Terms And Conditions For Access And Use Of netMercury Websites
The netMercury website (the "Website") is an online sales service provided by netMercury, Inc. Both your access to the Website and your use of it are subject to your compliance with the terms and conditions set forth below, including all exhibits hereto. Please examine this document carefully before accessing or using the Website. By accessing or using the Website, you agree to be legally bound by the terms and conditions set forth below. You may not access or use the Website should you not want to be bound by these terms and conditions. This Agreement may be modified at any time, and any such modification shall be effective immediately upon posting of the modified agreement. By your access to the Website and your use of it, you agree to periodically review this Agreement and shall be conclusively bound by any such future modifications.
THE TERMS AND CONDITIONS SET FORTH ON THIS FORM (THE "TERMS") AND ANY WRITTEN AGREEMENT EXECUTED BY BUYER AND NETMERCURY ("AGREEMENT") CONSTITUTE THE ENTIRE AGREEMENT BETWEEN NETMERCURY ("NETMERCURY") AND BUYER (BUYER). NETMERCURY WILL NOT BE BOUND BY ANY TERMS ON BUYER'S ORDER OR OTHER FORMS THAT ARE INCONSISTENT WITH THESE TERMS. ACCEPTANCE BY BUYER OF THESE TERMS MAY BE MADE EITHER (1) BY WRITTEN ACCEPTANCE, (2) PLACEMENT OF AN ORDER THROUGH THE NETMERCURY ONLINE ORDERING SYSTEM OR (3) RECEIPT BY BUYER OF DELIVERY OF ANY PRODUCTS FROM NETMERCURY.

1. Copyright, Licenses and Idea Submissions. The entire contents of this Website are copyrighted under the United States copyright laws. netMercury is the exclusive owner of the copyright. You may print and download portions of the materials solely for your non-commercial use. Any other copying, redistribution, publication or retransmission of any portion of Website material, is strictly prohibited without the express written permission of netMercury or any third party information provider to the Website. You agree not to change or delete any proprietary notices from any materials downloaded from the Website. By your acceptance of these Terms and Conditions you also grant to netMercury the right to use your name and logo in any list of netMercury's customers as well as in connection with any and all advertising, marketing and promotional material related thereto. 
2. Orders. The Buyer will submit orders for products through netMercury's online ordering system for items located on the World Wide Web at www.netMercury.net ("netMercury System"). These Terms apply to all orders for Products accepted by netMercury. Acceptance of Buyers order by netMercury will be made only on the express understanding and condition that insofar as these Terms conflict with any terms and conditions in Buyer's order, these Terms shall govern. No order shall be binding upon netMercury until netMercury sends Buyer confirmation of such order through electronic mail, facsimile, or other written communication. Buyer understands that netMercury does not manufacture the products sold to Buyer hereunder ("Products"), but rather obtains such Products for distribution hereunder through third party suppliers ("Suppliers").

3. Prices, Taxes, Payment. All prices quoted, all orders accepted, and all billings rendered are exclusive of all federal, state and local withholding, excise, sales, use and similar taxes, fees, or charges imposed by any governmental authority on this transaction. Buyer will reimburse netMercury, even if after the sale, for any such tax, fee or charge, at the time of sale or thereafter, that netMercury is required to pay. Terms of payment are net thirty (30) days from the date of invoice. In the event that payment is not received within such thirty-day period, any unpaid balance shall bear interest at the rate of l 1/2% per month, or the maximum amount allowed by law, if lower. The amount of credit may be changed or withdrawn completely by netMercury at anytime. On any order for which credit is not extended by netMercury, shipment or delivery shall require, at netMercury's election, cash with order (in whole or in part), or C.O.D. or sight draft attached to the bill of lading or other shipping documents, and all costs of collection shall be paid by Buyer. If any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, netMercury shall be entitled to cancel any order by Buyer then outstanding. If at any time or from time to time netMercury shall request Buyer to provide an appropriately attested representation of Buyer's solvency, Buyer shall provide an accurate representation thereof and if (i) it shall not be satisfactory to netMercury or (ii) Buyer shall not have provided it within the time specified by netMercury, then, in either event, netMercury shall have the right to withhold deliveries of Products for so long as it shall deem appropriate even if it had previously agreed to deliver those Products. netMercury shall have the greatest rights permitted to a seller of goods under the Uniform Commercial Code.

4. Returns, Changes and Cancellations. Cancellations of (and changes to) orders for Products, and returns of Products by Buyer, will be subject to the policies, and change and cancellation fees, of the Supplier. Upon the request of Buyer, netMercury will use best efforts to inform the Buyer of the return, change, and cancellation policies of a particular Supplier or to direct Buyer to the source of such information. In addition, netMercury will use best efforts to facilitate communication between the Supplier and the Buyer with respect to returns, changes and cancellations. Buyer agrees to pay all charges, whether levied by netMercury or Supplier or both, resulting from such changes, cancellations, and returns, including, without limitation, restocking charges, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation or change fees imposed by the Supplier, and any other cost resulting from cancellations, changes or returns permitted by the Supplier. Buyer has no right to postpone or cancel an order for Products.

5. Title, Delivery, and Acceptance. All sales are made F.O.B. the shipping point. Buyer will be responsible for all shipping and insurance charges, and will reimburse netMercury for all shipping and insurance costs netMercury incurs. Risk of loss for the Products shall pass to Buyer when the Products are delivered to a common carrier at the shipping point ("Shipment Date"). In the event of any default by Buyer, netMercury may decline to make further shipments without in any way affecting its rights under these Terms. netMercury will not be charged with any liability for delay or non-delivery of the Products, when caused by any cause beyond the reasonable control of netMercury. Unless the parties have otherwise expressly agreed in a separate, signed writing, the Products will be deemed accepted on the Shipment Date.

6. Security Interest. Until full payment has been received, netMercury reserves a purchase money security interest in the Products sold with the greatest rights permitted by law. Buyer agrees to execute any document appropriate or necessary to perfect the security interest of netMercury, or in the alternative, netMercury may file these Terms as a financing statement and/or chattel mortgage.

7. Use of Products. Some Suppliers provide material safety data sheets ("MSDS") or other instructions with the Products. Buyer shall provide the MSDS and instructions to all personnel prior to the handling and use of the Products by such personnel, and shall ensure that such personnel use the Products strictly in accordance with the MSDS, the instructions, and any warnings on the labels of the Products. All chemicals should be handled only by qualified, trained professionals who are familiar with the hazards associated with such chemicals.

8. Confidential Information. "Confidential Information" shall mean any information disclosed by one party to the other which is marked or identified as "Confidential", "Proprietary" or in some other manner to indicate its confidential nature, or information which the receiving party should know that the disclosing party would reasonably regard as confidential. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall use reasonable efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information. Notwithstanding the above, neither party shall have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (b) was known to the receiving party, without restriction, at the time of disclosure; (c) is disclosed with the prior written approval of the disclosing party; (d) was independently developed by the receiving party without any use of the Confidential Information; (e) became known to the receiving party, without restriction, from a source other than the disclosing party, without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party's rights; or (f) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Breach of the confidentiality obligations set forth in this Section 8 may cause irreparable damage and therefore, the injured party shall have the right to equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys fees and expenses) incurred in connection with such unauthorized use. Upon expiration or termination of this Agreement, each party shall return all tangible Confidential Information received from the other party. Notwithstanding the foregoing provisions of this Section 8, netMercury will have the right to use, sell, or otherwise distribute aggregated statistical information regarding Buyer's use of the netMercury System; provided, however, that netMercury shall not disclose the name or identity of the Buyer, or any information or data from which such name or identity could reasonably be discerned.

9. Indemnity. Buyer shall indemnify, defend, and hold harmless netMercury and the Supplier, and their employees, agents, successors, officers, and assigns, from any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that netMercury or a Supplier may sustain or incur arising from (a) the Buyer's use of the Products purchased hereunder, (b) the Buyers failure to comply with any applicable laws and regulations (including without limitation those regarding the export of products or technology abroad) or to obtain any licenses or approvals from the appropriate government agencies necessary to purchase and use the Products, or (c) the Buyer's breach of any of its obligations set forth in these Terms or in the Agreement; provided, that netMercury provides Buyer with (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance at Buyer's expense to settle and/or defend any such claim. Notwithstanding the foregoing, Buyer shall not settle any such claim, suit or proceeding without the written consent of netMercury, which shall not be unreasonably withheld.

10. No Warranty. netMercury provides no warranty with respect to the Products sold hereunder. Buyer will receive a warranty on the Products, if any, directly from the Supplier. Upon the request of the Buyer, netMercury will use best efforts to inform the Buyer of the warranty policy of a particular Supplier, or to direct Buyer to a source of such information. NETMERCURY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS SOLD HEREUNDER. NETMERCURY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

11. Limitation of Liability. NETMERCURY SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF NETMERCURY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST BUYER. NETMERCURY'S TOTAL LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO ANY PRODUCT SOLD HEREUNDER SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR SUCH PRODUCT.

12. General. These Terms and performance by the parties hereunder shall be construed in accordance with the laws of the State of California, U.S.A., without regard to provisions on the conflicts of laws. Buyer and netMercury consent to the exclusive jurisdiction of, and venue in, the state and federal courts of the City and County of San Francisco, California, U.S.A. and no other place. Buyer shall not assign its order or any interest therein or any rights thereunder without the prior written consent of netMercury. Neither party shall be liable for delays in performance (or for non-performance) of that party's obligations hereunder as a result of a force majeur; the affected party shall resume performance as soon as reasonably possible. These Terms constitute the entire agreement between netMercury and Buyer and supersede all previous communications, representations and agreements (except for the Agreement), whether oral or written, between the Buyer and netMercury with respect to the subject matter hereof. These Terms may not be modified, supplemented, qualified, or interpreted except in writing signed by Buyer and netMercury. The failure by netMercury to enforce at any time any of the provisions in these Terms will in no way be construed as a waiver of such provisions.