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
1. OWNERSHIP OF MATERIALS:
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.
2. SINGLE COPYY 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:
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.
4. SECURITY:
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.
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 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.
6. STOCK PRICE DISCLAIMER:
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.
7. SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995:
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.
8. INDEMNITY:
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.
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"). 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.
10. COOPERATION WITH GOVERNMENT AUTHORITIES:
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.
11. LINKS TO OTHER MATERIALS:
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.
12. APPLICABLE LAWS:
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.
13. DISPUTE RESOLUTION:
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.
14. ENTIRE AGREEMENT:
This Agreement, including the Privacy Policy, which is incorporated herein by this
reference, contains the entire agreement between You and ARI 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 ARI's employees.
ARI reserves the right to make changes to this Agreement at any time without advance
notice. ARI 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.
15. TERMINATION:
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.
16. ASSIGNMENT:
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.
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:
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.
19. NOTICE:
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
info@americanrailcar.com
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: Michael Obertop
Electronic Mail: mobertop@americanrailcar.com
If You object to any material found on this Site, please bring Your concerns to the
attention of Michael Obertop, mobertop@americanrailcar.com.
The website administrator reserves the right to remove any material alleged to be infringing any
third-party rights pending further investigation.
20. HEADINGS:
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.
21. INVALIDITY:
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.
22. GENERAL:
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.
Copyright © 2012 American Railcar Industries, Inc. All rights reserved.