Brenntag Ecuador S.A. – a Ecuador corporation, (“Brenntag”) operates the “Brenntag Connect” digital marketplace (the “Portal”), which allows “Users” to view and (re)order products via the Internet using various functionalities. For the avoidance of doubt, the term User can include an individual, an employee, or an employer.
1. Scope of application
2.1 Users may need to create an account or otherwise register within the Portal to access all of the features and any User-specific content of the Portal. Users may request registration by following the prompts and links provided in the Portal. It is the User’s responsibility to ensure that its information is accurate, up to date, complete and confidential. If there is any change in the User’s status or information, the User must promptly notify Brenntag of those changes.
2.2 Brenntag may refuse or revoke any User’s registration without notice or reason and in its sole discretion. Brenntag shall not be liable for any delay, denial or termination of any registrations whatsoever.
3. Password and obligations of the User
3.1 Registration and logging into the Portal will require a unique username and password, which will either be chosen by the User or assigned to the User by Brenntag during or after the registration process.
3.2 In the event that the User loses his/her username or password or suspects that an unauthorized party gained access to the User’s login credentials, the User must change his/her password immediately and inform Brenntag in writing of the issue.
3.3 The User must notify Brenntag in writing when an employee or third party (e.g. consultants) which has login credentials or other access to the Portal leaves the company or is no longer performing work on behalf of the company.
At the latest, notice should be given upon the termination of employment or association. Any actual or threatened misuse of the Portal must be reported immediately to Brenntag. In such an event, Brenntag may, at is discretion, provide a new login name and/or password.
3.4 The User shall be responsible and held liable for all content posted or uploaded to the Portal, or any other abusive behavior on the Portal by an employee and/or third party affiliate of the User.
3.5 The User shall not post or upload any content that:
- (A) in any way violate or imperil the rights or intellectual property (including, but not limited to, trademarks, copyrights, patents, and trade secrets) of Brenntag or any of its affiliates,
- (B) is illegal, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful or
- (C) contain viruses, circumvention devices, or unsolicited mass mailings (spam).
The User shall observe any existing intellectual property rights and any other property rights of third parties, and may not enter into any illegal agreements, or engage in conduct or concerted practices that could give rise to violations of antitrust law.
3.6 Brenntag is entitled to delete any content posted or uploaded to the Portal and to exclude the User from further use of the Portal.
4. Deletion of the registration
The User may not cancel any orders that were placed, shipped, or delivered prior to the request for cancellation is provided on the basis that the User account is no longer active. Brenntag shall not be liable for any deletion of registrations whatsoever.
5.2 NOTWITHSTANDING ANYTING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW:
- (i) ANY DIRECT, INDIRECT, EXEMPLARY, SPECIAL, MULTIPLE, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES;
- (ii) ANY LOSS OF PROFITS, BUSINESS, OR ANTICIPATED SAVINGS; AND/OR
- (iii) ANY LOSS OF, OR DAMAGE TO DATA, REPUTATION, REVENUE OR GOODWILL.
(B) IN NO EVENT WILL THE TOTAL AGGREGATE OF BRENNTAG, ITS AFFILIATES AND THIRD-PARTY PROVIDERS EXCEED $500.00 USD FOR THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GIVES RISE TO THE LIABILITY. THIS LIABILITY LIMIT IS CUMULATIVE AND NOT PER INCIDENT.
(C) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF USE OF THE PORTAL HEREUNDER, MAY BE COMMENCED BY A USER MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
a) prevent illegitimate access to his/her User account and/or the data provided,
c) ensure the data provided to the Portal is free of cyber risks, such as but not limited to computer software, code or instructions commonly known as viruses, Trojans, logic bombs, worms and spyware designed to interrupt, destroy, infect or limit the functionality of the Portal.
5.4 The User shall fully indemnify, protect, defend, release and hold harmless the Brenntag from and against any and all claims, losses, expenses (including reasonable expert and attorneys’ fees), demands, damages, judgments, causes of action, suits and liabilities of third parties arising out of or related to the User’s:
(i) uploading or providing information or content in violation of a third party’s intellectual property rights; (ii) breach of this Agreement;
(iii) negligent act, omission or willful misconduct; or (iv) violation of a federal, state, provincial or local law or regulation.
6.1 THE PORTAL IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. BRENNTAG DOES NOT MAKE ANY WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. BRENNTAG DOES NOT WARRANT THAT THE PORTAL:
(A) IS FREE OF TECHNICAL DEFECTS;
(B) WILL BE PERMENENTLY AVAILABLE OR AVAILABLE WITHOUT INTERRUPTION; OR
(C) CONTAINS CURRENT, COMPLETE, OR ACCURATE INFORMATION.
THE SERVICES OF THE PORTAL ARE OFFERED BY BRENNTAG FREE OF CHARGE, WITHOUT ANY LEGAL OBLIGATIONS TO MAINTAIN THE INFORMATION OR OPERATIONS. BRENNTAG, IN ITS SOLE DISCRETION, RESERVES THE RIGHT TO:
(A) CEASE THE OPERATION OF THE PORTAL COMPLETELY OR PARTIALLY, TEMPORARILY OR PERMANENTLY AT ANY TIME WITHOUT PRIOR NOTICE; OR
(B) TO MAKE THE USE OF THE PORTAL CONTINGENT ON THE PAYMENT OF FEES.
6.2 BRENNTAG DOES NOT CLAIM OWNERSHIP OR RESPONSIBILITY OF ANY THIRD PARTY CONTENT OR INTELLECTUAL PROPERTY USED IN THE PORTAL AS ITS OWN.
6.3 BRENNTAG SHALL IN NO WAY BE LIABLE FOR DAMAGES INCURRED BY A USER’S RELIANCE ON THE ACCURACY AND COMPLETENESS OF ANY CONTENT PLACED IN THE PORTAL.
7. Use of data and data protection
8.1 This Agreement shall be governed by and enforced in accordance with the laws of the jurisdiction in which the Seller’s corporate office is located without reference to its conflict of law rules.
The parties hereby consent to the personal jurisdiction in the aforementioned jurisdiction and waive any right to object to such jurisdiction on any basis, including but not limited to, forum non conveniens. Each Party knowingly, voluntarily and intentionally waives, to the fullest extent permitted by law, any right it may have to a trial by jury in any legal action arising out of or relating to this Agreement.
Each party represents that it has consulted or had the opportunity to consult with legal counsel with respect to this waiver. Both parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement.
8.2 Any dispute, controversy, or Claim between the parties (a “Dispute”) that
(A) does not involve a third party and
(B) arises out of or relates in any way to
- (ii) relating to the Portal in any way shall be subject to the following dispute resolution procedure.
The parties will attempt in good faith to resolve any Dispute through negotiations. If the Dispute has not been settled within thirty (30) days from the date on which the party initiating the Dispute has served written notice on the other party, then the Dispute shall be solely, exclusively and finally resolved by binding arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules.
Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitration shall take place before a single arbitrator unless the amount in controversy exceeds two hundred and fifty thousand USD ($250,000), in which case the arbitration shall take place before a panel of three (3) arbitrators.
The arbitrator(s) shall be knowledgeable in online transactional law. If three arbitrators are to be appointed, each party shall appoint one arbitrator. The two arbitrators thus appointed shall choose the third arbitrator. In the event three arbitrators are appointed, each party shall pay for the cost of its own arbitrator plus one-half of the cost of the third arbitrator.
9. Intellectual Property
9.1 All intellectual property, including trademarks, patentable material, trade secrets, and copyrightable material, including but not limited to, text, graphics, logos, button icons, images, audio clips, digital downloads, videos, data compilations, and software is the property of Brenntag Group, its affiliates, and/or its licensors.
9.3 Brenntag grants the User a limited, non-exclusive, non-transferable, non-sublicensable license to access the Portal. The User may not use data mining, robots, or similar data gathering and extraction tools in connection with the Portal, nor may the User download or copy information from the Portal, including any collection of product listings, descriptions, reviews, or prices without Brenntag’s consent or for the benefit of another merchant.
11. Other Provisions