PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SITE.
This is a binding agreement ("Agreement") between American Railcar Industries, Inc. ("ARI") and you ("You" or Your"). This Agreement governs Your use of this website (www.americanrailcar.com) (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 ARI and/or third parties. BY DOWNLOADING ANY MATERIALS, USING SERVICES OR USING THIS SITE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
All Materials and Services on this Site are provided by ARI 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 ARI. ARI 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 ARI's prior written permission. ARI(R), Pressureaide(R), Centerflow(R) , Sure Tread(R) and the ARI railcar logo are ARI's U.S. registered trademarks. All other trademarks including the Single Source For All Your Railcar NeedsSM service mark and the ARI Industrial Products Group logo and trademarks are the property of ARI. All other names and trademarks are the property of their respective holders. The following U.S. patents relate to certain products and services of ARI: U.S. Patent Nos. 6,875,942; 6,717,093; 5,868,284; 5,355,809; 5,314,094; 5,236,287; 5,232,315; 5,076,539; 5,017,065 and 4,641,677.
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.
ARI 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 Services.
Certain pages on this Site are intended by ARI 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 ARI in writing of any need to deactivate an ID due to security concerns. ARI 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 ARI of any unauthorized use of Your IDs.
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 ARI, 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 ARI OR ARI'S CONTENT PROVIDERS. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER ARI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ARI 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. ARI 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. ARI may make changes to these Materials or Services, or to the products described therein, at any time without notice. ARI 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.
The stock price performance shown on the stock quotations on any ARI site is not necessarily indicative of future price performance. ARI 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 ARI 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.
From time to time, ARI 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 ARI 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. ARI 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 ARI's business, adverse economic and market conditions, fluctuating costs of raw materials, including steel and railcar components, and delays in the delivery of such raw materials and components, ARI's ability to maintain relationships with its suppliers of railcar components and raw materials, fluctuations in the supply of components and raw materials ARI uses in railcar manufacturing, the highly competitive nature of ARI's industry, the risk of damage to ARI's primary railcar manufacturing facilities or equipment in Paragould or Marmaduke, Arkansas, ARI's reliance upon a small number of customers that represent a large percentage of ARI's revenues, the variable purchase patterns of ARI's railcar customers and the timing of completion, delivery and acceptance of customer orders, ARI's dependence on key personnel, the risks of labor shortage in light of ARI's recent growth, risks associated with the conversion of ARI's backlog into revenues, the risk of lack of acceptance of ARI's new railcar offerings by ARI's customers, the cost of complying with environmental laws and regulations, the costs associated with being a public company, ARI's relationship with Carl C. Icahn, ARI's principal beneficial stockholder and the chairman of ARI's board of directors, and his affiliates as a purchaser of ARI's products, supplier of components and services to ARI and as provider of significant capital, financial and managerial support, potential failure by ACF to honor its indemnification obligations to ARI, potential risk of increased unionization of ARI's workforce, ARI's ability to manage ARI's pension costs, potential significant warranty claims, and covenants in ARI's existing revolving credit facility and other agreements as they presently exist and similar covenants that ARI expect in ARI's amended and restated revolving credit facility governing ARI's indebtedness that limit ARI's management's discretion in the operation of ARI's business. Other factors that could adversely affect ARI's business and prospects are described in ARI's filings with Securities and Exchange Commission. ARI cautions you not to place undue reliance upon any such forward-looking statements, which speak only as of the date they were first made. Except as otherwise required by law, ARI expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any such statements to reflect any change in ARI'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 ARI, its parents, subsidiaries, affiliates and their respective members, directors, officers, employees, stockholders and agents harmless against any losses, expenses, costs or damages (including ARI'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.
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"). ARI will have no obligations with respect to the Communications. ARI 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. ARI 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 ARI in its sole discretion and without further notice.
If necessary and in accordance with applicable law, ARI will cooperate with local, state, federal, international and/or worldwide government authorities to protect this Site, visitors, customers, ARI, its parents, subsidiaries, affiliates and their respective members, directors, officers, employees, stockholders and agents and operational providers, to prevent unauthorized use of this Site.
The linked sites are not necessarily under the control of ARI and ARI is not responsible for the content of any linked site or any link contained in a non-affiliated linked site. ARI reserves the right to terminate any link or linking program at any time. ARI 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 ARI shall not be responsible for notification of any change in name or location of any information of the Site. ARI reserves the right to request any website administrator to disable or remove any link that violates any rights of ARI or causes interruption or deterioration of Materials or Services provided by ARI. Failure to abide by this request shall be dealt with as any other unauthorized use or access to ARI resources.
This Site is controlled by ARI from its offices within the State of Missouri. ARI 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 Missouri.
Any dispute between ARI and You arising out of this Agreement shall be resolved first by direct communication with one or more of ARI's management team members. Should ARI and You be unable to resolve the dispute by communication, either ARI 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 ARI's headquarters and pursuant to Missouri 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.
Your right to access and use the Site, Materials and/or Services immediately terminates without further notice upon Your breach of this Agreement. ARI 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. ARI reserves the right to discontinue or make changes to the Site, Material and/or Services at any time.
ARI may assign this Agreement, in whole or in part, in its sole discretion. You may not assign Your rights under this Agreement without ARI's prior written permission. Any attempt by You to assign Your rights under this Agreement without ARI's permission shall be void.
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.
ARI shall not be liable for any failure or unavailability of the Site, the Materials and/or the Services or failure by ARI 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 ARI's control.
ARI may deliver notice to You under this Agreement by means of electronic mail, a general notice on www.americanrailcar.com, or by written communication delivered by first class U. S. mail to Your address on record in ARI's account information. You may give notice to ARI at any time via electronic mail to firstname.lastname@example.org or by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address: American Railcar Industries, Inc. 100 Clark Street St. Charles, MO 63301 (636) 940-6000 Attn: Sales & Marketing Electronic Mail: email@example.com If You object to any material found on this Site, please bring Your concerns to the attention of Sales & Marketing, 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.
ARI 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.