Last Updated: June 7, 2018
BY USING THE SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND AFFIRM THAT YOU ARE OF LEGAL AGE WHERE YOU LIVE AND HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 15 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OR CLASS ARBITRATIONS OF ANY KIND.
1. Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use or access of the Site, in each case following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability or prior notice, modify or discontinue all or part of the Site (including access to the Site via any third-party links) to reflect changes to our customers’ needs and our business priorities; charge, modify or waive any fees required to use the Site; or offer opportunities to some or all Site users. We reserve the right to introduce new features or functionality for which the payment of fees may be required
3. Jurisdictional Issues. The Site is controlled or operated (or both) from the United States, and is not intended to subject MCA to any non-U.S. jurisdiction or law. The Site may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Site’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Rules of Conduct. In connection with the Site, you must not:
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed for you to use the Site (including any applicable device data transmission charges).
5. Resources. The Site may make available content, information, data, materials, services, products, merchandise, functionality or other resources (collectively, “Resources”), as well as references and links to such Resources. Resources may be made available by MCA or by third parties, and may be made available for any purpose, including for general information purposes, and are not intended to amount to advice on which you should rely. We make no representations as to the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of any or all of the Resources and the Site, or any intellectual property rights therein. Resources are subject to change at any time without notice. To the fullest extent permitted under applicable law, we disclaim all liability and responsibility arising from any reliance placed on any Resources by you or any other user of the Site, or by anyone who may be informed of the content of any Resources.
6. Third Party Resources; Links. Certain Site functionality may allow access to Resources made available by third parties (“Third Party Resources”), or allow for the routing or transmission of Third Party Resources, including via links; by using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Resources.
We neither control nor endorse, nor are we responsible for, any Third Party Resources. Nothing in this Agreement will be deemed to be a representation or warranty by MCA with respect to any Third Party Resources. In addition, the availability of any Third Party Resources through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third Party Resources, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY RESOURCES (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY RESOURCES).
7. Your Feedback. For purposes of clarity, as between you and MCA, you retain ownership of any ideas, proposals, suggestions or other materials you provide to us (“Feedback”). If you provide to us any Feedback whether related to the Site or otherwise, you hereby grant to us a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify, store and otherwise use, analyze and exploit such Feedback, in any format or media now known or hereafter developed, for the purposes of marketing, promoting and improving the products and services of MCA or its affiliates and operating, promoting and improving the Site. You hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place MCA under any fiduciary or other obligation. MCA reserves the right, but is not obligated, to reject any Feedback.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section; and Your Feedback and your provision of it to us (whether through and in connection with the Site or otherwise) are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party (including any intellectual property, publicity or privacy rights).
8. Monitoring. We may (but have no obligation to) monitor, moderate and/or analyze your use of the Site. We may disclose information regarding your access to and use of the Site, and the circumstances surrounding such access and use, to anyone for any reason or purpose.
9. Your Limited Rights. Subject to your compliance with this Agreement, and solely for so long as you are permitted by MCA to use the Site, you may view and use any portion of the Site to which we provide you access under this Agreement.
10. MCA’s Proprietary Rights. As between you and us, we own the Site, which is protected by proprietary rights and laws. All trade names, trademarks, service marks, logos, symbols and copyrightable works available through the Site are the property of their respective owners and nothing contained on the Site should be construed as MCA granting any right to use any trade names, trademarks, service marks, logos or copyrightable works without MCA’s express prior written consent.
11. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE SITE AND ANY RESOURCES (INCLUDING ANY THIRD PARTY RESOURCES) ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) MCA DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND ANY RESOURCES (INCLUDING ANY THIRD PARTY RESOURCES), INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH MCA AND ITS AFFILIATES AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “MCA PARTIES”).
While we seek to maintain the timeliness, integrity and security of the Site, we do not guarantee that the Site is or will remain updated, complete, correct or secure, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any such alteration, contact us at: +1 914-253-0777 with a description of such alteration and its location on the Site.
12. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) NO MCA PARTY WILL BE LIABLE EITHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SITE OR THIS AGREEMENT, NOR FOR ANY DAMAGES FOR DIMINUTION OF VALUE, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OR USE OF DATA, LOSS OF GOODWILL, LOSS OF OTHER INTANGIBLES, IN EITHER CASE WHETHER UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, NO MCA PARTY WILL BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY RESOURCES (INCLUDING ANY THIRD PARTY RESOURCES), INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION WITH THE SITE OR ANY RESOURCES (INCLUDING ANY THIRD PARTY RESOURCES); (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE OR ANY RESOURCES (INCLUDING ANY THIRD PARTY RESOURCES) IS TO STOP USING THE SITE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF ALL MCA PARTIES, COLLECTIVELY, FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL BE EQUAL TO THE GREATER OF TEN U.S. DOLLARS (USD $10). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH MCA AND EACH OF THE OTHER MCA PARTIES.
Applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
Nothing in this Section 12 excludes or limits liability for: (i) death or personal injury caused by our negligence; or (ii) fraud or fraudulent misrepresentation.
13. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless each MCA Party from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees and expenses) arising out of or relating to (a) your use of, or activities in connection with, the Site; or (b) any violation or alleged violation of this Agreement by you.
14. Termination. This Agreement is effective until terminated. MCA may terminate this Agreement or suspend your right to use the Site at any time and without prior notice, for any or no reason, including if MCA believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Site will immediately cease. The preamble and Sections 2-7 and 10-18 will survive any termination of this Agreement.
15. Governing Law; Arbitration; Class Action Waiver. This Agreement, your use of (including any access to) the Site and all related matters are governed solely by, and construed solely in accordance with, the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law that would cause the application of the laws of any other jurisdiction, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT, YOUR USE OF (INCLUDING ANY ACCESS TO) THE SITE AND ALL RELATED MATTERS, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT MCA AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MAY OPT OUT AS SET FORTH BELOW. IN ORDER TO OPT OUT OF THIS ARBITRATION PROVISION, YOU MUST NOTIFY US IN WRITING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH US BY ARBITRATION, AND SUCH NOTICE SHOULD BE DELIVERED BY MAIL TO: MITSUI CHEMICALS AMERICA, INC., 800 WESTCHESTER AVENUE, SUITE S306, RYE BROOK, NY 10573, ATTN: MANAGER OF LEGAL AND INTERNAL CONTROL DEPARTMENT WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST USE OR ACCESS THE SITE. The arbitration will be administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules (currently available at: https://www.adr.org/sites/default/files/CommercialRules_Web.pdf), as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court that has jurisdiction. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if applicable law allows, they can seek relief against us for you.
16. Parental Control Protections. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that MCA does not endorse any of the products or services listed on such site.
17. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
18. Miscellaneous. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and MCA. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations of such term in this Agreement will be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein and any addenda hereto, is the entire agreement between you and MCA relating to the subject matter of this Agreement, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and MCA relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by e-mail to the most recent e-mail address that you have provided to us (including in each case via links), or by regular mail to the most recent mailing address that you have provided to us. Without limitation, a printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. MCA will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.