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End User License Agreement for LiftTruckCapacityCalculator.com A. INTRODUCTION. Thank you for selecting LiftTruckCapacityCalculator software (the “Software”). This software license agreement (“Agreement”) is a legal agreement between you (“you”, “Licensee”), and Professional Forklift Engineering Services, LLC (“Developer”, “we,” “our” or “us”) that describes the terms and conditions applicable to your use of the Software. By clicking “I ACCEPT”, you indicate that you have read and understood and assent to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you are not granted any rights whatsoever in the Software, and you will not be able to access or use the Software. B. LICENSE GRANT AND RESTRICTIONS 1. License. Subject to the terms and conditions of this Agreement, including the payment of the applicable subscription fees, Developer grants you a personal, limited, nonexclusive, non-transferable license, during the initial term of the subscription and any Renewal Term (as defined in Section C), to electronically access and use the Software as it is available on the LiftTruckCapacityCalculator.com website (the “Website”) to calculate forklift load capacities and ratings. 2. Definitions. The term “Software” includes not only the version of LiftTruckCapacityCalculator software originally licensed to you under this Agreement, but also any updates, modifications, bug fixes, or other revisions or services made available to you by Developer during your subscription period. 3. Prohibited Uses. You are not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) access or attempt to access any other Developer systems, programs or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the Software or any content, data or other material from the Website; (iii) permit any third partyto benefit from the use or functionality of the Software without their own subscription to the Software, whether via a sale, rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any of the rights granted to you under this Agreement; (v) prepare derivative works from the Software, work around any technical limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the Software; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Software, prevent access to or the use of the Software by Developer’s other licensees or customers, or impose an unreasonable or disproportionately large load on Developer’s infrastructure; or (vii) otherwise use the Software except as expressly allowed under this Section B. 4. Reservation of Rights and Ownership. The Software is licensed not sold, and Developer reserves all rights not expressly granted to you in this Agreement. The Software is protected by copyright, trade secret and other intellectual property laws. Developer and/or its licensors or other Suppliers own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software, as well as in the content and other materials provided on the Website. This Agreement does not grant you any copyrights or any rights to trademarks or service marks of Developer. C. SUBSCRIPTION. The Software is licensed on a monthly subscription basis. The Software will be deemed accepted by you upon acceptance of this Agreement for trial versions (if applicable) of the Software and upon acceptance of this Agreement and payment of the subscription fee for paid for versions of the Software. Access to the Software will begin (i) for trial versions after your acceptance of this Agreement and after Developer receives and processes all the information requested in the registration process; and (ii) for paid for versions after your acceptance of this Agreement and after Developer receives and processes all the information, including the credit card or bank account information requested by the registration process. You must have a valid credit card or a valid debit card with a Visa or MasterCard logo (“Card”) or sufficient funds in a U.S. checking or savings account to cover an electronic debit of the subscription fee to obtain access to the Software. The payment information you provide must be accurate and complete, and you agree to notify us promptly of any change in the payment information. When you subscribe and provide payment information, your Card or bank account will be debited, and will be automatically re-debited at the beginning of each applicable monthly subscription term (“Renewal Term”) at the then-current subscription rate to maintain access to the Software. D. REGISTRATION. You must register to use the Software and (i) provide true, accurate, current and complete information as prompted in the sign-up process (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it accurate, current and complete. If you provide any Registration Data that is inaccurate, not current or incomplete, or Developer has reasonable grounds to suspect is inaccurate, not current or incomplete, then Developer may, in its sole discretion, suspend or terminate your account and refuse any and all current or future access to and use of the Software (or any portion thereof). E. PRIVACY. For details about Developer’s privacy policies, please refer to the Privacy Statement contained either in the Software, at the Website, or at the privacy policy link provided by Developer. You agree to be bound by the applicable Developer privacy policy, as it may be amended from time to time in accordance with its terms. F. LIMITEDWARRANTIES 1. LimitedWarranty. The calculations performed by the Software rely on manufacturers’ published data, as well as on selections or input made by you. Subject to the accuracy of the manufacturers’ published data, as well as the other limitations set forth in this Section F, the Developer warrants (i) the accuracy of the Software’s output results; and (ii) that the Software’s output may be used to provide capacity ratings for forklift trucks in the field. The Developer notes and Licensee acknowledges, however, that a forklift manufacturer may provide a capacity rating which could be different from the rating provided by the Software. 2. Accuracy of Raw Data. The Developer assumes the accuracy of the manufacturer’s data used by the Software, and that the manufacturer derived the data through sound professional engineering practices. The Developer, however, does not warrant the accuracy or applicability of the manufacturer’s published data, and as a result disclaims responsibility for any results of use of the Software that are caused by inaccurate or inapplicable manufacturer’s data. 3. Dual Capacity Ratings. The manufacturer of the forklift and/or attachment may publish information relating to the amount of sideshift or the rotational torque available. In this case, the Software will utilize the published data to provide a capacity rating for a known potential offset of the load center of gravity. Subject to the accuracy of the manufacturer’s published data, as well as the other limitations set forth in this Section F, the Developer warrants the capacity rating up to the stated amount of load offset, but does not warrant that the maximum potential offset may be actually more or less than the amount indicated on this rating. Licensee is responsible for informing the forklift user as to the meaning and proper use of dual offset capacity ratings. Subject to the accuracy of the manufacturer’s published data, as well as the other limitations set forth in this Section F, the Software will also provide a maximum load capacity at an interim lift height below the maximum fork height for the mast. The load capacity of the forklift may not exceed the stated capacity at the stated lift height in the Software output results. Licensee assumes the responsibility of informing the forklift user as to the meaning and proper use of dual lift height capacity ratings. 4. Fit and Function. The Software may be used to guide the Licensee in selecting forklift components and features that may be specified as an integral unit and that have been tested as a unit to yield the manufacturer’s published results. The Software DOES NOT, however, prevent Licensee from incorrectly specifying attachments for the forklift from a fit and function standpoint. Licensee is responsible for insuring that a generated configuration will mechanically fit together according to the forklift and attachment manufacturer’s specifications. The Software does not in any way guide Licensee to the correct mechanical assembly of attachments to the forklift or of an attachment to another attachment. 5. Proper Use and Maintenance. The Software and the Website are designed for those duly educated in the function and configuration of forklifts for use in material handling applications. By accepting the terms of this Agreement, you represent that you (i) are duly educated in the function and configuration of forklifts for use in material handling; (ii) accept the responsibility for proper use of the Software and proper use of forklifts and other material handling equipment. Developer is not responsible for the use or maintenance of any lift truck or other equipment of Licensee. Capacity ratings generated by the Software are not applicable to equipment that is not properly maintained or not in proper working order. G. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION F OF THIS AGREEMENT, THE SOFTWARE AND ANY CONTENT ACCESSIBLE ON THE WEBSITE OR THROUGH THE SOFTWARE ARE PROVIDED 'ASIS' AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEVELOPER, ITS AFFILIATES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY, 'SUPPLIERS') DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE, CONTENT AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, OR NON-INFRINGEMENT. DEVELOPER DOES NOT WARRANT THAT THE SOFTWARE IS SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. FURTHER, DEVELOPER DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SOFTWARE OR CONTINUED ACCESS TO ANY TRIAL VERSION OF THE SOFTWARE OR TO THE DATA ENTERED INTO THE TRIAL VERSION OF THE SOFTWARE AFTER THE TRIAL PERIOD OF TIME IS OVER (IF APPLICABLE). SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SOFTWARE, AS APPLICABLE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. H. LIMITATION OF LIABILITY AND DAMAGES. THE ENTIRE CUMULATIVE LIABILITY OF DEVELOPER AND ITS SUPPLIERS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR USE OF THE SOFTWARE, UNLESS OTHERWISE SEPARATELY AGREED BY DEVELOPER IN WRITING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEVELOPER AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS OR INVESTMENT, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET DEVELOPER’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF DEVELOPER, ITS SUPPLIERS, SERVICE PROVIDERS, OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. I. USE OF DATA 1. Authorization of Data Use. By accepting the terms of this Agreement, you acknowledge that the Software is employed for consulting purposes on your behalf, and you authorize the Developer as your consultant in the use of any manufacturer’s data necessary for the functionality of the Software used by you. You warrant that you are authorized to use all manufacturer’s data that is used for Software functions performed for you on the Website. You may supply the Developer with manufacturer’s data, and in such case the data becomes permanently licensed to the Developer for its use without restrictions. 2. Correction and Improvement. The Developer reserves the right to make raw data changes in the database and/or make improvements in data or Software at any time without notice to the Licensee. J. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY 1. Consent to Electronic Communications. Developer may be required to send Communications to you that may pertain to the Software, your subscription, the use of information you may submit to Developer, the services you choose, and legal notices. You agree that Developer, on behalf of itself, and others who administer such services (as applicable), may send Communications to you by email and/or may make general Communications for all subscribers available by posting them at one or more websites. You consent to receive these Communications electronically. The term “Communications” means any notice, record, agreement, or other type of information that is made available to you or received from you in connection with the Software or the Website. 2. Consenting to Do Business Electronically. The decision whether to do business electronically is yours, and you should consider whether you have the required hardware and software capabilities described below. Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Software for as long as you remain a subscriber to the Software. 3. Hardware and Software Requirements. In order to access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, Internet browser software that supports 128-bit encryption, and an email address. By selecting the “I ACCEPT” button, you are confirming to us that you have the means to access, and to print or download, Communications. We do not provide ISP services. You must have your own Internet service provider. 4. Withdrawal of Consent. If you later decide that you do not want to receive future Communications electronically, you may email Developer at support@LiftTruckCapacityCalculator.com. If you withdraw your consent to receive Communications electronically, we may terminate your use of the Software. 5. Changes to Your Email Address. You agree to notify us promptly of any change in your email address. 6. Notices. Any notices or other Communications may be delivered electronically by email between the parties. Notices to Developer shall be sent to support@LiftTruckCapacityCalculator.com. Notices to Licensee shall be sent to Licensee’s email address on file with Developer. Any notice emailed between the parties shall be deemed received five (5) minutes after it is sent, unless a delivery failure notice is received by the sender with 24 hours after the email is sent. K. AMENDMENT. Developer shall have the right to change or add to the terms of this Agreement at any time (provided that such change will not substantially affect the license rights granted to you in Section B and for which consideration was paid by you) and to change, delete, discontinue, or impose conditions on any feature or aspect of the Software upon notice by any means Developer determines in its discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in Software or on any Developer sponsored web site. Any use of the Software by you after Developer's publication of any such changes shall constitute your acceptance of this Agreement as modified. L. TERMINATION. 1. By Developer. Your rights under this Agreement may be terminated or suspended by Developer immediately and without notice (i) for any reason as determined solely at the discretion of Developer; (ii) if you fail to comply with any term or condition of this Agreement; or (iii) you no longer consent to receive electronic Communications in accordance with Section J. In the event of a termination by Developer pursuant to Subsection L.1.(i), above, Developer shall refund any unused subscription fee that you have paid. 2. By Licensee. You may terminate this Agreement for any reason at any time by electronically notifying Developer of such termination. However, your subscription fees will not be refunded unless such a refund is specifically approved in writing by Developer. 3. Obligations on Termination. Upon termination, you must immediately cease using the Software and Website, and return or destroy all passwords or other materials that may allow access to the Software. Any termination of this Agreement shall not affect Developer’s rights in the Software or to collect unpaid subscription fees from Licensee. M. EXPORT. You agree that you are not using the Software outside of the United States of America. You further agree to comply with all export control laws of the United States. N. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement will be governed by South Carolina law as applied to agreements entered into and to be performed entirely within the State of South Carolina, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law. The state and federal courts of Charleston, South Carolina, shall have exclusive jurisdiction and venue over any disputes that arise from or are related to this Agreement, the Software or the Website. O. MISCELLANEOUS. Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between you and Developer and sets forth the entire liability of Developer (and/or its Suppliers) and your exclusive remedy with respect to the Software, and its use. The Suppliers, agents, employees, distributors, and dealers of Developer are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Developer. Any waiver of the terms herein by Developer must be in a writing signed by an authorized officer of Developer and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. As used in this Agreement, the word “including” means including but not limited to. This Agreement does not limit any rights that Developer may have under trade secret, copyright, patent or other laws.
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