Shaw makes various products and services available in select geographic areas through Shaw’s websites, including but not limited to located at shawcontract.com (the “Site”). This Agreement governs both your use of the Site and any purchase you make on or through the Site. Products and services may not be available in all geographic areas; Shaw’s offering of products and services is solely at Shaw’s discretion.
This Agreement is the complete and exclusive agreement between you and Shaw regarding your use of the Site and the applicable products, samples, or services provided via the Site (the “Products”) purchased or provided through it.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE SITE, MAKING A PURCHASE FROM SHAW, REQUESTING PRODUCTS, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, SHAW IS NOT WILLING TO PROVIDE YOU WITH PRODUCTS OR USE OF THE SITE AND YOU MUST NOT ACCESS OR USE THE SITE. IF YOU ACCESS OR USE THE SITE, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. ANY PRODUCT SOLD OR PROVIDED TO YOU VIA THE SITE IS SOLD ONLY UPON THE FOLLOWING TERMS.
1. Definitions. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.
2. Term. This Agreement is entered into as of the date you first access or use the Site (the “Effective Date”) and will continue until terminated as set forth herein.
3. Modifications. Shaw reserves the right, at any time, to modify the Site with or without notice to you, by making those modifications available on the Site. Shaw also reserves the right, at any time, to modify this Agreement. Shaw will inform you of the presence of any changes to this Agreement by posting those changes on the Site. Any modifications will be effective immediately upon posting on the Site. You may terminate this Agreement as set forth below if you object to any such modifications. However, you will be deemed to have agreed to any and all modifications through your continued use of the Site following such notice period. Shaw will note the effective date of the latest version of this Agreement at the end of this Agreement.
4. Eligibility. The Site and its Products are not available to or intended for individuals under the age of 13 or who do not meet any of the other qualifications included in this Agreement.
5. Account. You are responsible for maintaining the confidentiality of any account information and/or password and all other account numbers. You are responsible for all uses of your account, whether or not actually or expressly authorized by you.
6.1 To the Site. Subject to your compliance with this Agreement, Shaw will permit you to access and use the Site solely for lawful purposes and only in accordance with the terms of this Agreement. You are solely responsible for obtaining and maintaining all equipment, facilities, and connectivity required to use the Site.
6.2 To Content. You may be provided with access to a variety of content through the Site, including marketing, materials, text, audio, video, photographs, maps, illustrations, graphics, and other media (the “Content”). All Content available through the Site is owned by Shaw or Shaw’s third party providers. All Content is provided for informational purposes only, and you are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for your use of any Content. Subject to your compliance with this Agreement, you may access the Content solely for your own personal purposes in connection with your use of the Site. You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Content; or (c) use, alter, obscure or remove any copyright, trademark, or any other notices that are provided on or in connection with any Content. Shaw has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Content provided by third parties through the Site. You are granted no licenses or rights in or to any Content.
7.1 Claims of copyright infringement, with the requisite material listed below, should be directed to our registered agent: Corporate Legal Department, Shaw Industries Group, Inc., 616 E. Walnut Avenue, P.O. Drawer 2128, Dalton, GA. 30722-2128. A notification of claimed infringement must be in the form of a written communication provided to the agent that includes substantially the following: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Shaw Industries to locate the material; (d) information reasonably sufficient to permit Shaw Industries to contact the complaining party, such as an address, telephone number, and, if available, an e-mail address where the complaining party may be contacted; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is, or is authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed.
8. Termination. This Agreement may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Agreement. Upon termination or expiration of this Agreement for any reason you will immediately cease all use of and access to the Site and all Content (including, without limitation, all Content you obtained prior to termination). Termination does not relieve you of any payment obligations relating to purchased Products and this Agreement will continue to apply to all Products purchased prior to termination. Any Section of this Agreement which, by its nature, should survive expiration or termination of this Agreement shall survive such expiration or termination.
9. Representations and Warranties.
9.1. Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Agreement.
9.2. Compliance With Laws. You represent and warrant to Shaw that your use of and access to the Site, including, without limitation, the Content and any other data or information we may provide will comply with all applicable laws, rules, and regulations and will not cause Shaw itself to violate any applicable laws, rules, and regulations. You shall not export a Product in violation of any applicable laws.
10. No Site Warranties; Disclaimer. THE SITE AND ITS CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SHAW DOES NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF ANY CONTENT. WHERE POSSIBLE, SHAW EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SITE AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SHAW, ITS EMPLOYEES, PROVIDERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
11. Limited Product Warranty. Excluding alteration of or damages to the Product caused by someone other than Shaw, We hereby warrant such Product (other than Promotional or Irregular Goods, as described below) in accordance with the applicable written Product warranty, available on the Site, subject to the stipulations in this Agreement. Once a Product has been installed, such Product is deemed accepted by you and no warranty shall apply for color, characteristics, cut, fit or appearance. Your sole and exclusive remedy for a breach of the above warranty is that, at our discretion, we will either replace or repair a Product, in accordance with the applicable written Product warranty available on the Site, that does not conform to an applicable warranty; provided, however, that we shall not be responsible to replace or repair a Product which you or any other third party has damaged or altered. With respect to a Product sold as “Promotional” or “Irregular,” including, without limitation, drops, discontinued items, seconds or the like, such Product is sold to you “AS IS/WHERE IS” without any warranty of any kind. EXCEPT AS SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE MAKES NO OTHER WARRANTIES FOR A PRODUCT OR UNDER THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SHAW, ITS EMPLOYEES, PROVIDERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
12. Indemnity. You hereby agree to indemnify, defend, and hold harmless Shaw and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, Users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation by a third party against any Indemnified Party arising in any manner from your access to or use of the Site, Content, or Products and your breach of any representation, warranty, or other provision of this Agreement. Shaw will provide you with notice of any such claim or allegation, and Shaw will have the right to participate in the defense of any such claim at its expense.
13. Limitation on Liability. SHAW WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, DELAY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE SITE, CONTENT, OR PRODUCTS, EVEN IF SHAW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. EXCEPT FOR PRODUCT WARRANTY CLAIMS UNDER THE APPLICABLE WRITTEN PRODUCT WARRANTY AVAILABLE ON THE SITE, SHAW’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL PRODUCTS PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO SHAWIN THE 3 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO ANY LIABILITY. YOU AGREE THAT SHAW WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, SHAW’s LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. Product. Shaw will arrange for third party delivery of the Product to your designated destination but you shall bear all risk of loss for the Product upon delivery to your designated destination. Shaw does not guarantee shipment or delivery by a certain date or time, although we will strive to arrange for delivery of Products by any date that we communicate to you. Shaw shall not be liable for any loss or damage of any kind which results from delay in shipment, delivery, or failure to give notice of delay. We reserve the right to backorder any Product and to ship from backorder in such order as we determine. You shall bear all risk and expense for Product installation. If applicable, all Products must be installed in accordance with the Product installation guide provided by Shaw. You acknowledge that it is an accepted standard in the industry that for (i) variations may exist between samples provided and complete Product; (ii) color variations exist between dye lots, stains, pieces of wood, etc.; (iii) natural characteristics exist (i.e., wood Products may have mineral streaks, knots or grain variations); (iv) cut and measurement variances occur (i.e., a Product’s actual sizing may vary some from measurements stated on a final order description); and (v) shrinkage, separation, expansion and warping occur, even when the Product is properly installed (i.e., a wood Product may expand or contract due to seasonal and temperature changes, thereby creating separation between boards). As a result Shaw cannot and does not guarantee that a Product, whether in whole or in part, will exactly match in specification, color, character, form, cut, fit, or otherwise, and you acknowledge that reasonable variance, including (without limitation) those stated herein, are permissible. We reserve the right to change Products and the components of Products (i.e., backing, yarn system, etc.) without prior notice. No order may be cancelled or Product returned to us unless done so in accordance with our Return Policy available on the Site.
16. Prices, Payment, Taxes. Our prices are subject to change without notice, and we make no guarantee that a previously quoted price is available at the time an order is placed. You represent to Shaw and Shaw’s third party payment processor that you have the right to use any credit card or other means of payment that you provide to us and that all billing information you provide is truthful and accurate. You assume exclusive liability for any and all taxes, such as sales or use tax, related to the Product.
17. Disputes. Except as otherwise provided below, Shaw may elect, in its sole discretion, to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach, or termination of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Shaw Contact in the State of Georgia, U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment on the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
18. Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations, or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Georgia, U.S.A. as such laws apply to contracts between Georgia residents performed entirely within Georgia without regard to the conflict of laws provisions thereof. Subject to Section 17 (Disputes), each party will bring any action or proceeding arising from or relating to this Agreement exclusively in the Superior Court of Whitfield County, Georgia or the United States District Court, Northern District of Georgia, Rome Division, and you irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Shaw.
19. Notices. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Shaw by postal mail to: Shaw Industries, Inc., 616 E. Walnut Avenue, P.O. Drawer 2128, Mail Drop 026-01, Dalton, GA 30722, Attn: Financial Services. Shaw may provide you with any notices required or allowed under this Agreement by sending you an email to any email address you provide to Shaw in connection with your account, provided that in the case of any notice applicable both to you and other Users of the Site, Shaw may instead provide such notice by posting on the Site. Notices provided to Shaw will be deemed given when actually received by Shaw. Notice provided to you will be deemed given 24 hours after posting to the Site or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
20. Linked Sites. The Site may contain links to third party sites that are not under the control of Shaw. If you access a third party site then you do so at your own risk. Shaw is not responsible for any content on any linked site or linked content.
21. Additional Terms. Unless otherwise amended as provided herein, this Agreement is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding your access to and use of the Site or purchase of Products from the Site. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by Shaw under this Agreement must be in writing or later acknowledged by Shaw in writing. Any waiver or failure by Shaw to enforce any provision of this Agreement on one occasion will not be deemed a waiver by Shaw of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees including costs and fees on appeal. Any assignment of this Agreement by you will be null and void. Shaw may assign this Agreement to any party that assumes Shaw obligations hereunder. The parties hereto are independent parties, not agents, employees, or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.