TERMS AND CONDITIONS
THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION
AND WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS.
SEE DISPUTE RESOLUTION SECTION FOR DETAILS.
Effective Date: February 1, 2021
Introduction and Acceptance
Confidential and Proprietary Information
Limited Product(s) Warranty and Exclusive Remedy
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 https://shop.mathesongas.com (the "Site") and the services and products (the "Products") available through the Site (collectively, 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, purchase Products, or use the Services.
ALL PRODUCTS WILL BE SOLD PURSUANT TO THE TERMS. NO OTHER TERMS OR CONDITIONS ARE ACCEPTED.
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 purchase Products and Services for your own internal, lawful purposes; however, this license does not include any right to resell Products or Services, or otherwise make the Products or Services available for 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 Products or Services. You may not:
i. Collect prices or otherwise "data scrape," manually or automatically, for any purpose except price comparison for your own, internal use only;
ii. reverse engineer, decompile, disassemble or work around technical limitations in the Services, except to the extent that applicable law permits it despite these limitations;
iii. disable, tamper with or otherwise attempt to circumvent any mechanism that limits your use of the Services;
iv. 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;
v. remove, alter, or deface any proprietary notice or restrictive legend;
vi. use the Services for any purpose that is unlawful or prohibited by this Agreement; or
vii. 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.
i. Creation. In order to access many of the Services, you may be required to sign up for an account ("MATHESON Online Account"). Your MATHESON Online Account helps you order Products through our Site. You can create a MATHESON Online Account by signing up on the Site. You will need to select a password and user name (collectively "Credentials"). You represent and warrant that any information provide through the Site or the Services is and will remain accurate and complete, and that you will maintain and update such information as needed. You may not select as your Credentials a name or password you do not have the right to use, or another person's name with the intent to impersonate that person. In some cases, a third party, like an organization or entity that is our customer, may have assigned its MATHESON Online Account to you. If you received your account from a third party, the third party may have additional rights over your MATHESON Online Account, like the ability to access or delete your MATHESON Online Account. Please review any additional terms the third party provided you, as MATHESON has no responsibility regarding these additional terms. We reserve the right to reject or reassign Credentials and other information in our sole discretion.
ii. Use and Security. You are responsible for all activity that occurs under your MATHESON Online Account. You will not share your account or password with anyone, and you must protect the security of your MATHESON Online Account and your password. To protect your account, chose a strong and unique password, and keep your Credentials confidential. You cannot transfer your Credentials to any other user or entity.
d. Updates. We may make changes to the Services from time to time with or without notice to you, including: the availability of Products and features.
3. Sales Terms:
a. Product information and substitution. Information about the Products on the Site is provided by the Products' manufacturers or suppliers, and not by MATHESON. Product depictions on the Site are for illustrative purposes only. Access to the Site does not constitute the right to purchase Products. MATHESON reserves the right to revise errors on its Site. Products or country of origin may be substituted and may not be identical to descriptions or images published on the Site.
b. Pricing and Payment:
i. Pricing. Product prices shown on the Site: (i) are in US Dollars; (ii) are subject to these Terms; (iii) are available for orders placed on the Site only; (iv) do not include freight, handling fees, taxes or duties; and (v) are subject to change or correction at any time and without notice. The price applicable to your order will be the price that is current at the time your order is accepted. "Data scraping" or other collection of prices or information for publication to third parties or any other purpose except your own, internal use, is strictly prohibited.
ii. Surcharges. Compliance with hazardous-material regulations, energy/fuel price spikes, loss of local production facilities, raw material or commodity supply dislocations, or other events may cause Matheson to charge certain extra amounts ("Surcharges"). (For example, a hazardous material surcharge may be added to each invoice for sale of hazardous materials, and pure or mixed Ozone Depleting Chemicals ("ODCs") may carry a surcharge per pound.) Surcharges may not relate to specific costs and may vary by the type of product or service purchased, geographic location, or time. Except where identified, Surcharges are not a tax, are not required by any government authority, and shall be retained in their entirety by Matheson.
iii. Shipping, Title, and Insurance. Products will be shipped in Matheson (or manufacturer) standard packaging, F.O.B. point of shipment. Risk of loss shall pass to you upon tender to the carrier at the point of shipment. You are responsible for any insurance you wish to carry during shipment. Title will not pass to Matheson until all amounts due have been paid in full. Until that time you hereby grant Matheson a purchase money security interest in the Products and expressly authorize Matheson to file a financing statement on its and your behalf to that effect.
iv. Orders. In its sole discretion, Matheson reserves the right to refuse any order or to limit or cancel quantities purchased per customer or order regardless of Matheson account, credit card, billing or shipping address, or other factors. In such event Matheson may attempt to notify you by contacting the e-mail or billing address/phone number provided at the time the order was made.
v. Billing Information. You agree to provide current, complete and accurate purchase and Matheson account information for all orders. You further agree to update your Matheson account and other information promptly, including your current email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
vi. Collections. Charges not paid in full when due will bear interest at the lower of the maximum rate allowed by law, or one percent (1%) per month, from the date due until paid. Matheson shall be entitled to recover court costs and reasonable attorneys' fees and expenses for collection, which shall not be less than fifteen percent (15%) of the amount owed.
i. Your Responsibility. You are solely responsible for paying all federal, state or local excise, sales, use, property, retailer's occupation, gross receipts or similar taxes ("Taxes") which apply to your purchase, regardless of whether our website calculates the Taxes or they are determined later.
ii. Tax-Exempt Customers. If you are a tax-exempt customer, you must set up BOTH a MATHESON Credit Account AND a MATHESON Online Account. We will collect sales tax unless, before we process your order internally, we have received a SIGNED, properly completed Tax Exemption Certificate (NOT A COPY OF A LICENSE) showing that you are entitled to exemption and are not required to pay tax on the Product(s) purchased. Separate or multi-jurisdiction exemption certificates may be required for different locations. You can send us your Tax Exempt Certificate by email at [firstname.lastname@example.org]. We reserve the right to reject any exemption certificate we believe to be invalid or inapplicable in our sole discretion. You are responsible for and shall hold harmless, indemnify, and defend Matheson for any taxes, penalty, and interest that arise from any claim of exemption which is found to be invalid.
d. Your Obligations. As a condition of MATHESON's accepting your order, you agree to the following obligations in addition to your other obligations under law and as set forth in these Terms (collectively "Obligations"):
i. You Acknowledge the Hazardous Nature of Many Products and Your Obligation to Protect. You acknowledge that you understand fully the hazardous nature of many of the Products. You agree that you shall warn, protect, and train, as appropriate, all of your employees, agents, representatives, contractors, customers, and other persons who may be exposed to those hazards.
ii. Safe and Lawful Transportation, Installation, Use, Storage, and Maintenance. You are solely responsible for the safe and lawful transportation, installation, use, storage, maintenance, and other handling of the Products by yourself or anyone who handles or is exposed to the Products through you, according to best practices for the Products' use prevailing in the industry as those practices improve from time to time. Your responsibilities include consulting the applicable Safety Data Sheets (each an "SDS") for each Product, which you acknowledge are available to you through the Site, and following those and any instruction, operating, or maintenance manual (each an "Operating Manual") provided by the Product's manufacturer, before taking any action with respect to the Product.
iii. Your Obligation to Inform Yourself. SDS and other information about the Products is supplied by their manufacturers or suppliers, not by Matheson. MATHESON MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR SUITABILITY OF THE INFORMATION IN ANY SDS OR OPERATING MANUAL. YOU AND YOUR END USER ARE EXCLUSIVELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT.
iv. Strict and Complete Compliance with Law. You shall comply strictly with all laws, ordinances and regulations relating to the Product(s) purchased and all other aspects of your business and operations, including any applicable licensing, permitting and registration obligations and environmental laws. These may include regulations under California Proposition 65, the Federal Safe Drinking Water Act and related state regulations, the Trade Agreements Act, the Federal Clean Air Act, and others. You are aware that OSHA regulations may require you to develop and implement a written chemical hazard communications program for your employees, customers or others with respect to some or all of the Products. You further agree to comply with all U.S. export regulations which apply to the Products, including Export Administration Regulations administered by the U.S. Department of Commerce and the International Traffic in Arms Regulations administered by the U.S. Department of State.
e. Changes, Cancellations and Returns. Cancellations of orders, and changes to orders, and returns of Products will be subject to our then-existing return, change and cancellation policies and fees. . View our current Returns Policy.
4. 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 purchase of Products 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 Products. Under no circumstances does sale of any Product include sale of any technical data or proprietary rights of any kind, except for the strictly limited right and license to the direct Purchaser to use the Product internally in its own business, carefully, following industry "best practices," and in full compliance with these Terms and all laws, ordinances, regulations, and instructions.
5. Limited Warranty and Exclusive Remedy:
a. Limited Warranty. Matheson warrants that Products which MATHESON manufactures will conform materially to MATHESON's standard specifications, or specifications required by law for such Products, at the time Matheson tenders them to the carrier for shipment. MATHESON MAKES NO WARRANTY AS TO PRODUCTS MANUFACTURED BY OTHERS, but to the full extent permitted by law, MATHESON will assign to you all manufacturer's warranties applicable to those Products. THESE WARRANTIES ARE STRICTLY LIMITED AND YOU BEAR THE ENTIRE RISK OF LOSS, DAMAGE, OR INJURY FROM USE OF PRODUCTS.
b. Exclusions. These warranties are VOID as to any Product that (i) has been repaired or altered by any person other than an authorized employee of MATHESON or the applicable manufacturer; (ii) has been subject to corrosion, erosion, abuse, misuse, negligence, accident, or improper installation or operation; or (iii) has been transported, installed, used, stored, or maintained in violation of the applicable SDS, Operating Manual, law, or any of these Terms. Further, we do not guarantee that use of the Site will be uninterrupted or error-free, or that information transmitted using the Site will be secure or free from unauthorized access.
c. Exclusive Remedy. If any Product manufactured by MATHESON is alleged not to conform to this limited warranty, your sole and exclusive remedy, and MATHESON's sole and exclusive obligation, shall be for MATHESON to repair or replace the non-conforming Product at its discretion; provided that you give MATHESON notice of the defect within thirty (30) days of the date you received the non-conforming Product, and allow MATHESON to inspect or test the Product to confirm it is non-conforming by returning it to MATHESON freight prepaid. Your sole and exclusive remedy as to any Product which was not manufactured by MATHESON , and is alleged not to conform to the manufacturer's warranty, shall be as set forth in the manufacturer's warranty and MATHESON shall have no liability for it.
d. Disclaimer. THE WARRANTIES AND REMEDIES STATED IN THIS SECTION ARE EXCLUSIVE. THERE ARE NO OTHER WARRANTIES. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND NON-INFRINGEMENT, ARE HEREBY DISCLAIMED AND EXCLUDED. You acknowledge and agree that no person except an officer of Matheson has authority to vary this limited warranty, authorize additional remedies, or expand upon these limitations, and that any such variance must be in writing signed by such officer.
6. Limitation of Liability:
a. No Consequential or Other Damages. TO THE FULL 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, EVEN IF FORESEEABLE AND ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
b. Limitation to Purchase Price Actually Paid. NOTWITHSTANDING THE FOREGOING OR ANYTHING IN ANY OTHER DOCUMENT, EXCEPT FOR PERSONAL INJURY CAUSED BY MATHESON'S SOLE NEGLIGENCE, IN NO EVENT SHALL THE MATHESON PARTIES' CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY KIND FOR ANY DAMAGES, CLAIMS, COSTS, OR EXPENSES, INCLUDING WITHOUT LIMITATION ALL CLAIMS FOR WARRANTIES, EVER EXCEED THE PURCHASE PRICE ACTUALLY PAID BY PURCHASER FOR THE SPECIFIC UNIT OF PRODUCTS OR SERVICES WHICH IS THE SUBJECT OF THE CLAIM OR DISPUTE.
c. 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.
d. 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.
e. 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.
f. 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 transportation, installation, storage, handling or use (collectively "Use") of any of the Services, (ii) Use of any of the 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.
8. 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 provide 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.
9. Third-Party Materials and Links. Certain functionality, content, products and services that we available to you on or through our 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 damaged 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.
10. 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.
11. Term, Termination, and Suspension. The term of this agreement begins when you accept it. You may terminate this Agreement at any time by deleting your Matheson account. 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.
12. 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 of 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 payment obligations; 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. Effect of Other Agreements. Where you and Matheson have a specific agreement for the sale or supply of Products or an individual Matheson business unit has issued specific terms and conditions for specific Products, that agreement or the business unit specific terms and conditions (collectively "Matheson Agreement Terms") will control to the extent that the Matheson Agreement Terms are in addition to or conflict with these Terms.
c. 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.
d. 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.
e. 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.
f. 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).
g. 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.
h. No agency; no third-party beneficiaries. These Terms not create an agency, partnership or joint venture. There are no third-party beneficiaries to these Terms.
i. 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.
j. 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.