PowerAdvocate Terms of Use (Version: January 14, 2008)

  1. Background
    2.

    The website on which these Terms of Use are posted -- accessed at http://www.poweradvocate.com -- (the "Site") allows individuals or entities with registered Users (as defined below) to request and collect or to provide information on, or to obtain or submit bids or other offers for the purchase or sale of, goods and services. A "Participating Company" is an individual or a legal entity that has Users that have registered to participate on the Site. A Participating Company submitting information on, or bids or other offers to sell, goods or services (including any entity acting as a representative or agent for another) on the Site is referred to as a "Supplier Company." A Participating Company posting a request on the Site, or otherwise requesting or collecting information on, or receiving bids or offers for the purchase of, goods or services from Supplier Companies is referred to as a "Buyer Company." The employees or authorized agents of a Participating Company are referred to as "Users."

    The following describes the terms and conditions ("Terms of Use," or "Agreement") applicable to the use by Participating Companies of the Site. Except as expressly stated otherwise, all terms apply equally to Supplier Companies and to Buyer Companies.

    In exchange for using the Site, each Participating Company and each User agrees to be legally bound by this Agreement.

  2. Registration

    3. Each User must register on the Site. Registration must be complete before Users are authorized to participate on the Site.

  3. User Names and Passwords

    4. Each User will be issued a unique user name and password upon registration. Each Participating Company agrees to take all reasonable precautions to maintain as confidential the user names and passwords of its Users. Each Participating Company agrees not to provide access to the Site to any persons other than authorized Users through use of their user names or passwords and to notify PowerAdvocate upon becoming aware of any loss or theft of a user name or password or an unauthorized use of the Site or a user name or password. Access to the Site by means of screen scrapers, web crawlers or similar methods is prohibited. A Participating Company will be responsible for all use of its user names and passwords by any person or entity. At its sole discretion and at any time, PowerAdvocate may disable one or more user names or passwords or otherwise deny a User access to the Site.

  4. PowerAdvocate's Role

    5. PowerAdvocate may be involved on the Site in many ways, including by assisting a Buyer Company with the preparation and posting of a request for proposals, by promoting Supplier Company participation, and by facilitating Participating Company use of the Site through helpdesk services. PowerAdvocate will not take title to, or otherwise have any liability for, any products or services sold or offered for sale on the Site, and each Participating Company hereby releases PowerAdvocate from any such liability. PowerAdvocate is not responsible for any material posted on the Site by a Participating Company. PowerAdvocate has no obligation to monitor the content on the Site. PowerAdvocate has the right, but not the obligation, to remove any material posted on the Site, including any material that is alleged to violate an intellectual property right (whether or not the allegation proves accurate) or that may violate these Terms of Use or applicable laws.

  5. Participating Company's Role

    6. Each Participating Company is responsible for all activities carried out on the Site by its Users, and ensuring that each of its Users abides by the Terms of Use, as they are amended from time to time and appear on the Site. All Users must be employees or authorized agents of a Participating Company and authorized by that Participating Company to conduct business on the Site. A Participating Company shall inform PowerAdvocate immediately of any change in a User's status that affects that User's right to use this Site. Should a Participating Company fail to do so, that Participating Company will continue to be responsible for all the User's activities on the Site.

    The applicable Buyer Companies and Supplier Companies are responsible for determining the final terms and conditions between them with respect to a purchase and sale of goods or services arising out of their use of the Site, including pricing, warranties, logistics, transportation, and inspection as required. If a Buyer Company elects to purchase any goods or services, that Buyer Company and the successful Supplier Company(s) will enter into any contracts they deem necessary and PowerAdvocate will not be a party thereto.

    Each Participating Company warrants and covenants that its purchase or sale of goods or services on the Site, its Participating Company Information (as defined in paragraph 9), its posting of any materials on the Site, and its other uses of the Site do not and shall not: (a) infringe any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or other proprietary rights or rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including, without limitation, those governing export control, unfair competition, deceptive trade practices, and false advertising); or (c) be scandalous, deceptive, inaccurate, misleading, defamatory, libelous, obscene, harassing or threatening. Each Participating Company will comply with all applicable laws, statutes, ordinances and regulations regarding its use of the Site, and regarding its ordering of, bidding on or purchase of goods and services, and its posting and retrieval of information, on or through the Site.

    Any Supplier Company acting as a representative or agent for another Supplier Company (e.g., a manufacturer's representative) acknowledges and agrees that these Terms of Use are intended to bind itself and the Supplier Company that it represents. Each Participating Company represents and warrants that it has all necessary right, title and interest to enter into this Agreement and to perform its obligations under this Agreement and, in the case of a Supplier Company acting as a representative for another Supplier Company, that it has the power to bind that other Supplier Company to these Terms of Use.

  6. Third Party Links

    7. The Site may contain links to third-party web sites not under the control or operation of PowerAdvocate. PowerAdvocate does not endorse these third-party web sites, and is not responsible for the contents of any linked site or any link contained in a linked site. A Participating Company may provide a hypertext link to the Site on another web site, so long as such link is done in good taste and does not create the false appearance that PowerAdvocate is associated with or sponsoring the linking web site. The use of techniques to frame the Site within a third-party web site is not permitted under this Agreement. PowerAdvocate reserves the right to revoke its consent to any link at any time in PowerAdvocate's sole discretion.

  7. Warranties and Limitations of Liability

    8. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. POWERADVOCATE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO: THE SITE; ANY GOODS, SERVICES OR INFORMATION OFFERED ON OR THROUGH THE SITE; ANY BID EVENTS THAT MAY BE CONDUCTED ON OR THROUGH THE SITE, INCLUDING (i) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, (ii) THAT THE SITE OR THE SERVICE WILL MEET A PARTICIPATING COMPANY'S REQUIREMENTS, WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, ACCURATE, SECURE OR OPERATE WITHOUT ERROR, AND (iii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. POWERADVOCATE MAKES NO REPRESENTATION OR WARRANTY AS TO THE CREDITWORTHINESS, TRUSTWORTHINESS AND ACCEPTABILITY OF ANY PARTICIPATING COMPANIES OR TO THE QUALITY, SUITABILITY, OR CONDITIONS OF GOODS AND SERVICES PROCURED FROM OR THROUGH ANY PARTICIPATING COMPANIES.

    TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, POWERADVOCATE AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND AGENTS, WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, REVENUES OR DATA), ARISING OUT OF OR IN CONNECTION WITH THE SITE, USAGE OF THE SITE, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED THROUGH, OR TRANSACTIONS ENTERED INTO AS A RESULT OF USING THE SITE.

    THE LIMITATIONS OF LIABILITY PROVIDED IN THESE TERMS OF USE INURE TO THE BENEFIT OF POWERADVOCATE, AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS.

    IN THE EVENT THAT A PARTICIPATING COMPANY HAS A DISPUTE WITH ANOTHER PARTICIPATING COMPANY, BOTH SUCH PARTICIPATING COMPANIES HEREBY RELEASE POWERADVOCATE, AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, FROM ALL CLAIMS, LOSSES, LIABILITIES, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHERWISE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.

  8. Confidential Information

    9. PowerAdvocate does not disclose the confidential or proprietary information collected on the Site by a Buyer Company, except as permitted by that Buyer Company. PowerAdvocate enters into separate written contracts with Participating Companies, mainly its Buyer Company customers, that include PowerAdvocate's sole obligations concerning the use or nondisclosure of confidential or proprietary information collected or posted on the Site.

  9. Intellectual Property

    10. "PowerAdvocate", the PowerAdvocate logo and "Real Results for a Complex World" are trademarks or service marks of Power Advocate, Inc. 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. All ownership rights -- including all right, title, and interest in all patents, copyrights, trademarks, trade secrets and other intellectual property rights -- in the Site, including any software associated with the operation or functioning of the Site, are and will remain in PowerAdvocate or its licensors. Each Participating Company will not undertake to copyright, trademark or patent the Site, or any portion thereof. Each Participating Company acknowledges that all or portions of the Site (including the software associated with the operation or functioning of the Site) may be copyrighted, trademarked or patented by PowerAdvocate or another party. Each Participating Company acknowledges that no such act will cause or be construed as causing any portion of the Site to be in the public domain. Each Participating Company will not, and will not attempt to, modify, reverse engineer, disassemble or decompile the Site, or permit or cause any third party to do so on Participating Company's behalf. Any changes, advice, modifications or evaluations of or concerning the Site generated or proposed by a Participating Company will be the exclusive property of PowerAdvocate and will not give the Participating Company any right, title or interest in or to the Site. All ideas, concepts, know-how or techniques relating to the use, operation or functioning of the Site will be the exclusive property of PowerAdvocate or PowerAdvocate's licensors.

    A Participating Company is granted only a limited, revocable, non-transferable license to print and download portions of any materials created by PowerAdvocate ("PowerAdvocate Materials") and posted on the Site solely for Participating Company's internal use, provided Participating Company maintains any copyright notice and any other notices that appear on any such copies. Any other copying, redistribution, publication, or retransmission of any portion of any PowerAdvocate Materials on the Site by a Participating Company is strictly prohibited without the express written permission of PowerAdvocate. Each Participating Company shall also maintain any copyright notice and any other notices that appear on any materials created by any third party and posted on the Site.

    PowerAdvocate retains all rights to any data, modules, components, designs, utilities, subsets, objects, program listings, tools, models, methodologies, programs, systems, analysis frameworks, leading practices ("Technical Elements") owned or developed by PowerAdvocate prior to, or independently from, the provision of the Site (and any modifications or enhancements to PowerAdvocate's Technical Elements developed in the course of providing the Site) (collectively, "PowerAdvocate Technical Elements") and PowerAdvocate retains exclusive ownership rights to all PowerAdvocate Technical Elements. PowerAdvocate retains all rights to its knowledge, experience and know-how (including processes, ideas, concepts and techniques) acquired in the course of providing the Site, and, subject to the confidentiality obligations in the separate contracts referenced in Section 8, each Participating Company hereby grants to PowerAdvocate a perpetual, worldwide, paid-up license to use, copy, modify and/or sublicense, in the course of PowerAdvocate's business, any Technical Elements acquired or developed as a result of providing the Site.

  10. Participating Company Information

    11. "Participating Company Information" shall mean any and all contact information (name, address, phone numbers, email address) that each User of a Participating Company provides to PowerAdvocate during registration. Participating Company shall ensure that Users provide true, accurate, current and complete Participating Company Information and that the Participating Company Information is office or home office contact information and is not private home contact information. PowerAdvocate uses the Participating Company Information in furtherance of, and consistent with, the Site.

  11. Governing Law and Jurisdiction

    12. This Agreement shall be deemed to have been made and performed entirely in the Commonwealth of Massachusetts, and shall be governed by and construed pursuant to the laws of the Commonwealth of Massachusetts without regard to its provisions regarding the conflicts of laws. Each Participating Company and PowerAdvocate hereby agree the state and federal courts of Massachusetts shall be the exclusive forum and venue to resolve disputes involving PowerAdvocate and arising out of or relating to these Terms of Use or any Participating Company's use of the Site or the Service. By using the Site and thereby agreeing to these Terms of Use, a Participating Company consents to personal jurisdiction and venue in the state and federal courts in Massachusetts with respect to all such disputes.

  12. Amendment

    13. PowerAdvocate may modify this Agreement from time to time by posting the modified Agreement on the Site. Any use by the Users of a Participating Company of Site after the posting of the modified Agreement constitutes that Participating Company's agreement to be bound by such modified version of this Agreement. PowerAdvocate reserves the right to change the Site at its discretion at any time. PowerAdvocate may add or remove features, services or otherwise modify the Site, all without any liability whatsoever.

  13. Order of Precedence

    14. THESE TERMS OF USE SHALL NOT ALTER OR OVERRIDE ANY CONFLICTING TERMS AND CONDITIONS OF ANY OTHER WRITTEN CONTRACT THAT A PARTICIPATING COMPANY MAY HAVE WITH POWERADVOCATE OR WITH ANOTHER PARTICIPATING COMPANY. In the event of any conflicting terms under a written contract signed by a Participating Company with PowerAdvocate and these Terms of Use, the terms of the written contract will prevail over the conflicting terms in these Terms of Use.

  14. Miscellaneous

    15. Any notice, report, approval, or consent required or permitted under this Agreement shall be in writing and in the English language. Notices to PowerAdvocate may be sent to Power Advocate, Inc., 55 Summer Street, 9th Floor, Boston, MA 02110, Facsimile: 617-896-7505, Attention: Daniel P. Sullivan.

    No failure or delay in exercising any right under this Agreement will operate as a waiver thereof, nor will any partial exercise of any right or power under this Agreement preclude further exercise. If any provision of this Agreement is unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. For all purposes under this Agreement, each party shall be and act as an independent contractor of the other and shall not bind nor attempt to bind the other to any contract with third-parties. No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended nor created by this Agreement.