Terms & Conditions
The entity you are contracting with is POLYMERMARKETPLACE B.V., a Dutch entity located in Amsterdam, the Netherlands (PMP). This Agreement is effective for users who accept it through registration of a PMP account or other electronic click-through as of October, 2014. Any person who wishes to access the Site to buy or bid for goods or to use other services provided on the Site must accept the terms and conditions of this Agreement, without change. PLEASE REVIEW THE FOLLOWING TERMS OF SERVICE CAREFULLY BEFORE USING THE SITE. BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
PMP reserves the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Site or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. You can review the most current version of this Agreement at any time at www.polmermarketplace.com/terms-and-conditions. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING PMP’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE.
Please be advised that this Agreement contains provisions that govern how claims between you and PMP are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate (see Legal Disputes, Section III.B. (“Agreement to Arbitrate”). Unless you opt-out: (1) you will only be permitted to pursue claims against PMP on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
General Rules for the Site
POLYMERMARKETPLACE.COM is a website owned and operated by PMP. The Site allows users to offer, sell and buy certain polyolefin products within the European and other international markets through online transactions and auctions. As an e-commerce site, PMP does not own or sell the items listed on the Site. PMP only serves as a facilitator between sellers of polymer products (Producers) and buyers of polymer products (Clients) (collectively referred to as “users”). The actual contract for sale is made directly between Producers and Clients. Although the Site may commonly be referred to as an online auction web site, it is important to realize that PMP is not a traditional “auctioneer.” Instead, the Site acts as a venue to allow certain persons or entities to sell and buy certain products anytime, from anywhere, in a variety of pricing formats, including a fixed price format and an auction-style format commonly referred to as “online auctions” or “auctions.” While PMP may provide information regarding pricing, shipping, and other guidance in the Services and Site, such guidance is from Producers that use the Site and Services and solely informational. Clients may choose not to follow it. Also, while PMP may help facilitate the resolution of disputes through various programs, PMP has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of Producers to sell items; the ability of Clients to pay for items; or that a Producer or Client will actually complete a transaction.
While using or accessing the Services or the Site you will not: post, list or upload content or items in inappropriate categories or areas on the Site; breach or circumvent any laws, third party rights or PMP systems, policies, or determinations of your account status; use the Services if you are not able to form legally binding contracts, or are temporarily or indefinitely suspended from using the Site, services, applications or tools; fail to pay for items purchased by you, unless the Producer has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot contact the Producer; fail to deliver items sold by you, unless the Client fails to follow the posted terms, or you cannot contact the Client; manipulate the price of any item or interfere with other user’s listings; post false, inaccurate, misleading, defamatory, or libelous content; transfer your PMP account and user ID to another party without PMP’s consent; distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes; distribute viruses or any other technologies that may harm PMP, or the interests or property of PMP users; use any robot, spider, scraper or other automated means to access the Site or Services for any purpose; bypass PMP’s robot exclusion headers, interfere with the working of PMP’s Services, or impose an unreasonable or disproportionately large load on PMP’s infrastructure; export or re-export any PMP application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions; copy, modify, or distribute rights or content from PMP’s Services or PMP’s copyrights and trademarks; copy, reproduce, reverse engineer, modify, create derivative works from, distribute, or publicly display any content (except for your information) from PMP Sites, Services, applications, or tools without the prior express written permission of PMP and the appropriate third party, as applicable; commercialize any PMP application or any information or software associated with such application; or harvest or otherwise collect information about users, including e-mail addresses, without their consent.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue Services.
General Rules for Transactions
PMP facilitates different types of transactions between Producers and Clients on this Site. The rules applicable to all transactions are set out in this Site. Producers also may require that Clients agree to Producer’s separate terms and conditions prior to making a bid on the Site. Producer’s terms and conditions may be separate and distinct from those set forth in this Agreement. PMP shall not be held responsible for any conflicting terms or requirements imposed upon Clients to complete transactions with Producers.
Producer may choose to close any offer or auction before its completion in the event there are compelling technical reasons to do so (including technical difficulties experienced by PMP, any bidders, third party in relation to the Site or any transaction tools and software made available through it) or any other event or circumstance which in PMP’s or Producer’s opinion may represent an unlawful use.
All pricing referenced in the Site and any transactions contemplated by Producers and Clients shall be transacted in euros. PMP shall not be responsible for errors due to currency exchange rates.
You and PMP agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Agreement, your use of or access to the Site, Services, applications, and tools, or any products or services sold or purchased through the Site, Services, applications, or tools will be resolved in accordance with the provisions set forth in this Legal Disputes Section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and PMP have against each other are resolved.
A. Applicable Law
You agree that the laws of the Netherlands, without regard to principles of conflict of laws, will govern the Agreement and any claim or dispute that has arisen or may arise between you and PMP, except as otherwise stated in the Agreement.
B. Agreement to Arbitrate
You and PMP each agree that any and all disputes or claims that have arisen or may arise between you and PMP relating in any way to or arising out of this or previous versions of the Agreement, your use of or access to the Services, or any products or services sold, offered, or purchased through the Site or Services shall be resolved exclusively through final and binding arbitration, rather than in court. The Rules of Arbitration of the International Chamber of Commerce shall govern the interpretation and enforcement of this Agreement to Arbitrate.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the Agreement as a court would.
The arbitrator, and not any local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of the Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or Agreement is void or voidable.
All disputes arising out of or in connection with the present Agreement shall be submitted to the International Court of Arbitration of the International Chamber of Commerce (“ICC”) and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules, as modified by this Agreement to Arbitrate.The ICC’s Rules are available HERE. A form for requesting arbitration proceedings is available on the ICC’s site. In addition to filing this form with the ICC in accordance with its rules and procedures, you must send a copy of the completed form to us at the following address to initiate arbitration proceedings: Polymermarketplace, P.O. Box 7903 1008 AC Amsterdam, The Netherlands.
The arbitration shall be held in the Netherlands at a mutually agreed location. If the value of the relief sought is €20,000.00 or less, you or PMP may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and PMP subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or PMP, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the Netherlands, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different PMP users, but shall be bound by rulings in prior arbitrations involving the same PMP user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
2. Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the ICC’s rules, unless otherwise stated in this Agreement to Arbitrate. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse PMP for all fees associated with the arbitration, which you otherwise would be obligated to pay under the ICC’s rules.
If an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. The remainder of the Agreement and its Legal Disputes Section will continue to apply.
4. Opt-Out Procedure
IF YOU ARE A NEW PMP USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 15 DAYS AFTER THE DATE YOU ACCEPT THE AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO Polymermarketplace, ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, P.O. Box 7903 1008 AC Amsterdam, the Netherlands.
The Opt Out Notice must contain certain information, including your name, address (including street address, city, state and zip code), and the user ID(s) and e-mail address(es) associated with the PMP account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with PMP.
5. Future Changes to the Agreement to Arbitrate
Notwithstanding any provision in the Agreement to the contrary, you and PMP agree that if PMP makes any change to this Agreement to Arbitrate (other than a change to any notice address or site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against PMP prior to the effective date of the change. The change shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and PMP. PMP will notify you of changes to this Agreement to Arbitrate by posting the amended terms on www.polymermarketplace.com at least 30 days before the effective date of the changes and by providing notice through the Site Message Center and/or by e-mail. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the new terms.
Moreover, if PMP seeks to terminate the Agreement to Arbitrate as included in this Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the Agreement to Arbitrate is posted to www.polymermarketplace.com, and shall not be effective as to any claim that was filed in a legal proceeding against PMP prior to the effective date of termination.
C. Judicial Forum for Legal Disputes
Unless you and PMP agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and PMP must be resolved exclusively by a court located in Utrecht, The Netherlands. You and PMP agree to submit to the personal jurisdiction of the courts located within Utrecht, The Netherlands for the purpose of litigating all such claims or disputes.
Disclaimer of Warranties; Limitation of Liability
PMP tries to keep the Site safe, secure, and functioning properly, but PMP cannot guarantee the continuous operation of or access to PMP’s Services. Bid updates and other notification functionality in PMP’s applications may not occur in real time. Such functionality may be subject to delays beyond PMP’s control. The access and use of the Site is at your own risk. PMP gives no warranty that this Site, including any transaction tools and software made available through it, is constantly available, permitted for use in all locations and at all times, usable in connection with any hardware or software, secure or error-free, that defects will be corrected or that it or the server that makes it available are free from viruses or other harmful components.
You agree that you are making use of PMP’s Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, and to the extent permitted by applicable law, PMP excludes all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. PMP accepts no responsibility for and disclaims any liability for all damages, including without limitation, direct, indirect, incidental, consequential, special, exemplary or punitive damages, alleged to have been caused by or in connection with the access to and/or use of the Site or any e-mail message sent by PMP in connection with the Site. In addition, to the extent permitted by applicable law, PMP (including PMP’s parent, subsidiaries, affiliates, officers, directors, agents and employees) shall not be liable, and you agree not to hold PMP responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from: your use of or your inability to use PMP’s Site or Services; pricing, shipping or other guidance provided by PMP; delays or disruptions in our Site or Services; viruses or other malicious software obtained by accessing, or linking to, PMP’s Site or Services; glitches, bugs, errors, or inaccuracies of any kind in PMP’s Services; damage to your hardware device from the use of any PMP Service; the content, actions, or inactions of third parties, including items listed using PMP’s Services; a suspension or other action taken with respect to your account or breach of the Agreement; or your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this Agreement or other PMP policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. Regardless of the previous paragraphs, if PMP is found to be liable, PMP’s liability to you or to any third party is limited to the greater of (a) the amount of fees in dispute not to exceed the total fees, which you paid to PMP in the 12 months prior to the action giving rise to the liability, or (b) €1,000.00.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD PMP AND ITS SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) ARISING FROM OR IN CONNECTION WITH (A) YOUR BREACH OF THIS AGREEMENT, INCLUDING THE DOCUMENTS INCORPORATED BY REFERENCE; (B) YOUR VIOLATION OF ANY LAWS, CODES OR REGULATIONS; AND/OR (C) YOUR VIOLATION OF ANY THIRD PARTY’S RIGHTS, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT AND INVASION OF ANY PRIVACY RIGHTS. THIS OBLIGATION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Any communication sent to you by e-mail is assumed to have been delivered twelve (12) hours from the moment PMP posts it to you, unless there is evidence of earlier receipt.
The information displayed on the Site or contained in any e-mail messages sent by PMP to you in connection with an auction or the Site, and in particular, but without limitation, any information related to the quantity, prices, routes, type of loads, etc., which are subject to any auction carried on the Site are strictly confidential and you shall not disclose the same to any third party. If you are not the named recipient of any e-mail sent by PMP, nor a person with proper authority with delivering such an e-mail to the named recipient, you are deemed to have received the e-mail in error. In such an event, please immediately forward the e-mail to [email protected] with a note that you received the e-mail in error and then delete the e-mail from your computer. PMP shall treat as strictly confidential and shall not disclose to any other registered user of the Site any information relating to your bids and any other service awarded to you nor any other confidential information received from you for the purpose of your participation on the Site.
PMP shall not be deemed to be in breach of this Agreement, and will have no liability to Producers or Clients whatsoever, if PMP is prevented from performing any of its obligations hereunder, in whole or in part, as a result of an act of God, war, terrorism, civil disturbance, court order, third party performance or nonperformance, or other cause beyond PMP’s reasonable control.
As a user of the Site, you shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services and Site, including your bidding on, listing, purchase, solicitation of offers to purchase and sale of items.
This Agreement has been drafted in the English language which shall be considered the official version unless specifically prohibited by local law. The interpretation of the provisions of this Agreement in the English language shall govern and in case of any discrepancy between the English and other language texts, the English text shall prevail.