Terms & Conditions
Version 4
Date: December 2001
USAGE AGREEMENT
The WorldWide Retail Exchange,
LLC ("WWRE" or the "Exchange")
provides a communications platform and related
services through which retailers and suppliers
(collectively "Users") can establish
an electronic marketplace for the purchase and
sale of goods and services. These services are
accessible through WWRE's web site ("Site"),
located at http://www.worldwideretailexchange.org.
This Usage Agreement and the Privacy
and Confidentiality Policy, govern each
User's use of the Site and participation in
the Exchange, and, together, constitute the "Terms
and Conditions." Prior to transacting
on the Exchange, all Users will be given an
opportunity to consent to these Terms and Conditions.
By doing so, each User accepts and is legally
bound by the Terms and Conditions. Continued
access to the Site and its services, including
without limitation all licenses granted hereunder,
is subject to compliance with the Terms and
Conditions and any breach of the Terms and
Conditions will be pursued by legal action
to the fullest extent possible.
The Terms and Conditions, including
the Usage Agreement and the Privacy Policy, may
be modified at any time without notice and any
such modification shall be effective immediately
upon posting. By assenting to these Terms and
Conditions, Users agree to periodically review
the Terms and Conditions and be bound by any
modifications or amendments thereto.
Users that have any questions about the Terms and Conditions are invited to contact
WWRE.
1. Users; Warranties
Through the platform provided by WWRE, Users can participate in transactions
and take part in an electronic marketplace devoted to the retail industry.
USERS REPRESENT AND WARRANT THAT THEY (1) ARE DULY AUTHORIZED TO CONSENT TO
THESE TERMS AND CONDITIONS ON BEHALF OF THEIR RESPECTIVE COMPANIES; (2) CAN
FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW; (3) HAVE THE RIGHT TO
GRANT THE INTELLECTUAL AND INFORMATIONAL PROPERTY RIGHTS AT ISSUE UNDER THIS
AGREEMENT, AND THAT SUCH GRANTS DO NOT INFRINGE THE RIGHTS OF ANY THIRD PARTY;
AND (4) ARE COMMERCIAL BUSINESSES, NOT CONSUMER USERS, FOR PURPOSES OF USING
THIS SITE.
2. IDs and passwords
User IDs and passwords are confidential and proprietary. It is a violation
of the Terms and Conditions for a User to disclose its password or share its
ID or password with any unauthorized third parties, or to use its ID or password
for any unauthorized purpose. Each User, and not WWRE, is solely responsible
for any unauthorized use of User's ID or password.
3. Transacting on the Exchange
Transactions on the Exchange are governed by the Terms and Conditions. The
specific terms and conditions of each transaction (such as pricing, warranties,
delivery, etc.) entered into through the Exchange are established between the
buyer and seller. WWRE is a venue through which users can transact. Users decide
in their individual capacities with whom to do business. WWRE is not a party
to any transaction entered into upon the Site. WWRE does not set nor endorse
the price, contract terms, quality, safety, conformance or legality of the
products advertised or offered for sale, the ability of sellers to sell products
or the ability of buyers to buy products. WWRE cannot and does not control
whether sellers will complete the sale of products they offer. WWRE is not
responsible with respect to payment or collection for orders made and bids
placed on the Site.
4. No warranty
BY ASSENTING TO THESE TERMS AND CONDITIONS, USERS ASSUME ANY AND ALL RESPONSIBILITY
AND RISK OF USE OF THE SITE AND ANY PRODUCTS OR SERVICES CONTAINED THEREIN.
THE WWRE AND ITS SUPPLIERS PROVIDE THE SITE AND SERVICES "AS IS" AND "AS
AVAILABLE," WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY. THE WWRE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES
OF ANY KIND, INCLUDING BUT NOT LIMITED TO, (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (B) THAT SERVICE
WILL BE CONTINUOUS, UNINTERRUPTED AND/OR ERROR-FREE; (C) AS TO THE QUALITY,
IDENTITY OR RELIABILITY OF ANY BUYER OR SELLER AND WHETHER ANY USER SHOULD
DO BUSINESS WITH SUCH BUYER OR SELLER; AND (D) AS TO THE ACCURACY OF ANY INFORMATION
MADE AVAILABLE ON OR THROUGH THE SITE BY OR ON BEHALF OF ANY SELLER OR BUYER.
5. Release
Because WWRE is not a party to any User-to-User or User-to-"Third Party
Provider" (as "Third Party Provider" is defined in Section 8)
agreements, and has no control over the truth or accuracy of representations
made by these parties, or the ability of parties to any such agreement to fulfill
their part of any transaction, each User hereby releases and agrees to hold
harmless WWRE, and its officers, directors, subcontractors (including without
limitation technology providers) acting in their capacity of providing services
to WWRE, agents, and employees from any and all claims, demands, and damages
of every kind and nature (including, without limitation, actual, special, incidental
and consequential), known and unknown, suspected and unsuspected, disclosed
and undisclosed, arising out of or in any way connected with the use of the
Site or the Exchange, or any agreement or transaction between any User, on
the one hand, and any other User (whether or not consummated) or any Third
Party Provider, on the other hand. Some jurisdictions may not allow the exclusion
of certain warranties, so the above exclusion may not apply to every User.
6. Transaction Fees
Users agree to pay the applicable transaction fee for any transaction on the
Exchange regardless of whether or not such transaction is actually consummated.
The transaction fee will be due to WWRE within thirty (30) days after receipt
of the applicable WWRE invoice. In the event a User fails to pay all amounts
due within thirty (30) days after receipt of the invoice, such unpaid amounts
shall be deemed "overdue" and interest will accrue on such overdue
amounts at a rate of one and one-half percent (1.5%) per month, or the maximum
amount allowed by law, whichever is less. Users are responsible for paying
all applicable taxes and all hardware, software, services and other costs and
expenses incurred to access information or conduct transactions over the Site.
Failure of either party to consummate a transaction does not relieve the obligation
to pay the transaction fee due for such unconsummated transaction.
7. Good Faith and Fair Dealing
Each User hereby agrees to act in accordance with the principles of good faith
and fair dealing when transacting on or through the Exchange. WWRE reserves
the right to investigate any allegation or evidence of any User's failure to
abide by the principles of good faith and fair dealing in connection with its
use of the Exchange, and to fashion and enforce remedies, in its sole but reasonable
discretion, in order to address any violation of such principles. For example,
but not by way of limitation, it is a violation of a User's agreement to act
in accordance with the principles of good faith and fair dealing to initiate
transactions on the Exchange for the purpose of identifying potential buyers
or sellers with whom such User can negotiate off the Exchange. Similarly, each
User agrees not to manipulate the terms of a transaction for the purpose of
reducing the transaction fee owed. If a User engages in such activity, said
User will be liable to pay WWRE the applicable, appropriate transaction fee
and will be subject to such other sanctions as the WWRE may determine as appropriate
under the circumstances, in its sole but reasonable discretion.
8. Information posted on the Site
The Site contains news and information published by various third party providers,
some of which may contain facts, views, opinions, analyses and recommendations
of individuals and organizations deemed of interest. WWRE does not guarantee
the accuracy, completeness, or timeliness of, or otherwise endorse, these views,
opinions, analyses, or recommendations. Users assume sole responsibility and
risk for use of such content.
The Site contains links to third party web sites not under the control or operation
of WWRE. WWRE provides links only as a convenience and does not endorse, and
is not responsible for the contents of, any linked site. Users assume sole
responsibility and risk for use of such third party links.
Each User's postings to the Site are the sole responsibility of the User. Each
User hereby acknowledges and agrees that WWRE has no obligation to monitor
Site content or third party links, and expressly disclaims any responsibility
of WWRE to filter any such content. However, WWRE reserves the right to take
any action with respect to information posted on the Site that WWRE deems inappropriate
in its sole discretion, including but not limited to the immediate removal
of offensive or harmful content, or suspension or termination of any User's
rights of use. Users shall not post information on the Site that is, or offer
products or services for sale that are:
- fraudulent or related to the sale of counterfeit
or stolen items;
- infringing of any third party's rights, including
but not limited to copyright, patent, trademark,
trade secret, or other proprietary rights or
rights of publicity or privacy;
- transmitted anonymously or labeled under
a false name;
- in violation of any applicable law, statute,
rule or regulation (including without limitation
those governing export control, consumer protection,
unfair competition, anti-discrimination or
false advertising);
- obscene, indecent or pornographic;
- defamatory, trade libelous, threatening or
harassing; or
- unsolicited or unauthorized advertisements,
promotions, or other forms of solicitation.
In addition, Users may not link directly or indirectly
to, or include descriptions of, products or services
(1) that are prohibited by this Usage Agreement
or the fruits of such prohibited products or services,
or (2) to which the User does not have the right
to link or include. Users must obtain WWRE's express
permission to link this Site to their web sites.
Furthermore, Users may not post to WWRE or sell
through the Exchange any product or service that
could cause WWRE to violate any applicable law,
statute, ordinance, or regulation of any jurisdiction.
As a convenience to Users, WWRE may identify various companies that provide inspection,
financial, insurance and other services, and WWRE may, from time to time, provide
access to these services directly from the Site. Additionally, WWRE may provide
Users with introductions to or marketing information on behalf of providers of
certain products and services. All such parties shall constitute "Third
Party Providers." WWRE will not be a party to any agreement between a User
on the one hand and a Third Party Provider on the other hand, or play a part
in any negotiations between the parties involved. WWRE may, however, receive
a commission, or other remuneration from Third Party Providers based on the provision
of such services, access, introductions, or information to Users.
9. Compliance with laws
Each User shall comply with all applicable laws, statutes, ordinances and regulations
regarding the use of the Site, bidding on or purchase of merchandise, and posting
and retrieval of information (including without limitation those governing export
control, unfair competition, antitrust, or false advertising). Each User hereby
acknowledges that WWRE has an express policy of complying with the antitrust
laws and that the operation of the Site is not intended to facilitate collusion
or other illegal agreements among competitors. Accordingly, each User hereby
represents and warrants that it does not intend to and will not use the Site
to violate the antitrust laws and will not knowingly act as a conduit or intermediary
for price-fixing or any other anti-competitive agreement among competitors.
10. Intellectual and Informational Property; Ownership
"User Information" shall include any information a User transmits to
the Site, or provides to WWRE, including without limitation, all information
provided in the registration, listing, or buying and selling processes. User
Information includes Contact Information and Transactional Data as further described
in the Privacy and Confidentiality Policy. Users retain sole ownership of their
User Information. "WWRE Information" includes, without limitation,
all data, reports, analysis, marketing strategies, sales estimates, and performance
results, developed or derived in connection with the operation of the Site and
the Exchange. WWRE Information shall not be specific or identifiable to any particular
User. Users will have no ownership interest in or right of access to WWRE Information.
So that WWRE does not violate any rights a User has in its User Information,
each User hereby grants to WWRE a non-exclusive, worldwide, perpetual, irrevocable,
royalty-free, sublicensable (through multiple tiers) right to reproduce, transmit,
distribute, and publicly display such information, and create derivative works
from such information, in connection with the operation of the Site or the Exchange,
and WWRE's marketing, publicity and advertisement thereof in any form and media
now known or currently unknown. User Information will be used in accordance with
the then-current Privacy and Confidentiality Policy, incorporated herein by reference.
WWRE may refer to any Company as a User in sales presentations, marketing presentations
and marketing activities.
The Site and all such intellectual property rights included therein (including
but not limited to copyrights, trademarks and service marks), are owned or licensed
by, and all such right, title and interest therein shall remain the property
of, WWRE. Certain trademarks and content are licensed from third parties and
all such third party trademarks and content, and all intellectual property rights
related thereto, belong to the respective third parties. Users shall not remove
any copyright, trademark or other intellectual property or proprietary notice
or legend contained on the Site or its content.
11. System Integrity
Each User hereby agrees not to tamper in any way with the software or functionality
of the Site. Without limiting the foregoing, each User agrees not to put any
computer programs, information or data into the Site or Exchange which contains
any viruses, time bombs, Trojan horses, worms, cancelbots or other computer programming
routines that may damage, interfere with, intercept or expropriate any system,
data or information.
12. Confidentiality
Users are responsible for implementing sufficient firewalls, protections, procedures
and checkpoints to satisfy their particular requirements for the protection of
their systems and/or accuracy of data input and output, and for maintaining a
means external to WWRE for the reconstruction of lost data. Users agree not to
disclose any other User's User Information including, without limitation, all
information provided during the buying and selling processes. Users agree not
to invade another User's privacy, including, but not limited to, the breach or
attempted breach of the security of another's computer, software or data. Use
or distribution of tools designed for compromising privacy or security is strictly
prohibited.
13. License
Subject to the Terms and Conditions, WWRE hereby grants each User a personal,
nontransferable, nonexclusive, nonsublicensable license to use the software and
the user interface for viewing and otherwise using the Site and its services
in accordance with the Terms and Conditions, and for no other purpose. All rights,
title and interest in and to the software, user interface and content made available
from, on or through this Site shall belong to WWRE or its third party providers
or suppliers, including all modifications thereof and enhancements thereto. The
software and user interface made available from, on or through this Site may
not be copied, modified or distributed by Users, nor may derivative works be
prepared therefrom. The license granted pursuant to the Terms and Conditions
is solely for the internal use of Users and may not be used for any time sharing
or service bureau purposes outside of User's organization. Users shall not reverse
engineer, decompile, or otherwise translate, in any way, the software and user
interface made available from, on or through this Site. Users shall have no right
or claim of right to the software or any unique ideas found on this site. No
ownership rights are granted to Users hereunder and no title is transferred hereby.
14. Our relationship
Users and WWRE are independent contractors, and no agency, partnership, joint
venture, employee-employer or franchisor-franchisee relationship is intended
or created by this Usage Agreement, or the Terms and Conditions.
15. Termination
In its sole discretion, WWRE may restrict or terminate any User's usage of
the Site or Exchange products or services, postings, or current bids immediately
if said User breaches any of the Terms and Conditions, fails to pay any overdue
amount as described in Section 6, or if WWRE is unable to verify or authenticate
any information provided by the User. In its sole discretion, WWRE can enforce
this provision against individual employees of a User, or the User itself.
Users may terminate their IDs and passwords at any time. Notice of termination
must be provided in accordance with the requirements set forth in Section 18.
Each User agrees that, upon termination of this Usage Agreement, said User
will pay all outstanding amounts owed to WWRE, in full, and honor all outstanding
transactions and pending transactions. Any amount not due prior to thirty (30)
days from the date the Usage Agreement is terminated is due within thirty (30)
days after termination. Each User hereby acknowledges and agrees that in the
event said User fails to pay all amounts due within thirty (30) days after
termination of this Usage Agreement, such unpaid amounts shall be deemed "overdue" and
interest will accrue on such overdue amounts at a rate of one and one-half
percent (1.5%) per month, or the maximum amount allowed by law, whichever is
less.
16. Statute of Limitations
Each User agrees that regardless of any statute or law to the contrary, any
claim or cause of action arising out of or related to the use of the Site or
the Exchange or these Terms and Conditions must be filed within one (1) year
after such claim or cause of action arose or be forever barred.
17. Arbitration
Any controversy or claim arising out of or relating to the Terms and Conditions,
including, without limitation, this Usage Agreement, shall be settled by binding
arbitration, by a single arbitrator knowledgeable in both commercial transactions
and the Internet services businesses generally, in accordance with the commercial
arbitration rules (or international rules for disputes involving non-U.S. companies)
of the American Arbitration Association ("AAA"). Any such controversy
or claim shall be arbitrated on an individual basis, and shall not be consolidated
in any arbitration with any claim or controversy of any other party. The arbitration
shall be conducted in the Alexandria, Virginia metropolitan area, and judgment
on the arbitration award may be entered into any court having jurisdiction
thereof. Either WWRE or the User may seek any interim or preliminary relief
from a court of competent jurisdiction in Alexandria City, Virginia necessary
to protect the rights or property of WWRE or the User pending the completion
of arbitration. Each User and WWRE agree that any dispute regarding the validity
or scope of this arbitration clause shall be commenced in the state and/or
federal courts located within Alexandria City, Virginia, and shall be governed
by the laws of the Commonwealth of Virginia. The fees of the AAA shall be borne
by the parties equally.
18. Notices
Except as explicitly stated otherwise or required by law, each User shall provide
any notices to WWRE by postal mail to WorldWide Retail Exchange, LLC, ATTN:
Legal Department, 625 N. Washington Street, Alexandria, VA 22314, and WWRE
shall provide any notices to User at the email address that each User provides
to WWRE at registration, or such other address as either party shall specify
in a notification in accordance with this section. Notice shall be deemed given
twenty-four (24) hours after the email is sent, unless the sending party receives
notice that the address is invalid or the email has otherwise failed to reach
the destination email address within such period. Alternatively, at its option,
WWRE may give a User notice by commercial courier service or by certified mail,
postage prepaid and return receipt requested, to the address provided to WWRE
at registration. In such case, notice shall be deemed given when received by
User.
19. Governing law and jurisdiction
This Usage Agreement and the relationship between any User and WWRE, unless
otherwise stated in a separate agreement between any User and WWRE, shall be
governed by and construed in accordance with the laws of the Commonwealth of
Virginia without regard to conflict of law provisions. Each User and WWRE agree
that the provision of the 1980 United Nations Convention on Contracts for the
International Sale of Goods shall not apply to any item sold on the Site or
the Exchange. WWRE makes no representation that material on the Site is appropriate
or available for use in other locations, or that the contents comply with local
law. Those who choose to access this site from other locations do so on their
own initiative and are responsible for compliance with local laws.
20. Indemnification
Without limiting the generality or effect of other provisions of this Usage
Agreement, as a condition of use, each User agrees to indemnify, hold harmless,
and defend WWRE and its parents, subsidiaries, affiliates, suppliers and their
officers, directors, affiliates, subcontractors acting in their capacity of
providing services to WWRE, agents and employees (collectively, "Indemnified
Parties" and each, individually, an "Indemnified Party") against
all costs, expenses, liabilities and damages incurred by any Indemnified Party
in connection with any third party claims arising out of (a) such User's usage
hereunder and/or engagement in transactions on the Site, including, but not
limited to, failure of any products or services to meet specifications or breach
of warranty, (b) such User's failure to comply with any applicable laws and
regulations (including without limitation those regarding the export of products
or technology abroad) or to obtain any licenses or approvals from the appropriate
government agencies necessary to purchase or sell the subject goods and services,
(c) such User's breach of any of its obligations set forth in the Terms and
Conditions; and (d) infringement claims asserted against WWRE based on its
use of User's intellectual and informational property; and (e) such User's
agreements or transactions with Third Party Providers. User shall not settle
any such claim without the written consent of the applicable Indemnified Party,
which such consent shall not be unreasonably withheld.
21. Limitation of liability
IN NO EVENT SHALL THE WWRE, NOR ANY OFFICER, AFFILIATE, DIRECTOR, SHAREHOLDER,
AGENT, SUBCONTRACTOR (INCLUDING WITHOUT LIMITATION TECHNOLOGY PROVIDERS AND
SUPPLIERS) ACTING IN ITS CAPACITY OF PROVIDING SERVICES TO WWRE, OR EMPLOYEE
BE LIABLE TO ANY USER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EARNINGS, OR
BUSINESS OPPORTUNITIES, OR EXPENSES OR COSTS, EVEN IF ADVISED OF THE POSSIBILITY
THEREOF, RESULTING DIRECTLY OR INDIRECTLY FROM, OR OTHERWISE ARISING (HOWEVER
ARISING, INCLUDING NEGLIGENCE) OUT OF: THE USE OF THE SITE BY THE USER, INCLUDING,
BUT NOT LIMITED TO, DAMAGES RESULTING FROM OR ARISING OUT OF SUCH USER'S RELIANCE
ON THE SITE AND/OR THE EXCHANGE, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS,
ERRORS, DEFECTS, DELAYS IN OPERATION, NON-DELIVERIES, MISDELIVERIES, TRANSMISSIONS,
EAVESDROPPING BY THIRD PARTIES, OR ANY FAILURE OF PERFORMANCE OF THE SITE AND/OR
THE EXCHANGE; ANY AGREEMENT ENTERED INTO BETWEEN ANY USER AND ANY THIRD PARTY
(OR THE NEGOTIATIONS OR DISCUSSIONS CONDUCTED IN ANTICIPATION OF ANY SUCH AGREEMENT),
WHETHER OR NOT SUCH THIRD PARTY IS A THIRD PARTY PROVIDER AS DEFINED IN THIS
USAGE AGREEMENT; THE TERMINATION OR SUSPENSION OF A USER'S ID AND PASSWORD
BY THE WWRE PURSUANT TO THE TERMS AND CONDITIONS; THE FAILURE, OR ALLEGED FAILURE,
OF ANY PRODUCT OR SERVICE PURCHASED OR TRANSFERRED PURSUANT TO THE EXCHANGE
TO CONFORM TO ANY SPECIFICATIONS OR TERMS, WHETHER PUBLISHED ON THE EXCHANGE
OR NOT; THE BREACH, OR ALLEGED BREACH, OF ANY WARRANTY, EXPRESS OR IMPLIED,
RELATING TO ANY SUCH PRODUCT, SERVICE OR SHIPMENT; OR GOVERNMENT RESTRICTIONS,
STRIKES, WAR, ANY NATURAL DISASTER OR FORCE MAJEURE, OR ANY OTHER CONDITION
BEYOND THE WWRE'S REASONABLE CONTROL. WWRE'S LIABILITY TO ANY USER OR ANY THIRD
PARTY IN ANY CIRCUMSTANCES IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF TRANSACTION
FEES PAID BY SAID USER OR PARTY IN THE ONE MONTH PERIOD PRIOR TO THE ACTION
GIVING RISE TO LIABILITY, OR (B) $1000. Some states do not allow the limitation
of liability for consequential or incidental damages, so the foregoing limitation
may not apply to you.
22. Government Users
If any User is an agency or department of the U.S. Government (the "Government"),
the use, duplication, reproduction, release, modification, disclosure, or transfer
of the Exchange, or any related documentation of any kind, including but not
limited to technical data or manuals, is restricted in accordance with FAR
12.212 for civilian agencies and DFAR Supplement 227.7202 for military agencies.
The software made available from, on or through this Site is commercial computer
software and commercial computer software documentation. The use of the software
made available from, on or through this Site by the Government is further restricted
in accordance with the Terms and Conditions.
23. Miscellaneous Provisions
These Terms and Conditions constitute the entire agreement and understanding
between the parties with respect to the User's use of the Site and the Exchange,
and supersede and replace any and all prior written or verbal agreements. Headings
are for reference only. A party's failure to insist upon or enforce strict
performance of any provision of the Terms and Conditions shall not be construed
as a waiver of any provision or right. Neither the course of conduct between
a User and WWRE nor trade practice shall act to modify any provision of the
Terms and Conditions. If any particular provision of the Terms and Conditions
is held to be invalid or unenforceable, such determination shall not affect
any other provision of the Terms and Conditions which shall remain in full
force and effect. In addition, if any provision contained in the Terms and
Conditions shall for any reason be held to be excessively broad as to activity
or subject, it shall be construed by limiting and reducing it, so as to be
enforceable to the extent compatible with applicable law. These Terms and Conditions
may not be assigned or transferred to third parties by any User without prior
written permission from WWRE. User shall not be construed to be a third party
beneficiary of any agreement between the WWRE and any supplier to the WWRE.
24. Copyright and trademark notices
The entire contents of the Site are copyrighted under the United States copyright
laws. WWRE or its licensors are the exclusive owners of the copyrights.
"WWRE," "WorldWide Retail Exchange," and the WWRE logo are
trademarks of the WorldWide Retail Exchange, LLC. |
