SMARTSOURCE TM PORTAL WEBSITE LICENSE AGREEMENT

Transcription

1 SMARTSOURCE TM PORTAL WEBSITE LICENSE AGREEMENT The SmartSource TM Portal Website application ("Website"), Copyright 2006 Iasta.com, Inc., is owned by Iasta.com, Inc., an Indiana corporation (hereinafter "Iasta"), and provides a venue for Users to participate in e-sourcing and Requests for Information, Requests for Quotation, or Requests for Proposals ( RFx ) projects (collectively, "E- Sourcing Projects"). Subject to the terms of this SmartSource Portal TM Website License Agreement (the "Agreement"), Iasta authorizes properly appointed Users to use the Website and the information available therefrom solely for purposes of participating in E- Sourcing Projects. For purposes of this Agreement, "Sponsor" shall mean those entities which contract with Iasta to use the Website for their E-Sourcing Projects, "Respondent" shall mean those participants, other than the Sponsor, in E-Sourcing Projects who place bids, submit information or otherwise respond to an RFx, and "User" shall mean a Sponsor, Respondent or any other person, company or entity which is authorized to use the Website by receiving a user name and password from Iasta or the Sponsor. 1. Acceptance of Agreement. By accessing the Website or Iasta's Internet servers ("Servers"), the User agrees to be bound by the terms of this Agreement. If User does not agree to this Agreement, the User should not use this Website. The material provided in this Website is protected by law, including but not limited to, United States copyright law and international treaties. The Users continued use of the Website or Servers constitutes the Users continued acceptance of this Agreement. 2. License. Iasta grants Users a revocable, nonexclusive, nontransferable license, without the right to sublicense, to access and make use of the Website for the sole purpose of participating in E-Sourcing Projects. 3. Term and Termination This Agreement continues in force and effect during User's use of the Website. The license provided under this Agreement terminates upon the User's breach of any term or provision of this Agreement or upon Iasta's revocation of the license. 4. Participation in E-Sourcing Projects The Respondent represents and warrants that the Respondent has the authority, whether individually or acting on behalf of an entity, to place a bid or otherwise respond on the Website in an E-Sourcing Project and that the Respondent will not provide an alias, place false bids, manipulate the pricing or bidding for an RFx, provide fraudulent information or provide information on the Website that is not accurate and complete as to Respondent's capabilities. The Respondent agrees that the final transaction resulting from the E-Sourcing Project is between the Respondent and Sponsor, and Iasta is not a party to such transaction. All sales and delivery disputes are to be settled directly between the Respondent and the Sponsor.

2 5. User Responsibility. User shall be responsible for providing, at its expense, all communication lines, hardware, other software, services and other materials and technology necessary for the User to access the Website and the Servers. Iasta shall have no responsibility for any failure of such items or any failure or limitation of the Internet or other computer hardware or software. 6. Intellectual Property. Copyrights in all material provided under or as part of the E-Sourcing Projects are owned and held by Iasta and/or Sponsor as the original creators of the Website and RFx (the "Materials"). "Iasta" and "SmartSource" are trademarks of Iasta. Except as stated herein, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Iasta. Permission is granted to display, copy, distribute and download the Materials for the purposes solely related to participating in the E-Sourcing Projects, provided the User does not modify the materials and that the User retains all copyright and other proprietary notices contained in the materials. This permission terminates automatically if the User breaches any terms or conditions of this Agreement or if Iasta revokes the license to the User as granted herein. Upon termination of the license, the User must immediately destroy any downloaded or printed Materials. The User also may not, without Iasta's prior written permission, "mirror" any material contained on this Website or on any other server. The User shall not reverse engineer, decompile, or disassemble the Website or communication protocol used by the Website. Any unauthorized use of any material contained on this Website may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. Other product and company names mentioned herein may be trademarks and/or service marks of their respective owners. 7. Confidentiality "Confidential Information" shall mean any confidential or proprietary information disclosed to a User, Iasta or the Sponsor (the "Receiving Party") by a User, Iasta or the Sponsor through the use of the Website or during the course of a E-Sourcing Project, including, but not limited to, pricing terms, sourcing information, product plans, specifications, training materials, software designs and code, User and user names, passwords, RFx, and any related information, materials or documents. Confidential information shall not include and information which: (a) is or becomes generally available to the public through no wrongful act of the Receiving Party; (b) was in the Receiving Party's possession prior to the time it was acquired from the disclosing party and which was not directly or indirectly acquired from the disclosing party; (c) is independently made available as a matter of right to the Receiving Party by a third party lawfully in possession thereof, and who was not, to the Receiving Party's knowledge, under an obligation to the disclosing party not to disclose it, or (d) is independently developed by or for the Receiving Party by persons not having exposure to the disclosing party's confidential information. The Receiving Party

3 agrees: (x) not to disclose, directly or indirectly, to any third party any portion of the Confidential Information; (y) 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 (z) promptly notify the disclosing party in writing upon learning of any unauthorized use or disclosure of the Confidential Information. 8. Representations, Warranty Disclaimer and Indemnification a. Representations Regarding License and Server Access. Iasta represents that it has the full and unencumbered right to license the Website and the right to grant User access to the applicable Servers and the content contained therein. b. Disclaimer of Warranty. While Iasta uses reasonable efforts to assure the inclusion of accurate and up-to-date information on the Materials, Iasta makes no warranties or representations as to their accuracy. Iasta assumes no liability or responsibility for any typographical, data input errors, calculation errors or other errors or omissions in the content on the Materials. IASTA PROVIDES THE WEBSITE, ITS SERVICES AND MATERIALS AS IS, WHERE IS, AND AS AVAILABLE, WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. IASTA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IASTA DOES NOT WARRANT (1) THAT THE WEBSITE OR ITS SERVICES WILL BE CONTINUOUS, UNINTERRUPTED OR SECURE, AND NOTIFIES THE USER THAT OPERATION OF THE WEBSITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF IASTA'S CONTROL, (2) THAT THE WEBSITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, (3) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR (4) THAT THE CONTENT WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. c. Disclaimer of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL IASTA BE LIABLE FOR (1) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE INFORMATION OR MATERIALS ON IASTA'S WEBSITE OR SERVER OR ANY ERROR IN OR DEFICIENCY OF THE WEBSITE OR SERVER, EVEN IF IASTA OR AN IASTA AUTHORIZED REPRESENTATIVE HAS

4 BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (2) ANY COSTS ARISING FROM THE USER'S OR OTHER THIRD PARTY USER'S USE OF MATERIALS FROM THE WEBSITE WHICH RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF ANY EQUIPMENT OR DATA OWNED BY THE USER, RESPONDENT OR ANY THIRD-PARTY. Iasta and its employees, officers, directors, agents, affiliates, subsidiaries and independent contractors shall not be liable to the User for any claims, causes of action, costs, expenses, damages or other liabilities of any nature which may arise from or be asserted against Iasta as a result of any dispute between a Sponsor and a Respondent, or otherwise between Users, arising directly or indirectly from an E-Sourcing Project or any other dealings between the User and a Respondent or the Sponsor ("Respondent Claims"). d. Indemnification. The User shall indemnify, defend and hold harmless Iasta and its employees, officers, directors, agents, affiliates, subsidiaries and independent contractors from and against any and all liability, loss, injury, claims, including Respondent Claims, costs, expenses, damages, attorney's fees, court costs, litigation expenses and related expenses ("Liabilities") which may be brought or asserted against Iasta by a person, company, or entity, including, but not limited to, other Users or third parties which are not parties to this Agreement (a "Third Party"), which Liabilities are based upon or arise, directly or indirectly, from (1) any performance or non-performance by the User under this Agreement or (2) any reliance upon or use by a Third Party or the User of any information or data provided or transmitted by the User through or during an E- Sourcing Project. 9. Relationship of Parties. The User agrees that no joint venture, partnership, employment or agency relationship exists between the User and Iasta or Sponsor as a result of this Agreement or the User's use of the Website. 10. Conflict with Other Agreements. Certain Users, including but not limited to the Sponsor, may have other agreements with Iasta in which Iasta grants licenses to that User to host or otherwise participate in E-Sourcing Projects as well as to use Iasta's software, Servers, Website or other proprietary information (the "Other Agreement"). With respect to any such User, in the event that any term or condition of the Other Agreement conflicts with any term or condition of this Agreement, the term or condition of the Other Agreement shall control. 11. Arbitration Any and all claims or disputes under this Agreement including, without limitation, disputes as to the existence, validity, interpretation, enforcement, breach, or termination of the Agreement and the enforceability of this Arbitration provisions shall be resolved exclusively and finally by binding

5 arbitration under the Code of Procedure of The National Arbitration Forum (the "Code") in effect at the time the claim is filed. The Code is available at Arbitration shall be conducted in Indianapolis, Indiana. All proceedings, including discovery, shall be in accordance with the rules of the Code, subject, however, to applicable Indiana law both as to the content of the arbitration and the substantive law. Notwithstanding any choice of law provision included in this Agreement, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. 1-16) and the laws of Indiana pertaining to the enforcement of arbitration awards. Hearings shall be held as provided by the Code and if any in-person hearing is required, it shall be held in Indianapolis, Indiana. Each party shall bear its own cost of any legal representation, discovery, or research required to complete arbitration. 12. Governing Law. The terms of this Agreement and the User's use of this Website and all other matters related hereto shall be governed, construed and interpreted by the laws of the State of Indiana, excluding its conflict-of-laws rules. 13. Miscellaneous a. Entire Agreement. Except for the existence of an Other Agreement as provided in Section 10, this Agreement embodies the entire agreement relating to the subject matter hereof and supersedes any previous agreements or understandings in effect. If any part, term, or provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over the subject matter of this Agreement, the validity of the remaining portion or portions shall not be affected thereby. b. Headings. The headings used in this Agreement are for reference purposes only and shall not affect the construction or interpretation of this Agreement. c. Surviving Provisions. The provisions of this Agreement which by their nature call for a continuing obligation upon a party beyond the term, shall survive the termination of this Agreement. d. Authority. The User represents the User, or the representative accepting this Agreement on behalf of the User, has full and complete authority to enter into and bind the User to this Agreement.