Barton’s
HOME OUTLET
Independent Installers Directory
Terms & Conditions Agreement for Customers
This agreement and these terms and conditions (herein the “Agreement”), are entered into by and between you, a person, and/or any other person, business or entity that you represent (collectively, “you” or “your”) and E.C. Barton & Company, d/b/a/ Barton’s Home Outlet, its subsidiaries, divisions, and affiliates (collectively, the “Company,” “we,” “us,” or “our”). This Agreement governs your use of this website and the Directory described below (whether published in printed form, digitally, electronically, online or other media), as well as any related mobile and social media applications, and any other sites on which this Agreement may appear or to which it may apply (collectively, “Sites”). By using any of the Sites, you hereby unconditionally agree to be bound by this Agreement and the Privacy Policy found here. The Privacy Policy, and such other terms and conditions as may apply to content such as surveys, contests, sweepstakes, and company branded credit cards, are incorporated herein by reference. This Agreement shall inure to the benefit of the Company. If you are accessing or using the Sites or the Directory, described below, on behalf of an entity or business, you represent and warrant to Company that you have authority to accept this Agreement on behalf of that entity or business and that the entity or business agrees to the terms and conditions of this Agreement. If you do not agree to the terms and conditions of this Agreement, you are not authorized to use the Sites or Directory. We may modify the terms and conditions of this Agreement at any time in our sole discretion. You are responsible for periodically checking for changes and are bound by them if you continue to use the Sites or the Directory, as described below.
1. DIRECTORY ACCESS & USE: Company is a building materials retailer supplying homeowners, do-it-yourselfers (DIYers) and professionals with a wide array of building materials (“Products”) and excellent customer service as they engage in remodeling and/or restoration projects. Company provides as one of its Sites an online directory (herein “Directory”) of independent and unaffiliated installers and contractors (each herein an “Installer”), and its customers may from time to time elect to retain one or more Installers to provide installation services (herein “Services”) for Products purchased or acquired from Company. The Directory is being provided to you as a free service to find and locate an Installer to assist you with the installation of Products purchased from the Company. While Installers listed in the Directory have agreed to perform their Services in accordance with certain standards, the Company has made no independent investigation, review, or evaluation of the Installers listed in the Directory or the accuracy or truthfulness of the content posted by the Installers. You should note that in performing their Services some Installers may not adhere to or comply with the standards which we have asked them to meet. Therefore, we do not and will not recommend, endorse, promote, sponsor, or support any Installer listed in the Directory, and it is crucial that you conduct your own independent investigations, reviews, and evaluations of the Installers listed in the Directory before retaining any Installer in the Directory or allowing any Installer to commence work on your project. ACCORDINGLY, IN CONSIDERATION OF YOUR ACCESS TO THE DIRECTORY, YOU ACKNOWLEDGE AND AGREE THAT EACH INSTALLER INCLUDED IN THE DIRECTORY IS AN INDEPENDENT PARTY AND HAS NO AFFILIATION WHATSOEVER WITH THE COMPANY AND THAT THE COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, PROMISES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY INSTALLER OR THE QUALITY OR VALUE OF ITS SERVICES, THE SKILL OR COMPETENCY OF ANY INSTALLER, THE PRICE OR COST OF THE SERVICES PERFORMED BY AN INSTALLER, ANY TRUTH OR ACCURACY OF ANY STATEMENTS OR PROMISES MADE BY AN INSTALLER, OR THE MORAL OR ETHICAL CHARACTER OF ANY INSTALLER.
The Sites and Directory are owned by the Company. All right, title, and interest in and to the materials found thereon, including text, graphics, logos, trademarks and trade names, icons, images, audio, and video, are owned or licensed by the Company or third parties with whom the Company has contracted, are protected by United States and international copyright laws, and all intellectual property rights therein, whether owned by the Company or by third parties, are expressly reserved. If you have accepted this Agreement and (1) are of sufficient age and capacity to use the Directory and/or the Sites and to be bound by this Agreement, or (2) use the Directory and/or the Sites on behalf of an entity or business, thereby binding that entity or business to this Agreement, we grant you limited, revocable, non-exclusive, and non-assignable permission to view and use the Sites and the Directory, and the materials thereon, for your use as a customer of Company only. No other uses are permitted, and any unpermitted use is unauthorized. You may not copy, modify, distribute, transmit, transfer, or sell any such materials without the express written consent of the Company, and such permission shall terminate automatically and without notice in the event of any breach of the terms and conditions of this Agreement. Furthermore, nothing contained herein should be construed so as to grant you, whether by implication, estoppel, or otherwise, any license or right to use any text, graphics, logos, trademarks, trade names, icons, images, audio, and video displayed on the Sites or the Directory without the express written consent of the Company or third party owner thereof. You grant us a perpetual, irrevocable, unlimited, worldwide, fully paid/sublicensable license to use, copy, display, distribute, and make derivative works from content or materials you post on the Sites or the Directory, and the Company may use such content or materials for any purpose whatsoever. Any content or materials you submit to the Company, via the Sites, the Directory, or by other means, shall be considered non-confidential and non-proprietary. You, and not the Company, shall be responsible for the content and/or materials you submit. The Company shall have no liability for or related to such content or materials whatever. You or Company may suspend or terminate your use of the Sites or the Directory at any time, and for any or no reason.
Children under the age of 13 are not permitted to use the Sites or the Directory. If a parent or legal guardian of a child under the age of 13 learns that a child has provided us with personal information, please contact us so that the information can be deleted. If you are a parent or legal guardian of a child between the ages of 13 and 18 and have allowed such child to use the Sites or Directory, you hereby agree to be bound by this Agreement on behalf of such child and further agree to be fully responsible for such child’s use of the Sites and Directory.
The Sites and Directory may contain links to third party websites. By clicking these links, you will be taken to websites that are not under our control. These links are provided for your reference only and the inclusion of such links does not imply an endorsement, sponsorship, or association with the third party owner or operator of the websites or the material contained thereon.
The posting or transmission of any profane, obscene, unlawful, or otherwise inappropriate material is prohibited. If the Company determines that you have violated or are reasonably likely to violate such prohibition then the Company may, in addition to all other remedies available to it at law or in equity, take such measures as the Company, in its sole discretion, deems necessary or appropriate to remove the offending materials or otherwise cure the violation. Where permitted or required by law, the Company will provide information regarding such posts, including the identities of parties posting such materials, to comply with court order(s), or other legal or regulatory requirement(s).
2. PRODUCTS AND ACCURACY OF INFORMATION: The Company reserves the right to alter, update, or otherwise change information, including but not limited to, descriptions, pricing, and specifications of the Products and Services described and/or depicted on the Sites without notice to you. The Company makes reasonable efforts to accurately display the Products and Services. However, the Company does not guarantee that information will be accurately displayed, complete, or current. Information relating to Products found on the Sites may differ from information available at Company store locations.
3. DISCLAIMER OF WARRANTIES, LIMITATIONS OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, OR BUSINESS INTERRUPTION, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, OR REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF THE FOREGOING OR WHETHER OR NOT ANY DAMAGE OR LOSS ARISES FROM OR IS RELATED TO YOUR USE OF THE SITES OR THE DIRECTORY, THE PRODUCTS SOLD BY US, OR THE SERVICES PROVIDED BY AN INSTALLER.
YOU AGREE TO RECEIVE, AND HEREBY ACCEPT, THE SITES, THE DIRECTORY AND THE PRODUCTS ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, PROMISES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITES, THE DIRECTORY, THE SERVICES OF THE INSTALLERS, AND THE PRODUCTS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY; TITLE; FITNESS FOR A PARTICULAR PURPOSE; NON-INFRINGEMENT; NON-INTERFERENCE; ACCURACY OF DATA; THAT THE SITES OR DIRECTORY ARE FREE FROM VIRUSES, BUGS, OR OTHER ITEMS OF A HARMFUL NATURE; OR THAT ARISE FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE.
COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY INSTALLER OR FOR ANY SERVICES RENDERED BY AN INSTALLER TO YOU WHEN INSTALLING OUR PRODUCTS, OR FOR LOSS OR DAMAGE TO YOU FOR DEATH, PERSONAL INJURIES OR DAMAGES TO PERSON OR PROPERTY OF ANY KIND ARISING FROM OR RELATING TO: YOUR USE OF THE SITES OR THE DIRECTORY; AN INSTALLER’S INSTALLATION OF THE PRODUCTS OR THE SERVICES PROVIDED TO YOU BY AN INSTALLER; OR FROM FIRE, FLOOD, WIND, CASUALTY, OR EVENTS OF FORCE MAJEURE AND LIKE SITUATIONS OUTSIDE COMPANY’S CONTROL.
4. WAIVER, INDEMNIFICATION, AND COVENANT NOT TO SUE: YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY AND COMPANY’S SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, SUCCESSORS, AND ASSIGNS (THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL, AND YOU FURTHER AGREE NOT SUE OR BRING ANY LEGAL PROCEEDINGS AGAINST ANY OF THE INDEMNIFIED PARTIES FOR, CLAIMS, LIABILITIES, LOSSES, DAMAGES, OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING FROM OR RELATING TO THE SITES, THE DIRECTORY, THE COMPANY’S PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT; ANY PRODUCTS PURCHASED, INSTALLED, USED, HANDLED, REMOVED, TRANSFERRED, OR STORED BY YOU OR AN INSTALLER; ANY ACT OR OMISSION OF AN INSTALLER; OR ANY SERVICES PERFORMED BY AN INSTALLER AS A RESULT OF, INCIDENT TO, OR IN ANY WAY ASSOCIATED WITH THIS AGREEMENT OR FOR OR ON YOUR BEHALF; INCLUDING, BUT NOT LIMITED TO, ANY CLAIM, LIABILITY, LOSS, DAMAGE, OR EXPENSE ARISING BY REASON OF THE FOLLOWING:
a. ANY DEATH OF OR INJURY TO ANY PERSON OR DAMAGE OR DESTRUCTION OF PROPERTY AS A RESULT OF ANY GOODS OR SERVICES EXCHANGED OR PERFORMED OR IN ANY WAY CONNECTED WITH THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DEATH OR INJURY TO YOUR PERSON OR DAMAGE OR DESTRUCTION OF YOUR PROPERTY OR THAT OF YOUR AGENTS, REPRESENTATIVES, EMPLOYEES, GUESTS, CONTRACTORS, OR SUBCONTRACTORS FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, COMPANY’S OR AN INSTALLER’S NEGLIGENCE OR CARELESSNESS, FIRE, FLOOD, RAIN, HAIL, ICE, SNOW, SMOKE, STORM, TORNADO, LIGHTNING, DUST, WIND, INSECT, BUG, ANIMAL, POLLEN, MOLD, AIR QUALITY, ALLERGY, DISEASE, MEDICAL CONDITION, SUNLIGHT, EXPLOSION, INTERRUPTION OF UTILITY SERVICES, MALFUNCTION OR DEFECT OF UTILITY SERVICES, ANY ACT OF NATURE OR ACT OF GOD, ANY DEFECT IN OR ON COMPANY’S PREMISES, YOUR PREMISES, OR ANY PREMISES OF AN INSTALLER, MALFUNCTION OR DEFECT OF ANY MAN-MADE OBJECT, MALFUNCTION OR DEFECT OF ANY EQUIPMENT, CAR ACCIDENT, THEFT, BURGLARY, ASSAULT, BATTERY, VANDALISM, OR ANY OTHER CRIME;
b. ANY SERVICES OR WORK PERFORMED OR GOODS OR MATERIALS FURNISHED BY AN INSTALLER OR AT YOUR REQUEST;
c. ANY FAILURE BY YOU TO PERFORM ANY PROVISION OF THIS AGREEMENT OR TO COMPLY WITH ANY REQUIREMENT IMPOSED BY ANY DULY AUTHORIZED GOVERNMENTAL AGENCY OR POLITICAL SUBDIVISION WITH RESPECT TO ANY REAL PROPERTY OR FACILITIES WHERE ANY OF AN INSTALLER’S SERVICES ARE PERFORMED, OR WITH RESPECT TO ANY PRODUCT(S) OR ANY OTHER PROPERTY UPON WHICH ANY SERVICES ARE PERFORMED HEREUNDER OR THAT ARE OTHERWISE ASSOCIATED WITH OR INCIDENT TO THIS AGREEMENT;
d. YOUR CARELESSNESS, NEGLIGENCE, INTENTIONAL OR IMPROPER CONDUCT OR THAT OF YOUR AGENTS, EMPLOYEES, REPRESENTATIVES, GUESTS, CONTRACTORS, OR SUBCONTRACTORS;
e. YOUR BREACH OR VIOLATION OF ANY CONTRACT WITH OR OBLIGATION OWED TO AN INSTALLER OR OF APPLICABLE LAWS, REGULATIONS, RULES, ORDERS, DECREES, CODES OR ORDINANCES; AND
f. A CLAIM THAT THE SERVICES PROVIDED BY AN INSTALLER OR THE PRODUCT(S) PROVIDED BY COMPANY WITHIN THE SCOPE THIS AGREEMENT ARE DEFECTIVE OR NONCONFORMING IN ANYWAY.
5. SURVIVAL: The DIRECTORY ACCESS & USE; DISCLAIMER OF WARRANTIES, LIMITATIONS OF LIABILITY; WAIVER, INDEMNIFICATION, AND COVENANT NOT TO SUE; and CONFIDENTIAL ARBITRATION, GOVERNING LAW, NON-JURY TRIAL sections shall survive termination of this Agreement, and you will remain bound by those sections.
6. FORCE MAJEURE: We shall not be deemed to be in default or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service resulting directly or indirectly from strikes, lock-outs, casualties, hurricanes, tornadoes, derailments, acts of God, labor troubles, inability to procure materials, failure of power, governmental laws or regulations, riots, civil disturbance, acts of civil or military authority, insurrection, war, delays attributable to the other party, or other causes beyond our reasonable control (each and “Event of Force Majeure”). In the Event of Force Majeure, we shall not be liable or responsible for any such delays, failures, or interruptions, and the doing or performing of such required acts shall be excused for the period of the Event of Force Majeure, and the period for the performance of any such act shall be extended for a period equivalent to the period of such Event of Force Majeure.
7. AUTHORITY: Each person agreeing to this Agreement on behalf of another party, business, or entity hereby represents that all necessary and appropriate actions have been taken to obtain authorization for acceptance of this Agreement on behalf of the respective party, business, or entity, and the person so executing has full power and authority to approve, accept, and deliver this Agreement and fulfill its obligations and responsibilities under this Agreement.
8. CONFIDENTIAL ARBITRATION, GOVERNING LAW, NON-JURY TRIAL: YOU HEREBY AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS AGREEMENT AND THE ABILITY TO PARTICIPATE IN A CLASS ACTION. ALL CLAIMS, DISPUTES, AND/OR CONTROVERSIES BETWEEN YOU AND THE COMPANY ARISING OUT OF OR RELATING TO THE SITES, THE DIRECTORY, THE PRODUCTS, THE SERVICES, AND/OR THIS AGREEMENT SHALL BE DECIDED BY BINDING AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND ANY SUCH ARBITRATION PROCEEDINGS SHALL BE BROUGHT AND HELD IN JONESBORO, CRAIGHEAD COUNTY, ARKANSAS. CLAIMS MAY ONLY BE BROUGHT IN YOUR INDIVIDUAL CAPACITY AND YOU WILL NOT AGREE TO ACT AS A PURPORTED REPRESENTATIVE OF ANY CLASS, AS A PRIVATE ATTORNEY GENERAL, OR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT AGAINST THE COMPANY IN ANY COURT OR ANY ARBITRATION. THE DECISIONS OF THE ARBITRATORS SHALL BE BINDING AND CONCLUSIVE UPON ALL PARTIES INVOLVED AND JUDGMENT UPON ANY AWARD OF THE ARBITRATORS MAY BE ENTERED BY ANY COURT HAVING EXCLUSIVE JURISDICTION HEREUNDER. THIS PROVISION SHALL BE SPECIFICALLY ENFORCEABLE IN ANY COURT OF COMPETENT JURISDICTION. If you wish to seek arbitration you must first send to the Company, via certified mail to the contact address below, a Notice of Dispute stating the nature and basis of the claim(s) or dispute(s) and the specific relief sought. If we are unable to resolve said claim(s) and/or dispute(s) within thirty (30) days after receipt of the Notice of Dispute, either party may commence arbitration. Unless you and the Company agree otherwise, the arbitrators may not consolidate your claim with any other claim, and may not otherwise preside over any forum of a representative, private attorney general or class proceeding.
This Agreement shall be governed by the laws of the State of Arkansas without giving effect to any choice of law rules or principles. You hereby consent, agree, and submit to the exclusive jurisdiction and venue of any tribunal, arbitrator, and federal or state court located in Jonesboro, Craighead County, Arkansas in connection with any arbitration, actions, or proceedings arising out of or in relation to this Agreement, the Sites, the Directory, the Services, or the Product(s). In any arbitration, lawsuit, or other proceeding brought to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses, including but not limited to attorney fees, paralegal fees, filing fees and court costs, incurred by the prevailing party in connection with the arbitration, lawsuit, or proceeding. The parties hereby mutually waive all rights to request a jury trial in any action, proceeding, or counterclaim arising out of this Agreement. A printed version of this Agreement shall be admissible in any and all arbitration, judicial, or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company has endeavored to comply with all legal requirements known to it in creating and maintaining the Sites and the Directory, but makes no representation the Sites or the Directory are appropriate or available for use in any particular jurisdiction. Use of the Sites or the Directory is unauthorized in any jurisdiction where all or any portion of the Sites or the Directory may violate any legal requirements and you agree not to access the Sites or the Directory in any such jurisdiction.
9. BINDING EFFECT: This Agreement shall be binding upon the parties hereto and upon their heirs, successors, and assigns, as applicable.
10. Digital Millennium Copyright Act (“DMCA”): Company attempts to respect intellectual property rights. If you believe any materials on the Sites or the Directory infringes your copyright(s), you may contact us to request the removal of such material. To make a request, please send written notice to the Company’s Copyright Agent at 2929 Browns Lane, Jonesboro, Arkansas, 72401. Your notice must include: (a) an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest that you claim is being infringed; (b) a description of the copyrighted work that you claim is being infringed, along with the URL or other specific location on the Sites or Directory where such work is located; (c) a statement by you that you have a good faith belief that the use of the copyrighted work that you claim is being infringed is not authorized by the copyright owner, its agent, or the law; (d) a statement by you, made under penalty of perjury, that the information contained in your notice is accurate and that you are the owner of the copyrighted work or are authorized to act on the copy right owner’s behalf; and (e) your contact information, including address, telephone number and email address.
11. INDEPENDENT PARTIES: In performing under this Agreement, each party is acting as an independent party, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect. You shall not represent to third persons that your status with respect to Company is anything other than that of an independent party or that you are affiliated with the Company in anyway. You acknowledge that you are independent of, and unaffiliated with, the Company in all respects. You shall not have any express or implied right or authority to assume or create any obligations on behalf or in the name of the Company or to bind the Company to any contract or undertaking with any other person, nor shall you represent that you have such authority. You and your employees, agents, contractors, and subcontractors shall not be entitled to any Company fringe benefits and hereby expressly waive any claim or right any may have against the Company arising out of the operation of any applicable workers' compensation law.
12. ASSIGNMENT: Company may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets related thereto. You may not assign your rights or obligations under this Agreement without obtaining Company’s prior written consent. Notwithstanding the foregoing, Company may assign its rights or obligations under this Agreement without your consent or that of any other party.
13. SEVERABILITY: If any one or more of the provisions contained in this Agreement shall be declared invalid, illegal, or unenforceable in any respect under the applicable law, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired, and in such case the parties hereto oblige themselves to reach the purpose of the invalid provisions by a new, valid, and legal stipulation.
14. HEADINGS: The section headings herein are included for purposes of convenience only and shall not affect the construction or interpretation of any of the provisions of this Agreement.
15. ENTIRE AGREEMENT: This Agreement, inclusive of any schedules, appendices, addenda, if any, attached hereto or expressly incorporated herein, sets forth the entire agreement and understanding between the parties as to the subject matter of this Agreement and merges and supersedes all prior discussions, agreements, and understandings of any and every nature between them.
