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MEMBERSHIP AGREEMENT
Last Updated On September 23, 2002 Foreword THIS AGREEMENT (AS DEFINED BELOW) DESCRIBES THE TERMS BY WHICH CHEMFINET ("Chemfinet" or "we") OFFERS MEMBERS ACCESS TO THE SERVICE. BY SUBMITTING YOUR REGISTRATION APPLICATION, OR BY ACCESSING OR USING THE SERVICE THEREAFTER, YOU ACCEPT THE AGREEMENT AND AGREE TO BE BOUND BY EACH OF ITS TERMS. 1. Agreement with Terms and Conditions. This Membership Agreement, together with the User Guide and all Service Agreements executed by the Member, describes the terms and conditions ("Terms and Conditions") applicable to your use of the Site and the Exchange. Please print a copy of this Agreement. If there is a conflict between any terms or conditions contained in the Membership Agreement and those contained in a Service Agreement, the Service Agreement shall control for the specific products and services covered with that Service Agreement. 2. Eligibility for Membership. The Site and Exchange are available to qualified participants in the worldwide custom fine chemical industry who are capable of forming legally binding contracts under applicable law. Chemfinet may refuse to accept an application for membership in its sole discretion and/or limit a Member's use of the Site and/or Exchange at any time in its sole discretion. By using the Site or the Exchange, you agree to be bound by all of the terms and conditions of the Agreement. Moreover, you, and each Member transacting business with you, agree with and represent to Chemfinet and to each other that:
3. Fees, Charges, and Payments. There are no fees for buyers and sellers for using Chemfinet’s services. 4. Terms and Conditions Between Members. This Membership Agreement, including the User Guide and executed Service Agreements, governs your use of the Site and the Exchange. However, the specific terms and conditions of a Member's agreement regarding the manufacture, purchase or sale of (such as method of manufacture, purity, price, delivery, insurance, etc.) entered into through the Exchange are established between Buyer and Seller/Manufacturer by virtue of the information set forth on the RFQ's and bids for that transaction. 5. Obligation to Conclude Transactions. When a Buyer accepts the bid of its choice, each of the parties is notified of the successful transaction. This notification includes the specifics of the transaction as noted on the RFQ's and Bids for that transaction, and it is the obligation of the parties to contact each other and conclude the transaction outside of the Exchange. The terms and conditions of the transaction shall be those set forth in the RFQ and the Bid. If you are a Buyer, you will have the opportunity to review all bids on your RFQ and determine whether you wish to accept one of the bids. If you are a Seller/Manufacturer and a Buyer accepts your bid, you are obligated to conclude the transaction. By bidding on an item, you agree to conclude the transaction with the Buyer. NOTE: ALL BIDS ARE SUBJECT TO BEING WITHDRAWN AT ANY TIME PRIOR TO ACCEPTANCE, AND ANY CURRENT BID IS ALWAYS SUBJECT TO ACCEPTANCE BY THE BUYER. ACCORDINGLY, IT IS THE MEMBER'S RESPONSIBILITY TO CONTINUALLY MONITOR ALL OUTSTANDING BIDS AS THEY CAN BE ACCEPTED AT ANY TIME. THE ACCEPTANCE OF ANY PARTICULAR BID IS ALWAYS AT THE DISCRETION OF THE BUYER. 6. Circumvention of Chemfinet. Member agrees not to (1) attempt to identify any party to any transaction on the Exchange, or (2) knowingly engage in negotiations with a party to any transaction on the Exchange, with respect to an RFQ which is or has been listed on the Exchange, other than through the Exchange, it being expressly understood and agreed that once an RFQ has been posted, or a transaction has been initiated on the Exchange, the Members shall allow that transaction to be concluded on the Exchange. A Member who engages in circumvention or who attempts to identify the anonymous RFQ sponsor or bidder on the Exchange is subject to immediate and permanent revocation of their Chemfinet membership. 7. Access to the Site. a. Equipment and Connections. Member is responsible for providing all equipment necessary to access the internet and the Site. We recommend MS Internet Explorer v5.5 or higher. b. Availability of the Site. The Site is generally available 24 hours a day, 7 days a week. However, Chemfinet retains the right to make the Site and Exchange unavailable from time to time for any reason, including scheduled maintenance as well as equipment or software failures. Member agrees that Chemfinet shall not be liable for any damages arising from any interruption, suspension, or termination of the Site and/or the Exchange. c. Use of Passwords. Access to, and use of, the Site and Exchange is through a combination of a User Name and Password. Upon submittal of the Registration Form, a Member will be issued a unique User Name and an initial password; members can subsequently change their passwords. Issuance of the User Name and Password validates the user's membership. The User Names and Passwords provide entry to the Exchange. No Member or other person is permitted to access the Site or Exchange using the User Names and Passwords of any other Member. Within the Member';s own company or organization, use of the User Names and Passwords is limited to the Primary Contact and other authorized users named in the Chemfinet Registration Request Form. The Primary Contact represents and warrants that he/she is an agent of the company or organization and is authorized to act on behalf of, and bind, said company or organization. 8. System Integrity. a. Applicable Laws. Member agrees to comply with all applicable local, state, federal, and international laws, statutes, rules, and regulations relating to Member's use of the Site and the Exchange. Without limiting the foregoing, Members are responsible for observing all applicable tariffs and trade laws. b. No Unauthorized Access. Member shall not provide access to the Site to other persons through use of Member's User Names or Passwords. The Member is solely responsible to ensure that no other person utilizes Member's User Names or Passwords. Chemfinet is specifically not responsible for the use of any Member's User Names or Passwords by another party. Member shall be responsible for any damages or liability resulting from another party obtaining his or her User Names or Passwords. In addition, a Member's membership in Chemfinet is subject to termination by Chemfinet in its sole discretion in the event of any unauthorized access to the Exchange by a person using such Member's User Names or Passwords. c. Malicious Intent. Member agrees not to tamper in any way with the software or functionality of the Site. Without limiting the foregoing, Member agrees not to put any material into the Site or Exchange which contains any viruses, time bombs, trojan horses, worms, cancelbots, or other computer programming routines that may damage, interfere with, intercept, or expropriate any system, data, or information. Member agrees not to take any action that imposes an unreasonable or disproportionately large load on the Site or Site infrastructure. d. Maintenance of Confidential Information; Privacy. Member agrees not to disclose other Members' confidential information, including, but not limited to, identity, terms, and pricing. In addition, Member agrees not to disclose Chemfinet confidential information, such as Member User Names and Passwords, even within Member's own organization, and keep such disclosure limited to persons identified in the Chemfinet Registration Request Form as primary and additional Chemfinet Exchange Users. Member agrees not to invade another Member's privacy. This includes, but is not limited to, the breach or attempted breach of the security of another Member's computer, software or data without the knowledge and express consent of such Member. Use or distribution of tools designed for compromising privacy or security is strictly prohibited. 9. Privacy Policy. We value our relationships with our Chemfinet Exchange Members and hold all personal information of our Members in confidence. We also appreciate the interest of the general public. We are committed to providing site users with a secure and confidential environment, one that respects the users right to privacy and security to the fullest extent provided in our User Agreement. Although Chemfinet does collect member information from the registration process, we fully recognize the importance of protecting the privacy of our Members. Accordingly, we will not use information that you provide to the site to send you unsolicited communication, nor will such information be sold, traded, or shared with any third party, including advertisers, organizations, or other Members, with the following specific exceptions:
With Member registration to the Chemfinet Exchange, we automatically capture the IP address and host name (if available) of the Member's originating server. The IP address identifies the computer that a Member is accessing the Exchange from, but does not reveal any personal information about the Member. To improve the quality of our site and enhance its many features, our site does collect data about site traffic and page use. Our site does track the type of browsers that visit and how often, and in what sequence, our pages are viewed. At no time are these site attributes correlated to any information that you supply to our site. Chemfinet will publish information about activity on the Chemfinet Exchange using aggregated trading information that will not include the identities of Members that are parties to the transactions. Internet Security Chemfinet values the trust given us by our members. We use the highest encryption method supported for Internet-based e-commerce to protect your data. We institute procedures that isolate sensitive customer/company information and buying patterns so that they cannot be accessed from the Internet. As buyer and/or seller members, Chemfinet protects your anonymity. Chemfinet has selected VeriSign, the world's leading vendor of strong-encryption certificates, as our Certificate Authority. With this encryption, all of your transactions are protected using SSL encryption. This protects your confidential information - such as user names and passwords, online forms, and buying patterns - from interception and hacking. All information used or collected by our site is stored on servers and databases that are protected by firewall technology and housed in a secure building and which are not accessible via the Internet without proper security authentication. Cookies To enhance your visit to the Chemfinet site, and to enhance security when accessing account information, we may assign your computer browser a unique random number, called a "cookie." Cookies enable our website to better protect your account information and make your visit to our site more personalized and convenient. We also use temporary cookies to collect information to help us understand how people are using our site so that we can improve your experience on the site. None of the information we collect in the temporary cookie is personally identifiable to you. We use permanent cookies to collect and store personal information - in the Exchange we use a cookie to store your Company and User ID numbers, and information concerning your most recent session. Your privacy and security are not compromised when you accept a cookie from our website. Cookies are encrypted and sent securely, and a cookie can't read data from your computer's hard disk or read cookie files from other web sites. Cancellation Options Any Member of the Chemfinet Exchange may cancel their Membership at any time by sending an e-mail to info@chemfinet.com and in the subject line write "cancel." The consequences of, and a Member's obligations after, a cancellation are set out in our User Agreement. Further Questions Any questions about this Privacy Policy or any other issues regarding operation of Chemfinet and the Chemfinet Exchange can be sent to:
Chemfinet Customer Service
10. Information Posted on the Site. Member is solely responsible for information that it posts on the Site. Chemfinet may, from time to time and at its own discretion, review RFQs to attempt to locate ambiguities, inaccuracies, or information that would identify the Member. If Chemfinet deems it appropriate, it may make changes to the RFQ to clarify any apparent ambiguities and remove or make generic any information in the RFQ from which the Member's identity could be determined. If Chemfinet modifies the RFQ, it will transfer the RFQ back to the Member for their approval before posting the RFQ on the Exchange. However, Member agrees that Chemfinet has no obligation to monitor content on the Site, the Exchange, or links to other web sites contained on the Site, and expressly disclaims any responsibility to filter any such content (See Paragraph 11 below). Notwithstanding, Chemfinet may take any action with respect to such information it deems necessary or appropriate in its sole discretion if Chemfinet believes such information may give rise to liability to Chemfinet or other parties or interfere or impair Chemfinet's relationship with any Member. Information posted on the Site by Members (a) must not be fraudulent or involve the sale of stolen items; (b) must not infringe any third party's rights, including but not limited to copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; (c) must not violate any applicable law, statute, rule, or regulation; (d) must not be obscene, indecent, or contain pornography; (e) must not be defamatory, trade libelous, threatening, or harassing; and (f) must not link directly or indirectly to pages or sites outside of the Exchange. In addition, you may not post on the Site or sell on the Exchange any product or service which, by paying us our Membership Fee or otherwise, could cause Chemfinet to violate any applicable law, statute, rule, or regulation. 11. No Warranties/Limitation of Liability Regarding Information and Transactions. The Exchange is only a vehicle for Members to submit RFQs on fine chemicals and to bid on the sale or manufacture of custom fine chemicals. Chemfinet does not set nor endorse the price, contract terms, quality, safety, conformance, or legality of the fine chemicals advertised or sold, the ability of Members to manufacture, sell, or buy custom fine chemicals. Chemfinet cannot and does not control whether either party will complete the sale transaction. Chemfinet is not responsible with respect to payment or collection for transactions initiated on the Exchange. Moreover, you acknowledge and agree that the Site and the Exchange are dependent upon the integrity and reliability of the computer hardware and software used by the various Members, of the telephone lines and the internet in general, and of the information submitted by the Members. Accordingly, it is the responsibility of the Members to verify that information they have posted to the site has been recorded and is being displayed accurately in each instance. In the event of any inaccuracy, contact the site administrator immediately. CHEMFINET MAKES NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY, OR RELIABILITY OF ANY CONTENT OR ANY BUYER OR SELLER/MANUFACTURER AND WHETHER YOU SHOULD DO BUSINESS WITH SUCH BUYER OR SELLER/MANUFACTURER. MEMBERS WILL OFFER TO MANUFACTURE AND/OR SELL CUSTOM FINE CHEMICALS ON THE EXCHANGE BY SUBMITTING BIDS. HOWEVER, CHEMFINET MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY OF MEMBER POSTINGS MADE ON THE SITE AND SHALL NOT BE LIABLE FOR ANY INCORRECT POSTINGS, IT BEING THE SOLE AND EXCLUSIVE RESPONSIBILITY OF MEMBER TO VERIFY THAT INFORMATION SUBMITTED BY IT TO THE EXCHANGE HAS BEEN SUBMITTED AND IS BEING DISPLAYED ACCURATELY. MEMBERS WILL MAKE RFQS ON THE EXCHANGE. HOWEVER, CHEMFINET MAKES NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY OF BUYER POSTINGS SHOWN ON THE SITE AND SHALL NOT BE LIABLE FOR ANY INCORRECT POSTINGS, IT BEING THE SOLE AND EXCLUSIVE RESPONSIBILITY OF BUYER TO VERIFY THAT INFORMATION SUBMITTED BY IT TO THE EXCHANGE HAS BEEN SUBMITTED AND IS BEING DISPLAYED ACCURATELY. THE SITE AND THE EXCHANGE ARE PROVIDED ON AN "AS IS" BASIS. NEITHER THE SITE NOR THE EXCHANGE IS GUARANTEED TO BE OR OPERATE ERROR FREE. CHEMFINET DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE WITHOUT INTERRUPTION, AND YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. 12. Intellectual Property Matters. Member acknowledges that all data developed or collected by Chemfinet in connection with the operation of the Site and the Exchange shall be the exclusive property of Chemfinet. Chemfinet's use or disclosure of such data will not be made in a manner which includes the identity of any Member (except in connection with transaction confirmations) and shall be made in accordance with the terms and conditions in paragraph 10, Privacy Policy. To enable us to use information provided by you without violating any rights you have in the information, Member grants to Chemfinet a non-exclusive, worldwide, perpetual, irrevocable, royalty-free right to exercise the copyright and publicity rights (but not other rights) you have in such information in any media whether or not now known. All third-party content published on the Site is property of the respective copyright owners and may not be copied or distributed in any way by Members for commercial purposes. 13. Limitation on Member's Use of Information. The information available to Members at the Site, including the information on the Exchange regarding active offers and bids, is provided to Members for the sole purpose of transacting business on the Exchange. To the maximum extent legally possible, the Member agrees to not directly or indirectly copy or reproduce all or any part of the Chemfinet Proprietary Properties, whether electronically, mechanically, or otherwise, in any form, including but not limited to, the copying of presentation style, content, or content organization, without the prior written permission from Chemfinet, provided however, that the Member may make copies of Web pages on an internal computer system as part of accessing our Web site and for the Member's own internal use in connection with utilizing the Exchange, but may not make copies or otherwise distribute, publish, reproduce, or retransmit any information, or otherwise commercially exploit any information, in transactions with third parties. 14. Termination and Expiration.
15. Relationship between Chemfinet and Members. Member and Chemfinet are independent contractors, and no agency, partnership, joint venture, employer-employee, or other similar relationship is intended or created by Member's acceptance of this Agreement, use of the Site, or participation in the Exchange. Chemfinet does not act as broker, buyer, or seller of any product. Chemfinet only posts information provided by Members in an effort to enable Members to conclude transactions with other Members. 16. Amendments . Chemfinet may amend the Terms and Conditions of this Membership Agreement (including the User Guide) at any time by posting the amended terms and conditions on the Site, in which case, they shall take effect with respect to existing Members upon the Members' next login to the Site. Alternatively, Chemfinet may e-mail all Members a notice of amended Member's terms and conditions, in which case the change shall be effective immediately or on the date indicated in such notice. Chemfinet also reserves the right to modify, add to, delete, or discontinue some or all of its services at any time in its sole discretion. 17. Dispute Resolution and Applicable Law. This Membership Agreement, the Member's Terms and Conditions, and the relationship between Member and Chemfinet, shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict-of-law provisions. Member and Chemfinet agree that any controversy or claim arising out of, or relating to, this Membership Agreement, the relationship between Member and Chemfinet, or the use of the Site or the Exchange, shall be submitted to the personal and exclusive jurisdiction of the state and federal courts located within Westchester County, New York. 18. General Release and Indemnity. The Exchange acts as a venue for Members to initiate the purchase and sale of custom fine chemicals. Chemfinet is not involved in the actual transactions between Members. Accordingly, Chemfinet has no control over the truth or accuracy of postings, the ability of sellers to sell listed custom fine chemicals or services, or buyers to purchase custom fine chemicals. Because Chemfinet is not involved in Member-to-Member transactions, in the event of any dispute between you and another Member, you release Chemfinet, its agents, and employees from any claims and damages of every nature (including, without limitation, actual, special, punitive, incidental, and consequential), known and unknown, disclosed and undisclosed, arising out of, or in any way connected with, such dispute. As an additional condition of membership, each Member agrees to indemnify, hold harmless, and defend Chemfinet, and each of its respective shareholders, affiliates, sub-contractors, agents, and employees against all such claims and all claims, liabilities, and damages incurred or allegedly incurred by any participating Member of the Site. These include but are not limited to, any product or services sold on the Exchange for its failure of a product to meet specifications, for breach of warranty, for any failure by a Member to pay for commodities contracted for, or for any failure by a Member to deliver commodities agreed to be sold. 19. Disclaimer of Warranties. IN ADDITION TO ANY OTHER DISCLAIMERS OF WARRANTIES CONTAINED HEREIN, CHEMFINET PROVIDES THE SITE AND THE EXCHANGE ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTY, EXPRESS OR IMPLIED. MEMBER AGREES THAT USE OF THE SITE AND EXCHANGE IS AT MEMBER'S SOLE RISK. CHEMFINET EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, SEQUENCE, TIMING, ACCURACY, OR COMPLETENESS OF THE SERVICES OR INFORMATION, AVAILABILITY OF THE SERVICES OR INFORMATION, OR THAT ANY SUCH INFORMATION MAY BE RELIED UPON FOR TRADING PURPOSES, AS WELL AS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. AGENTS AND EMPLOYEES OF CHEMFINET ARE NOT AUTHORIZED TO MAKE WARRANTIES BINDING ON CHEMFINET. ACCORDINGLY, ORAL OR WRITTEN STATEMENTS NOT INCLUDED IN THE MEMBERSHIP AGREEMENT, TERMS AND CONDITIONS, OR USER GUIDE DO NOT CONSTITUTE WARRANTIES, SHOULD NOT BE RELIED UPON, AND ARE NOT PART OF THIS AGREEMENT. 20. Limitation of Liability. As a condition of membership to the Site and Exchange, and in consideration of the services provided by Chemfinet, Member agrees that NEITHER CHEMFINET, NOR ANY OFFICER, AFFILIATE, DIRECTOR, SHAREHOLDER, AGENT, OR EMPLOYEE OF CHEMFINET WILL BE LIABLE TO A MEMBER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. THESE INCLUDE LOSS OF PROFITS, LOSS OF DATA, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, AND DAMAGES, EXPENSE, OR COSTS RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSE WHATSOEVER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES. The limitations set forth in this section apply to the acts, omissions, negligence, and gross negligence of Chemfinet and its affiliates, subcontractors, employees, and agents, which, but for this provision, would give rise to a cause of action in contract or any other legal doctrine. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL CHEMFINET'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT, WHETHER ARISING FROM CONTRACT, WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, EXCEED IN THE AGGREGATE THE AMOUNT OF THE MOST RECENT ONE YEAR'S MEMBERSHIP FEE ACTUALLY PAID BY MEMBER HEREUNDER. 21. Survival. The following provisions shall survive the termination or expiration of this Agreement: 3, 6, 8, 11, 12, 13, 14.b, 17, 18, 19, 20, 21 and 22. 22. Other General Provisions. This Membership Agreement, together with the Chemfinet Registration Request Form, User Guide, and executed Service Agreements, each of which are incorporated herein by this reference (collectively the "Agreement"), constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes and replaces any and all prior written or verbal agreements. Headings are for reference only. Chemfinet's failure to insist upon or enforce strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between Member and Chemfinet nor trade practice shall act to modify any provision of the Agreement. If any provision of the Agreement is held to be invalid or unenforceable, such determination shall not affect such provision in any other respect or any other provision of the Agreement, which shall remain in full force and effect. The Agreement may not be assigned or transferred to third parties by a Member without prior written permission from Chemfinet. The person accepting this Agreement hereby certifies that he/she has read the foregoing Chemfinet Membership Agreement and the User Guide, incorporated herein by reference, and agrees to the terms and conditions contained therein. By accepting this Agreement, I, as the primary company contact or Company Administrator, represent and warrant that I am a duly authorized representative of my company and can form legally binding contracts on behalf of such company under applicable law. On behalf of such company, I agree to the forgoing terms and provisions contained in the Membership Agreement and the User Guide, incorporated herein by reference. |
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