(Effective November 1, 2016)
1. INTRODUCTION AND ACCEPTANCE
Welcome to True Partners, an interactive online cost-recovery service provided by Midwest Motor Supply Co., Inc., d/b/a Kimball Midwest ("Kimball Midwest," " "us," "we," or "our") designed to assist you with your orders of products from Kimball Midwest, assist you in providing invoices and other information to your customers for those products, and allow you to view and/or obtain your work order histories and various other reports relating to your usage of True Partners from Kimball Midwest. "You" or "your" as used in these Terms of Use means the person or entity ordering products from Kimball Midwest and any of your owners, employees or contractors who you authorize to access and utilize True Partners on your behalf. You shall be solely responsible for the acts of all owners, employees or contractors accessing or utilizing True Partners on your behalf and guarantee their compliance with the following Terms of Use. The person who clicks "I Agree" below represents and warrants that they have all power and authority necessary to bind the person or entity ordering parts from Kimball Midwest, and utilizing True Partners, to these Terms of Use.
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING TRUE PARTNERS. BY CLICKING "I AGREE" BELOW AND ACCESSING AND/OR USING TRUE PARTNERS (OTHER THAN TO READ THESE TERMS OF USE FOR THE FIRST TIME) YOU ARE AGREEING TO COMPLY WITH THESE TERMS OF USE, WHICH MAY CHANGE FROM TIME TO TIME AS SET FORTH IN SECTION 14 BELOW. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, DO NOT ACCESS OR USE TRUE PARTNERS.
2. TRUE PARTNERS ACCESS AND USE
(A) Access to True Partners including, without limitation, True Partners Content (as defined in Section 3) is provided for your use in accessing and providing information relating to your orders from Kimball Midwest and sharing that information with your customers. While you may convey information provided through True Partners to your customers, in no event will you allow your customers or any third party to have access to True Partners through your account. When using True Partners to provide any information to your customers, you agree to comply with all applicable federal, state, and local laws including, without limitation, all consumer protection, privacy and unfair competition laws. Except as expressly permitted in these Terms of Use, you may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit True Partners Content for any purpose whatsoever without obtaining prior written consent from us. In certain instances, we may permit you to download or print True Partners Content or both. In such a case, you may download or print (as applicable) such materials for use within your business or for providing such materials to your customers. In no event will you provide such materials, or access to True Partners, to any competitor of Kimball Midwest. You acknowledge that you do not acquire any ownership rights by downloading or printing any True Partners Content.
(B) Furthermore, except as expressly permitted in these Terms of Use, you may not:
(i) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice on True Partners Content;
(ii) circumvent, disable or otherwise interfere with security-related features of True Partners including, without limitation, any features that prevent or restrict access to, or use of, any content or information on the servers housing True Partners;
(iii) use an automatic device (such as a robot or spider) or manual process to copy or "scrape" True Partners or True Partners Content for any purpose without our express written permission;
(iv) attempt to collect or harvest any personally identifiable information from True Partners including, without limitation, user names, passwords, email addresses, customer information provided by other users (you may collect and use any information on customers that you have provided);
(v) attempt to or interfere with the proper working of True Partners or impair, overburden, or disable the same;
(vi) decompile, reverse engineer, or disassemble any portion of any True Partners;
(vii) impersonate another user, person, or entity (e.g., using another person's Account Information (as defined in Section 4) without permission, etc.); or
(viii) engage in any conduct that restricts or inhibits any other registered user from using or enjoying True Partners.
(C) You agree to fully cooperate with us to investigate any suspected or actual activity that is in breach of these Terms of Use.
3. INTELLECTUAL PROPERTY
True Partners and included content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features (collectively, the "True Partners Content") and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear on True Partners are owned by us, our licensors, or both. Except for the limited use rights granted to you in these Terms of Use, you shall not acquire any right, title or interest in True Partners Content. Any rights not expressly granted in these Terms of Use are expressly reserved.
4. USER REGISTRATION
In order to access or use some features of True Partners, you must become a registered user. If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will create a user name and password ("Account Information"). You are responsible for safeguarding and maintaining the confidentiality of your Account Information. You are solely responsible for the activity that occurs through the use of your Account Information, whether or not you have authorized the activity. You agree to notify us immediately at truepartners@kimballmidwest.com of any breach of security or unauthorized use of your Account Information.
5. USER PROVIDED DATA
(A) We may now or in the future permit you to input, upload, transmit through, or otherwise make available on True Partners (collectively, "submit") information, including personally identifiable information, regarding you or your customers ("User Data").
(B) You shall not submit any personally identifiable information of your customers where the customer has not consented to your collection and use of such information as part of your business transaction. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Data that you submit.
(C) You represent, warrant, and covenant that you will not submit any User Data relating to your customers that includes social security numbers, bank account numbers, credit card numbers or the like.
(D) By submitting User Data through True Partners, simultaneously with such submission, you automatically grant to us the right, permission and license to use such User Data for internal business purposes and for providing you with further information and services, at our discretion, such as inventory tracking, order history reports, auto-ordering functionality (if provided and agreed upon), value added reporting, etc. Kimball Midwest will not use any User Data relating to your customers to contact such customer or to create or sell any customer lists.
(E) True Partners is not a data storage service or fully integrated CRM for you or your customers. You agree not to use or rely on it as such. We have the right, but not the obligation, to delete any User Data from the True Partners system at any time, with or without notice to you, and any submitted User Data may remain in the True Partners system indefinitely.
(F) You acknowledge that Kimball Midwest has the right to discontinue the operation of, or your access to, True Partners at any time, in its absolute discretion. In the event of such discontinuance, your access to any User Data you provided will also be terminated and Kimball Midwest will have no obligation to return, or provide further access to, such User Data.
6. TRUE PARTNERS CONTENT & INFORMATION
(A) We provide True Partners including, without limitation, True Partners Content and information made available for you to convey to your customers for informational purposes only. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of True Partners Content and information prior to conveying it to your customer. Under no circumstances will we be liable for any loss or damage caused by your reliance, or your customer's reliance, on any True Partners Content or information.
(B) If there is a dispute between you and your customer relating to information that you submitted to True Partners or conveyed to your customer from True Partners, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release Kimball Midwest its officers, directors, employees, parents, partners, successors, agents, affiliates, subsidiaries, and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
7. INDEMNIFICATION
You agree to indemnify and hold harmless Kimball Midwest and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys' fees and costs) arising out of, related to, or that may arise in connection with: (i) your access to or use of True Partners; (ii) User Data provided by you or through use of your Account Information; (iii) any actual or alleged violation or breach by you of these Terms of Use; (iv) any actual or alleged breach of any representation, warranty, or covenant that you have made to us; or (v) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.
8. DISCLAIMERS
(A) YOU EXPRESSLY AGREE THAT USE OF TRUE PARTNERS IS AT YOUR SOLE RISK. TRUE PARTNERS AND TRUE PARTNERS CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, KIMBALL MIDWEST AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT TRUE PARTNERS WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF TRUE PARTNERS OR TRUE PARTNERS CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON TRUE PARTNERS OR ACCESSED THROUGH TRUE PARTNERS; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF TRUE PARTNERS; (6) WARRANTIES THAT YOUR USE OF TRUE PARTNERS WILL BE SECURE OR UNINTERRUPTED; (7) WARRANTIES RELATING TO THE AVAILABILITY AND SECURITY OF USER DATA; AND (8) WARRANTIES THAT ERRORS IN THE SOFTWARE USED TO OPERATE TRUE PARTNERS WILL BE CORRECTED OR UPDATED.
9. LIMITATION ON LIABILITY
(A) UNDER NO CIRCUMSTANCES SHALL KIMBALL MIDWEST OR ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, OR THEIR RELATED COMPANIES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF KIMBALL MIDWEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF TRUE PARTNERS OR THESE TERMS OF USE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH TRUE PARTNERS INCLUDING, WITHOUT LIMITATION, TRUE PARTNERS CONTENT IS TO STOP USING TRUE PARTNERS. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH TRUE PARTNERS, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH TRUE PARTNERS.
(B) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF KIMBALL MIDWEST AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES EXCEED THE GREATER OF THE TOTAL PAYMENTS RECEIVED FROM YOU BY KIMBALL MIDWEST FOR SERVICES OR PRODUCTS OFFERED THROUGH TRUE PARTNERS DURING THE PRECEDING TWELVE (12) MONTH PERIOD OR $100. FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF TRUE PARTNERS OR THESE TERMS OF USE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
(C) In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
10. TERMINATION
(A) We reserve the right in our sole discretion and at any time to terminate or suspend your Account Information and/or block your access to True Partners for any reason including, without limitation if you have failed to comply with the letter and spirit of these Terms of Use. You agree that Kimball Midwest shall not be liable to you or any third party for any termination or suspension of your Account Information or for blocking your access to True Partners.
(B) Any suspension or termination shall not affect your obligations to us under these Terms of Use. The provisions of these Terms of Use which by their nature should survive the suspension or termination of your Account Information or these Terms of Use shall survive including, but not limited to the rights and permissions relating to User Data that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, no class action, no trial by jury and all of the miscellaneous provisions in Section 15.
11. CHOICE OF LAW; JURISDICTION AND VENUE
These Terms of Use shall be construed in accordance with the laws of the State of Ohio without regard to its conflict of laws rules. Any legal proceedings against Kimball Midwest that may arise out of, relate to, or be in any way connected with our True Partners or these Terms of Use shall be brought exclusively in the state and federal courts located in Columbus, Ohio and you waive any jurisdictional, venue, or inconvenient forum objections to such courts.
12. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
13. NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
14. AMENDMENT; ADDITIONAL TERMS
(A) We reserve the right in our sole discretion and at any time and for any reason, to modify or discontinue any aspect or feature of True Partners or to modify these Terms of Use. In addition, we reserve the right to provide you with operating rules or additional terms that may govern your use of True Partners generally, unique parts of True Partners, or both ("Additional Terms"). Any Additional Terms that we may provide to you will be incorporated by reference into these Terms of Use. To the extent any Additional Terms conflict with these Terms of Use, the Additional Terms will control.
(B) Modifications to these Terms of Use or Additional Terms will be effective immediately upon notice, either by posting on Kimball Midwest's website at: www.kimballmidwest.com/TPTermsOfUse or by notification by email or within True Partners. It is your responsibility to review the Terms of Use and Kimball Midwest's website from time to time for any changes or Additional Terms. Your access and use of any True Partners following any modification of these Terms of Use or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any subsequent revision to the Terms of Use or to any Additional Terms, immediately discontinue use of True Partners.
15. MISCELLANEOUS
(A) No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
(B) If any part of these Terms of Use is unlawful or unenforceable for any reason, we both agree that only that part of the Terms of Use shall be stricken and that the remaining terms in the Terms of Use shall not be affected.
(C) These Terms of Use constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between us with respect to such subject matter.
(D) You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. We may assign these Terms of Use or any rights hereunder without your consent and without notice.