THIS END USER LICENSE AGREEMENT ("Agreement")
FORMS A LEGAL AGREEMENT BETWEEN YOU, THE END USER (“You”) AND FRICTION
MATERIALS STANDARDS INSTITUTE, INC. (“FMSI”) THAT APPLIES EACH TIME YOU USE OR
ACCESS THE LICENSED PLATFORM MADE AVAILABLE TO YOU BY FMSI AND ITS ASSOCIATED
WEBSITES, WEBPAGES, PORTALS, CONTENT (AS FURTHER DEFINED BELOW), FEATURES,
TOOLS, AND MATERIALS (collectively, the “Platform”)
.
IN PARTICULAR, THIS AGREEMENT CONTAINS AN
ARBITRATION PROVISION THAT WAIVES YOUR RIGHT TO A COURT HEARING AND/OR A JURY
TRIAL.
YOU SHOULD THEREFORE READ CAREFULLY THE
FOLLOWING TERMS AND CONDITIONS AS THEY GOVERN YOUR USE OF THE PLATFORM AND ITS
FUNCTIONALITY. BY CLICKING THE “SUBMIT” BUTTON TO THE LEFT AND MAKING USE OF
THE PLATFORM, YOU ARE CONFIRMING THAT YOU HAVE READ AND ACCEPTED THE TERMS AND
CONDITIONS OF THIS AGREEMENT
.
IF YOU DO NOT AGREE WITH THIS END USER
AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE PLATFORM
AND ARE INSTRUCTED TO EXIT AND/OR CEASE ALL USE OF THE PLATFORM IMMEDIATELY.
License Grant and Restrictions
This Agreement provides to You a personal,
revocable, limited, non-exclusive, non-sublicensable, and non-transferable
license to use and access the Platform solely for Your internal, non-public,
private business use as specifically described herein, conditioned on Your
continued compliance with this Agreement.
When using the Platform in accordance with the
foregoing license, You shall not directly or indirectly (a) use the Platform to
create any service, software or documentation that performs substantially the
same functionality as the Platform, (b) disassemble, decompile,
reverse-engineer or use any other means to attempt to discover any source code,
algorithms or trade secrets underlying the Platform or any of its components,
(c) encumber, sublicense, transfer, distribute, rent, lease, time-share or use
the Platform in any service bureau arrangement, (d) adapt, combine, create
derivative works of or otherwise modify the Platform, (e) disable, circumvent,
or otherwise avoid or undermine any security device, mechanism, protocol, or
procedure implemented in the Platform, (f) use or access the Platform for any
unlawful, fraudulent, deceptive, malicious, or otherwise harmful or injurious
purpose, (g) remove, obscure, deface, or alter any proprietary rights notices
on any element of the Platform or accompanying documentation, or (h) use the
Platform
in any manner which could damage, disable,
overburden, or impair the Platform or interfere with any third party’s
authorized use of the Platform
.
Limited License to Content
Certain features of the Platform may permit
access to FMSI’s proprietary electronic catalog, FMSI part numbers, FMSI part
numbering system, and other text, images, information, content, and materials
which are viewable, retrievable, and/or downloadable through the Platform (collectively,
“Content”). You may only use and access Content in the format made available to
You in the Platform. In addition to and without limiting any other restrictions
hereunder with respect to Your use of the Platform generally,
You may not: (1) copy,
modify, translate, record, alter, or create derivative works of the Content for
any external or public purpose whatsoever, or share any such copies, modifications,
translations, records, alterations, or derivative works with any unauthorized
third parties; or (2) sublicense, transfer, distribute, or otherwise permit
access to the Content (or any copy, portion, or derivative work thereof) to any
unauthorized third party in any medium for any purpose. You acknowledge and
agree that Content is licensed to You hereunder, not transferred or sold, and
Your permission to access and view Content is at all times conditioned on Your
full compliance with the terms of this Agreement.
You further acknowledge
and agree that Your use, access, or distribution of Content in violation of the
restrictions set forth in this paragraph shall constitute an infringement and
violation of FMSI’s intellectual property rights and other rights to the
Platform and the Content.
User Obligations
You represent that You are at least
eighteen (18) years of age or the legal age of majority in Your jurisdiction (whichever
is greater) and will, at all times, provide true, accurate, current, and complete
information (for which You have all necessary rights, permission(s), or
authority to provide) when submitting information through the Platform. In
addition, You are responsible for compliance with all applicable laws, rules,
and regulations with respect to Your use of the Platform (including use of any
permitted copies of the Platform materials and information).
If You access the Platform on behalf of any
organization, Your organization shall be bound to this Agreement and be liable
for any breach by You. You represent that You have all rights, power, and
authority to agree to this Agreement on behalf of Your organization.
Your Account
You may be required to register an account to
use the Platform or certain features of the Platform. Each registration is for
a single user only, unless otherwise expressly agreed by FMSI. Registration for
access to and use of the Platform may also require access credentials, such as
a username and a password, or adherence to other access requirements as
designated by FMSI in its sole discretion from time to time. You hereby agree
to treat Your access credentials as confidential and not to disclose such
information to any third party without the prior express written consent of FMSI,
which may be granted or withheld in its sole discretion. You shall immediately
notify FMSI if You suspect or become aware of any loss, theft, or unauthorized
use of Your login credentials. FMSI will not be liable for any loss or damage
arising from Your failure (whether intentional or unintentional) to comply with
these obligations. By submitting the requested information to the registration
form or similar process on the Platform, You represent and warrant that the
information You submit for registration is complete, true, accurate, and
current in all respects. You must maintain and promptly update Your submitted
account information to ensure that such information is complete, true,
accurate, and current. FMSI reserves the right to suspend, terminate, or
otherwise discontinue Your account and/or pending registration if FMSI has
reasonable grounds to suspect that any information You have submitted is
untrue, inaccurate, not current, or incomplete, or that Your registration,
account, or use of the Platform is in violation of applicable law or this Agreement.
Electronic Communications
FMSI may send emails or other electronic
messages to You concerning Your use of the Platform. You consent to receive such
electronic communications and You agree that all such electronic communications
constitute valid legal notices satisfying any requirement that such notices be
in writing.
Links to Third-Party Sites and Services
Certain services, features, or components made
available via the Platform are delivered by third-party providers. By
using any product, service, or functionality originating from the Platform,
You hereby acknowledge and consent that FMSI may share such information and
data with the applicable third-party provider as may be required to enable and
facilitate the requested third-party product, service, or functionality via the
Platform.
FMSI EXPRESSLY
DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY MATERIALS, PROGRAMS,
APPLICATIONS, TOOLS, PRODUCTS, AND SERVICES SET FORTH, DESCRIBED ON, OR ACCESSED
THROUGH THE PLATFORM, AND YOU AGREE THAT FMSI SHALL NOT BE RESPONSIBLE FOR ANY
LOSS OR DAMAGE INCURRED AS A RESULT OF ANY DEALINGS BETWEEN YOU AND A THIRD
PARTY, WHETHER OR NOT FACILITATED BY OR MADE IN CONNECTION WITH THE PLATFORM OR
CONTENT.
Third-Party Terms and Conditions
Additional notices, terms, and conditions
may apply to products, services, receipt of (or access to) certain materials,
participation in a particular program, and/or to specific portions or features
of the Platform, including without limitation the terms of third-party
applications incorporating or utilizing the Platform and/or Your accounts with
third-party providers of such applications. Without limitation of the
foregoing, You hereby agree that: (a) this Agreement operates in addition to
any terms of use imposed or required by any such third-party provider; and (b)
the terms of this Agreement supplement and do not alter or amend any such third-party
terms of use.
Proprietary Rights
All materials and information included as
part of the Platform, such as the Content and other text, graphics, logos, and images
made available on the Platform, as well as the compilation thereof, and any
software or other proprietary materials used on or integrated with the Platform,
are the property of FMSI or its applicable third-party licensors, and are
protected by copyright and other laws governing intellectual property and
proprietary rights. FMSI reserves all rights in the Platform not expressly
granted herein.
You agree that You do not acquire any
ownership rights in any part of the Platform or any Content under this Agreement
or through Your use of the Platform and/or Content. FMSI does not grant You any
rights or licenses, express or implied, to any intellectual property hereunder except
as specifically authorized by this Agreement.
You further agree that as between the
parties hereto, FMSI is and shall be the sole and exclusive owner of all
rights, title, and interest in and to all Content and any modifications,
updates, versions, iterations, improvements, customizations, configurations,
and derivative works thereof (collectively, “Modifications”). To the extent
that You obtain, receive, reserve, or maintain any ownership rights of any kind
to Modifications (whether or not expressly authorized or permitted hereunder),
You hereby finally and irrevocably assign to FMSI all of Your rights, title,
and interest in and to such Modifications in all jurisdictions throughout the
world, including without limitation all intellectual property rights embodied
or incorporated therein, such that FMSI is the sole and exclusive owner
thereof. The foregoing assignment includes all rights of paternity, integrity,
attribution, withdrawal, and other so-called “moral rights” that may be
recognized in any jurisdiction, and to the extent that You cannot assign such
rights under applicable law, You expressly waive such rights.
You agree to reasonably cooperate with any
effort by FMSI to memorialize, register, perfect, or otherwise evince the
assignments and other distributions of proprietary rights set forth in this
Section, including without limitation by the execution of confirmatory
documentation.
Feedback
“Feedback” means any feedback,
recommendations, enhancement requests, suggestions, testimonials, endorsements,
or ideas for improvement communicated to FMSI by You regarding the Platform or
Content. From time to time, You may voluntarily provide Feedback to FMSI,
whether or not in response to specific requests or solicitation by FMSI. In
such event, You grant to FMSI a perpetual, irrevocable, fully transferable,
freely sublicensable, royalty-free, worldwide license to make, have made, use,
import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare
derivative works of, display, perform, and otherwise exploit such Feedback for
any purpose in FMSI’s discretion without restriction. The foregoing license to
Feedback shall survive the termination or expiration of this Agreement for any
reason.
Indemnification
You agree to indemnify, defend and hold
harmless FMSI and its officers, directors, employees, agents, successors, and
assigns from and against any losses, costs, liabilities, damages, and expenses
(including reasonable attorney's fees) relating to or arising out of Your
violation of (a) this Agreement, (b) any personal or proprietary rights of a
third party with respect to Your use of the Platform, or (c) any applicable
laws, rules, or regulations. FMSI reserves the right, at its own cost, to
assume the exclusive defense and control of any matter otherwise subject to
indemnification by You, in which event You will fully cooperate with FMSI in
asserting any available defenses.
Disclaimers and Excluded Liability
FMSI DOES NOT REPRESENT OR WARRANT THAT
THE PLATFORM WILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS. THE PLATFORM
IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW FMSI HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT
LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT FMSI MAKES NO REPRESENTATION,
WARRANTY, OR GUARANTEE WHATSOEVER REGARDING THE QUALITY, ACCURACY,
EFFECTIVENESS, LEGALITY, RELIABILITY, OR TIMELINESS OF ANY CONTENT
OR INFORMATION MADE AVAILABLE IN CONNECTION THEREWITH OR
ANY RESULTS OBTAINED THEREFROM
. YOU AGREE THAT YOUR USE OF AND ACCESS TO
CONTENT ARE ENTIRELY AT YOUR OWN RISK, AND THAT YOU ARE SOLELY LIABLE AND
RESPONSIBLE FOR THE RESULTS OF SUCH USE AND ACCESS, SUCH THAT FMSI SHALL HAVE
NO LIABILITY OR RESPONSIBILITY THEREFOR UNDER ANY LEGAL THEORY OR CAUSE OF
ACTION NOW KNOWN OR HEREAFTER ESTABLISHED.
IN NO EVENT SHALL FMSI BE LIABLE HEREUNDER,
REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE,
STATUTORY LIABILITY OR OTHERWISE), FOR ANY LOSS OR INACCURACY OF DATA, LOSS OR
INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS, OR
SERVICES, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY,
OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
BUSINESS, REVENUES, PROFITS AND/OR GOODWILL, EVEN IF SUCH DAMAGES WERE
REASONABLY FORSEEABLE OR IF FMSI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FMSI’S ENTIRE CUMULATIVE LIABILITY TO YOU
OR ANY OTHER PERSON OR ENTITY FOR CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE USE OF THE PLATFORM AND/OR CONTENT,
UNDER ANY THEORY OF LIABILITY AND WHETHER
IN AN EQUITABLE, LEGAL, ARBITRATION OR COMMON LAW ACTION FOR BREACH OF CONTRACT,
STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE
AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY YOU TO FMSI DURING THE 12 MONTHS PERIOD
PRIOR TO THE FILING OF THE CLAIM GIVING RISE TO SUCH LIABILITY. THIS LIMITATION
SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY PROVIDED HEREIN.
CERTAIN JURISDICTIONS AND LAWS MAY NOT
PERMIT SOME OR ALL OF THE DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION.
IN THE EVENT THAT SUCH A JURISDICTION OR LAW APPLIES TO THE SUBJECT MATTER OF
THIS AGREEMENT, THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW.
No Professional Advice
The Content and information contained in or
made available through the Platform (including but not limited to any reports,
graphics, statistics, methodologies, illustrations, or practices disclosed
therein) cannot replace or substitute for the services of qualified
professionals in any field, and nothing contained on the Platform should be
treated or construed as professional advice on financial, tax, medical,
psychological, technical, business, or legal matters.
Term, Termination, and Suspension
This Agreement takes effect (or re-takes
effect) at the moment You first click “Submit” and access or use the Platform. FMSI
reserves the right at any time and on any grounds, including without limitation
any reasonable belief of fraudulent or unlawful activity, to deny or suspend Your
access to the Platform or Content, or to any portion thereof, in order to
protect its name and goodwill, its business, its ownership and other rights in
Content, the security and stability of the Platform, and/or the rights of others.
This Agreement terminates automatically if You fail to comply with any
provision hereof, subject to the survival rights of certain provisions
identified below. You may also terminate this Agreement at any time by ceasing
to use the Platform, but each re-access or renewed use of the Platform will
reapply the Agreement to You. Upon termination or expiration of the Agreement
for any reason, all licenses granted by FMSI hereunder shall immediately
terminate, and You must immediately exit and/or cease all use of the
Platform. The provisions of this Agreement concerning FMSI’s proprietary
rights, Feedback, disclaimers of warranty, limitations of liability, waiver and
severability, indemnification rights, injunctive relief, and governing law will
survive the termination of this Agreement for any reason.
Without limiting the foregoing, FMSI
reserves the right, in its sole discretion, to terminate or suspend Your access
to the Platform, Content, or any feature or portion thereof at any time,
without notice to You, if FMSI reasonably determines or suspects that You are
in violation of this Agreement.
Governing Law
This Agreement is governed by the laws of
the State of Michigan, without reference to its principles of conflict of laws.
The Platform may not be used or accessed from or in any jurisdiction that does
not give effect to all provisions of this Agreement, including without
limitation this paragraph.
Arbitration
In the event the parties hereto are not able
to resolve any dispute between them arising out of or concerning this Agreement,
or any provisions hereof, whether arising in contract, tort, or otherwise at
law or in equity for damages or any other relief, then such dispute shall be
resolved exclusively through confidential, final, and binding arbitration
pursuant to the Federal Arbitration Act, conducted by a single neutral
arbitrator and administered under the Commercial Arbitration Rules of the
American Arbitration Association. The exclusive site of such arbitration shall
be in the State of Michigan. The arbitrator's award shall be final, and
judgment may be entered upon it in any court having jurisdiction. The
prevailing party shall be entitled to recover its costs and reasonable
attorney's fees. The entire dispute, including the scope and enforceability of
this arbitration provision, shall be determined by the arbitrator. This
arbitration provision shall survive the termination of this Agreement for any
reason. Notwithstanding the foregoing, FMSI may bring a claim for injunctive
relief against Your violation of this Agreement in any court of competent
jurisdiction.
Independent Contractors
The relationship between You and FMSI under
this Agreement is that of independent contractors, and nothing herein or in
Your use of the Platform shall be construed as creating any joint venture,
partnership, employment, or agency relationship.
Security and Compliance
FMSI reserves the right to view, monitor, and
record Your activity on the Platform without notice or permission from You.
FMSI’s provision of the Platform is subject to existing laws and
legal process, and nothing contained herein shall restrict or reduce FMSI’s ability
to comply with governmental, court, and law enforcement requests or requirements
involving Your use of the Platform or information provided to or gathered by FMSI
with respect to such use.
Export Controls
You represent and warrant that You are not:
(a) located in a country that is subject to a U.S. government embargo or sanction;
or (b) listed on any U.S. government list of prohibited or restricted parties.
You hereby agree that (i) You will comply with all applicable sanctions and
export control laws, and (ii) You are solely responsible for ensuring that the Platform
is used, disclosed, and/or accessed only in accordance with all applicable
sanctions and export control laws.
Severability and Waiver
If any part of this Agreement is determined
to be invalid or unenforceable pursuant to court order or other operation of applicable
law, such provision shall be deemed reformed or severed from this Agreement to
the minimum extent required by such order or law, and the remainder of this
Agreement shall continue in full force and effect to the maximum extent
permitted under applicable law.
FMSI’s failure to insist on strict
performance of any of this Agreement will not operate as a waiver of any
subsequent default or failure of performance by You. No waiver by FMSI of any
right under this Agreement will be deemed to be either a waiver of any other
right or provision or a waiver of that same right or provision at any other
time.
Injunctive Relief
You acknowledge that any breach, threatened
or actual, of this Agreement would cause irreparable injury to FMSI not readily
quantifiable as money damages, such that FMSI would not have an adequate remedy
at law. You therefore agree that FMSI shall be entitled, in addition to other
available remedies, to seek and be awarded an injunction or other appropriate
equitable relief from a court of competent jurisdiction restraining any such
breach of Your obligations, without the necessity of posting bond or other
security.
Changes to Agreement
Please note that FMSI reserves the right
to change the terms and conditions of this Agreement by posting a revised set
of terms or mailing and/or e-mailing notice thereof to You. In addition, FMSI
may add, modify, or delete any aspect, component, or feature of the Platform,
but FMSI is not under any obligation to add any upgrade, enhancement, or
modification. Your continued use of the Platform following any announced change
will be deemed as conclusive acceptance of any change to the Agreement. Accordingly,
please review the Agreement on a periodic basis.
Contact Us
If You have any questions or comments
regarding this Agreement, please contact FMSI at:
3069 University Drive
Suite 210
Auburn Hills MI,
48326
officemanager@fmsi.org