These Terms of Service govern your use of all VE Option, Inc. (“VE Option”), a Delaware corporation, products and/or services including website use (the “Products and/or Services”). By signing up as a VE Option client and/or executing a Request for Quote (“RFQ”) with VE Option that references these Terms of Service, or by providing project information to VE Option and/or requesting a quote from VE Option via email and/or phone, or by using the VE Option website, you agree to these Terms of Service (the “Agreement”). You represent that you are entering into this Agreement on behalf of the entity identified on the RFQ (“you” or “Client”) and that you have authority to bind the Client to this Agreement.
VE Option reserves the right to periodically modify these Terms of Service upon written notice to Client, and such modification will automatically become effective thirty (30) days after such modification.
Client is a general contractor, an electrical contractor, a property owner or any other entity or person that wishes to purchase certain products and/or services (“Products and/or Services”) from third party distributors, representatives and/or manufacturers (“Distributor, Representative and/or Manufacturer”) through the efforts, directly or indirectly, of VE Option; and VE Option is a provider of Value Engineering (“VE”) and Design Build project bid process model(s).
In consideration of the mutual promises contained herein and for other good and valuable consideration, the parties hereto agree as follows:
1. Value Engineering and Design Build Process Model
1.1 Client may, from time to time, submit to VE Option an RFQ in the form set forth at https://veoption.com/request-for-quote, or via email and/or phone, including but not limited to the following information (“Project Information”): (i) the project for which Client requires VE Option’s Products and/or Services (each, a “Project”); (ii) the specification and quantity of the Products and/or Services required for such Project; and (iii) the proposed budget for such Products and/or Services which may be subject to adjustment upon written agreement (email shall be sufficient) between VE Option and Client (the “Budget”).
1.2 VE Option will use good faith efforts to obtain quotes on behalf of Client for the Products and/or Services from Distributor, Representative and/or Manufacturer for such Project(s) (the “Quote”).
1.3 Client hereby agrees to accept such Quote, and Client is automatically bound to the Quote, if (a) the Quote is equal to or lower than the Budget and (b) Client is hired for the Project (collectively, the “Binding Conditions”). Upon the occurrence of the Binding Conditions, VE Option shall process the Client’s Purchase Order(s) (“PO(s)”) and deliver such PO(s) from the Client to the Distributor, Representative and/or Manufacturer.
1.4 Client shall be invoiced directly from VE Option, Distributor, Representative and/or Manufacturer. Client shall make timely payment(s) and is solely responsible for all payments due to VE Option, Distributor, Representative and/or Manufacturer.
2. Exclusive Right
For each Project, VE Option shall have an exclusive right to obtain a Quote for the Client for thirty (30) days following the RFQ submission date (the “Exclusivity Period”). During each Exclusivity Period, Client will not directly or indirectly, through any employee, agent, or otherwise, and will not permit any of its agents to solicit, initiate or encourage, any quotes, bids, offers or proposals from Contractors, Distributors, Representatives, and/or Manufacturers connected with the Quote/Project, or any other Contractors, Distributors, Representatives, Manufacturers, Account Partners or any other entity or person relating to the purchase of the Products and/or Services for the Project.
3.1 Client hereby acknowledges and agrees that by accepting the RFQ, VE Option does not make any guarantee that VE Option can obtain such Quote within the Budget.
3.2 During the term of this Agreement and for a period of one (1) year from termination or expiration of this Agreement, Client shall not, directly or indirectly, contact or attempt to contact any Distributor, Representative, and/or Manufacturer, or solicit or attempt to solicit a bid, quote or purchase order from any Distributor, Representative, and/or Manufacturer (or otherwise take any action to circumvent this Agreement or conduct any business with Distributor, Representative, and/or Manufacturer without the involvement of VE Option).
3.3 During the term of this Agreement and for a period of one (1) year from the termination or expiration of this Agreement, Client shall refuse any request by any Distributor, Representative, and/or Manufacturer to provide a bid, quote or purchase order directly from such Distributor, Representative, and/or Manufacturer (or otherwise take any action to circumvent this Agreement or conduct any business with Distributor, Representative, and/or Manufacturer without the involvement of VE Option). Client shall give notice to VE Option of such requests within twenty-four (24) hours after receiving such requests from any Distributor, Representative, and/or Manufacturer.
4. Confidentiality and Non-Use
4.1 “Confidential Information” means any information disclosed by VE Option to Client, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes and samples). Confidential Information shall include without limitation (i) business plan for services, bidding/quoting process, procedure, concepts, know-how, strategies, sales and marketing plans incorporating VE Option’s VE and/or Design Build business model(s); and (ii) any other information which is proprietary and confidential to VE Option. Confidential Information shall also include any processes, approaches or protocols developed by VE Option at any time. Confidential Information may also include information disclosed to VE Option by third parties.
4.2 Confidential Information shall not, however, include any information which (i) was publicly known and available in the public domain prior to the time of disclosure by VE Option; (ii) becomes publicly known and available in the public domain after disclosure by VE Option through no action or inaction of Client; or (iii) is in the possession of Client, without confidentiality restrictions, at the time of disclosure by VE Option as shown by Client’s files and records immediately prior to the time of disclosure.
4.3 Client shall not, during or subsequent to the term of this Agreement, (a) disclose Confidential Information to any third party or (b) use the Confidential Information for its own benefit or for the benefit of any third party except as may be necessary in order to fulfill its obligations under this Agreement. Without in anyway limiting the foregoing, Client hereby agrees and acknowledges that it may not disclose, use or implement VE Option’s VE or Design Build business models, or any similar variation thereof. Client shall treat as confidential all Confidential Information, shall not use such Confidential Information except as authorized herein or otherwise authorized in writing, shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse or removal of the Confidential Information, shall not disclose such Confidential Information to any third party, and shall only disclose the Confidential Information to those of its employees who need access to such information to exercise the rights and fulfill the obligations set forth herein. Without limiting the foregoing, Client shall protect the Confidential Information using at least the same procedures and degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care.
4.4 Client hereby agrees that all notes, data, sketches, drawings and other documents and records, and all material and physical items of any kind, including all reproductions and copies thereof, which relate in any way to the business, products, practices or techniques of VE Option or contain other Confidential Information, or that otherwise come into the possession of Client by reason of this Agreement, are the sole property of VE Option at all times.
4.5 Upon the termination of this Agreement, or upon VE Option’s earlier request, Client will deliver to VE Option all of VE Option’s property relating to, and all tangible embodiments of, Confidential Information in Client’s possession or control within seven (7) business days of such termination or request.
5. Client Information and Privacy
VE Option collects personal, business, and/or Project information (“Client Information”) through the VE Option website Contact Us, Sign Up and RFQ forms, as well as through email and/or phone contact. VE Option may share Client Information with its employees, agents, partners, associates, affiliates or industry contacts in the standard course of business for whatever purposes VE Option deems necessary and appropriate for continued service, VE Option growth, strategic intent, planning, marketing, sales, and execution/implementation.
6. Product Warranty, Limitation on Liability and Indemnification
6.1 Product Warranty. Any warranty for the Products and/or Services shall run directly from the Distributor, Representative, and/or Manufacturer to Client.
6.2 Limitation on Liability. VE Option shall not be liable to Client or any third party for any losses, damages, costs or expenses of any nature, however caused, directly or indirectly relating to: (a) any Distributor, Representative, and/or Manufacturer’s Products and Services (whether or not defective), (b) any act or omission of the Distributor, Representative, and/or Manufacturer including, but not limited to, the assertion by any third party that the Distributor, Representative, and/or Manufacturer’s Products and Services infringe any intellectual property rights, (c) errors in the Distributor, Representative, and/or Manufacturer’s quote cost arising from erroneous submittals, information, drawings, addendums or directions received by the Distributor, Representative, and/or Manufacturer or any other financial and/or material reversals and adjustments, (d) breach of warranty, (e) allegations that the Distributor, Representative, and/or Manufacturer’s Products and Services caused injury or death to any person or damage to property or both or (f) any injury to business, character or reputation, or any violation of a municipal, state or federal law or regulation governing the Distributor, Representative, and/or Manufacturer’s Products and/or Services or their sale.
6.3 Indemnification. Client shall protect, defend and indemnify VE Option, its divisions, subsidiaries and affiliated business entities and their respective employees, agents, officers and directors from and hold them harmless against all liabilities, losses, damages, costs or expenses of any nature, including without limitation, reasonable attorney’s fees and court costs, however caused, which may be incurred or sustained by VE Option directly or indirectly relating to any breach or alleged breach of any representation, warranty or covenant of Client in this Agreement.
7. Term and Termination
7.1 Term. This Agreement shall remain in full force and effect until terminated by either party upon no less than thirty (30) calendar days written notice prior to the termination; provided, however, that if the last day of such advance termination notice falls within a Exclusivity Period, this Agreement shall remain in full force and effect until the last day of the Exclusivity Period.
7.2 Effects of Termination.
7.2.1 Expiration or termination of this Agreement for any reason shall not release any party hereto from any obligation or liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination nor preclude either party from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.
7.2.2 The provisions of Section 4 (Confidentiality and Non-Use), Section 6 (Product Warranty, Limitation on Liability and Indemnification), Section 7 (Term and Termination) and Section 8 (General Provisions) shall survive termination or expiration of this Agreement for any reason. Except as otherwise provided in this Agreement, all other rights and obligations of the parties under this Agreement shall terminate upon expiration or termination of this Agreement for any reason.
8. General Provisions
8.1 Independent Contractors. The relationship of VE Option and Client established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
8.2 Nonassignment/Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Client, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of VE Option, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
8.3 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service.
To VE Option:
VE Option, Inc.
Attn: Legal Department
4300 W. Waco Dr., Ste. B2-360
Waco, TX 76710
Contact identified in VE Option Sign Up and/or RFQ submission.
8.4 Force Majeure. Neither party will be liable to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
8.5 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
8.6 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
8.7 Integration. This Agreement (including attachments, if any, and addenda, if any, signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to such terms, provisions or conditions. This Agreement may not be amended, except by a writing signed by both parties.
8.8 Confidentiality. Client shall not disclose any terms of this Agreement to any third party if such disclosure is without the consent of VE Option, except as required by securities or other applicable laws or such disclosure is to prospective and other investors or such party’s accountants, attorneys and other professional advisors, provided such parties are acting under a duty of confidentiality.
8.9 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
8.10 Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of Delaware and the United States of America, without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Kent County, Delaware, and each party hereby consents to the personal jurisdiction thereof.
8.11 Publicity. Upon request by VE Option, Client will provide VE Option with electronic logo/art files related to the name, logo and likeness of Client. Client grants to VE Option and any of its affiliates, the right to use, in perpetuity, Client’s name, logo and likeness in connection with any marketing materials created by VE Option including, but not limited to, print or online materials. Furthermore, Client grants to VE Option the right to use and disclose the name and contact information of Client to third parties for whatever purposes VE Option deems necessary and appropriate for continued service, VE Option growth, strategic intent, planning, marketing, sales, and execution or implementation of the above.