TERMS AND CONDITIONS
ChemEx online is a B2B marketplace operated by CHEMICAL EXPRESS LIMITED NIGERIA for the chemical industry enabling the listing and searching of suppliers and products, the comparison of product listings and availability as well as convenient ordering and order fulfilment. The use of the ChemEx online platform is subject to these General Terms of Use (the “Terms of Use”) and the commercial terms of the applicable subscription for the use of the ChemEx online Platform or certain of its features, as the case may be (the “Subscription Terms”). These general terms and conditions shall apply to buyers and sellers on this
online platform and shall govern your use of same and related services.
1. ADMISSION AND REGISTRATION
1.1 The ChemEx online Platform may only be used by professional suppliers and (prospective) buyers of chemical products (collectively “Users” and individually a “User”). Non-professional use for private purposes (i.e., private consumers in the sense of applicable law) will not be admitted to the use of the ChemEx online Platform. Each User may use the ChemEx online Platform at the same time, but strictly through different Authorized Representatives as defined in Section 1.6 below, to supply chemical products (in such case the relevant User is referred to as a “Supplier”) or to buy chemical products (in ...such case the relevant User is referred to as a “Buyer”).
1.2 The following requirements have to be met cumulatively to be eligible for registration as a User on the ChemEx online Platform:
• registered company
• valid registered address
These requirements are subject to periodic changes or upgrade or inclusion of any further other requirements as need arises
1.3 By completing the registration (either by entering registration data itself or confirming registration data compiled by ChemEx online for the User and sent to the User for verification), the User submits an offer to ChemEx online to enter into an agreement for the use of the ChemEx online Platform which is exclusively based on these Terms of Use; any terms and conditions of the User are rejected and shall not be applicable. ChemEx online may accept or reject such offer by the User in its sole discretion.
1.3 Upon registration, ChemEx online may, but shall not be obliged to, subject the User to the following verifications and checks which may be carried out via external service providers:
• Verification company registration status and addresses;
• blacklist check with a view to requirements under applicable trade legislation regarding economic sanctions, money laundering, etc.; and
• credit check.
These verifications and checks are subject to change from time to time, including the introduction of additional checks.
1.4 Notwithstanding Section 1.3, the User represents and warrants and shall be solely responsible that any information and data provided or confirmed by it in the course of registration is true, accurate and complete. ChemEx online shall not be obliged to review, verify or correct any such information and data. The User shall notify ChemEx online without undue delay of any changes to such information, in particular changes in the circumstances which are relevant pursuant to Section 1.1 for admission to the use of the ChemEx online Platform.
1.5 In the course of registration, each User shall designate one or more individuals who are in an employment relationship with the User as being authorized to access and use the ChemEx online Platform on behalf of such User (“Authorized Representatives”) by specifying the e-mail addresses of such individuals within the User’s organization. Each Authorized Representative shall only have one account and upon registration shall be designated as
acting on behalf of the User either
(i) in the role as Supplier,
(ii) in the role as Buyer. Any references in these Terms of Use to a Supplier or Buyer using the ChemEx online Platform, including the entering into any business
transactions, shall mean the respective User for which they are acting. In addition, Authorized Representatives may be designated to act in the role as administrator of the User to administer the account related to the User and to register and unregister either Buyers or Suppliers (but not both) of such User
in accordance with these Terms of Use (“Administrator”). An Administrator may not at the same time be designated or act as Buyer or Supplier.
1.6 Authorized Representatives who already registered in the role as Supplier must not attempt to register, directly or indirectly, in the role as Buyer and vice versa. ChemEx online reserves the right, but shall not be obliged, to verify the identity of Authorized Users with a view to such separation. The User shall be
solely responsible for ensuring such separation by implementing and strictly maintaining the structural safeguards as set forth in Section 8.2(g). Authorized Representative and Administrator accounts are not transferable.
1.7 The ChemEx online Platform is provided subject to the current state of technology. Availability is subject to interruptions due to maintenance, improvements or security measures, and to unscheduled downtime due to technical problems, external interference with ChemEx online systems and disruption of Internet connectivity. ChemEx online will reasonably consider the Users’ business interests when scheduling maintenance. ChemEx online reserves the right to limit or suspend access to the ChemEx online Platform in its sole discretion and with reasonable consideration of the Users’ business interests if it considers this necessary with a view to maintaining the security, integrity, availability or performance of the ChemEx online Platform; Section
8.6 shall remain unaffected. ChemEx online may change the appearance and functionality of the ChemEx online Platform from time to time without materially impairing the functionality offered to the User.
2. REGULATORY COMPLIANCE
2.1 Suppliers must comply with applicable regulations on the commercial sale of products containing chemical substances.
2.2 Suppliers are required to provide the Material Safety Data Sheet (MSDS) on the Product Detail Page according to Section 3.2 on the ChemEx online Platform. Technical Data Sheets can be provided optionally.
2.3 Irrespective of the foregoing, ChemEx online is not responsible for ensuring and does not guarantee that the products comply with any regulatory requirements and have all required regulatory registrations. This shall remain the respective Supplier’s sole responsibility.
3. LISTING AND PRODUCT DETAIL PAGE
3.1 Product listings, catalogue information and general information about ChemEx online are publicly accessible on the internet through the ChemEx online website.
Information on list prices and product availability as well as quote requests are only available to registered and validated Buyers. The range of products which are visible on the ChemEx online Platform may depend on the type of subscription for the use of the ChemEx online Platform purchased by a Supplier and/or a Buyer. Supplier may choose to make products registered on the ChemEx online Platform visible only to selected Buyers.
3.2 Every product listed on the ChemEx online Platform requires a product detail page (“Product Detail Page”) to provide all relevant information needed by Buyers to take the purchase decision. The information to be provided by the Supplier on the Product Detail Page includes but is not limited to:
• material safety data sheets;
• technical data sheets (optional);
• product description text;
• catalogue information (e.g., product category, application and relevant industries); and
• Available packages incl. Prices and availability.
3.3 ChemEx online reserves the right, but shall not be obliged, to revise, modify, supplement, remove or correct information and data provided by Suppliers for inclusion in the Product Detail Page with a view to achieving a consistent user experience for Buyers and to improve information quality. In such case, ChemEx online will propose such changes to the Supplier and the Supplier shall be responsible for reviewing and implementing such changes in the Product Detail Page. In any case, the Supplier remains fully and solely responsible for the accuracy, content and legality of the information provided
on the Product Detail Page; Section 2.3 shall apply accordingly.
3.4 Any product listing on the ChemEx online Platform has to fit into at least one product category, application or industry according to the ChemEx online
product catalogue as applicable from time to time. Listing a product that does not fit into any existing product category requires approval by ChemEx online,
and ChemEx online may choose in its sole discretion to create a new product category.
3.5 The Supplier acknowledges and agrees that due to technical reasons a new product listing (i) may not be searchable by keyword or category for up to
2 hours during normal operation and (ii) may still be accessible and searchable on the ChemEx online Platform for some time after delisting. ChemEx online does not guarantee exact listing durations.
3.6 Any information displayed or otherwise made available through the ChemEx online Platform is in English. Any translation of such information
(including the translation service pursuant to Section 5.2) shall be provided for convenience only. Solely the English language version of any information provided on the ChemEx online Platform shall be binding.
4. SALE AND PURCHASE OF PRODUCTS
4.1 ChemEx online acts as an intermediary only and does not itself list, offer or sell any products on the ChemEx Platform, nor does it have
possession of any such products or verify their quality. Any agreements for the purchase of products are entered into solely and
directly between the respective Supplier and Buyer. ChemEx online is not party to and has no responsibility or liability under any of these
agreements or in relation to any of the products.
4.2 A purchase confirmed between a Supplier and a Buyer on the ChemEx online Platform in accordance with the following provisions constitutes
a legally binding purchase contract between the involved Users for which they are acting based on the terms and conditions agreed by
these parties, including any terms and conditions posted by a Supplier or, subject to Section 4.3(a)(vii) below, a Buyer.
4.3 ChemEx online offers the three modes of purchase depending on the type of subscription for the use of the ChemEx online Platform
purchased by a Supplier and/or a Buyer: “Instant Deals”, “Request Quote” and “Request Agreement” which operate according to the
following procedures and requirements.
(a) Instant Deals
(i) Suppliers may offer products by way of an Instant Deal on their listings to indicate that a certain number of packages of a product is
available for purchase and shipping with a fixed price and guaranteed availability. Offering products by way of an Instant Deal shall not constitute a binding purchase offer by the Supplier but only a request to the Buyer to make an offer.
(ii) Activation of a product listing for Instant Deals requires that relevant package information, prices and availability of the respective products are provided by the Supplier.
(iii) The Supplier shall ensure its ability to provide the available quantity on packaging level as indicated in the product listing. The number of available packages of a certain product is automatically reduced by the ChemEx online Platform upon conclusion of each Instant Deal involving such product. The Supplier shall be solely responsible for monitoring product availability, for replenishing its stock of products and for updating the availability of packages accordingly in the product listing to ensure that the indicated quantity is always actually available.
(iv) All quantities available by way of an Instant Deal option have to be ready for immediate dispatch by the Supplier.
(v) All product prices displayed on the Product Detail Page are exclusive of VAT , i.e., excluding shipping costs, customs duties (if any) and any other taxes.
(vi) The Buyer selects the number of packages to buy, moves them to the cart and proceeds to the checkout.
(vii) Any purchase of products by way of an Instant Deal is solely based on the Supplier’s terms and conditions. The Buyer’s terms and conditions do not apply.
(viii) If the Buyer selects the Supplier’s Instant Deal, the transaction proceeds with the checkout. Indication by the Buyer of the definitive decision to purchase products based on the Instant Deal by clicking the “Buy” button (or triggering any other similar mechanism as may be implemented in the checkout process at therelevant time) constitutes a binding offer by the Buyer to the Supplier to purchase the products selected by the Buyer based on the Supplier’s Instant Deal After checkout, the purchase by way of an Instant Deal is either confirmed and the Buyer’s offer is accepted by the Supplier via an e-mail confirmation sent by ChemEx online to both the Buyer and the Supplier, or it is rejected by the Supplier, in which case the Buyer is notified by e-mail of such rejection.
(b) Request Quote
(i) In the Request Quote mode, the Buyer addresses an individual Supplier by specifying the requested quantity and delivery date of certain products and can propose a price as basis for negotiation with the respective Supplier. The Request Quote mode is available for all active product listings on ChemEx online. A request for a quote shall not constitute a binding purchase offer by the Buyer but only a request to the Supplier to provide a non-binding quote.
(ii) Buyer and Supplier may discuss the details of the request in a chat via the ChemEx online messaging function. Buyer and Supplier are encouraged to fix all relevant details of the quote (e.g., price, quantity, delivery date, applicable International commercial terms, shipment cost, duration of the quote, etc.) during the chat conversation until the Supplier provides a quote to the Buyer which the Buyer may accept or reject. Such accepted quote shall only serve to set out the agreed commercial terms, but shall not create any obligation of the Supplier to sell or of the Buyer to purchase any products.
(iii) If the Buyer selects the Supplier’s quote before its expiration to purchase products on that basis, the transaction proceeds with the checkout. Indication by the Buyer of the definitive decision to purchase products based on such quote by clicking the “Buy” button (or triggering any other similar mechanism as may be implemented in the checkout process at the relevant time) constitutes a binding offer by the Buyer to the Supplier to purchase the products selected by the Buyer based on the Supplier’s quote. After checkout, the purchase by way of a Request Quote is either confirmed and the Buyer’s offer is accepted by the Supplier via an e-mail confirmation sent by ChemEx online to both the Buyer and the Supplier, or it is rejected by the Supplier, in which case the Buyer is notified by e-mail of such rejection.
(iv) Purchase details in the Request Quote mode (in particular prices and quantities) are only visible to the Buyer and Supplier who are party to the transaction.
(c) Request Agreements
(i) In the Request Agreement mode, the Buyer addresses an individual Supplier by specifying the expected demand of certain products over a certain time period and can propose a price as basis for negotiation with the respective Supplier. The Request Agreement mode is available for all active product listings on ChemEx online. A request for an agreement shall not constitute a binding purchase offer by the Buyer but only a request to the Supplier to provide a non-binding framework quote in relation to the Buyer’s expected demand.
(ii) Buyer and Supplier may discuss the details of the request in a chat via the ChemEx online messaging function. Buyer and Supplier are encouraged to fix all relevant details of the agreement (e.g., price, expected volume of purchase, lead time for deliveries, shipment cost, start and end date of the commercial terms, etc.) during the chat conversation until the Supplier provides a framework agreement to the Buyer which the Buyer may accept or reject. Such accepted framework agreement shall only serve to set out the agreed commercial terms, but shall not create any obligation of the Supplier to sell or of the Buyer to purchase any products.
(iii) If the Buyer selects the Supplier’s framework agreement before its expiration to purchase products on that basis, the transaction proceeds with the checkout. Indication by the Buyer of the definitive decision to purchase products based on such framework agreement by clicking the “Buy” button (or triggering any other similar mechanism as may be Implemented in the checkout process at the relevant time) constitutes a binding offer by the Buyer to the Supplier to purchase the products
selected by the Buyer based on the framework agreement. After checkout, the purchase by way of a Request Agreement is either confirmed and the Buyer’s offer is accepted by the Supplier via an email confirmation sent by ChemEx online to both the Buyer and the Supplier, or it is rejected by the Supplier, in which case the Buyer is notified by e-mail of such rejection.
(iv) Agreement and purchase details in the Request Agreement mode (in particular prices and quantities) are only visible to the Buyer and Supplier who are party to the transaction.
(d) In any of the purchasing modes, the Buyer is solely responsible for reviewing all information provided in the product listing before submitting a quote or agreement request (in case of the Quote Request or Agreement Request modes) or completing the purchase by proceeding to the checkout (in case of an Instant Deal).
(e) ChemEx online reserves the right, but shall not be under an obligation, to deactivate the listing of affected products or suspend the respective Supplier account as a whole if ChemEx online repeatedly receives complaints regarding failure of the Supplier to timely fulfil any Instant Deal, Request Quote or Request Agreement purchase transaction.
5. ADDITIONAL SERVICES, MODIFICATIONS
5.1 Suppliers may implement electronic data interchange (EDI) connectivity to the ChemEx online Platform which automates the receipt by Suppliers of purchase orders or product releases from the ChemEx online Platform to trigger the delivery of products by Supplier to the respective Buyers to fulfil purchase transactions concluded via
the ChemEx online Platform. Such connectivity is based on infrastructure and services provided to ChemEx online by an external service provider. Section 7.3 shall apply accordingly.
5.2 Suppliers on the ChemEx online Platform may
(i) initiate a credit check in relation to Buyers from whom a request in the Instant Deal, Request Offer or Request Agreement modes was received, and/or
(ii) following a purchase of products by a Buyer. Such request may be processed by ChemEx online and forwarded to an external service provider as indicated to the Supplier when submitting such request. ChemEx online commissions such external service provider solely in the name and on behalf of the Supplier, thus forming an agreement directly between the Supplier and the external service provider. By submitting the credit check request, the Supplier authorizes ChemEx online accordingly. ChemEx online shall not be party to the agreement between the Supplier and the external service provider and not incur any obligations vis-à-vis the Supplier in relation to such agreement, and the Supplier shall be solely liable for payment of the fees of the external service provider as indicated during the credit check request process.
5.3 The User may choose to have information displayed or otherwise made available on the ChemEx online Platform translated into certain offered languages other
than the standard Language English This feature may not be available for all types of information and communication on the ChemEx online Platform. Such translation is generated automatically by means of artificial intelligence. The User acknowledges and agrees that
(i) such translation is provided for convenience only,
(ii) it may be inaccurate or incomplete,
(iii) that the User and its Authorized Representatives should not rely on such translation under any circumstances, in particular when entering into legally binding agreements on the ChemEx online Platform, and
(iv) that it is used by the User at its own risk. ChemEx online shall not be responsible for any damage caused by any inaccuracy, incompleteness or other errors or faults in any such translation, including any transactions which are affected by any miscommunication resulting from the use of such translation.
5.4 ChemEx online may offer additional services in the future and reserves the right to discontinue, modify or replace existing features and services at any time in particular to reflect changing regulatory or legal requirements, to further develop the ChemEx online Platform or its business model or for other operational and business reasons. ChemEx online will reasonably consider the User’s legitimate interests when making such changes. ChemEx online will notify the User of any changes which could affect the use of the ChemEx online Platform more than insubstantially no less than two months in advance.
6. PAYMENT
6.1 All transactions initiated and concluded On the ChemEx online platform will be paid for through a payment gateway system service offering options for the mode of payment for products purchased on the platform.
6.2 Any payment relating to the sale and purchase of products shall be effectuated between the Supplier and the Buyer with ChemEx online being entitled to a percent of transaction value as commission. ChemEx online reserves the right, but shall not be under an obligation, to collect credit rating information on Buyers to increase trust on the part of Suppliers.
6.3 The use of the ChemEx online Platform or certain of its features may be subject to a fee as set out in the Subscription Terms. In case of a trial period, such fee shall only apply after the lapse of such trial period. ChemEx online may offer additional services (including the additional services set out in Section 5) against a charge or make access to the ChemEx online Platform subject to payment of a fee in the future.
6.4 Any fees payable for the use of the ChemEx online Platform, including fees for any additional services, shall apply exclusive of VAT and will be invoiced by ChemEx online monthly in arrears or twelve months in advance, depending on the model chosen by the User. Any such invoices shall be payable within 7 days as of receipt of the invoice by the User via the payment method chosen by the User during the signup process.
7. COMMUNICATION
7.1 The User is solely and fully responsible for any of its communication through the ChemEx online Platform, including any chats via the ChemEx online messaging function.
7.2 Any communication between Users or by ChemEx online to Users shall be deemed received by the respective User upon receipt of such communication through the ChemEx online messaging function or, if sent by e-mail, upon receipt of such e-mail by such User in the account specified during registration for the ChemEx online Platform.
7.3 With respect to any communication exchanged between Users over the ChemEx online Platform, ChemEx online acts as a messenger only and not as representative or agent of either User None of the Users has authority to act on behalf or in the name of ChemEx online, nor does ChemEx online act on behalf or in the name of any User.
7.4 The User consents to the transfer of data and information communicated by such User through the ChemEx online Platform. Such data and in particular any data or communication relating to a purchase transaction between a Supplier and a Buyer will not be disclosed by ChemEx online to any third party other than the Supplier
and Buyer who are party to such transaction.
7.5 ChemEx online reserves the right, but shall not be obliged, to view and monitor or otherwise access and to analyze (including by means of artificial intelligence) communication through the ChemEx online Platform to facilitate negotiations between a Supplier and a Buyer and to improve and extend the functionality of the ChemEx online Platform. In doing so, ChemEx online does not take over any responsibility or liability in relation to the negotiations between a
Supplier and a Buyer or their outcome. Any such access to and analyzing of communication through the ChemEx online Platform is
subject to the confidentiality provisions in Section 11 and is carried out in compliance with applicable data protection law .
8. USER OBLIGATIONS
8.1 The User shall keep the access credentials for the ChemEx online Platform strictly confidential and shall not share them with any third party, and undertakes to ensure that all of its Authorized Representatives and Administrators comply with this clause as if each of them were itself bound by it.
8.2 The User shall be solely responsible:
(a) For ensuring that any information it provides on the ChemEx online Platform (including any information on the Product Detail Page and as part of Instant Deal, Request Quote or Request Agreement purchases) and any information about itself is true, accurate and complete and is kept up to date;
(b) For ensuring that its presence and communication on the ChemEx online Platform complies with applicable legal requirements, e.g., as regards the obligation to provide an imprint or to include mandatory information in its communication;
(c) For storing and creating regular backups in accordance with best industry practice of any data related to the purchase transactions entered into through the ChemEx
online Platform;
(d) For any activities, in particular any contractual declarations, that occur on the ChemEx online Platform under its accounts or passwords;
(e) For ensuring that access credentials for the ChemEx online Platform are not shared or otherwise made available among Authorized Representatives of one User;
(f) For monitoring and ensuring that its Administrator registers and unregisters each of its Authorized Users either as Buyers or as Suppliers (but not both at the same time) solely in accordance with these Terms of Use; and
(g) For ensuring that where a User has registered Authorized Representatives as both Supplier and Buyer, this may only be effected on the basis of
(A) separate individuals acting as Authorized Representatives for the Supplier role and the Buyer role of such User on the ChemEx online Platform with such individuals being allocated to strictly separate business divisions of such User without overlap in personnel,
(B) distinct business divisions being implemented and maintained within the undertaking of the User in a manner in particular ensuring that the Authorized Representatives acting on
(i) the Supplier role and
(ii) the Buyer role on the ChemEx online Platform are separated through appropriate barriers , preventing exchanges or communication between such Authorized Users and
(C) ensuring that no exchange of any information obtained through the ChemEx online Platform will take place directly or indirectly between business divisions acting on the Supplier role and the Buyer role on the ChemEx online Platform.
8.3 The User must not use the ChemEx online Platform:
(a) For any purposes other than selling or purchasing, as the case may be, chemical products listed on the ChemEx online Platform in the course of its ordinary business;
(b) For any activities or in any manner which is unlawful under any applicable laws of any country, including export control laws and anti-trust laws; or
(c) To distribute or transmit
(i) unsolicited advertising or promotional material, except with the recipient’s consent,
(ii) advertising or promotional material related to products or services not offered on the ChemEx online Platform, except with the recipient’s consent,
(iii) any content that violates any intellectual property or other rights of any third party,
(iv) any content which is false, defamatory, obscene, pornographic, indecent, discriminatory, abusive, or otherwise violates any applicable laws, or
(v) any harmful or malicious materials including viruses, Trojan horses or worms.
8.4 The User must not do or attempt to do any of the following:
(a) Grant the use of or otherwise disclose its access credentials for the use of the ChemEx online Platform
(i) to any third party or to individuals acting as Authorized Representatives of the respective User in the role as Supplier with respect to access credentials of other individuals acting as Authorized Representatives of the respective User in the role as Buyer, or
(ii) to any third party or to individuals acting as Authorized Representatives of the respective User in the role as Buyer with respect to access credentials relating to other individuals acting as Authorized Representatives of the respective User in the role as Supplier;
(b) Manipulate prices, e.g., by collaborating with intermediaries or using fake profiles;
(c) Contact another User outside the ChemEx online Platform to conclude or implement a purchase transaction which was initiated with such User over the ChemEx online Platform;
(d) After an Authorized User has registered in the role as a Supplier, also registering such Authorized User, or permitting such Authorized User to register, in the role as a Buyer or vice versa;
(e) After an Authorized User was registered in the role as Administrator, also registering such Authorized User as Buyer or Supplier, or permitting such Administrator to register both Buyers and Suppliers (and not only one of these roles);
(f) Gain unauthorized access to any portions or areas of the ChemEx online Platform for which access has not been expressly granted to the User or its Authorized Representatives by ChemEx online;
(g) Obtain or recreate any access credentials of any other Users or Authorized Representatives by hacking, password mining or similar means;
(h) Block, falsify or otherwise interfere with any information or data communicated by other Users over the ChemEx online Platform, or use any information provided by other Users outside the ChemEx online Platform or otherwise for any purpose other than the initiation or implementation of purchase transactions over the ChemEx online
Platform; or
(i) Take any action or do anything that could impair the security, integrity, availability or performance of the ChemEx online Platform.
8.5 The User shall notify ChemEx online without undue delay if it encounters any issues or malfunctions during the use of the ChemEx online Platform.
8.6 Without limiting other legal remedies available to ChemEx online, ChemEx online may, but shall not be obliged, to
(i) limit, restrict, suspend, or terminate User account(s) and access to the ChemEx online Platform in whole or in relation to individual Authorized Representatives, (ii) remove or otherwise restrict the visibility of product listings of a User, and
(iii) take technical and legal steps to keep the User and any or all of its Authorized Representatives from accessing and using the ChemEx online Platform to protect the integrity, stability and security of the ChemEx online Platform as well as other Users if ChemEx online has indication that such User or any of its Authorized Representatives violates its obligations and/or the use restrictions applicable in relation to the ChemEx online Platform under these Terms of Use, in particular in case of violation of this Section
8. This shall apply accordingly if ChemEx online, despite using reasonable endeavours, is unable to verify or authenticate any information provided by a User.Depending on the circumstances, including without limitation the severity and impact of such violation on the ChemEx online Platform,
(i) ChemEx online will provide the respective User reasonable advance notice of such measures and give the User opportunity to remedy such violation or
(ii) notify the respective User without undue delay after such measures have been
taken, and give the User opportunity to comment on the circumstances which caused ChemEx online to take these measures.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 ChemEx online reserves all intellectual property rights in the ChemEx online Platform and any underlying software, algorithms, databases and content. Except as otherwise expressly provided, no rights in any such intellectual property is transferred or granted to the User beyond the non-exclusive, non-transferable and non-sublicensable right to access the ChemEx online Platform during the term of the agreement for use with ChemEx online, and subject always to these Terms of Use.
9.2 The User may not copy, reproduce, distribute, display, transmit, modify, create derivative works or reverse engineer any portion of the ChemEx online Platform or any information, data and other content made available by other Users through the ChemEx online Platform. The User must not use any robots, spiders, crawlers, deep links or any similar technology, devices or manual processes to systematically and/or repeatedly access and collect information made available through the ChemEx online Platform.
9.3 The User grants ChemEx online the non-exclusive, royalty-free, transferable, sub-licensable worldwide right to use any information, data and other content provided or submitted by the User for the purpose of operating the ChemEx online Platform.
10. DATA PROTECTION
10.1 ChemEx online processes personal data received from the User in compliance with applicable data protection laws.
10.2 The User shall be solely responsible for ensuring that the transfer of personal data of its Authorized Representatives, Administrators, employees or other individuals to ChemEx online and the processing of such data by ChemEx online (as specified in the ChemEx online data protection information) complies with applicable data protection law, in particular that any required consent has been validly obtained. Section 12.7 shall apply in relation to any claims against ChemEx online related to such transfer of data to ChemEx online or that the use of such data in compliance with Section 10.1 violates applicable data protection law.
11. CONFIDENTIALITY
11.1 Either party shall treat as strictly confidential and not disclose, enable access to or use any information, data, documents or materials in any form (whether written, electronic, graphic, visual, oral or otherwise) and any copies of the foregoing that are provided by either party to the other or which otherwise become accessible or known to a party, including any such materials provided by other Users and including in particular any communication in connection with the negotiation and conclusion of purchase transactions on the ChemEx online platform (including any requests, proposals, quotes or offers exchanged between a Supplier and a Buyer (in each case, “Confidential Information”). Both parties shall use all reasonable endeavours to prevent any access by third parties to such Confidential Information.
11.2 Confidential Information shall however not include any information which (i) is in the public domain, (ii) subsequently enters into the public domain, except through disclosure by a party in breach of any undertaking under these Terms of Use; or (iii) is or becomes available to either party from a third party, provided that such third party is not in breach of any confidentiality obligation in relation to such information.
11.3 This Section 11 shall not prohibit disclosure or use of any information if and to the extent:
(a) The disclosure or use is required by law or any regulatory body, provided that, to the extent legally permitted, the party so required to disclose Confidential Information shall notify the other party without undue delay and reasonably cooperate with the other party in the defence of such request and/or to obtain assurances
as to confidentiality from such body;
(b) The disclosure or use is required for the purpose of any judicial proceedings arising out of the agreement between the User and ChemEx online, or the disclosure is made to a tax authority in connection with the tax affairs of the disclosing party;
(c) The disclosure is made to professional advisers of either party on terms that such professional advisers undertake to comply with the provisions of this Section 11 in respect of such information as if they were a party to the agreement between the User and ChemEx online; or
(d) The other party has given prior written approval to the disclosure or use.
11.4 Notwithstanding the preceding provisions, ChemEx online may use the User’s name and logo as reference in its marketing materials, promotion and advertising of the ChemEx online Platform.
12. LIABILITY
12.1 ChemEx online shall only be liable to the User for any act or omission or breach of any duty under or in connection with the agreement with the User to the extent that such liability results from
(i) ChemEx online wilful misconduct or gross negligence,
(ii) damage from injury to life, body or health due to negligent breach or
(iii) a slightly negligent breach of a fundamental duty that endangers the achievement of the objective of the agreement with the User. A fundamental duty shall mean an obligation whose fulfilment is critical for the due implementation of the agreement and on which the User may reasonably rely. ChemEx online liability in case of a slightly negligent breach of a fundamental duty shall be limited to typical and reasonably foreseeable damage to the User.
12.2 All transactions must be initiated and concluded on the ChemEx online Platform as ChemEx online will not be liable if any transaction is not initiated and concluded on the ChemEx online Platform.
12.3 ChemEx online and its affiliates, directors, officers, agents, employees and contractors shall not be liable to any User in case of slight negligence with respect to any services which are provided without a charge. Any further limitation of ChemEx online liability in such cases based on statutory law shall remain unaffected.
12.4 The foregoing provisions shall apply to the contractual and noncontractual liability of ChemEx online (including liability in tort) as well as any liabilityarising out of dealings before the conclusion of a contract . They shall also apply to any liability of any of ChemEx online affiliates, directors, officers, managers, employees, agents and contractors.
12.5 ChemEx online liability for wilful misconduct, negligent damage to life, bodily injury or damage , shall remain unaffected.
12.6 ChemEx online liability for wilful misconduct, negligent damage to life, bodily injury or damage to health , shall remain unaffected.
(a) Any purchase contracts concluded through the ChemEx online Platform;
(b) Any products offered or information, data, content or other material provided or communicated by any User, including if ChemEx online modified, supplemented, removed, corrected or otherwise reviewed such material in accordance with Section 3.3 or otherwise provided guidance to a User in the context of its creation. ChemEx online does not endorse and is not obliged to verify any such materials;
(c) Any suspension, changes to the ChemEx online Platform or other action taken by ChemEx online in accordance with these Terms of Use; and
(d) Any services provided by external service providers which are commissioned by ChemEx online on behalf of the User, including the additional services specified in Section 5.2.
12.7 For the avoidance of doubt and notwithstanding the foregoing, ChemEx online shall not be liable in contract, tort (including negligence), based on dealings before the conclusion of a contract or otherwise for
any damage or losses arising directly or indirectly from:
(a) Any purchase contracts concluded through the ChemEx online Platform;
(b) Any products offered or information, data, content or other material provided or communicated by any User, even if ChemEx online modified, supplemented, removed, corrected or otherwise reviewed such material or provided guidance to a User in the context of its creation; ChemEx online does not endorse and is not obliged to verify any such materials; and
(c) Any suspension, changes to the ChemEx online Platform or other action taken by ChemEx online in accordance with these terms of use.
12.8 The User shall indemnify and hold ChemEx online and its affiliates, directors, officers, agents, employees and contractors harmless from and against any claims, losses or costs, including reasonable attorney fees, incurred by ChemEx online
(a) Which arise out of or in connection with any agreement entered into by such User with any other User or any third party including external service providers;
(b) Due to any breach by such User of the agreement with ChemEx online for the use of the ChemEx online Platform (including in particular these Terms of Use);
(c) Due to the User’s improper use of ChemEx online Platform; or
(d) Due to any violation by such User of any applicable laws or any rights (including any intellectual property rights) of any third party.
13. TERM, TERMINATION
13.1 Subject to the provision of Section 13.2, ChemEx online and the User may each terminate the use of the ChemEx online Platform for convenience at any time by providing 30 day notice thereof (including by e-mail or communication through the ChemEx online Platform) to the respective other party. The right of either party to termination for cause shall remain unaffected.
13.2 If the use of the ChemEx online Platform is based on a subscription, the applicable Subscription Terms shall determine the duration of the use of the ChemEx online Platform, renewal periods, if any, and applicable termination notice periods.
13.3 It is the User’s sole responsibility to create a backup of any of its data stored on the ChemEx online Platform prior to any expiry or termination taking effect.
14. MISCELLANEOUS
14.1 ChemEx online reserves the right to amend these Terms of Use from time to time in particular to reflect changing regulatory or legal requirements, further development of the ChemEx online Platform or of its business model or for other operational and business reasons. ChemEx online will reasonably consider the User’s
legitimate business interests when making such changes and will notify the User of these changes no less than one month in advance (including by e-mail or communication through the ChemEx online Platform). The changes shall be deemed accepted by the User unless the User objects to such changes by giving notice thereof to ChemEx online (including by e-mail or communication through the ChemEx online Platform) within such one month period. ChemEx online will draw the User’s attention to this consequent approval in its respective notification. ChemEx online reserves the right to terminate pursuant to Section 13.1 in case the User objects to the changes.
14.2 Notwithstanding Section 14.1, any modifications of and amendments to these Terms of Use must be in writing and signed, or communicated pursuant to Section 7 to be binding, unless any stricter form requirements exist, including any waiver of this form requirement.
14.3 These Terms of Use and the documents referenced herein,including any applicable Subscription Terms, constitute the entire agreement between ChemEx online and Users in relation to the use of the ChemEx online Platform and replace any prior understandings, agreements or representations by or between the parties.
14.4 Should any provision of these Terms of Use be or become partly or entirely invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties shall replace the partly or entirely invalid or unenforceable provision by a valid or enforceable provision which comes as close as possible to the parties’original economic intent and purpose underlying the invalid or unenforceable provision. The same applies if these Terms of Use prove to be incomplete; in such event the parties shall faithfully agree on the inclusion of a provision which comes as close as possible to the parties’ original economic intent and purpose underlying the missing provision. However, it is the parties’ express will that this Section
14.4 is not construed as a mere reversal of the burden of proof but as a provision that contractually excludes any doubts as to the validity of the remaining provisions of these Terms of Use.
14.5 In case of any dispute between a User and ChemEx online in relation to the use of the ChemEx online Platform, the parties will faithfully attempt to amicably resolve such dispute. Place of performance of all services rendered by ChemEx online hereunder and the exclusive place of jurisdiction for all disputes arising under or in connection with the agreement between a User and ChemEx online, including tort claims and pre-contractual claims, shall be Nigeria. For the avoidance of doubt, any claims and disputes arising from or relating to any agreement between a Supplier and a Buyer (including without limitation any claims for supply of products, payment of the purchase price, warranty or liability claims) or between a User and an external service provider shall be dealt with and resolved solely by and between the respective Supplier and Buyer or between the respective User and the external service provider. ChemEx online will not act as a mediator or arbitrator or otherwise be involved in any such disputes.
14.6 The agreement between any User and ChemEx online for the use of the ChemEx online Platform and any disputes arising out of or in connection with such agreement shall be governed by laws applicable within Nigeria without giving effect to any conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.