E SOURCE Companies LLC

RFQ Participant License Agreement

 

This Agreement describes the terms and conditions applicable to Member’s use of E SOURCE’s services, including, without limitation, RFQ participation on the Internet, located at http://www.energywindow.com (“Web Site”). This agreement supersedes all other agreements, including any standard agreement previously displayed on E SOURCE’s Web Site.

 

By clicking “Accept” you expressly acknowledge that you have read this Agreement and understand the rights, obligations, terms and conditions set forth herein. By continuing to register on this web site, you expressly consent to be bound by these terms and conditions.

 

You hereby agree to the use of electronic delivery of notices, policies and records of transactions initiated or completed through this web site. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.

 

This E SOURCE RFQ Participant License Agreement (the “Agreement”) is entered into by and between E SOURCE Companies LLC, a Delaware corporation with offices at 1965 N. 57^th Court, Boulder, Colorado 80301 (“E SOURCE”) and the RFQ Participant on this web site (“Member”).

In consideration of the foregoing and of the mutual covenants and conditions contained herein, and intending to be legally bound, the parties hereby agree as follows:

1.     Membership; Registration. E SOURCE 's services are available only to individuals, corporations or other business entities that have agreed to the terms of this Agreement and that are legally permitted to enter into contracts for the sale of goods or services under applicable law. E SOURCE may at its discretion grant full membership, reject membership or approve membership subject to offer limits. E SOURCE through its approval process makes no assertions regarding a member to other members.

2.     Standard Terms and Fees. All members are subject to E SOURCE’s standard terms included in this Agreement and the fees available on the Web Site.

3.     Fees and Commissions. Upon notification of winners of each successful auction or exchange, Members agree to pay the fees ("Fees") according to the Fee Schedules available on the Web Site and incorporated herein by this reference.
E SOURCE will notify Member of increases in fees at least seven (7) business days prior to the effective date of such change. Changes to fees or fee structure will apply only to new auctions initiated after the notification period. No fee changes will be applied retroactively to requests or bids already active.

4.     E SOURCE is Only a Venue. E SOURCE acts as the venue for our members to conduct auctions and to bid on other members' auctions. The actual transaction occurs between buyers and sellers. We have no control over, and are not responsible for, the quality, safety, legality or condition of the goods or services advertised, the truth or accuracy of the listings (or associated uploaded files) or the ability or capacity of any buyer or seller to participate in the transactions. We cannot and do not control whether sellers will complete the sale of items on which they have bid or buyers will complete the purchase of items that they have posted. In addition, Member acknowledges that it is aware that it may face additional risks of dealing with foreign nationals or people acting under false pretense. E SOURCE encourages members to act with due care and to use the contact information provided to communicate directly with trading partners to assist in evaluating the parties to each transaction.

Member hereby agrees to release E SOURCE (and its agents, employees, officers and directors) from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with listings, bids, uncompleted or completed transactions, or items offered or actually sold through the web site.

Although E SOURCE is not responsible for the accuracy or legality of information or content contained on, distributed through, or linked, downloaded or accessed from any of the services contained in this web site, E SOURCE will use reasonable commercial efforts to require that members act professionally and responsibly. We reserve the right to remove any information that we deem unprofessional or irresponsible. However, any reliance by Member on such information, content or other materials shall be at Member's sole risk.

5.     Bidding and Selling. Members agree to negotiate in good faith towards agreement after completion of an auction or exchange at the price submitted in the bid, subject to customary business and credit checks. The winning bidder must contact the buyer within three (3) business days after the close of the auction. E SOURCE will send an email to the buyer and the winning bidder notifying each party that the auction has closed. If the winning bidder fails to contact the buyer within (3) business days after the close of the auction, the buyer may decide to buy from the next lowest bidder.

E SOURCE does not verify, warrant or guarantee the condition of any goods or services offered for sale by any member. All goods and services are sold as specified in the auction description. Any complaints or problems with services should be addressed to the seller. E SOURCE is not involved in these or other disputes between buyers and sellers other than to provide each party, upon request, with the contact information of the other party. Neither Member nor E SOURCE will be responsible for any bids "lost" due to technical problems or service interruptions beyond
E SOURCE 's reasonable control. Bids are not retractable except in exceptional circumstances such as clear typographical errors.

Whenever Member chooses to bid on an item, you are certifying that (i) Member has the legal right in its jurisdiction to sell those goods or services; (ii) the sale of such goods or services is not subject to any United States or United Nations embargo or ban; and (iii) Member has disclosed all restrictions, laws or regulations regarding the sale of such item. Each auction is independent and subject to any additional terms and conditions established by the buyer. Because buyers are free to control the qualifying criteria for bidders to participate in their auctions, certain auctions on the Web Site might not be available to every seller.

6.     Listing and Buying. Listings are descriptions of goods or services requested in an auction appearing on the Web Site supplied by a Member. Member is solely responsible for all goods and services requested and for the information posted by it regarding such goods or services. Member may not post false or misleading information regarding goods or services requested for purchase or offered for sale. Member agrees to negotiate in good faith towards agreement after completion of an auction or exchange at the price submitted in the bid if Member receives one or more bids at or below the stated maximum or reserve price in an open auction. Whenever a buyer lists a request for purchase, that buyer certifies that (i) it has the legal right in its jurisdiction to purchase the goods or services listed; (ii) the purchase of such goods or services is not subject to any United States or United Nations embargo or ban; and (iii) it has disclosed all restrictions, laws or regulations regarding the purchase of such goods or services. Member may not post listings for any illegal goods or services. E SOURCE reserves the right to refuse to post any listing for bids for any of the foregoing reasons.

7.     Company Information. Company information includes any information provided by Member or Member's employees or agents during the registration, bidding or listing process, in any public message area or through any email feature, to E SOURCE or to other users (collectively, "Company Information"). With respect to Company Information:

7.1 Member is solely responsible for all Company Information, and E SOURCE acts as a passive conduit for online distribution and publication of Company Information. E SOURCE may take reasonable remedial actions with respect to such information (including disclosure to third parties) if E SOURCE is required by law or believes it is necessary to prevent damage to or loss of our service or liability with respect to other parties.

7.2 Information posted in requests shall not: (a) infringe any third party's proprietary or intellectual property rights; (b) violate any law, statute, ordinance or regulation; (c) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) be obscene, pornographic or indecent; (e) contain any computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (f) link directly to or include descriptions of goods or services that: (i) are identical to other goods or services Member has up for auction on the Web Site; (ii) are concurrently listed for auction on a web site other than the Web Site; or (iii) Member does not have a right to link to or include.

7.3 So that E SOURCE may deliver the E SOURCE services pursuant to this Agreement without violating any rights the Member might have in the Company Information, Member hereby grants
E SOURCE a limited, non-exclusive, worldwide, royalty-free license to the Company Information solely for the purpose of providing E SOURCE Services. E SOURCE will only use Company Information in accordance with the E SOURCE RFQ Participant Privacy Policy (as defined below).

8.     No Price Manipulation. Members may not manipulate the price of goods and services requested for purchase or offered for sale.

9.     System Integrity; Passwords. Member may not interfere or attempt to interfere with the proper working of the Web Site or any auction being conducted on the web site. Member may not take any action that imposes an unreasonable or disproportionately large load (such as uploading large files) on the Web Site infrastructure. Member may not disclose to or share passwords with any unauthorized third parties or use such passwords for any unauthorized purpose.

10.  Requests. Member may request information or quotations from other members. An information request may not contain any prices, other financial information usable in a transaction between the disclosing member and the member receiving the information, or information from which a member could determine such information. A quotation request is a request for the price of a specific product or service.

11.  Service Partners. As a convenience to our members, and only upon written or email consent of the Member, E SOURCE may suggest various service partners that provide metering, billing, and other services, and E SOURCE may, from time to time, provide access to these services directly from the Web Site. Any arrangement between the Member and a service partner is solely between those parties and does not involve E SOURCE.
E SOURCE plays no part in pricing decisions pertaining to such services or in any negotiations between members and service partners pertaining to providing such services. E SOURCE may, however, receive a commission from service partners based on the provision of such services to members. E SOURCE will disclose any such relationships to members.

12.  Breach. E SOURCE operates on the premise that its members are and will be professional, courteous and trustworthy and will act in good faith. E SOURCE may terminate Member's membership and any of Member's current auctions if (i) Member materially breaches this Agreement; (ii) E SOURCE reasonably believes that Member has violated or attempted to violate the rights of others; or (iii) E SOURCE is unable to verify or authenticate any material information Member provides to E SOURCE. In the event E SOURCE terminates Member's membership under this Section, E SOURCE will not provide any refunds of any commissions or other amounts for which services have already been provided.

13.  Privacy. E SOURCE 's RFQ Participant Privacy Policy as it may be amended from time to time, is available on the Web Site, and is incorporated herein by reference. A copy of the current
E SOURCE RFQ Participant Privacy Policy is attached to this Agreement as Exhibit A. E SOURCE reserves the right to amend the E SOURCE RFQ Participant Privacy Policy in our sole discretion. Member will be notified of any changes to the E SOURCE RFQ Participant Privacy Policy.

14.  Warranty; Disclaimers. E SOURCE will use reasonable commercial efforts to provide the
E SOURCE services in a professional, reliable and secure manner. EXCEPT AS PROVIDED ABOVE, E SOURCE PROVIDES THE WEB SITE AND ITS SERVICES "AS IS" AND "AS AVAILABLE" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED.
E SOURCE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

15.  Limit of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SERVICES, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MEMBER AGREES THAT E SOURCE SHALL NOT BE RESPONSIBLE OR LIABLE TO MEMBER OR ANYONE ELSE FOR THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN CONNECTION WITH THE WEB SITE OR SERVICES.

E SOURCE 'S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES MEMBER PAYS TO E SOURCE FOR THE AFFECTED TRANSACTION.

16.  General Compliance with Laws. Each party agrees to comply with all applicable laws regarding use or provision of the E SOURCE services and Member bidding on, listing, purchase and sale of goods or services.

17.  Corporate Authority. If the individual accepting this agreement accepts the Agreement on behalf of another entity, then that individual warrants and represents that he or she is authorized on behalf of the entity that is applying for membership and has the corporate power to bind the corporation to this agreement.

18.  Users. Member is responsible for all agents acting or purporting to act on Member's behalf. Member is responsible for the actions and statements of all users who access the Web Site using Member's membership ID. Such users will be deemed to be agents of Member. Member agrees that prior to permitting any and all agents to use the services of E SOURCE, each such agent will first acknowledge the terms of this Agreement and agree to be bound by them.

19.  No Agency. Member and its agents, on the one hand, and E SOURCE on the other hand, are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

20.  No Assignment, Resale or Unauthorized Commercial Use. Member's membership belongs only to Member, and is based on a detailed analysis that might not be applicable to another organization. Member agrees not to resell, assign or transfer its rights or obligations under this Agreement. Member also agrees not to make any unauthorized commercial use of the Web Site or services.

21.  Others' Information. Member agrees not to make use of or disclose to third parties any other user's information received by Member from the Web Site other than as necessary to participate in an E SOURCE auction. The preceding obligation does not apply to other user's information that is publicly available or available from sources other than the Web Site.

22.  Additional Rules of Etiquette. Member will not, when using the Web Site, (i) threaten, defame or spread false information about another member; (ii) bid under a false name or account or misrepresent Member; (iii) engage in extortive behavior; (iv) use the Web Site to send unsolicited commercial email ("spam"); (v) use violent, racist, sexist, or other hateful language.

23.  Notices. Except as explicitly stated otherwise in this Agreement, any notices shall be given by email to customer.support@energywindow.com (in the case of E SOURCE) or to the email address Member provides to E SOURCE during the registration process (in Member's case), or such other address as either party shall specify or by commercial courier service or by certified mail, postage prepaid and return receipt requested, to the address provided to E SOURCE during the registration process.

24.  General. This Agreement shall be governed in all respects by the laws of the State of Colorado, United States of America. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deemed severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Any failure by E SOURCE to act with respect to a breach by Member or others does not waive
E SOURCE 's right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof.

25.  Disclosures. The services hereunder are offered by E SOURCE Companies LLC, located at 1965 N. 57^th Court, Boulder, Colorado 80301.

In Witness Whereof, the parties hereto have executed this Agreement as of the Effective Date.

E SOURCE Companies LLC Member

By: By: [IB1] 

Name: Name:

Title: Title:

Exhibit A

E SOURCE RFQ Participant Privacy Policy

E SOURCE Companies LLC ("E SOURCE ") has created this privacy policy in order to demonstrate and make transparent our commitment to privacy, security, and integrity in operating our web site, located at http://www.energywindow.com (“Web Site”). The policy discloses our information gathering, utilization, and dissemination practices for the Web Site. This E SOURCE RFQ Participant Privacy Policy (“Policy”) is incorporated into and subject to the terms of the E SOURCE RFQ Participant License Agreement. .

Type of Information Used

E SOURCE uses personally identifiable information that you provide to us during the registration process, RFQ bidding, purchases, promotions and other areas of the Web Site in which users voluntarily provide content submissions or suggestions or otherwise participate in interactive online activities, including those activities described below. E SOURCE also monitors user traffic patterns and Web Site usage and may collect and store user population, sales, traffic patterns and related Web Site information to assist us in developing the content, design, and layout of the Web Site.

The use of personal information by E SOURCE includes, but is not limited to, the following:

	If you choose to bid, buy or sell on the Web Site, we use information about your bidding, buying and selling behavior as discussed below under Use of Information.
	When you place a bid on the Web Site, we need to know your name, email address, mailing address, phone number, and billing information.
	If you send us personal correspondence, such as emails or letters, or if other users or third parties send us correspondence about your activities or postings on the Web Site, we may collect and store such information, but we will not make it available publicly.
	In some cases, we may receive information about you from our partners, affiliates or other users of the Web Site. We will not rely on this information without confirmation from you.

Use of Information

E SOURCE does not sell or otherwise provide or disclose any information received from you to any third parties for sales, marketing or promotional purposes. If E SOURCE decides in the future to change this policy, it will obtain your permission or should you opt not to participate, will honor your request for privacy prior to taking any action up to and including the selling of any of your information.

E SOURCE uses your personally identifiable information to better serve its members, primarily to provide you with a customized experience on the Web Site, to facilitate requests for purchases and bids, to track compliance with our E SOURCE RFQ Participant License Agreement and to provide feedback. We also use certain information for administrative and billing purposes and aggregate market activity and pricing as an added value to our registered members. We also aggregate and provide information regarding pricing and frequency of posting as an added benefit for members. The aggregated data is presented in such a fashion so as to prevent identification of individual member’s data.

Throughout the Web Site, you are identified by your user name. Unless you want your identity on the Web Site to be known or your requests or bids to be associated with your identity, you should choose a user name that will not make it easy for other users to identify you. You should also consider changing your user name periodically. Even with these precautions, your user name and account number might be used by other users or third parties to identify you and your email address and to track your activities throughout the Web Site.

E SOURCE may also access or disclose your personally identifiable information when we believe in good faith that the law requires it. We will notify you before such disclosure, using the email address provided with your registration.

Except as otherwise expressly discussed in this Policy, this document only addresses the use and disclosure of information we collect from you. To the extent that you disclose your information to other parties, whether they are bidders, buyers or sellers on our system or other sites throughout the Internet, different rules may apply to their use or disclosure of the personal information you disclose to them. To the extent that we use third-party advertisers, suppliers or service providers, they adhere to their own privacy customs and policies. Since E SOURCE does not control the privacy policies of any third party, you are subject to the privacy practices and policies of such third party, and E SOURCE accepts no responsibility or liability for privacy or other issues related to the collection or use of your information by such third parties.

Integrity

E SOURCE will not use bidding activity, or request information or coach members in any way that will provide an unfair advantage to any member. E SOURCE is committed to the integrity of the bidding process and to fairness to all members.

Contacting Users

Occasionally we may send you email communications to provide information or offers that we think you will find useful. You may choose to remove your address from our mailing list by clicking on "No" under "Do you wish to join our mailing list?" on the registration or registration-update pages. However, please be aware that we may contact you for administrative purposes, to fulfill orders, to notify you about important changes to the Web Site or to respond to your email inquiries, even if you unsubscribe from our mail list.

Cookies

"Cookies" are small text files that are stored by your browser on your computer's hard drive. We use cookies to personalize your experience on the Web Site and to facilitate the online bidding process. We also use cookies to create aggregate Web Site information that tells us about the effectiveness and popularity of various areas of the Web Site. Most web browsers automatically accept cookies, but you can usually change your browser settings to prevent it. However, if you choose to disable our cookies, you may not be able to use certain features of the Web Site.

Changing Personal Information

You should promptly update your personal information if it changes. If you need to update your personal information, please update it using the "Update Account Information" page. Please be aware that, once updated, you might not be able to change or remove any previous public postings made in our chat rooms or other message areas on the Web Site.

Modifications to the Policy

E SOURCE may modify, add, or remove portions of the Policy at any time by updating this web page. We contact you using the email address provided with your registration if there is a material change, but please check back to this area of the Web Site periodically to look for changes in the Policy. Any modifications made to the Policy will become effective immediately upon posting and your continued use of this Web Site following these changes will constitute your consent to the Policy, as changed. Please keep in mind that the use of the Web Site is optional and you may stop using the Web Site if the Policy becomes unacceptable to you. We will endeavor to manage and maintain the desires of members; therefore we would be happy to respond to any questions or comments you may have regarding our Policy. Please email your inquiries to: customer.support@energywindow.com.

Security

E SOURCE uses Secure Socket Layer (SSL) and Secure Shell (SSH) technologies to encrypt transaction, technical, and administrative interactions and communication. We also take measures to control and restrict administrative and physical access. Unfortunately, due to the existing regulatory environment, we cannot guarantee that all of your private communications and other personally identifiable information will never be disclosed in ways not otherwise described in this Policy. For example, we may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Therefore, although we use industry standard practices to protect your privacy, we do not promise, and you should not expect, that your personally identifiable information or private communications will remain private.

E SOURCE performs virus scans on all external files (example: "Terms and Conditions" documents) that are uploaded to our servers. All email messages sent from and delivered to E SOURCE mail servers are also scanned for viruses. In spite of this vigilance, it is still possible for viruses to be introduced to your computer by downloading external files provided by RFQ posters. E SOURCE strongly suggests that users obtain and maintain their own virus protection. If you suspect that a file downloaded from E SOURCE contains a virus, please contact us immediately and indicate the name of the suspected file.