SUPPLIER USER AGREEMENT
Acceptance of the following terms and conditions permits you ("Supplier") to (i) access
Demand Pooling, Inc.’s ("DEPO's") online purchase aggregation system and to respond to and
electronically submit bids upon aggregation of requests for bids ("RFBs") or invitations for bids
("IFBs"), as a whole, or in part, in a specified time window. By your Login 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 Supplier User Agreement is effective upon registration for new
registering users, and is otherwise effective on May 15, 2010.
1. Eligibility. The DEPO system is available only to individuals and entities that can form
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.
2. Bid Submission. Unless otherwise specified by the Buyer, all bids to be submitted to the
Buyer, regardless of whether you capture its or their IFB(s) through the DEPO electronic platform
or by mail or physical delivery or pickup, must be submitted through the DEPO electronic platform
in order to maintain the integrity of the pool. If the Buyer also requires that you deliver a hard
copy of the bid response to an address it provides in its underlying documents or if you choose to
do so for any other reasons, the bid information submitted in the hard copy must match the bid
information submitted on the DEPO electronic 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
3. Fees. By registering to use DEPO's services, you agree to pay DEPO's specified fee
("Platform Use Fee") for any portion of the aggregated purchase pools for products which you have
been selected as a
successful bidder, awarded a contract or contracts. This Platform Use Fee is charged only
to the Supplier(s) to which the purchase
contract for products is awarded, whether or not the final contract is awarded through the system
or is separately negotiated with the Buyer(s) that posted its or their requirements on our system.
The Platform Use Fee for most products will be 1.5% of the value of the awarded contract.
However, the Platform Use Fee for Bulk Motor Fuel purchases the fee is $.005 times the number of gallons
delivered. DEPO does not add the Platform Use Fee to the Suppliers final price.
It is the responsibility of the Supplier that receives an award to pay the Platform Use Fee.
The Platform Use Fee, payable by the Supplier, is due and payable to DEPO within thirty
(30) days following the receipt of a copy of each invoice from Supplier to Buyer for the delivery
of motor fuel. Supplier agrees to send, and is responsible for sending to DEPO, at the time the
invoice is issued to the Buyers, a copy of each invoice which it submits to Buyers that order fuel
or other products pursuant to the awarded contract.
In the event Supplier bids for the
sale of physical fuel, pursuant to authorization by the Buyer(s) permitting unbundled bids,
the Platform Use Fee payable to DEPO will be reduced from $0.005 per gallon to $0.0045 per gallon.
In the event Supplier bids solely for the
delivery of fuel to the Buyer's storage facilities pursuant to an authorization by the
Buyer(s) to unbundle bids, the Platform Use Fee payable to DEPO will be $0.001 per gallon. In the
event Supplier bids both the Supply of physical fuel and the delivery thereof to the Buyer's
storage facilities, the combined Platform Use Fee for fuel shall be $0.005 per gallon.
Late payments of Platform Use Fees that exceed 30 days will bear interest at the monthly
rate of 0.5%. Late payments that exceed 60 days will result in the monthly interest rate, from the
61st day changing from 0.5% to 0.6% for all fees due under the contract. If currently due payments
remain unpaid for more than 90 days, the monthly interest rate will change from 0.6% to 0.75%, as
of the 91st day. If the payments, currently due, remain unpaid for 120 days, the entire remaining
balance of the Platform Use Fee for the full contract balance, on a fully delivered basis, becomes
due and payable.
For purchases of products that have a longer manufacture and delivery time than twelve
(12) months for the initial delivery of the product from the date of the award of the contract to
the Supplier ("Contract Award Date"), the payment of 25% of the Platform Use Fee is due and
payable within 30 days of the first anniversary of the Contract Award Date and the remaining 75%
of the Platform Use Fee may be paid monthly on the basis of dividing the remaining 75% by the
expected number of months before delivery. For monthly payments beyond the period beginning 31
days after the first anniversary of the Contract Award Date, the remaining outstanding Platform
Use Fee obligation will be subject to a monthly interest rate of ½ of 1% (0.5%) of the remaining
outstanding balance, payable monthly. For extremely long term contracts, special arrangements
regarding the Platform Use Fee may be made with DEPO upon the award of the contract.
Should actual purchases or payments made by Buyer, pursuant to the awarded contract, be
greater or lesser than the amount indicated when awarded, the fee will be adjusted accordingly at
the end of the contract period. A refund will be paid by DEPO to Supplier within ten (10) days
following the end of the contract term if actual purchases are less than the original contract
value; or additional payment will be due by the Supplier to DEPO within ten (10) days if actual
purchases exceed the original contract value.
Notwithstanding the foregoing to the contrary, the fees charged pursuant to this section
shall not contravene laws of the State where Supplier is based. We may, in our sole discretion,
change our fee policies, the fees we charge, and some or all of our system or services at any
time, provided, however, DEPO shall not change fees for any pool once the pool has commenced. All
fees must be paid in U.S. Dollars. Supplier is responsible for paying any and all applicable
4. Information Transmittal System only. 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 our site merely provides the collected data and the communication mechanism and
means to allow you to make bids on aggregation of bid requests for products. DEPO's enabling
platform allows individual Buyers to consolidate their needs with other Buyers, and Suppliers to
make 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 Buyers to buy products or that a Buyer will actually complete a transaction. You
may wish to take steps to confirm identities and provide additional security to the transaction.
5. Release. 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 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
6. Quoting and Selling. As a Supplier, you must be legally and physically able to sell the
item(s) for which you make quotations on our site. You must confirm that your item matches the
products sought by Buyer and all terms of sale on the request for quotations, bids or proposals
made by each Buyer, or that you have noted, where appropriate, your alternate solution, which
alternate solution may result in your quotations or bid response being determined to be
non-compliant. Once your bid has been accepted, you must deliver the item in accordance with the
terms of the request for quotations, bids or proposals or make appropriate provisions with Buyers
for modifications, as necessary. Any such modifications that affect the value of the purchases
must be reported to DEPO and to the extent the value is increased, the consequent Fee adjustments
will be made by DEPO.
7. Fraud or Manipulation. 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.
8. Accuracy of Information and Restrictions. 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 Buyers' information, other Suppliers' information and Your Information. You agree
that Your Information and any products sold through this site: (a) will not be false, inaccurate
or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c)
will not infringe any third party's copyright, patent, trademark, trade secret or other
proprietary rights or rights of publicity or privacy; (d) will not violate any law, statute,
ordinance or regulation (including, but not limited to, those governing export control, consumer
protection, unfair competition, anti-discrimination or false advertising); (e) will not be
defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) will not 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 (g) 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
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.
9. Access and Interference. 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.
10. Breach. 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
11. Warranty. WE PROVIDE OUR SITE, PLATFORM 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.
12. Liability Limit. IN NO EVENT WILL WE OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR 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,
OUR LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER
OF (A) THE AMOUNT OF FEES YOU PAY TO US 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.
13. Indemnity. You agree to indemnify and hold us and (as applicable) our parent,
subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or
demand, including reasonable attorneys' fees, made by any third party due to or arising out of
your breach of this Agreement or the documents it incorporates by reference, or your violation of
any law or the rights of a third party.
14. Legal Compliance. 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.
15. No Agency. You and DEPO are independent contractors, and no agency, partnership, joint
venture, employee-employer or franchiser-franchisee relationship is intended or created by this
16. Notices. Except as explicitly stated otherwise, any notices will be given by postal
mail to Demand Pooling Global Services, LLC 12720 Hillcrest Road, Suite 750, 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.
17. Arbitration. 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 Fee 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.
Any costs of collection relating to a valid Fee owed by Supplier to DEPO, relating to
transactions in which Supplier is awarded a contract or a partial contract to sell a product to
the Buyer(s) as part of a purchase transaction through DEPO, shall be borne by Supplier.
18. General . 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.