Spiegler Brake Systems USA LLC d.b.a. Spiegler Performance Parts User Agreement
End User Agreement
IMPORTANT: READ CAREFULLY BEFORE USING THE SPIEGLER PERFORMANCE PARTS WEB SITE. ONLY SOMEONE WHO HAS APPROVAL AND AUTHORITY MAY AGREE TO THESE TERMS AND CONDITIONS. THIS IS A LEGALLY BINDING AGREEMENT.
By clicking on the "I Agree" button at the end of this document, or otherwise acting to use the Spiegler Performance Parts web site owned and operated by Spiegler Brake Systems USA LLC d.b.a. Spiegler Performance Parts, also referred to in some instances as, ("We", "Us", or "Our"), or the products or services offered through the Spiegler Performance Parts web site (including, but, not limited to payment processing services such as authorization of transactions to the appropriate payment processing network or third party service provider, transaction responses (approved and/or declined), and the detailed reporting of those transactions ("Services"), you, as the end user person or entity ("You" or "Your") agree and consent to the terms and conditions of this End User Agreement (the "Agreement"). No payment transactions may be processed without prior acceptance of the terms of this Agreement. If You do not agree to all of the terms of this Agreement, do not use this product or Our Services.
Definitions: As used herein, the following definitions apply:
"Claim" means any arbitration award, assessment, charge, citation, claim, damage, demand, directive, expense, fine, interest, joint or several liability, lawsuit or other litigation, notice, infringement or misappropriation of any Intellectual Property Right or violation of any law, and any consequential, indirect, special, incidental or punitive damages and any attorney's fees and expenses incurred in connection therewith. For purposes of the foregoing Claim definition, a Claim shall be considered to exist even though it may be conditional, contingent, indirect, potential, secondary, unaccrued, unasserted, unknown, unliquidated, or unmatured.
"Confidential Information" means the Software, Documentation, Operational Procedures, the terms and conditions of this Agreement (including any schedule, exhibit or addendum), pricing or other proprietary business information, and any other information provided to You by Us, whether or not such information is marked as confidential; provided, however, that Confidential Information will not include information that: (a) is or becomes generally known to the public through no fault of Yours; (b) was lawfully obtained by You from a third party free of any obligation of confidentiality; (c) was already in Your lawful possession prior to receipt thereof, directly or indirectly, from the disclosing party; (d) is independently developed by You without the use of the Confidential Information; (e) is disclosed with Our express written permission; or (f) is disclosed pursuant to a lawful court or governmental order, provided You provide Us with prompt prior written notice of any proceeding that may involve such an order, and an opportunity to contest any disclosure at such proceeding.
"Customer" means You are the customer who would like to provide payment for Your goods or Services.
"Documentation" means any and all manuals and other written materials in any form provided for use with the Software, as amended by Us from time to time, the terms of which are incorporated in this Agreement as if fully set forth herein.
"Intellectual Property Rights" means any and all patents, copyrights, trademarks, trade secrets, service marks, and any other intellectual property rights, and any applications for any of the foregoing, in all countries in the world.
"Spiegler Performance Parts Parties" means Spiegler Performance Part's and its affiliates' officers, directors, employees, shareholders, agents and attorneys.
"Merchant Account" shall mean an account set up for a merchant that requires a card processor, bank, merchant i.d., terminal i.d., merchant account number, or otherwise named unique merchant number. Multiple physical or virtual storefronts that process transactions under the same unique merchant number shall be deemed as one (1) Merchant Account.
"Operational Procedures" means Ours published policies and procedures contained in the various documents provided to You, as amended from time to time, concerning the Services provided pursuant to this Agreement, the terms of which are incorporated in this Agreement as if fully set forth herein.
"Platform" means Our operated, or approved, electronic payment platform(s) and/or gateway(s) through which the payment services contemplated under this Agreement are provided.
"Services" means all protocols, components, software, documents, products, accessibility and other interfaces provided by Us to You pursuant to this Agreement, and any and all Updates to such Services.
"Your Systems" means any web site(s) operated or maintained by You or on Your behalf through which transactions are submitted for processing, and all Your other associated systems.
"Updates" means an embodiment of the Software that provides enhancements and/or improvements.
- Term, Termination, Pricing and Amendment.
1.1 Term and Termination. This Agreement shall commence when You click the "I Agree" button or otherwise act to use Our Services and shall remain in effect until terminated by either party as provided herein. You may terminate this Agreement upon giving both Us and your bank card processing provider at least thirty (30) days prior written notice of your intention to terminate this Agreement. We may suspend or terminate your access to the Spiegler Performance Parts web site, without prior notice, with or without cause. Regardless of the reason for termination, You shall be responsible for the payment of all fees due up to and including the effective date of termination.
1.2 Pricing. You will be charged fees for using the Spiegler Performance Parts web site to place orders as agreed to by You as you processed through the ordering steps. A separate account with US shall be required for each separate Account held by You.
1.3 Amendment. Notwithstanding any other provision of this Agreement, We reserve the right to amend, at Our discretion, the terms and conditions herein, including, without limitation, any addenda, Operational Procedures and/or pricing and fees, by providing periodical web site updates as needed. Such amendments shall be effective immediately from the date web site reflects changes. Spiegler Performance Parts reserves the right to make Services unavailable for any length of time during web site updates.
- License Grant
2.1 Software License. Subject to the terms and conditions of this Agreement, We hereby grant, and You hereby accept, a non-exclusive, non-transferable, revocable, limited license, without right to sublicense, to use the Software during the term of this Agreement for the sole and limited purpose of submitting payment transactions to Us for processing, and otherwise using our Services as set forth herein.
2.2 Documentation License. Subject to the terms and conditions of this Agreement, We hereby grant, and You hereby accept, a non-exclusive, non-transferable limited license, without right of sublicense, to use the Documentation during the term of this Agreement for the sole and limited purpose of supporting Your use of the Software and the Spiegler Performance Parts web site. You shall strictly follow all Documentation provided to You, as it may be amended from time to time by Us, in Our discretion. To the extent that there is any conflict between the Documentation and the terms of this Agreement, the terms of this Agreement shall govern and control.
2.3 Use Restrictions. You shall not, and shall not cause or permit any third party to: (i) use the Software in any way, other than in accordance with this Agreement, the Documentation or as otherwise instructed by Us in writing; (ii) use the Software or Documentation, either directly or indirectly, to develop any product or service that competes with the products and services provided under this Agreement; (iii) disassemble, decompile, decrypt, extract, reverse engineer or modify the Software, or otherwise apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Software or any algorithm, process, procedure or other information contained in the Software, except as otherwise specifically authorized in accordance with this Agreement; (iv) provide the Software or Documentation to any third party, other than to Your authorized employees and contractors who are subject to a written confidentiality agreement, the terms of which are no less restrictive than the confidentiality provisions of this Agreement; (v) make any copies of the Software or Documentation, except as is incidental to the purposes of this Agreement, or for archival purposes (any copies made hereunder shall contain all appropriate proprietary notices); (vi) rent, lease, assign, sublicense, transfer, distribute, allow access to, or time share the Software or Documentation; (vii) circumvent or attempt to circumvent any applicable security measures of the Software; (ix) attempt to access or actually access portions of the Spiegler Performance Parts not authorized for Your use; or (x) use the Software for any unlawful purpose.
2.4 Updates. From time to time We may, at Our discretion, release Updates to Spiegler Performance Parts web site. In the event of imparity to the functionality of the Spiegler Performance Parts web site or any of our Services provided hereunder, We will have no liability. We will have no obligation to provide support or services for any Services that reflect outdated versions of critical information.
2.5 Licensors. The licenses granted hereunder may be subject to other licenses currently held by Us. Should any license held by Us to certain technology or software be terminated or suspended, the corresponding license(s) granted to Spiegler Performance Parts web site may also be terminated or suspended in Our sole and absolute discretion. You acknowledge and agree to such potential termination or suspension and hereby waives any and all damages, whether actual, incidental or consequential resulting therefrom.
2.6 Export Compliance. You agree not to export or re-export the Spiegler Performance Parts web site or any underlying information or technology except in full compliance with all applicable laws and regulations. In particular, but without limitation, none of the Services or underlying information or technology may be downloaded or otherwise exported or re-exported (i) to any country to which the United States has embargoed goods (or any national or resident thereof); (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Deny Orders; or (iii) in a any manner not in full compliance with the requirements of the United States Bureau of Industry and Security and all applicable Export Administration Regulations. You warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
2.7 Federal Acquisition Regulations. If You are acquiring the Services on behalf of any part of the United States Government (the "Government"), the following provisions apply: Any use, duplication, or disclosure by the Government is subject to the restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. We are the contractor/manufacturer, with the address set forth below. Any use, modification, reproduction, release, performance, display or disclosure of the Software and/or the accompanying documentation by the Government or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.8 Return/Destruction. Upon termination or expiration of this Agreement, all services granted hereunder shall following the guidelines set including but not limited to the Spiegler Performance Parts web site, Our Services and Our products. By clicking on the "I Agree" button at the end of this document, or otherwise acting to use the Spiegler Performance Parts web site You, as the end user person or entity agree and consent to the terms and conditions of this End User Agreement, acceptance and understanding of Spiegler Performance Parts Terms and Conditions and Spiegler Return Policy publicized on the Spiegler Performance Parts web site.
2.9 No other Licenses. Except as expressly provided above, no license for any patents, copyrights, trademarks, trade secrets or any other intellectual property rights, express or implied, are granted hereunder.
2.10 Use of Transaction Data. As permitted by applicable law and regulations, We reserve the right to copy and distribute to third parties any information associated with Your use of Services or Your activities on the Spiegler Performance Parts web site.
- Platform Matters
3.1 Integration with Your Systems. While We provide Spiegler Performance Parts web site to You, You acknowledge that the web site itself is sufficient to allow Your Systems to function appropriately. Programming, development and maintenance of Your Systems and their functionality are Your sole responsibility. You have the sole responsibility to select and employ any competent programming agent(s) to accomplish the programming required to make the Your Systems function correctly with the web site and the payment services contemplated hereunder ("Integration"). You shall be responsible for all technical support for Your Systems and Integration related issues. You will be responsible for all of Your own development and implementation costs associated with such Integration. Notwithstanding any other provision of this Agreement, You acknowledge that unless and until You complete the Integration, no services need be provided by Us to You pursuant to this Agreement. In addition, You acknowledge and agree that, even if you have completed Integration, if You have not entered into a functional processing agreement with Spiegler Performance Parts web site, you cannot use the payment processing services provided.
3.2 Shut Downs. We reserve the right, from time to time, without prior notice, to shut down and restart Spiegler Performance Parts web site for maintenance and/or software upgrades for reasonable time periods of one minute or more contingent to the existing circumstances.
3.3 Generating Orders. You are solely responsible for Your accessibility to personnel accepting, processing, and filling any orders for purchases by utilizing and/or exploiting the Spiegler Performance Parts web site on Your systems, and for handling any inquiries arising therefrom. You shall use the highest standards in the industry in responding to complaints by means of Us or Spiegler Performance Parts Parties. We are not responsible or liable for any unauthorized access to Your data or Your Systems by any means or device.
- Confidentiality. You shall not disclose acquired Confidential Information whether actual, incidental or consequential resulting therefrom Spiegler Performance Parts web site to any third party, or use the Confidential Information in any manner for marketing, distributing, selling and/or like of for Your or others self-purposes; except as explicitly authorized under this Agreement. You agree to use the same degree of care to prevent disclosure of the Confidential Information as You use to protect Your own confidential information, but in no event less than a reasonable standard of care. In the event of any unauthorized disclosure of Confidential Information, You shall immediately provide Us with written notice of the details of such disclosure (including but not limited to the identification of the receiving party).
- Security of Information. We will use commercially reasonable efforts to maintain the security of the Spiegler Performance Parts web site. We will use commercially reasonable efforts to maintain the security of Our Systems. Such steps by Us will be taken at Our sole cost and expense, and shall include, without limitation: (i) creating firewalls to protect against unauthorized access to Our Systems by Our employees, contractors, Vendors, or by any other person; and (ii) implementing reasonable protective techniques. We further agree to will be bound by and comply with all of Our and all Bank Card Association security rules and regulations as they now exist or as each may be amended or supplemented from time to time. Notwithstanding the foregoing, the parties recognize that there is no guarantee or absolute security of information that is communicated over the Internet.
- Assignment of Agreement or Processing for Others. You may not assign this Agreement without Our prior written consent. You may not transfer or sell Your rights under this Agreement. You are prohibited from processing payments for or on behalf of any other individual or business outside of your database. Use of the Spiegler Performance Parts web site or Our Services is provided for single Accounts only. We may freely assign this Agreement, its rights, benefits or duties hereunder, either in whole or in part. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Our and Your heirs, executors, administrators, successors and assigns. Any sale, transfer, reorganization, merger or change in control of all or substantially all of Your assets shall be deemed to be an assignment for purposes of this Section.
- Legal Responsibility.
9.1 Enforcement. In the event You violate any terms or conditions of this Agreement, You shall pay for all costs, including reasonable attorneys' fees for actions taken by Us, whether by suit or otherwise, to enforce Our rights under this Agreement. In the event of any legal action with third parties or regulatory agencies concerning any transaction or event arising under this Agreement, You shall: (i) promptly notify Us of the Claim(s) or legal action; (ii) reasonably cooperate with Us in the making of any Claim(s) or defense(s); and (iii) provide information, assist in the resolution of the Claim(s) and make available at least one employee or agent who can testify regarding said Claim(s) or defense(s).
9.2 Indemnification. You shall indemnify, defend, and hold harmless Us and our parent companies, subsidiaries and/or affiliates and Our and their officers, directors, employees, shareholders, agents and attorneys from any Claim(s) arising from the conduct of Your business, any transactions submitted through the Spiegler Performance Parts web site hereunder for payment processing, any false or inaccurate representation made by You or the negligence, fraud, dishonesty or willful behavior of any of Your employees or agents, or from Your failure to strictly comply, in whole or in part, with any: (i) terms and conditions pursuant to this Agreement and any addenda hereto or Operational Procedures or Documentation; or (ii) applicable law, regulations or rules. Upon written notice from Us to You, You shall immediately undertake the defense of such Claim by representatives of Your own choosing, subject to Our reasonable approval.
- Limitation of Liability.
10.1 General Limitations. We are not liable for the merit and legitimacy of the orders forwarded by You. All liability for validity of orders remains with You. We are not responsible for any data entry errors, Customer misrepresentations, or reporting errors resulting from Your actions. We shall not be liable to You or Your Customer for the accuracy of the information provided by the Spiegler Performance Parts web site or Our Services.
10.2 Special Damages. In no event shall We be liable to You, or to any other person or entity, under this Agreement, or otherwise, for any punitive, exemplary, special, incidental or consequential damages, including, without limitation, any loss or injury to earnings, profits or goodwill.
10.3 Maximum Liability. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Our liability under this Agreement for all Claims arising under, or related to, this Agreement exceed, in the aggregate (inclusive of any and all Claims made by You against Us, whether related or unrelated), the lesser of: (i) the total amount of fees paid by You for the Our Services during the 12-month period immediately preceding the date the event giving rise to such Claim(s) occurred; or (ii) $5,000.00.
10.4 Other Damages. In addition to the limitation of liability provisions set forth herein, We will not be liable for any Claims under this Agreement arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of service (including billing for a service) by the Internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of Spiegler Performance Parts web site, the services provided hereunder or the Internet, or any communications network, facility or equipment beyond Our reasonable control, whether or not attributable to one or more common carriers or third party service providers; (c) any failed attempts by You or Your Customers to access any Systems or to complete processing transactions; or (d) any failure to transmit, obtain or collect data from Customers or for human, machine or software errors or faulty or Your or Your Customer's erroneous input.
- DISCLAIMER OF SPIEGLER PERFORMANCE PARTS WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE SPIEGLER PERFORMANCE PARTS WEB SITE, OUR SERVICES AND THE SOFTWARE ARE AT YOUR SOLE RISK. WE MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND NO IMPLIED AT LAW WARRANTY SHALL ARISE FROM THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, OUR PROCEDURES, THE SERVICES PROVIDED HEREUNDER, OR FROM PERFORMANCE BY US, INCLUDING, WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) ANY WARRANTIES OF NONINTERFERENCE OR NON-INFRINGEMENT; OR (C) ANY WARRANTIES THAT ANY PRODUCT OR SERVICE PROVIDED HEREUNDER (INCLUDING BUT NOT LIMITED TO THE SOFTWARE) WILL (1) MEET YOUR REQUIREMENTS; (2) OPERATE ACCORDING TO YOUR EXPECTATIONS; (3) PROVIDE ACCURATE DATA; OR (4) OPERATE UNINTERRUPTED OR ERROR FREE. ANY AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCAIMED BY US AND WAIVED BY YOU. WE DO NOT WARRANT THAT ANY ERRORS WILL BE CORRECTED. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, ALL SOFTWARE AND SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN "AS-IS, WITH ALL FAULTS" BASIS. THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. All decisions to reject any processing transaction or payment for Your orders and/or inquiries are solely Your responsibility.
- Your Warranties. You warrant all of the following: (i) All representations and statements made in this Agreement and any other related document, by You or on Your behalf are true, accurate, and complete in all respects and You hereby authorize Us to verify and confirm all information provided herein by any means at its disposal; (ii) You are engaged in a lawful business, which includes the sale of merchandise and/or services and are duly licensed to conduct such business under the laws of the state(s), county(s), city(s), and country(s) in which You operate; (iii) You shall not submit any payment transactions that violate any laws of any related state, county, city, or country or any bankcard association rules and shall otherwise comply with all applicable laws, regulations, or rules in connection with Your obligations under this Agreement; and (iv) That there are no outstanding or contemplated assignments, grants, licenses, encumbrances, security interests, liens, obligations or agreements (whether written, oral or implied) that are inconsistent with this Agreement and the rights and obligations herein.
- Notices. You agree to notify Us of any change in Your name, type of business, or any other information required on Your merchant processing application at least thirty (30) business days prior to the effective date of change. Any notice or other communication required or permitted to be given hereunder shall be in writing, addressed or transmitted to the party to be notified at such party's address or number at such party's last known address or number, and shall be: (i) if sent by Us, hand delivered or delivered by facsimile transmission, overnight courier or certified, registered, regular mail or e-mail; or (ii) if sent by You, certified or registered mail, postage prepaid return receipt requested to 1699 Thomas Paine Parkway, Dayton, OH 45459. Any notice delivered hereunder shall be deemed effective, as applicable, upon delivery, if hand delivered or sent by overnight courier; upon receipt as evidenced by the date of transmission indicated on the transmitted material, if by facsimile transmission or e-mail; on the date of delivery indicated on the return receipt, if mailed by certified or registered mail; or ten (10) days after mailing, if by regular mail (or as otherwise required by applicable law). The parties' addresses may be changed by written notice to the other party as provided herein.
- Force Majeure. We shall not be held responsible for any delays in or failure or suspension of service caused by mechanical or power failure, computer malfunctions (whether software, hardware and firmware related), transmission link failures, communication failures, failure, delay or error in clearing or processing a transaction (including through interchange) or any other system, failure, delay or error by any third party or in any other third party system, strikes, labor difficulties, fire, inability to operate or obtain service for its equipment, unusual delays in transportation, acts of God or other causes reasonably beyond Our control.
- Governing Law and Integration. This Agreement, plus any addenda attached hereto, constitute the entire Agreement between the parties concerning subject matter hereof and supersedes all prior and contemporaneous understandings, representations and agreements in relation to its subject matter. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. The parties agree that any suit, action, or proceeding arising out of or relating to this Agreement, or the interpretation, performance or breach of this Agreement, shall be instituted in any court of the State of Ohio. Each party irrevocably submits to the jurisdiction of those courts and waives all objections to jurisdiction or venue.
- Severability and Interpretation. If any provision, in whole or in part, of this Agreement is held invalid or unenforceable for any reason, the invalidity shall not affect the validity of the remaining provisions of this Agreement, and the parties shall substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision. Neither this Agreement, nor any addenda or Operational Procedures, shall be interpreted in favor or against any party because such party or its counsel drafted this Agreement, or such addenda or Operational Procedures. No course of dealing, usage, custom of trade or communication between the parties shall modify or alter any of the rights or obligations of the parties under this Agreement. This Agreement is solely for the benefit of Us (and Our affiliates) and You and no other person or entity shall have any right, interest or claim under this Agreement. As used in this Agreement, (i) the term "include," or any derivative of such term, shall not mean that the items following such term are the only types of such items; (ii) the term "shall" indicates a mandatory obligation; (iii) the term "may" indicates a permissive election and does not imply any duty to exercise such election; and (iv) the term "discretion" means the sole and absolute discretion of the party granted the discretion, absent an express limitation on such discretion.
- Amendment and Waiver. No modification, amendment or waiver of any of the terms and conditions of this Agreement shall be binding upon Us, whether written, oral, or in any other medium, unless made in writing and approved and signed by Us. All rights and duties within this Agreement are material and time is of the essence; no waiver of any rights hereunder shall be deemed effective unless in writing executed by the waiving party; no waiver by either party of a breach or any provision of this Agreement shall constitute a waiver of any prior or subsequent breach of the same or any other provision of this Agreement; no failure to exercise, and no delay in exercising, any right(s) hereunder on the part of either party shall operate as a waiver of any such right; all of Our rights are cumulative; and, no single or partial exercise of any right hereunder shall preclude further exercise of such right or any other right.
- Legal Relationship. Each party is an independent contractor and not an agent or representative of the other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party.
- No Unauthorized Publicity. You shall not use the name, marks or refer to Us in advertisements, publicity releases, promotional materials or marketing correspondence without first securing Our Consent and providing name and any additional requested disclosure of said source.
- Survival. Upon termination or expiration of this Agreement, a party's obligations shall cease except for those remaining or required to be performed following such termination. For the avoidance of doubt, the Definitions and the provisions of Sections 2.4, 2.6, 2.9, 2.10, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 18 shall survive the termination or expiration of this Agreement. All representations, warranties, indemnities and covenants made herein shall survive the termination of this Agreement and shall remain enforceable after such termination.