CheMondis

General Terms of Use

CheMondis is a B2B marketplace operated by CheMondis GmbH, Zeppelinstrasse 9, 50667 Cologne, Germany (“CheMondis”), for the chemical industry enabling the listing and searching of suppliers and products, the comparison of product listings and availabilities as well as convenient ordering and order fulfillment.

Note: CheMondis is currently in a pilot phase lasting from November 2018 to April 2019.

1. ADMISSION AND REGISTRATION

1.1 The CheMondis platform may only be used by professional suppliers and (prospective) buyers of chemical products (collectively “Users” and individually an “User”). Each User may use the CheMondis 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 All of the following requirements have to be met to be eligible for registration as a User on the CheMondis platform:
• registered company;
• valid VAT number;
• corporate seat in a country of the European Union;
• in case of Suppliers: shipping address (plant, warehouse, etc.) located in a country of the European Union; and
• in case of Buyers: delivery addresses located in a country of the European Union.
These requirements are subject to change from time to time, including the introduction of additional requirements. Private consumers in the sense of applicable law will not be admitted to the use of the CheMondis platform.

1.3 By completing the registration, the User submits an offer to CheMondis to enter into an agreement for the use of the CheMondis platform, which is exclusively based on these terms of use; any terms and conditions of the User are rejected and shall not be applicable. CheMondis may accept or reject such offer by the User in its sole discretion.

1.4 Upon registration, CheMondis 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 of tax numbers and addresses;
• blacklist check with a view to requirements under European 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.

1.5 Notwithstanding Section 1.4, the User represents and warrants and shall be solely responsible that any information and data provided in the course of registration is true, accurate and complete. CheMondis shall not be obliged to review, verify or correct any such information and data. The User shall notify CheMondis 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 CheMondis platform.

1.6 In the course of registration, each User shall designate one or more individuals employed by the User as being authorized to access and use the CheMondis 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 or (ii) in the role as Buyer.
Authorized Representatives who already registered in the role as Supplier must not attempt to register, directly or indirectly, in the role as Buyers and vice versa. CheMondis 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 6.2(f). User accounts are not transferable.

1.7 The CheMondis platform is provided “as is” and subject to the current state of technology. CheMondis does not guarantee the uninterrupted availability of the CheMondis platform or that it is error free. Availability is subject to interruptions due to maintenance, improvements or security measures, and to unscheduled downtime due to technical problems, external interference with CheMondis’ systems and disruption of Internet connectivity. CheMondis reserves the right to limit or suspend access to the CheMondis platform in its sole discretion if it considers this necessary with a view to maintaining the security, integrity, availability or performance of the CheMondis platform; Section 6.6 shall remain unaffected. CheMondis may change the appearance and functionality of the CheMondis platform from time to time.

2. PRODUCT REGULATORY COMPLIANCE

2.1 Suppliers must not list any product containing chemical substances according to the definition of Regulation (EC) 1907/2006 on the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) if such product is not registered for commercial sale within the EU under the applicable regulations, including without limitation REACH and BPR.

2.2 Suppliers are required to provide evidence of valid regulatory registration of all REACH substances by providing the Material Safety Data Sheet (MSDS) in accordance with REACH on the Product Detail Page according to Section 3.2 on the CheMondis platform. Technical Data Sheets can be provided optionally.

2.3 Irrespective of the foregoing, CheMondis 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. PRODUCT LISTING AND PRODUCT DETAIL PAGE

3.1 Product listings, catalogue information and general information about CheMondis are publicly accessible on the internet through the CheMondis website. Information on list prices and product availability as well as quote requests are only available to registered and validated Buyers.

3.2 Every product listed on the CheMondis 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;
• product description text;
• catalogue information (e.g., product category, application and relevant industries); and
• available packages incl. prices and availability.

3.3
CheMondis 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, CheMondis will notify the Supplier of such changes and the Supplier shall be responsible for reviewing and implementing such changes. 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 CheMondis platform has to fit into at least one product category, application or industry according to the CheMondis product catalogue as applicable from time to time. Listing a product that does not fit into any existing product category requires approval by CheMondis, and CheMondis may choose in its sole discretion to create a new product category.

3.5 The Supplier acknowledges and agrees that a new product listing may not be searchable by keyword or category for up to 2 hours during normal operation and may still be accessible and searchable on the CheMondis platform for some time after delisting. CheMondis does not guarantee exact listing durations.

3.6 CheMondis acts as an intermediary only and does not itself list, offer or sell any products on the CheMondis 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. CheMondis is not party to and has no responsibility or liability under any of these agreements or in relation to any of the products.

3.7 A purchase confirmed on the CheMondis platform legally constitutes a binding purchase contract between the involved Supplier and Buyer based on the terms and conditions agreed by these parties, including any terms and conditions posted by a Seller or, subject to Section 3.8(a)(vii) below, a Buyer.

3.8 CheMondis offers the two modes of purchase: “Instant Deals” and “Request Quote”, which operate according to following procedure 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 immediate purchase and shipping with a fixed price and guaranteed availability.
(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 CheMondis 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. CIP (Incoterms® 2010) applies to any such shipment.
(v) Notwithstanding Section 3.8(a)(iv), all product prices displayed on the Product Detail Page are exclusive of VAT and based on EXW (Incoterms® 2010), i.e., excluding shipping costs, customs duties (if any) and any other taxes. Such costs are calculated and displayed separately during the checkout (see Section 3.8(a)(vi)).
(vi) The Buyer selects the number of packages to buy, moves them to the cart and proceeds to the checkout where shipping and other costs according to Section 3.8(a)(v) are added to the order price.
(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) After checkout, the purchase by way of an Instant Deal is confirmed via an e-mail confirmation sent by CheMondis to both the Buyer and the Supplier.

(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 make a price offer as basis for negotiation with the respective Supplier. The Request Quote mode is available for all active product listings on CheMondis. A request for a quote shall not constitute a binding purchase offer by the Buyer but only a request for the Supplier to make an offer (invitatio ad offerendum).
(ii) Buyer and Supplier discuss the details of the request via a messaging functionality until the Supplier makes a definitive offer including price, quantity and delivery date to the Buyer. Such offers are only valid for a limited period of time specified by the Supplier.
(iii) If the Buyer accepts the offer before its expiration, the purchase transaction proceeds with the checkout pursuant to Section 3.8(a)(vi). Buyer and Supplier are encouraged to fix all relevant details of the sale (e.g., delivery date, applicable Incoterm, shipment cost, etc.) during the chat conversation. This serves as written order documentation.
(iv) Purchase details in the Request Quote mode (in particular prices and quantities) are only visible to the Buyer and Supplier, which are party to the transaction.

(c) In either purchasing mode, the Buyer is solely responsible for reviewing all information provided in the product listing before making a quote request (in case of a Request Quote) or proceeding to the checkout (in case of an Instant Deal).

(d) CheMondis 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 CheMondis repeatedly receives complaints regarding failure of the Supplier to timely fulfill any Instant Deal or Request Quote purchase transaction.

4. PAYMENT

4.1 Buyers on CheMondis can request payment through one of two options on every purchase transaction for both Instant Deals and Request Quote modes:
(a) Pay In Advance (PIA): Buyer pays upon closing of the purchase transaction based on an invoice provided by the Supplier prior to shipping of the purchased products.
(b) Pay Per Invoice (PPI): Buyer pays within a certain number of days after receiving the invoice according to the payment terms agreed with the Supplier.

4.2 Any payment shall be effectuated between the Supplier and the Buyer and does not involve CheMondis. CheMondis does not provide any financial guarantees to either the Supplier or the Buyer. The Supplier bears the payment risk. CheMondis 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.

4.3 The CheMondis platform is currently provided to Suppliers and Buyers without a charge. CheMondis may offer additional services against a charge or make access to the CheMondis platform subject to payment of a fee in the future.

5. COMMUNICATION

5.1 The User is solely and fully responsible for any of its communication through the CheMondis platform.

5.2 Any communication between Users or by CheMondis to Users shall be deemed received by the respective User upon receipt of such communication through the CheMondis 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 CheMondis platform.

5.3 With respect to any communication exchanged between Users over the CheMondis platform, CheMondis acts as a messenger (Bote) 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 CheMondis, nor does CheMondis act on behalf or in the name of any User.

5.4 The User consents to the transfer of data and information communicated by such User through the CheMondis 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 CheMondis to any third party other than the Supplier and Buyer, which are party to such transaction.

6. FURTHER USER OBLIGATIONS

6.1 The User shall keep the access credentials for the CheMondis platform strictly confidential and shall not share them with any third party, and undertakes to ensure that all of its Authorized Representatives comply with this clause as if each of them were itself bound by it.

6.2 The User shall be solely responsible
(a) for ensuring that any information it provides on the CheMondis platform (including any information on the Product Detail Page and as part of Instant Deals or Request Quote 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 CheMondis 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 CheMondis platform;
(d) for any activities, in particular any contractual declarations, that occur on the CheMondis platform under its accounts or passwords;
(e) for ensuring that access credentials for the CheMondis platform are not shared or otherwise made available among Authorized Representatives of one User; and
(f) for ensuring that where a User is registered 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 CheMondis 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 CheMondis platform are separated through appropriate barriers (Chinese Walls) preventing exchanges or communication between such Authorized Users and (C) ensuring that no exchange of any information obtained through the CheMondis platform will take place directly or indirectly between business divisions acting on the Supplier role and the Buyer role on the CheMondis platform.

6.3 The User must not use the CheMondis platform
(a) for any purposes other than selling or purchasing, as the case may be, products 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 CheMondis 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.

6.4 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 CheMondis platform to any third party or to individuals acting as Authorized Representatives of the respective User for the Supplier role with respect to access credentials relating to other individuals acting as Authorized Representatives of the respective User for the Buyer role or to individuals acting as Authorized Representatives of the respective User for the Buyer role with respect to access credentials relating to other individuals acting as Authorized Representatives of the respective User for the Supplier role;
(b) manipulate prices, e.g., by collaborating with intermediaries or using fake profiles;
(c) contact another User outside the CheMondis platform to conclude or implement a purchase transaction, which was initiated with such User over the CheMondis 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) gain unauthorized access to any portions or areas of the CheMondis platform for which access has not been expressly granted to the User by CheMondis;
(f) obtain or recreate any access credentials of any other Users by hacking, password mining or similar means;
(g) block, falsify or otherwise interfere with any information or data communicated by other Users over the CheMondis platform, or use any information provided by other Users outside the CheMondis platform or otherwise for any purpose other than the initiation or implementation of purchase transactions over the CheMondis platform; or
(h) take any action or do anything that could impair the security, integrity, availability or performance of the CheMondis platform.

6.5 The User shall notify CheMondis without undue delay if it encounters any issues or malfunctions during the use of the CheMondis platform.

6.6 Without limiting other legal remedies available to CheMondis, CheMondis may, but shall not be obliged, to (i) limit, restrict, suspend, or terminate User account(s) and access to the CheMondis platform in whole or in relation to individual Authorized Representatives, (ii) remove or otherwise restrict the visibility of product listings, and (iii) take technical and legal steps to keep the User and any or all of its Authorized Representatives from accessing and using the CheMondis platform if CheMondis reasonably believes that the User violates its obligations and/or the use restrictions applicable in relation to the CheMondis platform under these terms of use, in particular in case of violation of this Section 7. This shall apply accordingly if CheMondis, despite using reasonable endeavours, is unable to verify or authenticate any information provided by a User. CheMondis will notify the respective User of such measures without undue delay and give the User opportunity to comment on the circumstances, which caused CheMondis to take these measures.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 CheMondis reserves all intellectual property rights in the CheMondis 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-sub-licensable right to access the CheMondis platform during the term of the agreement for use with CheMondis, and subject always to these terms of use.

7.2 The User may not copy, reproduce, distribute, display, transmit, modify, create derivative works or reverse engineer any portion of the CheMondis platform or any information, data and other content made available by other Users through the CheMondis 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 CheMondis platform.

7.3 The User grants CheMondis 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 CheMondis platform.

8. DATA PROTECTION

8.1 CheMondis processes personal data received from the User in compliance with applicable data protection law and the CheMondis data protection information, which is available at www.chemondis.com/privacy

8.2 The User shall be solely responsible for ensuring that the transfer of personal data of its Authorized Representatives, employees or other individuals to CheMondis and the processing of such data by CheMondis (as specified in the CheMondis data protection information) complies with applicable data protection law, in particular that any required consent has been validly obtained. Section 10.6 shall apply in relation to any claims against CheMondis related to such transfer of data to CheMondis or that the use of such data in compliance with Section 9.1 violates applicable data protection law.

9. CONFIDENTIALITY

9.1 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 offer received from a Supplier (in case of a Buyer) and any quote request received from a Buyer (in case of a Supplier) (in each case, “Confidential Information”). Both parties shall use all reasonable endeavours to prevent any access by third parties to such Confidential Information.

9.2 Confidential Information shall however not include any information which (i) is in the public domain, (ii) subsequently comes into the public domain, except through a disclosure by a party under a 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.

9.3 This Section 9 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 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 CheMondis, 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 9 in respect of such information as if they were a party to the agreement between the User and CheMondis; or
(d) the other party has given prior written approval to the disclosure or use.

9.4
Notwithstanding the preceding provisions, CheMondis may use the User’s name and logo as reference in its marketing materials, promotion and advertising of the CheMondis platform.

10. LIABILITY

10.1 CheMondis and its affiliates, directors, officers, agents, employees and contractors shall not be liable to any User in case of slight negligence. For clarification only, Section 536a para. 1 alt. 1 BGB shall not apply.

10.2 Any further limitation of CheMondis’ liability based on statutory law, in particular due to the fact that the CheMondis platform is provided without a charge, shall remain unaffected.

10.3 The foregoing provisions shall apply to the contractual and non-contractual liability of CheMondis (including liability in tort) as well as any liability arising out of dealings before the conclusion of a contract (culpa in contrahendo).

10.4 CheMondis’ liability for wilful misconduct, negligent damage to life, bodily injury or damage to health or according to the German Product Liability Act, if any, shall remain unaffected.

10.5 For the avoidance of doubt and notwithstanding the foregoing, CheMondis shall not be liable in contract, tort (including negligence), based on dealings before the conclusion of a contract (culpa in contrahendo) or otherwise for any damage or losses arising directly or indirectly from:
(a) Any purchase contracts concluded through the CheMondis platform;
(b) any products offered or information, data, content or other material provided or communicated by any User, even if CheMondis modified, supplement, removed corrected or otherwise reviewed such material or provided guidance to a User in the context of its creation; CheMondis does not endorse and is not obliged to verify any such materials; and
(c) any suspension, changes to the CheMondis platform or other action taken by CheMondis in accordance with these terms of use.

10.6 The User shall indemnify and hold CheMondis and its affiliates, directors, officers, agents, employees and contractors harmless from and against any claims or losses or costs, including reasonable attorney fees, incurred by CheMondis
(a) which arise out of or in connection with any agreement entered into by such User with any other User or any third party;
(b) due to any breach by such User of the agreement with CheMondis for the use of the CheMondis platform (including in particular these terms of use)
(c) due to the User’s improper use of CheMondis platform; or
(d) due to or violation by such User of any applicable laws or any rights (including any intellectual property rights) of any third party.

11 TERM, TERMINATION

11.1 CheMondis and the User may each terminate the use of the CheMondis platform at any time by providing two weeks’ notice thereof (including by e-mail or communication through the CheMondis platform) to the respective other party. The right of either party to termination for cause shall remain unaffected.

11.2 It is the User’s sole responsibility to create a backup of any of its data stored on the CheMondis platform prior to termination taking effect.

12 MISCELLANEOUS

12.1 CheMondis 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 CheMondis platform or of its business model. CheMondis will reasonably consider the User’s legitimate interests when making such changes and will notify the User of these changes duly in advance. The changes shall be deemed accepted by the User unless the User terminates the use of the CheMondis platform pursuant to Section 12 prior to the planned entering into force of such changes. CheMondis will draw the User’s attention to this consequent approval in its respective notification.

12.2 Notwithstanding Section 12.1, any modifications of and amendments to these terms of use must be in writing and signed, or communicated pursuant to Section 6 to be binding, unless any stricter form requirements exist, including any waiver of this form requirement.

12.3 These terms of use and the documents referred to herein constitute the entire agreement between CheMondis and Users in relation to the use of the CheMondis platform and replace any prior understandings, agreements or representations by or between the parties.

12.4 Any documents referenced by these terms of use constitute an integral part of these terms of use and any reference to these terms of use shall include such documents.

12.5 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 12.5 is not construed as a mere reversal of the burden of proof (Beweislastumkehr), but as a provision that contractually excludes any doubts as to the validity of the remaining provisions of these terms of use.

12.6 In case of any dispute between a User and CheMondis in relation to the use of the CheMondis platform, the parties will faithfully attempt to amicably resolve such dispute. Place of performance of all services rendered by CheMondis hereunder and the exclusive place of jurisdiction for all disputes arising under or in connection with the agreement between a User and CheMondis, including tort claims and pre-contractual claims, shall be Cologne, Germany.

12.7 The agreement between any User and CheMondis for the use of the CheMondis platform and any disputes arising out of or in connection with such agreement shall be governed by substantive German law without giving effect to any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. 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) shall be dealt with and resolved solely by and between the respective Supplier and Buyer. CheMondis will not act as a mediator or arbitrator or otherwise be involved in any such disputes.