Acceptance of the following terms and conditions permits you ("Buyer") to (i) access Demand Pooling, Inc.’s ("DEPO's") online purchase aggregation system and to request quotations or bids from Suppliers based upon your purchase requirements, aggregated with similar requirements of other Buyers. By Logging In and accessing the DEPO system, you expressly agree to these terms and conditions.
We may amend this Agreement at any time by posting the amended terms on DEPO’s website. Except as stated below, all amended terms will automatically be effective ten (10) days after they are initially posted on the website. This Agreement may not be otherwise amended except in writing signed by you and us. This Buyer User Agreement is effective upon registration for new registering users, and is otherwise effective on May 15, 2010.
The DEPO system is available only to entities that can enter into legally binding contracts under applicable law. Without limiting the foregoing, our system is not available to minors (under 21 years of age) or to those suspended from its use. If you do not qualify, please do not use our system. Furthermore, you may not assign or transfer your account or user identification with us to any other party.
You agree to include in your bid request documents and allow DEPO to include in the information displayed to the Suppliers, a statement or paragraph to the effect that "…regardless of the manner in which the supplier captures a copy of our entity's bid request documents, whether through the DEPO electronic platform, by mail, by physical delivery or pickup, all bids must be submitted through the DEPO electronic platform." This provision ensures the integrity of the pool and assures that optimum pricing, based upon the aggregated volume in the pool, will be available to pool participants.
Buyers may, if necessary, also request that a hard copy of the bid be submitted to the buyer, but any provision to do so should be accompanied by a notice that "…any hard copy delivered to our entity of the bid must match the bids submitted on the DEPO platform." The delivery of a hard copy to the Buyer does not substitute for the requirement that the bids must be submitted through the DEPO electronic platform.
DEPO does not charge fees to Buyers for the use of its enabling platform. However, it does charge a "Platform Use Fee" to the Supplier or Suppliers to which your purchase contract for products is awarded. No fees are charged to any other Suppliers who are not awarded contracts. In order to reduce fee payment burdens upon Suppliers, DEPO normally allows the successful Supplier(s) to pay DEPO's fee on an installment basis, scheduled, to the extent possible, to correspond with its delivery of product and receipt of payment from Buyers.
Should actual purchases made by Buyer, pursuant to the awarded contract, be greater or lesser than the amount indicated when awarded, the fee paid or payable by the Supplier shall be adjusted accordingly at the end of the contract period. You agree to provide us with copies of any paid invoices and supplemental Purchase Orders or other documents that effect the final value of your original purchases, as any such Purchase Order may be issued to the Supplier.
You agree that you will not take any measures that will cause or support the effort of Suppliers to avoid or seek to avoid the payment of DEPO's fees, including, but not limited to, the awarding of contracts outside of the DEPO system where the solicitation of bids was initiated through the DEPO system.
The DEPO system for the purchase of new products is not an online auction service and does not perform the function of a traditional auctioneer. You acknowledge that DEPO's system is an enabling platform that allows each Buyer to consolidate its needs with other Buyers; and Suppliers to issue bids or provide quotes to a larger universe of Buyers in an efficient manner. DEPO is not involved in the contractual arrangements between Buyers and Suppliers or in the process of accepting or certifying compliance with specifications. We, therefore, do not verify or authenticate the ability of Suppliers to sell products or that a Supplier will actually complete a transaction. You may wish to take steps to confirm identities and provide additional security to the transaction. DEPO does not make recommendations in regards to any bids or Suppliers. It is the responsibility of each Buyer to award or not to award specific contracts to Suppliers.
You agree that if you elect to purchase a product or products based upon the bid(s) you receive from the aggregated request for bids through the DEPO system, the award will also be made through the DEPO system.
You understand and agree that disputes between Buyers and Suppliers will be settled between them without DEPO's involvement, and we will have no liability whatsoever arising from communications or transactions made. Because we are not involved in the actual transaction between Buyers and Suppliers, in the event of a dispute, you release DEPO and its officers, directors, agents, subsidiaries and employees from claims, demands 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 connected with such disputes. If you are a California based entity or 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."
As a Buyer, you must be legally and physically able to purchase the item(s) for which you seek quotations on our site. You agree that the products specified by the Buyer are items for which good faith and valid bids are being sought from your specified and other Suppliers on the basis of an aggregation of Buyer's demand for the item with the demand for similar items from other Buyers. Once you have accepted a Supplier's bid or Suppliers' bids, Buyer will make a good faith effort to complete the transaction in accordance with the terms of the request for quotations, proposals or bids, or make appropriate provisions with Supplier(s) for modifications, as necessary. Any such modifications that affect the value of the purchases must be reported to DEPO.
We may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with our site. Neither Buyers, nor Suppliers may interfere with other user's communications or transactions.
You are solely responsible for all information you provide to us or other users on our site or in connection with the registration, requests for proposal or quotation, bidding, or sale process ("Your Information"). We act as a passive conduit for the online distribution and publication of other Buyers' information, Suppliers' information and Your Information. You agree that Your Information and any of your requests for quotations, proposals or bids for products through this site: (a) will not be false, inaccurate or misleading; (b) will not be fraudulent or involve the purchase of counterfeit or stolen items; (c) will not violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, homeland security, anti-discrimination or false advertising); (d) will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (e) will not intentionally contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (f) will not create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers or other Buyers.
Furthermore, you may not consummate any transaction that was initiated using our service that, by paying to us the transaction fee, could cause us to violate any applicable law, statute, ordinance or regulation. Solely to enable us to use Your Information, so that we are not violating any rights you might have in Your Information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information.
The DEPO site contains robot exclusion headers and you agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software or routine to bypass our robot exclusion headers, or to interfere or attempt to interfere with the proper working of our site or any transaction being communicated or conducted on our site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our site is updated on a real time basis and is proprietary or is licensed to us by our users or third parties. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for Your Information) from our site without the prior expressed written permission of DEPO. Furthermore, you may not provide access to, or information from, the DEPO site to any other party without the prior expressed written permission of DEPO.
Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your access to our site and system and refuse to provide our services to you: (a) if you breach this Agreement or the documents it incorporates by reference; (b) if we are unable to verify or authenticate any information you provide to us; or (c) if we believe that your actions may cause legal liability for you, our users or us.
WE PROVIDE OUR SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Some States do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from State to State.
IN NO EVENT WILL WE OR OTHER BUYERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES, TRANSACTIONS ARISING OUT OF USE OF OUR SITE OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
OUR LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES PAID TO US BY A SUPPLIER OR SUPPLIERS IN CONNECTION WITH YOUR PURCHASED VOLUME IN THE SPECIFIC POOLED TRANSACTION, GIVING RISE TO THE LIABILITY, AND IN WHICH YOU PARTICIPATED THROUGH THE DEPO SYSTEM IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
You will comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of DEPO's service and your submitting quotations, bidding, transacting and sale of products.
You and DEPO are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, any notices will be given by postal mail to Demand Pooling, Inc. 12720 Hillcrest Rd Suite 1045, Dallas, Texas 75230 (in the case of DEPO) or to the e-mail address you provide to DEPO during the registration process (in your case). Notice will be deemed given 24 hours after e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to DEPO during the registration process. In such case, notice will be deemed given 3 days after the date of mailing.
Any legal controversy or legal claim arising out of or relating to this Agreement or our services (excluding legal action taken by DEPO to collect our fees and/or recover damages for, or obtain an injunction relating to the DEPO site, operations, intellectual property, and our services) that the parties to this Agreement are unable to resolve within thirty (30) days after written notice by one party to the other of the existence of such controversy or claim, will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in the State of Texas, and judgment on the arbitration award may be entered into any State or Federal Court within the State of Texas having jurisdiction thereof. Either you or DEPO may seek any interim or preliminary relief from a court of competent jurisdiction in Dallas, Texas necessary to protect the rights or property of you or DEPO pending the completion of arbitration. Each party will bear their own attorneys' fees. The fees and expenses of the arbitrators will be apportioned between the parties by the arbitrator in accordance with the findings and results of the arbitration. Should either party file an action contrary to this provision, the other party, if prevailing, may recover attorneys' fees and costs up to $1,000.00.
This Agreement will be governed in all respects by the laws of the State of Texas as such laws are applied to agreements entered into and to be performed entirely within Texas between Texas residents. We do not guarantee continuous, uninterrupted or secure access to our services, and operation of our site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by DEPO, in our sole discretion, to a third party in the event of a merger or acquisition. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.