PowerChain Solutions Terms of Use

POWERCHAIN SOLUTIONS USER AGREEMENT

1. Background. PowerChain Solutions has developed a proprietary business-to-business eMarketplace, which PowerChain Solutions uses to assist its clients in procuring certain goods and services. PowerChain Solutions is an Internet based product which allows PowerChain Solutions' buyers and suppliers of goods and services to exchange information. Subject to the terms and conditions of this Agreement the parties desire the User to have access to PowerChain Solutions.

2. Limited Use License. Subject to the terms and conditions of this Agreement, PowerChain Solutions grants to User a limited use, non-exclusive non-transferable, non-sublicensable license to access the portions of PowerChain Solutions for which PowerChain Solutions issues User an active password, solely for the purpose of procuring and/or selling goods or services through PowerChain Solutions. User shall be responsible for providing, at its expense, all communications lines, hardware, software, services and other materials and technology necessary for it to access PowerChain Solutions. PowerChain Solutions shall have no responsibility for any failure of such items or any failure or limitation of the Internet or other computer hardware or software. User may not download, copy or otherwise use PowerChain Solutions or any information available in PowerChain Solutions, in whole or part, except as expressly permitted by this Agreement. User may not modify PowerChain Solutions in any manner. User may not distribute, sublicense, assign or transfer any rights to use PowerChain Solutions, either in whole or part, to any third party. User agrees that the source code relating to PowerChain Solutions is confidential and proprietary to PowerChain Solutions and/or its licensors. Accordingly, User may not decompile, disassemble, reverse engineer or otherwise manipulate PowerChain Solutions or other software so as to derive such source code.

3. Passwords. PowerChain Solutions will provide User with a participant id and one or more usernames and passwords to enable User to access certain portions of PowerChain Solutions designated by PowerChain Solutions. User shall be responsible for the confidentiality and use of such user IDs and passwords. User shall immediately notify PowerChain Solutions if it becomes aware of any loss or theft of a password or any unauthorized use of a password, username, or of PowerChain Solutions. User shall not use any password or other means to attempt to access portions of PowerChain Solutions for which PowerChain Solutions has not issued User a password. PowerChain Solutions may de-activate any password at any time.

4.0 Confidentiality.

4.1 DEFINITION. "CONFIDENTIAL INFORMATION" SHALL MEAN ANY CONFIDENTIAL OR OTHER PROPRIETARY INFORMATION DISCLOSED BY PowerChain Solutions TO THE USER HEREUNDER, INCLUDING, BUT NOT LIMITED TO, BUSINESS PLANS, FINANCIAL REPORTS, PRICING AND OTHER BUSINESS INFORMATION, PRODUCT PLANS, SPECIFICATIONS, TRAINING MATERIALS, SOFTWARE DESIGNS AND CODE, USER NAMES, PASSWORDS, REQUESTS FOR QUOTATION, AND ANY RELATED INFORMATION, MATERIALS OR DOCUMENTS. CONFIDENTIAL INFORMATION SHALL NOT INCLUDE INFORMATION WHICH: (A) IS OR BECOMES PUBLIC KNOWLEDGE WITHOUT ANY ACTION BY, OR INVOLVEMENT OF, THE USER; (B) IS RECEIVED BY THE USER FROM A THIRD PARTY THAT IS NOT UNDER A DUTY OF CONFIDENTIALITY; (C) IS INDEPENDENTLY DEVELOPED BY THE USER WITHOUT USE OF OR REFERENCE TO PowerChain Solutions CONFIDENTIAL INFORMATION; OR (D) IS RELEASED, IN WRITING, FROM CONFIDENTIAL TREATMENT BY PowerChain Solutions.
4.2 RESTRICTIONS ON USE. USER AGREES (A) NOT TO DISCLOSE, DIRECTLY OR INDIRECTLY, TO ANY THIRD PARTY ANY PORTION OF THE CONFIDENTIAL INFORMATION WITHOUT THE PRIOR WRITTEN CONSENT OF PowerChain Solutions; (B) TO TAKE REASONABLY NECESSARY PRECAUTIONS TO PROTECT THE CONFIDENTIALITY OF THE CONFIDENTIAL INFORMATION RECEIVED HEREUNDER AND EXERCISE AT LEAST THE SAME DEGREE OF CARE IN SAFEGUARDING THE CONFIDENTIAL INFORMATION AS THE USER WOULD WITH ITS OWN CONFIDENTIAL INFORMATION; AND (C) PROMPTLY ADVISE PowerChain Solutions IN WRITING UPON LEARNING OF ANY UNAUTHORIZED USE OR DISCLOSURE OF THE CONFIDENTIAL INFORMATION.

5. Disclaimer of Warranties. PowerChain Solutions IS PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. PowerChain Solutions HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6. Limitation of Liability. IN NO EVENT SHALL PowerChain Solutions BE LIABLE, EXCEPT FOR WILLFUL ACTS, FOR ANY DAMAGES TO USER OR ANY OTHER PARTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSSES RESULTING FROM BUSINESS INTERRUPTION OR LOSS OF DATA, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY UNDER WHICH THE LIABILITY MAY BE ASSERTED, EVEN IF ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. PowerChain Solutions MAKES NO ASSERTIONS AS TO THE FITNESS, RELIABILITY, AND/OR FINANCIAL HEALTH OF ANY COMPANY, BUSINESS, ENTERPRISE, OR OTHER ESTABLISHMENT THAT HAS REGISTERED ON THE POWERCHAIN SOLUTIONS NETWORK. ALL CLIENTS AND VENDORS ON THE POWERCHAIN SOLUTIONS NETWORK INTERACT WITH OTHER CLIENTS AND VENDORS AT THEIR OWN RISK AND WILL HOLD POWERCHAIN SOLUTIONS HARMLESS IN THE EVENT OF HARMFUL AND/OR WILLFUL ACTS ON THE PART OF ANY POWERCHAIN SOLUTIONS CLIENT OR VENDOR.

7. Intellectual Property Rights. Except for limited use license expressly granted by this Agreement, PowerChain Solutions does not grant User any license, by implication or otherwise, to use, download, use, distribute or copy PowerChain Solutions or any subsequent version of PowerChain Solutions, or any license rights in any patent, copyright or other intellectual property rights owned by or licensed to PowerChain Solutions. PowerChain Solutions retains all rights not expressly granted to User in this Agreement. Notwithstanding anything to the contrary herein, PowerChain Solutions may also (i) use any information provided by the User to determine general price trends in various supply industries, create predictive analyses for estimating likely market prices and other general business purposes, provided that such use does not identify User by name, and (ii) disclose the information User has provided to a PowerChain Solutions' client for the purchase or sale of any good or service.

8. Commissions and Fees. The User agrees to be bound by the commissions and fees of PowerChain Solutions. The buyer client User agrees to remit to PowerChain Solutions a fee as described by the PowerChain Solutions Commission and Fee Schedule for each real reverse auction event started if the event does not result in a bonafide purchase from an event supplier. A real reverse auction event is defined as a started reverse auction containing more than 2 suppliers, real or imagined. The buyer client User will not be charged a fee if a real started event results in a bonafide purchase from an event supplier as determined by the buyer client User. The supplier client User agrees to remit to PowerChain Solutions a commission as described by the PowerChain Solutions Commission and Fee Schedule for a real reverse auction event that results in a bonafide purchase from supplier by buyer as a result of the event. All commissions or fees have payment terms of net 30 from the date of the bill.

9. Miscellaneous. This Agreement shall be governed by the laws of the State of Delaware, without reference to its conflicts of law rules. User consents to the exclusive jurisdiction and venue of such courts. If User breaches any term or condition of this Agreement, PowerChain Solutions may, in addition to any other remedies available at law or equity, deny User access to PowerChain Solutions, and deny access to any other PowerChain Solutions' sites. The parties agree that this Agreement is the complete and entire agreement of the parties with respect to the subject matter set forth herein and supersedes any proposal or prior agreement, oral or written, relating to the subject matter of this Agreement. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by PowerChain Solutions and User.



	POWERCHAIN SOLUTIONS USER AGREEMENT 1. Background. PowerChain Solutions has developed a proprietary business-to-business eMarketplace, which PowerChain Solutions uses to assist its clients in procuring certain goods and services. PowerChain Solutions is an Internet based product which allows PowerChain Solutions' buyers and suppliers of goods and services to exchange information. Subject to the terms and conditions of this Agreement the parties desire the User to have access to PowerChain Solutions. 2. Limited Use License. Subject to the terms and conditions of this Agreement, PowerChain Solutions grants to User a limited use, non-exclusive non-transferable, non-sublicensable license to access the portions of PowerChain Solutions for which PowerChain Solutions issues User an active password, solely for the purpose of procuring and/or selling goods or services through PowerChain Solutions. User shall be responsible for providing, at its expense, all communications lines, hardware, software, services and other materials and technology necessary for it to access PowerChain Solutions. PowerChain Solutions shall have no responsibility for any failure of such items or any failure or limitation of the Internet or other computer hardware or software. User may not download, copy or otherwise use PowerChain Solutions or any information available in PowerChain Solutions, in whole or part, except as expressly permitted by this Agreement. User may not modify PowerChain Solutions in any manner. User may not distribute, sublicense, assign or transfer any rights to use PowerChain Solutions, either in whole or part, to any third party. User agrees that the source code relating to PowerChain Solutions is confidential and proprietary to PowerChain Solutions and/or its licensors. Accordingly, User may not decompile, disassemble, reverse engineer or otherwise manipulate PowerChain Solutions or other software so as to derive such source code. 3. Passwords. PowerChain Solutions will provide User with a participant id and one or more usernames and passwords to enable User to access certain portions of PowerChain Solutions designated by PowerChain Solutions. User shall be responsible for the confidentiality and use of such user IDs and passwords. User shall immediately notify PowerChain Solutions if it becomes aware of any loss or theft of a password or any unauthorized use of a password, username, or of PowerChain Solutions. User shall not use any password or other means to attempt to access portions of PowerChain Solutions for which PowerChain Solutions has not issued User a password. PowerChain Solutions may de-activate any password at any time. 4.0 Confidentiality. 4.1 DEFINITION. "CONFIDENTIAL INFORMATION" SHALL MEAN ANY CONFIDENTIAL OR OTHER PROPRIETARY INFORMATION DISCLOSED BY PowerChain Solutions TO THE USER HEREUNDER, INCLUDING, BUT NOT LIMITED TO, BUSINESS PLANS, FINANCIAL REPORTS, PRICING AND OTHER BUSINESS INFORMATION, PRODUCT PLANS, SPECIFICATIONS, TRAINING MATERIALS, SOFTWARE DESIGNS AND CODE, USER NAMES, PASSWORDS, REQUESTS FOR QUOTATION, AND ANY RELATED INFORMATION, MATERIALS OR DOCUMENTS. CONFIDENTIAL INFORMATION SHALL NOT INCLUDE INFORMATION WHICH: (A) IS OR BECOMES PUBLIC KNOWLEDGE WITHOUT ANY ACTION BY, OR INVOLVEMENT OF, THE USER; (B) IS RECEIVED BY THE USER FROM A THIRD PARTY THAT IS NOT UNDER A DUTY OF CONFIDENTIALITY; (C) IS INDEPENDENTLY DEVELOPED BY THE USER WITHOUT USE OF OR REFERENCE TO PowerChain Solutions CONFIDENTIAL INFORMATION; OR (D) IS RELEASED, IN WRITING, FROM CONFIDENTIAL TREATMENT BY PowerChain Solutions. 4.2 RESTRICTIONS ON USE. USER AGREES (A) NOT TO DISCLOSE, DIRECTLY OR INDIRECTLY, TO ANY THIRD PARTY ANY PORTION OF THE CONFIDENTIAL INFORMATION WITHOUT THE PRIOR WRITTEN CONSENT OF PowerChain Solutions; (B) TO TAKE REASONABLY NECESSARY PRECAUTIONS TO PROTECT THE CONFIDENTIALITY OF THE CONFIDENTIAL INFORMATION RECEIVED HEREUNDER AND EXERCISE AT LEAST THE SAME DEGREE OF CARE IN SAFEGUARDING THE CONFIDENTIAL INFORMATION AS THE USER WOULD WITH ITS OWN CONFIDENTIAL INFORMATION; AND (C) PROMPTLY ADVISE PowerChain Solutions IN WRITING UPON LEARNING OF ANY UNAUTHORIZED USE OR DISCLOSURE OF THE CONFIDENTIAL INFORMATION. 5. Disclaimer of Warranties. PowerChain Solutions IS PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. PowerChain Solutions HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 6. Limitation of Liability. IN NO EVENT SHALL PowerChain Solutions BE LIABLE, EXCEPT FOR WILLFUL ACTS, FOR ANY DAMAGES TO USER OR ANY OTHER PARTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSSES RESULTING FROM BUSINESS INTERRUPTION OR LOSS OF DATA, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY UNDER WHICH THE LIABILITY MAY BE ASSERTED, EVEN IF ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. PowerChain Solutions MAKES NO ASSERTIONS AS TO THE FITNESS, RELIABILITY, AND/OR FINANCIAL HEALTH OF ANY COMPANY, BUSINESS, ENTERPRISE, OR OTHER ESTABLISHMENT THAT HAS REGISTERED ON THE POWERCHAIN SOLUTIONS NETWORK. ALL CLIENTS AND VENDORS ON THE POWERCHAIN SOLUTIONS NETWORK INTERACT WITH OTHER CLIENTS AND VENDORS AT THEIR OWN RISK AND WILL HOLD POWERCHAIN SOLUTIONS HARMLESS IN THE EVENT OF HARMFUL AND/OR WILLFUL ACTS ON THE PART OF ANY POWERCHAIN SOLUTIONS CLIENT OR VENDOR. 7. Intellectual Property Rights. Except for limited use license expressly granted by this Agreement, PowerChain Solutions does not grant User any license, by implication or otherwise, to use, download, use, distribute or copy PowerChain Solutions or any subsequent version of PowerChain Solutions, or any license rights in any patent, copyright or other intellectual property rights owned by or licensed to PowerChain Solutions. PowerChain Solutions retains all rights not expressly granted to User in this Agreement. Notwithstanding anything to the contrary herein, PowerChain Solutions may also (i) use any information provided by the User to determine general price trends in various supply industries, create predictive analyses for estimating likely market prices and other general business purposes, provided that such use does not identify User by name, and (ii) disclose the information User has provided to a PowerChain Solutions' client for the purchase or sale of any good or service. 8. Commissions and Fees. The User agrees to be bound by the commissions and fees of PowerChain Solutions. The buyer client User agrees to remit to PowerChain Solutions a fee as described by the PowerChain Solutions Commission and Fee Schedule for each real reverse auction event started if the event does not result in a bonafide purchase from an event supplier. A real reverse auction event is defined as a started reverse auction containing more than 2 suppliers, real or imagined. The buyer client User will not be charged a fee if a real started event results in a bonafide purchase from an event supplier as determined by the buyer client User. The supplier client User agrees to remit to PowerChain Solutions a commission as described by the PowerChain Solutions Commission and Fee Schedule for a real reverse auction event that results in a bonafide purchase from supplier by buyer as a result of the event. All commissions or fees have payment terms of net 30 from the date of the bill. 9. Miscellaneous. This Agreement shall be governed by the laws of the State of Delaware, without reference to its conflicts of law rules. User consents to the exclusive jurisdiction and venue of such courts. If User breaches any term or condition of this Agreement, PowerChain Solutions may, in addition to any other remedies available at law or equity, deny User access to PowerChain Solutions, and deny access to any other PowerChain Solutions' sites. The parties agree that this Agreement is the complete and entire agreement of the parties with respect to the subject matter set forth herein and supersedes any proposal or prior agreement, oral or written, relating to the subject matter of this Agreement. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by PowerChain Solutions and User.
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