v1.0

By indicating your acceptance of these Terms of Use either by manually executing these Terms of Use or by entering your Electronic Agreement on the RubberNetwork.com site by accessing the site of RubberNetwork.com, LLC at www.rubbernetwork.com and/or any and all other related internet addresses (collectively, “Site”), you agree on behalf of the company you represent (“Participant” or “You”) that You have read and Participant agrees to the following Terms of Use, Privacy Policy, and the Guidelines for Antitrust Compliance (“Antitrust Guidelines”), which are available at the Site (collectively “Terms of Use”) and that all of its users that access the Site (“Users”) will use the Site in accordance with the Terms of Use.

1. Participant Content. Participant grants RubberNetwork the right to use the content submitted by the Participant ("Participant Content") for all purposes associated with the Site and as disclosed in the RubberNetwork Privacy Policy applicable to the Participant Content at the time it is submitted to the Site. RubberNetwork is entitled to copy and store all information transmitted through the Site by or to Participant and to use that information in order to arrange Negotiated Purchases and other services and functions of the Site, provided that such information will be treated as Confidential Information pursuant to Section 4 below. Participant agrees that RubberNetwork may record and observe Transactions to assist RubberNetwork in providing and maintaining the Site, however RubberNetwork does not undertake any obligation to record or observe any or all Transactions. RubberNetwork may use and disclose any such information in an aggregated form that will not disclose the buying or selling habits of Participant or violate applicable laws. RubberNetwork operates the Site with functions and appearances determined by RubberNetwork from time to time (collectively “Marketplace”) for participants that buy and sell goods, materials and services (“Transactions”) including without limitation: (a) requests for quotes (information and/or proposal), auctions, reverse auctions, other public sales, and catalog procurement; (b) private vendor-vendee contract relationships; and (c) negotiated purchases by Buyers of certain non-strategic goods, materials and services that more than one participant of the Marketplace may decide to purchase (“Negotiated Purchase(s)”).
   
   
2. Marketplace Content and Functions. RubberNetwork and its licensors may provide certain content for the Marketplace (“Marketplace Content”). RubberNetwork may, but does not have the obligation to monitor the content provided by third parties that is made available through the Marketplace. In its discretion, RubberNetwork may remove any Participant Content, Marketplace Content or third party content from the Marketplace and change the functions of the Marketplace. RubberNetwork may modify the Marketplace, its functions and/or Marketplace Content at any time without notice.
   
   
3. Reservation of Rights. RubberNetwork and its licensors retain all the intellectual property rights in and to all aspects of the Site, including without limitation any related patent rights, copyrights, trade secrets, trade names, service marks, associated goodwill, moral rights, and any other similar rights or intangible assets recognized under any laws or international conventions.
   
   
4. Confidentiality. Participant and RubberNetwork may receive the information of another party that such party maintains as confidential, including the Transaction Information that is not publicly displayed on the Site and information that is deemed to be trade secrets under applicable law (“Trade Secrets”), (collectively “Confidential Information”) Each party agrees to protect the Confidential Information of the other party with the same measures as it protects its own, provided however, each party will use at least reasonable means to protect such Confidential Information. Each party agrees to use the Confidential Information of such party only as permitted herein. This obligation shall not extend to any information that (a) is known by a party prior to receiving it from the other party; (b) is in the public domain or becomes generally known to the public by some action other than breach of this Section 4; (c) is received from a third party without obligation of confidentiality; or (d) is independently developed by the receiving party. Each party’s obligations under this Section 4 shall extend for a period of five (5) years from termination, expiration or cancellation of Participant’s access or use, whichever is later in time, of the Site or the Marketplace except to the extent applicable trade secret law requires the obligation to continue. RubberNetwork and Participant will institute and maintain procedures to protect Competitively Sensitive Information. Participant and RubberNetwork agree that Confidential Information shall include without limitation the prices associated with the Transactions on the Site. This confidentiality obligation shall supersede all prior confidentiality or nondisclosure agreements that might affect the Confidential Information disclosed pursuant to these Terms of Use.
   
   
5. RubberNetwork Representations and Warranties. RubberNetwork hereby represents and warrants to Participant that (i) it has all requisite rights and authority to enter into these Terms of Use and to grant all rights granted herein; (ii) the performance of these Terms of Use shall not violate, conflict with, or result in a material default under any other agreements, including confidentiality agreements between RubberNetwork and third parties; and (iii) any content created by RubberNetwork for the Marketplace: (a) shall not infringe or misappropriate any third party's copyright, patent, trademark, trade secret or other intellectual property right or proprietary rights of any third party; and (b) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, unfair competition, anti-discrimination or false advertising).
   
   
6. Participant Representations and Warranties. Participant hereby represents and warrants to RubberNetwork that (i) it has all requisite rights and authority to enter into these Terms of Use, and, if applicable, the Participant Agreement, and to grant all applicable rights; (ii) the performance of these Terms of Use, and, if applicable, the Participant Agreement, shall not violate, conflict with, or result in a material default under any other agreement, including confidentiality agreements between the Participant and third parties, (iii) any application and other information submitted to RubberNetwork by Participant is true, accurate and correct; (iv) the Administrative Users are duly appointed officers or designated employees of Participant authorized to legally bind Participant in all matters related to these Terms of Use and the Participant Agreement; (v) any Participant Content provided to RubberNetwork for the Site: (a) shall not infringe or misappropriate any third party's copyright, patent, trademark, trade secret or other intellectual property right or proprietary rights of any third party; and (b) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, unfair competition, anti-discrimination or false advertising).
   
   
7. Indemnification. Participant shall indemnify, defend and hold RubberNetwork and its affiliates, officers, directors, employees, shareholders, members or agents harmless from all damages, liabilities and expenses (and all legal costs including attorneys' fees, court costs, expenses and settlements resulting from any action or claim) arising out of, connected with or resulting in any way from any violation of these Terms of Use, the Participant Agreement, if applicable, or applicable law by Participant or its Users.
   
   
8. Disclaimer. THE SITE AND THE MARKETPLACE AND ALL INFORMATION ON THE SITE AND IN THE MARKETPLACE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, RUBBERNETWORK DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. RUBBERNETWORK MAKES NO WARRANTIES ABOUT (i) THE ACCURACY, RELIABILITY, ACCESSIBILITY, COMPLETENESS, OR TIMELINESS OF ANY INFORMATION SUPPLIED BY ANY PARTICIPANT, USER OR OTHER THIRD PARTY, (ii) WHETHER PARTICIPANT SHOULD ENTER INTO TRANSACTIONS WITH ANY OTHER PARTICIPANT AND THE ENFORCEABILITY OF ANY TRANSACTIONS OR OBLIGATIONS, (iii) THE ACCURACY OF POSTINGS MADE ON THE SITE OR IN THE MARKETPLACE BY ANY PARTICIPANT, USER OR ANY THIRD PARTY, OR (iv) THE RESULTS THAT MAY BE OBTAINED BY USING THE SITE OR THE MARKETPLACE.
   
   
9. Limitation of Liability. IN NO EVENT SHALL RUBBERNETWORK OR PARTICIPANT OR THEIR RESPECTIVE AFFILIATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, RESULTING FROM THE USE OR INABILITY TO USE THE SITE OR MARKETPLACE, WHETHER SUCH LIABILITY IS BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall the total liability of RubberNetwork, or, its affiliated companies, officers, directors, employees, shareholders, members and agents, under these Terms of Use, the Agreement or otherwise, regardless of the form of claim or action, exceed in the aggregate the amount of fees Participant paid to RubberNetwork during the immediately preceding six (6) months.
   
   
10. Equitable Relief. Participant agrees that any violation or threat of violation of these Terms of Use relating to the intellectual property rights related to the Site or Marketplace or the confidentiality obligations of the Participant hereunder may result in irreparable harm to RubberNetwork, for which damages would be an inadequate remedy. Therefore, in addition to any rights and remedies otherwise available at law, RubberNetwork shall be entitled to equitable relief, without being required to post any bond or other security, and to such other and further equitable relief as may be deemed proper under the circumstances. All remedies for any default or breach of these Terms of Use whether at law, in equity, or otherwise shall be non-exclusive unless expressly stated otherwise, and RubberNetwork shall be entitled to recover attorneys’ fees and costs in any action on Participant’s default.
    
    
11. Parties. Participant and RubberNetwork are independent organizations acting for their own account and neither party is the partner, joint venturer or agent of the other. RubberNetwork is not a party to any of the Transactions.
    
    
12. Assignment. Participant may not assign its rights or obligations under these Terms of Use or the Participant Agreement, in whole or in part, without the prior written consent of RubberNetwork, regardless of whether the assignment is by operation of law or otherwise. Subject to the foregoing restriction, any assigned agreements will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns.
    
    
13. Force Majeure. RubberNetwork shall not be liable for delay or failure in any of its performance hereunder due to causes beyond its reasonable control, including but not limited to, an act of God, war, natural disaster, governmental regulations, communication or utility failures or casualties or the failures or acts of third parties.
    
    
14. Notices. Except as otherwise set forth herein, all notices will be deemed properly given if sent to each party via electronic transmission through email or by a notice placed on the Site, by a nationally recognized overnight courier or by certified or registered mail, postage prepaid and return receipt requested to the parties at the address listed below. Notices shall be deemed given upon Electronic Agreement, delivery or refusal of delivery by the receiving party.
    
    
15. Arbitration. Any controversy or claim arising out of or relating to these Terms of Use, regardless of the nature of the claim, shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“Rules”), and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. A panel of three arbitrators selected pursuant to the Rules shall conduct arbitration and the arbitrators shall have a background or training in computer law, computer science, or intellectual property.
    
    
16. Jurisdiction and Governing Law. These Terms of Use shall be construed, governed and enforced under the laws of the United States and the State of Georgia (without regard to rules governing conflict of laws). Customer agrees that a nonexclusive venue for all actions, relating in any manner to these Terms of Use or use of the Marketplace, shall be in a federal or state court of competent jurisdiction located in Fulton County, Georgia. Each party hereby consents and submit to the in personam jurisdiction of such courts, and to the extent permitted by law, hereby consents that all services of process may be made by any nationally recognized overnight courier, or by certified or registered mail, postage prepaid and return receipt requested. Each party waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above. Each party agrees that a final judgment in any such action shall be conclusive and may be enforced in any other jurisdiction in any manner provided by law.
    
    
17. Sever ability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of these Terms of Use will continue in full force and effect.
    
    
18. Waiver. No waiver of any breach of a provision of these Terms of Use shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof and no waiver shall be effective unless made in writing.
    
    
19. Counterparts. These Terms of Use may be executed by Electronic Agreement and/or in counterparts, each such Electronic Agreement and counterpart shall be an original and altogether shall constitute but one and the same document.