PART B: COMMERCIAL TERMS
Part B contains certain Terms relating to any agreement that operates between a Customer and a Vendor with respect to a particular Service Offering (“Service Contracts”), and governs the relationship between the Company, on the one hand, and Customers and Vendors, on the other hand, with respect to such Service Contracts.
10. Relationship with the Company
- 10.1. The Marketplace is a service marketplace that allows you to post a Service Offering (if you are a Vendor), or to place an Order (if you are a Customer) for the performance or delivery of certain Service Offerings offered by a Vendor. The Company does not make any Service Offerings, does not become party to any Service Contract and does not perform, deliver or guarantee any Service Offerings or any obligations under any Service Contract. We are not involved in your negotiations of the Service Offerings or the delivery or performance of the Service Offerings and are not a party to any Service Contract.
- 10.2. Vendors that are not Affiliated Vendors will only be permitted to post Equipment Offerings on the Marketplace. If you are a Vendor (other than an Affiliated Vendor) and post an Equipment Offering on the Marketplace, you understand and agree that we are not responsible for your engagement with any Customer.
- 10.4. The Company does not make any representations or warranties about, or guarantees, any particular Service Offering by any Vendor and nothing will create an employment, agency, or joint venture relationship between the Company and any Vendor.
- 10.5. Certain Service Offerings may be made, and certain Service Offerings may be performed or delivered, by Vendors that are affiliates of the Company (“Affiliated Vendors”), including, without limitation, e-AQF, provided, that certain terms (including price) for such Service Offerings may be set by us. The term Vendors does not include Affiliated Vendors, except where the context requires otherwise.
- 11.1. You may place an order (“Order”) for any Service Offering listed on the Marketplace using your registered user account via this Site. The Service Offerings are detailed on this Site. All Orders are subject to the provisions of these Terms. By placing an Order for any of the Service Offerings through the Marketplace, you represent and warrant that you are legally capable of entering into binding contracts.
- 11.2. We may push certain Orders to certain Vendors, including Affiliated Vendors. You expressly authorize us to transfer your data, including personal data and payments data, to any Vendor or Affiliated Vendor.
- 11.3. Time is a reference to Eastern Standard Time and business days is reference to working days in the U.S. (Monday to Friday from 9am to 6pm).
- 11.4. Service Offerings may be subject to specific order cutoff and service lead times set by the Vendor (for example, if your Vendor is e-AQF, see order cutoff and lead times: https://e-aqf.com/terms-conditions).
- 11.5. You will provide sufficient and accurate details about the Service set out in the Order form, including, without limitation, in respect of products and the acceptable quality level. If you fail to provide sufficient details, the Vendor may, at its discretion, proceed to perform or deliver the Service Offerings according to its interpretation of relevant standards and common practices.
- 11.6. The Company and any Vendor have the right to rely on the information contained in the Order. The Company will not be responsible to correct or amend any typographical, clerical or other error or omission in any Order, or any other document or information issued by you in relation to the Service Offerings. You will remain liable for the fees and charges in respect of Service Offerings performed or delivered in compliance with the Order, notwithstanding any error or omission in that document.
- 11.7. The Vendor may conduct feasibility validation in respect of Service Offerings requested in an Order and will inform you if it is unable to perform or deliver any of the Service Offerings. No Order shall be deemed accepted by the Vendor unless and until confirmed by the Vendor.
- 11.8. The Company may, in its sole discretion, reject or cancel any Order placed on the Marketplace, including, without limitation, if fraud or an unauthorized or illegal transaction is suspected.
- 11.9. In connection with placing an Order for any Service Offerings, you agree that you will:
(a) act conscientiously and in good faith;
(b) cooperate with the Company and the applicable Vendor in all matters relating to the purchase or ordering of the Service Offerings;
(c) prior to placing an Order, register on the Site;
(d) supply accurate, relevant and complete information during the Order process (to the best of your knowledge);
(e) ensure that the Vendor will have access to all information reasonably necessary for the performance or delivery of the Service Offerings no later than two business days prior to the date of performance or delivery of the Service Offerings;
(f) procure access to the inspection subject for the Vendor and its representatives;
(g) whenever relevant, inform the Vendor of all health and safety rules and regulations and any other reasonable security requirements that apply at the premises where the inspection subject is located;
(h) comply with all applicable laws in the performance or delivery of the Service Offerings; and
(i) inform the Vendor of material matters related to the inspection subject and the performance or delivery of the Service Offerings.
12. Change Order Requests
- You may request a change or cancel an Order by submitting a change request to the Vendor through your Marketplace account. No such change request shall be deemed accepted by the Vendor unless and until confirmed by the Vendor.
13. Service Fees and Payment Policy
- 13.1. Each Vendor sets its own prices for the Service Offerings it offers through the Marketplace and may vary the Service Offerings and any related service fees at its discretion; provided, that we shall have the right to determine fees, payment policies, protocols and integrations (such as PayPal or Stripe).
- 13.2. We may charge a service fee to Customers and/or Vendors for Service Offerings in respect of which an Order has been place or a Service Contract has been entered into via the Marketplace.
- 13.3. If you are a Customer, all invoices relating to Orders placed through the Marketplace will be provided to a Customer by us or the applicable Vendor, and all invoices will be paid through your Marketplace account via one of the accepted payment methods. Except for our limited role in processing payments that you authorize or initiate, we are not involved in any underlying transaction between you and any Vendor on the Marketplace. We may use the services of one or more third parties to process your transactions and payments.
- 13.4. You authorize us to hold, receive and disburse funds in accordance with your payment instructions, whether to us in our own capacity or in our capacity as payment processor acting on behalf of the Vendor. Your authorization permits us to process payment transactions that you authorize and commit your payment (less any applicable fees or other amounts we may collect under these Terms or any applicable agreement) to the Vendor.
- 13.5. If you are a Customer, you must pay all invoices at such times as set forth in the description of the applicable Service Offering, and absent any such specifications promptly upon performance or delivery of the Service Offerings, unless otherwise agreed between you and the applicable Vendor.
- 13.6. Without prejudice to any other right or remedy that you may have, if you fail to pay an outstanding invoice amount on the due date:
(a) you will pay interest on the overdue amount (before and after any judgment) at an annual rate of the lesser of four percent (4%) above the prime rate as reported in The Wall Street Journal and the maximum rate permitted by applicable law. Interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment; and
(b) the Vendor may suspend all Service Offerings until payment has been made in full.
- 13.7. Payment of the service fee is without prejudice to any claims which the Company may have against you and does not constitute any admission or waiver by the Company as to the performance by you of your obligations under these Terms.
- 14.1. The performance and termination of any Service Offering purchased through the Marketplace is governed by the specific Service Contract or terms and conditions of the Vendor.
- 14.2. The termination of services or other terms in the Service Contract does not terminate or otherwise impact the Terms governing the use of the Marketplace.
- 15.1. You will comply with all applicable laws and regulations relating to anti-bribery and anti-corruption, which includes the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed on December 17, 1997 under the control of OECD.
- 15.2. You will not offer, promise or give any undue pecuniary or other advantage, either directly or indirectly, for the purpose of influencing decisions or actions with respect to the subject matter of these Terms or any other aspect of the Company’s business to:
(a) government or political party officials or representatives of other businesses or persons acting on behalf of any of the foregoing; or
(b) representatives of the Company, where such would constitute a violation of any applicable laws.
16. Force Majeure
- 16.1. If the Company, a Customer or Vendor is affected by a Force Majeure Event (as defined below), it shall promptly notify the other party to a Service Contract as well as the Company of the nature and extent of the circumstances in question.
- 16.2. Notwithstanding any other provision of these Terms or any Service Contract:
(a) neither party shall be deemed to be in breach of these Terms, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under these Terms to the extent that the delay or non-performance is due to a Force Majeure Event of which it has notified the other party; and
(b) the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed, subject to clause 16.3.
- 16.3. If a Force Majeure Event continues for more than 30 consecutive days, either party may terminate the Service Contract (but not these Terms) forthwith on written notice.
- 16.4. For the purposes of this clause, "Force Majeure Event" means any event giving rise to a failure or delay in the performance of duties and obligations under these Terms that arises from a cause beyond the control of the relevant party that was not due, or substantially attributable, to any failure by that party to exercise due diligence to prevent such failure or delay (including, without limitation, war or threat of war, act of God, natural or nuclear disaster, epidemic, pandemic or disease outbreak, riot or civil commotion, act of terrorism, malicious damage, fire, flood, or compliance with a law or governmental order or sanctions, rule, regulation or direction).
17. Disputes Resolution
- If you have any concern or dispute about these Terms, you agree to first try to resolve the dispute informally by contacting the Company in good faith.
18. Governing Law and Jurisdiction
- 18.1. These Terms are governed by and will be construed in accordance with the laws of the State of Delaware without regard to any principles of conflicts of laws that would result in the application of the laws of any other jurisdiction.
- 18.2. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The place of arbitration shall be in New York. The arbitration shall be conducted in the English language.
- 18.3. Any decision or award of the arbitral tribunal will be final and binding upon the parties to the arbitration proceeding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
19. Entire Agreement
- These Terms sets forth the entire understanding between you and the Company and supersedes all prior version of the Terms.
- If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Terms shall not affect a party's ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.