3. KODEWIN FOR BUYERS Any Kodewin user in good standing is permitted to post a request for proposal (“RFP”) on the Platform for the purpose of procuring products and/or services from a supplier. By posting an RFP on the Platform, you represent and warrant to Kodewin and all prospective suppliers as follows: (a) each RFP and all information, data, trademarks, service marks, trade names, logos, files, images, graphics, illustrations, photographs, sounds, music, video, and similar materials and elements (collectively, “User Content”) embodied therein or in documents and communications ancillary thereto (i) are accurate in all material respects and are not misleading; (ii) are in strict compliance with these Terms and the other rules, guidelines, and policies of Kodewin; and (iii) do not violate the rights of any other person or entity, including, but not limited to, contractual rights, copyrights, trademarks, trade secrets, patents, and rights of publicity and privacy; (b) each RFP (including all User Content embodied therein) and your use of the Platform will comply with all applicable local, state, and federal laws, ordinances, and regulations; and (c) you will remain solely responsible and liable for any negligence or willful misconduct on your part with respect to any bids or proposals submitted by suppliers (collectively, “Bids”) that you elect to accept. By submitting, posting, uploading, listing, transmitting, communicating, or otherwise distributing RFPs and/or other User Content via the Platform you grant Kodewin, its successors, assigns, and licensees a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferrable license to edit, host, cache, adapt, reproduce, distribute, transmit, display, communicate, publish, link to, and otherwise use such RFPs and User Content solely to enable inclusion and use of your RFPs and/or other User Content on the Platform in the manner contemplated by these Terms and otherwise in Kodewin’s reasonable discretion. Kodewin reserves the right to not post, publish, or display on the Platform any particular RFP or other User Content, and to remove or edit any particular RFP or other User Content at any time in Kodewin’s sole discretion without notice or liability to you. It is your obligation to determine and satisfy copyright and other use restrictions with respect to User Content embodied in your RFPs and any other posts or communications by you, and you at all times will remain solely and entirely responsible for determining whether the use of any RFP or User Content embodied therein requires the consent or license from any other person or entity, and to secure such consents and to pay any associated licensing or other fees. Kodewin encourages you to seek the advice of an attorney if you have questions concerning the legality of any RFP or other User Content you wish to submit, post, upload, list, transmit, communicate, or otherwise distribute on or via the Platform. Prospective buyers are solely responsible for reading and understanding Bids received in response to their posted RFPs, including all terms and conditions of the sale [e.g., description of the product(s), service(s), price(s), payment terms, delivery specifications, shipping, tax, etc.], before selecting Bids and awarding contracts. Kodewin encourages its prospective buyers to conduct appropriate investigation and due diligence with respect to Bids received prior to awarding contracts. By selecting a Bid, you are entering into a legally-binding contract with the supplier to consummate the purchase of the products and/or services described therein in accordance with the terms set forth in the Bid. Purchases may not be canceled by you, except as may be provided in the terms of the Bid or under applicable law. Kodewin does not control, is not responsible for, and makes no representations or warranties with respect to any supplier, Bid, or User Content embodied therein or associated therewith. You remain solely and entirely responsible for your use of and reliance on any Bid and associated User Content. You agree to pay the full purchase price and any associated costs and charges incurred by you in connection with the selection of Bids through the Platform. Such associated costs include the commissions charged by Kodewin which are calculated based on the value of the contract awarded and are payable by suppliers to Kodewin at the time Bids are accepted. All such fees are non-refundable.
4. KODEWIN FOR SUPPLIERS Any Kodewin user with a User Account in good standing may submit a Bid in response to an RFP from a prospective buyer. Each time you submit a Bid on the Platform for the sale of your product(s) and/or service(s), you represent and warrant to Kodewin and all prospective buyers as follows: (a) each Bid and all User Content embodied therein or in documents and communications ancillary thereto (i) are accurate in all material respects and are not misleading; (ii) are in strict compliance with these Terms and the other rules, guidelines, and policies of Kodewin; and (iii) do not violate the rights of any other person or entity, including, but not limited to, contractual rights, copyrights, trademarks, trade secrets, patents, and rights of publicity and privacy; (b) each Bid and all User Content embodied therein and your use of the Platform will comply with all applicable local, state, and federal laws, ordinances, and regulations; and (c) you will remain solely responsible and liable for any negligence or willful misconduct on your part with respect to any and all Bids you elect to submit via the Platform. By submitting, posting, uploading, listing, transmitting, communicating, or otherwise distributing Bids and/or other User Content via the Platform you grant Kodewin, its successors, assigns, and licensees a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferrable license to edit, host, cache, adapt, reproduce, distribute, transmit, display, communicate, publish, link to, and otherwise use such Bid and User Content solely to enable inclusion and use of your Bids and/or other User Content on the Platform in the manner contemplated by these Terms and otherwise in Kodewin’s reasonable discretion. Kodewin reserves the right to not post, publish, or display on the Platform any particular Bid or other User Content, and to remove or edit any particular Bid or other User Content at any time in Kodewin’s sole discretion without notice or liability to you. It is your obligation to determine and satisfy copyright and other use restrictions with respect to User Content embodied in your Bids and any other posts or communications by you, and you at all times will remain solely and entirely responsible for determining whether the use of any Bid or User Content embodied therein requires the consent or license from any other person or entity, and to secure such consents and to pay any associated licensing or other fees. Kodewin encourages you to seek the advice of an attorney if you have questions concerning the legality of any Bid or other User Content you wish to submit, post, upload, list, transmit, communicate, or otherwise distribute on or via the Platform. Kodewin does not control, is not responsible for, and makes no representations or warranties with respect to any buyer, RFP, or User Content embodied therein or associated therewith. You remain solely and entirely responsible for your use of and reliance on any RFPs and associated User Content.
5. SERVICE FEES AND TAXES There is no charge to prospective buyers for posting an RFP on the Platform or to prospective suppliers for submitting a Bid on the Platform; however, Kodewin does charge various fees for certain of its Services, including a commission payable by suppliers in connection with selected Bids. A full description of Kodewin’s fees can be found by following the appropriate link on the Home Page. Kodewin reserves the right to change its fees (including commissions) at any time, and changes are effective immediately upon posting on the Platform. Except as required by law, all fees are non-refundable. Kodewin encourages users to periodically review such fees and associated policies to ensure users have the most up-to-date information when making decisions regarding how and to what extent to use the Platform. All fees are stated in United States Dollars unless otherwise provided. You are responsible for the timely payment of all applicable fees and for providing Kodewin with a valid payment method for such payment. At this time, Kodewin accepts payment via Visa, MasterCard, and American Express. If for any reason Kodewin is unable to collect fees owed and you fail to timely make other acceptable arrangements with Kodewin for the payment of fees owed, Kodewin may, in addition to any other remedies available at law or in equity, collect the amounts owed using any available collection method, including, but not limited to, employing collection agencies and attorneys. Kodewin reserves the right to assess late fees and suspend or otherwise restrict your access to and use of the Platform until payment is received in full. Kodewin and any associated collection agencies may also report late or missed payments to the various credit bureaus (i.e., Experian, TransUnion, and EquiFax). Kodewin is not responsible for determining if the payment or collection of sales tax or use tax or any other tax is applicable to any transaction entered into between buyers and suppliers on the Platform. All such determinations, including applicability, amount of any tax, reporting information, etc., remain the sole and entire responsibility of the parties involved.
6. INTELLECTUAL PROPERTY All rights, title, and interest in and to the Content (excluding User Content) and Marks are owned or licensed by Kodewin, subject to copyright law, trademark law, unfair competition law, trade secret law, patent law, and other intellectual property and applicable laws. Content may not be copied, downloaded, modified, reproduced, stored, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited by you for any purpose other than as explicitly set forth in these Terms and the other rules, guidelines, and policies of Kodewin without the prior written consent of Kodewin or the applicable owner or claimant, as the case may be. Neither the name “Kodewin” nor any of Kodewin’s other Marks may be used in any way, including, but not limited to, in any advertising, hyperlink, publicity, or promotional materials of any kind, whether relating to the Platform or otherwise, without Kodewin’s prior written consent, and nothing contained in the Platform should be construed as granting you by implication, estoppel, or otherwise, any license or right to use any Marks or Content without the prior written approval of Kodewin or the applicable owner or claimant, as the case may be. Notwithstanding the foregoing sentence, a third-party website that desires to link to the Platform and complies with the requirements of Section 8 (Links from Third-Party Websites) may use the name “Kodewin” in or as part of that hyperlink. Any violation or breach of the foregoing restrictions by you is strictly prohibited and will constitute infringement of the intellectual property rights of Kodewin or others and may subject you to civil and criminal penalties, including, but not limited to, monetary damages for copyright infringement. All rights in and to the Content and Marks not expressly granted by these Terms are reserved by Kodewin and its licensors. Notwithstanding anything to the contrary contained in this Section 6, you may view, copy, or print pages from the Platform solely in furtherance of transactions or potential transactions with other Kodewin users.
8. LINKS FROM THIRD-PARTY WEBSITES Third parties may link to the Platform provided they at all times (a) do not replicate or misappropriate any Content from the Platform or otherwise infringe any intellectual property rights of Kodewin, its strategic partners, or users; (b) do not create a frame or any other browser or border environment around the Platform; (c) do not link to any Content that is only made available to users with a User Account and User ID; (d) do not imply that Kodewin endorses such third party, its content, materials, products, or services; (e) do not misrepresent such third party’s relationship with Kodewin; and (f) do not display any content on such third-party’s website that could be construed as distasteful, offensive, or controversial.
9. RESTRICTIONS ON YOUR USE OF THE PLATFORM You agree to not use the Platform for any purpose that is unlawful or prohibited by these Terms or the other rules, guidelines, or policies of Kodewin, and, specifically, you agree as follows: (a) you shall not use or attempt to use the Platform if you are not able for any reason to form legally-binding contracts (e.g., if you are under the age of 18), if your Kodewin privileges are suspended, terminated, or otherwise restricted, or if you have not agreed to be bound by these Terms and the other rules, guidelines, and policies of Kodewin; (b) you shall make all payments for products and/or services purchased by you, and to deliver all products and/or services sold by you in accordance with the terms of the accepted Bid; (c) you shall not take any action that (i) could damage, disable, overburden, or impair the Platform; (ii) violates or attempts to violate the security of the Platform, including by probing, scanning, or otherwise testing the vulnerability of applicable systems, networks, and authentication measures; (iii) circumvents any technological measure implemented by Kodewin to restrict the manner in which RFPs, Bids, and other User Content can be submitted, posted, uploaded, listed, transmitted, communicated, or otherwise distributed on or via the Platform; (iv) circumvents the manner in which User Content may be transmitted to other Kodewin users, including through the use of multiple email addresses, multiple IP addresses, and multiple or fraudulent User Accounts; (v) circumvents or manipulates (or attempts to circumvent or manipulate) Kodewin’s fee structure, billing process, or fees owed; (vi) inhibits, disrupts, or otherwise interferes with another’s beneficial use and enjoyment of the Platform or any parts thereof, including by means of hacking or defacing any portion of the Platform or by accessing and using another’s User Account without permission; (vii) modifies or removes any copyright, proprietary, or identification markings accompanying any Content posted, uploaded, listed, or displayed on or via the Platform; (viii) infringes the copyrights, trademarks, service marks, patents, or other proprietary intellectual property rights of Kodewin, its successors, assigns, strategic partners, and users; (ix) solicits or mass-markets Kodewin, its strategic partners, and users via email, direct mail, telephone, or otherwise for commercial or any other purposes; (d) you shall not submit, post, upload, list, email, communicate, transmit, or otherwise distribute to Kodewin, its strategic partners, or any users of the Platform any RFPs, Bids, or other User Content or materials that (i) are false, inaccurate, misleading, or violate or infringe the intellectual property rights of any other person or entity, including copyrights, trademarks, service marks, patents, or rights of publicity or privacy; (ii) contain viruses or other malicious software that may harm Kodewin, its strategic partners, or users, or inhibit, disrupt, or otherwise interfere with the normal operation of the Platform or any parts thereof; (iii) are unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, discriminatory, obscene, vulgar, pornographic, racially or ethnically offensive, or otherwise objectionable in Kodewin’s sole discretion; (iv) contain proprietary trade secrets or other confidential information in violation of a confidentiality, employment, non-disclosure, or similar agreement; (v) constitute unsolicited or unauthorized communications, advertising, promotional materials, junk mail, and spam; (vi) impersonate or misrepresent a user as any other person or entity; (e) you shall not employ any robots, spiders, offline readers, crawlers, scrapers, framing, mirroring, other automatic devices or manual processes to access the Platform, gather or extract data, monitor or copy any Content from the Platform, or collect any personal information from Kodewin’s users, including, but not limited to, User Information, User IDs, and passwords, for solicitation or other purposes without their prior written consent; and (f) you shall not attempt (or assist another in any manner) to (i) violate, circumvent, reverse-engineer, decompile, disassemble, attempt to derive the source code or object code of, decrypt, modify, or create derivative works of the Platform; (ii) copy, reproduce, frame, download, transmit, broadcast, display, rent, lease, loan, sell, assign, distribute, license, sublicense, or otherwise exploit any Content from the Platform or modify, adapt, translate or create any derivate works from any Content for any purpose other than as expressly provided in these Terms.
10. MANAGING USER CONTENT AND COMMUNICATIONS You represent and warrant that you own or have all necessary rights, licenses, consents, and permissions to use information and materials incorporated in your RFPs, Bids, and other User Content. You remain solely and entirely responsible for your RFPs, Bids, and other User Content and any other communications and materials submitted, posted, uploaded, listed, emailed, communicated, transmitted, or otherwise distributed by you, and the consequences resulting therefrom. Kodewin has the right (but not the obligation) to monitor, screen, review, moderate, edit, block, remove, or delete any RFPs, Bids, or other User Content submitted, posted, uploaded, listed, transmitted, communicated, or otherwise distributed by you on or via the Platform. Kodewin may investigate any reported or apparent violation of these Terms, and may, at any time, take any action that Kodewin in its sole discretion deems appropriate, including, but not limited to, restricting, suspending, or terminating your Kodewin privileges and your access to all or any parts of the Platform, without prior notice or liability to you in connection therewith.
11. DISCLAIMER OF WARRANTIES BIDGIG MAKES EVERY ATTEMPT TO KEEP THE PLATFORM SAFE, SECURE, AND FUNCTIONING PROPERLY; HOWEVER, YOU ACKNOWLEDGE AND AGREE THE PLATFORM IS PROVIDED TO YOU AND ALL USERS “AS-IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. BIDGIG, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SUPPLIERS, ADVERTISERS, AND THE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, AND CONTRACTORS OF EACH OF THE FOREGOING DISCLAIM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PLATFORM AND ALL CONTENT APPEARING THEREON, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF: (a) MERCHANTABILITY; (b) FITNESS FOR A PARTICULAR PURPOSE; (c) THE QUALITY, TRUTH, ACCURACY, OR COMPLETENESS OF CONTENT POSTED, UPLOADED, LISTED, TRANSMITTED, COMMUNICATED, OR OTHERWISE DISTRIBUTED ON OR VIA THE PLATFORM, INCLUDING THE EXISTENCE, QUALITY, SAFETY, OR LEGALITY OF PRODUCTS AND SERVICES LISTED ON THE PLATFORM, THE ABILITY OF SUPPLIERS TO SELL PRODUCTS AND SERVICES, THE ABILITY OF BUYERS TO PAY FOR PURCHASED PRODUCTS AND SERVICES, OR THAT A BUYER OR SUPPLIER WILL ACTUALLY COMPLETE A TRANSACTION; (d) THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE PLATFORM, INCLUDING ACCESS TO OR USE OF THE PLATFORM AT PARTICULAR TIMES OR LOCATIONS OF YOUR CHOOSING; (e) THE NON-INFRINGEMENT OF THIRD-PARTY PROPRIETARY RIGHTS; (f) THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS; (g) THAT OPERATION OF THE PLATFORM (INCLUDING ALL COMMUNICATIONS AND TRANSACTIONS) WILL BE UNINTERRUPTED, ERROR-FREE, AND FREE OF VIRUSES, MALICIOUS SOFTWARE, OR OTHER HARMFUL COMPONENTS; (h) THAT ANY DEFECTS IN THE PLATFORM WILL BE CORRECTED; (i) THAT THE PLATFORM WILL BE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE; (j) THAT THE PLATFORM WILL CONTINUE TO BE MADE AVAILABLE; AND (h) THAT ANY PERSON USING THE PLATFORM WILL BE THE PERSON THAT HE OR SHE REPRESENTS HIMSELF OR HERSELF TO BE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH STATES OR JURISDICTIONS, SOME OF THE FOREGOING EXCLUSIONS MAY NOT APPLY TO YOU. IN ADDITION, BIDGIG DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS OR SERVICES OFFERED BY ANY THIRD PARTY THROUGH THE PLATFORM OR VIA ANY HYPERLINKED PLATFORM OR FEATURED IN ANY ADVERTISING WHICH APPEARS ON OR VIA THE PLATFORM. BIDGIG IS NOT A PARTY TO NOR WILL IN ANY WAY BE RESPONSIBLE FOR MONITORING OR PARTICIPATING IN ANY MANNER IN ANY TRANSACTION BETWEEN YOU AND ANY OTHER THIRD-PARTY. YOU ACKNOWLEDGE AND AGREE YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL REMAIN SOLELY AND ENTIRELY RESPONSIBLE FOR, AND RELEASE BIDGIG IN CONNECTION WITH, (a) ANY UNSATISFACTORY QUALITY, PERFORMANCE, OR ACCURACY OF THE PLATFORM OR ANY TRANSACTION ENTERED INTO BY YOU VIA THE PLATFORM; (b) ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICES; AND (c) ANY CORRUPTION OR LOSS OF DATA. YOU ACKNOWLEDGE AND AGREE THE PLATFORM IS CONTROLLED AND OFFERED BY BIDGIG FROM ITS FACILITIES LOCATED IN THE UNITED STATES. BIDGIG MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PLATFORM IS APPROPRIATE OR AVAILABLE FOR USE IN ANY OTHER LOCATION OR JURISDICTION. ANY USER THAT ACCESSES OR USES THE PLATFORM FROM OTHER LOCATIONS OR JURISDICTIONS DOES SO AT THEIR SOLE RISK AND WILL REMAIN SOLELY AND ENTIRELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LOCAL LAWS AND REGULATIONS. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY CONTAINED IN THESE TERMS, BIDGIG RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CHANGE, SUSPEND, CANCEL, LIMIT, INTERRUPT, DISCONTINUE, REMOVE, OR DISABLE ACCESS TO THE PLATFORM, INCLUDING ALL CONTENT, AT ANY TIME WITHOUT NOTICE. IN NO EVENT WILL BIDGIG BE LIABLE TO YOU FOR SUCH ACTIONS AND ANY CLAIMED LOSSES, HARM, OR DAMAGES ARISING FROM OR RELATING TO ANY SUCH ACTIONS. IN ADDITION, BIDGIG MAY, IN ITS SOLE DISCRETION, IMPOSE LIMITS OR RESTRICTIONS ON THE USE OF OR ACCESS TO CERTAIN FEATURES OR PAGES OF THE PLATFORM AT ANY TIME AND WITHOUT NOTICE OR LIABILITY TO YOU.
12. LIMITATION OF LIABILITY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BIDGIG, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SUPPLIERS, ADVERTISERS, AND THE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, AND CONTRACTORS OF EACH OF THE FOREGOING, BE LIABLE TO YOU, AND YOU AGREE NOT TO HOLD BIDGIG OR ANY OF THE FOREGOING PARTIES RESPONSIBLE FOR, ANY DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, GOODWILL OR REPUTATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHATSOEVER, RESULTING DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, FROM YOUR ACCESS TO, USE OF, OR RELIANCE ON THE PLATFORM AND ANY CONTENT, WITH SUCH DAMAGES OR LOSSES INCLUDING, BUT NOT LIMITED TO: (a) PERSONAL INJURY, PROPERTY DAMAGE, OR ANY OTHER LOSS OR DAMAGE OF ANY KIND, WHATSOEVER; (b) ANY UNAUTHORIZED ACCESS TO OR USE OF KODEWIN’S SERVERS AND ANY PERSONAL, FINANCIAL, OR USER INFORMATION STORED THEREIN; (c) THE QUALITY, ACCURACY, OR COMPLETENESS OF CONTENT SUBMITTED, POSTED, UPLOADED, LISTED, TRANSMITTED, COMMUNICATED, OR OTHERWISE DISTRIBUTED ON OR VIA THE PLATFORM; (d) ANY REMOVAL, DELETION, LIMITATION, MODIFICATION, INTERRUPTION, SUSPENSION, DISCONTINUANCE, OR TERMINATION OF THE PLATFORM OR ANY PARTICULAR CONTENT; (e) ANY VIRUSES, TROJAN HORSES, OTHER MALICIOUS SOFTWARE OR HARMFUL COMPONENTS WHICH MAY BE TRANSMITTED TO, THROUGH, OR IN CONNECTION WITH THE PLATFORM; (f) THE CONTENT, ACTIONS, AND OMISSIONS OF OTHER USERS AND THIRD PARTIES; (g) ANY SUSPENSION, RESTRICTION, OR TERMINATION OF YOUR KODEWIN PRIVILEGES; (h) ANY REAL OR PERCEIVED NEED BY YOU TO MODIFY YOUR PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS AS A RESULT OF CHANGES TO THESE TERMS OR THE OTHER RULES, GUIDELINES, OR POLICIES OF KODEWIN; (i) ANY ACTION OR INACTION TO PREVENT, RESTRICT, REDRESS, OR REGULATE ANY USER CONTENT, OR TO IMPLEMENT OTHER ENFORCEMENT MEASURES AGAINST ANY PARTICULAR USER CONTENT, OR ANY USER’S CONDUCT OR VIOLATION OF THESE TERMS OR THE OTHER RULES, GUIDELINES, AND POLICIES OF KODEWIN; (j) ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND (k) ANY ACTS OR OMISSIONS CAUSED BY CIRCUMSTANCES BEYOND BIDGIG’S REASONABLE CONTROL, WHETHER ANY SUCH DAMAGES OR LOSSES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIDGIG HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES OR JURISDICTIONS, BIDGIG’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL BIDGIG’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE GREATER OF THE TOTAL FEES PAID TO KODEWIN BY YOU DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE MONTH DURING WHICH THE RELEVANT CAUSE OF ACTION ACCRUED, OR $100. YOU AND BIDGIG AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, YOU MUST FILE ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THE PLATFORM WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, OTHERWISE SUCH CLAIM OR CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
13. INDEMNITY By accessing and using the Platform, you agree, to the fullest extent permitted under applicable law, to defend, indemnify, release, and hold Kodewin, its parent companies, subsidiaries, affiliates, suppliers, advertisers, and the officers, directors, owners, employees, agents, and contractors of each of the foregoing (the “Indemnitees”) harmless from and against any and all third-party claims, causes of action, demands, threats, lawsuits, and proceedings (collectively, “Claims”), and all liabilities, judgments, losses, damages, costs, and expenses of any kind whatsoever, including reasonable attorneys’ fees and court costs (collectively, “Losses”), suffered or incurred by any of the Indemnitees at any time to the extent arising out of or relating to your use of the Platform, including, but not limited to: (a) your violation of applicable law or your breach of these Terms or the other rules, guidelines, and policies of Kodewin; (b) your violation of any rights of other users or third parties, including, but not limited to, intellectual property rights; (c) any claim that a third party was damaged by any of your User Content, products or services purchased or sold by you, or your other activities relating in any way to the Platform; (d) any and all activity that occurs through or by use of your User Account (including all RFPs, Bids, and other User Content submitted, posted, uploaded, listed, transmitted, communicated, or otherwise distributed on or via the Platform); (e) any dispute between you and one or more other users of the Platform; and (f) any enumerated item set forth in Sections 11 and 12 of these Terms. This indemnification provision applies to all violations described or contemplated by these Terms. Kodewin reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you hereunder, and in any such event, you agree to fully cooperate with Kodewin’s defense of such claim. 14. INJUNCTIVE RELIEF You acknowledge and agree any violation or breach of these Terms or the other rules, guidelines, or policies of Kodewin may cause Kodewin immediate and irreparable harm and damages. Therefore, notwithstanding any other provision of these Terms or other applicable legal requirements, Kodewin has the right to, and may in its sole discretion, immediately obtain preliminary injunctive relief and seek permanent injunctive relief regarding any violation or breach of these Terms or the other rules, guidelines, or policies of Kodewin. In addition to any and all other remedies available to Kodewin at law or in equity, Kodewin has the right to seek specific performance of any provision of these Terms, including, but not limited to, by preliminary or permanent injunction.
15. DISPUTES BETWEEN USERS OF THE PLATFORM It is your sole and entire responsibility to conduct any investigation, inquiry, research, or due diligence you feel is necessary, appropriate, or prudent prior to interacting with or engaging in transactions with other users of the Platform in an effort to minimize claims and disputes. Kodewin is not a party to, has no involvement in or control over, and makes no representations or warranties regarding any transactions or interactions between its users. Kodewin does not moderate or settle claims or disputes between any of its users or between users and any other third parties. You acknowledge and agree Kodewin will have no responsibility or liability with respect to any communications, interactions, transactions, disputes, or claims of any kind between users of the Platform, and you agree to indemnify, defend, release, and hold Kodewin and any and all of the Indemnitees harmless from and against all claims, demands, and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or relating in any way to such disputes to the fullest extent permitted by applicable law. Users of the Platform are solely and entirely responsible for resolving any disputes or claims they may have against other users, and Kodewin encourages such parties to resolve any such claims or disputes amongst themselves in an amicable manner. If such claims or disputes cannot be so resolved, the parties may wish to consult the advice of an attorney qualified to advise regarding any rights and remedies an aggrieved party may have under applicable law.
16. TERMINATION OF YOUR RIGHT TO USE THE PLATFORM If Kodewin believes in good faith that your use of the Platform (a) violates these Terms or the other rules, guidelines, and policies of Kodewin; (b) infringes the rights of any third party (including such party’s intellectual property rights); (c) gives rise to other legal liabilities; or (d) is harmful to Kodewin, to users of the Platform, or to the business of Kodewin’s strategic partners, including the Platform’s Internet service provider, then Kodewin may, in its sole discretion at any time and without notice or liability to you, restrict, suspend, or terminate your access to the Platform or any parts thereof without prejudice to any other remedies available to Kodewin at law or in equity. Kodewin may also in its sole discretion cancel User Accounts that have been inactive for a significant period of time. You may terminate your User Account by written notice to: Kodewin, 565 Metro Place South, Suite 300, Dublin, Ohio 43017; Attn: Account Terminations. Any termination of your use of the Platform, whether initiated by you or Kodewin, will not affect any of your or Kodewin’s rights and obligations under these Terms arising before the effective date of such termination.
17. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) Kodewin is under no obligation to monitor RFPs, Bids, or other User Content submitted, posted, uploaded, listed, transmitted, communicated, or otherwise distributed on or via the Platform for unlawful or unauthorized content. However, Kodewin respects and seeks to preserve the copyright and proprietary interests of its community of users. Accordingly, if you believe any Content posted or otherwise displayed on the Platform infringes upon your copyrights, you may submit a notification in accordance with the DMCA by providing Kodewin with the following information in writing [see 17 U.S.C 512(c)(3) for additional details]: (a) your signature (either physical or electronic) or that of a person under penalty of perjury authorized to act on your behalf; (b) clear identification of the copyrighted work allegedly infringed; (c) clear identification of the content that is allegedly infringing and information reasonably sufficient to permit Kodewin to locate the content; (d) information reasonably sufficient to permit Kodewin to contact you (e.g., name, address, telephone number, and email address); (e) a statement by you that the use of the Content in the manner complained of is not authorized by you or permitted under applicable law; and (f) a statement by you that the information in the notification is accurate in all material respects. If you fail to comply with the foregoing requirements, your DMCA notice may not be valid. Any notices of claimed infringement should be sent to Kodewin’s Copyright Agent at email@example.com or to Kodewin, 565 Metro Place South, Suite 300, Dublin, Ohio 43017, Attn: Copyright Agent. For the avoidance of doubt, only DMCA notices should be sent to the Copyright Agent. All other feedback, inquiries, or other communications should be directed to Kodewin at firstname.lastname@example.org. If you believe that any of your User Content that may have been removed in response to a DMCA notice is not infringing, or that you possess the requisite authorization from the copyright owner or under applicable law to post, upload, list, transmit, communicate, distribute, or otherwise use such User Content, then you may send a counter-notice including the following information to Kodewin’s Copyright Agent: (a) your signature (either physical or electronic); (b) clear identification of the User Content that has been removed and the location at which the User Content was displayed or appeared prior to its removal; (c) a statement by you that the User Content was removed as a result of mistake or a misidentification; (d) a statement that you consent to the jurisdiction of the federal courts located in Franklin County, Ohio, and a statement that you will accept service of process from the person who provided notification of the alleged infringement; and (e) your name, address, telephone number, and email address. All DMCA notices and counter notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright/ for details). If a counter-notice is received by the Copyright Agent, Kodewin may send a copy of the counter-notice to the original complaining party informing that person that Kodewin may restore the removed Content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, the removed Content may be restored by Kodewin in its sole discretion in 10 business days or more after the original complaining party’s receipt of the counter-notice. BIDGIG RECOMMENDS THAT YOU CONSULT WITH AN ATTORNEY PRIOR TO SUBMITTING A DMCA NOTICE OR COUNTER-NOTICE, AS THERE CAN BE PENALTIES FOR FALSE CLAIMS UNDER THE DMCA.
18. NOTICES In creating a User Account, you must designate a primary email address that will be used for receiving electronic communications. To the extent Kodewin maintains an online message center now or in the future, such exchange of communications will be considered an electronic communication and may be utilized by Kodewin for providing you notices pursuant to these Terms, as required by applicable law, or generally regarding your User Account with Kodewin. If Kodewin needs to contact you for any reason in connection with your access to and use of the Platform, you consent to receive such notices by email. You acknowledge and agree that any such notices sent by Kodewin to you via email satisfy any legal requirement that such notices be made in writing. You also agree that Kodewin may respond to any communication you send to Kodewin with an electronic communication, regardless of whether your original communication with Kodewin was an electronic communication or not. Any electronic communication Kodewin sends to you will be considered received within 2 calendar days of the date such communication is sent by computer servers utilized by Kodewin to the email address you designate in your User Account. To the extent permissible under applicable law, any electronic communication you send to Kodewin will not be effective until Kodewin has had a reasonable opportunity to act on the electronic communication. You should not rely on electronic communication if you need to communicate with Kodewin immediately and, in no event, should your sole method of communication with Kodewin regarding any emergency be sent by electronic communication. Kodewin strongly suggests that you report all matters requiring immediate attention to Kodewin by calling 1-855-543-5433.
19. USER COMMENTS AND SUGGESTIONS Kodewin encourages its community of users to work collaboratively to keep the Platform safe and working properly. Please report any problems, offensive content, or violations of these Terms or the other rules, guidelines, and policies of Kodewin to: email@example.com. User feedback is important to Kodewin. If you have ideas, comments, or suggestions on how to improve the Platform, please contact us at: firstname.lastname@example.org. Please note that by doing so, you grant Kodewin permission to use and incorporate such ideas, comments, and suggestions into the Platform without further notice or compensation to you.
20. MISCELLANEOUS These Terms, along with any other legal notices published by Kodewin on the Platform, constitute the entire agreement between you and Kodewin relating to the subject matter hereof and supersede any prior agreements, written or oral, between you and Kodewin relating to the subject matter hereof. You acknowledge and agree the Platform along with these Terms and the other rules, guidelines, and policies of Kodewin will be governed by and construed in accordance with the laws of the United States and, to the extent not preempted by federal law, the internal substantive laws of the State of Ohio, without regard to its conflict of laws principles. The Platform will be deemed a passive website that does not give rise to any personal jurisdiction over Kodewin, either specific or general, in any state other than the State of Ohio. You agree that exclusive jurisdiction for any claim or dispute with Kodewin arising from or relating to your access or use of the Platform will be decided in the federal and state courts located in Franklin County, Ohio (and any courts of appeal respectively therefrom). You agree to not plead that Franklin County, Ohio is an inconvenient forum in connection with any such claim or dispute. If any provision contained in these Terms is deemed invalid or unenforceable by a court of competent jurisdiction, then the invalidity or unenforceability of such provision will not affect the validity or enforceability of the remaining provisions of these Terms, all of which will remain in full force and effect. No waiver of any term or provision of these Terms will be deemed a further or continuing waiver of such term, provision, or any other term or provision, and Kodewin’s failure to assert any right under these Terms will not constitute a waiver of such right. No agency, partnership, joint venture, employment, or franchise relationship is intended to be or is created by these Terms. You acknowledge and agree these Terms will survive any termination of your right to use the Platform or any discontinuance of the Platform. You may not assign these Terms, in whole or in part, or delegate any of your responsibilities under these Terms to any third party. Any such attempted assignment or delegation will not be recognized by Kodewin unless consented to by Kodewin in writing, which consent may be granted or withheld by Kodewin in its sole discretion. Kodewin may, at any time and in its sole discretion, assign these Terms, in whole or in part, or sublicense or delegate any of its rights and/or responsibilities under these Terms to any other person or entity. Last updated: February 15, 2021