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Toyota Material Handling Schweiz AG (the "Supplier") operates one or more websites or other internet-based electronic transaction systems (collectively the "Website") for the purchase and sale of certain spare parts of material handling equipment displayed or recorded on the Website (collectively "Products"). Each transaction for the purchase and sale of Products (a "Transaction) will begoverned by the general terms and conditions (collectively the "GTCs") applied by Supplier from time to time to such Transaction.
The customer identified below ("Customer") wishes to access and utilise the Website and Supplier is willing to provide such access upon the terms and conditions set forth in this password application and in Schedule 1 (Parts shop Access Terms) (the "Agreement"). For this reason, Customer confirms that the individual(s) indicated below (each a "Designated User") is/are authorized by Customer to execute Transactions on behalf of Customer.
Supplier shall issue to each Designated User a password (a "Password"). Customer understands and agrees that:
(a) it shall only request and maintain a Password for Designated Users who are employed by Customer from time to time and authorised by it to access and use the Website (including to execute Transactions by submitting orders for the purchase of Products displayed or recorded on the Website on Customer's behalf) and to no other person;
(b) it shall be solely responsible for any and all acts or omissions with respect to the use of the Website by any person using the Passwords (including the execution of any Transaction by the submission of orders for the purchase of Products displayed or recorded on the Website by such person on Customer's behalf);
(c) Supplier will have no responsibility whatsoever for controlling or monitoring the use of any Password and shall have no liability for the use thereof;
(d) Customer shall forthwith notify Supplier if and when any Designated User ceases to be an employee of Customer; and
(e) Customer will implement and enforce reasonable measures to protect the confidentiality of the Website and shall immediately notify Supplier of any unauthorised disclosure or use of any Password (whether by a Designated User or otherwise).
Any order submitted on the Website will result in a Transaction, which will be deemed to be "in writing" and to have been "signed" (and any record of the Transaction, any GTCs or any order placed will be deemed to be "in writing" for all purposes). Without limitation of the foregoing, Customer agrees that it will be bound by any order submitted on the Website through a "click" agreement (or other action specified on the Website from time to time) by any person using a Password, subject to and in accordance with the terms and conditions of this Agreement. Customer warrants and covenants that all information provided by Customer to Supplier is true, accurate and complete in all respects and that Supplier shall be entitled to continue to rely on any information previously provided to it by Customer in connection with the execution of Transactions through the Website.
If a Designated User applies for access to the Website on behalf of Customer before Customer signature of the Agreement, said Designated User is representing to Supplier that he/she is authorized by Customer to execute Transactions on the Website. Supplier may therefore issue a Password to the Designated User before receiving the signed Agreement from Customer. However, if Supplier has not received the signed Agreement within five business days after the Designated User’s registration on the Website, Supplier reserves the right to close the account and/or to hold the Designated User responsible for the payment for Transactions executed by him/her.
Each Transaction executed by Customer on the Website will be governed by the applicable GTCs.
(a) Termination. This Agreement shall be effective until such time it is terminated, for whatever reason, by either Supplier or Customer by the giving of one week's written notice to the other.
(b) Survival. If this Agreement is terminated then all of the provisions of this Agreement shall lapse and cease to have effect and Customer's access to and use of the Website shall expire, provided, however, that no such termination shall affect the parties' liabilities with respect to any Transactions entered into prior to the time such termination is effective, which Transactions shall remain effective pursuant to the applicable GTCs, provided, further, that nothing in this paragraph (b) shall relieve Supplier or Customer of any liability for any failure or refusal to perform its obligations under this Agreement.
(c) Suspension Irrespective of whether this Agreement is terminated,Supplier reserves the right to suspend or restrict Customer's access to or use of the Website without prior notice.
(d) No Prejudice. Any termination of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law.
The electronic records generated by the Website will constitute prima facie evidence of the terms and contents of each Transaction.
(a) Equipment. Customer understands and agrees that the Website can only be accessed by the use of certain equipment, including computers, peripherals, modems, software and connections, and it is the responsibility of Customer at its own cost and expense to obtain and maintain such equipment.
(b) Enhancements. Supplier shall be entitled to enhance and upgrade the Website. Supplier shall use its reasonable endeavours to make such enhancements and/or upgrades with the minimum inconvenience to Customer.
(c) Changes. The Website and the information and material which it contains are subject to change at any time by Supplier without notice.
(a) Ownership. The Website (and any enhancements and/or upgrades thereof) is owned by Supplier, and Customer shall not by the execution of this Agreement or by the satisfaction of its obligations and liabilities hereunder acquire or gain any title, rights or interest (whatsoever) to or in the Website or any part or component thereof. Customer is entitled to view, copy and print any documents from the Website but only for its own internal business purposes, but acquires no rights or licenses in or to the Website or the materials contained within the Website other than the limited right to use the Website in accordance with the terms of this Agreement. Any sale, transmission or redistribution of the Website or its content, and any copying, modification or other use of the Website or its content for any purposes other than for Customer's own internal business purposes are strictly prohibited.
(b) Intellectual Property Rights. All present and future rights in and to trade secrets, trademarks, service marks, copyrights and other proprietary rights relating to the Website under the laws of any domestic or foreign governmental authority (the "Intellectual Property Rights") shall at all times be and remain the sole and exclusive property of Supplier (and/or its licensors). Customer shall not use the Intellectual Property Rights, or any derivations thereof, for any purpose, without Supplier's prior written approval and agrees to comply with all reasonable written requests made by Supplier or its suppliers of content or otherwise to protect its or their and others' rights in or to the Website.
(a) No Warranties.The Website is provided "AS IS" without any warranty of any kind, express or implied, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, accuracy or completeness of the information disclosed on the Website or in respect of any Products displayed on the Website (except as may follow from the GTCs governing any Transaction). Nor does Supplier warrant that the Website is compatible with Customer's equipment, that the Website is or will be free of errors, malfunctions, viruses or worms or that the internet is a safe medium for communications (including sending and retrieving data to and from). All warranties or assurances whether express or implied in respect of the Website and its use are hereby excluded to the extent permitted by applicable law.
(b) Other Websites. The Website may provide links to certain websites sponsored and maintained by third parties. Such websites are publicly available and Supplier is providing access to such websites through the Website solely as a convenience to Customer. The content of other websites, services, goods or advertisements that may be linked to the Website is not maintained or controlled by Supplier, and Supplier makes no representations or warranties concerning the content of such websites and the fact that access to such websites is provided does not constitute any endorsement, authorisation or sponsorship of such websites or their sponsors by Supplier. Supplier is in no way responsible for the availability, content or accuracy of other websites, services or goods that may be linked to, or advertised on, the Website and does not make any warranty, express or implied, with respect to the use of the links provided on, or to, the Website or guarantee the accuracy, completeness, usefulness or adequacy of any other websites, services, goods or advertisements that may be linked to the Website. Customer understands and agrees that it will use or rely on such websites solely at its own risk and that Supplier does not grant to it any rights in respect of such websites.
(c) Liability. Supplier and its directors, officers, employees and agents shall, to the extent permitted by law, have no liability, contingent or otherwise, whether caused by the negligence of Supplier, its employees, subcontractors, agents, suppliers, or otherwise, to Customer or to third parties for any error, inaccuracy or incomplete information contained in the records or information for which access is provided by the Website or for any failure, malfunction, delay, inconvenience or inability of the Website, and Customer hereby expressly releases Supplier from any claim, demand or suit arising from or as a result of any of the foregoing. Supplier shall in no event, whether in contract, tort or otherwise, be liable to pay to Customer any damages representing indirect or consequential loss or damage arising out of any legal claim whatsoever in any way connected to the use by Customer of the Website.
Customer shall by accepting these terms agrees to indemnify, defend and hold Supplier harmless from and against any claims, demands, suits, damages or costs or liabilities of any kind asserted against or suffered by Supplier in connection with or arising out of Customer's use of, or the access provided to it to, the Website, caused or claimed to be caused by any act or failure of Customer to comply with the terms of this Agreement.
If either party's performance of its obligations hereunder is affected by Force Majeure (as defined below) it shall forthwith notify the other party of the nature and extent thereof. If by reason of Force Majeure, either party is unable to perform any obligation hereunder or there are delays by such party in the performance of any obligation hereunder, then such party's performance of such obligation shall be suspended as long as the Force Majeure continues and the time for performance of that obligation shall be extended accordingly, and the party affected by Force Majeure shall not in any event be liable to the other party for any loss or damage whatsoever and howsoever arising (whether direct or indirect loss or damage) incurred or suffered or for any breach of any of the terms of this Agreement by reason of such Force Majeure. For the purpose of this clause 9, "Force Majeure" means any of the following: (a) outbreak of hostilities, riot, civil disturbance, acts of terrorism; (b) fire, explosion, flood, or extreme weather conditions; (c) uncontrollable power failure or failure of telecommunication lines; (d) strike, lock-out or industrial action of any kind; or (e) any other cause or circumstance whatsoever beyond either party's reasonable control.
Customer shall not have the power to transfer (whether by way of security or otherwise) all or any of its rights or obligations under this Agreement or to permit that any use of or access to the Website provided to it under this Agreement is subcontracted or delegated to any other person without the prior written consent of Supplier, and such consent may be conditioned upon such terms and conditions as Supplier may reasonably require.
This Agreement shall not operate so as to create or recognise a partnership or joint venture of any kind between the parties.
If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability in that or any other jurisdiction of any other provision of this Agreement. The parties agree to attempt to substitute for any illegal, invalid or unenforceable provision a legal, valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the illegal, invalid or unenforceable provision.
This Agreement contains and constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior oral or written communications or agreements relating thereto. This Agreement may be executed in counterparts (including by facsimile), each of which when executed and delivered shall be deemed to be an original instrument and all of which when taken together shall constitute one and the same agreement.
(a) Governing Law. This Agreement is governed by, and shall be construed in accordance with, German law.
(b) Jurisdiction. Any dispute between the parties arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The place of arbitration shall be Hannover, Germany. The language to be used in the arbitral proceedings shall be German.
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