Terms of Service

1. Introduction

1.1 All use of the Sourceday Marketplace (“Sourceday Marketplace”) is subject to the terms and condition herein collectively, (“TOS”).

1.2 You (“User”) accept the TOS by either (1) clicking to agree or accept where these options are presented, or (2) actually using the Sourceday Marketplace. If User is accepting on behalf of User employer or another entity, User represents and warrants that: (i) User has full legal authority to bind User employer or such entity to the TOS; (ii) User has read and understands the TOS; and (iii) User agrees, on behalf of the party that User represents, to the TOS. If User does not have the legal authority to bind, do not click the “I Accept” button or use the Sourceday Marketplace.

1.3 User may use Sourceday Marketplace to browse, download and purchase subscriptions, products, tools and services, collectively (“Products”). Some of these Products may be offered by Sourceday while others will be made available by third parties. User agrees that Sourceday is not responsible for any Product that originates from a source other than Sourceday. User agrees that User is solely responsible for all fees associated with purchases User makes on the Sourceday Marketplace.

1.4 Definitions
Buyer – Sourceday User using the Sourceday Marketplace for the purposes of procuring items, hardware, software, services or other.

Seller – Sourceday User using the Sourceday Marketplace for the purposes of bidding on Order Requests.

Order Request – Order Request published to Sourceday with an intent to procure the items.

Awarded – When a Sourceday Buyer (User) has accepted or awarded a quote from a Buyer for their published Order Request.

Transaction – constitutes when a Sourceday Seller (User) has been Awarded an Order Request by a Buyer (User) to purchase from the Seller.

2. Sourceday Marketplace

2.1 Sourceday may permanently or temporarily stop providing all or a portion of the Sourceday Marketplace to User or to users generally at Sourceday’s sole discretion, without prior notice to User.

2.2 If Sourceday disables access to User’s account, User may be prevented from accessing the Sourceday Marketplace, User account information and Products that are stored with User account.

2.3 Sourceday may make available to User various payment methods to facilitate the purchase of Products from the Sourceday Marketplace. User agrees to abide by any relevant terms that govern the use of the particular payment processing method. Sourceday reserves the right to add or remove payment methods at its sole discretion.

2.4 Sourceday may discover Products on the Sourceday Marketplace that violates the applicable Distribution Agreement or other legal agreements, laws, regulations or policies. User agrees that in such an instance Sourceday retains the right to remove those Products, in its sole discretion.

3. User Use of Sourceday Marketplace

3.1 In order to access certain services in the Sourceday Marketplace, User may be required to provide information, such as User’s name, address, and billing details. User agrees that any such information User provides to Sourceday will always be accurate, correct and up to date.

3.2 User agrees to use the Sourceday Marketplace only for purposes that are permitted by the TOS and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. User agrees to comply with all applicable export controls. By using the Sourceday Marketplace, User represents and warrants that User is not prohibited from receiving exports or services under US or other applicable export laws. User agrees to comply with all local laws and regulations regarding the download, installation or use of the Products.

3.3 User agrees not to attempt to access or access the Sourceday Marketplace by any means other than through the interface that is provided by Sourceday, Inc. User specifically agrees not to attempt to access or access the Sourceday Marketplace through any automated means.

3.4 User agrees that User will not engage in any activity that interferes with or disrupts the Sourceday Marketplace or the servers and networks which are connected to the Sourceday Marketplace. User agrees that User will not use any of the Products in a way that interferes or disrupts any servers, networks, or websites operated by Sourceday or any third party

3.5 User agrees that User will not reproduce, duplicate, copy, sell or distribute the Sourceday Marketplace.

3.6 User agrees that User is solely responsible for, and that Sourceday has no responsibility to User or to any third party for, User’s use of the Sourceday Marketplace and any Products, any breach of User’s obligations under the TOS, and for the consequences, including without limitation, loss or damage of any kind which Sourceday may suffer as a result of such use or breach.

3.7 User agrees to comply with any and all applicable tax laws, including the reporting and payment of any taxes arising in connection with User’s use of the Sourceday Marketplace or the purchase of Products, and that the reporting and payment of any such applicable taxes are User’s responsibility.

3.8 User agrees that Sourceday or third parties own all right, title and interest in and to the Sourceday Marketplace and the Products available through the Sourceday Marketplace, including without limitation all applicable Intellectual Property Rights in the Products. “Intellectual Property Rights” means any and all rights existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights worldwide.

3.9 Sourceday is an Independent Venue for serious Buyers and Sellers to complete electronic procurements. Buyers and Sellers attempting to misappropriate Information for purposes of circumventing the Bid Process in order to defraud Sourceday, avoid payment of Sourceday’s Transaction Fees, or otherwise contravene, hinder, avoid or interfere with the competitive process may have some or all of their Sourceday access privileges suspended or revoked, at the sole discretion of Sourceday. By agreeing to these Terms of Use, Buyers and Sellers acknowledge the importance of utilizing Sourceday exclusively to complete each Buy initiated on the Web Site and agree to utilize Sourceday exclusively for each such Buy until such time that the Selected Seller is chosen or the Order Request is withdrawn or cancelled.

4. Order Process

The Order Process is as follows: Once the Selected Seller is notified of the award decision and each party receives the other’s contact Information, the Buyer issues to the Selected Seller an Order for the Commercial Items and contacts the Selected Seller to confirm the Order. If the Buyer has not contacted the Selected Seller, the Selected Seller should contact the Buyer to confirm the purchase of the Commercial Items and obtain an Order. If the Selected Seller invoices the Buyer, the Selected Seller must adhere to Buyer requirements by ensuring the following: i) All Orders have been delivered in accordance with the terms and conditions of the Order and Order Request, and ii) All invoice line item descriptions and pricing EXACTLY match the line item descriptions and pricing. Failure to adhere to either of these requirements is disruptive to the Order Process, is a violation of these Terms of Use, and may result in delayed payment, non-payment or a Performance Alert by the Buyer and imposition of late payment fees or other penalties, including suspension or revocation of some or all of the Selected Seller’s Sourceday access privileges, by Sourceday.

5. Authorization to Credit and Debit Accounts

As a User, you irrevocably and expressly authorize Sourceday to credit any monies to the account that you have identified for Sourceday. You agree that it is your responsibility to maintain a valid, credit card or bank account on file with us while engaging in activity on Sourceday. You agree that if you do not maintain a valid, credit card or bank account on file with us during any billing attempt, you may be subject to interest and penalties. You irrevocably and expressly authorize Sourceday to withhold any monies and/or debit any monies from any account that you have identified to Sourceday for any chargebacks, fees, costs, deductions, adjustments and any other amounts owed to Sourceday. We reserve our rights to all actions and remedies in connection with any monies owed to Sourceday. You will indemnify, defend and hold us harmless for any claims, demands or causes of actions that we take toward any identified account pursuant to this Section.

6. Fees

6.1 Free Trial. If you register for a free trial of the Subscription Service, we will make the Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period or (b) the start date of your subscription. If we include additional terms and conditions on the trial registration web page, those will apply as well. During the free trial period, (i) the Subscription Service is provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Subscription Service for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Subscription Service. Unless you subscribe to the Subscription Service before the end of the free trial, all of your data on the Subscription Service will be permanently deleted at the end of the trial, and we will not recover it.

6.2 Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i) change products or base packages, or (ii) subscribe to additional features or products. Where a price change applies to you, we will charge or invoice you under the new price structure, starting with the next Billing Period in the Subscription Term.

6.4 Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable at the beginning of the Initial Subscription Term and all subsequent Billing Periods, including upgrades. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

6.5 Payment against invoice. If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.

6.6 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state.

7. Shipping and Delivery

All Orders placed through Sourceday shall be shipped and delivered in accordance with the Specifications set forth by the Buyer in the Order Request. A Selected Seller’s failure to ship and deliver in compliance with the Specifications may subject such party to negative ratings from Buyers and may lead to suspension or revocation of some or all of such party’s Sourceday access privileges. In addition, a Selected Seller’s failure to ship and deliver in compliance with the Specifications resulting in the Buyer’s partial payment or non-payment to the Selected Seller shall not relieve the Selected Seller of its obligation to submit all Sourceday Fees by the Payment Due Date.

8. Returns

Sourceday is only an Independent Marketplace. All returns, replacements, technical services and support shall be in accordance with the Selected Seller’s standard commercial terms and conditions or as specifically stated by a Buyer within Specifications and must be handled directly by the Selected Seller or manufacturer, if applicable, and independently from Sourceday. Sourceday may assist the Buyer in working with the Selected Seller to help the Buyer receive optimal customer service from the Selected Seller but shall not be responsible for issuing proper return authorizations on behalf of the Selected Seller. If the Buyer does not have complete contact Information for the Selected Seller or manufacturer, the Buyer may contact Sourceday customer support at contact@sourceday.com, and Sourceday will provide such Information.

9. Updates

Products may communicate with Sourceday servers from time to time to check for available updates to the Products. By purchasing these Products, User agrees to such automatically requested and received updates. User agrees that Sourceday may collect certain personally identifiable information from users of the Products and Sourceday will have the right to compile and distribute statistical analyses and reports utilizing aggregated data derived from information and data obtained from User, users, other Sourceday customers and other sources.

10. Export Regulations

Products available on the Sourceday Marketplace may be subject to export controls or restrictions by the United States or other countries or territories. User agrees to comply with all applicable United States and international export laws and regulations. These laws include restrictions on destinations, end users, and end use.

11. Indemnification

To the maximum extent permitted by law, User agrees to defend, indemnify and hold harmless Sourceday, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including attorneys’ fees, arising out of User’s use of the Sourceday Marketplace, including User’s downloading, installation, or use of any Products, or User’s violation of the TOS.

12. Term and Termination

12.1 The TOS will continue to apply until terminated by either User or Sourceday as set out below.

12.2 If User wants to terminate the TOS, User may do so by ceasing User’s use of Sourceday Marketplace and any Products purchased from the Sourceday Marketplace.

12.3 Sourceday may at any time, terminate the TOS with User if: (A) User has breached any provision of the TOS; or (B) Sourceday is required to do so by law; or (C) Sourceday decides to no longer provide the Sourceday Marketplace.

12.4 When the TOS terminate, Sections 3.6, 3.7, 3.8, 9, 10, 11, 12.4, 13, 14 and 15 will survive.

13. DISCLAIMER OF WARRANTIES

13.1 SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT THE USE OF THE SOURCEDAY MARKETPLACE AND ANY PRODUCTS OBTAINED THROUGH THE SOURCEDAY MARKETPLACE IS AT SUBSCRIBER’S SOLE RISK AND THAT THE SOURCEDAY MARKETPLACE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

13.2 USE OF THE SOURCEDAY MARKETPLACE AND ANY PRODUCTS OBTAINED THROUGH THE USE OF THE SOURCEDAY MARKETPLACE IS AT SUBSCRIBER’S OWN DISCRETION AND RISK AND SUBSCRIBER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

13.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOURCEDAY FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY AND ALL PRODUCTS AND THE SOURCEDAY MARKETPLACE.

13.4 NONE OF THE PRODUCTS ARE INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

14. LIMITATION OF LIABILITY

SUBSCRIBER UNDERSTANDS AND AGREES THAT SOURCEDAY AND ITS AFFILIATES SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU THROUGH USE OF THE SOURCEDAY MARKETPLACE OR ANY PRODUCTS OBTAINED FROM THE SOURCEDAY MARKETPLACE, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT SOURCEDAY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

15. General Terms

15.1 The TOS constitute the whole legal agreement between User and Sourceday and govern User’s use of the Sourceday Marketplace and Products, and completely replace any prior agreements between User and Sourceday in relation to the Sourceday Marketplace, Products, and Professional Services.

15.2 If Sourceday does not exercise or enforce any legal right or remedy which is contained in the TOS (or which Sourceday has the benefit of under any applicable law), this will not be taken to be a formal waiver of Sourceday’s rights and that those rights or remedies will still be available to Sourceday.

15.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the TOS is invalid, then that provision will be removed from the TOS without affecting the rest of the TOS. The remaining provisions of the TOS will continue to be valid and enforceable.

15.4 No person or company will be third party beneficiaries to the TOS.

15.5 The rights granted in the TOS may not be assigned or transferred by User, whether by operation of law or otherwise, without the prior written approval of Sourceday.

15.6 The TOS will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. User and Sourceday agree to bring any and all actions under the TOS in exclusively in a court of competent jurisdiction located within the state of Delaware to resolve any legal matter arising from the TOS and each party agrees to submit to the exclusive jurisdiction of such court and waives all objections to such venue.

15.7 We do not guarantee continuous, uninterrupted or secure access to our Services, and operation of the Web Site may be interfered with by numerous factors outside of our control. When using the Sourceday Web Site to submit a Bid, You agree to use ONLY the Sourceday system’s navigation buttons to navigate through the Web Site. You understand and agree that Your use of Internet browser navigation buttons, including the ‘Back’, ‘Forward’ or ‘Refresh’ buttons, is at Your sole risk and may cause session timeout, errors or data loss when using the Web Site. If any provision of these Terms of Use is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by You or others does not waive our right to act with respect to subsequent or similar breaches. These Terms of Use set forth the entire understanding and agreement between You and Sourceday with respect to the subject matter hereof.

15.8 This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by either party to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement. The section headings used herein are for convenience only and shall not be given any legal import.

16. Copyright Infringement

Sourceday does not permit copyright infringing activities and infringement of intellectual property rights on its Web Site and Sourceday will remove all content, Information, or other provided material if properly notified that such content or other material infringes another’s intellectual property rights. Sourceday reserves the right to remove any content or material without prior notice. If You are a copyright owner or an agent thereof and believe that any content or material on the Web Site infringes upon Your copyrights, You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing Sourceday’s copyright agent with the following information in writing: 1) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; 2) A description of the copyrighted work or other intellectual property that You claim has been infringed; 3) A description of where the material that You claim is infringing is located on the Web Site; 4) Your address, telephone number, and email address; 5) A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and 6) A statement by You that You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. Sourceday’s designated agent for notice of claims of copyright or other intellectual property infringement can be reached as follows: i) By mail: Sourceday, 1101 Capital of Texas Hwy, South Building K, Suite 250 Austin, Texas 78746; ii) By email: contact@sourceday.com. You acknowledge that if You fail to comply with all of the above requirements, Your DMCA notice may not be valid.

17. Posting in the Community

Sourceday reserves the right to edit, amend, or delete any information posted on the site if, in the sole opinion of Sourceday, the posting contains language that is vulgar, obscene, inflammatory, illegal, irrelevant, or in violation of any section of this User Agreement.