Chemical Purchase and Sale Agreement

Effective date: 08/14/2023

This Chemical Purchase and Sale Agreement (the “Agreement”) is entered into between each Buyer and Seller to a Sale made via the Platform (each, a “Party” and, collectively, the “Parties”).  The Platform is offered by Covalent Technologies, Inc. (“Covalent”).  Each User is required, as a condition to accessing the Platform, to enter into the Covalent Terms of Service, between such User and Covalent (the “Terms of Service”).

This Agreement is incorporated by reference into each Purchase Order entered into through the Platform.  By entering into a Purchase Order, each User agrees to be bound by the terms and conditions of this Agreement, either as the Buyer or Seller, as applicable.  Unless a Purchase Order specifically lists Covalent as either a Buyer or Seller, Covalent is not a party to this Agreement or any Purchase Order.  Covalent is not responsible for enforcing this Agreement or any Purchase Order.  Except where Covalent is the Buyer or Seller (as applicable), it will not be liable for any breach of these Agreement or any Purchase Order by a Buyer or Seller.  

1. Definitions.

(a) “Buyer” means a User who seeks to purchase Materials via the Platform.

(b) “Covalent Fee” means a transaction fee charged by Covalent for a Sale. The Covalent Fees are set by Covalent for each Sale and will be indicated prior to each Sale. Covalent Fees are borne by the Buyer. More information on Covalent Fees is set forth in the Terms of Service.
(c) “Contract Quantity” means the quantity of Materials Seller will Deliver to Buyer as specified in a Purchase Order.

(d) “Delivery Date” means the date or period during which Delivery will occur, as specified in the applicable Purchase Order.

(e) “Materials” means chemical materials identified on the Platform by an applicable Seller as being available for purchase.

(f) “Platform” means the chemical purchase and sale marketplace made available by Covalent at, as it may be modified from time to time, in the form made available to Users by Covalent.

(g) “Purchase Order” means a purchase order for Materials entered into between Buyer and Seller via the Platform, including any associated invoice.

(h) “Sale” means the sale of Materials via the Platform, pursuant to a Purchase Order between a Buyer and a Seller.

(i) “Seller” means a User who seeks to sell Materials via the Platform.

(j) “Specifications” are the Materials specifications listed by Seller via the Platform and/or as agreed in the applicable Purchase Order.

(k) “User” means a registered user of the Platform. References to “Users” means both Buyers and Sellers.

2. Purchase and Sale.

(a) Purchase Orders. Purchase Orders may be entered into by Buyers and Sellers via the functionality of the Platform as facilitated by Covalent.  Each User understands certain identifying details regarding other Users may be obfuscated, even after a Sale is consummated, as permitted by the functionality of the Platform, as required by Covalent, and/or as set forth in the applicable Purchase Order.  Seller agrees to sell, and Buyer agrees to purchase, Materials according to this Agreement and the applicable Purchase Order.  Purchase Orders will become a legally binding contract subject to this Agreement once both Buyer and Seller click “I accept” or otherwise indicate their agreement to the terms of the Purchase Order in the manner required by the Platform or otherwise required by Covalent. Purchase Orders may be entered into in multiple parts (including where an invoice is received separately from the order itself). Certain listings may be contingent on Buyer and Seller agreeing to particular terms regarding the timing, delivery and/or payment for the Materials (such listings, “Contingent Listings”), in which case a Purchase Order for such Contingent Listings will only become binding if and when the Buyer and Seller have mutually agreed to such timing, delivery and/or payment terms, as evidenced in an executed Purchase Order.  For clarity, no Purchase Order shall be legally binding on the Parties unless and until mutually agreed by the Parties. Unless otherwise agreed by the Buyer and Seller, each Sale is final.

In any Sale, the Covalent-facilitated Purchase Order will prevail over any other conflicting purchase orders or invoices related to such Sale, including any automatically-generated documentation from either Buyer’s or Seller’s sales software.

(b) Pricing. Materials will be purchased and sold in the quantities and at the price specified in the applicable Purchase Order (the “Materials Price”).  As a facilitator of the Platform as a marketplace, Covalent will apply sales tax to each Sale as required by applicable law (“Materials Sales Tax”) and charge the Materials Sales Tax to Buyer as an added cost to the Materials Price.  To the extent not already addressed by the collection of Materials Sales Tax as contemplated by the foregoing sentence, Buyer and Seller will each pay the taxes lawfully levied upon it by any governmental authority. The Materials Price will include any applicable shipping and handling fees (“Materials Transport Fees”);  the Materials Transport Fees may not be listed as a separate line item.

(c) Payment. Buyer will pay the Materials Price, plus the Covalent Fee and the Materials Sales Tax, to Covalent (the “Total Buyer Price”).  The Covalent Fee may or may not be listed as a separate line item. Covalent will remit the Materials Price to the Seller in accordance with the Terms of Service.  Buyer will pay the Total Buyer Price simultaneously upon execution of the applicable Purchase Order or, if agreed as set forth in such Purchase Order, on or before the applicable payment due date set forth in the Purchase Order.  All payments will be additionally be subject to the “Payments for Sales” section of the Terms of Service; overdue payments may incur late fees payable to Covalent, as described in the Terms of Service.  Payment will be made by electronic funds transfer, or by other mutually agreed upon method (via the applicable Purchase Order), in immediately available funds.  The Parties acknowledge and agree that, in addition to any remedies set forth herein, Covalent reserves the right to cancel any Sale if payment is not received in full as required by the applicable Purchase Order.

3. Delivery and Inspection; Default.

(a) Delivery Seller will ensure all Materials are appropriately packaged for transport. Seller will arrange for delivery of Materials FOB to Buyer as required by the Purchase Order (upon such Materials being loaded on board the applicable carrier's vessel/vehicle, “Deliver” or “Delivery”).  Seller and Buyer agree that, although Materials will be purchased through the Platform, Seller remains fully responsible for ensuring timely Delivery, and Covalent is not and will not be liable for any delay or failure of a Seller to complete Delivery.  Except as contemplated above with respect to the Materials Transport Fees, Buyer and Seller will each bear its own expenses associated with Delivery.  Buyer will inspect each Delivery promptly upon receipt, and in any event within ten (10) days after receipt (the “Inspection Period”).

(i) Seller’s Failure – Patent Defects.  If, during the Inspection Period, Buyer discovers that a Delivery fails to comply with this Agreement (including if a Delivery (1) does not contain the entire Contract Quantity, (2) has not been delivered by the Delivery Date, or (3) all or part of the Contract Quantity does not conform to the applicable Specifications)(any such failure, a “Defect”), and such Defect is not excused by Buyer’s failure to pay as described in subsection (iii) below, then Buyer shall notify Seller during such Inspection Period (a “Defect Notice”).  The Defect Notice will include reasonable detail regarding the nature and extent of the Defect.  If Seller does not dispute that the Defect exists as described, Seller will promptly (and in no event within fifteen (15) days), at no additional cost to Buyer, correct such Defect by, at Buyer’s option, refunding the Materials Price paid by Buyer under the applicable Purchase Order for the Materials suffering from the Defect, or replacing the Materials suffering from the Defect.  If Seller disputes whether the Defect exists, or disputes the nature or extent of the Defect, the Parties will submit the dispute to binding arbitration in accordance with Section 6 below.(ii) Seller’s Failure – Latent Defects.  If Buyer discovers a Defect after the initial Inspection Period, including after the Materials have been incorporated into a Buyer product, the Parties shall first attempt to resolve such dispute via discussion between the designated representative for each Party noted in the applicable Purchase Order. If such dispute remains unresolved after such discussions, it shall be submitted to binding arbitration in accordance with Section 6 below.

(iii) Buyer’s Failure. If Buyer fails to accept and pay Covalent for, all or part of the Delivered Materials within ten (10) days after receipt of the Delivery by Seller, and such failure is not excused by Seller’s failure to perform as described in subsections (i) and (ii) above, Seller will inform Buyer of such failure and Buyer will immediately comply with its obligation to accept and/or pay (in immediately available funds) for such Materials.  If Buyer continues to persist in such failure, the parties shall submit the dispute to binding arbitration in accordance with Section 6 below, and further, Seller may cancel any other outstanding undelivered Sales and refund any amounts paid therefor to Buyer.

(iv) Contacting Covalent.  Without limiting the Users’ obligations hereunder, Buyer or Seller may contact Covalent at any time at to request assistance with resolving any disputes regarding Deliveries, as further described in the Terms of Service. Additionally, if Covalent did not provide Buyer or Seller with contact details of the other in connection with a Sale, the applicable Party must promptly contact Covalent to obtain such contact details, in order to comply with the contact and notice requirements in this Section 3. However, Covalent is not obligated to resolve any disputes, and cannot guarantee any particular result.  The Covalent Fee and the Material sales Tax are non-refundable, even if the Materials Price upon which such Covalent Fee and Materials Sales Tax was calculated is refunded by Seller.

(c) Duty to Mitigate. Each Party agrees that it has a duty to mitigate damages and that it will use commercially reasonable efforts to minimize any damages it may incur as a result of the other Party’s performance or non-performance of this Agreement or any Purchase Order.

4. Representations and Warranties; Disclaimer

(a) Each Party represents and warrants to the other Party that (i) it is a legal entity, duly formed and validly existing and in good standing under the laws of the state of its formation, (ii) it has the full power and authority to execute, deliver, perform and carry out the transactions contemplated in each Purchase Order and will comply with all applicable laws in connection herewith; (iii) its execution, delivery and performance of the transactions contemplated in each Purchase Order have been duly authorized by all requisite entity action, and each Purchase Order entered into by such Party has been duly executed and constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles; (iv) no authorization, consent, notice to or registration or filing with any governmental authority is required for the execution, delivery and performance by it of its obligations under a Purchase Order; (v) none of the execution, delivery and performance by it of its rights and obligations under a Purchase Order conflicts with or will result in a breach or violation of any law, contract or instrument to which it is bound; (vi) there are no proceedings by or before any governmental authority, now pending or threatened, that if adversely determined could have a material adverse effect on such Party’s ability to perform the Party’s obligations under a Purchase Order; and (vii) it is acting for its own account, has made its own independent decision to enter into each Purchase Order and as to whether such Purchase Order is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of entering into such Purchase Order.

(b) Seller Representations and Warranties. Seller agrees, represents, and warrants to Buyer that as of the date it enters into the applicable Purchase Order, (i) Seller has not sold the Materials to any other person or entity, and that at the time of Delivery all rights, title, and interest in the Materials are free and clear of all liens, taxes, claims, security interests, or other encumbrances of any kind whatsoever; (ii) the Materials and the preparation and packaging thereof will comply with the Specifications, all applicable laws, and generally accepted industry standards upon Delivery; and (iii) all information its provides regarding Materials is accurate and complete. (c) Disclaimer.  Except as expressly set forth in this Section 4, each Party disclaims all representations and warranties, express and implied, regarding the subject matter of this Agreement.

5. Confidentiality. Either Buyer or Seller (each, a “Disclosing Party”) may disclose or make available to the other (each, a “Receiving Party”), either directly or through Covalent, information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”).  Confidential Information of a Party includes such Party’s identity (if shared), the fact such Party is selling or buying Materials, and (in the case of Seller) the Materials Price charged by the Seller.  Confidential Information does not include information that: (a) is generally publicly available at the time of disclosure or becomes generally publicly available through no fault of the Receiving Party; (b) is rightfully known to the Receiving Party at the time of disclosure; (c) is rightfully obtained by the Receiving Party after disclosure hereunder on a non-confidential basis from a third party; or (d) is independently developed by the Receiving Party. The Receiving Party shall not disclose the Confidential Information to any person or entity, except to the Receiving Party’s employees or consultants who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder, and shall not use the Confidential Information except as necessary to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Receiving Party shall first, to the extent permitted by applicable law, have given written notice to the Disclosing Party and made a reasonable effort to obtain a protective order (at Disclosing Party’s expense).

6. Dispute Resolution.  The Parties will submit any disputes arising under this Agreement (including any Delivery disputes that could not be resolved via the processes set forth in Section 3) to binding arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.

7. General.(a) Notices.  All notices, requests, demands, offers, and other communications required or permitted to be made under a Purchase Order or these Agreement will be in writing and will be effective only if delivered: (i) in person, (ii) by a nationally recognized delivery service, (iii) by United States Mail, or (iv) by electronic mail, upon confirmation of receipt.  Notices shall be delivered to the address set forth in the applicable Purchase Order.  Either Party may change its address or contact person(s) for notices by giving notice of such change consistent with this clause.

(b) Audit and Regulatory Inspection and Cooperation.  Each Party will maintain adequate records to assist the other in meeting any reporting or registration requirements associated with the Materials that are required by applicable law, including in connection with any recalls of a consumer product that incorporates the Materials.  Each Party will provide such records promptly upon request from the other and will cooperate with any inspection required by a regulatory agency or other legally-compelled inspection related to Materials Delivered hereunder.

(c) Entire Agreement; Additional Terms.  These Agreement and each Purchase Order entered into by the Parties hereunder constitute the entire agreement between the Parties concerning the subject matter hereof, and supersede all previous communications, representations, or contracts, either written or oral, that purport to describe or embody the subject matter hereof. There are no oral understandings, terms, or conditions and neither Party has relied upon any representation, express or implied, not contained in a Purchase Order or these Agreement.  A Purchase Order may contain additional terms applicable to such Purchase Order, in which case (i) such additional terms will apply only to such Purchase Order and (ii) such additional terms will supersede any conflicting term in these Agreement solely with respect to such Purchase Order, but cannot be used to create any obligation for Covalent.  Nothing in this Agreement or any Purchase Order shall amend the Terms of Service.

(d) No Third-Party Beneficiaries There are no intended third-party beneficiaries hereof, and these Agreement should not be construed to create or confer any right or interest in or to, or to grant any remedies to, any third party as a beneficiary of these Agreement or of any duty, obligation, or undertaking established herein.

(e) Severability. Any part hereof that is or becomes invalid, illegal, or unenforceable may be severed from the remainder hereof, and to the extent possible, the Parties will use reasonable efforts to replace any such part with provisions that preserve their original intent.

(f) Force Majeure. If a Party is rendered unable, wholly or in part, by events or circumstances beyond its reasonable control, including without limitation acts of God, fire, flood, earthquake, war, riots, terrorism, pandemic, or strike (collectively, “Force Majeure”) to carry out its obligations with respect to one (1) or more Purchase Order(s), then upon such affected Party giving notice and full particulars of such Force Majeure as soon as reasonably possible after the occurrence of the cause relied upon, the obligations of the affected Party will, to the extent it is affected by such Force Majeure, be suspended during the continuance of said inability, but for no longer period, and the Claiming Party will not be liable to the other Party for, or on account of, any loss, damage, injury or expense resulting from, or arising out of such event of Force Majeure. The Party receiving such notice of Force Majeure will have until the end of five (5) business days following such receipt to notify the affected Party that it objects to or disputes the existence of an event of Force Majeure. If such Force Majeure lasts longer than sixty (60) days, the Party so affected by the Force Majeure may terminate the affected Purchase Order without further liability by providing notice to the other Party.

(e) Waiver, Amendment. None of the terms or conditions set forth herein may be amended or waived with respect to a previously executed Purchase Order except in writing and signed by the Parties. Notwithstanding the foregoing, Covalent may update this Agreement from time to time in its sole discretion, and such updated Agreement will apply to any and all Purchase Orders entered into following the date that such updated Agreement are posted or made available through the Platform.  For clarity, no change or update to this Agreement will apply to Purchase Orders entered into at the time of such change or update.  The Parties agree that no waiver, amendment, or modification of this Agreement will be established by conduct, custom, or course of dealing. The failure of a Party to require performance of any provision of this Agreement will not limit such Party’s right to seek such performance at a later time. Similarly, a Party’s waiver of its rights with respect to any default or any other matter arising in connection with this Agreement will not be considered a waiver with respect to any subsequent default or matter.

(f) Change in Law. If any statutes, rules, regulations, permits or authorizations are enacted, amended, granted or revoked which have the effect of changing the transfer and sale procedure set forth in this Agreement so that the implementation of this Agreement becomes impossible or impracticable, the Parties hereto agree to cooperate and negotiate in good faith to cause the Sale contemplated in the applicable Purchase Order to comply with such new statutes, regulations, or rules in order to maintain the original intent of the Parties under these Agreement.