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TERMS OF SERVICE |
Welcome to MyOEM's Terms of Service Agreement. This Agreement describes
the terms and conditions applicable to your use of our services at
the MyOEM Web site. Please read it carefully before submitting a registration
form. If you do not accept these terms and conditions or have any
questions, please contact info@myoem.com.
1. Agreement
2. Registration
3. Modification of Agreement (including Prices, Bidding
Policies and Privacy Policy)
4. MyOEM Web-based Services
5. Use of MyOEM Web-based Services
6. Offensive, Libelous or Unlawful Messages
7. MyOEM Content; Intellectual Property Rights
8. Indemnity
9. Termination of Agreement
10. Limited Warranty
11. LIMITATION OF LIABILITY
12. No Agency or Partnership
13. Assignment
14. Notices
15. Force Majeure
16. Entire Agreement; No Severability or Unintentional
Waiver
17. Governing Law
1. Agreement
The MyOEM Web-based Services (as defined below) are owned and operated
by MyOEM, Inc. ("MyOEM"), and are provided to members under the terms
and conditions of this MyOEM Terms of Service Agreement ("Agreement")
and the Bidding Policies and Privacy Policy, which are incorporated
herein by reference. By submitting a MyOEM Client registration form,
a user acknowledges that it agrees to be bound by this Agreement.
2. Registration
To access the MyOEM Web-based Services, you must submit a complete
MyOEM Client registration form on behalf of yourself or the entity
subscribing to the MyOEM Web-based Services ("Subscriber"). By submitting
a registration form, you represent and warrant (a) that you are 18
years of age or over, (b) that your are either a sole proprietorship
or that you are authorized to sign for and bind the Subscriber, and,
(c) that Subscriber's business is authorized to operate as identified
on the registration form. Subscriber shall provide current, complete
and accurate information, and periodically update the information
(including credit card information, if applicable) as required to
keep it current, complete and accurate. If MyOEM discovers that any
information Subscriber provided is inaccurate, incomplete or not current,
then MyOEM may terminate Subscriber's right to access and receive
MyOEM Web-based Services immediately without notice. MyOEM will evaluate
the registration form in good faith, and following consultation with
a MyOEM representative, will notify Subscriber in a timely manner
regarding acceptance or rejection. MyOEM may reject a registration
form if it determines (at its sole discretion) that the Subscriber
is not an appropriate subscriber or user of the MyOEM Web-based Services.
MyOEM is not required to provide a reason for its rejection. If MyOEM
rejects Subscriber's registration, then Subscriber may reapply, and
MyOEM will consider the registration.
3. Modification of Agreement
(including Prices, Bidding Policies and Privacy Policy)
MyOEM may modify this Agreement at any time by posting the new terms
and conditions on MyOEM's web site (the "Web Site"). The amended terms
shall automatically be effective ten (10) days after they are initially
posted on the Web Site. This Agreement may not be otherwise amended
except in writing signed by both parties. If the modifications are
unacceptable to Subscriber, then Subscriber may terminate this Agreement
by giving written notice of termination to MyOEM.
4. MyOEM Web-based Services
Upon acceptance of Subscriber's application for registration, MyOEM
shall provide the MyOEM Web-based Services, subject to the terms and
conditions of this Agreement.
a. Description. The MyOEM Web-based Services were developed by MyOEM
to facilitate commerce and collaboration between and among MyOEM,
its clients, outsourcing providers, and service vendors. The term
"MyOEM Web-based Services" refers to any or all of the following services:
(1) authorizing access to and use of the Web Site, including password-protected
or other secure portions of that Web Site; (2) making available MyOEM's
facilities and its other technology to process Requests for Proposal
("RFPs") from potential purchasers; (3) processing and making available
RFPs within particular categories to potential suppliers; (4) processing
bids from potential suppliers within certain categories; and (5) providing
for online availability of certain services, or agreements to purchase
such services from certain suppliers.
b. Availability. The availability of the MyOEM Web-based Services
depends on many factors, including Subscriber's connection to the
Internet, the availability of the Internet and the Internet backbone
and equipment that, by its nature, is not fault tolerant. MyOEM will
use reasonable efforts to make the MyOEM Web-based Services available
24 hours per day, seven days per week, except for downtime for scheduled
and unscheduled maintenance, and will promptly investigate any problems
that Subscriber reports to MyOEM.
5. Use of MyOEM Web-based
Services
a. No Fraud or Manipulation. Subscriber shall not manipulate any proposal
response or RFP, or otherwise misuse the MyOEM Web-based Services
in any way. Without limiting the generality of the foregoing, Subscriber
shall submit or accept information only from its own account, and
shall not use any automated device, software or algorithm to respond
to RFPs or proposal response.
b. Passwords and Security. Subscriber shall at all times maintain
the confidentiality of its user names and passwords. Permitting use
of the MyOEM Web-based Services by a third party is prohibited and
is a violation of this Agreement. If there is a breach of security
through Subscriber's account, Subscriber must immediately change its
password and notify MyOEM customer service at service@myoem.com.
Subscriber will be liable for any unauthorized use of the MyOEM Web-based
Services until Subscriber notifies MyOEM of a breach of security.
6. Offensive, Libelous or
Unlawful Messages
a. No Offensive or Unlawful Messages. Subscriber shall not submit
any RFPs, responses, Feedback or other information or materials that
(1) shall be fraudulent; (2) shall infringe on any third party's copyright,
patent, trademark, trade secret or other proprietary rights or rights
of publicity or privacy; (3) shall violate any law, statute, ordinance
or regulation (including without limitation those governing expert
control, consumer protection, unfair competition, anti-discrimination
or false advertising); (4) shall be defamatory, trade libelous, unlawfully
threatening or unlawfully harassing; (5) shall be obscene or offensive;
or (6) shall contain any viruses or other computer programming routines
that are intended to damage, detrimentally interfere with, surreptitiously
intercept or expropriate any system, data or personal information.
b. MyOEM Right to Remove. MyOEM reserves the right not to post, or
to remove any such data or materials without notice, and without liability
to MyOEM. Subscriber releases MyOEM from any claims or allegations
that may result from such removal. If MyOEM is made aware of Feedback
that is potentially in violation of Section 7(a), MyOEM will investigate
the charge and determine, in its sole discretion, whether removal
of the Feedback is warranted, and may remove such Feedback.
7. MyOEM Content; Intellectual
Property Rights
a. Ownership and Limitations on Use of MyOEM Web-based Services. MyOEM
(and its suppliers) retains ownership of all right, title and interest
in and to the MyOEM Web-based Services and MyOEM Content (defined
below), subject to its subscribers' rights in any Subscriber Information.
Subscriber shall not reproduce, duplicate, copy, sell, resell or exploit
for any commercial purpose the MyOEM Web-based Services or access
to the MyOEM Web-based Services. Subscriber shall not reverse engineer,
de-compile, or otherwise attempt to derive source code from any software
accessible or available through the MyOEM Web-based Services.
b. Definitions of Subscriber Information and MyOEM Content. By using
the MyOEM Web-based Services, Subscriber will have access to information
that other companies have provided to MyOEM only under the terms and
conditions of this Agreement ("Subscriber Information"), with the
understanding that it will be kept confidential. The Subscriber Information
is one component of the MyOEM Content. In this Agreement, "MyOEM Content"
refers to any data, information, files (including software) or graphics
that is available on the Web Site and that is protected by copyrights,
trademarks and other intellectual and proprietary rights.
c. Restrictions on Use of MyOEM Content. This Agreement and applicable
copyright and other laws (including laws regarding confidential information
and other proprietary rights) govern use of the MyOEM Content. The
burden of determining that any MyOEM Content is not protected by intellectual
or proprietary rights rests with Subscriber. (1) Subscriber may make
only a limited number of copies of MyOEM Content (except any software,
which Subscriber shall not copy except to download, if specifically
permitted), so long as any copyright, trademark or other proprietary
rights notices are included on those copies and so long as such copies
are not distributed except to Subscriber's employees who have signed
confidentiality agreements covering third-party confidential information.
(2) Subscriber may use the MyOEM Content only for investigating the
possibility of selling or buying the other subscribers' services,
and shall not use any Subscriber Information for direct marketing
or other sales contacts not provided by MyOEM. (3) Subscriber shall
not disclose any Subscriber Information (except its own) to any third
parties.
d. Subscriber's Information. By submitting an RFP, Feedback, a bid
or any other information, files or other content to the MyOEM Web-based
Services, Subscriber acknowledges, understands and agrees that such
information becomes "Subscriber Information," and grants to MyOEM
and its affiliates a royalty-free, perpetual, irrevocable, non-exclusive
right (including a waiver of any applicable moral rights), worldwide
license to use, reproduce, modify, adapt, publish, translate, create
derivative works from, distribute, perform and display such Subscriber
Information. Subscriber also represents and warrants that the holder
of any intellectual property or other proprietary rights in Subscriber
Information has licensed, waived or assigned to Subscriber such rights
necessary for Subscriber to grant the license to MyOEM referred to
above. MyOEM's use of Subscriber Information is subject to the Privacy
Policy.
8. Indemnity
Subscriber hereby agrees to, at its own expense, indemnify, defend
and hold MyOEM (and MyOEM's officers, directors, stockholders, employees
and agents) harmless for, from and against any and all loss, cost,
damages, liability, or expense, arising out of or relating to (a)
a third-party claim, action or allegation of infringement based on
information, data, files or other content submitted by Subscriber,
(b) any fraud or manipulation, or other breach of this Agreement,
by Subscriber, or (c) any third-party claim, action or allegation
brought against MyOEM arising out of or relating to a dispute between
Subscriber and other users of the MyOEM Web-based Services over the
terms and conditions of a contract or related to the purchase and
sale of any services.
9. Termination of Agreement
a. Suspension or Termination for Subscriber's Breach. If Subscriber
breaches any of the terms or conditions of this Agreement, MyOEM may,
in its sole discretion, suspend provision of the MyOEM Web-based Services
(including access) or terminate this Agreement. Whether or not a breach
results in suspension or termination depends on several factors, including
but not limited to the severity of the breach, the potential harm
to other Subscribers, MyOEM or the MyOEM Web-based Services, and whether
or not the breach is repeated or cured. If MyOEM suspends Subscriber's
right to access or use the MyOEM Web-based Services, then MyOEM shall,
within 24 hours, provide notice to Subscriber of such suspension.
If Subscriber does not cure the breach that led to the suspension,
or does not provide adequate assurances of its future compliance with
the Agreement, then MyOEM may terminate this Agreement upon notice
to Subscriber.
b. Termination by Subscriber. Subscriber may terminate this Agreement
by providing 30 days advance written notice to MyOEM, so long as Subscriber
does not have any bids or RFPs outstanding as of the date of termination.
c. Effect of Termination. Termination is in addition to all other
legal or equitable remedies available to either party. Upon termination
of this Agreement for any reason, Subscriber shall cease to use any
MyOEM Content provided under this Agreement.
10. Limited Warranty
MyOEM cannot warrant that the MyOEM Web-based Services will be secure
or be continuously available, or that information provided (including
Contacts) will be accurate. MYOEM MAKES NO WARRANTIES REGARDING THE
WEB SITE OR MYOEM WEB-BASED SERVICES, AND HEREBY DISCLAIMS ALL WARRANTIES
WITH RESPECT TO THE MYOEM WEB-BASED SERVICES AND THE WEB SITE, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE STATUTORY
WARRANTY AGAINST NON-INFRINGEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION
GIVEN BY MYOEM, OR ITS EMPLOYEES OR REPRESENTATIVES, WILL CREATE A
WARRANTY; NOR SHALL SUBSCRIBER RELY ON ANY SUCH INFORMATION OR ADVICE.
The terms of this Section will survive any termination of this Agreement.
11. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, WILL MYOEM OR ITS SUPPLIERS OR AFFILIATES
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
(HOWEVER ARISING, INCLUDING MYOEM'S NEGLIGENCE) THAT RESULT FROM SUBSCRIBER'S
USE OF OR INABILITY TO USE THE MYOEM WEB-BASED SERVICES. MYOEM'S TOTAL
AGGREGATE LIABILITY ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT
WILL NOT EXCEED THE AMOUNTS RECEIVED BY MYOEM FROM SUBSCRIBER DURING
THE 12 MONTHS PRIOR TO THE OCCURRENCE OF THE FACTS GIVING RISE TO
SUCH A CLAIM. SUBSCRIBER HEREBY ACKNOWLEDGES THAT THIS PROVISION WILL
APPLY WHETHER OR NOT MYOEM IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH
DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL SERVICES OR SOFTWARE
AVAILABLE FROM MYOEM OR ITS AFFILIATES. The terms of this Section
will survive any termination of this Agreement.
12. No Agency or Partnership
Subscriber and MyOEM are independent contractors, and no agency, partnership,
joint venture, employee-employer or franchisor-franchisee relationship
is intended or created by this Agreement.
13. Assignment
Subscriber shall not assign this Agreement or any of its rights or
obligations without the prior written consent of MyOEM, and any such
attempted assignment will be void. Subject to the above, this Agreement
will be binding upon the parties' respective successors and permitted
assigns.
14. Notices
MyOEM shall provide notice to Subscriber via email, or (at its discretion)
via certified U. S. mail, to the address provided on the registration
form or such other address provided by Subscriber to MyOEM. Subscriber
shall provide notice to MyOEM via email to service@myoem.com,
with a copy sent via certified U.S. mail to the address on the registration
form. Notices will be effective 24 hours after sending if sent via
email (unless the sender receives a response indicating that the message
was undeliverable) or 3 business days after the mailing date, whether
or not received.
15. Force Majeure
MyOEM will not be liable in any amount for failure to perform any
obligation under this Agreement if such failure is caused by Internet
outages, earthquakes, communications outages, fire, flood, war, an
act of God or the occurrence of any other unforeseen contingency beyond
the reasonable control of MyOEM.
16. Entire Agreement; No
Severability or Unintentional Waiver
This Agreement constitutes the entire agreement between Subscriber
and MyOEM with respect to the MyOEM Web-based Services and supersedes
all prior agreements between Subscriber and MyOEM. MyOEM's failure
to enforce any provision of this Agreement will not be construed as
a waiver of any provision or right. In the event that a portion of
this Agreement is held unenforceable, the unenforceable portion will
be construed in accordance with applicable law as nearly as possible
to reflect the original intentions of the parties, and the remainder
of the provisions will remain in full force and effect.
17. Governing Law
The laws of the State of Arizona (excluding its choice of law rules)
will govern interpretation and enforcement of this Agreement. Subscriber
hereby consents to personal jurisdiction in the federal and state
courts of Arizona for any action arising out of or relating the MyOEM
Services. The federal and state courts of Maricopa County, Arizona
will have non-exclusive jurisdiction over all such actions. In any
such action, the prevailing party will be entitled to recover all
legal expenses incurred in connection with the action, including but
not limited to its costs, both taxable and non-taxable, and reasonable
attorneys' fees. The terms of this Section will survive any termination
of this Agreement.
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