EASYLINK provides (i) access and use of EASYLINK's online transaction processing and ancillary services through EASYLINK's web sites, www.enabletrading.com (the "Site") and (ii) for the receipt, processing and transmitting of data files between Members (together with the Site, the "Service"), to facilitate the purchase and sale of goods between manufacturers and retailers, and is solely for your internal use in accordance with these Terms. We may, in our sole discretion, add, delete, or change some or all the services included within the Service at any time. The Service is owned and operated by EASYLINK and is being provided to Members (as defined below) under these Terms and any operating rules, policies, and procedures that may be published from time to time on the Site by EASYLINK.
2. Eligibility for Membership.
The Service is available only to corporations and other business entities directly involved in the buying or selling of direct goods ("Products") between retailers and manufacturers (each a "Company") and their designated employee(s) as indicated by the Member (each, a "Designated Employee"), and each Designated Employee can form legally binding contracts under applicable law. If you do not qualify, please do not attempt to use the Service. The Company and each Designated Employee shall each be considered a Member under these Terms. A Designated Employee shall be deemed to be acting on behalf of the Company at all times. In the event that a Designated Employee no longer is an authorized representative of the Company (whether due to termination of employment or otherwise), the Company shall immediately notify EASYLINK, in writing, of the removal of such employee as the Designated Employee and the appointment of a new Designated Employee for the Company. Upon issuance of a reply notice by EASYLINK acknowledging the change in EASYLINK's authorization records, such former Designated Employee shall no longer be deemed to be a Member. EASYLINK may refuse to offer its Service to any individual or entity and may change its criteria for Membership, at any time, in its sole discretion.
3. Member Account, Password and Security.
EASYLINK will assign each Company its own unique customer identification ("Customer ID") and each Designated Employee his or her own unique employee identification ("Employee ID") and password (collectively "User Name"). Each Designated Employee is responsible for maintaining the confidentiality of his or her own password, Employee ID, and the Customer ID of the Company. Furthermore, each Designated Employee is entirely responsible for any and all activities which occur under his or her Employee ID, the corresponding Customer ID, and Password, and the Company is entirely responsible for any and all activities of its employees, agents, and representatives, whether or not such employees, agents, and representatives are Designated Employees. Member agrees to immediately notify EASYLINK of any unauthorized use of the Service or a Member's account (including unauthorized use of a User Name or Password by any employee, agent, or representative of the Company who is not a Designated Employee) or any other breach of security known to Member, it being understood that the Designated Employee's knowledge shall be imputed to the Company. Unauthorized access to the Service, or to the telecommunications or computer facilities used to deliver the Service, is a breach of these Terms and is a violation of law.
4. Access to the Site.
4.1 Equipment and Connections. In order to participate in the Service, Member must: (1) provide all equipment, including a computer, software and modem, necessary to establish a connection to the Internet; (2) provide for Member's own access to the Internet; and (3) pay any telephone or other service fees associated with such access to the Internet.
4.2 Availability of the Site and Services. The Site and Service is available 24 hours a day, 7 days a week. However, we retain the right to make the Site and Service unavailable from time to time for any reason. Member agrees that EASYLINK shall not be liable for any damages arising from any interruption, suspension or termination of the Site and/or the Service.
4.3 Use of Passwords. Access to and use of the Service and the Site is through the User Name. No Member or other person is permitted to access the Site using the User Name and password of any other Member.
5. Modification of Terms.
EASYLINK may change or amend these Terms from time to time. Upon any change in these Terms, EASYLINK will post the amended Terms on the Site. The amended Terms shall automatically become effective ten (10) days after they are initially posted on the Site. These Terms may not otherwise be amended, except in a writing signed by both Parties. Member's continued use of the Service after the expiration of the ten (10) day period constitutes Member's affirmative: (a) acknowledgment of these Terms and its modifications; and (b) agreement to abide and be bound by these Terms, as amended.
6. Modifications to Service.
EASYLINK reserves the right to modify or discontinue the Service, temporarily or permanently, with or without notice to Member, and is not obligated to support or update the Service. Member acknowledges and agrees that EASYLINK shall not be liable to Member or any third party in the event that EASYLINK exercises its right to modify or discontinue the Service.
7. EASYLINK is Only a Forum.
EASYLINK provides a forum for matching buyers and sellers of Products. EASYLINK serves to assist in the consummation of transactions between buyers and sellers of Products by providing a network that will process electronic transactions between buyers and sellers.
8. Terms and Conditions between Members.
These Terms govern your use of the Site and the Service. However, the specific terms and conditions of a Member's purchase of Products (such as pricing, warranties from sellers, delivery, etc.) through the Service are established between Members.
10. Transaction Fees.
Members will be charged for conducting transactions through the Site in accordance with their Customer Agreement. In the event EASYLINK provides additional services to or a Member uses additional services of EASYLINK (other than the Service), then the Member agrees to execute any additional agreement relating to any additional services utilized by the Member, and pat the fees relating thereto.
The Service may provide links to other Web sites or resources. Member acknowledges and agrees that EASYLINK is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Member agrees that EASYLINK shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products or services available on such external sites or resources.
12. Proprietary Rights.
Member acknowledges that content, including but not limited to text, software, sound, photographs, video, graphics or other material contained on the Site or in sponsor advertisements or commercially produced information presented to Members on the Service ("Content") by EASYLINK, EASYLINK's advertisers, or other Members, is protected by copyright, trademarks, service marks, patents or other proprietary agreements and laws and Member is only permitted to use this Content as expressly authorized by EASYLINK, the advertiser or a Member, as applicable. This Agreement does not transfer any right, title, or interest in the Service or the Content to Member, and Member may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by EASYLINK, the advertiser, or a Member, as applicable.
13. Member Conduct.
13.1 Member is Solely Responsible for Conduct. Member agrees that it is solely responsible for its actions, and the content of its transmissions through the Service, it being understood that the Designated Employee acts on behalf of the Company in all actions and submissions on the Service.
13.2 No Illegal or Deceptive Acts. Member agrees: 13.2.1 to abide by all applicable local, state, national, and international laws and regulations in Member's use of the Service;
13.3Libelous or Scandalous Materials. Member agrees:
13.3.1 not to post, promote or transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature;
13.3 System Integrity. Member agrees:
13.4.1 not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer;
13.5 Maintenance of Confidential Information; Privacy. Member agrees:
13.5.1 not to disclose other Members' confidential information, including, but not limited to, product specifications, terms, pricing, and availability;
13.6 No Unauthorized Access.
Member agrees not to provide access to the Site to any other persons through use of Member's User Name or password. The Member is solely responsible to ensure that no other person utilizes Member's User Name or password. EASYLINK is specifically not responsible for the use of any Member's User Name or password by another party. Member shall be responsible for any damages or liability resulting from another party obtaining his or her User Name or password.
13.7 Copyright Infringement.
In the event that Member posts or makes accessible communications or other materials that infringe the copyrights of a third party, EASYLINK shall terminate Member's access to the Service in accordance with EASYLINK's copyright infringement policy pursuant to the Digital Millennium Copyright Act. EASYLINK maintains a special email address for notifications of claimed infringement concerning materials. All correspondence should be addressed to EASYLINK's "Designated Agent to Receive Notification of Claimed Infringement" at email@example.com or at EASYLINK Corporation, 665 Broadway, New York, NY 10012. Members may contact EASYLINK with complaints regarding allegedly infringing posted material and EASYLINK will investigate those complaints. If the posted material is believed in good faith by EASYLINK to violate any applicable law, EASYLINK will remove or disable access to any such material and EASYLINK will notify the posting Member that the material has been blocked or removed in accordance with its copyright infringement policy.
14. Disclaimer of Warranties.
MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT ITS SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. EASYLINK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. EASYLINK MAKES NO WARRANTY THAT THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES EASYLINK MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OR ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
15. Limitation of Liability.
As a condition of membership, and in consideration of the Services provided by EASYLINK, Member agrees that neither EASYLINK, nor any officer, affiliate, director, shareholder, agent or employee of EASYLINK will be liable to Member or any third party for any direct, indirect, incidental, special, punitive, or consequential loss of profits, loss of earnings, loss of business opportunities, damages, expense, or costs resulting directly or indirectly from, or otherwise arising in connection with any of the following:
16. No Resale of the Service.
Member's right to use the Service is limited solely to the Company and its Designated Employee. Member agrees not to reproduce, duplicate, copy, sell or resell the Service, without the express consent of EASYLINK.
Member agrees to indemnify, defend and hold harmless EASYLINK, its parents, subsidiaries, affiliates, directors, officers, shareholders and employees, from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Member's use of the Service, Member's violation of these Terms, or the infringement by Member, or any other person using the User Name or Password, of any right of any person or entity.
18. Termination and Effect.
18.1 Termination. Either party may terminate access to the Service upon no less than ninety (90) days written notice to the other party. EASYLINK shall not be liable to Member or any third party for termination of the Service. Should Member object to any provision of these Terms or any subsequent modifications thereto or become dissatisfied with the Service in any way, Member's only recourse is to immediately: (a) terminate use of the Service; and (b) notify EASYLINK of termination. Upon termination of the Service, Member's right to use the Service immediately ceases and Member acknowledges and agrees that EASYLINK may immediately delete the files in Member's account, bar any further access to such files or the Service; provided that, in the event that EASYLINK modifies these Terms as set forth below and Member does not accept such modified terms, Member shall have a period of ten (10) days to remove Member's files and data from Member's account before the Service terminates and Member's access to the Service ceases.
All notices to a Party shall be in writing and shall be made via email to firstname.lastname@example.org for notices to EASYLINK, and to the email address that Member provides to EASYLINK as part of Registration Data for notices to Member, or such other address as either Party may specify. Notice shall be deemed given twenty-four (24) hours after the email is sent, unless the sending Party is notified that the email address is invalid. Alternatively, notices may be sent by regular mail, postage prepaid to EASYLINK's address provided below and to the Member's address provided as part of Registration Data. EASYLINK may also broadcast notices or messages on the Site, or other matters of importance; such broadcasts shall constitute notice to Member.20. Arbitration.
Any dispute between Member and EASYLINK arising out of these Terms or Member's use of the Service shall be submitted to binding arbitration in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. Any arbitration shall take place before a panel of three arbitrators, one of whom shall be selected by Member, one of whom shall be selected by EASYLINK, and the third of whom shall be selected by the other two arbitrators. Judgment upon any award made in such an arbitration may be entered and enforced in any court of competent jurisdiction. The arbitrators shall apply the law of the State of New York and the arbitration shall be held in New York, New York. The arbitrators shall have the authority to award actual money damages, specific performance, and temporary injunctive relief, but the arbitrators shall not have the authority to award exemplary or punitive damages, and the Parties expressly waive any claimed right to such damages. The costs and expenses of the arbitration, but not the costs and expenses of the Parties, shall be shared equally by the Parties; provided that if the arbitrators determine that one Party prevailed in the proceeding, then the other Party shall bear the entire cost and expense of the arbitration.
21. Choice of Law and Jurisdiction.
These Terms shall be construed and governed by the laws of the State of New York, United States of America, and without regard to choice of law principles.
22. Entire Agreement.
The headings of the articles and sections of these Terms are inserted for convenience only, do not constitute a part of these Terms and shall not affect in any way the meaning or interpretation of these Terms.
If any term, provision, covenant, or restriction of these Terms is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable, for any reason, the remainder of these Terms shall remain in full force and effect.
Easylink Services International Corporation
6025 The Corners Parkway
Norcross, GA 30092