Konexions Membership Program
Terms and Conditions for Corporate Members
These Terms and Conditions for Corporate Members (the “Agreement”) are between Konexions, Inc. (“Konexions”) and the entity (“Member”) registering for the Konexions Membership Program (“Program”), and govern Member’s participation in the Program. Under the Program, Konexions provides organizations access to place orders under vendor (“Supplier”) contracts (“Supplier Agreements”), and membership is absolutely free with no purchasing obligations.
BY CLICKING TO ACCEPT THIS AGREEMENT IN CONNECTION WITH REGISTRATION FOR THE PROGRAM, BY ELECTRONICALLY OR MANUALLY SIGNING THIS AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE PROGRAM, MEMBER SIGNIFIES ITS AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF MEMBER DOES NOT AGREE TO SUCH TERMS, CONDITIONS AND/OR NOTICES, MEMBER MAY NOT ACCESS OR USE THE PROGRAM.
Konexions reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to Member by updating this posting. Thus, Member should visit this page periodically for changes: [insert URL where this Agreement and updated versions will be hosted]. If Member disagrees with any changes to this Agreement, Member’s sole remedy is to discontinue use of the Program. Member’s continued use of the Program after a change has been posted constitutes Member’s acceptance of the change thereafter.
1. Member Authorization. Member hereby designates Konexions and its Affiliates (defined below) to act as Member’s non-exclusive group purchasing agent for the products and services (collectively, “Products”) purchased by Member through the Program. Member hereby acknowledges and agrees that Konexions will act as Member’s group purchasing organization for the Products in program lines it elects to access through the Program. “Affiliates” means those third-party group purchasing organizations with which Konexions has a contract to offer Products through such organizations’ group purchasing programs.
2. Affiliates; Supplier Approval. Konexions has entered into contracts with Affiliates who have group purchasing contracts directly with certain Suppliers. Member understands and agrees that Products from certain Suppliers available through the Program must be purchased under the group purchasing contracts of these Affiliates. Accordingly, by accepting this Agreement, Member agrees to be bound by the following Affiliate terms and conditions: [insert URL of Premiere and Beacon (if available) Member Program Terms]. In addition, Member expressly agrees that: (a) Member is joining in the group purchasing program of the Affiliates; (b) Member requests to access the contracts, pricing and programs offered by Suppliers under the Affiliates’ group purchasing programs; (c) Member authorizes the relevant Suppliers to report to the relevant Affiliate all purchases made by Member under such Affiliate’s group purchasing program; (d) the foregoing will remain in effect until revoked/cancelled by written notice from Member or the Affiliate; (e) Member authorizes the Affiliate to provide written confirmation of all of the foregoing to the Supplier; and (f) the Affiliate may require additional information from Member to confirm all of the foregoing. Member further acknowledges and agrees that: (i) before it may purchase through certain Supplier Agreements, Konexions or a Affiliate may need to obtain approval from the relevant Suppliers to do business with Customer, and Konexions does not guarantee Suppliers will give such approval; and (ii) certain Suppliers may require Member meet certain eligibility requirements and/or to enter into additional terms and conditions directly with the Supplier to purchase certain Products, and neither Konexions or any Affiliate will be a party to, or have any control over, such additional requirements, terms and conditions. Affiliates are third-party beneficiaries under this Agreement.
4. Compliance with Law and Konexions Policies; Purpose of Purchases; Member Affiliate Purchases. Member represents and warrants that it complies with all applicable federal, state and local laws and regulations and that it has not (a) been listed by any federal or state agency as excluded, debarred, suspended or otherwise ineligible to participate in federal and/or state programs or (b) been convicted of any crime relating to any federal and/or state program. Member agrees that, in addition to the terms and conditions contained in this Agreement, it shall also comply with all Program policies established and in effect from time to time. Member will use all Products it purchases through the Program solely for its own operations and will not resell, lease or otherwise transfer any such Products. Member shall timely complete and provide to Konexions any necessary enrollment forms and/or declaration documents. In the event that Member purchases Products through the Program on behalf of any subsidiaries, business units or other affiliated companies (“Member Affiliates”), Member represents that it has authority over all purchases, including liability for payment of invoices, and that it has the authority to cause each such Member Affiliate to comply with this Agreement. Member shall be responsible for any violation of this Agreement caused by any Member Affiliate. Konexions will have the right to terminate this Agreement, and Member’s participation in the Program, immediately upon Member’s breach of any restriction or obligation set forth in this Section 4.
Konexions hereby grants Member and Authorized Users a non-exclusive, non-transferable, non-sublicensable, revocable right, during the term of this Agreement, to access and use the Konexions Portal for the sole purpose of managing Member’s Program Account.
Member will not attempt to interfere with or disrupt the Konexions Portal. Except as expressly authorized under this Agreement, Member shall not: (a) reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Konexions Portal; (b) modify any portion of the Konexions Portal; (c) rent, lease, or provide access to the Konexions Portal on a service bureau basis; or (d) copy, transmit, or distribute any portion of the content on the Konexions Portal. Member will use the Konexions Portal solely for authorized and legal purposes and will not use the Konexions Portal to violate any applicable laws or regulations.
As between Member and Konexions, except for the limited license granted herein, all right, title, and interest in and to the Konexions Portal, including without limitation any intellectual property rights therein, but excluding any Member Data, are and will remain the exclusive property of Konexions. Konexions reserves all rights in and to the Konexions Portal, and nothing contained in this Agreement shall be construed as conveying any right or license in the Konexions Portal, by implication, estoppel, or otherwise. Member shall make no use of the Konexions Portal except as expressly provided herein.
6. Term and Termination. The term of this Agreement will commence on the date Member registers for the Program and accepts this Agreement and shall continue until terminated.
Member have the right to terminate this Agreement, and Member’s participation in the Program, at any time upon written notice to Konexions. Konexions has the right in its sole and absolute discretion to terminate this Agreement immediately or deny the membership of Member or any Member Affiliate in the event: (a) Member or such Member Affiliate violates this Agreement, acts in a manner that is inconsistent with the Program’s spirit of intent or violates the participation requirements of the Program; or (b) the involvement of Member or such Member Affiliate with Konexions has the potential to damage the reputation of Konexions, any Affiliate, any Supplier, or their respective affiliated companies.
In the event of any termination of this Agreement, Member shall promptly cease purchasing Products under the Program and cease all use of the Konexions Portal.
7. Confidentiality and Privacy. “Confidential Information” means all technical, business, financial and other information of Konexions, Affiliates or Suppliers (“Disclosing Party”) that derives economic value, actual or potential, from not being generally known to others, including, without limitation, the Konexions Portal, group purchasing program prices and terms, reports, proposals, agreements, organizational documents, technology, Product catalogs, and plans of operation. Member shall: (a) strictly preserve and protect the confidentiality of the Disclosing Party’s Confidential Information and not disclose such Confidential Information to any third party other than Member’s employees, subcontractors and agents who have a need to receive such Confidential Information and who are subject to nondisclosure obligations at protective as those set forth herein; and (b) refrain from using the Confidential Information of the Disclosing Party except as contemplated in this Agreement. In no event, will Member use less care to prevent unauthorized disclosure or use of the Confidential Information of the Disclosing Party than Member uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. Notwithstanding the foregoing, Member shall have no obligation with respect to information that Member can demonstrate: (i) is or becomes publicly available through no act or omission of Member; (ii) is lawfully obtained from a third party without restrictions on disclosure; (iii) is independently developed by Member without access to such information; or (iv) was rightfully in possession of, or known to, Member without any obligation of confidentiality prior to receiving it from the Disclosing Party. Furthermore, Member may disclose the Confidential Information of the Disclosing Party if Member becomes legally compelled to disclose such Confidential Information (whether by judicial or administrative order or applicable law, rule or regulation). If Member is operated by a state, federal or municipal agency and therefore subject to applicable open records laws which may require Member to release Confidential Information, Member shall promptly notify Konexions of any request under such laws for the release of such information and shall cooperate in good faith with Konexions and use its best efforts to assist Konexions in preventing the release of such information to the extent consistent with applicable law. The unauthorized disclosure or use of the Confidential Information may cause irreparable harm to the Disclosing Party, which harm cannot be compensated by damages alone. Therefore, in addition to all other rights and remedies at law and in equity, the Disclosing Party may seek an injunction to prevent a violation of the obligations of confidentiality. Within thirty (30) days after any termination or expiration of this Agreement or receipt of any written demand from the Disclosing Party, Member shall delete all copies of the Disclosing Party’s Confidential Information from Member’s technology, computer and storage systems and media and destroy any and all tangible copies of such Confidential Information.
8. Member Data; Trademarks. Member agrees to permit Konexions and relevant Affiliates reasonable access to all data directly related to the purchasing of Products by Member, whether such purchases by Member are made under Supplier Agreements with Konexions or Affiliates, as well as all data (excluding personal data) provided by Member in connection with the Konexions Portal (collectively, “Member Data”). Member grants to Konexions and Affiliates a nonexclusive, royalty-free, perpetual, irrevocable, worldwide, transferable and sublicensable right and license to aggregate, compile, manipulate, reproduce, modify, supplement, adapt, translate, create derivative works from, distribute, publish, disclose and otherwise use Member Data: (i) to provide the Program, deliver the Products, and provide all related products and services; (ii) to perform their obligations or to exercise their rights under this Agreement; (iii)for internal operational purposes such as improving the Program and Konexions Portal; and (iv) for any commercial purpose on an anonymous and aggregated basis. Konexions will have the right, without limitation, to permit its subcontractors to exercise the foregoing rights for the purpose of providing services to Konexions.
Konexions and its graphics, logos, page headers, button icons, scripts, and service names are trademarks or trade dress of Konexions. Konexions trademarks and trade dress may not be used in connection with any product or service that is not otherwise provided or authorized in writing by Konexions, or in any manner that is likely to cause confusion among members, or in any manner that disparages or discredits Konexions. All other trademarks not owned by Konexions that appear on this site are the property of their respective owners, which may or may not be affiliated with, connected to, or sponsored by Konexions.
Member agrees that Konexions may include Member’s name and logo in a list of customers displayed on Konexions’ website and displayed in marketing materials and investor presentations; provided, however, that: (a) Konexions shall not otherwise use any name, trademark or logo of Member in any marketing, advertising, press release or other public announcement without Member’s prior written consent; and (b) Konexions shall promptly cease using Member’s name and logo in customer lists upon receipt of written notice from Member requesting that Konexions cease such use.
9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) IN NO EVENT WILL KONEXIONS, AFFILIATES, OR THEIR RESPECTIVE AFFILIATED COMPANIES OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES); AND (B) IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF KONEXIONS, AFFILIATES, AND THEIR RESPECTIVE AFFILIATED COMPANIES AND LICENSORS UNDER THIS AGREEMENT OR IN CONNECTION WITH THE PROGRAM, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED $500. UNDER NO CIRCUMSTANCES WILL KONEXIONS OR ITS AFFILIATED COMPANIES OR LICENSORS BE LIABLE TO MEMBER FOR: (I) ANY ACTS OR OMISSIONS OF AFFILIATES OR SUPPLIERS, OR FOR ANY REPRESENTATIONS OR WARRANTIES MADE BY AFFILIATES OR SUPPLIERS; OR (II) ANY DAMAGES OR HARM ARISING OUT OF ANY PRODUCTS OR USE THEREOF, INCLUDING ANY PRODUCT LIABILITY FOR DESIGN OR MANUFACTURING DEFECTS.
Konexions shall not be liable to the other for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by any cause beyond its reasonable control.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to Member. To the extent Konexions may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Konexions’ liability shall be the minimum permitted under such applicable law.
10. Indemnification. Member agrees to indemnify, defend and hold harmless Konexions, its affiliated companies, and their respective officers, directors, employees, subcontractors and agents (each a “Konexions Indemnitee”) from any claim, demand, action, class action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including attorneys’ fees) arising therefrom (“Claims”), brought by any third party against any Konexions Indemnitee to the extent that such Claim is based on, or arises out of: (a) Member’s participation in the Program; (b) any breach of Member’s obligations, representations or warranties in this Agreement, in any Konexions policy or in any Affiliate terms and conditions; (c) Member’s use of any Products; or (d) the fraud, gross negligence or willful misconduct of Member, any Member Affiliate or their respective employees or subcontractors. Member shall not settle any claim unless such settlement completely and forever releases the Konexions Indemnitee from all liability with respect to such claim or unless the Konexions Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld).
11. Warranties; Disclaimers. Member represents and warrants during the term of this Agreement that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement by Member and performance of its obligations hereunder comply with all applicable laws, rules and regulations (including privacy, export control and obscenity laws); (c) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation of Member, enforceable against it in accordance with its terms; (d) neither the execution nor performance of this Agreement will violate any agreement to which it is a party or by which it is otherwise bound; and (e) it has all necessary consents, approvals and licenses to perform its obligations under this Agreement and to grant the licenses it provides under this Agreement.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND EACH PARTY HEREBY DISCLAIMS THE SAME. KONEXIONS DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY PRODUCTS PURCHASED THROUGH THE PROGRAM, AND MEMBER SHALL LOOK SOLELY TO THE SUPPLIER WITH RESPECT TO ANY PRODUCT WARRANTIES.
Some links within the Konexions website or the Konexions Portal may lead to other sites. Konexions does not necessarily sponsor, endorse or otherwise approve of the materials appearing in such sites. Member further acknowledges and agrees that Konexions 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, goods or services available on or through any such site or resource.
Konexions makes no warranties, express or implied, concerning the accuracy or completeness of the information contained in its website or the Konexions Portal concerning specific Supplier offerings or Product pricing, or that the Konexions Portal will be free of errors, uninterrupted or will function on all browsers or operating systems. All Supplier offers are for a limited time only and are subject to Product availability. Konexions, Affiliates and Suppliers reserve the right to change or modify all offers at any time without notice. Every effort is made to ensure the accuracy of the Supplier offers, however, Konexions, Affiliates and Suppliers are not responsible for any errors or omissions.
12. Miscellaneous. Sections 6 (final paragraph), 7, 9, 10, 11 and 12 shall survive any expiration or termination of this Agreement. Neither party shall assign this Agreement without the prior written consent of the other party, not to be withheld unreasonably; provided, however, that either party shall have the right to assign this Agreement and the obligations hereunder to any company affiliate or to any successor of such party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning party relating to the Agreement. Any attempt by either party to assign other than in accordance with this provision shall be null and void. Unless otherwise specified herein, all any notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to the intended recipient thereof at such address of a party set out herein or otherwise provided by a party; provided, however, that Konexions will also have the right to deliver any notices, invoices and other communications to Member hereunder via the email address Member provided in connection with registration for the Program. Except as otherwise expressly provided at the beginning of this Agreement, no amendment of any provision of this Agreement shall be effective unless set forth in a writing signed by a representative of Licensee and Konexions, and then only to the extent specifically set forth therein. No waiver by either party of any condition or the breach of any provision of this Agreement in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision. This Agreement shall be governed by the laws of the State of California, without regard to its conflict of law rules. Any litigation, suit or other proceeding regarding the rights or obligations of the parties hereunder shall be conducted exclusively before the state and federal courts in and for Orange County, California, and the parties specifically consent to Orange County, California, as the exclusive venue for any such proceeding. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reimbursement from the other party for its expenses and reasonable attorneys’ fees associated with the action, in addition to any other relief to which such prevailing party may be entitled. This Agreement embodies the entire agreement between the parties with respect to the subject matter hereof and thereof, and supersedes all prior negotiations, discussions, agreements and understandings between the parties relating to the subject matter hereof and thereof. If any term of this Agreement or part hereof not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable, it is the intention of the parties that the remaining terms hereof or part hereof shall constitute their agreement with respect to the subject matter hereof and thereof and all such remaining terms, or parts thereof, shall remain in full force and effect. Any signature received via facsimile or electronically via email in connection with this Agreement or registration for the Program shall be as legally binding for all purposes as an original signature.
13. Contacting Konexions. Member may contact Konexions at the following address:
27201 Puerta Real, Suite 300
Mission Viejo, CA 92691