PAID TO PSW FOR ANY PRODUCTS OR SERVICES IN THE NINETY (90) DAYS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE PSW'S SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
The receipt of an e-mail order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. PSW reserves the right to accept or decline any order, or to limit the order quantity on any item and/or refuse service to any customer. In the event PSW declines, limits or modifies your order, PSW will attempt to contact you using the email address you provided. In the event PSW cancels an order or a part of an order that you have already been charged for, PSW will refund you the full amount of the canceled portion of the order. Verification of information may be required prior to the acceptance of any order.
You are responsible for, and agree to pay promptly, for all your purchases and charges to your account, including applicable taxes. In the event a check is returned or electronic payment is denied, PSW may impose a fee to cover the cost of any charges incurred by PSW. You shall be responsible and liable for any fees, including attorneys' fees and collection costs, that PSW may incur in its efforts to collect any unpaid balances from you. If payment cannot be charged to your credit card or a payment is returned to for any reason, including chargeback. PSW reserves the right to suspend or terminate your access to the Site, including your customer account.
Suspension of Service
PSW may suspend or terminate your access to the Site at any time for any reason with or without notice to you. You are liable for any orders or charges you place prior to such termination.
Delivery of Services
Your order(s) will be shipped to the address designated by you. Orders may arrive in multiple packages and on separate days with multiple Product Order forms (POs) depending on type of and volume of product ordered. Some products may have restricted delivery within the United States. PSW shall not be liable for delays or prevention of delivery due to unforeseen circumstances, or acts of God, which may include, but is not limited to, weather conditions, traffic conditions, and/or mechanical difficulties.
Tax Exempt Transactions
The Site does not support tax-exempt transactions for residential customers. All qualified tax-exempt residential customer transactions can be made via mail order at 1-800-772-0467. If you are a PSW Commercial Customer with a company or business that is tax-exempt, your order will be displayed without tax. All orders placed through the Site are displayed with tax as an estimate. All estimates for tax will be corrected upon shipment of the product(s) ordered.
Links to Other Websites
User Generated Content
Any content submitted to the Site, including all reviews, comments, communications and the like (herein known as "Comments"), become the property of PSW upon submission. By submitting the Comments, you acknowledge your legal rights to submit such information and agree to the assignment to PSW of all rights, titles and interest both in the United States and Internationally for all Copyrightable and intellectual properties in the Comments.
Once the Comments are submitted, PSW may use the Comments in any fashion it deems appropriate. By using the Comments, PSW is under no obligation to maintain any Comments in confidence, to compensate for any Comments, or to respond to the authors Comments. Further, you agree to not hold PSW liable for any costs and/or damage caused from instructions or recommendations from comments. PSW recommends any work be performed by a licensed professional and that product label directions always be followed. You agree that any Comments submitted by you to the Site will not violate the preceding sentence or any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s), and will not cause injury to any person or entity. You further agree that all Comments submitted by you to the Site will not contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of "SPAM".
Further, PSW reserves the right, though not the duty, to monitor and/or edit or remove any Comments submitted to the Site. You grant PSW the right to use your name (or alias), supplied at your submission in connection with any Comments. Since we may desire to respond on some Comments, you agree not to supply a false email address, impersonate any person or entity, or otherwise provide misleading information as to the origin of any Comments you submit.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH PSW AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
By using the Site, you hereby agree that all claims relating to your access or use of the Site, including all disputes arising out of, or related to any products or services purchase through the Site, will be resolved entirely through binding individual arbitration, rather than in court. You may assert individual claims in small claims court if such claim is within such small claims court's authority. The Federal Arbitration Act and federal arbitration law apply to this agreement.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS AGREEMENT. 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, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. RIGHTS THAT YOU OR PSW MAY HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
To begin an arbitration proceeding, you must send a demand to the American Arbitration Association describing your claim and serve a copy of the demand on PSW registered agent: Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808. The arbitration will be conducted by AAA under its rules, including AAA's Supplementary Procedures for Consumer-Related Disputes. You can contact AAA to find out more information on how to commence an arbitration proceeding. Payment of all filing, administration and arbitrator fees will be governed by AAA applicable rules. PSW will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines your claims are frivolous. Likewise, PSW will not seek attorneys' fees and costs in arbitration unless the arbitrator determine the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree to bring any dispute in arbitration on an individual basis only, and not on a class, consolidated, representative or collective action basis. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial or to participate in a class action against the other. In addition, we both agree that we each may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Effective Date: September 8, 2020