THIS AGREEMENT CAREFULLY BEFORE USING THIS SITE.
This is a binding agreement ("Agreement") between the
McElrath Company ("SMC") and you ("You" or Your"). This
Agreement governs Your use of this website (www.smcusa.net) (the
"Site"), including, without limitation, all content such as
text, information, images, contracts, software and other
downloadable material (collectively, the "Materials") and all
services (the "Services") made available to You through this
Site by SMC and/or third parties.
BY DOWNLOADING ANY MATERIALS, USING SERVICES OR USING THIS
SITE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
1. OWNERSHIP OF MATERIALS
All Materials and Services on this Site are provided by SMC
unless indicated otherwise. All intellectual property rights in
the Materials and Services (including copyrights, trademarks,
service marks, trade secrets and patents) are the property of
SMC. SMC retains all copyrights in the individual pages, and
their components, and collective works available at the Site.
The Materials and Services are copyrighted and are protected by
federal and worldwide copyright laws and treaty provisions. They
may not be copied, reproduced, modified, published, uploaded,
posted, transmitted, performed, or distributed in any way,
without SMC's prior written permission. All other names and
trademarks are the property of their respective holders.
2. SINGLE COPY LICENSE
Any unauthorized use of any Materials or Services at this Site
may violate copyright, trademark, and other laws. You may
download one copy of the Materials found on the Site for use
with the Services. This is a license, not a transfer of title,
and is subject to the following restrictions: You may not: (a)
modify the Materials or Services or use them for any commercial
purpose, or any public display, performance, sale or rental; (b)
decompile, reverse engineer, or disassemble software Materials
or Services except and only to the extent permitted by
applicable law; (c) remove any copyright or other proprietary
notices from the Materials or Services; (d) transfer the
Materials to another person. You agree to prevent any
unauthorized copying of the Materials or Services.
3. TERMINATION OF THIS LICENSE
SMC may terminate this license at any time if You are in breach
of the terms of this Agreement. Upon termination, You will
immediately destroy the Materials and cease the use of the
Certain pages on this Site are intended by SMC to require an
e-mail address and password to access and use the Materials and
Services on the Site. Certain other Materials or Services on the
Site may require additional codes. You are solely responsible
for (1) maintaining the strict confidentiality of the e-mail
address, passwords and codes (collectively, "IDs") assigned to
you, (2) any charges, damages, or losses that may be incurred or
suffered as a result of Your failure to maintain the strict
confidentiality of the IDs and (3) promptly informing SMC in
writing of any need to deactivate an ID due to security
concerns. SMC is not liable for any harm related to the theft of
Your IDs, Your disclosure of Your IDs, or Your authorization to
allow another person or entity to access and use the Site using
Your IDs. You agree to immediately notify SMC of any
unauthorized use of Your IDs.
5. GENERAL DISCLAIMERS
THESE MATERIALS AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR
FITNESS FOR ANY PARTICULAR PURPOSE, OR WARRANTIES ARISING BY
COURSE OF DEALING OR CUSTOM OR TRADE. IN NO EVENT SHALL SMC, ITS
PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS,
DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS AND AGENTS BE
LIABLE TO YOU OR ANY OTHER ENTITY FOR ANY AND ALL DAMAGES,
INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE
DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND LOSS OF
BUSINESS OPPORTUNITIES) ARISING OUT OF OR RELATING TO (1) THE
USE OF OR INABILITY TO USE THE MATERIALS OR SERVICES, OR (2)
RELIANCE ON THE CONTENT, MATERIALS OR SERVICES; OR (3) ERRORS,
INACCURACIES, OMISSIONS, DEFECTS, UNTIMELINESS, SECURITY
BREACHES, OR (4) ANY OTHER FAILURE TO PERFORM BY SMC OR SMC'S
CONTENT PROVIDERS. THE FOREGOING SHALL APPLY REGARDLESS OF
WHETHER SMC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SMC ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS
TO AND USE OF THE SITE, MATERIALS OR SERVICES (1) WILL BE
UNINTERRUPTED OR ERROR-FREE, (2) IS FREE OF VIRUSES,
UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS, (3) IS SECURE,
OR (4) WILL MEET YOUR SATISFACTION. YOU ARE RESPONSIBLE FOR
TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO
PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY
ARISE BY VIRTUE OF YOUR USE OF THE SITE.
Because some jurisdictions may not permit each of these
disclaimers and limitations, the above limitations may not apply
to You. SMC and its parents, subsidiaries, affiliates and their
respective members, directors, officers, employees, stockholders
and agents further do not warrant the accuracy or completeness
of the information, text, graphics, links or other items
contained within these Materials or Services. SMC may make
changes to these Materials or Services, or to the products
described therein, at any time without notice. SMC makes no
commitment to update the Materials or Services. Any description
of Materials or Services is not a representation that any such
Materials or Services are available for sale, use or
distribution in Your location.
6. STOCK PRICE DISCLAIMER
The stock price performance shown on the stock quotations on any
SMC site is not necessarily indicative of future price
performance. SMC and/or its parents, subsidiaries, affiliates
and their respective members, directors, officers employees,
stockholders and agents do not warrant or guarantee the accuracy
or completeness of the stock information provided herein and
under no circumstances will SMC and/or its parents,
subsidiaries, affiliates and their respective members,
directors, officers employees, stockholders and agents be liable
for any loss including, but not limited to, direct, incidental,
special or consequential damages caused by reliance on that
information or for the risks of the stock market.
7. SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES
LITIGATION REFORM ACT OF 1995
From time to time, SMC or its representatives may have made or
may make forward-looking statements, orally or in writing. Such
forward-looking statements may be included in, but, not limited
to, press releases, oral statements made by or with the approval
of an authorized executive officer, or in this Site or other
filings made by SMC with the Securities and Exchange Commission.
The words or phrases ''trend,'' ''expect,'' ''grow,'' ''will,''
''could,'' ''likely result,'' ''planned,'' ''continued,''
''anticipated,'' ''estimated,'' ''projected,'' ''scheduled,''
''could have,'' ''intended,'' ''believes,'' ''continuing,''
''considers,'' ''may be,'' ''assessed,'' ''contingency,'' or
similar expressions are intended to identify ''forward-looking
statements'' within the meaning of the Private Securities
Litigation Reform Act of 1995. SMC wishes to ensure that such
statements are accompanied by meaningful cautionary statements,
so as to maximize to the fullest extent possible the protections
of the safe harbor established in said Act. Accordingly, such
statements are qualified in their entirety by reference to and
are accompanied by the following discussion of certain important
factors that could cause actual results to differ materially
from such forward-looking statements.
Factors that could cause actual results to materially differ
include, without limitation, the cyclical nature of SMC's
business, adverse economic and market conditions, fluctuating
costs of raw materials, including steel and delays in the
delivery of such raw materials and components. Except as
otherwise required by law, SMC expressly disclaims any
obligation or undertaking to release publicly any updates or
revisions to any such statements to reflect any change in SMC's
expectations or any change in events, conditions or
circumstances on which any such statement is based. Accordingly,
forward-looking statements should not be relied upon as a
prediction of actual results.
You agree to defend, indemnify and hold SMC, its parents,
subsidiaries, affiliates and their respective members,
directors, officers, employees, stockholders and agents harmless
against any losses, expenses, costs or damages (including SMC's
reasonable attorneys' fees, expert fees' and other reasonable
costs of litigation) arising from, incurred as a result of, or
in any manner related to (1) Your breach of this Agreement, (2)
Your unauthorized or unlawful use of the Site, the Materials or
the Services and (3) the unauthorized or unlawful use of the
Site by any other person using Your IDs.
9. USER SUBMISSIONS
Unless otherwise agreed in writing prior to Your submission, any
material, information or other communication You transmit or
post to this Site will be considered non-confidential and
non-proprietary ("Communications"). SMC will have no obligations
with respect to the Communications. SMC and its designees will
be free to copy, disclose, distribute, perform, incorporate and
otherwise use the Communications and all data, images, sounds,
text, and other things embodied therein for any and all
commercial or non-commercial purposes to the extent permitted by
applicable law. You are prohibited from posting or transmitting
to or from this Site any unlawful, threatening, libelous,
defamatory, obscene, pornographic, or other material that would
violate any law.
Any attempt to obtain unauthorized access or to exceed
authorized access to the Site shall be considered a trespass and
computer fraud and abuse, punishable under state and federal
laws. SMC hereby notifies You that any or all communications
with this Site can and will be monitored, captured, recorded,
and transmitted to the authorities as deemed necessary by SMC in
its sole discretion and without further notice.
10. COOPERATION WITH GOVERNMENT AUTHORITIES
If necessary and in accordance with applicable law, SMC will
cooperate with local, state, federal, international and/or
worldwide government authorities to protect this Site, visitors,
customers, SMC, its parents, subsidiaries, affiliates and their
respective members, directors, officers, employees, stockholders
and agents and operational providers, to prevent unauthorized
use of this Site.
11. LINKS TO OTHER MATERIALS
The linked sites are not necessarily under the control of SMC
and SMC is not responsible for the content of any linked site or
any link contained in a non-affiliated linked site. SMC reserves
the right to terminate any link or linking program at any time.
SMC has selected the links for Your convenience. The selection
or omission of links is not intended to endorse any particular
companies or products. If You decide to access any of the third
party sites linked to this Site, You do this entirely at Your
own risk. Any links to any portion of the Site shall be the
responsibility of the linking party, and SMC shall not be
responsible for notification of any change in name or location
of any information of the Site. SMC reserves the right to
request any website administrator to disable or remove any link
that violates any rights of SMC or causes interruption or
deterioration of Materials or Services provided by SMC. Failure
to abide by this request shall be dealt with as any other
unauthorized use or access to SMC resources.
12. APPLICABLE LAWS
This Site is controlled by SMC from its offices within the State
of Texas. SMC makes no representation that Materials or Services
in this Site are appropriate or available for use in other
locations, and access to them from territories where their
content is illegal is prohibited. Those who choose to access
this Site from other locations do so on their own initiative and
are responsible for compliance with applicable local laws. You
may not use or export the Materials or Services in violation of
United States export laws or regulations. Any claim relating to
the Materials or Services shall be governed by the internal
substantive laws of the State of Texas.
13. DISPUTE RESOLUTION
Any dispute between SMC and You arising out of this Agreement
shall be resolved first by direct communication with one or more
of SMC's management team members. Should SMC and You be unable
to resolve the dispute by communication, either SMC or You may
submit any dispute arising out of or relating to this Agreement,
or the breach thereof, to final and binding arbitration
administered by the American Arbitration Association nearest the
place of SMCs headquarters and pursuant to Texas law. The
arbitrator shall fully implement the intent and purposes of this
Agreement and indemnify non-breaching parties for and hold them
harmless from all losses, costs, and expenses (including costs
of arbitration and reasonable attorneys' fees) resulting from
any breach or from defending against any allegations of a breach
determined to be unfounded.
14. ENTIRE AGREEMENT
incorporated herein by this reference, contains the entire
agreement between You and SMC relating to the subject matter
hereof, and supersedes any other oral or written communications
relating thereto. This Agreement may not be amended or
supplemented by (1) any document or form originated by You
relating to the subject matter hereof, or (2) statements of any
of SMC's employees. SMC reserves the right to make changes to
this Agreement at any time without advance notice. SMC agrees to
post all amended forms of this Agreement on the Site and such
amended forms shall be effective immediately upon its posting.
It is at all times Your responsibility to read the most current
form of this Agreement before using the Site to ensure that You
agree to the terms and conditions of any amendments made to this
Agreement. You agree that these standards for notice of
amendments to this Agreement are reasonable.
Your right to access and use the Site, Materials and/or Services
immediately terminates without further notice upon Your breach
of this Agreement. SMC may terminate this Agreement and/or Your
right to use the Site at any time, with or without cause.
Sections 1, 5, 6, 7, 8, 9, 10, 12, 13, 15, 21 and 22 of this
Agreement survive the expiration or termination of this
Agreement for any reason whatsoever. SMC reserves the right to
discontinue or make changes to the Site, Material and/or
Services at any time.
SMC may assign this Agreement, in whole or in part, in its sole
discretion. You may not assign Your rights under this Agreement
without SMC's prior written permission. Any attempt by You to
assign Your rights under this Agreement without SMC's permission
shall be void.
17. WAIVER OF BREACH
Any failure to enforce any term or provision of this Agreement
shall not be deemed a waiver of that or any other breach of that
or any other term or provision of this Agreement. In addition,
any failure to enforce any term or provision of this Agreement
shall not constitute a waiver of a future breach of that or any
other term or provision of this Agreement.
18. FORCE MAJEURE
SMC shall not be liable for any failure or unavailability of the
Site, the Materials and/or the Services or failure by SMC to
perform a transaction as a result of strikes, lockouts,
calamities, acts of God, unavailability of suppliers, the loss
or destruction of data, the determination or corruption of
storage media, power failures, natural phenomena, riots, acts of
vandalism, acts or omissions of civil or military authority,
war, terrorism or any other event beyond SMC's control.
SMC may deliver notice to You under this Agreement by means of
electronic mail, a general notice on
www.stuartmcelrath.com or by
written communication delivered by first class U. S. mail to
Your address on record in SMC's account information.
You may give notice to SMC at any time via electronic mail to
email@example.com or by letter delivered by first class postage
prepaid U.S. mail or overnight courier to the following address:
Stuart McElrath Company
11380 Woodwind Ct.
Flint, TX 75762-9725
Attn: Michael S McElrath
If You object to any material found on this Site, please bring
Your concerns to the attention of Michael S McElrath,
firstname.lastname@example.org. The website administrator reserves the right
to remove any material alleged to be infringing any third-party
rights pending further investigation.
The headings of articles and sections contained in this
Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
If any provision of this Agreement shall be held, be deemed or
shall in fact be, invalid, inoperative or unenforceable as
applied to any particular case or circumstance because of the
conflicts of any provision with any law, regulation, ordinance
or for any other reason, the provision or provisions in question
shall not be invalid, inoperative or unenforceable in any other
case or circumstance, nor shall any other provision or
provisions herein contained thereby be or become invalid,
inoperative or unenforceable and such provision shall be
reformed so that it would be valid, operative and enforceable to
the maximum extent permitted in such circumstances.
SMC and/or its parents, subsidiaries or affiliates may revise
this Agreement at any time by updating this posting. You agree
to be bound by this Agreement and any modifications to this
Agreement occurring prior to Your continued use of the Materials
or Services or access to the Site. You should visit this
Agreement from time to time to review the then current terms of
this Agreement because they shall be equally binding on You.
Certain provisions of this Agreement may be superseded by
expressly designated legal notices or terms located on
particular pages at this Site.