Last revised June 25, 2024

Language.  This Agreement was written originally in the English language. The Agreement has been provided and executed in both English and Spanish for the convenience of the parties.  In the event of any discrepancy between the texts of the Agreement in English and Spanish, the text in English shall prevail. 

The website located at www.messer.com, (the “Website”) is published, owned, and operated by Messer Construction Co., its affiliates and related entities (“Messer,” “we,” “us,” and “our”).   These Terms of Use (the “Terms”) govern your access to and use of the Website.

By accessing, browsing, submitting information to and/or using the Website (“the Services”), you agree and acknowledge on your own behalf (referred to throughout the Terms as “you”) that you have read, understand and agree to be bound by these Terms and to comply with all applicable laws including, without limitation, all federal, state and local tax and tariff laws, regulations, and/or directives. If you do not agree to the Terms, please do not use the Website.

THESE TERMS INCLUDE AN ARBITRATION CLAUSE AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT.

Purpose of the Website.
The Website is provided solely for informational purposes and the purposes of enabling communication between you and Messer. The information provided is intended to be general in nature and does not necessarily address all the terms, exclusions, and conditions applicable to our Services.

We do not warrant the accuracy, completeness, or usefulness of this information at any particular time.  Any reliance you place on such information is strictly at your own risk. Messer disclaims all liability and responsibility arising from any reliance placed on such content by you or any other visitor to our Website, or by anyone who may be informed of any of its contents. Any information you provide or that is collected by Messer through the Website shall be handled in accordance with the Website’s Privacy Policy, which is hereby incorporated by reference.

Use of the Website.
Messer grants you a non-exclusive right to access and use the Website and the data, material, content or information herein (collectively, the “Content”) solely for your personal use. You agree to use the Website only for lawful purposes, comply with all rules governing any transactions on and through the Website, and comply with applicable laws.

Prohibited Uses.  
You agree that you will not:

• Use the Website in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of it;
• Attempt to gain unauthorized access to any Website account, computer systems or networks associated with Messer or the Website;
• Obtain or attempt to obtain any materials or information through the Website by any means not intentionally made available or provided by Messer;
• Use any robot, spider, or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website;
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;
• Attack the Website via a denial-of-service attack or a distributed denial-of-service attack; or
• Impersonate or attempt to impersonate Messer, a Messer employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).

Third Party Sites.  
The Website may contain links to websites controlled or operated by persons and companies other than Messer (“Linked Sites”). Linked Sites are not under the control of Messer, and Messer is not responsible or liable for the contents of any Linked Site, including without limitation any link contained on a Linked Site, or any changes or updates to a Linked Site. Messer is not responsible if the Linked Site is not working correctly or for any viruses, malware, or other harms resulting from your use of a Linked Site. Messer is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Messer of the site or any association with its operators. You are responsible for viewing and abiding by the privacy policies and terms of use posted on the Linked Sites. Messer hereby disclaims any representation, warranty, or guaranty regarding the Linked Sites, whether expressed, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, or legality of the Linked Sites, and you agree to indemnify and hold Messer harmless for any direct, indirect, punitive, incidental, special, or consequential damages, or any damages whatsoever including, without limitation, damages for loss of use, arising out of or in any way connected with your use or performance of the Linked Sites. Messer encourages users to be aware when leaving the Messer Website and to read the terms of use and privacy statements of sites that collect personally identifiable information. You are solely responsible for any dealings with third parties who support Messer or are identified in the Website, including any delivery of and payment for goods and services.

Intellectual Property Notices.  
The Website and Content and its entire contents, features, and functionality are protected by copyrights, trademarks, or are subject to other proprietary rights. Messer and/or its affiliates or licensors own all right, title and interest in and to all content (and all compilations thereof) that appears on or is available through this Website and any other website or social media account owned, operated, or controlled by Messer, including without limitation all text, music, sounds, photographs, videos, images, illustrations, icons, graphics, headers, typefaces, data, inventory information, and databases. Accordingly, you are not permitted to use the Website or Content in any manner, except as expressly permitted by Messer in these Terms. The Website or Content may not be copied, reproduced, modified, published, uploaded, downloaded, stored, posted, transmitted, performed, made into derivatives, publicly displayed, or distributed in any way, whether in whole or in part, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives without the express written consent of Messer or applicable owner.

Copyright. You should assume that everything you see or read on Messer’s Website is protected under U.S. copyright law or other applicable proprietary laws unless otherwise noted and may not be used without the written permission of Messer. Messer neither warrants nor represents that your use of materials displayed on Messer’s Website will not infringe the rights of third parties. The “look and feel” of Messer’s Website, content, images, photographs, illustrations, or design features displayed on Messer’s Website is either property of, or used under license or with permission by, Messer. The use of these materials by you, or anyone else authorized by you, is prohibited unless specifically permitted by these Terms or specific permission provided elsewhere on Messer’s Website. Any unauthorized use of any content, images, photographs, illustrations, or design features may violate copyright laws, trademark laws, the laws of privacy and publicity, proprietary, and communications regulations and statutes.

Trademark.  “MESSER,” “FRANK MESSER & SONS CONSTRUCTION CO.,” “M (stylized logo),” “MESSER WE ARE BUILDING,” “WE ARE BUILDING,”, “SAFETY 4 SITE,” “4SAFETY4SITE (logo),” and all related names, logos, product and service names, designs, and slogans are registered or unregistered common law trademarks that are owned by Messer or its affiliates or licensors.  All other names, logos, product and service names, designs, and slogans on Messer’s Website are the trademarks of their respective owners. Nothing contained on Messer’s Website should be construed as granting or conveying, by implication, or otherwise, any license or right to use any trademark displayed on Messer’s Website without the written permission of Messer or such third party that may own a trademark displayed on Messer’s Website. Your unauthorized use or misuse of Messer’s trademark(s) displayed on Messer’s Website, or any other Content on Messer’s Website, except as provided herein, is strictly prohibited.

Your Content.  Any Content you create or own or to which you have a license and use on the Website is Your Content. In sharing Your Content on the Website, you warrant and represent you have the legal right to use Your Content and grant the Company an irrevocable, royalty-free, fully paid up, worldwide, non-exclusive license to use Your Content in providing any Website services as described in these Terms and in any posted policies on the Website. The Website services may also provide you with features like photo thumbnails, previews, easy sorting, editing, sharing, creating templates, and searching. These and other features may require our Company systems to access, store, and scan Your Content. You may also be able to share Your Content with others, so please think carefully about what you share. Failure to adhere to the terms and conditions contained herein may result in the removal or deletion of Your Content from Messer’s Website, to be determined at Messer’s sole discretion.

You acknowledge and agree that you are solely responsible for complying with the applicable restrictions on use of all Content, copyrighted materials and trademarks that you see, hear, and use on the Website. You understand that any unauthorized use of such intellectual property would result in irreparable injury for which money damages would be inadequate. You further acknowledge that, in the event of any such unauthorized use, Messer or the applicable intellectual property owner will have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use.

Questions regarding the use of any intellectual property provided on the Website should be directed to marketing@messer.com.

Website Visitors Outside of the United States.
Messer, and all of its legal entities are based in the United States, with its headquarters in Ohio.   We make no claims that the Website or any of its contents are accessible or appropriate in every jurisdiction. Access to the Website may not be legal by certain persons or in certain countries.

Disclaimer.
EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED IN THESE TERMS, ALL INFORMATION OR SERVICES PROVIDED BY MESSER TO YOU VIA THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. MESSER AND ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, MESSER AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE WEBSITE OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE WEBSITE. YOU SPECIFICALLY ACKNOWLEDGE THAT MESSER AND ITS THIRD PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE WEBSITE AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NEITHER MESSER NOR ANY OF ITS THIRD-PARTY LICENSORS REPRESENT, WARRANT OR COVENANT THAT THE WEBSITE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. MESSER FURTHER MAKES NO WARRANTY THAT THE WEBSITE WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT MESSER, ITS AFFILIATES AND THEIR THIRD PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE WEBSITE OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST MESSER FOR DISSATISFACTION WITH THE WEBSITE OR THE CONTENT IS TO CEASE YOUR USE OF THE WEBSITE AND/OR THE CONTENT. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION.  WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.

Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL MESSER OR ANY OF ITS LEGAL ENTITIES OR THIRD PARTY LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF INFORMATION OR PROGRAMS ON YOUR DATA HANDLING SYSTEM, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THE WEBSITE, OR THE CONTENT, DATA, CONTENT OR INFORMATION ACCESSED VIA THE WEBSITE OR ANY HYPERLINKED WEBSITE, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE WEBSITE, REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEN, UNFORESEEN OR FORESEEABLE, EVEN IF MESSER OR ITS THIRD PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY ACCESSING THE WEBSITE SUBJECT TO THESE TERMS OF USE, YOU UNDERSTAND THAT YOU ARE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE, COUNTRY, OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST MATERIALLY AFFECT HIS OR HER SETTLEMENT WITH THE DEBTOR.

SOME  STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, THEY WILL BE LIMITED TO THE SHORTEST DURATION PERMITTED BY LAW.  YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.  IN ANY CASE, MESSER’S AND ITS LICENSORS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS WILL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).

Indemnity.
You agree to defend, indemnify and hold harmless Messer and its affiliates, licensors and service providers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Website, including, but not limited to, any use or misuse of the Website Content, Services, or products other than as expressly authorized in these Terms or your use of any information obtained from the Website. You agree that in the event any claim, allegation, suit or similar proceeding is commenced by a third party against any Messer Indemnitees, that you will pay for the defense thereof, including reasonable attorneys’ fees and costs. Notwithstanding any of the foregoing, Messer reserves the right to assume the exclusive defense and control of any proceeding that relates to Messer, the Website, or any aspects thereof, whether or not subject to indemnification hereunder, and in such case you will cooperate fully with Messer in our defense thereof.

Termination and Restriction of Access.
In its sole discretion, Messer may terminate or suspend your access to the Website for breach of these Terms or for any reason, with or without cause. Messer shall not be liable for any losses or damages arising from any such termination of service.

Agreement to Arbitrate and Waiver of Class Action Claims.
If a dispute arises, our goal is to provide you a neutral and cost-effective means to resolve it quickly. Most disputes can be resolved informally. Before filing a claim against us, you agree to try to resolve the dispute by contacting us via email at marketing@messer.com. Before we file a claim against you, we agree to contact you at the email address you have provided to us, or if you have not provided an email to us then at another communications method. If the dispute is not resolved within 60 days of notice, either you or we may bring a formal proceeding pursuant to the following procedures:

A. GENERAL. YOU AGREE THAT YOU AND MESSER WILL RESOLVE THROUGH BINDING ARBITRATION ANY DISPUTE, CLAIM OR CONTROVERSY BETWEEN US ARISING OUT OF OR RELATING IN ANY WAY TO MESSER’S WEBSITES OR YOUR USE THEREOF, INCLUDING THESE TERMS (collectively, “ARBITRAL CLAIMS”), with a few exceptions set forth below. The arbitrator, and not any court, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement to Arbitrate, including any claim that all or any part of this Agreement to Arbitrate is void or voidable, or whether a claim is subject to arbitration.

ARBITRATION IS DIFFERENT FROM COURT. THE RULES, INCLUDING DISCOVERY, ARE DIFFERENT AND NO JUDGE OR JURY IS PRESENT AT AN ARBITRATION. IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION, AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED. THE AWARD IS FINAL AND BINDING AND SUBJECT ONLY TO LIMITED REVIEW BY A COURT. YOU UNDERSTAND THAT ABSENT THIS MANDATORY PROVISION, YOU MAY HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

B. ARBITRATION SERVICES AND RULES. The American Arbitration Association (“AAA”) will administer the arbitration using the AAA procedures and rules in effect on the date the Arbitration is filed (“AAA Rules”). In the event the AAA Rules are inconsistent with this Agreement to Arbitrate, this Agreement will prevail. AAA is independent from us, and you may obtain copies of the current AAA Rules, and other related materials, including forms and instructions for initiating arbitration, by contacting AAA at 150 N Michigan Ave #3050, Chicago, IL 60601 or http://adr.org. Unless otherwise prohibited by applicable law, and except for New Jersey residents, any claim must be filed within two (2) years from the date on which such claim arose or accrued.

C. LOCATION OF ARBITRATION. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules, and any in-person hearing will be held in Cincinnati, OH, or any other location you and we mutually agree to.

D. EXCEPTIONS TO ARBITRAL CLAIMS. Either you or we may bring claims to enforce intellectual property rights, or in response to any allegations or charges of criminal activity, without first engaging in arbitration or the informal dispute resolution described in this Section.

E. CLASS ACTION WAIVER. YOU AND MESSER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE WITH US THAT NEITHER YOU NOR WE WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; THAT NEITHER YOU NOR WE WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE; AND BOTH PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.

F. PAGA WAIVER. TO THE EXTENT PERMISSIBLE BY LAW, THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD OR ARBITRATED ON A GROUP BASIS OR IN ANY ACTION IN WHICH A PARTY SEEKS TO REPRESENT OTHER INDIVIDUAL(S) IN A PRIVATE ATTORNEY GENERAL ACTION (“PAGA WAIVER”). PAGA CLAIMS MAY ONLY BE ARBITRATED ON AN INDIVIDUAL BASIS. If any court or arbitrator determines that the PAGA Waiver set forth in this paragraph is void or unenforceable, then this clause shall be deemed null and void in its entirety, but the remaining clauses herein shall survive unless a court or arbitrator determines otherwise.

G. NO RIGHT TO JURY TRIAL. YOU AND MESSER ALSO HEREBY WAIVE THE RIGHT TO A JURY TRIAL EVEN IF THIS AGREEMENT TO ARBITRATE IS HELD NOT TO APPLY. YOU EXPRESSLY WAIVE YOUR RIGHT TO A JURY TRIAL IN THE EVENT THAT EITHER PARTY SELECTS ARBITRATION TO RESOLVE THE DISPUTE UNDER THIS AGREEMENT.

H. 30 DAY OPT OUT RIGHT. You have the right to opt-out and not be bound by the arbitration and the class action waiver provisions set forth herein by sending written notice of your decision to opt-out by email to marketing@messer.com. For new users, the notice must be sent within 30 days of registering with Messer’s Websites, and for existing users, the notice must be sent within 30 days of the effective date of this policy. If you do not opt-out, you shall be bound to the terms in this Section. If you choose to opt-out, we will also not be bound.

Limitation on Time to File Claims.
Any cause of action or claim you may have arising out of or relating to these Terms or the Website must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.

Governing Law & Jurisdiction.
These Terms are governed by the laws of the State of Ohio, U.S.A.  You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in Cincinnati, Ohio U.S.A. in all disputes arising out of or relating to the use of the Website. The parties have required that this agreement and all documents related to this agreement be drawn up in English. As to any ambiguities resulting from translation from English to any other language, provisions in the English language shall be controlling in all respects.

Changes to these Terms.
Messer may update or change these Terms from time to time in order to reflect changes in any offered Services, changes in the law, or for other reasons as deemed necessary by Messer. The effective date of any Terms will be reflected in the “Last Revised” entry at the top of these Terms.  Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes.

General.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Messer as a result of these Terms or use of the Website.  You may not assign these Terms without the prior written consent of Messer in all instances.  Messer may assign these Terms, in whole or in part, at any time.  Messer’s performance of this agreement is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of Messer’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Website or information provided to or gathered by Messer with respect to such use.

If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in effect.

These Terms, including the Privacy Policy and all other documents expressly incorporated herein by reference, constitute the entire agreement between you and Messer with respect to the Website, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and Messer. A printed version of these Terms and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Company Contact Information.
Questions can be directed to Messer at:
Messer Construction Co.
643 W. Court Street
Cincinnati, OH 45203
marketing@messer.com