Registered User Agreement
THIS REGISTERED USER AGREEMENT (this "Agreement") sets out the terms and conditions under which you may access to use the services ("the Service") of our e-procurement platform ("the Platform") which allows you to buy and sell marine fuels and marine-related products and services and to gain access to the relevant industry information and services through the Internet ("Our Site").
This Agreement shall be in effect from the date you receive from us an ID and Password which are more particularly described hereinafter and shall continue thereafter for successive twelve-month periods unless and until:
(i) either you or we provide written notice to the other not later than 30 days prior to the end of any calendar month of an election to terminate this Agreement at the end of such month;
(ii) either of us during the term hereof on ten days written notice in the event of a breach in the performance of any obligation of the otherin accordance with the terms and conditions hereof, so long as such notice sets out the nature of such breach and such breach is not cured within such ten days;
(iii) terminated in accordance with the provisions of clause 11 hereof.
3. Fees and Charges
(a) During the term of this Agreement, you shall pay to us all fees, charges and other amounts as set out in the Fee Schedule hereto ("the Fee Schedule"). We shall submit to you invoices once per month setting out all fees and charges payable by you in accordance with the Fee Schedule, which are due and payable immediately upon dispatch. You agree to pay such fee whether or not you and the other party to a transaction subsequently enter into a binding agreement and that, if you do not pay an invoice within 30 days of receipt, interest will accrue on all unpaid balances at a rate of 1.5% per month, or the maximum amount allowed by law, whichever is the lesser.
(b) We shall have the rights to revise the fees and charges as set out in the Fee Schedule and hereunder at any time and the revisions shall in effect upon posting on Our Site. You shall have the right to terminate this Agreement as a result of any change by giving us 30 days' written notice of termination provided you have satisfied all of your obligations to us in accordance with this Agreement.
(c) If a transaction has been the subject of the Platform, whether or not a binding agreement in respect thereof is concluded off Our Site, the selling party remains liable to pay us the applicable fees and charges for such transaction. You agree that you shall not circumvent the payment of the charges and fees payable to us. If you attempt to circumvent Our Site, we may immediately and either permanently or temporarily revoke, in our absolute discretion, your membership privileges and use of the Service.
4. Equipment and Certain Operating Procedures
(a) Computer Equipment:
You shall provide your own communication line(s), Internet Service Provider, and any equipment(including but not limited to computers, modems and any other communication equipment) and technology necessary in order for access to and use of Our Site at your own costs. You shall also responsible for the provision of and payment for all telecommunications services necessary to access Our Site and use the Service.
(b) Access to Our Site:
Access to Our Site requires the use of Microsoft Internet Explorer, version 4.0 or higher, or Netscape Navigator 4.0 or higher. Our Site will usually be available 24 hours a day, 7 days a week, but in our entire discretion may be made unavailable from time to time for any reason. You agree that we shall not be held liable for any damages arising from any interruption, suspension or termination of Our Site.
(c) Registration as a Member:
You, whether a buyer or a seller, must register as a Member to use the Platform. You may register as a Member on line at www.cosconetwork .com or directly with COSCO NETWORK LIMITED by way of completing and submitting a Membership Application. After your registration process has been completed, you will receive via email an identification code ("ID") which means a unique alphanumeric string for identifying the user to the Platform and a password ("Password") which means an alphanumeric string to be entered in conjunction with an ID in order to validate that ID and gain access to the Platform exclusively for use by each Member.
(d) ID and Password:
(i) Authorized User:
You may allow one or more of your employees to have access to and to use the Platform as provided in this Agreement. Each employee shall be authorized to act on your behalf and to bind your company and must be identified as such on the Membership Application. You may add new authorized persons or delete existing authorized persons by transmitting to us a new designation in an updated Membership Application by e-mail.
You shall take such actions as are necessary to maintain the security and proper use of the ID and the Password allocated to you and must take all necessary steps to ensure that they are kept confidential and to prevent the unauthorized use of, each ID and Password. You shall notify us promptly in the event that you aware, or have reason to believe, that an unauthorized party has gained access to an ID or a Password.
We shall be absolutely entitled to assume that any person gaining access to the Platform by using an ID and a Password is authorized to do so by the assignee of the ID and Password. You hereby authorize us and any party claiming through us to rely upon any information or instructions set forth in any data transmission by means of the assigned ID and Password, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of the Platform. You shall be solely liable for all activities conducted through, charges and expenses incurred and any other loss or damage whatsoever caused as a result of the use of the ID and Password assigned, whether or not authorized by you. You hereby agree to indemnify, defend, and hold us harmless from any claims, proceedings, or damages based upon any use, misuse, or unauthorized use of your assigned ID and Password.
(e) Certain Consequences of System Malfunction:
You understand that, in the event of a system malfunction or system error, regardless of the cause thereof, that affects a transaction or purported transaction involving you and any other party using Our Site, we may withdraw a confirmation that was issued with respect to such transaction or take other corrective action that we deem reasonable under the circumstances, and such withdrawal or other action may have the effect of canceling such confirmation. You confirm that you assume all risks relating thereto.
5. Your Use of the Platform
(a) Purpose of Use:
You shall use the Platform for the purpose of making offers, counter-offers and acceptances in relation to purchases and sales of marine fuels or other marine-related products or services. In addition, you shall not enter an offer to sell or an offer to purchase in the same transaction on the Platform, directly or indirectly through any of your subsidiaries, sister companies or other affiliates or any agent thereof acting for any of such parties, including without limitation, accepting or countering any offer made by any of your affiliates; and in connection therewith, you agree that we may take actions,determined in our sole discretion, to prevent such transactions from occurring but no such actions by us shall relieve you of your obligations as described in this sentence.
(b) Your Information:
You hereby represent, warrant, confirm and acknowledge that you are and will continue to be during the term of this Agreement a commercial purchaser or seller, as the case may be, broker or marketer for marine fuels or other marine-related products and services, that you will participate as such in transactions and that you are not an individual speculator, commodity pool, passive collective investment vehicle or other non-commercial entity. In addition, you represent that you have the financial and physical ability to take, or secure customary arrangements to take, physical delivery of each product with respect to which you will enter purchase-related information on the Platform. From time to time, at our request, you will promptly deliver such information that we may reasonably request to support the representations made by you in this Section 5(b). We may waive portions of the representations and warranties contained herein in the event you make available other documentation or information satisfactory to us in our sole discretion, which may include among other things one or more letters of credit or guarantees. We reserve the right in our sole discretion to disapprove any application.
You shall proceed with diligence to negotiate with the other party to a transaction facilitated using the Platform and to embody in a binding contract off-site the terms established as a result of such transaction, as well as such other customary terms as are commonly used in the industry.
(d) Transaction Information:
You hereby assume sole responsibility and liability for the accuracy and adequacy of information entered on the Platform using both an ID and a Password assigned to you, and for all results obtained from the use of Our Site. You agree promptly to notify us in the event any inaccurate, incomplete or incorrect information relating to you or your transactions appears on Our Site. If applicable and within your control, you shall immediately withdraw and correct such information. You shall also select trading partners carefully. We are not responsible for any damages caused by or related to inaccurate, incomplete, or incorrect information.
(e) Compliance with Law:
You and the other party to a transaction are responsible for compliance with all laws, regulations, administrative decrees and other requirements of any government or competent authority necessary for the conduct of the transaction. You agree not to use Our Site to facilitate illegal agreements in restraint of trade or to engage in collusion or other conduct which is or may be anti-competitive. You hereby covenant and agree that you shall not use Our Site or the information included to engage in any unlawful transaction.
(f) Antispam and Integrity:
In an effort to protect the Members and all the users of Our Site, We strictly prohibit you from using "spam" and any activities that constitute Internet abuse to seek referrals, in particular and without limitation you are prohibited from:
(i) posting material that is obscene, defamatory, threatening, harassing, abusive, hateful, or embarrassing to another user or participant, or posting sexually-explicit image, advertisements or solicitations of business on Our Site;
(ii) sending electronic mail messages addressed to a recipient which messages are not sent at the request of or with the express consent of the recipient;
(iii) using any technological device or software program including but not limited to any viruses, trojan horses, worms, time bombs or cancelbots intended to damage or interfere with the operation of, or any transaction being conducted on Our Site;
(iv) surreptitiously intercepting or expropriating any system, data or personal information from Our Site;
(v) taking any action which imposes an unreasonable or disproportionately high load on the infrastructure of Our Site including but not limited to any unsolicited mass e-mailing techniques;
(vi) committing off-line activities that though not considered as spam, but similar in nature, including but not limited to distributing flyers or leaflets regarding private property that are prohibited by applicable laws, rules and regulations.
6. e-Procurement Process:
(a)Starting an Inquiry:
A Member Buyer may schedule an inquiry by logging into the Platform. Buyers will be asked to specify the inquiry details. If Buyers wish, Buyers may invite selected Member Sellers to participate in the inquiry. Once buyers have completed the inquiry details, click on the "Confirm" button. Buyers will then have the opportunity to review this information carefully for accuracy and confirm by pressing the "Confirm" button. If an error was made, Buyers may modify your inquiry details.
(b)The Bidding Process:
Invited Sellers may receive Buyer's inquiry by fax or by email. Sellers may view the Inquiries submitted by Buyers by logging into the Platform. If Sellers wish to bid on an Inquiry, Sellers may place a quotation by clicking on the appropriate inquiry and then filling in all the details and then clicking on the "Confirm" button. Before confirming the quote, Sellers will have the opportunity to confirm the accuracy of the information provided. Sellers may continue to add or modify offers until the time Buyers have specified as the inquiry closing time. Prior to the close of the inquiry Buyers will see the quotations that have been placed by the Sellers. Buyers cannot choose any quote placed by a Seller during the duration of the inquiry. Buyers may monitor the status of the quoting with respect to a particular inquiry, their previous inquiries, or their membership profile, which Buyers may update.
(c) Nondisclosure of Identity and Quotations:
Sellers placing quotations on an inquiry are anonymous to each other, and Sellers are unable to see each other's quotations, but the Buyer knows their identities. The Buyer shall not disclose the identity of and the quotation by any Seller placing a quotation on an inquiry to any other Seller on the same inquiry.
(d)Conclusion of the Inquiry:
The inquiry will automatically close to quoting at the Inquiry Closing Time. From the Inquiry Closing time Buyers will have to select the winning quote. if Buyers do not accept a bid from a Seller within a specified time, the validity of the Sellers' offers will expire and Buyers will no longer be able to select any of the quotations. Buyers may set an automatic decision rule which will allow the automatic selection of the winning quotation on their behalf.
(e)Acceptance of Bid:
When a member Buyer chooses the winning quotation by clicking on "accept", the Platform will automatically send a confirmation of the transaction to that Buyer and to the winning Seller. The confirmation notice includes the inquiry details, the terms and conditions of the accepted quotations and the contact information of the Seller. Upon the transmission of the confirmation of terms, we are no longer involved with respect to the delivery of the marine fuels or marine-related products or services that were the subject of the Inquiry. The winning Seller and the Buyer are solely responsible in connection with completing all of the legal, financial and logistical requirements related to the transaction. The winning Seller is required to contact the Buyer within one business day of its receipt of the confirmation. Within several weeks after a bid is accepted and the Inquiry closes, we may send Buyer an email requesting feedback on the winning Seller.
7.Our Involvement in the Transaction
(a) Eventual Contract:
In Our Site we have provided you with an Internet-based vehicle to facilitate sales or purchases of marine fuels and marine-related products and services and to establish a connection so that you may agree with the other party upon the terms and conditions of each transaction. We do not act as broker for you or any other party. The specific terms and conditions for the sale and purchase of marine fuels and marine-related products and services (such as pricing, warranties from sellers, delivery, etc.) are your responsibility to agree with the other party, subject to compliance with the requirements set out herewith. Buyers or sellers using the Platform have the option to add their own terms and conditions within the designated area on the "Contractual Terms" section of the Platform, subject always to the seller's final acceptance and to the conclusion off-site of a binding contract. We do not set or endorse any price, grade, delivery date, quantity or contract term for marine fuels or other marine-related products or services offered for sale and are not responsible for delivery of goods, payment of purchase price or other contractual performance.
As we are not involved in your dealings with the other party to a transaction except as provided herein, you agree to release us (and our officers, directors, shareholders, employees and agents) from any and all claims, demands and damages, of any type and nature, disclosed and undisclosed, arising out of or in any way connected directly or indirectly with use of Our Site, including without limitation any dispute with another party using Our Site relating to the quality, payment or delivery of products, breach of any warranty or representation by or to you from or to any other party or any other dispute relating to Our Site.
8. Intellectual Property Rights
(a)All content included in Our Site and all information and materials supplied by us in connection with this Agreement, all modifications and revisions thereto and all copyrights, trademarks, patents, trade secret rights and other intellectual and proprietary rights, title and interest relating thereto, shall at all times be and remain our exclusive property, or that of our successors and assigns, the use of the same by you being permissive and for non-commercial, informational and personal purposes only. No reproduction of any part of Our Site may be sold or distributed for commercial purpose (whether for monetary reward or not) nor shall it be modified or incorporated in any other work, publication or site, whether in hard copy of electronic format without our prior written approval. This sub-clause (a) shall survive the termination of this Agreement.
(b)You shall bring to our attention of any infringement or suspected infringement by any party of our intellectual property rights in Our Site.
(c)You may not copy or distribute any third party materials published on Our Site in any way for commercial purposes without express written permission from the copyright owner.
(a) Your Obligations:
You agree that the information made accessible to you through your use of Our Site is intended for your sole use and not for redistribution in any form outside your company.
(b) Our Obligations:
10. Disclaimer and Limitation of Liability
We disclaim any warranty that any transaction-related information or information elating to you or any other party that set forth on Our Site is true, complete or accurate. Your access to and use of Our Site is at your sole risk and is provided on an "AS-IS" and "AS AVAILABLE" basis. We make no representation or warranty of any kind, express or implied, including without limitation, any implied warranties of merchantability or fitness for any particular purpose or arising from a course of dealing, usage or trade practice or any warranties on exercise of reasonable care and skill in providing or delivering any services on or through Our Site or the timeliness of services offered or provided on Our Site. You acknowledge and agree to accept the risk that the operating system and software included in Our Site, as well as all your transaction-related information or that of any other party that is included on Our Site, from time to time may contain inaccuracies and may be adversely affected by computer viruses or unknown programming difficulties resulting in incorrect information or system malfunctions or shut-downs; provided, however, that we agree to use reasonable commercial efforts to correct any inaccuracies expressly made known to us and to correct or remove (as appropriate) any computer viruses and other system malfunctions and shut-downs that are within our control. In addition, we make no representation or warranty regarding the creditworthiness or any other matter regarding any other party admitted as a registered user for Our Site. We shall not be liable for any liability, loss, damage, cost or expense caused from error, omission, interruption, deletion, defect, delay in operation or transmission,loss of data, communication or line failure, theft or destruction, unauthorized access to, alteration of or use of Our Site or the actions of any other party involving the use of Our Site. You agree that you are solely responsible and liable for, and will indemnify, defend, and hold us harmless against, any losses, claims, suits, or damages that arise from regulatory compliance or non-compliance related to petrochemical trading on Our Site.
(b) Limitation of Liability:
In no event shall we or any of our subsidiaries, affiliates, parent companies, our officers, directors, shareholders, employees or agents be liable directly or indirectly to you or any party claiming through you for any direct, indirect, incidental or special, punitive, exemplary or consequential damages, including without limitation, loss of profits, arising out of this Agreement, the use of Our Site, the Service, the inability to use the Service or those resulting from any goods or services purchased or obtained or messages received or transactions entered into through the Service whether based on warranty, contract, tort or any other legal theory and whether or not we are advised of the possibility of such damages and losses. The limitation of liability contained in this Agreement will apply to the fullest extent permitted by applicable laws. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no events shall our total liability to you for all damages, losses and causes of action whether in contract, tort including, but not limited to, negligence or otherwise) exceed the amount paid by you, if any, for accessing Our Site.
(a) We may terminate this Agreement immediately and permanently or temporarily suspend your right of access to Our Site in the event that:
(i) you breach or violate any of your representations, warranties, agreements or covenants set out in this Agreement.
(ii) we receive any complaint from any of your trading parties to the effect that you have not consummated, or have refused to consummate,one or more transactions on the terms set out in the confirmation generated by the Platform.
(iii) we determine, in our sole discretion, that you have engaged in any unlawful market manipulation or have used Our Site for a purpose other than that for which it was designed.
(iv) you shall at any time become insolvent or bankrupt or enter into any arrangement with or for the benefit of your creditors or be wound-up compulsorily or voluntarily (otherwise than for the purpose of a bona fide reconstruction or amalgamation without insolvency) or have a receiver appointed over all or any part of your undertaking or your assets or suffer any distress or execution or cease or threaten to cease to carry on business.
(b) Upon termination of this Agreement howsoever caused, you must destroy all information and materials obtained from Our Site and all copies thereof, whether made under the terms of this Agreement or otherwise.
12. Suspension of Service
Without prejudice to any other right or remedy available to us, we shall be entitled without notice to you to suspend indefinitely the provision of the Service and the ID and User Password allocated to you in the event that
(a)we are or may with the giving of notice or the passage of time be entitled to terminate this greement for any reason; and
(b)the performance of the Service by us is delayed, interrupted or otherwise prevented owing to events or conditions beyond our control including, without prejudice to the generality of the foregoing, storms, floods or other acts of God, the action of civil, military or governmental authorities, riots, civil commotion or strikes, acts of any government, power cuts, the failure of any device which is itself or contains devices which are themselves, dependent upon electricity for their operation to conform to the statutory requirements, inability to obtain energy or suitable components, material, equipment or transportation, failure or non-operation of any telecommunications, telegraph and computer networks used by us and the actions or neglect of any third party used by us to discharge its obligations under this Agreement including without limitation any domestic and international telecommunications and telegraph networks used in connection with the provision of the Service.
(a) Each notice, demand or other communication required or permitted to be given under or in connection with this Agreement shall be in writing and delivered personally or sent by post or by telex, facsimile or electronic mail:
(i) if to COSCONETWORK.com Ltd to its CEO at Unit 3803A & 5-6, 8/F, Central Plaza, 18 Harbour Road, Wanchai, Hong Kong; fax (852) 2500-2959;
(ii) If to you, at the address, fax number or E-mail address specified in your Membership Application, as from time to time duly amended and notified to us.
(b) Any such notice, demand or other communications so addressed to the other party shall be deemed to have been duly given if :
(i) given or made by letter and delivered personally by hand or courier, when actually delivered to the relevant address;
(ii) given or sent by registered mailed on the date which is two (2) business days (in the case of mail sent to a local address) or seven (7) business days (in the case of mail sent to an overseas address) after the posting thereof;
(iii) sent by telex, telegram or telecopier during normal business hours(that is 9:00 to 17:30 local time on a business day in the place to which it was sent), at the time of transmission; or
(iv) sent by E-mail, at the time if left the mailbox of the party serving the notice if such time was during normal business hours, or at the beginning of the next business day in the place to which it was sent if such time was outside normal business hours.
(a) Release and Indulgence:
No waiver by either of us of any default or breach by the other of any obligation under this Agreement shall operate as a waiver of any continuing or future default or breach.
Non of the rights or obligation of the parties hereto under this Agreement shall be assigned or transferred without the express prior written consent of the other party hereto.
(d) Binding Effect:
You agree that this Agreement shall inure to the benefit of and be binding upon us and our respective successors and assigns. You and we intend that this Agreement shall confer no right or benefit and impose no obligation on a person not a party to this Agreement. Neither this Agreement nor the performance hereunder shall be deemed to have created a partnership, agency, joint venture or other business enterprise or relationship between us other than that of independent contractor.
Headings of the articles, sections, subsections, exhibits and schedules of this Agreement have been inserted for convenience of reference only, shall not constitute a part of this Agreement and shall not affect in any way the construction of this Agreement.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
We may amend or modify the terms of this Agreement as we deem necessary at any time by posting on Our Site. The amended terms shall be effective automatically upon being posted on Our Site. You agree that your continued use of Our Site shall constitute your acceptance of and agreement to all new or modified terms.
In the event of conflict between any terms hereof and any other terms in the Site Rules or Privacy olicy, the terms of this Agreement shall prevail.
15. Governing Law and Jurisdiction
COSCO Network Limited
Room 4808, 48/F., Cosco Tower, 183 Queen's Road Central, Hong Kong
Tel (852)2809-7188 Fax (852)2857-5538
© 2005 COSCO Network Limited. All
RULES and PRIVACY