GEP® Terms of Use

1.Introduction

This Agreement between NB Ventures, Inc., d/b/a GEP ("GEP") and you ("You", “Your” or “User”) governs Your use of the Application. Your compliance with this Agreement will help ensure that the Application remains a secure and reliable place in which to buy, sell, exchange and trade goods and services.

Your use of the Application constitutes an acknowledgement that You have read the most recent version of this Agreement and that You agree to adhere to its terms. If You do not agree to be bound by the terms of this Agreement, please cease all further use of the Application. If You have any questions concerning this Agreement, please contact GEP at support@gep.com.

GEP reserves the right to change this Agreement, at any time, in its sole discretion, by posting the amended terms on this Terms of Use page and any associated links, which shall automatically be effective. Please review this Agreement carefully before Your first use and every subsequent use of the Application, as Your continued use of Application constitutes Your acceptance of the amended terms. This Agreement may not be otherwise amended except in writing signed by You and GEP.

In the event You are a potential or current supplier to a client of GEP that utilizes the Application, Your continued use of the Application indicates Your agreement to be identified in the Application as a potential or current supplier to such GEP clients. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT YOU ARE SUBJECT TO, BOUND BY, AND WILL COMPLY WITH THESE TERMS OF USE. BY USING THE SERVICE, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SERVICE.

GEP may collect, use, store and otherwise process Your personal information during Your interactions with the Application. GEP is firmly committed to maintaining the privacy of the information that You and other Users provide to GEP. You can review GEP's current Privacy Statement and Cookie Policy. Our Privacy Statement explains how we process Your personal information and our Cookie Policy provides information about the cookies that we use.

2. Registered User

The Application (including GEP SMART^™) provides multiple solutions and features that can be utilized by a registered user (“User”). Your use of the Application as a registered User is governed by this Agreement under which You (a registered User) accessed the Application. The applicability of the terms in this Agreement is governed by Your use of the solutions or features of the Application.

For individual registered Users, including but not limited to employees of suppliers or prospective suppliers to clients of GEP’s applications and services, who access GEP’s Application after registering as a User (registered User), Your use is governed by this Agreement, unless there is another agreement which supersedes or replaces this Agreement.

GEP or its designate will assign a login ID and password for each registered User. For security reasons, You may be required to enter Your user name and password multiple times during a transaction or when undertaking an activity using the Application.

You are solely responsible for protecting Your User name/Login Id and password with the same degree of care that a reasonable person uses to protect his or her other confidential information. You may not disclose Your password to any third party without the prior written consent of GEP. You may not use Your password for any unauthorized purpose.

GEP acts solely as a passive conduit for the online distribution and publication of Your Information, and You are solely responsible for your Information; provided, however, that GEP reserves the right to use or take action with respect to any Information as GEP deems necessary or appropriate in its sole discretion.

You represent and warrant that all of Your Information, including without limitation Your registration information and any information relating to goods or services that are sought through the Application, and any of Your actions involving the use of the Application: (i) will be accurate and complete and will not be fraudulent, fictitious, counterfeit, defamatory, libelous, threatening, harassing, misappropriated, stolen or otherwise unlawful or illicit; (ii) shall not infringe the intellectual property rights or other proprietary rights of any third party, including without limitation copyrights, patents, trademarks, trade secrets or rights of publicity or privacy; (iii) shall not violate any law, statute, ordinance, or regulation ("Law"), including without limitation those Laws governing export control, munitions controls, mislabeling, consumer protection, transportation of hazardous materials, drugs, health, unfair competition, or false advertising; (iv) shall not involve the purchase or sale, or offer for the purchase or sale, of any prohibited items; (v) shall not contain any viruses, Easter eggs, kill switches, disabling devices, Trojan horses, worms, time bombs, bots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information; and (vi) shall not link directly or indirectly to or include descriptions of goods or services that: (A) are identical to goods or services that You are selling via the Application but are priced lower than the reserve or minimum amount posted in Your posting on the Application; or (B) are intended to create a market for such goods or services outside the Application; or (C) You do not have a right to link to or include. You will promptly notify GEP of any changes to Your Information.

If You believe that Your Information has been copied in a way that constitutes copyright infringement, please notify GEP at privacy@gep.com and provide the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that You claim has been infringed; a description of where the material that You claim is infringing is located in the application(s) or services; Your address, telephone number and email address; a written and signed statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or applicable law; and a written and signed statement by You, made under penalty of perjury, that the information that You provide pursuant hereto is accurate and that You are the copyright owner or are authorized to act on the copyright owner's behalf.

ADDITIONAL FEATURES SUPPORTED BY THIRD PARTY INTEGRATION

GEP may provide certain services available from third parties through third party integration. Such integration(s) may be facilitated on GEP’s customer’s request. Any such integration(s) is subject to the terms of a separate agreement between GEP and the GEP client. In the event a supplier User observes such additional feature(s) related to specific buyers when using the Application, the supplier should understand that such additional feature(s) have been provided specifically for that GEP client (buyer). The GEP Application(s) and services are only facilitating such exchange for such third-party applications and it shall be the sole responsibility of the supplier User to ensure the accuracy of data being shared or included in the Application.

3. Policies governing use of the Application

No violation of applicable law: You agree that You will comply at all times with all applicable Laws. You acknowledge that You are solely responsible for ensuring that the manner in which You transmit and receive information and use the application(s) complies with all Laws. You may not post on the Application or sell through the Application any good or service where such posting or sale could cause GEP or any of its affiliates to violate any applicable Law.

Prohibited items: In particular, and without limiting the foregoing, GEP does not allow listing, buying, selling or otherwise posting information about any goods or services that may be in any of the prohibited categories as regulated by law.

Where the Application contains links to other sites and resources provided by third parties, these links are provided for Your information and convenience only. GEP has no control over, and is not responsible for, the contents of those sites or resources.

GEP reserves the right to withdraw linking permission without notice.

You must not establish a link which:

• suggests any form of association, approval or endorsement on the part of GEP where none exists;
• links to GEP’s application(s), website and services from a website that is not owned by You;
• involves the unauthorized use of any GEP trademark; and/or
• takes the form of a link that disguises the URL and/ or bypasses the homepage or pages containing the entity copyright, legal disclaimer and online policy statement.

Any rights not expressly granted through these Terms of Use are reserved.

4. Termination

At any time and with or without cause, GEP may immediately discontinue providing or limit access to the Application. GEP may, in its sole discretion, at any time terminate this Agreement, or any or all of rights and privileges granted to You or any of the other Users hereunder, and GEP may also suspend Your account or refuse to provide You access to the Application provided thereby. In the event You are in material breach of the Terms of Use, GEP may refuse You any current or future use of the Application without notice. GEP may also terminate this Agreement to comply with laws applicable to GEP for lawful operation of the services provided by GEP. GEP shall not be liable to you or any third party for such suspension or termination.

5. Intellectual property rights

You hereby acknowledge that the proprietary technology and software owned or licensed by GEP or its licensors and used by GEP and its affiliates in the operation of the Application, and any derivative works, error corrections, modifications, enhancements, upgrades, new releases and new versions (collectively, the "proprietary technology"), are and shall continue to be solely owned by GEP or its licensors, as applicable. This Agreement grants You the limited right to use the proprietary technology for the express purposes set forth herein, and this use will not result in the transfer of any ownership or other right, title or interest in or to any of the proprietary technology from GEP or its licensors to You or any other party.

All intellectual property rights to any GEP software, including but not limited to GEP SMART^™ (aka SMART by GEP^®), and inclusive of GEP websites, GEP materials and User content belongs to GEP or the individual or entity that submitted it. You hereby acknowledge that GEP's trade names, trademarks and service marks (including without limitation "GEP.com," "GEP^®," “SMART by GEP^®" and variations thereof), domain name, logo, graphics, content, configurations, images, displays, screens, patents, trade secrets, copyright, design, utility model or any other intangible property right and proprietary rights (collectively, "intellectual property rights") are and shall continue to be solely owned by GEP. GEP makes use of third party trade names, trademarks, service marks, domain names and logos (collectively, "third party marks"), and those third party trademarks are and shall continue to be solely owned by such third parties. You are not permitted to copy, modify, create derivative words from, transmit, redistribute, use or publish any of the intellectual property or third party marks except as required to enable You to use the Application pursuant to the terms set forth in this Agreement.

All GEP software is the copyrighted work of GEP. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works, including the GEP software, is an infringement of the copyright holder’s rights unless express written permission to use the work through a license is sought from the holder.

You hereby grant GEP a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any rights you have in the Information and otherwise to make use of the Information (including publishing, disseminating, broadcasting such Information) in any media now known or not currently known, for the purposes set out in GEP’s then-current Privacy Statement.

You acknowledge that GEP may collect, use and disclose qualitative and quantitative data derived from Your use of the Application for analysis including but not limited to industry analysis, analytics, and other business purposes. GEP and its officers, directors, stockholders, independent contractors, employees, agents, and affiliates (collectively, "affiliates") will use such qualitative and quantitative data and Information only as part of an aggregated and anonymized transaction information GEP publishes at its sole discretion on the website(s) or in any other medium. All data collected, used and disclosed will be in aggregated form and will not identify You as an individual User. GEP will not publish information on specific transactions, except as set out in GEP's Privacy Statement.

6. Indemnification

You agree to indemnify GEP and its affiliates for and from any loss or damages, including reasonable attorneys' fees, arising from or relating to out of: (a) Your use of the Application, including any alleged or actual violation of any law directly or indirectly arising from such use; (b) any breach or alleged breach by You of the terms of this Agreement. (c) the misuse or misappropriation of Information supplied to You; and (d) the goods or services offered to be sold or purchased by You through the Application, whether arising from the information concerning the goods or services provided by You for posting on the Application, the purchase and sale of such goods or services, the sale agreement, the delivery of such goods or services, the payment for such goods or services, or otherwise.

In particular, and without limiting the foregoing, because GEP does not and cannot control the actions of any Users, in the event that You have a dispute with one or more suppliers and/or client buyers of GEP, You hereby agree to indemnify and release GEP and its affiliates from any and all claims, demands, liabilities, losses and damages (both actual and consequential) of every kind and nature, whether known or unknown, suspected or unsuspected, and disclosed or undisclosed, arising out of or in any way connected with such dispute. If you are a California resident, You expressly waive California civil code § 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

7. Disclaimer of warranty; limitation of liability

You acknowledge that Your use of the Application is entirely at Your own risk. To the fullest extent permitted by applicable law, GEP disclaims all warranties, express or implied, including without limitation the warranties of title, merchantability, fitness for a particular purpose or noninfringement. Without limiting the foregoing, You acknowledge and agree that (i) GEP does not warrant that Application shall be error-free or operate without interruption, and the Application is provided "as is" and without warranty of any kind; (ii) GEP does not and cannot control the flow of data and information through the internet, and such flow depends on the performance of third parties whose actions or inactions may produce situations in which connections to the internet (or portions thereof) are impaired or disrupted and for which GEP is not liable; (iii) GEP does not provide any warranty with respect to the goods or services bought or sold via the Application; and (iv) GEP does not warrant that the information provided via the Application, whether concerning the goods or services or the Information or any other subject, is complete or accurate, including the User’s ability to deliver or provide the goods or services being sold and to pay for the goods or services being bought.

IN NO EVENT SHALL GEP OR ANY OF ITS AFFILIATES BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AS A RESULT OF YOUR USE OF OR RELIANCE ON THE APPLICATION INCLUDING ANY INFORMATION OR SERVICES PROVIDED THEREBY, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, GEP SHALL NOT HAVE ANY LIABILITY TO YOU ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT, BY STATUTE OR OTHERWISE).

8. Miscellaneous provisions

Notices: All notices, requests, demands or other communications required to be sent by GEP to You or by You to GEP pursuant to the Agreement shall be in writing and shall be deemed to have been given (i) three (3) days after mailing to the address, if sent by U.S. mail, registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) day after mailing if sent by nationally recognized overnight courier, or (iii) upon transmission if sent by facsimile or electronic mail with a confirmation copy simultaneously sent by U.S. mail, postage prepaid, or (iv) (iii) immediately if posted by GEP in Application.

Equitable Remedies: Both parties acknowledge and agree that money damages and other remedies at law may not provide an adequate remedy in the event of a breach of this Agreement. Therefore, in addition to any other remedies that may be available, the non-breaching party shall be entitled to seek injunctive relief or specific performance or other equitable remedies.

Cumulative remedies: No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity

Force Majeure: Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies, or any other causes beyond the control of such party, provided that such party gives the other written notice thereof properly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay ("Force Majeure"). In the event of such Force Majeure, the time of performance or cure shall be extended for a period equal to the duration of the Force Majeure but in no event shall exceed three (3) months.

Assignment successors and assigns: This Agreement and the rights granted by GEP to You hereunder may not be assigned or transferred by You without the prior written consent of GEP. GEP may assign this Agreement without obtaining Your consent.

Severability: If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.

Headings: The section headings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.

No Custom: It is expressly understood and agreed that, there being no expectation of the contrary between the parties, no usage of trade or custom and practice within the industry, and no regular practice or method of dealing between the parties, will be used to modify, interpret, supplement or alter in any manner the express terms of this Agreement.

Waiver: No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

Independent contractors: The relationship of the parties shall be that of independent contractors, and nothing in this Agreement shall be deemed to create a partnership, joint venture, franchise, representative, agency or employment relationship between said parties. Neither party to this Agreement shall have authority, express or implied, to act for or bind or otherwise obligate the other in any manner whatsoever. Persons retained by a party as employees or agents shall not be deemed to be employees or agents of the other party.

Choice of law, jurisdiction and venue: This Agreement shall be governed and interpreted in accordance with the substantive law of the State of New Jersey without regard to its conflict of law provisions. The parties irrevocably submit themselves to the non-exclusive jurisdiction of the courts of the State of New Jersey and the United States district court for the district of New Jersey for the purpose of bringing any action that may be brought in connection with this Agreement. The parties agree that they shall not assert any claim that they are not subject to the jurisdiction of such courts, that the venue is improper, that the forum is inconvenient or any similar objection, claim or argument. To the maximum extent permitted by law, the notice provision of this Agreement shall apply to service of process with respect to any action brought under this Agreement. Upon the mutual agreement of both parties, disputes may be settled via arbitration, under the rules of the American Arbitration Association, instead of in the courts of the State of New Jersey and the United States district court for the district of New Jersey.

Entire agreement: This Agreement, and any other documents incorporated by reference herein, constitutes the entire understanding and agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the parties with respect to the subject matter of this Agreement. Except as set forth in Section 1 herein, this Agreement shall not be altered, amended or supplemented without the prior written consent of the parties. In the event of any conflict or substantive translation changes in a non-English language, the English version of this Agreement shall govern.