TERMS OF USE
Last Update: August 23, 2018
Use of this site is subject to these terms of use. Please read them carfully before using this site. You must agree to these terms of use before using the “e-inspect for lift trucks” tool.
The e-Inspect for Lift Trucks tool (including information and/or materials provided therewith, the “Application”) is an electronic service provided by HYG Financial Services, Inc. (together, with its direct and indirect parents, subsidiaries, and affiliates, and their incorporated and unincorporated divisions and operating units "Owner"). Use of the Application is subject to these Terms of Use and restricted to businesses with a pre-existing relationship with Owner (each a “Company”) for the purpose of digitally providing accurate and complete inspection reports on Equipment to Owner. To use the Application you must also be a registered user of the HYG Financial Services, Inc. Asset Tracker system.
1. ACCEPTANCE OF TERMS OF USE.
These Terms of Use constitute a binding agreement among you, the Company you represent (if applicable), and Owner. These Terms of Use contain waivers by you and Company of certain rights you or Company may have against Owner. By accessing and/or using the Application you agree, on your own behalf and on behalf of the Company you represent, to accept and be bound by these Terms of Use. You acknowledge that you have all necessary authority to act on behalf of Company and to agree to these Terms of Use on Company's behalf, and that all instances in use of the term "you” or “Company” to be bound by or granted rights under these Terms of Use shall be understood to mean "you, on your own behalf and on behalf of Company" shall be bound by or granted rights under these Terms of Use. Nothing herein, including Owner’s right to make changes to these Terms of Use or to the Application, shall have the effect of amending or otherwise affecting the terms and conditions of any existing agreement between Company or Owner (other than Terms of Use of preceding versions of the Application). IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE APPLICATION.
2. CHANGES TO OR SUSPENSION OF THE APPLICATION OPERATION OR ACCESS.
Owner may at any time, in its sole discretion, (a) change, modify, augment, impose limits or restrictions, or suspend or discontinue the Application services, features and/or content, in whole or in part; or (b) change or modify the equipment or software required by Company to access the functionality of the Application. Owner may at any time, in its sole discretion, and for any lawful reason, (a) change or modify access or security procedures; or (b) terminate your or Company’s use of the Application. Owner will have no liability to you for any losses or damages you may suffer or incur as a result of (i) any termination of these Terms of Use or (ii) inability to access any portion of the Application or the entire Application.
3. SCOPE OF LICENSE.
This license granted to you for the Application by Owner is limited to a non-transferable license to use the Application on any device that you own or control. This license does not allow you to use the Application on any device that you do not own or control, and you may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not copy (except as expressly permitted by this license), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof. Any attempt to do so is a violation of the rights of Owner and its licensors (if any). If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Owner that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
4. ACCURACY & COMPLETENESS OF PROVIDED INFORMATION.
You agree and understand that all information you provide Owner via the Application is to be accurate and complete, in like quality and serving the same purpose as a written report. You covenant that the report information you provide shall describe with reasonable detail the current condition of the Equipment.
Owner is not obligated and has no duty to review, check or verify the accuracy or completeness, and is not responsible for the content of, any information and images submitted to, uploaded and posted via the Application by any user.
5. CHANGES TO TERMS OF USE.
Owner may at any time, in its sole discretion, revise these Terms of Use by changing, adding to, or deleting any provision, in whole or in part. You will be provided notice of such changed Terms, and Owner will condition your continued use of the Application upon your express acceptance of the modified Terms of Use. Notwithstanding the foregoing, if Company is in the process of conducting via the Application a transaction contemplated via the Application and these Terms of Use change, the Terms of Use in effect at the start of the transaction shall apply to that transaction.
6. NO PRIVACY IN PROVIDED INFORMATION; PASSWORD SECURITY; PRIVACY NOTICE.
Any information you provide via the Application, other than your user name and password, may be shared publicly and distributed widely by the world wide web or other electronic communication media to the fullest extent permitted by law. You are responsible for the proper use and security of your Password by you or your authorized representative (“Your Authorized Representative”) that you designate to use the Application to digitally provide accurate and complete inspection reports on Equipment to Owner, and agree to take all reasonable precautions to protect the security of your Password and to prevent its unauthorized use. Your Password should never be shared with anyone other than Your Authorized Representative, including others within your organization. You and Company will be responsible for all actions taken through the use of your Password. You agree to immediately notify Owner in writing if you become aware of any unauthorized access to or use of your Password and/or the Application, or if your Password is lost or stolen. Such notice, however, does not release you or Company from responsibility for any unauthorized access to the Application, or any losses suffered by Company or Owner, facilitated through the loss or unauthorized use of your Password. Owner shall be entitled but not obliged, in its sole and absolute discretion, to assess your Password and, if it determines that you are using a Password it considers insecure, may at its discretion require you to change the Password and/or terminate your access to the Application. Owner’s Privacy Policy is applicable to the Application and also explains Owner’s privacy practices related to the collection and use of information through this Application, subject to these Terms of Use and any other written agreement between Company and Owner. Owner may provide to any third parties, Trusted Third Parties (as defined herein) or otherwise, any information provided through this Application. You agree that Owner may collect and use technical information about your use of the Application to facilitate your use and enhancements to, if any, the Application.
7. DISCLAIMER OF WARRANTIES.
The application is provided by owner on an "as is" and "as available" basis. Owner makes no representations or warranties of any kind, express or implied, as to the operation of the application or the information, content, materials, or products included in the application. You expressly agree that your use of the application is at your sole risk. Owner shall not be responsible for the accuracy, completeness, security or use of any information received by you or company through the application. You acknowledge and agree that your use of the application, and any information sent or received in connection therewith, may not be secure and may be intercepted by unauthorized parties. Owner does not make any warranty that this application or its content will meet your requrements, that this application or its contents will be uninterrupted, timely, secure, or error free, or that defects will be corrected. To the full extent permissible by applicable law, ownerdisclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, quality, performance, and non-infringement, nor are there any warranties created by course of dealing, course if performance, or trade usage with respect to the operation of the application or its content. Ownerdoes not warrant the availability or accuracy of the application, or that the application, ownerservers, or e-mail sent from owner or through the application are free of viruses or other harmful components. Certain state laws do not allow limitations on implied warranties. If these laws apply to owner or your use of the application, some or all of the above disclaimers, exclusions, or limitations may not apply. The foregoing exclusions and disclaimers are an essential part of these terms of use and formed the basis for allowing the optional downloading and use of the application.
8. LIMITATION OF LIABILITY.
Owner, its affiliates, its trusted third parties (as defined herein) and their respective directors, officers, employees and agents, shall not be liable for any damages of any kind, under any theory of law or equity, whether for breach of contract, tort or otherwise, arising from the use of or inability to use the application including, but not limited to, direct, indirect, third party, incidental, punitive, and consequential damages, even if advised of the possibility thereof. This limitation of liability applies, without restriction, to any damages or injury arising from any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, file corruption, communication-line failure, network or system outage, or theft, destruction, unauthorized access to, alteration of, or use of any record. Notwithstanding the foregoing, in the event owner is found to be liabile, owner's liability to company or to any third party is limited to $100. Without limiting the foregoing, owner, its trusted third parties, and their respective directors, officers, employees and agents, shall not be responsible to company or any third party for any transmissions not actually received or for malfunctions in communications facilities which may affect the accuracy or timeliness of the electronic records sent or received, or for any losses, errors or delays arising out of company's use of any access service provider or caused by any browser software. Certain state laws may not allow the exclusion or limitation of certain damages. If these laws apply to your use of the application, some or all of the above disclaimers, exclusions, or limitations may not apply. The limitation of damages and liability set forth herein is a fundamental element of the basis of the bargain between owner and company. The application would not be provided without such limitation.
9. WAIVER AND RELEASE.
Company releases, discharges and holds harmless Owner and its respective directors, officers, employees and agents from any and all liability, claims or causes of action (known or unknown) arising out of any negligent act committed by or on behalf of Owner in connection with the operation or use of the Application. COMPANY ACKNOWLEDGES THAT IT HAS CAREFULLY READ THIS WAIVER AND RELEASE AND FULLY UNDERSTANDS THAT IT IS A RELEASE OF LIABILITY. COMPANY IS WAIVING ANY RIGHT THAT IT MAY HAVE TO BRING A LEGAL ACTION TO ASSERT A CLAIM AGAINST OWNER OR THE OTHER PARTIES SET OUT ABOVE FOR ITS OR THEIR NEGLIGENCE. If Company is a California resident, you waive California Civil Code § 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
10. INDEMNITY.
You agree to indemnify, hold harmless, and defend Owner and its respective directors, officers, employees and agents (each, an "Indemnitee") from and against any and all liabilities, damages, costs, losses and expenses, including settlement awards and reasonable costs and attorney's fees (for both in-house and outside counsel), incurred by an Indemnitee that arise out of Company's: (a) breach of these Terms of Use; (b) violation of any law; (c) infringement or misappropriation any third party's rights; or (d) use of, or inability to use, the Application or information posted on or made available through the Application. You also agree to indemnify, hold harmless, and defend from and against any and all liabilities, damages, costs, losses and expenses, including settlement awards and reasonable costs and attorney's fees (for both in-house and outside counsel), incurred by an Indemnitee that arise out of claims brought by persons or entities other than the parties to these Terms of Use arising from or related to your access to or use of the Application, including the information obtained through the Application.
11. COPYRIGHTS, TRADEMARKS AND OTHER PROPRIETARY RIGHTS.
a. Ownership. Owner (or its licensors, as applicable) retains all rights, title and interest, including, without limitation, all rights of copyright, patent, trademark, trade secret, and any other equivalent rights under applicable law, and all registrations, applications, renewals, extensions, continuations, divisions, reissues, or improvements thereof relating to the foregoing rights (together, "Intellectual Property Rights"), in and to all: (1) [COPYRIGHTS] works of authorship, of any kind or medium, including written, pictorial or graphic materials and computer software, code, the “look and feel” of the Application, and other program materials ("Software"); (2) [PATENTS] inventions, discoveries, ideas, and know-how relating to any process, business method, machine, manufacture or composition of matter; and (3) [TRADEMARKS] registered and unregistered trademarks, trade names, service marks, and logos (collectively, "Property"), posted, disclosed or otherwise made available by Owner in the Application ("Owner Property"). Except as expressly provided in these Terms of Use, Company shall not, through use of the Application, by virtue of these Terms of Use or otherwise, acquire any rights whatsoever in any Owner Property.
b. Limited License. Subject to these Terms of Use and your compliance therewith, Owner grants Company a non-exclusive, non-transferable, terminable, limited right to access, view and display the Application and the visible text, graphics, and images thereon, in connection with Company's digitally providing accurate and complete inspection reports on Equipment to Owner. You agree to reproduce all copyright and other proprietary notices on all such copies in the same manner and format that such copyright and other proprietary notices are included on the original Owner Property.
c. Restrictions. You may not and may not assist another to: (1) modify, adapt, translate or create derivative works based upon the Owner Property; (2) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to discover the source code of any of the Application's Software, or reduce such Software to a human readable form, or permit third parties to do so, or print or copy the HTML or other computer programs that are viewable or form part of the Application; (3) resell, sublicense, publicly display, perform, distribute or publish the Owner Property, or any copy, in any medium (including other Web sites or intranets), except that you may distribute permitted copies as incidental to your business activities conducted through the Application; (4) remove, obscure, or alter any copyright notice, trademark, or other proprietary rights notices affixed to or contained within the Application and the products and services offered therein; (5) create any frames at any Web sites pertaining to or using any of the information provided through the Application; (6) incorporate any of the information made available by the Application in any other database or compilation, unless expressly permitted in writing; or (7) allow access to or use of the Application or its content by or for the benefit of third parties who are not Authorized Users (except as otherwise expressly permitted under these Terms of Use).
d. User-Provided Information. Other than inspection reports on Equipment provided to Owner by you through the Application, Owner does not claim ownership of the comments, feedback, or any other information or materials you provide through the Application. However, by providing information through the Application you hereby grant to Owner regarding such information or materials a perpetual, worldwide, irrevocable, non-exclusive, royalty-free, transferable (with a right to grant sublicenses through multiple sublicenses) license to use, copy, adapt, distribute, display, reproduce, transmit, modify, and edit such information or materials, in all media now known or hereinafter developed, on the Application or otherwise, subject to the other provisions of these Terms of Use.
12. NO CONFIDENTIAL, FIDUCIARY OR CONTRACTUALLY IMPLIED RELATIONSHIP WITH OWNER.
Company acknowledges that by using the Application no confidential, fiduciary, contractually implied, or other relationship is created between Company and Owner, other than the express contractual relationship provided in these Terms of Use and any other written agreement between Company and Owner. Consequently, no user should have any expectation that any information or content is subject to any right or privilege of privacy or confidentiality. Owner reserves, and you agree that Owner shall have, the right at all times to investigate any suspected violation of these Terms of Use, fully cooperate with any law enforcement authorities, or comply with any court order or subpoena requesting or directing Owner to disclose any information concerning a user of the Application. BY ACCEPTING THESE TERMS OF USE COMPANY WAIVES AND HOLDS HARMLESS OWNER FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY OWNER DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER OWNER OR LAW ENFORCEMENT AUTHORITIES. Furthermore, Owner reserves the right at all times to edit, refuse to post, or to remove any information or materials, in whole or in part, that in Owner’s sole discretion are objectionable or in violation of these Terms of Use.
13. TELECOMMUNICATIONS EQUIPMENT AND CHARGES.
Company is solely responsible for any and all telephone and other communications charges and equipment costs relating to your use of the Application. All transmissions by you via the Application shall be at your sole risk and Owner shall not be responsible for any communications line failure, equipment, or systems failure or other occurrence.
14. INTERNATIONAL USE AND COMPLIANCE WITH LAWS.
This Application is intended to be used solely within the United States and Owner makes no representations that use of the Application or its content is appropriate or available outside of the United States. You agree to comply with all laws, rules and regulations issued by any government, or any authority, department or agency thereof ("Laws") of the United States or any other jurisdiction where you are using the Application that are applicable to your use of the Application, including, without limitation, Laws governing business practices, contract formation and interpretation, competition, export controls, and data privacy and protection.
15. GOVERNING LAW AND JURISDICTION; WAIVER OF JURY TRIAL AND PARTICIPATION IN CLASS ACTION.
These Terms of Use, and any and all disputes arising out of these Terms of Use or use of the Application, shall be governed by the internal laws of the State of New York, without regard to the principles of conflicts of law. You hereby consent to the exclusive jurisdiction of and venue in the Supreme Court of the State of New York (New York County) and the United States District Court (S.D.N.Y.) for the adjudication of any such disputes, and will not assert as a defense lack of personal jurisdiction or inconvenient forum. FURTHER, YOU HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE APPLICATION. All claims arising under or relating to these Terms of Use must be brought in the parties’ individual capacity, and not as a class member in any purported class or representative proceeding.
16. CAPACITY TO CONTRACT.
In order to use the Application, you must have the legal capacity to contract under the laws of the jurisdiction from which you are accessing the Application. Minors (i.e., individuals younger than the age specified by applicable law at which they can enter into a legally binding contract) may not use the Application. By using the Application, you represent that you have the legal capacity or authorization to form binding contracts.
17. UCITA DISCLAIMER.
You agree that the Uniform Computer Information Transaction Act or any version thereof, adopted by any state, in any form ("UCITA"), shall not apply to these Terms of Use. To the extent that UCITA is applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein.
18. THIRD PARTY BENEFICIARIES.
Owner's contractors, vendors, distributors or business partners (collectively, "Trusted Third Parties") may provide software, hosting and/or other functions related to the operation of the Application. Trusted Third Parties are intended third party beneficiaries of these Terms of Use. Except as expressly stated in the preceding sentence, Owner and Company do not intend to confer any benefit hereunder on any person or entity other than the parties hereto.
19. GENERAL PROVISIONS.
These Terms of Use constitute the entire agreement among you, Company and Owner relating to the use of the Application, and supersede all prior or contemporaneous agreements with respect to the subject matter hereof. We may assign our rights and obligations under these Terms of Use but you may not. Any cause of action you may have with respect to your use of the Application, the services, or that is the subject of these Terms of Use must be commenced within one (1) year after the claim or cause of action arises. Termination, suspension, or cancellation of these Terms of Use or your access to the Application will not affect any right or relief to which Owner may be entitled, at law or in equity. Upon termination of these Terms of Use, all rights granted to you will automatically terminate and immediately revert to Owner and its licensors. Any waiver of any rights of either party, other than those expressed in these Terms of Use, must be in writing, signed by the waiving party, and any such waiver shall not operate as a waiver of any future breach of these Terms of Use. The language in these Terms of Use shall be interpreted as to its fair meaning and not strictly for or against either party. You agree that these Terms of Use will not be construed against Owner by virtue of Owner having drafted them. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of these Terms of Use, and the remainder of these Terms of Use shall continue in full force and effect.