Terms of Service

Terms of Service

OVERVIEW

This website is operated by Unisys Corporation. Throughout the site, the terms “we”, “us” and “our” refer to Unisys. Benjamin Moore and each Benjamin Moore Retailer that is accessing the Portal Service and/or ordering Goods or Unisys Services using the Portal Service (each as defined below), are referred to in the terms as “you”, “your”, “user”, and “Client”. Unisys offers this website, including all information, tools, products, and Unisys Services (as defined below) available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here. This website is powered by Shopify Inc. (“Shopify”), who uses Stripe, Inc. (“Stripe”) as its payment processor. Accordingly, payments made through the Portal Service (as defined below) will be processed by Stripe. It also offers the opportunity to purchase equipment and software from Dell (as defined below). Accordingly, Benjamin Moore Retailer (as defined below) information and personal data (collectively “User Data”) submitted through this website may be processed by Shopify, Stripe, and/or Dell in accordance with their respective privacy policies, as described in Section 4 (Company/Personal Information).

These Terms of Service are a binding legal agreement between you and Unisys (as defined below) that governs your right to use the Portal Service. By visiting our site and/or purchasing something from us through our site, you engage in our “Portal Service” and agree to be bound by the following terms and conditions (“Terms of Service” or “Terms”), including those additional terms and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content. These Terms of Service are divided into three (3) parts as follows:

Please read these Terms of Service and the Dell Offering Specific Terms (if placing an Order for Goods (each as defined below)) carefully before accessing or using our website or placing any Orders. By accessing or using any part of the site (including to place any Orders), you agree to be bound by these Terms of Service. If you do not agree to all the provisions of these Terms, then you may not access or use the website or place any Orders or use the Portal Service. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Unless the Order states otherwise, “Unisys” means (i) Unisys Corporation for Unisys Services performed in the United States, and (ii) the Unisys Affiliate that normally does business in the country where the Portal Service are performed for any Portal Service performed in all other countries. “Dell” means Dell Technologies, Inc. and its Affiliates and EMC Corporation. “Affiliate” of a party means an entity (a) which is directly or indirectly controlling such party; (b) which is under the same direct or indirect ownership or control as such party; or (c) which is directly or indirectly owned or controlled by such party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty percent (50%) or more of the votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body. “Order” means your purchase of Goods and/or Unisys Services through the Portal Service.

 

PART 1: PORTAL SERVICE

SECTION 1      ONLINE UNISYS RETAILER PORTAL TERMS

a. The right to use this site is restricted to Benjamin Moore & Co. and its Affiliates (“Benjamin Moore”), as well as authenticated retailers authorized by Benjamin Moore to do so (“Benjamin Moore Retailers”).
b. By agreeing to these Terms of Service, you represent that: (i) you are at least the age of majority in your state or province of residence; (ii) you are a representative of Benjamin Moore or a Benjamin Moore Retailer authorized to agree to these Terms on its behalf; and (iii) your agreement to these Terms of Service binds Benjamin Moore or that Benjamin Moore Retailer.
c. “Goods” are either (i) Dell-branded or other Dell-offered IT hardware (“Equipment”), or (ii) Dell-branded and other Dell-offered generally available software products, whether microcode, firmware, operating systems or applications (“Software”). “Unisys Services” are (a) Unisys’s standard service offerings for maintenance and support of the Goods (“Support Services”), and (b) installation, consulting, deployment, implementation and any other services, whether remote or onsite at your designated location, that are not Support Services (“Professional Services”). “Third Party Products” means hardware, software, products, or services that are not Dell branded. The Goods exclude Unisys Services and Third Party Products. The Portal Service is not intended to facilitate the sale or other provision of Goods or Unisys Services to individual persons. Additionally, the Portal Service is not an exclusive source for the Goods, which Benjamin Moore Retailers may obtain from other sources for use with software licensed and/or offered by Benjamin Moore (including COLORx software).
d. Orders are subject to availability. Unisys reserves the right to delay, defer, reschedule or cancel Orders for Goods based on the Dell Commercial Terms of Sale. In addition, Unisys may cancel a particular Order prior to delivery of the respective Goods or completion of the respective Unisys Services by written notice to the other party if the other party fails to cure a material breach under the Order or these Terms of Service within fourteen (14) days.
e. You must register an account to access and use many features of the Portal Service. Registration is only permitted for legal entities, partnerships and natural persons working on behalf of Benjamin Moore or Benjamin Moore Retailers who are at least the age of majority in your state or province of residence. You may not register more than one (1) account or transfer your account to someone else. To access the Portal Service or some of the resources it offers, you may be asked to provide certain registration details or other information. If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures (“Account Information”), you must treat such Account Information as confidential, and you must not disclose it to any other person or entity. You agree to notify us immediately of (i) any unauthorized access to or use of your Account Information, or (ii) any other breach of security. You agree that all information you provide to register with the Portal Service or otherwise, including without limitation, through the use of any interactive features on the Portal Service, is governed by our Privacy Statement, and you consent to all actions we take with respect to such information consistent with our Privacy Statement.

SECTION 2      GENERAL CONDITIONS

a. Orders for Goods made through the Portal Service are orders to purchase the Goods from Dell, not from Unisys. The Dell Commercial Terms of Sale will apply to such Orders of Goods. If there is a conflict between the Dell Commercial Terms of Sale and these Terms of Service relating to Orders of Goods, then the terms of the Dell Commercial Terms of Sale shall prevail and control to the extent of such conflict.
b. You understand that your content (not including credit card information), may be transferred unencrypted and involve (i) transmissions over various networks, and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted by Shopify and/or Stripe during transfer over networks.
c. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Portal Service, use of the Portal Service, or access to the Portal Service or any contact on the website through which the Portal Service is provided, without express written permission by us.
d. Prices for the Goods and Unisys Services are subject to change without notice.
e. We reserve the right at any time to modify or discontinue the Portal Service (or any part or content thereof) without notice.
f. We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Portal Service.
g. The Portal Service may be hosted by a third party (such as Shopify). To the extent the Portal Service is hosted by a third party, such third party’s terms will govern and provide for site reliability, uptime, and maintenance of the site hosting the Portal Service. To the extent Unisys is hosting the Portal Service, we will use commercially reasonable efforts to keep it available. We do not guarantee, represent or warrant that your use of the Portal Service will be uninterrupted, timely, secure or error-free. You agree that from time to time we may remove or suspend access to the Portal Service for indefinite periods of time or cancel the Portal Service at any time, without notice to you.

SECTION 3      THIRD-PARTY PROVIDER TERMS

a. Shopify. This site is powered by Shopify. They provide us with the online e-commerce platform that allows you to place Orders to purchase (a) the Goods from Dell, and (b) the Unisys Services from us. Your use of the Portal Service is subject to your compliance with the Shopify Terms of Service and the Shopify Privacy Policy.

b. Stripe. Payments made via the Portal Service are processed via your linked account with Stripe. During the payment process, Stripe may collect information (such as credit card and other payment information) from you, Benjamin Moore, or the Benjamin Moore Retailer. Your use of Stripe is subject to the Stripe Terms of Use and the Stripe Privacy Policy.

c. Benjamin Moore

i. Benjamin Moore Retailers shall obtain the COLORx software as well as other Benjamin Moore software and products directly from Benjamin Moore, and Benjamin Moore’s end user license agreement or other end user terms and warranties (if any) shall apply to the software and products.
ii. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNISYS DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE COLORx SOFTWARE AND ANY OTHER SOFTWARE OR PRODUCTS LICENSED OR SOLD BY BENJAMIN MOORE.

SECTION 4      COMPANY/PERSONAL INFORMATION

a. Your submission of User Data to Unisys through the Portal Service is governed by the Unisys Privacy Policy.

b. To the extent that User Data is submitted to Dell through the Portal Service, the Dell Privacy Policy will apply.
c. To the extent that User Data is submitted to Shopify through the Portal Service, the Shopify Privacy Policy apply.
d. To the extent that User Data is submitted to Stripe through the Portal Service, the Stripe Privacy Policy will apply.
e. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. UNISYS DISCLAIMS ANY WARRANTIES AND LIABILITIES FOR THE PRIVACY AND DATA SECURITY PRACTICES OF BENJAMIN MOORE, DELL, SHOPIFY, AND STRIPE.

SECTION 5      ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

a. We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
b. This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
c. Occasionally there may be information on our site or in the Portal Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel Orders if any information in the Portal Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your Order).
d. We undertake no obligation to update, amend or clarify information in the Portal Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Portal Service or on any related website should be taken to indicate that all information in the Portal Service or on any related website has been modified or updated.

SECTION 6      THIRD-PARTY LINKS

a. Certain content, Goods and Unisys Services available via the Portal Service may include materials from third parties.
b. Third-party links on this site may direct you to third-party websites that are not affiliated with us (including for Shopify, Stripe, and Dell). We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.
c. We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding Third-Party Products should be directed to the third party.

SECTION 7      USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

a. If, at our request, you send certain specific submissions (for example contest entries) or without a request from us, you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (i) to maintain any comments in confidence; (ii) to pay compensation for any comments; or (iii) to respond to any comments.
b. We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
c. You agree not to provide comments or other content on or for this site that violates any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree not to provide comments or other content on or for this site that contains libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Portal Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments or other content posted by you or any third party.

SECTION 8      PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Portal Service or its content:

a. for any unlawful purpose;
b. to solicit others to perform or participate in any unlawful acts;
c. to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances;
d. to infringe upon or violate our intellectual property rights or the intellectual property rights of others;
e. to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
f. to submit false or misleading information;
g. to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Portal Service or of any related website, other websites, or the Internet;
h. to collect or track the personal information of others;
i. to spam, phish, pharm, pretext, spider, crawl, or scrape;
j. to infringe upon the intellectual property rights of any third party;
k. for any obscene or immoral purpose; or
l. to interfere with or circumvent the security features of the Portal Service or any related website, other websites, or the Internet.

We reserve the right to terminate your use of the Portal Service or any related website for committing any of the prohibited uses.

 

PART 2: GOODS AND SERVICES

SECTION 9      GOODS AND UNISYS SERVICES

a. Dell will provide the requested Goods consistent with the Dell Offering Specific Terms and the Dell Commercial Terms of Sale following completion of the Order and payment for the Goods in accordance with Section 12 (Payment and Invoicing). Unisys will provide the requested Unisys Services upon completion of the Order and payment for the Unisys Services in accordance with Section 12 (Payment and Invoicing). Unisys Services may be set out in detail and further governed by one or more statements of work, task orders, or similar documents agreed to in writing by Unisys (at which point they are incorporated into these Terms by this reference).
b. Unisys will provide the Unisys Services to assist you in support of your projects, subject to availability of qualified personnel and the difficulty and scope of the requested Unisys Services. You are responsible for your compliance with and interpretation of all laws and requirements affecting your business, including any applicable deadlines for compliance and for determining objectives and obtaining desired results. The Unisys Services do not constitute legal advice. You shall provide information that is current, complete, and correct and ready access to your staff and resources as are necessary to the provision of the Unisys Services.
c. We have made every effort to display as accurately as possible the colors and images of Equipment that appear on this site. We cannot guarantee that your computer monitor's display of any color will be accurate.
d. We reserve the right, but are not obligated, to limit the ability to place Orders for Goods or Unisys Services using the Portal Service to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Goods or Unisys Services that are available through the Portal Service. All descriptions of Goods or the pricing of the Goods are subject to change at any time without notice, at our sole discretion. We reserve the right to remove any of the Goods or Unisys Services from the Portal Service at any time. Any offer for any Goods or Unisys Service made on this site is void where prohibited by law. We reserve the right to reject any particular Order received through the Portal Service in our sole and absolute discretion. If we reject an Order that you have placed, we will provide you with written notice of such rejection within forty-eight (48) hours after rejection.
e. You may not use the Goods you purchase through this site for any illegal or unauthorized purpose nor may you, in the use of the Portal Service or Unisys Services, violate any laws in your jurisdiction (including but not limited to copyright laws).

SECTION 10 WARRANTIES FOR GOODS AND UNISYS SERVICES

a. Unisys is not the seller or reseller of the Goods, and takes no responsibility for the Goods purchased by you through the Portal Service. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DO NOT WARRANT THAT (I) THE GOODS, THE UNISYS SERVICES, OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PORTAL SERVICE WILL BE ACCURATE OR RELIABLE, (II) THE QUALITY OF ANY GOODS, UNISYS SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS, OR (III) THAT ANY ERRORS IN THE UNISYS SERVICES WILL BE CORRECTED.
b. UNISYS DELL OFFERING SPECIFIC TERMSUNISYS DISCLAIMS THAT IT HAS THE POWER TO CONTROL THE GOODS, REFUSE REGISTRATION OF THE GOODS, PROCESS RETURNS OF THE GOODS, AND PREPARE THE GOODS FOR SHIPMENT TO YOU.
c. Unisys’ sole warranty for the Unisys Services is that it will use commercially reasonable efforts to provide the Unisys Services using reasonable care and skill and as described in the applicable Order. You agree that your sole and exclusive remedy for breach of this warranty is that Unisys will re-perform the Unisys Services.

SECTION 11   DELL TERMS CONCERNING GOODS

a. Offering Specific Terms. Applicable terms and conditions for specific Equipment are available at dell.com/offeringspecificterms. Equipment and Software ordered by you under these Terms of Service will be governed by associated warranties (if any) provided directly by Dell. Such warranties are typically included with the packaging.

b. EULA-based Licensing. Equipment purchased by you may include Software. Your rights to use the Software purchased through the Portal Service are governed by the terms of the applicable end-user license agreement with Dell or the applicable third party licensor. Unless different terms have been agreed between the parties, the terms posted on dell.com/eula (the “EULA”) shall apply. Dell may provide a hard copy of the EULA upon request. Unless expressly otherwise agreed, microcode, firmware or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions, is licensed for use solely on such Equipment item.

c. Third Party Software. Third Party Software (“Third Party Software”) is defined as (i) software that is not sold under Dell’s brand or that is otherwise proprietary to a third party; and (ii) open source software, that is contained in or provided with the Software, where both (i) and (ii) are licensed by a third party under its own terms of use). Without limiting the generality of the foregoing Section 11(c)(ii), for any Third Party Software you shall comply with the applicable license terms and requirements of the applicable third party licensor. The Third Party Software is subject to and governed by the applicable third party licensor’s end-user license terms, and you will and hereby do agree to and accept such terms. For certain open source software, the applicable Third Party Software license terms may include obligations as a distributor and entitle Unisys and Client to obtain the corresponding source files. You may find corresponding source files for such open source software at https://opensource.dell.com/ or in the “About” or “Read Me” file of Software, or other locations that Third Party Software licensor may specify.

d. Services Flowdown Terms. You agree to be bound by the following: (i)(1) if you are located and/or the Goods or Unisys Services will be delivered in the U.S., Dell’s Commercial Terms of Sale set forth at dell.com/cts (“U.S. CTS”); (2) if you are located and/or the Goods or Unisys Services will be delivered in Canada, Dell’s Commercial Terms of Sale (Canada) set forth at www.dell.ca/terms (“Canada CTS”); or (3) if you are located and/or the Goods or Unisys Services will be delivered in other countries, such other written agreement as Dell may designate (e.g. on its website); and (ii) all of Dell’s applicable Service Specifications or Product Notices for the Goods as designated by Dell.

e. Trade Compliance.

SECTION 12   PAYMENT AND INVOICING

a. We reserve the right to refuse any Order you place using the Portal Service. We may, in our sole discretion, limit or cancel quantities made available per purchasing entity. These restrictions may include Orders placed by or under the same customer account, the same credit card, and/or Orders that use the same billing and/or shipping address. If we make a change to or cancel an Order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the Order was made. We reserve the right to limit or prohibit Orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors for Equipment or Software.
b. You agree to provide current, complete and accurate purchase and Account Information for all Orders placed using this site. You agree to promptly update your Account Information and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
c. If payment for an Order is not (at Unisys’ discretion) required at the time the Order is placed, then Unisys will invoice Client for Goods and Unisys Services in local currency as the Unisys Services are performed and any other applicable charges incurred. Client will pay each such invoice no later than 45 days from the invoice date. Unisys may suspend the Unisys Services and impose a late payment charge in accordance with applicable law if Client fails to timely pay. Prices posted are exclusive of all taxes. Client will pay any tax Unisys becomes obligated to pay (including all sales tax, use tax, value added tax, withholding tax, personal property or similar tax or government charge) by virtue of these Terms, excluding taxes based on Unisys’ net income. Goods and Unisys Services will not be provided until payment has been received. You agree to pay all charges using the method of payment designated for your account, such as a credit card, debit card, or bank account (“Payment Method”), after which you will receive a receipt or an opportunity to obtain a receipt. If your primary Payment Method is determined to be expired, invalid or otherwise not able to be charged, you agree that a secondary Payment Method in your account may be used, if available. Charges paid by you are final and nonrefundable, unless otherwise determined by Unisys. You authorize Unisys or its third party payment processor to make charges to your Payment Method, either directly or indirectly, for all charges and any other amounts due from you (including any applicable taxes) in connection with your account.
d. In the event that we make a change to or cancel an Order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the Order was made.
e. Client agrees to provide information, data, software access or use and documentation (“Client Information”) and access to its facilities and other resources at no cost to Unisys as reasonably required for Unisys to perform the Unisys Services, subject to Client's reasonable security rules. Client promises it has the right to use and allow Unisys to use the Client Information and will protect and hold Unisys harmless against any third-party claims based on the absence of any of these rights.

SECTION 13 NO CANCELLATION OF ORDERS OR RETURN OF GOODS

a. To the fullest extent permissible under applicable law, all Orders for Goods, Third Party Products, and/or Unisys Services are FINAL and cannot be cancelled once they have been placed. Any request by you for a cancellation of or change to an Order (or portion thereof) will not be eligible for any refund, credit or other adjustment.
b. To the fullest extent permissible under applicable law, and in accordance with the terms of the Dell return policy (available at: https://www.dell.com/en-us/lp/return-policy) that concern online purchase orders, all Goods purchased through this site are FINAL SALE, and are not eligible for return, refund, credit, exchange, or any other adjustment once an Order has been placed.

 

PART 3: GENERALLY APPLICABLE TERMS

SECTION 14   DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY STATED OTHERWISE IN PARTS 1 AND 2 ABOVE, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW:

a. THE GOODS, UNISYS SERVICES, AND THE PORTAL SERVICE AND ITS CONTENT ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED;
b. UNISYS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT;
c. UNISYS DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ANY GOODS OR UNISYS SERVICES OBTAINED THROUGH THE PORTAL SERVICE, OR WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, ADEQUACY, TIMELINESS, USEFULNESS, OR AVAILABILITY OF THE PORTAL SERVICE; AND
d. WITHOUT LIMITING THE FOREGOING, NEITHER UNISYS NOR ANYONE ASSOCIATED WITH UNISYS REPRESENTS OR WARRANTS (1) THAT THE PORTAL SERVICE, ITS CONTENT, OR INFORMATION OBTAINED THROUGH THE PORTAL SERVICE WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, OR ERROR-FREE, (2) THAT DEFECTS WILL BE CORRECTED, OR (3) THAT THE SITE(S) ON WHICH THE PORTAL SERVICE IS HOSTED OR THE SERVER(S) ON WHICH IT OPERATES AND/OR FROM WHICH UNISYS MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR
e. THAT THE GOODS, UNISYS SERVICES, OR THE PORTAL SERVICE WILL MEET YOUR NEEDS OR EXPECTATIONS. NO THIRD PARTY IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION ON UNISYS’ BEHALF WITH RESPECT TO THE GOODS, UNISYS SERVICES, OR THE PORTAL SERVICE OR UNISYS’ OPERATION OF IT, UNLESS UNISYS HAS EXPRESSLY CONFIRMED THE SAME TO YOU IN WRITING.

 

SECTION 15   LIMITATION OF LIABILITY

a. TO THE EXTENT THAT YOU ARE ENTITLED TO RECOVERY AGAINST DELL, SHOPIFY, OR STRIPE FOR ANY CLAIMS IN RELATION TO THIS WEBSITE, THE PORTAL SERVICE, THE GOODS, OR THE UNISYS SERVICES, YOUR RECOVERY SHALL BE LIMITED TO THE EXTENT STATED IN THESE TERMS OF SEVICE, DELL COMMERCIAL TERMS OF SALE, SHOPIFY TERMS OF SERVICE, AND STRIPE TERMS OF USE, AS APPLICABLE.
b. TO THE GREATEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL UNISYS OR ANY OTHER PARTY INVOLVED IN PRODUCING OR DELIVERING THE GOODS, UNISYS SERVICES, AND/OR THE PORTAL SERVICE BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY TYPE WHATSOEVER EVEN IF IT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER IN AN ACTION UNDER CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER THEORY, RELATED TO OR ARISING FROM (I) ANY USE OF THE PORTAL SERVICE, OR FROM ANY SITE OR RESOURCES LINKED TO, REFERENCED BY, OR ACCESSED THROUGH THE PORTAL SERVICE; (II) YOUR INABILITY TO USE THE PORTAL SERVICE; (III) ANY COMMUNICATIONS YOU HAVE WITH DELL AS A RESULT OF USING THE PORTAL SERVICE; (IV) YOUR USE OF GOODS OR UNISYS SERVICES OBTAINED THROUGH THE PORTAL SERVICE; OR (V) ANY VIOLATION OF THESE TERMS OF SERVICE BY YOU. THIS LIMITATION INCLUDES, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS OR LOSS OF PROGRAMS OR OTHER DATA, EVEN IF UNISYS IS EXPRESSLY ADVISED OF OR KNOWS OF THE POSSIBILITY OF SUCH DAMAGES.
c. TO THE GREATEST EXTENT PERMITTED BY LAW AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, WARRANTY OTHERWISE, THE TOTAL AGGREGATE LIABILITY OF UNISYS, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS WILL NOT EXCEED THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS BEFORE THE CLAIM FOR GOODS AND UNISYS SERVICES PURCHASED VIA THE PORTAL SERVICE THAT ARE THE SUBJECT OF THE CLAIM.
d. The limitations of liability in this Section 15 are fundamental elements of the agreement between you and Unisys set forth in these Terms. However, no part of this Section 15 excludes or limits any liability that cannot be excluded or limited under applicable law.
e. If you are a California resident, to the extent permitted by applicable law you waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states the following (or similar language): “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

SECTION 16   INDEMNIFICATION

You agree to indemnify, defend and hold harmless Unisys, its Affiliates, joint venturers, business partners, licensors, employees, agents and third party information providers from and against all losses, expenses, damages and costs, including attorneys’ fees, resulting from:

a. any violation of these Terms of Service (including due to negligent or wrongful conduct) by you;
b. any claim by a third party that your use of, and access to, the Portal Service, infringes a third party’s intellectual property rights or breaches any contract with that third party, except to the extent that such claim would not have occurred but for a failure of the Portal Service itself to operate pursuant to written standards set for it by Unisys;
c. any claim by a third party related to your sale of merchandise or products sold to consumers or other end users;
d. Breach of any laws or regulations by you in connection with your use of the Portal Service; or
e. Your use of any information obtained from the Portal Service.

SECTION 17   TERMINATION

a. These Terms of Service are effective beginning when you agree to them as described above and continuing unless and until terminated by either you or us.
b. Unisys may terminate these Terms of Service, in whole or in part, for convenience effective as of any date by giving you notice of the termination at least thirty (30) days prior to the termination date specified in the notice.
c. Unisys or Client may also terminate these Terms of Service by written notice to the other party if the other party fails to cure a material breach of these Terms or any Order within thirty (30) days of written notice.
d. The termination of these Terms of Service, or any part thereof, shall not relieve either party of any obligations arising before the termination date under these Terms of Service or the portion terminated. The parties’ rights and obligations under these Terms of Service that by their nature extend beyond the termination of these Terms of Service, including the provisions of Sections 1(c), 2 (General Conditions), 3 (Provider Terms), 4 (Company/Personal Information), 6 (Third-Party Links), 10 (Warranties for Goods and Unisys Services), 11 (Dell Terms Concerning Goods), 14 (Disclaimer of Warranties), 15 (Limitation of Liability), 16 (Indemnification), 17 (Termination), 18 (Severability), 19 (Entire Agreement), 20 (Governing Law), and 23 (Contact Information) shall survive the expiration or any termination of these Terms of Service.

SECTION 18   SEVERABILITY

If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent, and the remaining provisions of the Terms of Use will continue in full force and effect.

SECTION 19   ENTIRE AGREEMENT

These Terms of Service and any Orders are the entire agreement between the parties for the Portal Service and supersede all prior related proposals, agreements and other communications between the parties and any pre-printed terms on an Order. Orders may only vary the terms of these Terms if the changes are specifically identified and the Order is signed by authorized representatives of Unisys and Client. The headings used in these Terms are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 20   GOVERNING LAW

a. These Terms of Service shall be governed by the laws and venue of (i) the Commonwealth of Pennsylvania if the Order originates from and the Goods will be shipped to a Benjamin Moore Retailer in the United States, or (b) the Province of Ontario if the Order originates from and the Goods will be shipped to Canada, all without regard to the forum's choice of law principles.
b. To the maximum extent permitted by applicable law, you waive all rights to bring or participate in any class action litigation relating to these Terms of Service. Any controversy or claim arising out of or relating to these Terms of Service shall be settled by arbitration, which will be mandatory and binding for you and Unisys. Arbitration shall be conducted before a single arbitrator and, if you are not a US person or entity, administered by the International Centre for Dispute Resolution in accordance with the provisions of its International Arbitration Rules or, if you are a US person or entity, administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Under no circumstances will class action or collective action procedures or rules apply to the arbitration. The arbitrator will have no authority to award punitive damages. The place of arbitration shall be the major city closest to the main offices of the defendant. The costs of the arbitration will be borne equally by you and Unisys. The arbitration will be an individual arbitration and will not be a class action arbitration. Each party will bear its own internal expenses and attorney’s fees and expenses and the arbitrator will have no authority to award any such expenses or fees. Nothing in this Section 20 will preclude, delay, or affect recourse to a court of competent jurisdiction by you or Unisys: (i) to compel arbitration or enforce an arbitration award; (ii) to seek temporary equitable relief; (iii) to recover specific property; or, (iv) for a suspected violation of its intellectual property rights. No action arising out of these Terms of Service may be brought more than two (2) years after the cause of action first accrued, except for any action by either party for a suspected violation of its intellectual property rights.
c. Except as otherwise provided in this Section 20, the arbitrator may not consolidate more than one person’s claims and may not preside over any form of a class, collective, or consolidated proceeding (such as a class action, consolidated action, or private attorney general action), unless both you and we specifically agree in writing to that following the initiation of the arbitration.

SECTION 21   FORCE MAJEURE

Neither party shall be liable to the other for any delay or failure to perform any of its obligations (other than for the payment of fees or any amounts due for purchase of Goods) caused by a Force Majeure. If such delay or failure lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, the relevant Order by giving written notice to the delayed party. “Force Majeure” refers to circumstances beyond a party’s reasonable control including, without limitation, act of God, war, riot, civil commotion, terrorist acts, malicious damage, governmental or regulatory actions, accident, breakdown of plant or machinery, local or national emergency, explosions, fire, natural disasters, severe weather or other catastrophes, general import/export/customs process problems affecting supplies to Unisys or to Client, shortages in materials, failure of a utility service or transport network, embargo, strike, lock out or other industrial dispute (whether involving Unisys’s workforce or any other party), or default of suppliers or subcontractors due to any of the preceding events.

SECTION 22   CHANGES TO TERMS OF SERVICE

You can review the most current version of the Terms of Service at any time at this page. We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to the website. It is your responsibility to check the website periodically for any changes. Your continued use of or access to the website or the Portal Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes. Changes to the Terms of Service are not retroactive and apply only to prospective use of the Portal Service, new Orders and renewals executed after the posting date of the change. Any new features or tools that are added to the current site shall also be subject to the Terms of Service.

SECTION 23   CONTACT INFORMATION

Any notices from Unisys to you concerning these Terms of Service will be sent to you using the contact information that you provide during signup. All feedback, comments, requests for technical support, and legal notices from you to Unisys concerning the Terms of Service must be sent to us via https://www.unisys.com/contact-us/ and must be conspicuously marked as providing notice to Unisys in relation to these Terms of Service.