Since use of the Gateway is not public and is password-protected (that is only Authorized Employees of registered users are permitted access), and Your employer, the Customer, must have registered with UPM for its and Your use, it is noted that these Terms are in addition to, and do not replace, the terms of that certain Customer Gateway Access Agreement that the Customer has agreed to and entered into with UPM (the “Access Agreement”). It is understood that in the event of any inconsistency between these Terms and the Access Agreement, the Access Agreement shall prevail. Neither these Terms nor the Access Agreement shall in any case prevail over the terms of any other understanding(s) or agreement(s) between UPM, You or the Customer to the extent that those understanding(s) or agreement(s) govern issues other than Your or the Customer’s use of the Gateway.
The purpose of these Terms is to set forth the terms and conditions under which UPM authorizes access to and use of the Gateway to review, use and otherwise benefit from the documents, information and other materials made available thereon or there through, including, but not limited to, the downloading, copying or saving of such documents, information and materials (the “Services”) in accordance herewith, pursuant to and for the duration of the Access Agreement. Before using the Gateway, You must obtain all required consents and approvals from the Customer as the sponsor of Your use of the Gateway.
Content of the Gateway
The Gateway provides You with access to and use of collections of independent works, data or other materials, including, but not limited to, design, text, software, technical drawings, configurations, images, graphics, video and/or audio files, coordinated, selected and arranged in a systematic or methodical way (the “Gateway Content”). The Gateway and the Gateway Content shall remain the sole property of UPM at all times during the term hereof. Further, the Gateway Content may contain trademarks, service marks, certification marks, collective marks, trade dresses, trade secrets, logos, copyrights, data, text, graphics, photographs, sound, video and other content owned by UPM or third parties (collectively, the “Trademarks”), and as between You, the Customer and UPM, UPM is the sole owner of the Trademarks and You may not copy, imitate, alter, tamper with or use, in whole or in part, without the prior written permission of UPM, to be given or denied in its sole and absolute discretion, the Trademarks. All page headers, custom graphics, button icons or other design features of the Gateway may be Trademarks owned by UPM. Certain company names and products mentioned on the Gateway may be claimed as Trademarks by their respective owners, who may not be affiliated with UPM.
You may electronically copy, download, print hard copies or otherwise make hard copies for Your and the Customer’s internal use of the Gateway Content, subject to the following requirements: (i) any copies or downloads shall be used within the Customer organization only for the Customer’s commercial activities with UPM; (ii) such permission to copy or download is only granted to persons legally accessing the Gateway and is not transferable to any other person or third party; (iii) to the extent the Gateway Content copied or downloaded contains the Trademarks, You must retain the Trademarks and/or any proprietary notices on any copies or downloads; and (iv) You may not, directly or indirectly, without limitation, modify, display, reproduce, distribute, republish, transmit, transfer, frame, license, post, manipulate, adapt, compile or decompile, translate, remove and/or delete or in any other way exploit the Gateway Content or the technical means and facilities for storage, processing and transmitting of the Gateway Content (including, but not limited to, servers, workstations, networks, databases, computer program and web portals) set up by UPM and enabling UPM to provide the Services and the Gateway Content on the Gateway, nor create any derivative work therefrom, without UPM’s express written consent, to be given or denied in its sole and absolute discretion. Except for the foregoing limited license to make, and internally within the Customer use, copies or downloads of the Gateway Content, nothing contained herein shall be construed as granting You or the Customer a license under any copyright, trademark, patent, trade secret or other intellectual property right of UPM or any third party, whether by implication, estoppel or otherwise.
Neither You, nor the Customer, shall sell, rent, lease, license, grant any rights in, transfer, transmit, time-share or otherwise assign to any third party rights in any confidential and unique identification codes and passwords assigned to the Customer by UPM.
For purposes of these Terms, any use of the Gateway Content on any other website or networked computer environment (including, but not limited to, posting of the Gateway Content on a local intranet or extranet) for any purpose is prohibited without the express, prior written permission of UPM, to be given or denied in its sole and absolute discretion.
Third Party Content
The Gateway Content may include documents, material, data or information provided to UPM by third parties. You agree that UPM shall not have any liability whatsoever to You for any such third party material.
You and the Customer assume the full responsibility and risk for any damage(s) resulting from Your downloading or copying of any of the Gateway Content. It is Your responsibility to take precautions to ensure that anything that You may download or otherwise select for use is free of viruses and other destructive materials.
In connection with Your use of the Gateway, You agree that You will not: (1) impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with a person or entity or use or attempt to use another’s account without authorization; (2) grant access to or use of the Gateway to any third party without consent or for any unlawful purpose; (3) use any device, software or hardware to bypass any operational element or disobey any requirements, procedures, policies or regulations of networks connected to the Gateway; (4) disrupt or interfere, or attempt to disrupt or interfere, with the operation of the Gateway or any other user’s use of the Gateway; (5) “hack”, infiltrate or otherwise seek to gain unauthorized access to, or compromise the integrity of the Gateway; (6) extract, collect or harvest any information, data or data fields on or from the Gateway, including, but not limited to, any personally identifiable information of any other user, through the use of any automated procedure, including, by means of what is commonly called a “bot”; (7) disrupt, interfere or breach or attempt to disrupt, interfere or breach the security of, or otherwise abuse, the Gateway, or any of the Services, system resources, accounts, software, networks, workstations, servers, data, databases, programs, web portals, computers or other hardware connected to or accessible through the Gateway or that of any third party that is interfacing with any part of the Gateway or use or distribute on the Gateway software or other tools or devices designed to compromise privacy or security; (8) use any hardware or software modules that add a specific feature or service by plugging into an existing larger system (“plug-ins”); or (9) reate any frames at any other web sites pertaining to or using any of the information provided through the Gateway, including the Gateway Content. You also agree to keep any Passwords given to You by either UPM or the Customer safe from disclosure to unauthorized employees of the Customer or third parties, and confirm that You understand that You and the Customer are responsible for any unauthorized use of Passwords, as well as all acts or omissions committed while any Password that You have access to is being used. You may not create a link to the Gateway from any other site or location without UPM’s prior written consent; provided, that such consent is not required for text-only links containing only the name “United Performance Metals.com” or the URL “http://www.upmet.com” if such links (i) “point” only to http://www.upmet.com and not to deeper pages in the Gateway, (ii) do not create the false appearance than an entity or its activities or products are associated with or sponsored in any way by UPM and (iii) do not damage or dilute the goodwill associated with the name and trademarks of UPM. UPM reserves the right to revoke this consent to link at any time in its sole and absolute discretion.
Termination/Change in Access
UPM may, for any reason and at any time, in its sole and absolute discretion, without liability or prior notice: (i) terminate, remove, modify, change, suspend or discontinue any aspect of the Gateway, including the availability of any of the Services or the Gateway Content; (ii) impose limits on certain of the Services or the Gateway Content, or terminate or restrict Your access to part or all of the Gateway, the Services or the Gateway Content; (iii) remove, modify or otherwise change Your access to the Gateway for any actual or perceived material breach of these Terms or any applicable laws or regulations or any conduct that is perceived to be harmful to the interests of another user, any third party or UPM; (iv) supplement or make changes to the user access or security procedures associated with the Gateway; or (v) change the type or location of equipment, facilities or software used in providing access to the Gateway.
Unless otherwise agreed by UPM in writing, the following restrictions apply to use of the Gateway Content by You or the Customer: (i) if any of the Gateway Content is marked “Proprietary” or “Confidential” or similarly, You and the Customer shall hold such information in confidence, use it exclusively in connection with the business activities of the Customer with UPM and not publish or otherwise disclose it to others, including employees of Customer who are not identified by the Customer as Authorized Employees under the Access Agreement; (ii) if any of the Gateway Content contains restrictions on use or disclosure, You and the Customer shall comply with such restrictions and (iii) You and the Customer shall keep all restrictive language intact in all permitted copies or downloads.
Disclaimer of Warranties
UPM shall make reasonable efforts to provide the necessary means to make the Gateway accessible to You and to the Customer seven (7) days a week, twenty-four (24) hours a day. Should access to or use of the Gateway or the Gateway Content be disturbed, UPM shall take reasonable and proper steps to restore the access to and/or use of the Gateway or the Gateway Content, respectively. HOWEVER, NOTHING IN THESE TERMS SHALL OBLIGATE UPM TO PROVIDE ACCESS TO YOU OR THE CUSTOMER TO THE GATEWAY OR THE GATEWAY CONTENT. ACCESS TO THE GATEWAY AND ANY OF THE GATEWAY CONTENT BY YOU AND THE CUSTOMER IS SOLELY AT UPM’S SOLE AND ABSOLUTE DISCRETION AND MAY BE LIMITED OR DISCONTINUED AT ANY TIME. THE GATEWAY, THE GATEWAY CONTENT AND ACCESS THERETO IS ALL PROVIDED “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS”, AND WITHOUT ANY WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ACCESS TO AND USE OF THE GATEWAY AND THE GATEWAY CONTENT BY YOU AND THE CUSTOMER IS SOLELY AT YOUR AND THE CUSTOMER’S OWN RISK, WITH THE CUSTOMER BEING SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGES RESULTING FROM SUCH ACCESS AND USE, ON WHATEVER GROUNDS. WITHOUT LIMITATION OF ANY OF THE FOREGOING, UPM AND ITS AFFILIATES, SUBSIDIARIES, REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS AND MEMBERS, SPECIFICALLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING OR RELATING TO THESE TERMS AND YOUR AND THE CUSTOMER’S USE OF THE GATEWAY, THE GATEWAY CONTENT AND ACCESS THERETO, INCLUDING, BUT NOT LIMITED TO, (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR QUALITY; (ii) THAT THE GATEWAY CONTENT WILL MEET REQUIREMENTS AND EXPECTATIONS, BE AVAILABLE WHEN NEEDED, OR BE ACCURATE, APPROPRIATE, RELIABLE, ERROR-FREE, COMPLETE, TIMELY OR USEFUL; (iii) THAT THE GATEWAY CONTENT, AS WELL AS THE GATEWAY ITSELF, WILL BE SECURE, UNINTERRUPTED, NOT DELAYED, NOT SUSPENDED, UNCHANGED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; OR (iv) THAT THE GATEWAY, THE GATEWAY CONTENT AND/OR ACCESS THERETO WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS OR OTHER RIGHTS. No advice, content or information given by UPM or its employees, directors, officers, shareholders, members, independent contractors or other representatives, whether oral or written, and whether obtained through the Gateway or not, shall create any warranty not expressly provided in a writing signed on behalf of UPM by an authorized representative.
Limitation of Liability
IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL UPM, OR ITS AFFILIATES, SUBSIDIARIES, REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS, OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS OR MEMBERS, BE RESPONSIBLE OR LIABLE TO YOU, THE CUSTOMER OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ANY ACTION INSTITUTED IN REGARD THERETO, INCLUDING, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, FOR ANY LOSS, COST, DAMAGE OR OTHER INJURY, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF OR DAMAGE TO BUSINESS, REVENUES, GOODWILL, INCOME, PROFITS, DATA, USE OR OTHER INTANGIBLE PROPERTY, PROGRAMS OR INFORMATION, BUSINESS INTERRUPTION, TRANSACTION LOSSES, LOSS OF CHANCE, OPPORTUNITY COSTS, LOSS OF USE OR DETERIORATION OR INFECTION BY MALICIOUS CODES OR OTHERWISE OF YOUR OR THE CUSTOMER’S INFORMATION TECHNOLOGY EQUIPMENT (INCLUDING, BUT NOT LIMITED TO, SOFTWARE, HARDWARE, CONNECTIONS AND/OR ANY SYSTEM OR NETWORK) OR ANY CLAIMS OF THIRD PARTIES ARISING IN ANY WAY OUT OF OR RESULTING FROM THE AVAILABILITY OR USE OF THE GATEWAY, THE GATEWAY CONTENT OR ACCESS (OR LACK OF ACCESS) THERETO, RESULTS FROM (OR ANY LACK OF RESULTS FROM), DOWNLOADING OR COPYING OF ANY OF THE GATEWAY CONTENT, UNAUTHORIZED ACCESS TO OR USE OF PASSWORDS OR ACTIONS OR OMISSIONS MADE IN RELIANCE UPON THE GATEWAY CONTENT OR LOSS OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE SYSTEMS, SERVICES OR TECHNOLOGY, EVEN IF UPM OR ITS AFFILIATES, SUBSIDIARIES, REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS, OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS OR MEMBERS, HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Please note that in connection with Your use of the Gateway, the Customer, in the Access Agreement, has agreed, and by Your use of the Gateway pursuant to these Terms, You agree, to indemnify, defend and hold UPM, its affiliates, subsidiaries, representatives, agents, successors and assigns, and their respective employees, directors, officers, shareholders and members, harmless from and against any and all claims, demands, costs, expenses, losses, damages, liabilities, suits and other proceedings (including, without limitation, reasonable attorney’s fees and court costs) due to, arising in any way out of or related to Your access to and use of the Gateway or any breach by You of Your obligations under these Terms.
The Gateway is not directed to or intended for individuals under eighteen (18) years of age. This paragraph describes the type of information UPM may collect from visitors to the Gateway and what UPM does with that information. When You first visit the Gateway, UPM may ask that You register and provide information about You and the Customer, including, but not limited to, name, the Customer’s name, address, telephone and fax numbers, e-mail address and other identifying information about You and/or the Customer, including, but not limited to, business-related information of the Customer. Also, You are hereby notified that UPM may request personally identifiable information directly from the Customer about You when You are authorized by the Customer to have access to the Gateway on the Customer’s behalf. Further, when You visit the Gateway, UPM may collect certain routing information such as the Internet Protocol address of your originating Internet Service Provider, and information provided by “cookies” (small data files containing a unique identifier transferred to Your computer hard drive for the sole purpose of recording computer connection to the Gateway such as date, time, consulted information) to permit automatic identification of You each time You access the Gateway so as to permit UPM to provide more tailored and user-friendly services should it so desire. UPM may access and record such information during any of Your visits to the Gateway. You have the right to block the storage of cookies or delete cookies by making the appropriate browser settings. However, blocking cookies may restrict the functionality of the Gateway or Your use thereof or cause the Gateway to not operate properly, for all of which UPM does not assume any responsibility. UPM may also collect and distribute aggregate information about use of the Gateway, including, but not limited to, the number of visitors received and how long visitors stay on each page. UPM may provide information collected about the Customer (without identifying You) to its affiliates and/or other third parties such as suppliers or others involved in the distribution chain for promotional purposes.
Any non-personally identifiable information collected will be considered non-confidential and non-proprietary and UPM shall have no obligation with respect to such non-personally identifiable information and shall be free to disclose and/or distribute such information in its sole and absolute discretion, without liability. With regard to personally identifiable information, UPM is committed to protecting such at all times and shall comply with regard to such with its obligations under any applicable laws or regulations with regard to data protection. Access to information stored on the Gateway is controlled by firewalls and other security measures and stored in reasonably secure operating environments that are not available to the public. Unfortunately, however, no data transmission over the Internet can be guaranteed one hundred percent (100%) secure. As a result, while UPM takes reasonable steps to protect personally identifiable information, UPM cannot ensure or warrant against unauthorized access to the Gateway. It is important for You and the Customer to protect against unauthorized access to Your Password(s) and to Your computer. UPM will not intentionally disclose personally identifiable information to a third party, except as required by law or legal process, to respond to claims or to protect the rights, property or safety of UPM or others or as permitted by the Customer’s written consent.
In the unlikely event of a sale of UPM or its assets, UPM is likely to disclose all information, including personally identifiable information, collected in connection with the Gateway to the new owners, subject to a requirement that such information be used only in accordance with this paragraph.
The substantive laws of the State of Alabama, excluding its conflict-of-law principles, shall govern these Terms and Your use of (or inability to use) the Gateway or the Gateway Content. You and the Customer agree that any claim or dispute with UPM relating in any way to Your use of (or inability to use) the Gateway or the Gateway Content or the existence, validity, interpretation or execution of these Terms shall be commenced and heard in the state or federal courts of the State of Alabama, County of Jefferson, and You and the Customer agree and expressly consent to the exercise of personal jurisdiction in such courts in connection with any such dispute.
You agree that you will comply with all applicable local, state, national and international laws and regulations, including, but not limited to, United States export restrictions, antitrust and competition laws and privacy laws, which relate to Your use of (or inability to use) and activity on the Gateway.
International and Compliance with Export Control Laws
UPM controls and operates the Gateway from its principal office location in Hamilton, Ohio, United States of America. Persons who choose to access the Gateway from locales outside of the United States do so on their own initiative, and UPM makes no representation that the Gateway Content is appropriate or available for use outside the United States, and access to such from territories where such is illegal is prohibited.
You and the Customer agree that there shall be no requirement on UPM to translate the Gateway or the Gateway Content, or any portion thereof, into any other language than English, and that there shall be no requirement to translate any other communication into any other language.
All activity on, in or through the Gateway and use of the Gateway Content shall at all times be subject to and conditioned upon compliance with all applicable export control laws and regulations and any amendments thereto of the United States of America and Your country, if other than the United States, including, but not limited to, the those restrictions under the United States of America’s Arms Export Control Act (22 U.S.C. § 2778, et seq.) (the “Statute”), and its implementing regulations, being the International Traffic in Arms Regulations (22 C.F.R. Part 120-1330), that may be applicable to the Gateway and/or the Gateway Content. You and the Customer acknowledge that the Statute and its implementing regulations impose restrictions on the import, export and transfer of certain categories of information or data to any foreign entity or country. You and the Customer also acknowledge, agree and hereby certify that You and the Customer will comply with the requirements of the Statute and its implementing regulations in connection with the disclosure, import, export and/or transfer of the Gateway Content falling within such certain categories. You hereby further agree that neither You nor the Customer shall, except as said laws and regulations may expressly permit, make any disposition by way of transshipment, re-export, diversion or otherwise, of technical information (including, but not limited to, technical data and software) made available on, in or through the Gateway, or the direct product thereof, other than as permitted by applicable export control laws and regulations. Finally, You and Customer affirm the intent to comply with the terms of any export approvals obtained by UPM and/or by the Customer related to the Gateway and/or the Gateway Content.
Changes to these Terms and the Gateway
UPM may change or update these Terms from time to time and at any time, in its sole and absolute discretion for any reason, and without actual notice to You or the Customer. You are encouraged to check for changes to these Terms regularly. Any changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by any means, including, but not limited to, posting new terms and conditions. By logging in to the Gateway following any modifications or updates to these Terms, You agree to be bound by such modifications or updates. Accordingly, Your use of the Gateway will be subject to the most current version of these Terms at the time of such use. If You do not agree to any changes or updates, You agree to terminate Your use of and access to the Gateway immediately. Unless explicitly stated otherwise, any new features that augment or enhance the current version of the Gateway shall be subject to these Terms.
These Terms, along with the Access Agreement, and any modifications to either of them, contain the entire agreement of You, UPM and the Customer with respect to the subject matter hereof, and supersede any and all previous understanding(s) and agreement(s) by and between any of the parties, whether written or oral, with respect to the subject matter hereof; provided, however, that neither these Terms nor the Access Agreement shall prevail over the terms of any other understanding(s) or agreements(s) by and between any of the parties to the extent those understanding(s) or agreement(s) govern issues other than Your or the Customer’s access to or use of the Gateway or the Gateway Content. These Terms may not be assigned or transferred by You or the Customer without the prior written approval of UPM, to be given or denied in its sole and absolute discretion. UPM may freely assign or transfer these Terms and its obligations hereunder. Any provisions herein which by their nature should survive any termination of access to the Gateway, shall survive any such termination. Should any provision of these Terms become prohibited, unlawful or unenforceable under any applicable law applied by any court of competent jurisdiction, such provision shall, to the extent required by such law, be severed from these Terms and rendered ineffective insofar as possible without modifying or affecting the remaining provisions. Where, however, the provisions of any such applicable law may be waived, You, the Customer and UPM hereby agree that all such provisions shall be waived to the fullest extent permitted by such law, with the result that the provisions of these Terms shall be valid, binding and enforceable. The invalidity in whole or in part of any provision(s) of these Terms shall not void or affect the validity of any other provision(s). Any failure on UPM’s part to act with respect to a breach of these Terms by You or the Customer does not constitute a waiver of its right to act with respect to subsequent or similar breaches. Any capitalized term used herein but not defined shall having the meaning provided in the Access Agreement.