MITSUBISHI CATERPILLAR FORKLIFT AMERICA INC.
TERMS AND CONDITIONS OF USE
NOTICE: Please read these Terms and Conditions of Use (“Terms and Conditions”) in their entirety before using this website, including all information, software, products, accounts, services, and similarly linked websites made available from this website or offered as part of or in conjunction with this website (this “Website”). Do not use this Website if you do not agree with these Terms and Conditions.
MITSUBISHI CATERPILLAR FORKLIFT AMERICA INC. (“MCFA”) offers this Website, to you, the user, conditioned upon your acceptance of all of the terms, conditions, policies and notices stated herein. The term “MCFA” shall refer to and include Mitsubishi Caterpillar Forklift America Inc., and its affiliates Rapidparts Inc., Daily Equipment Company Inc. and Southern California Material Handling Inc. When used in these Terms and Conditions, wherever you have agreed to indemnify MCFA, or agreed that MCFA shall have no liability, the term “MCFA” shall include the foregoing companies and each of their affiliates and their respective directors or managers, shareholders, officers, employees and agents. When used in these Terms and Conditions, the terms “we” and “our” refer to MCFA and “you” and “your” refers to any individual, company, or legal entity that accesses or otherwise uses this Website.
MCFA reserves the right to make changes to these Terms and Conditions at any time by posting the changed Terms and Conditions in this location. Use of this Website signifies your agreement to comply with these Terms and Conditions, including any changes made by MCFA. Any changes will be effective only after the effective date of the change and will not affect any dispute arising prior to the effective date of the change.
USE OF THE WEBSITE
As a condition to your continued use of this Website, you warrant to MCFA that you will access and use this Website solely in accordance with these Terms and Conditions, and you will not use this Website for any purpose that is unlawful or prohibited by these Terms and Conditions. You will strictly adhere to all laws, rules, regulations and MCFA policies applicable to the access and use of this Website, including those laws, rules and regulations that apply to online conduct, online content, and the export of data to and from the United States and your country of residence. In addition you will not:
- Access, acquire, copy or monitor any portion of this Website, or in any way reproduce or circumvent the navigational structure or presentation of this Website, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through this Website, including through the use of any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process.
- Attempt to gain unauthorized access to any portion or this Website, or any other systems or networks connected to this Website or to any server, including by hacking, password “mining” or any other illegitimate means.
- Probe, scan or test the vulnerability of this Website or any network connected to this Website, nor breach the security or authentication measures on this Website or any network connected to this Website.
- Reverse look-up, trace or seek to trace any information on any other user of or visitor to this Website, or any customer of MCFA, including, but not limited to, personal identification or information.
- Take any action that imposes an unreasonable or disproportionately large load on the infrastructure of this Website or MCFA's systems or networks, or any systems or networks connected to this Website or to MCFA.
- Use any device, software or routine to interfere or attempt to interfere with the proper working of this Website, any transaction being conducted on this Website or with any other person's use of this Website.
- Distribute viruses or any other technologies that may harm MCFA or the interests or property of any other person or entity, including any other user of this Website.
- Circumvent or manipulate any applicable fee structure, billing process or fees owed to MCFA, its dealers or other business partners.
- Forge or manipulate identifiers in order to disguise the origin of any message or transmittal you send to MCFA on or through this Website, or otherwise pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
- Upload any content to this Website which is unlawful or libelous, or which is, or which may reasonably be construed to be, harmful, offensive, fraudulent, threatening, untrue, malicious, harassing, pornographic or obscene.
- Use this Website, nor permit others to use this Website, to harass, threaten, track or stalk third parties, solicit or perform any illegal activity or perform any other activity which infringes the rights of MCFA or others.
The information on this Website is for information purposes only. It is believed to be reliable, but MCFA does not warrant its completeness, timeliness or accuracy. You agree that you are accessing, using and relying upon such content at your own risk. Please seek the advice of professionals as necessary regarding the evaluation of any content on this Website.
USE THE WEBSITE AT YOUR OWN RISK. THIS WEBSITE IS PROVIDED TO YOU “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, TITLE OR NON-INFRINGEMENT. MCFA MAKES NO WARRANTY THAT ANY CONTENT CONTAINED ON THIS WEBSITE SATISFIES ANY APPLICABLE GOVERNMENT LAW, REGULATION OR REQUIREMENT. Neither MCFA nor its directors, shareholders, officers, employees, volunteers, agents, third-party information providers, merchants, licensors or the like warrant that this Website or its operation will be accurate, reliable, uninterrupted or error-free. No agent or representative of MCFA has the authority to create any warranty regarding this Website on behalf of MCFA. MCFA reserves the right to change or discontinue at any time any aspect or feature of this Website. THIS SECTION DOES NOT AFFECT THE LEGAL WARRANTY PROVIDED FOR UNDER QUÉBEC LAW.
BY ACCESSING THE WEBSITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE, PROVINCE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
EXCLUSION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MCFA OR ITS DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, STORING OR DISTRIBUTING THE WEBSITE BE LIABLE FOR (AND YOU HEREBY RELEASE THE FOREGOING FROM ANY LIABILITY FOR) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES AND EXPENSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, AND DAMAGES ARISING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY CONNECTED WITH USE OF THE WEBSITE, DELAY OR INABILITY TO USE THE WEBSITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH THE WEBSITE, WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY AGREE THAT NO LICENSOR, SUPPLIER OR INFORMATION PROVIDER TO MCFA OR ITS AFFILIATES, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, VOLUNTEERS OR AGENTS, OR ANY OF THEIR SUCCESSORS OR ASSIGNS, SHALL HAVE ANY LIABILITY TO YOU FOR ANY REASON OR UNDER ANY THEORY WHATSOEVER, BASED UPON THE INFORMATION PROVIDED ON OR THROUGH THE WEBSITE. Because some jurisdictions, including the Province of Quebec, do not permit the exclusion or limitation of liability for consequential or incidental damages, some or all of the above limitation may not apply to you. In such jurisdictions, our liability is limited to the greatest extent permitted by law, or $10.00, whichever is less.
You agree to defend, indemnify, and hold MCFA, its affiliate companies and their respective directors or managers, shareholders, officers, affiliated companies, employees, agents, licensors and suppliers harmless from and against any and all claims, actions or demands, liabilities and settlements, including, without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your use of this Website, or any content, product or service offered through this Website, in a manner that violates or is alleged to violate these Terms and Conditions. MCFA shall provide notice to you of any such claim, suit or proceeding and shall reasonably cooperate with you, at your expense, in your defense of any such claim, suit or proceeding. No such claim may be settled by you without MCFA’s consent.
FEATURED LINKS AND ADVERTISEMENTS
The Website may contain hyperlinks to websites offered by parties other than MCFA. Such hyperlinks are provided for your reference and convenience only. MCFA is not responsible for the privacy practices or the content of such websites; nor does MCFA's inclusion of hyperlinks to such websites imply any endorsement of the material on such websites or any association with their operators, including any websites that may indicate a special relationship or partnership with MCFA (such as co-branded pages or “powered by” or “in cooperation with” relationships). Unless otherwise specifically stated on this Website, MCFA does not endorse any product or service or make any representation regarding the reliability, quality or accuracy of any products or services featured in, or linked to, any advertisement, article or other content appearing on this Website, including any sponsors of all or part of this Website.
SOFTWARE AVAILABLE ON WEBSITE
Any software that is made available to download from this Website is the copyrighted work of MCFA and/or its suppliers. Your use of the software is governed by the terms of the End User License Agreement, if any, that accompanies or is included with the software. You may not install or use any software without first agreeing to the terms of such End User License Agreement. For any software not accompanied by an End User License Agreement, MCFA hereby grants to you a personal, non-transferable, non-sublicensable license to use the software for viewing and other purposes within the scope of use of such software anticipated by MCFA in accordance with these Terms and Conditions, and for no other purpose. Any such software is provided to you subject to the warranty and liability exclusions set forth in these Terms and Conditions.
Except for material in the public domain under United States or Canadian copyright law, all material contained on this Website (including all software, HTML code, Java applets, Active X controls and other code) is protected by United States and foreign copyright laws. Except as otherwise expressly provided in these Terms and Conditions, you may not copy, distribute, transmit, display, perform, reproduce, publish, license, modify, rewrite, create derivative works from, transfer or sell any material contained on this Website without the prior consent of the copyright owner. None of the material contained on this Website may be reverse-engineered, disassembled, decompiled, transcribed, stored in a retrieval system, translated into any language or computer language, retransmitted in any form or by any means (electronic, mechanical, photo reproduction, recordation or otherwise), resold or redistributed without the prior written consent of MCFA. Violation of this provision may result in severe civil and criminal penalties.
- As between you and MCFA, you acknowledge and agree that MCFA owns or licenses any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary or moral rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide (“Intellectual Property Rights”) in connection with or relating to this Website and its contents, including, but not limited to, the design, structure, selection, coordination, expression, “look and feel” and arrangement of such contents or contained on this Website.
- You acknowledge and agree that you have no right, license, or interest in any Intellectual Property Rights in connection with or relating to this Website or its contents.
You acknowledge and agree that MCFA owns all right, title and interest in and to any replacements, improvements, updates, enhancements, derivative works and other modifications (including, without limitation, the incorporation of any ideas, methods or processes provided by or through you) to MCFA’s Intellectual Property Rights made by any person, even if paid for by you and regardless of whether or not they are similar to any of your Intellectual Property Rights. You will undertake any and all action necessary to vest such ownership in MCFA, including, without limitation, assigning (and you hereby assign) to MCFA all rights in and to such Intellectual Property Rights, including, without limitation, patent applications, patents, trademarks, moral rights and copyrights arising from or relating to your revisions to this Website or its contents.
IDEAS AND SUBMISSIONS
The Website includes certain hyperlinks to MCFA content to allow you to access pdf images of MCFA product and marketing materials. If you are an employee, agent, dealer, affiliate, licensee or other representative of MCFA, you are authorized by MCFA to download, reproduce and distribute such pdf images or portions thereof in order to carry out MCFA marketing or customer service or meet other MCFA business goals.
Except as noted above, you may make single copies of materials displayed on this Website for your own personal (internal) use only, provided any copies include the copyright and other notices displayed with the materials on this Website. Except as noted above, you may not copy, transmit, distribute, modify, publicly perform, reuse, sell or display any of this Website’s content for any public or commercial purpose except with the prior written consent of MCFA or the copyright owner of the copied material. Requests to reproduce materials on this Website for distribution or other purposes should be directed to the Marketing Department, available at Marketing.Info@MCFA.Com.
“TOWMOTOR®”, “MASTER PROTECTION®”, “LIFT LINK®”, “RAPIDPARTS INC.®” and “PROMATCH®” are trademarks of MCFA and are protected by state and federal trademark laws. Other trademarks (including, but not limited to, “MITSUBISHI”, “CAT LIFT TRUCKS®”, and “JUNGHEINRICH®”) appear on this Website with permission from their respective owners. You are not authorized to use any of these trademarks by your access to this Website. Please contact MCFA for any necessary consent. Your unauthorized use of trademarks appearing on this Website may constitute trademark infringement, which could subject you to substantial civil penalties.
TERMINATION OF PRIVILEGES
You agree that MCFA may terminate or suspend your access to this Website, immediately and without prior notice, in the event that MCFA reasonably believes that you have violated, attempted to violate or intend to violate any terms set forth in these Terms and Conditions. You further agree that MCFA may terminate or suspend your access to this Website, immediately and without prior notice, in the event that MCFA is required to do so under applicable law or order of a governmental authority. You agree and acknowledge that content uploaded to this Website, as well as data regarding you and/or your account stored on this Website, may be irretrievably lost or damaged as a result of such termination or suspension, or otherwise (including through ordinary use of this Website), and you agree to release and hold MCFA harmless from any damages or other liabilities arising as a result of the same. If MCFA receives notice or otherwise discovers or reasonably believes that you have posted material that infringes another party's copyright or trademark rights or violates another party's rights of privacy or publicity, MCFA may terminate your access to this Website, including all of your privileges or accounts that you may have established in connection with this Website. However, our failure to act with respect to a breach by you or others of the Terms and Conditions does not waive our right to act with respect to subsequent or similar breaches.
Upon termination of your rights to access this Website, you will cease all use of this Website and the contents thereof, destroy all copies of the contents, and will not attempt to re-access this Website under a different name or address. The provision of these Terms and Conditions under the headings No Warranties, Exclusion of Liability, Indemnification, Import and Export Compliance, and Jurisdiction, shall survive any termination of your rights to access this Website and under these Terms and Conditions.
PASSWORDS AND ACCOUNT INFORMATION
If you establish a user account on this Website, you are solely responsible for all activity occurring under your account. The grant of right to access and use user account may not be shared by more than one individual user, or assigned to another user. You agree not to misuse passwords or misuse any information posted to this Website. You agree to keep confidential all user ID information and passwords issued to you or established by you connection with this Website, and to use such user information and passwords only for lawful purposes. You agree and understand that you are responsible for maintaining the confidentiality of passwords and/or account information. If you become aware of any unauthorized use of your password or of your account, you agree to notify MCFA immediately.
MCFA will not tolerate copyright infringement of any kind. MCFA does not, however, monitor user-submitted materials for copyright infringement. If you believe that any material on this Website infringes your copyright, you may seek to have the material removed by sending MCFA notice that includes all of the following information:
- your full name, address and telephone number;
- your e-mail address;
- identification of the copyrighted work(s) that you believe is being infringed;
- identification of the infringing material and information sufficient for MCFA to locate the material;
- your statement of good faith belief that (a) the material infringes your copyrights, (b) the information provided in the notice is accurate and (c) under penalty of perjury, you are authorized to act for the copyright owner; and
- your physical or electronic signature.
Direct such notice to MCFA’s designated agent for receiving copyright infringement notices:
Mitsubishi Caterpillar Forklift America Inc.
Attention: Legal Department
2121 W. Sam Houston Parkway N.
Houston, TX 77043
Upon receipt of notice complying with the above requirements, MCFA will act to remove infringing materials and, if applicable, send notice to the user that posted such materials on this Website.
If MCFA removes materials posted by you as a user due to alleged copyright infringement, you may seek to have the materials reinstated by notifying MCFA's designated agent in writing and including the following information:
· your full name, address and telephone number;
· your e-mail address;
· identification of the material that has been removed or to which access has been disabled, including its location before it was removed or disabled;
· your statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material;
· your statement consenting to the jurisdiction of the Federal District Court for the district in which your address is located, or, if you reside outside of the United States, for the Southern District of Texas (where MCFA may be found), and that you will accept service of process from the person who provided notice of copyright infringement or from such person's agent; and
· your physical or electronic signature.
Upon receipt of a notice meeting the above requirements, MCFA will send a copy of the notice to the copyright owner who initially claimed copyright infringement. Within ten (10) to fourteen (14) days following receipt of the notice, MCFA will replace or enable access to the removed material unless MCFA receives notice from the copyright owner who submitted the first notification that it has filed an action seeking a court order to restrain the user that posted the materials from engaging in infringing activity.
Please note that parties who misrepresent that materials are infringing or were removed by mistake or misidentification are subject to substantial civil liability to MCFA and/or the copyright owner or Website user.
U.S. GOVERNMENT RIGHTS
The Website and its content are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
IMPORT AND EXPORT COMPLIANCE
You may not use or otherwise export or re-export this Website or its contents except as authorized by United States and Canadian law. In particular, but without limitation, this Website and its contents may not be exported or re-exported (a) into any U.S. embargoed countries or any country with sanctions imposed by Canada, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person's List or Entity List, the Canadian Government’s Consolidated Canadian Sanctions List, or the Consolidated United Nations Security Council Sanctions List. You represent and warrant that your access and use of this Website and its contents will not violate any such laws and that you are not located in any such country or on any such list. You also agree that you will not use this Website or its contents for any purposes prohibited by United States or Canadian law, including, without limitation, the development, design, manufacture or production of nuclear weapons, missiles or chemical or biological weapons.
Any notices or communications to you shall be in writing and shall be deemed delivered (a) on the delivery date if transmitted by electronic mail at the electronic mail address you have provided to MCFA; (b) on the posting date to a Website designated in advance by MCFA for this purpose; (c) on the delivery date if delivered personally to the party, or a representative of the party; (d) on the delivery date if transmitted by confirmed facsimile; (e) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (f) five business days after the mailing date, whether or not received, if sent by postal mail, return receipt requested.
These Terms and Conditions constitute the entire agreement and understanding between you and MCFA with respect to use of this Website, superseding all prior or contemporaneous communications and/or proposals. These Terms and Conditions also are severable, and in the event any provision is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions. MCFA reserves the right to make changes to these Terms and Conditions immediately by posting the changed Terms and Conditions in this location on this Website. By continuing to use this Website, you are agreeing to all changes made by MCFA. Any changes will be effective only after the effective date of the change and will not affect any dispute arising prior to the effective date of the change. A printed version of these Terms and Conditions shall be admissible in judicial or administrative proceedings based upon or relating to use of this Website to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The Website is controlled and operated by MCFA from its principal office in the State of Texas, United States of America. MCFA makes no representation that materials on this Website are appropriate or available for use in other locations. Those who choose to access this Website from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to submit to the exclusive jurisdiction of the laws of the State of Texas and the United States of America.
These Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State of Texas, without regard to its conflict of law provisions. You agree to submit to the exclusive jurisdiction and venue of the state courts and federal courts located within Harris County, Texas to resolve any claim or dispute arising out of or based upon this Website, or these Terms and Conditions, and you hereby appoint the Secretary of State of the State of Texas as your registered agent for service of process upon you.
You agree that you will not assert against MCFA any claim or make a demand for dispute resolution arising directly or indirectly under or in connection with these Terms and Conditions that relates to, or asserts as a cause for action, any event which occurred more than twelve (12) months after the earliest date on which the facts on which any claims are based were known to you, or could, with the exercise of reasonable diligence, have been known to you.
If you are a consumer, the provisions in these Terms and Conditions are intended to be only as broad and inclusive as is permitted by the laws of your state or province of residence. For example, if you are a New Jersey consumer, the terms of the “Linking” section above do not limit or waive your rights as a consumer under New Jersey law and the provisions in these Terms and Conditions are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. In any event, MCFA reserves all rights, defenses and permissible limitations under the law of your State or Province of residence.
MUST BE AT LEAST 18 YEARS OLD TO USE THIS SITE
At this Website, MCFA makes no active effort to collect personal information from individuals under the age of eighteen (18). MCFA requires that Website users must be of legal age to enter into agreements (typically, at least eighteen (18) years of age or older).
NOT AUTHORIZED TO DO BUSINESS IN EVERY JURISDICTION
MCFA is not authorized to do business in every jurisdiction. Information published on this Website may contain references or cross-references to goods or services that are not available in your state, province or country.
ENTIRE AGREEMENT; SEVERABILITY
You acknowledge that you have read and understood these Terms and Conditions and that you agree to be bound by it. You further agree that these Terms and Conditions constitute the complete and exclusive statement of these Terms and Conditions between you and MCFA and supersede all other proposals or prior agreements oral or written, and any other communications relating to the subject matter of these Terms and Conditions. If any provision of these Terms and Conditions is found unenforceable, it shall not affect the validity of these Terms and Conditions, which shall remain valid and enforceable according to its terms. The parties hereto acknowledge having expressly required that these Terms and Conditions and all related policies and terms are to be drawn up in the English language. Les parties aux présentes reconnaissent avoir expressément exigé que les Conditions générales d’utilisation du site ainsi que toutes les politiques et règles s'y rapportant soient rédigées en anglais.
If you have any questions about these Terms and Conditions, the practices of this Website, or your dealing with MCFA, you may contact us at:
Mitsubishi Caterpillar Forklift America Inc.
Attention: Legal Department
2121 W. Sam Houston Parkway N.
Houston, TX 77043