IMPORTANT: PLEASE READ THE TERMS OF THIS WEB SITE USE AGREEMENT BEFORE PROCEEDING ANY FURTHER ON THIS WEBSITE. This Web Site Use Agreement (“Agreement”) is an agreement between you (“Visitor”) and Affinia Group Inc. (“Affinia”), with offices at 1101 Technology Drive, Suite 100, Ann Arbor, Michigan 48108. In the event that Visitor is acting in his or her capacity as an authorized representative of a legal entity, such legal entity, its parents and affiliates agree to be bound by the terms and conditions of this Agreement and shall, in all instances, be the party referred to in this Agreement as “Visitor”. Please read this Agreement carefully before accessing or attempting to access any non-public portions of Affinia’s Internet site (“Affinia Web Site”), which portions are password-protected and referred to herein as the “Protected Site”. Visitor understands that its right to use the Protected Site is derived solely from, and is expressly limited by, this Agreement. By clicking on the button marked “I DO NOT ACCEPT,” Visitor is acknowledging that it is not willing to be bound by the terms of this Agreement and that, accordingly, it is prohibited from accessing or otherwise using the Protected Site. By clicking on the button marked “I ACCEPT,” or by accessing and using the Protected Site, whichever is the earlier to occur, Visitor is acknowledging that it has read, understands and accepts the following terms and conditions of this Agreement:
- Passwords and Access. Following the receipt of Visitor’s List, an authorized representative of Affinia, who will be designated by Affinia from time to time, will issue personal and confidential passwords to Authorized Users identified on the List. The foregoing passwords shall enable each Authorized User to access the Protected Site. Affinia will not be responsible for (i) verifying any information contained on the List, (ii) issuing passwords to any person not identified on the List, (iii) canceling the passwords of any Authorized User, or any other person, unless and until Affinia’s authorized representative is instructed to do so, in writing, by Visitor, or (iv) any use or misuse of the passwords or of the Protected Site by the Authorized Users (including, without limitation, any acts or omissions which may result in access to the Protected Site by persons other than the Authorized Users). Visitor will implement reasonable measures to protect the confidentiality of the password and Visitor must immediately notify Affinia, in writing, of any unauthorized disclosure or use of the password. Affinia reserves the right to block or otherwise restrict any Authorized User’s access to the Protected Site at any time, for any reason, in any manner, and without notice.
Visitor, Visitor’s Authorized Users, representatives, employees, agents, and contractors, as applicable, acknowledge and agree that passwords are personal and confidential, and shall keep passwords secure and shall not share passwords with anyone else or permit others to use such passwords.
- Confidentiality Obligations. Visitor acknowledges and agrees that the Protected Site contains and may be composed of proprietary information, including trade secrets, know-how and confidential information that are the exclusive property of Affinia. During the term of this Agreement, and at all times thereafter, Visitor, Visitor’s Authorized Users, representatives, employees, agents, and contractors, as applicable, shall use their best efforts to maintain the confidentiality of such proprietary information and shall not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party, nor use such information in any manner without the prior written consent of Affinia.
- Use of Protected Site Materials. Subject to Section 11 of this Agreement, the Protected Site may reflect information corresponding to Visitor’s invoices, statements, and proofs of delivery transmitted to Visitor in paper copy and/or by means of electronic data transfer (“EDI”). In the event of a discrepancy between information contained on the Protected Site and the paper and/or EDI invoices, the paper and/or EDI invoices will supercede and govern. At its sole discretion, Affinia may correct any errors or omissions in any portion of the Protected Site, at any time, without notice to Visitor.
- Protected Site Modifications and Availability. At its sole discretion, at any time and without notice, Affinia may change, suspend or discontinue any aspect of the Protected Site, including the availability of the Protected Site and/or any Protected Site feature or database.
- Copyrights and Trademarks. The Protected Site is owned by Affinia, and all rights are exclusively reserved to Affinia. Visitor acknowledges that the Protected Site may contain communications, software, text, graphics, images, photographs, logos, emblems, designs, layouts, trademarks, trade names, service marks, copyright materials, audio and video presentations, reports, documents and other information, including user interfaces and the selection, coordination, and arrangement of such information ("Content"), and that all such Content is the property of Affinia or its licensors. Visitor acknowledges and agrees that the Content and Protected Site (including Visitor’s use of and interaction with each of the foregoing) is protected by copyright, trademark, trade secret and other intellectual property laws, that Affinia’s rights thereunder are valid and protected in all media, now existing or later developed, and that except as specifically provided in this Agreement, Visitor’s use of the Protected Site and the Content shall be governed and constrained by applicable copyright, trademark, trade secret and other intellectual property laws. Except as expressly set forth in this Agreement, Visitor may not modify, adapt, translate, exhibit, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, reverse engineer, decompile or dissemble, or in any way exploit, any of the Content, materials or other parts of the Protected Site, in whole or in part. Affinia reserves the right to add, change or delete any Content, without notice, at any time, at its sole discretion, and Affinia makes no commitment to update the Content.
Additionally, all registered trademarks and service marks included in the Content on the Protected Site, as may be modified from time to time, are registered trademarks of Affinia in the United States and other countries. Moreover, all non-registered trademarks and service marks included in the Content on the Protected Site, and all other Affinia graphics, logos, and service names, as may be modified from time to time, are trademarks of Affinia. Affinia’s trademarks may not be used in connection with any product or service that is not Affinia’s, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Affinia.
- Reservation of Rights. Except as expressly and unambiguously provided herein, Affinia does not grant Visitor any express or implied rights to the Content or the Protected Site under any copyrights, trademarks, trade secret, or other intellectual or industrial property rights.
- Information Provided by Affinia. Affinia provides the information available on the Protected Site, including, but not limited to, information that is specific to Visitor, Visitor’s invoices, statements, proofs of delivery and the data set forth in each of the foregoing (collectively, the "Information"), the Protected Site and the Content for the convenience of Visitor. The Protected Site, including the Information and Content, is presented in good faith and is believed to be correct. Nonetheless, all such Information, Content and the Protected Site shall be subject to Affinia’s disclaimers, as set forth in Section 11 hereof. Visitor acknowledges and agrees that, as between Visitor and Affinia, Affinia owns all right, title and interest in and to the Information, the Protected Site and the Content. Visitor’s sole interest in the Information, Protected Site and Content shall be those license rights as set forth in Section 2 of this Agreement.
- Disclaimer VISITOR’S USE OF THE INFORMATION, THE CONTENT AND THE PROTECTED SITE IS AT VISITOR’S SOLE RISK. THE INFORMATION, THE CONTENT AND THE PROTECTED SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. AFFINIA RESERVES THE RIGHT TO RESTRICT, TERMINATE OR OTHERWISE MODIFY VISITOR’S ACCESS TO THE PROTECTED SITE OR ANY FEATURE OR PART THEREOF (INCLUDING THE CONTENT OR INFORMATION) AT ANY TIME. AFFINIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES THAT ANY CONTENT OR INFORMATION ON THE PROTECTED SITE IS NONINFRINGING; THAT ACCESS TO THE PROTECTED SITE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE PROTECTED SITE, CONTENT OR INFORMATION WILL BE SECURE; THAT THE PROTECTED SITE, THE CONTENT, THE INFORMATION OR THE SERVER THAT MAKES THE PROTECTED SITE AVAILABLE WILL BE VIRUS-FREE; OR THAT THE CONTENT OR INFORMATION ON THE PROTECTED SITE WILL BE COMPLETE, CORRECT, ACCURATE, ADEQUATE, USEFUL, TIMELY OR OTHERWISE RELIABLE. IF VISITOR DOWNLOADS ANY CONTENT OR INFORMATION FROM THE PROTECTED SITE, VISITOR DOES SO AT ITS OWN RISK. VISITOR WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEMS OR LOSSES OF DATA THAT RESULT FROM THE DOWNLOAD OF ANY SUCH CONTENT OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY VISITOR FROM AFFINIA OR THROUGH OR FROM THE PROTECTED SITE SHALL CREATE ANY WARRANTY OF ANY KIND. AFFINIA DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE CONTENT OR INFORMATION ON THE PROTECTED SITE IN TERMS OF ITS COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.
In certain jurisdictions, the law may not permit the disclaimer of warranties as set forth above. Accordingly, the above disclaimer, in whole or in part, may not apply in such states.
- Limitation of Liability IN NO EVENT SHALL AFFINIA OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES OR THIRD-PARTY CONTENT PROVIDERS BE LIABLE, DIRECTLY OR INDIRECTLY, UNDER ANY THEORY OF LAW, TO VISITOR, VISITOR’S AUTHORIZED USERS, UNAUTHORIZED USERS OR ANYONE ELSE, FOR ANY CLAIMS, LOSSES OR DAMAGES, DIRECT, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL, INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, LOSS OF PROFITS, RESULTING FROM OR OCCASIONED BY THIS AGREEMENT OR THE CREATION, USE OF OR RELIANCE ON THE PROTECTED SITE, THE INFORMATION OR THE CONTENT, REGARDLESS OF THE NATURE OR CAUSE OF ANY SUCH DAMAGES OR LOSSES AND WHETHER OR NOT A CLAIM THEREOF IS BASED IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE.
- Indemnification. Visitor agrees to indemnify, defend and hold harmless Affinia and Affinia’s officers, directors, employees, contractors, agents, licensors and suppliers, from and against any and all losses, liabilities, expenses, damages and costs (including, without limitation, reasonable attorneys’ fees and court costs), made by any third party due to, arising or resulting from any violation of this Agreement or any activity related to Visitor’s Internet account or use of the Protected Site (including but not limited to negligent or wrongful conduct), by Visitor, any Authorized User, unauthorized user or any other person accessing the Protected Site using a Visitor Internet account or password. If Visitor causes a technical disruption of the Protected Site or the systems transmitting the Protected Site to Visitor or others, Visitor agrees to be responsible for any and all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees and court costs, arising or resulting from that disruption.
- Local Laws and Export Control Affinia controls and operates the Protected Site from the United States and makes no representation that the materials are appropriate or will be available for use in other locations. Unless otherwise explicitly stated, all materials found on the Protected Site are solely directed to individuals, companies or other entities located in the United States. If Visitor uses the Protected Site from outside the United States, Visitor is entirely responsible for compliance with applicable local laws, including but not limited to the export and import regulations. The Information and other Content on the Protected Site is subject to the United States Export Administration Laws and Regulations. Diversion of such materials contrary to United States law is prohibited. Visitor shall comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
- Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflicts of laws provisions. Notwithstanding Section 19 of this Agreement, sole and exclusive jurisdiction for any action or proceeding arising out of or related to this Agreement will be an appropriate state or federal court located in Washtenaw County, Michigan, and if no federal court exists in Washtenaw County, Michigan, the closest federal court to Washtenaw County, Michigan.
- Arbitration. Any dispute arising out of or relating to this Agreement or Visitor’s use of the Protected Site, other than a dispute requiring injunctive relief, shall be resolved solely by final and binding arbitration as follows. Unless the parties otherwise agree in writing, the arbitration shall be conducted in Washtenaw County, Michigan before a panel of three (3) arbitrators. The arbitrator shall have relevant knowledge and/or experience in Internet-based online services and shall be jointly selected and mutually approved by the parties or, if the parties are unable to agree, shall be appointed by the American Arbitration Association ("AAA"). The arbitration shall be conducted in accordance with the AAA's rules of commercial arbitration. The parties initially shall share equally the fees and expenses of the arbitration. However, the prevailing party (if applicable and as determined by the arbitrator) shall be entitled to recover from the non-prevailing party all such fees and expenses (including without limitation reasonable attorneys' fees). Any arbitration decision so rendered shall be final and binding, and judgment thereon may be entered in any court of competent jurisdiction.
- Notices. All notices, instructions and communications, including communications relating to the Authorized Users and their passwords, will be directed to an authorized representative of Affinia who, as of the effective date of this Agreement, will be [Affinia Support Services, telephone:1-866-809-7241, e-mail address: Assist.US@affiniagroup.com]. All such communications will be in writing and will be deemed given when delivered to such e-mail address, unless Affinia changes the address by notice to Visitor. All other notices and communications relating to this Agreement will be in writing and will be deemed given when delivered in person or by established overnight courier, or three days after deposit in the United States mail, postage prepaid, addressed as follows (or to such other persons or addresses as Affinia may hereafter designate by notice to Visitor).
Notice Address for Affinia:
Affinia Group Inc.
1101 Technology Drive, Suite 100
Ann Arbor, Michigan 48108
Attn: Legal Department
- UCITA. Visitor acknowledges and agrees that the Uniform Computer Information Transactions Act (“UCITA”) shall not apply to this Agreement or any performance hereunder and the Parties expressly opt-out of the applicability of UCITA to this Agreement.
- Severability. If any term, condition, or provision of this Agreement is determined to be unlawful, invalid, void, or for any reason unenforceable, the validity and enforceability of the remaining terms, conditions, and provisions shall not in any way be affected or impaired thereby.
- Waiver. No waiver shall be deemed to be made by any party of any of its rights hereunder unless the same shall be in a writing signed by the waiving party, and any waiver shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights or the obligations of any party in any other respect at any other time.
66213.000001 RICHMOND 1668120v2