If, after accessing this Site and reviewing these Terms on behalf of or in the service of an organization, corporation, limited liability company, and/or any other legal entity (“Company”), and by manually clicking your assent hereto, you are agreeing to these Terms on behalf of both you and that Company. You represent and warrant that you are duly authorized and have legal capacity to create binding and enforceable legal obligations that apply to your Company and that by accessing the provisions and/or Services on this Site, and/or purchasing the Services made available on this Site, you are agreeing to the Terms and are creating legal obligations for you and your Company. As used herein,‘you’ and ‘your’ refers to both your Company and you as an agent of that Company.
These Terms constitute a legal agreement between you and Railinc. By manually clicking your assent to these Terms and thereafter accessing this Site and/or, purchasing any Services, you acknowledge you have read, understood, and agree to be bound by the Terms, including all terms and conditions stated in or incorporated by reference herein. If you do not agree with these Terms in full, please do not use this Site. You agree that Railinc may modify the Terms from time to time without notice. When modifications are made, we will make the revised version available on this Site, which will indicate the date on which revisions were last made. You should revisit these Terms on a regular basis as revised versions will be binding on you. Any such modification will be effective upon our posting of the new Terms. You understand and agree that your continued access to and use of the Site, including the purchase of any Services, after any posted modification to the Terms, indicate your acceptance of any such modification. If you have questions or wish to report a violation of these Terms, please contact email@example.com
These Terms were last updated on March 28, 2023.
Disclaimer of Warranties and Liability
By using the Site, including any third-party websites, applets, software, and content contained therein, you agree to the following: (1) USE OF THE RAILINC SITE AND CONTENT ARE ENTIRELY AT YOUR OWN RISK; (2) THE RAILINC SITE AND CONTENT ARE PROVIDED “AS IS”; (3) RAILINC DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO (A) ANY WARRANTIES OF THE AVAILABILITY, ACCURACY, TIMELINESS, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, PRODUCTS, OR SERVICES, (B) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (C) WARRANTIES THAT THE SITE SHALL RUN BUG-FREE OR ERROR-FREE OR THAT ANY ERRORS OR BUGS WILL BE FIXED, (D) WARRANTIES THAT THE SITE SHALL RUN WITHOUT ANY INTERRUPTION OR DELAY, (E) WARRANTIES THAT THE SITE WILL BE COMPLETELY SECURE, AND (F) ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. IT IS UNDERSTOOD THAT THE PROVISION OF CONTENT OR SERVICES IS DEPENDENT UPON THE CONTINUED AVAILABILITY OF COMMUNICATIONS FACILITIES TO RAILINC AND THAT RAILINC DOES NOT WARRANT SUCH AVAILABILITY. ADDITIONALLY, RAILINC MAKES NO WARRANTIES REGARDING RAILINC CONTENTS AND SERVICES THAT HAVE BEEN MODIFIED OR ALTERED BY ANY PARTY OTHER THAN RAILINC, OR ANY PROBLEMS CAUSED BY COMPUTER HARDWARE OR OPERATING SYSTEMS. IN NO EVENT SHALL RAILINC, NOR ANY OF ITS EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, ASSIGNS, PARENTS, AFFILIATES, OR CONTENT OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO USE OF THE SITE AND/OR ITS CONTENTS, OR THE INABILITY TO GAIN ACCESS TO OR USE THE SITE AND/OR ANY SERVICE THEREIN, EVEN IF RAILINC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Furthermore, Railinc’s liability arising out of your use of the Site, Services, or content, whether based on negligence, breach of contract, warranty or any other legal theory, shall in no event exceed an amount equivalent to the proportionate charge to you for the specific period of Services during which such failure and/or breach allegedly occurred, and you hereby release Railinc from any further liability arising out of your use of the Site, Services, or content. In no event shall Railinc be liable for any lost profits, revenue or business opportunities, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, or for any claim or demand against you by any other party. The remedies specified in herein are exclusive.
Data, including without limitation rail event reports, shipment tracking and tracing information may be provided by individual railroads, the Association of American Railroads, various government entities, and/or other third-parties. Neither Railinc nor any of its above-referenced data or service providers guarantee the accuracy, completeness, or timeliness of information on this Site, and you release them from any liability for any errors or delays in content or for any actions taken by you in reliance on the Service attributable to data they may have provided.
You agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by any Railinc registration form, and (b) to maintain and update this information to keep it true, accurate, current, and complete at all times. If any information you provide is untrue, inaccurate, not current, or incomplete, Railinc reserves the right to terminate your account and prohibit your use of the Service.
Any Services you purchase or otherwise obtain from Railinc – whether in electronic, printed, or video format – is only for your use. You agree not to resell, transfer, give use of or access to the Services (or any portion thereof, including the unauthorized reselling or transferring of access to the Services) to any third-party.
The Services may not be copied or distributed to any other individual or entity for any Commercial Purpose or other unauthorized purpose without prior written authorization by Railinc. "Commercial Purpose" is defined as reselling or redistribution, including but not limited to using Services to enhance the value of any shipment monitoring or logistics service sold to third parties.
In addition to these Terms, you may also be required to sign a separate agreement which governs the use of such Services. In such an event, the terms of that separate signed agreement, to the extent that there are any inconsistencies with these Terms, shall govern. Certain manuals or videos available on the Railinc Site may contain instructional materials. You acknowledge that references to specific strategies, cases, or resources are to be regarded as illustrative only.
You acknowledge and agree that you must: (a) provide for your own internet access and pay any fees associated with such access and (b) provide all equipment necessary for you to make such internet connection, including, but not limited to a computer and modem or other access device.
Security and Privacy Statement
Railinc takes reasonable and appropriate measures, including encryption, to ensure that your personal information is disclosed only to those individuals or entities you identify. However, the Internet is an open system and Railinc cannot and does not guarantee that the personal information you have entered will not be intercepted by others and decrypted, and Railinc shall have no liability in such event.
In some instances, the Services allow users to post, view, and send messages. In those instances, you may not:
- Restrict or inhibit any other user from using the Service;
- Post or transmit any unlawful, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, or otherwise objectionable information of any kind, including, without limitation, any transmissions constituting or encouraging conduct that would amount to a criminal offense, give rise to civil liability, or otherwise violate any local, state, provincial, national, or foreign law, including without limitation U.S. export control laws and regulations;
- Post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by Railinc) or engage in spamming or flooding;
- Post or transmit any information or software that is or contains a virus, trojan horse, worm, or other harmful component; or
- Post, publish, transmit, reproduce, distribute, or exploit any information, software, or other material obtained through the Service itself or its derivative works for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material).
You acknowledge and agree Railinc has the right to monitor the Services electronically from time to time and to disclose any information as necessary or appropriate to comply with any law, regulation, or other governmental request, to offer its Services and operate them properly, or to protect itself or its subscribers. Railinc reserves the right to remove or refuse to post any information or materials, in Railinc's sole discretion.
Unless otherwise indicated for a particular communication, any communications or material of any kind that you e-mail, post, or otherwise transmit through this Site, which are visible to third parties, including data, questions, comments, or suggestions (collectively, "Communications") will be treated as non-confidential and nonproprietary.
By submitting Communications to Railinc or the Site, you grant or warrant that any third-party owner of the material has granted: (i) Railinc an irrevocable, royalty-free, worldwide, non-exclusive right to use, display, reproduce, modify, and distribute the material; and (ii) users of the Site the right to download to one computer or print one copy of the material for personal and non-commercial use so long as those users do not remove or modify the trademark, copyright, service mark, or other proprietary notices. In addition, Railinc is free to use any ideas, concepts, know-how, or techniques contained in your Communications for any purpose, including but not limited to developing and marketing products using such information, without compensation to you. If you are unable to provide such grant or warranty, you should not make any Communications through the Site or Services.
You agree to defend, indemnify, and hold Railinc, its parent and affiliates, and their employees, agents, and officers (“Indemnities”) harmless from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) resulting from third-party claims arising in any way from your use of the Site or any Service or the placement or transmission of any message, information, software, or other materials through the Site or Service by you or users of your account or related to any violation of these Terms by you or users of your account, regardless of any negligence of any Indemnities.
Railinc is the owner and/or authorized user of any trademark, registered trademark, and/or service mark or the copyright owner or licensee of the Services and content on this Site, including, but not limited to any screens appearing on the Site. You may not download and/or save a copy of any of the screens for any purpose except for your authorized business use or records or as otherwise provided in these Terms. If you make any use of this Site other than as expressly provided in these Terms, you may violate copyright and other laws of the several states, the United States, or other countries and may be subject to penalties. Railinc does not grant any license or other authorization to any user of its registered trademarks, service marks, other copyrightable material, or other intellectual property by placing them on this Site.
Any software that is made available through the Site ("Software") is the copyrighted work of Railinc and/or its third-party suppliers and is also considered a Service herein. In addition to these Terms, you may also be required to sign, electronically or otherwise, a separate agreement which governs the use of such Software. In such an event, the terms of that separate signed agreement, to the extent that they are any inconsistencies with these Terms, shall govern.
Certain manuals or videos on the Site may contain instructional materials. Represented activities could present a danger to individuals if the instructions are not carefully followed. Also, references to specific strategies, cases, or resources are to be regarded as illustrative only.
Railinc reserves the right to change any information on this Site, including, but not limited to revising and/or deleting information without prior notice. The content presented at this Site may vary depending upon your browser limitations.
If you believe your copyright has been infringed at by any content on the Site, or by any Railinc Services, please provide Railinc, at firstname.lastname@example.org, with a document signed by a duly authorized representative from in your Company containing the following:
- Identification of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at the site;
- Identification of the material that you claim is infringing and needs to be removed, including a description of where it is located so that we can locate it;
- Your address, telephone number, and, if available, e-mail address, so that we may contact you about your complaint;
- A signed statement that the above information is accurate; that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agents, or the law; and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf in this situation.
(a) Dispute Resolution Procedures. Should a dispute (“Dispute”) develop between you and Railinc concerning these Terms or your use of any of Railinc’s Services offered on this Site, and should you wish to raise such Dispute with Railinc, you agree that you shall first notify Railinc of such dispute by emailing email@example.com. Thereafter, the Parties shall make a good faith effort to negotiate and resolve the Dispute between each Party’s representative(s) with decision-making authority. Negotiations shall commence upon the provision of electronic notice from one Party to the other Party identifying the Dispute and requesting the opportunity to negotiate a resolution. If, after twenty-one (21) calendar days following the commencement of negotiations, the Parties have been unable to resolve the Dispute, the Parties shall submit the Dispute to mediation in accordance with sub-section (b) below.
(b) Mediation. Subject to sub-section (a), above, the Parties shall submit the Dispute to confidential mediation to be administered by the American Arbitration Association under its Commercial Mediation Rules and take place in Wake County, North Carolina. The Parties shall, within fourteen (14) calendar days of ending the negotiations referenced in sub-section (a) above, provide a joint, written request for mediation to the mediation service which shall include a sufficient description of the Dispute and relief requested by each. Each Party shall cooperate with the mediation service in all reasonable respects and shall participate in good faith. Mediation fees and expenses shall be borne equally by the Parties.
All communications related to negotiations or mediation hereunder, whether oral or written, are confidential and will be treated by the Parties as compromise & settlement negotiations for the purposes of Federal Rule of Evidence 408 as well as any applicable, corresponding state rules. Notwithstanding the foregoing, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiations and/or mediation.
If the Dispute has not been resolved after ninety (90) calendar days following the commencement of a mediation hereunder either Party may withdraw from the mediation and seek resolution of the Dispute in an appropriate court of law located in Wake County, North Carolina.
(c) Prevailing Party. The prevailing Party in any legal proceeding relating to or arising from this Agreement shall be entitled to its reasonable attorney's fees, expenses, and court costs in investigating, prosecuting, or defending such action or proceeding (including any appeals), in addition to any other relief which may be awarded. Prevailing Party shall be defined (1) as a claimant that is awarded net 51 percent of its affirmative claim, after any offsets for claims or counterclaims by the other Party, and (2) as a defendant/respondent against whom a net award of 50 percent or less of a claimant’s claim is granted. In claims for money damages, the total amount of recoverable attorney’s fees and costs shall not exceed the net monetary award of the prevailing Party.
Governing Law/Jurisdiction and Venue
These Terms and the relationship between you and Railinc shall be governed by, and construed in accordance with, the laws of the State of North Carolina without regard to its conflicts of law principles. The Parties hereby consent to venue and jurisdiction for any dispute and/or action arising under, from or in relation to these Terms in a permissible federal or state court exclusively in Wake County, North Carolina. No action, regardless of form, arising under, from or in relation to these Terms may be brought by either Party more than one (1) year after the events giving rise to the Dispute. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
Links to External Websites
Clicking on certain links within this Site may take you to external websites. You acknowledge and agree that Railinc does not guarantee and has no responsibility for the accuracy or availability of information provided by linked sites. Links to external websites do not constitute an endorsement by Railinc of the sponsors of such sites, content, products, advertising, or other materials presented on such sites. You acknowledge and agree that Railinc shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on such external sites.
Failure to Comply With The Terms; Termination
This Site is solely intended for the use by Railinc's customers. You acknowledge and agree that Railinc may terminate your password and/or account or deny you access to all or part of the Services without prior notice if you engage in any conduct or activity that Railinc, in its sole discretion, determines violates any of the Terms, Railinc’s rights, or is otherwise inappropriate for continued access.
You acknowledge and agree that Railinc, in its sole discretion, may deny you access available through the Site to any materials stored on the Internet or to any third-party services, merchandise, or information on the Internet.
Except for the obligation to make payments, neither Railinc nor you will be liable for any failure or delay in the performance by one Party of any of its obligations herein because of any cause beyond the reasonable control of that Party’s failing, or delaying, to perform its obligations hereunder, including but not limited to fire, flood, explosion, earthquake, terrorist acts, strike, labor shortage or dispute, riot, sabotage, war, insurrection, embargo, government act or requirement, civil or military authority, act of God, pandemic, endemic, failure of third-party service providers or the Internet, or any other event, occurrence, or condition that is not caused, in whole or in part, by the Party failing, or delaying, to perform, and that is beyond the reasonable control of such Party (“Force Majeure Event), provided, however, that the delaying Party: (i) gives the other Party notice of such Force Majeure Event within ten (10) calendar days of its occurrence and (ii) uses reasonable commercial efforts to promptly correct such failure or delay in its performance. Both Railinc and you also shall take all reasonable action to minimize the effects of any such Force Majeure Event, occurrence, or condition. If Railinc is unable to provide the Services for a period of sixty (60) consecutive days because of a continuing Force Majeure Event, you may cancel any Services hereunder without liability, beyond payment for the Services already performed or provided by Railinc prior to the Force Majeure Event.
If you wish to purchase any Service, you may be asked to supply certain information, including credit card or other payment information. You agree that all information you provide through the Site for purposes of making purchases will be accurate, complete, and current. You agree to pay all charges incurred by users of your account at the prices in effect when such charges are incurred.
Unless otherwise agreed by the Parties, these Terms are not superseded or amended by the terms and conditions of any payment portal or vendor, or similar electronic portal entered into by the Parties. Railinc does not agree to enter into any such electronic payment portal and payment of Railinc invoices is not contingent upon agreeing to the use of any electronic payment portal.
You are required to make payment within thirty (30) calendar days from the date of an invoice from Railinc (Due Date). All purchases are non-refundable. You shall pay a late payment charge computed at the rate of 1.5 percent (1.5%) per month, or the maximum late payment charge permitted by law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof), that such payment is in not made by the Due Date.
However, in the event you dispute an invoice, including the price charged, in whole or in part, you must notify Railinc in writing of the nature of the dispute with evidence verifying that the invoice is incorrect within ninety (90) calendar days of the invoice date. You are required to make payment on any undisputed portion of the invoice in accordance with the payment terms herein. Railinc shall investigate your complaint and, if deemed valid, will credit the excessive amount within thirty (30) days of the notice. Claims for billing discrepancies for which notice is provided more than ninety (90) days from the date of invoice are considered an accepted variant and therefore waived.
All Railinc fees and invoiced amounts for Railinc Services purchased in connection with this Site do not include applicable taxes. Where state law so requires, Railinc will assess sales tax for accounts in states where Railinc is required to collect and remit sales tax to the state. When any applicable taxes are required by state law on any transaction concerning Railinc Services purchased in connection with this Site and such taxes are not reflected on Railinc’s invoice to you, it is your sole responsibility to pay any such applicable tax, except for any taxes on Railinc’s net income.
Your use of the Sites and the information provided under these Terms do not constitute a joint venture, partnership, or agency relationship between you and Railinc.
Recognizing the global nature of the Internet, you agree that your use of the Site and/or the Services will comply with all applicable laws and regulations, including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. You may not transfer or provide the Services to anyone on the U.S. government exclusion lists at http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern. You represent and warrant that you are not on the exclusion lists or under the control of or an agent for anyone on those lists.
Headings of these Terms are for convenience only and shall have no legal meaning or effect.
These Terms contains the entire agreement between you and Railinc with regard to your use of this Site and/or the Services. Unless otherwise agreed by the Parties, the language of the Terms, and not the conduct between you and Railinc or any trade practice, shall control the interpretation of the Terms. No transmission by you to Railinc can serve to modify or amend in any fashion any provision of these Terms. Should any part of these Terms be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall remain in full force and effect, and any provision held to be invalid or unenforceable shall be reconstituted in a way to render them valid and enforceable while best meeting the intent of the parties. The waiver by Railinc of any provision herein shall not constitute either an ongoing waiver of a requirement of these Terms or a waiver of any other breach of this agreement.