THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION
AND WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS.
SEE DISPUTE RESOLUTION SECTION FOR DETAILS.
Effective Date: 7/30/21
Introduction and Acceptance
Confidential and Proprietary Information
Limitation of Liability
Third-Party Materials and Links
Contests, Sweepstakes or Promotions
Term, Termination, and Suspension
Changes to the Terms or the Site
Introduction and Acceptance:
These Terms (“Terms” or “Agreement”) are a legal agreement between Matheson Tri-Gas, Inc. or its applicable affiliates (collectively, “Matheson” or “we”, “us” and “our”) and you or the entity you represent (“you,” “your” or “Purchaser”) (together the “Parties”). They govern your legal rights to use and access the online interfaces and properties (e.g. websites and mobile applications bearing these Terms), including the website located at mathesongas.com (the “Site”) and the services available through the Site (together with the Site, the “Services”).
Please read these Terms, the Matheson Privacy Notice, and the other applicable rules, policies, and terms available on the Site. These documents are incorporated in and made part of these Terms, so by proceeding, you are also agreeing to them. Note that the Terms contain important information about binding arbitration and waiver of class actions and trial by jury, requiring you to arbitrate any claims you may have against Matheson on an individual basis. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
If you are entering into this Agreement on your own behalf, you hereby represent to us that you are lawfully able to do so (e.g., you are not a minor). If you are entering into this agreement on behalf of your employer or another business entity, you hereby represent that you have the legal authority to bind that entity.
BY CLICKING “I ACCEPT,” OR BY ACCESSING THE SITE OR USING THE SERVICES, YOU ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY THESE TERMS, WHICH MAY BE UPDATED FROM TIME TO TIME. If you do not accept and comply with this agreement, you may not access the Site or use the Services.
a. All pages within this Site and any material made available by Matheson for download are the property of Matheson, its licensors or suppliers, or third parties, as applicable.
b. This Site and its Content are protected by the United States and international copyright and trademark laws. The content of the Site, including the files, documents, text, photographs, images, and any materials accessed through or made available for use or download through the Site (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by us. You acknowledge that Matheson or third parties granting rights to Matheson hold title to all Content on this Site, which are the copyrighted works of Matheson or the third parties, with all rights reserved. Notwithstanding the foregoing, you are solely responsible for Your Content (defined below).
a. Right to use. Subject to these Terms, Matheson grants you a limited, non-transferable, non-exclusive right to access and use the Site and the Services for your own internal, lawful purposes; however, this license does not include any right to resell or otherwise make the Site or Services available to third parties. You are responsible for the conduct of each representative to whom you have granted access to your Matheson account (each an “End User”), including their Users’ use of our or Your Content and the Services. If you or we become aware of any violation of your obligations under this Agreement, including any violation caused by an End User, you will immediately suspend access to Your Content and the Services by such End User. At our discretion, we may suspend access to Your Content and the Services by such End User or by you entirely, immediately and without notice.
b. Manner of use. You agree to comply with all applicable laws, rules, regulations and policies applicable to you as a user of our Site or Services. You may not:
- reverse engineer, decompile, disassemble or work around technical limitations in the Services, except to the extent that applicable law permits it despite these limitations;
- disable, tamper with or otherwise attempt to circumvent any mechanism that limits your use of the Services;
- rent, lease, lend, resell, transfer, or sublicense any Services or portion thereof to or for third parties, except as explicitly permitted herein or in license terms that accompany any Services component;
- remove, alter, or deface any proprietary notice or restrictive legend;
- use the Services for any purpose that is unlawful or prohibited by this Agreement; or
- use the Services in any manner that could damage, disable, overburden, or impair any Matheson service, or the network(s) connected to any Matheson service, or interfere with any other party’s use and enjoyment of any Services.
c. Updates. We may make changes to the Services from time to time with or without notice to you.
3. Confidential and Proprietary Information
Unless covered by a separate nondisclosure agreement executed between the Parties, you acknowledge that all information and materials which come into your possession or knowledge in connection with your use of the Services and which is marked, identified, or accepted as confidential or proprietary (collectively “Proprietary Information”) consists of confidential or proprietary information whose improper disclosure or use would be damaging to Matheson. Accordingly, you agree to hold all Proprietary Information in confidence, to disclose it only to those of your employees who need to know it, not to disclose it to any other person, and to use it only in connection with your internal use of the Services.
4. Warranty Disclaimer:
TO THE FULLEST EXTENT POSSIBLE AT LAW MATHESON EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATED TO THE SERVICES. THE SERVICES AND ANY INFORMATION MADE AVAILABLE ON THE SITE ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND RELATED TO THE CORRECTNESS, ACCURACY, RELIABILITY, WHETHER EXPRESSED OR IMPLIED AT LAW, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT. MATHESON DOES NOT WARRANT THAT THE SITE WILL OPERATE WITHOUT INTERRUPTION, THE INFORMATION PRESENTED ON THE SITE IS ACCURATE OR FREE OF ERRORS INCLUDING TYPOGRAPHICAL ERRORS, TIMELY, RELIABLE, OR THAT IT IS FREE FROM VIRUSES OR ANY OTHER HARMFUL COMPONENTS. BY ACCESSING THE SITE YOU ACKNOWLEDGE AND AGREE THAT YOU DO SO WITH FULL KNOWLEDGE OF THESE WARRANTY WAIVERS AND THAT NO PERSON EXCEPT AN OFFICER OF MATHESON HAS AUTHORITY TO VARY THIS WARRANTY AND THAT ANY SUCH VARIANCE MUST BE IN WRITING SIGNED BY SUCH OFFICER.
5. Limitation of Liability:
a. No Consequential or Other Damages. YOUR USE OF THE SITE IS AT YOUR OWN RISK. BY ACCESSING THE SITE YOU AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT AND UNDER NO THEORY SHALL MATHESON, ITS AFFILIATES, SUPPLIERS, CONTRACTORS OR SUBCONTRACTORS, SERVICE PROVIDERS, LICENSORS, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, ASSIGNS, OR INSURERS (COLLECTIVELY “Matheson Parties”) BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR INCREASED OPERATION OR PRODUCTION COSTS, WHICH ARE IN ANY WAY CONNECTED WITH YOUR USE OF THE SITE EVEN IF FORESEEABLE AND ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
b. Notification Requirement. You must notify Matheson of any claim within thirty (30) days of the event giving rise to such claim, or such claim is waived. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY REGARDLESS OF WHETHER THE CLAIM FOR DAMAGES IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE.
c. Time Limitation. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site, any of the Services, or any of these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
d. Limitations and Exclusions are of the Essence of this Agreement. You acknowledge and agree that the Disclaimer of Warranty and Limitations of Liability are fundamental components and are of the essence of this Agreement, without which the Services could not be provided, and that to the full extent permitted by law, they shall continue to be valid and enforcement even if any remedy hereunder is held to have failed of its essential purpose.
e. Notice of Additional Rights. SOME STATES AND LOCALITIES DO NOT ALLOW CERTAIN LIMITATIONS, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN ADDITION, YOU MAY HAVE OTHER RIGHTS UNDER YOUR STATE OR LOCAL LAW. You agree that modifications of these Terms required by any such state or local law shall be the minimum necessary in order to comply with such state or local law.
a. Indemnity. You agree to hold harmless, indemnify, and defend the Matheson Parties and each of them from any suits, losses, claims, demands, liabilities, actions, causes of action, or expenses (including attorney or expert witness fees or settlement expenses) (collectively “Claims”) that any of the Matheson Parties may sustain or incur which relate directly or indirectly to (i) Your use of the Site or the Services, (ii) use of any of the Site or Services by a third party with or without your authorization, (iii) your failure to comply with any applicable law or regulation, or (iv) your breach of any of your Obligations.
b. Defense. You are responsible for the defense of any such Claim at your expense, including defense of the Matheson Parties. The Matheson Parties may participate fully in the defense of any such Claim through counsel of their own choice, at their own expense. You agree not to settle any such Claim under any terms that impose limitations or restrictions on any of the Matheson Parties’ businesses, or otherwise without the applicable Matheson Parties’ agreement, which shall not be unreasonably withheld.
7. Dispute Resolution:
a. Arbitration. Any claim or dispute arising from or relating to these Terms or the relationship between you and Matheson and which cannot be amicably resolved, shall be resolved by binding arbitration to be held in the English language in Dallas, Texas and no other location, in accordance with the Federal Arbitration Act (if applicable, or the Texas Arbitration Act if not) and the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”), and judgment may be entered upon the award in any court of competent jurisdiction.
b. Acknowledgements. BY AGREEING TO ARBITRATION, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO USE ANOTHER RESOLUTION PROCESS SUCH AS A COURT ACTION OR ADMINISTRATIVE PROCEEDING, AND THAT YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR HAVE YOUR CLAIM DETERMINED BY A COURT OR TRIAL BY JURY.
c. Precondition and Procedure. A Party intended to seek arbitration must first send a written notice of dispute to the other Party, specifically describing the nature and basis of the claim and the relief sought. The Parties shall then confer; and if the claim is not resolved within ten (10) business days, it shall be escalated by both Parties to the next-highest level of management, who shall confer with one another directly during the following ten (10) business days. A Party who does not participate in this procedure may not recover its attorneys’ fees or costs of arbitration even if it prevails in the arbitration; provided that a Party may seek temporary equitable relief in a court at any time if it follows this procedure in parallel.
d. Authority of the Arbitrator. To the full extent permitted by law, the arbitrator shall not have authority to render a decision which contains or is based upon a reversible error of law, or to award a remedy which is not permitted under these Terms. Except as otherwise provided herein, the prevailing Party shall recover its reasonable attorneys’ and expert witness fees, and all costs and expenses of arbitration which are assessed by the AAA pursuant to its rules.
e. Limitation of Arbitration to Individual Claims; Waiver of Class Action Rights. A Party may bring claims against another Party only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties agree that the arbitrator may not consolidate proceedings of more than one person’s claims and may not otherwise preside over any form of purported class or representative proceeding. The arbitrator may award injunctive relief, if permitted under these Terms, only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim.
8. Third-Party Materials and Links
Certain functionality, content, products and services that we make available to you or through our Site and Services may include materials made available by third parties, including links to other websites and product listings (collectively, (“Third-Party Materials”). We neither control nor endorse, nor are we responsible or liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connections with any Third-Party Materials. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
9. Contests, Sweepstakes or Promotions
Any contests, sweepstakes or other promotions (collectively “Promotions”) made available through the Services may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules, as the case may be, as well as our Privacy Notice . If the rules for a Promotion conflict with these Terms of Service, the Promotion rules shall prevail. Promotions may be available only for a limited time and may be withdrawn at our sole discretion, at any time, without prior notice.
10. Term, Termination, and Suspension
The term of this agreement begins when you accept it. Notwithstanding any of these Terms, Matheson reserves the right, without notice and in its sole discretion, to terminate or suspend your right to access and use the Services and to block or prevent future access to and use of the Services. Certain Terms will survive termination or expiration of this Agreement, as described in the “Survival” section below.
11. Changes to the Terms or the Site
Matheson reserves the right to revise these Terms or our Site at any time by updating this page and with no other notice. If we make changes to these Terms or our Site that we consider material, we will make reasonable efforts to notify you by placing a notice on the Site, notifying you through the Services, by sending you an email, or by some other means. By continuing to use any of our Services after such changes, you are expressing your acknowledgement and acceptance of the changes. Please check these Terms periodically for updates.
a. Survival. Terms related to your obligations; limitations of access, use, warranties, and liability; indemnity; confidential and proprietary information; dispute resolution; miscellaneous; and other terms which by their language or their nature should survive termination or expiration of any agreement or relationship between the Parties, will so survive.
b. No additional rights; you may not assign it. We reserve all rights not expressly granted under these Terms, and no other rights are granted under these Terms by implication or estoppel or otherwise. There are no third-party beneficiaries to this Agreement. You may not assign any right or obligation hereunder in whole or in part except as we may agree in writing.
c. Severability and Waiver. If any provision of these Terms is held invalid or unenforceable for any reason, it shall be deemed stricken and a new provision automatically substituted in its place, as near in force and effect as possible to the stricken term while still being valid and enforceable, and the remainder of the Terms shall continue in full force and effect. Our failure to exercise or enforce any Term shall not constitute a waiver unless so agreed in writing signed by an officer of Matheson.
d. Construction. Except as the context may indicate otherwise, the terms “including” and “or” shall be construed in their broadest form, with “including” deemed to include the phrase “but not limited to” and “or” read as “and/or.” Headings are for convenience only and shall not limit the Terms. The Terms are agreed to be the product of negotiation and shall be construed neutrally between the Parties, not presumptively favoring either Party or construed against the drafter. No agency, partnership, or joint venture is intended or may be construed to exist.
e. Force majeure. Neither party will be liable for any failure in performance due to causes beyond its reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, widespread illness or pandemic, acts of civil or military authority, war, terrorism including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services).
f. Choice of Law and Venue. These Terms and the relationship between the Parties shall be governed, construed, and enforced according to the laws of the State of Texas, excluding its choice of law provisions. Any dispute arising hereunder or relating directly or indirectly to the relationship between the Parties shall be resolved in Dallas, Texas and in no other location.
g. No agency; no third-party beneficiaries. These Terms do not create an agency, partnership or joint venture. There are no third-party beneficiaries to these Terms.
h. Addresses for Notice. Any notice to us which is required or permitted hereunder shall be sent by mail to Matheson Tri-Gas, Inc., 3 Mountainview Road, 3rd Floor, Warren, NJ 07059 Attn: General Counsel, with a copy to 909 Lake Carolyn Parkway, Suite 1300, Irving, TX 75039 Attn: Legal Department. You agree to receive electronic notices from us which will be sent by email to the End User which you have identified to us. Notices are effective on the date on the return-receipt for mail, and the date sent by email if no failure of transmission is received.
i. Entire Agreement. These Terms (including such documents as are incorporated in and made part of these Terms) constitute the entire agreement between the Parties concerning the subject matter and supersede any prior or concurrent communications. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOU ARE NOT RELYING ON ANY STATEMENT, REPRESENTATION, OR COMMITMENT WHICH IS NOT EXPRESSLY CONTAINED HEREIN. Specific areas or pages of the Site may include additional or different terms relating to the purchase and use of certain specific Services; in the event of any conflict between terms applicable to such specific products or services and these Terms, the specific terms shall control.