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CommercePoint, Inc.
Terms Of Use
CommercePoint,
Inc. ("CommercePoint" or "CP") provides
its service to you subject to the following Terms Of Use
("TOU"). In addition, when using specific CommercePoint
services, you and CommercePoint will be subject to any
guidelines or rules applicable to these services which
CommercePoint may communicate to you or post from time to
time. These guidelines or rules are considered included in the
Terms Of Use.
Permission to
use all documents, including white papers, press releases,
datasheets and FAQs (collectively "Documents"), from
this server ("Server") is granted, provided that:
(1) the copyright notice reproduced below appears on all
copies of Documents along with the phrase "Reproduced by
Permission", (2) Documents from this Server be used
solely for informational, non-commercial or personal use, (3)
Documents will not be used, reproduced, copied, displayed,
performed or posted on any network computer or broadcast in
any non-print media, and (4) Documents are not modified in any
manner whatsoever. Any use of Documents for purposes other
than those listed herein is expressly prohibited by law, and
may result in severe civil and criminal penalties. Violators
will be prosecuted to the maximum extent possible.
Documents specified above do not include the design, method or
layout of the CommercePoint's website or any other websites
owned, operated, licensed or controlled by CommercePoint
(collectively "CommercePoint Websites"). Elements of
CommercePoint Websites are protected by trade dress and other
laws and may not be copied or imitated in whole or in part. No
logo, graphic, sound or image from any CommercePoint Website
may be copied or retransmitted unless expressly permitted by
CommercePoint in writing.
1.
AGREEMENT.
This
Agreement sets forth the terms and conditions under which
CommercePoint makes its electronic quotation services and
Software available to You. By clicking to select the check box
with the button that reads "I have read and I accept all of
the terms and conditions of the CommercePoint's Terms Of
Use" on the signup form, You are entering into this
Agreement with us, and indicating that You agree to be bound
by these terms and conditions. IF YOU DO NOT AGREE WITH THESE
TERMS AND CONDITIONS, CLICK THE BUTTON BELOW THAT READS
"I DO NOT ACCEPT THESE TERMS AND CONDITIONS" AND DO NOT
PROCEED WITH THE SIGNUP PROCESS.
2.
USE AND SERVICE.
(a)
Description of
Service. This Agreement covers CommercePoint's
electronic quotation services SuperQUOTE(TM).
Unless explicitly stated otherwise, any new features
that augment or enhance the current service, including any new
CommercePoint services, will be subject to the TOU.
CommercePoint makes its electronic quotation services
available at a number of different levels. These levels offer
different amounts of data storage and functionalities.
Our services enable Buyers and Sellers to transact Requests
and Quotes online. We have no control over the quality,
safety or legality for the products and/or services transacted
and we are not a guarantor of performance with respect to any
agreement between a Buyer and Seller. We do not become
involved in user-to-user dealings or disputes arising there
from. We cannot and do not try to control all the information
that is made available through our services. It is
possible that information supplied by our Subscribers/Members
may be offensive, harmful or inaccurate, and in some cases may
be mislabeled or deceptively labeled. CommercePoint does
not endorse and is not responsible for the accuracy or
reliability of any information submitted through our web site.
(b)
Equipment and
Access. You are responsible for providing all equipment
and services necessary for using the World Wide Web, such as a
computer, telecommunications equipment and access to the
Internet.
(c)
Provision of
Service. Upon acceptance of this Agreement and completion
of the registration process (including selection of a username
and password for the Service), You will have opened an account
("Account") with CommercePoint and become a
subscriber/member to the Service.
(d)
General
Practices. You acknowledge that CommercePoint may
establish general practices and limits concerning use of the
Services, including without limitation the maximum number of
days that content (including email messages) will be retained
by CommercePoint, the maximum, size of any email message and
quotation data that may be sent from or received by Your
Account, and the maximum size of any email message and
quotation data that may be sent from or received by Your
Account.
3.
USE OF SERVICE.
(a)
Passwords and
Security. CommercePoint is entitled to act on instructions
received under your username and password. You are responsible
for maintaining the confidentiality of your username and
password. You may authorize other individuals to them, but You
assume all risks associated with doing so and remain solely
responsible for all activity on your Account.
(b)
Availability
of Service. Although CommercePoint will use commercially
reasonable efforts to make the Service available without
temporary interruption (except for scheduled maintenance
downtime), COMMERCEPOINT ASSUMES NO RESPONSIBILITY FOR LOSS OR
DAMAGE RESULTED FROM ANY INTERRUPTION OR SUSPENSION OF THE
SERVICE FOR ANY REASON.
(c)
Data Storage
and Content. Although CommercePoint will use commercially
reasonable efforts to store the data that You provide under
this Agreement, COMMERCEPOINT ASSUMES NO RESPONSIBILITY FOR
LOSS OR DAMAGE TO THAT DATA.
You acknowledge that password-protected security
systems are subject to unauthorized access so that it is
possible for an unauthorized third party to access, view,
copy, modify and distribute any data in Your Account. You are
solely responsible for obtaining rights, as applicable, to the
data and files in Your Account and for ensuring that such
content is not and Your use of the Service is not illegal or
for an illegal purpose, misleading or fraudulent, libelous,
violative of the intellectual property of others, does not
include any viruses, worms or similar contaminating or
destructive aspects, is not for spamming or other use that may
disrupt the Service or networks through which the Service is
accessed. You also agree not to access or attempt to access
any Service account for which You have no access authorization
or gain unauthorized access to any of the servers or systems
controlled by CommercePoint.
(d)
Export Control.
The Software uses cryptography to protect the personal
information. Software incorporating cryptography technology is
regulated by the applicable
U.S. and
foreign law. The software uses cryptography to protect
the personal information You submit using the Service. By
accepting the terms of this Agreement, You acknowledge that
software incorporating cryptography is controlled under the
Export Administration Regulations and understand that You
cannot export or re-export the software to any other user
without receiving a license or other authorization. You also
acknowledge that the Software is not intended for use by a
government end-user, as defined under the regulations, or any
entity prohibited under U.S. law. Prohibited entities include
any end-user in a restricted country (Cuba, Iran, Iraq, Libya,
North Korea, Sudan, Syria, Yugoslavia (Serbia), and
Taliban-controlled regions of Afghanistan), and restricted
end-users on the Denied Persons List or List of Specially
Designated Nationals.
4.
SERVICE FEE.
(a)
Service
Fee. Service
Fee means fees that CommercePoint charges that includes but
not limited to Membership/Subscription Fees, Transaction Fees
and Advertising Fees. If You are registering for a
fee-based Service or upgrading your Service from a free
Service to a fee-based Service, and or if you submitted a
quote and your quote was selected by the buyer, and or if you
obtained an order as a result of utilizing CommercePoint's
services, You agree to pay all service fees.
Transaction Fees are based on the total amount of the
quote price or total value of the request whichever is
greater. The basis and amount of service fees are set
forth in the Vendor Program
Details section of the CommercePoint site.
(b)
Price Change. CommercePoint reserves the right to
change prices or institute new charges for access to or us of
Service at any time. All changes will be posted by
CommercePoint on the Website or Email to you, and you are
responsible for reviewing the pricing information and select
to enroll or decline the new fee structure. It is your
responsibility to notify to
notify CP via email if you wish to decline and terminate your
account.
(c)
Payment; Credit
Card Authorization. If you selected to pay by Credit Card
Option, you authorize CommercePoint to charge your registered
credit card on a recurring basis the Service Fee in accordance
with the Fee Schedule. You will be charge a transaction fee
when your quote is selected by the buyer even though the
delivery of the product or service may take place over time.
If any taxes, customs duties or other similar charges are
imposed on any of the fees payable hereunder, You shall be
responsible for the payment of such taxes and You authorize
CommercePoint to charge your credit card for such amounts in
addition to the Service Fees. Payments shall be made in U.S.
dollars.
(d)
Payment; Electronic
Invoice. If
you selected to pay by Electronic Invoice, you will be invoice
every month via Email on a recurring basis the Service Fee in
accordance with the Fee Schedule and or You will be invoice a
transaction fee when your quote is selected by the buyer even
though the delivery of the product or service may take place
over time. If any taxes, customs duties or other similar
charges are imposed on any of the fees payable hereunder, You
shall be responsible for the payment of such taxes. You
agree to maintain a valid Email account in order to accept
Electronic Invoice. Payments shall be made in U.S.
dollars.
(e)
Credit Card
Generally. As a condition to your right to use the
Service, You must provide us with a valid credit card number
belonging to you to verify your identity.
In the event that you cancel this credit card or it is
otherwise terminated, you must immediately provide us with a
new valid credit card number. You authorize CommercePoint,
from time to time, to undertake steps to determine whether the
credit card number you have provided to us is a valid credit
card number. These steps may include checking with third
parties, such as a credit bureau or a credit card issuer.
(f)
Interest.
If CommercePoint cannot charge your credit card or receive
payments for any of the fees set forth in this Agreement due
to an insufficient balance on your credit card or for any
other reasons attributable to You, the unpaid balance of such
fees shall be subject to a late-payment penalty charge of one
and one-half percent (1.5%) per month (or, if less, the
maximum allowable by applicable law) for the remaining
balance. You shall pay all of CommercePoint's cost and
expenses (including reasonable attorney's fees) to enforce
and preserve CommercePoint's rights under this subsection
(f).
(g)
No Offset. Service
Fees due under this Agreement may not be withheld or offset by
You for any reason.
5.
SOFTWARE AND SERVICE LICENSE.
(a)
Right to Use.
Subject to the terms and conditions of this Agreement,
CommercePoint grants You a limited, non-exclusive,
non-assignable, non-transferable, non-sub licensable license
to use the Software to access and use the Quote Service for
use on your computing and communications devices only for
electronic quotations. You agree that You will not reverse
engineer, disassemble, decompile or otherwise attempt to
derive source code from the Software.
(b)
Ownership of
Software and Services. CommercePoint shall retain sole and
exclusive ownership of all right, title and interest in and to
the Software and Services. All rights not expressly granted
hereunder are reserved by CommercePoint. You agree not to
reproduce, duplicate, copy, sell, resell or exploit for any
commercial purposes, the Software or Services or any portion
thereof, including without limitation any content other than
your personal quotation content displayed in connection with
the Services.
(c)
Trademark
Notice. " CommercePoint, Inc.",
CommercePoint logo, "CommercePoint", "CommercePoint.com",
"CommercePoint.net", "SuperQUOTE",
"SuperQUOTE Network", "SuperQUOTE.net",
and "SuperFLOW" are trademarks and/or service marks
of CommercePoint. Unless otherwise noted on the Site,
all other trademarks, service marks, and logos used in this
Site are the trademarks, service marks or logos of their
respective owners.
6.
END-USER INFORMATION.
(a)
Use and
Disclosure. CommercePoint understands that certain
information it obtains from You as a result of providing the
Service, both during registration ("Registration
Information") and through your use of the Service
("Electronic Quotation") is your personal information. We
will use the Registration Information and Quotation
Information in accordance with our Privacy
Policy as it may be modified
from time to time. Notwithstanding anything to the contrary
stated in this Agreement, the Privacy Policy, or elsewhere,
CommercePoint has no responsibility of nondisclosure or
confidentiality with respect to Registration Information that
is in or enters the public domain without breach of this
Agreement, that it receives from a third party without
restrictions on disclosure, or that CommercePoint obtains
independently.
(b)
No Breach of
Privacy. You acknowledge and agree that our collection and
use of Registration Information, and our operation and
provision of the Service and Software, as contemplated in this
Agreement, in no way constitutes an actionable breach of any
privacy or other right, whether in equity, law, contract or
otherwise and You hereby waive any and all such claims or
rights of action whether foreseen or unforeseen.
7.
TERMINATION OF SERVICE.
CommercePoint
may terminate this Agreement immediately, for any reason or no
reason in its sole discretion without liability to You or any
third party upon notice to You, which notice will be deemed to
be devoir any fees which You may have paid in advance. Upon
termination of your account, You shall remain liable for all
fees incurred or accrued by You. Upon expiration or
termination for any reason, You are no longer authorized to
use the Service or Software. When this Agreement is terminated
and/or Your Account is canceled, You will no longer have
access to data, messages, files and other material You have
stored on the Site and that material may be deleted by
CommercePoint. The following sections of this Agreement shall
survive expiration or termination of the Agreement: 5(b),
5(c),6, 9, 10, 11, and 12.
8.
MODIFICATION OF AGREEMENT.
CommercePoint
may modify this Agreement by, five (5) calendar days before
the new terms and conditions are to become effective, posting
the new terms and conditions in the same location as the
previous terms and conditions were posted and informing You of
the modification via a general notice which may be provided by
any reasonable means, including without limitation by e-mail
to the e-mail address provided by You in registering for the
Service or by general posting on this page. Once You have
signed up for the service, You may access this page at any
time at www.CommercePoint.com/terms.shtml.
If You continue to use the Service, then You will be
considered to have accepted the modifications. You agree to
check this web site for notices, and that You will be
considered to have received a notice when We have made it
available to You by posting on the web site. IF ANY
MODIFICATION IS UNACCEPTABLE TO YOU, THEN YOUR ONLY RECOURSE
IS TO TERMINATE THIS AGREEMENT AND CEASE USING THE SERVICE.
IT IS YOUR RESPONSIBILITY TO NOTIFY COMMERCEPOINT VIA EMAIL
WHEN TERMINATION IS DESIRED.
9.
WARRANTY DISCLAIMER.
(a)
You represent and warrant to CommercePoint that You
shall comply with all applicable laws, statutes, ordinances
and regulations regarding Your use of our Services and Your
access, transmittal, storage and use of data using the
Services. You are responsible for compliance with applicable
local laws, keeping in mind that use of the Service may not be
legal by certain persons or in certain countries (see, for
example, Section 3(d) Export Control).
(b)
You acknowledge that availability of the Service is
subject to many factors outside of CommercePoint's control,
including the availability of connection services to and
within the Internet and to other network functions within and
around the Internet, and to equipment that, by its nature, is
not fault-tolerant. As a result, CommercePoint cannot warrant
that the Service will be secure or be continuously available.
THE SERVICE AND THE SOFTWARE ARE PROVIDED AND LICENSED TO YOU
"AS IS." YOU USE THE SERVICE ENTIRELY AT YOUR OWN RISK. WE
HEREBY DISCLAIM ALL WARRANTIES OR CONDITIONS WITH RESPECT TO
THE SERVICE AND SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ORAL ADVICE OR
WRITTEN INFORMATION GIVEN BY COMPANY, OR ITS EMPLOYEES OR
REPRESENTATIVES WILL CREATE A WARRANTY; NOR MAY YOU RELY ON
ANY SUCH INFORMATION OR ADVICE. COMMERCEPOINT DOES NOT WARRANT
THAT THE SERVICE OR ITS USE BY YOU WILL BE UNINTERRUPTED,
ACCURATE, COMPLETE, SECURE, VIRUS FREE, ERROR FREE OR
AVAILABLE AT ANY TIME OR THAT DATA PROVIDED BY YOU TO
COMMERCEPOINT WILL NOT BE LOST OR CORRUPTED.
10.
LIMITATION OF LIABILITY AND INDEMNITIES.
(a)
IN NO EVENT SHALL COMMERCEPOINT HAVE ANY LIABILITY TO
YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY AND WHETHER IN
BASED CONTRACT, OR TORT (INCLUDING NEGLIGENCE). THE FOREGOING
LIMITATIONS SHALL APPLY EVEN IF COMMERCEPOINT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
(b)
Some jurisdictions do not allow the exclusion of
certain warranties or the limitation or exclusion of liability
for incidental, consequential or certain other damages.
Accordingly, some of the limitations of Sections 9 and 10 may
not apply to You.
(c)
CommercePoint
will be become involved in, or accept liability for disputes
among Buyers and Vendors. You agree to defend,
indemnify, and hold harmless CommercePoint, its officers,
directors, employees and agents, from and against any and all
claims, actions, demands, losses, liabilities, costs and
expenses, including without limitation, reasonable legal and
accounting fees arising out of or relating to any claims,
actions or demands brought by third parties resulting in whole
or in part from Your use of the Service, the data and content
You store, retrieve, or transmit within or to Your Account, or
Your violation of this Agreement.
11.
INTELLECTUAL PROPERTY.
(a)
When You
submit any information, text, files, links, software, or other
materials ("Content") to the Site, You represent and
warrant to us that (i) You are the rightful owner of the
Content You are submitting, (ii) You have obtained all rights
necessary to upload the Content to CommercePoint's servers
and grant the rights set forth below, (iii) neither the
Content nor the use of such Content in the Service infringes
or violates the rights of third parties or any applicable
laws. You acknowledge and agree that CommercePoint will have
no obligation to enforce, defend or otherwise protect Your
rights in uploaded Content and You release CommercePoint and
any of its affiliates (and our respective officers, directors,
agents, subsidiaries and employees) from and against any and
all claims, demands, losses, costs, expenses, liabilities and
damages (actual and consequential) of every kind and nature,
known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way related to the
Content or disputes with third parties regarding your rights
in or to the Content. If You are a California resident, You
waive California Civil Code §1542, which says: "A general
release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially
affected his settlement with the debtor." You further
acknowledge and agree that You may be held legally liable for
the Content You post on the Site (e.g., if the material You
upload infringes someone else's intellectual property rights
or defames someone or violates their rights of privacy).
12. MISCELLANEOUS.
(a) The Site and Services only
may be used for lawful purposes and in a lawful manner. You
agree to comply with all applicable laws, statutes and
regulations regarding use of the Services, including in regard
to quoting, listing and selling items. You may not register
under a false name or use an invalid or unauthorized credit
card. You may not make quotes under a false name, impersonate
any participant, or use another participant's password(s).
Such fraudulent conduct is a violation of federal and state
laws. Fraudulent conduct may be reported to law enforcement,
and CommercePoint, Inc. will cooperate to ensure that
violators are prosecuted to the fullest extent of the law.
(b)
CommercePoint and our users do not tolerate
spam. Therefore, without limiting the foregoing, you are not
licensed to add a CP user, even a user who has purchased an
item from you, to your mail list (email or physical mail)
without their express consent. In order to facilitate
transactions among all CommercePoint users, the site and
services allow you limited access other users' contact and
shipping information. As a seller and as a winning bidder you
have access to the buyer's email address and other contact
and shipping information. You
agree that, with respect to other users' personal information
that you obtain through the Site or through a CP-related
communication or facilitated transaction, CP hereby grants to
you a license to use such information only for: (a) related
communications that are not unsolicited commercial messages,
(b) any other purpose that a user expressly agrees to after
you tell them the purpose you would like to use it for. In all
cases, you must give users an opportunity to remove themselves
from your database and or mailing list and a chance to review
what information you have collected about them. In addition,
under no circumstances, except as defined in this Section, can
you disclose personal information about another user to any
third party without our consent and the consent of that user.
You agree that other users may use your personal information
to communicate with you in accordance with this Section. Note
that law enforcement personnel, VeRO program participants, and
other rights holders are given different rights with respect
to information they access.
(c)
Any controversy or claim arising out of or relating to
this Agreement, the Site or our Services shall be governed by
the laws of the State of Hawaii without reference to conflict
of laws principles and without regard to the U.N. Convention
on the International Sales of Goods. If You are a resident of
the United States, the parties agree to submit to the
jurisdiction of the courts of the State of Hawaii with respect
to any dispute, claim or controversy arising out of or
relating to the Agreement, whether based on contract, tort, or
any other legal theory. If You are not a resident of the
United States, any dispute, claim or controversy arising out
of or related to this Agreement, whether based on contract,
tort, or any other legal theory, shall be finally settled by
binding arbitration under the then-current rules of the
American Arbitration Association by a panel of arbitrators
appointed in accordance with those rules. The arbitration
shall be held in Honolulu, Hawaii, USA. The award by the
arbitrators shall be deemed to be made in the State of Hawaii,
USA. Judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. If any
provision of this Agreement is held by an arbitrator or
arbitrators of competent jurisdiction to be contrary to law,
then such provision(s) shall be construed as nearly as
possible to reflect the intentions of the parties with the
other provisions remaining in full force and effect.
(c)
You may not assign this Agreement or any of your rights
or obligations without the prior written consent of
CommercePoint, and any such attempted assignment will be void.
Subject to the above, this Agreement will be binding upon the
parties' respective successors and permitted assigns.
CommercePoint will not be liable in any amount for failure to
perform any obligation under this Agreement if such failure is
caused by Internet outages, earthquakes, communications
outages, fire, flood, war, an act of God or the occurrence of
any other any unforeseen contingency beyond the reasonable
control of CommercePoint. CommercePoint's failure to enforce
any provision of this Agreement will not be construed as a
waiver of any provision or right. No amendment or modification
hereof will be valid or binding upon either party unless made
in writing and signed by the authorized representatives of
both parties. In the event that a portion of this Agreement is
held unenforceable, the unenforceable portion will be
construed in accordance with applicable law as nearly as
possible to reflect the original intentions of the parties,
and the remainder of the provisions will remain in full force
and effect. Waiver by either party of a breach of any
provision of this Agreement or the failure by either party to
exercise any right hereunder shall not operate or be construed
as a waiver of any subsequent breach of that right or as a
waiver of any other right. THIS
AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN YOU AND
COMMERCEPOINT WITH RESPECT TO THE SERVICES AND SOFTWARE AND
SUPERSEDES ALL PRIOR AGREEMENTS BETWEEN YOU AND COMMERCEPOINT,
INC.
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