Epylon Buyer Agreement

Thank you for joining the Epylon Corporation ("Epylon") Buyer community. Please read this complete Agreement carefully as it describes your responsibilities as a Buyer and limits our liability. This Epylon Supplier Agreement (the "Agreement") contains the terms and conditions under which we, Epylon Corporation ("Epylon"), offer access to the services we make available to buyers (as "Buyers") from time to time in connection with the eQuote, eCatalog, eContracts, and other eProcurement services available through our website (the "Epylon Services" or "Services") located at www.epylon.com and other sites, operated or managed by Epylon and its affiliates ("Epylon Sites"). This Agreement is made by and between Epylon and you as a Buyer for participation in the Epylon Services ("You," "Your" or "Buyer").

1. Accepting Epylon's Services. By clicking the "I Agree" box at the end of this Agreement, You agree to the terms and conditions in this Agreement. If You have any questions about this Agreement, please contact us by calling 1-888-211-7438 or by sending an email to . This Agreement, along with your Email Confirmation, as described below in Section 7, represents the entire agreement between the parties with respect to the Epylon Services, unless You have entered into a separate written agreement with Epylon or are required by Epylon to enter into a separate agreement. This online Agreement is for the provision of Epylon's basic, non-integrated services. You may obtain Epylon's additional services by entering into an offline Agreement.
2. Who Can Join; Amending This Agreement. Buyers consist of education, governmental, institutional and private sector entities that can form legally binding contracts under applicable law. In registering for Epylon's Services, You represent and warrant (a) You are older than eighteen years of age; (b) You have the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder on behalf of your organization. If You do not meet these requirements, please do not attempt to access or use our Services. Epylon offers additional services to Buyers that are not included in this Agreement. If you have any questions about the Epylon Services, please contact .
   1. Epylon reserves the right to restrict access to the Epylon Services to anyone who violates, at Epylon's sole determination, any term, condition or promise contained in this Agreement. Additionally, Epylon reserves the right to require those Buyers who, as mutually agreed require additional services, to enter into a superceding written Buyer Agreement.
3. Services. The Epylon Services include (a) "eCatalog;" and (b) "Contracts," which includes a listing of services and products (the "Products") distributed by suppliers and vendors which have registered with Epylon ("Suppliers"); (c) "eQuote," services that allow Buyers of the Epylon Site to solicit electronic price quotations and bid responses from Suppliers; and (d) any other procurement service that Epylon may provide from time to time.
4. Order Management. Epylon shall enable Buyer to search Suppliers' Products in the appropriate product categories within the Epylon "eCatalog" section and "Contracts" section, and participate in the Epylon Quotation Services, all in accordance with the Epylon Services' functionality and standard specifications. Epylon will use reasonable commercial efforts to allow Buyer to solicit quotations from Suppliers. Epylon will capture the order from Buyer, including the shipping, billing and payment information. Subsequently, Epylon shall send (electronically or otherwise in a secure manner) Buyer's orders to the applicable Supplier. The Supplier and not Epylon, shall be responsible for all aspects of sales fulfillment generated from orders for Supplier's Products through the Epylon Sites, including, without limitation, processing payments, shipping orders, providing order status information to Epylon (such as confirmation and shipping status), ordering and stocking inventory, processing exceptions and returns, refunds and credits. Epylon shall take no part in, and have no responsibility or liability for, the actual fulfillment of sales transactions and Buyer shall indemnify and hold Epylon (including its members, directors, principals, agents, servants, employees, and its suppliers, vendors, business partners and contractors involved, directly or indirectly, in the delivery and operation of the Epylon Services) harmless from and against any and all liabilities, claims, damages, costs and expenses arising from Buyer's orders placed through the Epylon Sites.
5. Access to the Epylon Services. During the term of this Agreement, Epylon shall allow You to use the Epylon Services only as necessary as a Buyer to conduct its procurement through the non-integrated Epylon Services and according to Epylon's directions and specifications. You shall be solely responsible, at Your own expense, for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it to connect to, access, and use the Epylon Services. Nothing in this Agreement shall allow You to conduct any integration, by Yourself or through any third parties, between the Epylon Services and Your financial and accounting systems, or create any derivative works, enhancements or modifications to the Epylon Services.
6. Epylon Technical Support. Epylon shall provide customer support to Buyers sufficient for questions involving use of the Epylon Services and for inquiries relating to the operation and hosting of the Epylon Services during the hours of 8:00 a.m. through 5:00 p.m., PST, in a manner consistent with its present customer support provided to Epylon's other Suppliers, including the following customer support services: (i) a customer service telephone number; (ii) a customer service email address; and (iii) online training features to Buyers to instruct them on conducting procurement through the Epylon Services.
7. Fees; Volume of purchases through the Epylon Services. You are obligated to pay to Epylon the fees under the payment terms disclosed to You in connection with the Epylon Services (the "Fees"). Epylon will provide to You the Fees via email or other means and will require You to confirm Your agreement to the Fee via email or other means requested by Epylon (your "Email Confirmation"). Receipt of your Email Confirmation by Epylon will complete the registration process. Your Email Confirmation and Your obligation to pay the Fees shall become a part of this Agreement and shall be incorporated by reference. If you fail to agree to Your Fee or if Epylon does not receive Your completed Email Confirmation, Your registration and this Agreement shall not be completed.
8. Epylon's Transaction Revenue. Epylon charges Suppliers a transaction fee for purchases by Buyers through the Epylon Services and additional fees, depending upon the services that they obtain from Epylon. Such transaction and other fees are outside the scope of this Agreement.
9. Availability of Our Website. Epylon's highest priority is Your buying success. However, we may experience website outages where the Epylon Services cannot be accessed. Epylon will use reasonable efforts to make the Epylon Sites available 24 hours per day, 7 days per week, except for downtime for scheduled and unscheduled maintenance, and will promptly investigate any technical problems that You report to us.
10. Representations. Each party represents that (a) it is authorized, empowered, and able to enter into and fully perform its obligations under this Agreement; and (b) its performance of this Agreement, and the other party's exercise of such other party's rights under this Agreement, will not conflict with or result in a breach or violation of any of the terms or provisions or contribute a default under any agreement to which it is a party. Epylon represents and warrants that (i) neither its Site nor the Epylon Services and any elements or parts thereof (other content placed on or within the Epylon Services or Epylon Sites by a third party, or content, services or software received by Epylon from a third party in order to be placed on or within the Epylon Services or Epylon Sites) will violate or infringe upon the patent, copyright, literary, privacy, publicity, trademark, service mark or any other personal or property right of any person; and (ii) no content of the Epylon Sites (other content placed on or within the Epylon Services or Epylon Sites by a third party, or content, services or software received by Epylon from a third party in order to be placed on or within the Epylon Services or Epylon Sites) will constitute libel, defamation, or an invasion or infringement of the privacy rights or publicity rights of any person or entity. Buyer represents and warrants that it will comply with all applicable laws, regulations and code, of any governmental authority of competent jurisdiction in its performance of this Agreement. NOTWITHSTANDING THE FOREGOING, THE EPYLON SERVICES, EPYLON SITES AND EPYLON DEVELOPED DELIVERABLES ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, EPYLON EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE EPYLON SERVICES, EPYLON SITES AND EPYLON DEVELOPED DELIVERABLES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, INFORMATIONAL CONTENT, INTERFERENCE WITH ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
11. Compliance with Legal Requirements for Purchasing. This website is designed for use in many legal jurisdictions. It is the responsibility of the Buyer and Supplier to know and comply with all federal, state and local requirements for purchasing, including but not limited to bid and quotation limits, Supplier group preference and taxation. Epylon may provide reference information about these requirements but Epylon does not provide legal advice and we encourage You to seek your own counsel on the rules that apply to Your transactions.
12. Government End Users. The Epylon Services are provided with RESTRICTED AND LIMITED RIGHTS. Use, duplication or disclosure by any United States federal government-related entity ("Government") is subject to restrictions as set forth in FAR 52.227-14 (June 1987) Alternate III (g)(3) (June 1987), FAR 52.227-19 (June 1987), or DFARS 52.227-7013 (c)(1)(ii) (June 1988), as applicable. In the event the Government seeks to obtain the Epylon Services pursuant to standard commercial practice, this software agreement, instead of the noted regulatory clauses, shall control the terms of the Government's license.
13. Ownership Rights.
    1. Epylon's Ownership Rights. Epylon owns all right, title and interest in and to (i) the Epylon Services, and the underlying methodology, software and the copyrightable structure of the organization, including the Epylon Developed Deliverables; (ii) any derivative works of the Epylon Services, including the Epylon Developed Deliverables; (iii) the Epylon Sites, and the underlying methodology and the copyrightable structure of the organization and presentation of the Epylon Sites as provided by Epylon; (iv) User Information as described in this Agreement (other than Buyer's User Information); and (v) all Epylon trademarks and other intellectual property incorporated therein. Epylon, the Epylon logo, Imagine More, edgXML and other marks are owned by Epylon. All other marks and written material that appear throughout the Epylon Sites belong to Epylon, members of the Epylon Services, or the respective owners of such marks and content, and are protected by U.S. and international copyright and trademark laws. Any use of any of the marks or content appearing throughout the Epylon Services without the express written consent of Epylon or the owner of the mark or content, as appropriate, is strictly prohibited. In accordance with our Privacy Policy, Epylon shall own all user data it collects from users of the Epylon Services and Epylon Sites, without right of accounting.
    2. Buyer Ownership Rights. Buyer owns all right, title and interest in and to Buyer's User Information.
14. Intellectual Property Infringement Claims. Upon receipt of notices complying or substantially complying with the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws, Epylon will investigate notices of alleged infringement and will take appropriate actions under the DMCA, as reasonably requested. Notices of claimed infringement should be directed to us via email to and via first class mail to:
    

    Epylon Corporation
    630 San Ramon Valley Blvd., Suite 210
    Danville, CA 94526
    Fax No.: (925) 407-1021
    Attention: General Counsel.

15. User Information. By using the Epylon Services, you will provide to us information relating to your purchases and will have access to certain information that other parties have provided to us ("User Information"). Buyer retains all ownership rights to the Buyer User Information. According to Epylon's privacy policy located on the Epylon Sites, Epylon will only provide Buyer's User Information to others in the ordinary course and context of a solicitation of or response to a bid or quotation, or purchase transaction through the Epylon Services. Epylon will not disclose Buyer's User Information in violation of its privacy disclosure policy except as required by valid legal process and then only in compliance with all applicable laws. Other than in summary form and in a manner consistent with its privacy policy, Epylon shall not, without Buyer's prior written consent, disclose to any third party a list of Buyer's transactions that Buyer engages in with any User in connection with the Epylon Services. Buyer shall not disclose or otherwise transfer non Buyer User Information to any third party other than in summary form and in a lawful manner consistent with its policies and procedures.
16. Passwords and Security. You agree at all times to maintain the confidentiality of Your user name and password. If You are a corporation, partnership or other legal entity, then you may allow Your employees authorization to use Your password. You shall be responsible for all activity and all charges by such employees. You agree not to permit a third party to use the Epylon Services through Your account. If there is a breach of security through Your account, You must immediately change Your password and notify us of the security breach by email at . You will be liable for any unauthorized use of our Services until You notify us of the security breach.
17. Confidentiality. Buyer treats this and all agreements entered by Buyer as public data. Notwithstanding the following, however, during the Term of this Agreement and thereafter, each party will use and reproduce the other party's Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other party's Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other party's Confidential Information to any third party without the prior written approval of the other party. Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or other governmental investigation or proceeding, provided the other party has been given prior notice and the disclosing party has sought all available safeguards against widespread dissemination prior to such disclosure. As used in this Agreement, the term "Confidential Information" refers to trade secrets, business plans, strategies, methods and/or practices; and any other information relating to either party or its business that is not generally known to the public, including but not limited to information about either party's personnel, products, customers, marketing strategies, services or future business plans. Notwithstanding the foregoing, the term "Confidential Information" specifically excludes (i) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the other party; (ii) information that is known to either party without restriction, prior to receipt from the other party under this Agreement, from its own independent sources as evidenced by such party's written records, and which was not acquired, directly or indirectly, from the other party; (iii) information that either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (iv) information independently developed by either party's employees or agents provided that either party can show that those same employees or agents had no access to the Confidential Information received hereunder.
18. Termination.
    1. Either party may terminate this Agreement (a) if the other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business; (b) upon the occurrence of a material breach of a material provision by the other party if such breach is not cured within thirty (30) days after written notice is received by the breaching party identifying the matter constituting the material breach; (c) by mutual consent of the parties; (d) immediately by Epylon, if it determines in its reasonable discretion that You are violating any term, condition or promise contained within this Agreement; or (d) by either party, for any reason with thirty (30) days' written notice. Epylon reserves to modify this Agreement with notice to You. If you fail to agree to any amendment, this Agreement will terminate upon notice to You by Epylon.
    2. Modification and Amendment. Epylon reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Epylon Services (or any part thereof) with or without notice. You agree that Epylon shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Epylon Services. Further, Epylon reserves the right to modify the terms of this Agreement with notice to You.
    3. Effect of Termination. Upon the expiration or earlier termination of this Agreement, the parties shall immediately cease exercising any of the rights granted pursuant to this Agreement other than those that survive beyond this Agreement as stated below in Section 28. Except as provided in Section 28, all rights granted herein to each party shall immediately upon the expiration or earlier termination of this Agreement revert in full to the owner.
19. Indemnification.
    1. Indemnification by Epylon. Epylon agrees to indemnify, defend, and hold Buyer harmless from any and all liabilities and expenses, including, without limitation, reasonable attorney's fees, expenses, costs, judgments, settlements, contract losses, or other costs arising out of or relating to claims that those facets of the Epylon Services or Epylon Sites originally developed by Epylon, not including software, materials or Services within or associated with the Epylon Services or Epylon Sites that is proprietary to, licensed by or performed by any third party ("Epylon Developed Deliverables") infringes a United States patent in existence as of the date of the applicable delivery order, or a copyright or a trade secret of any third party. Epylon will defend such claim at its expense and will pay any costs or damages that may finally be awarded against Buyer. Epylon shall not indemnify Buyer, however, if the claim of infringement is caused by (a) Buyer's misuse or modification of the Epylon Developed Deliverables; (b) Buyer's failure to use corrections or enhancements made available by Epylon; (c) Buyer's distribution, marketing or use for the benefit of parties other than Supplier of the Epylon Developed Deliverables; or (d) information, direction, specification or materials provided by Buyer. If the Epylon Developed Deliverables is, or in Epylon's opinion is likely to be held to be infringing, Epylon shall at its expenses and option either (i) procure the right for Buyer to continue using it; ii) replace or modify it with a non-infringing equivalent that has no material adverse effect on the performance required by Buyer; or (iii) terminate this Agreement. The foregoing remedies constitute Buyer's sole and exclusive remedies and Epylon's entire liability with respect to this Agreement. The foregoing indemnity is conditioned upon: prompt written notice by Buyer of any claim, action or demand for which indemnity is claimed; complete control of the defense and settlement thereof by Epylon; and such reasonable cooperation by the Buyer in the defense as Epylon may request.
    2. Buyer, at no additional cost to Epylon, agrees to indemnify, defend, and hold Epylon, its members, directors, principals, agents, servants, employees, and its suppliers, vendors, business partners and contractors involved, directly or indirectly, in the delivery and operation of the Epylon Services, harmless from any and all liabilities and expenses, including, without limitation, reasonable attorney's fees, expenses, costs, judgments, settlements, contract losses, or other costs arising out of or relating to (a) Buyer's misuse or modification of the Epylon Services, Epylon Sites or Epylon Developed Deliverables; (b) the Buyer's distribution, marketing or use for the benefit of parties other than Supplier of the Epylon Services, Epylon Sites or Epylon Developed Deliverables; (c) information, direction, specification or materials provided by Buyer; (d) Buyer's transactions with Suppliers; and (e) Buyer's breach of any of its representations, warranties, promises or obligations under this Agreement. The foregoing indemnity is conditioned upon: prompt written notice by Epylon of any claim, action or demand for which indemnity is claimed.
20. Limitations of Liability. Except for the specific remedies expressly identified as such in this Agreement, Epylon's (including its members, directors, principals, agents, servants, employees, and its suppliers, vendors, business partners and contractors involved, directly or indirectly, in the delivery and operation of the EPYLON Services, EPYLON SITES and Epylon developed deliverables) sole liability (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise) for any claim in any manner related to this Agreement, shall in the aggregate be limited to five thousand dollars ($5,000). In no event shall EPYLON (including its members, directors, principals, agents, servants, employees, and its suppliers, vendors, business partners and contractors involved, directly or indirectly, in the delivery and operation of the EPYLON Services, EPYLON SITES AND EPYLON DEVELOPED DELIVERABLES) be liable for any consequential, incidental, indirect, special or punitive damage, loss or expenses (including but not limited to business interruption, lost business, lost profits, lost savings, or any delay or inability to use the website or services) even if it has been advised of their possible existence. Any action by either party must be brought within two (2) years after the cause of action arose. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties. The parties agree further that they will look only to the corporate or firm assets of the other party in connection with any liabilities hereunder and in no event shall they have any claim against any employee, shareholder, business partner or holder of an ownership interest in the other party in connection with this Agreement. Any action by either party must be brought within two (2) years after the cause of action arose.
21. Choice of Law and Forum. This Agreement, its interpretation, performance or any breach thereof, shall be construed in accordance with, and all questions with respect thereto shall be determined by, the laws of the State of California applicable to contracts entered into and wholly to be performed within said state.
22. Local Market Focus. Buyer shall coordinate with Epylon in order to migrate a mutually agreed list of Buyer's vendors to the Epylon Services. Buyer agrees to contribute sufficient resources to determine with Epylon a sales and marketing strategy for migrating Buyer's vendors to the Epylon Services. Such sales and marketing strategy may include (i) co-drafting a letter to be sent by the parties to Buyer's list of vendors; (ii) co-participation in a vendor fair to recruit Buyer's list of vendors; and (iii) other marketing efforts, as mutually agreed. Epylon shall use reasonable commercial efforts to register such local vendors for the Epylon Services and shall be responsible for all facets of supplier integration, according to Epylon's standard specifications.
23. Relationship of Parties. Buyer and Epylon are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into agreements of any kind on behalf of the other.
24. Assignment. You may not assign this Agreement, in whole or in part without our prior written consent. This Agreement and the rights and obligations of each of us under it will be binding on our respective successors and permitted assigns with prior notice.
25. Entire Agreement; Modifications. This Agreement represents the entire agreement between the parties with respect to Epylon's Services, unless You have entered into a separate written contract with Epylon.
26. Notices. We will provide you with notices via email to the address You provide us in your registration, or, at our discretion, via certified U.S. Mail, to the address you provided to us in your registration or any other address you may subsequently specify. You will provide notices to us via email to and via first class mail to:
    

    Epylon Corporation
    630 San Ramon Valley Blvd., Suite 210
    Danville, CA 94526
    Fax No.: (925) 407-1021
    Attention: General Counsel.

27. Force Majeure. Neither party shall be liable for any delays or other failures to perform resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, website, or power outages, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
28. Survival. All terms of this Agreement which by their nature extend beyond its termination, including specifically Sections 7, 10, 12-17, 18 b, 19-21 and 23-28, remain in effect until fulfilled, and apply to respective successors and assigns.