Effective date: 08/14/2023
Welcome to Covalent Market. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services, Platform (as defined herein) and applications (collectively, the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at support@covalentmarket.com.
These Terms of Service (the “Terms”) are a binding contract between you or, if you are entering into these Terms on behalf of your organization, such organization (“you” or “User”) and
Covalent Technologies, Inc. (“Covalent,” “we” and “us”). Note that any one User may use the Services variously as a Buyer or Seller (as such terms are defined herein). Users may also use the Services without being required to enter into a sale transaction as a Buyer or Seller. When we use the word “you” or “User” in these Terms, it refers to any User of the Services, regardless of whether such User is using the Services as a Buyer or Seller (or neither), while if we use one of those specific terms, it only applies to that category of User. Your use of the Services in any way means that you agree to all of these Terms, and these Terms (as updated or otherwise modified by us as permitted herein) will remain in effect for as long as you use the Services.
Your use of or participation in the Services (including participating in Sales through the Platform) may also be subject to additional policies, rules and/or conditions (“Additional Terms”), between you and Covalent or between you and another User. You understand and agree that by using or participating in any such Services or activities, you agree to also comply with the associated Additional Terms. Nothing in the Additional Terms will be deemed to supersede or modify any of these Terms.
Please read these Terms carefully. They cover important information about Services provided to you and the fees that apply to your use of the Services.
These Terms include information aboutfuture changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE
ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
What Does Covalent Do?
We maintain a platform (the “Platform”) that enables Users to buy and sell chemicals and other materials (the “Materials”). A User that offers Materials for sale through the Platform is hereafter referred to as a “Seller,” and a User that buys Materials through the Platform is hereafter referred to as a “Buyer.” A Buyer and Seller for each such sale transaction are required to enter into the
Chemical Purchase and Sale Terms (“Purchase Terms”) and a purchase order mutually agreed by Buyer and Seller with respect to each sale of Materials, as described in more detail below (“Purchase Order”).
What are the basics of using Covalent?
You may be required to sign up for an account, select a password and user name (“Covalent User ID”), and provide us with certain information or data, such as your contact information, payment information and, if you are a Seller, information about your Materials. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Covalent User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. In certain circumstances, the functionality of the Services may permit or require a User to obfuscate its identity, location, or other details as between it and other Users, but this functionality does not limit your obligation to provide accurate information to Covalent. If Covalent does not provide you with contact details regarding another User, you will not attempt to learn the identity of such User or contact such User without prior consent of Covalent.
You represent and warrant that you are an individual of legal age to form a binding contract. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will comply with all laws that apply to you, your use of the Services, and your actions and omissions that relate to the Services (for example, laws regarding the storage and transport of chemicals). If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Covalent User ID, account or password with anyone, and you must protect the security of your Covalent User ID, account, password and any other access tools or credentials. You are responsible for any activity associated with your Covalent User ID and account.
Users may be subject to a vetting process before they are permitted to register for a Covalent User ID, and during their use of the Services, including, but not limited to, a verification of identity, using third-party services as appropriate. You hereby give consent to us to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
How Can I Conduct Transactions with other Users?
Role of Covalent
Covalent provides the Platform for Sellers who wish to advertise Materials on the Services and for Buyers and Sellers who wish to engage in purchases and sales of Materials (“Sales”).
Except as otherwise set forth in a Purchase Order to which Covalent is a party, Covalent does not directly offer Materials for sale via the Platform. You hereby acknowledge that Covalent does not supervise, direct, control or monitor Materials offered through our Services (except as otherwise set forth in a Purchase Order to which Covalent is a party), and expressly disclaims any responsibility and liability for such Materials, including but not limited to any warranty or condition of quality or fitness for a particular purpose, or compliance with any law, regulation, or code.
Purchase Orders and Purchase Terms
Buyers and Sellers wishing to engage in Sales will do so pursuant to one or more Purchase Orders placed via the Platform, as facilitated by Covalent. For clarity, a Purchase Order may take the form of a digital order describing the Materials and the other terms of the applicable Sale, which is agreed to by both Buyer and Seller. 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. Each Purchase Order is subject to the Purchase Terms. Unless expressly stated otherwise on a Purchase Order, Covalent is not a party to any Purchase Order and is not responsible for enforcing or fulfilling any obligations with respect to such Purchase Order or the Purchase Terms, including ensuring that Materials are actually delivered, or that Materials conform to any specifications agreed to by Buyer and Seller.
Buyers’ and Sellers’ sole recourse related to any Purchase Order (including any alleged violation of the Purchase Terms) is against the counterparty set forth on the applicable Purchase Order. COVALENT WILL NOT HAVE ANY LIABILITY TO ANY USER FOR ANY OTHER USER’S BREACH OF ITS OBLIGATIONS UNDER A PURCHASE ORDER OR THE PURCHASE TERMS.
Buyer and Seller Rights and Obligations
Before purchasing any Materials in Sales through the Platform, Buyers are responsible for evaluating the information provided by Seller with respect to the Materials and making their own determinations that the Materials are suitable for the Buyer’s intended use.
Covalent can’t and won’t be responsible for ensuring that information provided by a User is accurate, complete or up-to-date.
We don’t control the actions of any User, Buyer or Seller, and none of the foregoing are our agents.
In certain circumstances, it may take some time for Materials listings to be removed from the Platform once they are subject to a Sale transaction; in such case, if a Buyer attempts to initiate a Sale on such outdated listing, we will inform the Buyer such Materials are no longer available, and will not permit such Buyer to enter into a Purchase Order for and/or pay for such Materials
.
Non-Contravention
Buyers and Sellers must not enter into separate agreements with each other outside of Covalent relating to the purchase and sale of Materials (“Outside Agreements”), in an attempt to circumvent these Terms or otherwise, except that, in certain circumstances, a Buyer and Seller may agree to additional terms applicable to a 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 the Purchase Terms, solely with respect to such Purchase Order.
Notwithstanding anything to the contrary, a Buyer and Seller may not amend the Purchase Terms or agree to any Purchase Order or Outside Agreement that creates any obligation for Covalent (unless Covalent is a party to such Purchase Order and explicitly agrees to such terms). Nothing in the Purchase Terms or any Outside Agreement or Purchase Order shall amend these Terms, nor require Covalent to disclose contact details or other identifying information about a User to another User. If you do enter into any Outside Agreement that violates any of the restrictions of this Section, we may terminate your Covalent account and/or take any other action Covalent deems appropriate to remedy such breach, and you acknowledge that Covalent is not a party to and isn’t responsible for enforcing any Outside Agreement.
Seller Content and Sale Data; Privacy
As a Seller, you may be required to provide Covalent with certain information or materials in connection with the Materials you are offering for Sale via the Platform (which, in certain circumstances, may include your name(s), logo(s), or trademark(s)) (collectively, your “Seller Content”). You hereby grant Covalent a non-exclusive, royalty-free, worldwide right and license to use, display, modify, and exercise all rights in such Seller Content, and make the Seller Content available to other Users, in connection with making the Platform and Services available during the term hereof. In certain circumstances, Covalent may offer a functionality that permits a User to obfuscate certain identifying details about itself, or Covalent may require a User obfuscate certain identifying details about itself (collectively, “Restricted Information”); in such cases, , we will not display such Restricted Information to other Users, to the extent described by us on the Services at the time you take advantage of such feature. Notwithstanding the foregoing, in the event of a dispute between Users, Covalent reserves the right to share Restricted Information between the Users involved in a dispute, to the extent necessary (in Covalent’s sole discretion) to permit such Users to resolve such dispute.
By using the Platform to engage in a Sale of Materials, or by contributing any Content to us in any manner (directly or indirectly), you acknowledge and agree that Covalent will collect information related to such Sale and/or Content, including information related to the applicable pricing information, and will use such information and disclose such information to other Users (and to our agents and service providers, affiliates, and advisors) in connection with the Services, to the extent necessary to fulfill its obligations and exercise its rights hereunder (and, in the case of disclosure to other Users, subject to the terms above regarding the Restricted Information). Covalent may also aggregate and anonymize any information it collects from or about any User in connection with the Services and Platform (such that it does not identify such User or any individual person in such User’s organization) (“Aggregated Data”), and use and disclose such Aggregated Data freely for its business purposes.
Notwithstanding anything to the contrary, Covalent reserves the right to disclose any information we collect about you and/or you provide to us, including information regarding any Sale, to the extent necessary to comply with applicable law or court order, or as we deem reasonably necessary to protect anyone’s safety or security or to resolve a dispute or enforce anyone’s rights (including Covalent’s).
In certain circumstances where Users’ identities are not Restricted Information, a Buyer and Seller may agree to confidentiality terms between them, in Purchase Terms or a Purchase Order or an Outside Agreement; Covalent is not responsible for enforcing any such terms, and such terms do not affect its rights or obligations hereunder.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Covalent), including in connection with any Seller Content;
(b) violates any law, rule or regulation, including, without limitation, the laws, rules and regulations governing the sale, shipping, storage, and use of Materials;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable, including providing Content that is inaccurate, incomplete, or out-of-date;
(d) jeopardizes the security of your Covalent User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information from any other User;
(f) violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) copies or stores any significant portion of the Content; or
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.In addition, while using the Services, you agree that you will not:
(a) fail to pay for Materials purchased by you as a Buyer or fail to deliver Materials sold by you as a Seller in connection with a Sale consummated through the Services;
(b) Circumvent or manipulate Covalent’s fee structure, the billing process, or fees owed to Covalent;
(c) Use the Services or data collected from our Services for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing);
(d) Use the Services for or in connection with money laundering, terrorist financing, or other illicit financial activity, or in any way in connection with the violation of any law or regulation that applies to you or to Covalent;
(e) Use the Services, directly or indirectly, for, on behalf of, or for the benefit of, (a) any natural or legal person that is the subject of sanctions; (b) any natural or legal person located in, ordinarily resident in, or organized under the laws of, any embargoed jurisdiction; or (c) any legal person owned or controlled, directly or indirectly, by any natural or legal person located in, ordinarily resident in, or organized under the laws of, any embargoed jurisdiction;
(f) Use the Services to carry out any financial activities subject to registration or licensing, including but not limited to minting, offering, selling, or buying securities, options, or debt instruments; or
(g) Use the Services to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, information about Materials and so forth, including Seller Content (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Covalent) rights.
Subject to these Terms, we grant each User of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services, including as reasonably necessary to consummate Sales of Materials. Use, reproduction, modification, distribution or storage of any Content other than as permitted herein is expressly prohibited without prior written permission from us. You understand that Covalent owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
If you send or transmit any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Platform or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback in any manner without any royalty obligation or other duty to you.
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. Although we may perform background checks of Users as outlined above, we can’t guarantee the identity of any Users with whom you interact in using the Services and are not responsible for which Users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Covalent. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Covalent is not responsible for such risks.
Covalent has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Covalent will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
If there is a dispute between participants on this site or Services, or between a User and any third party, you agree that Covalent is under no obligation to become involved. You may contact Covalent at support@covalentmarket.com at any time to request assistance with resolving any disputes regarding Sales. However, Covalent is not obligated to resolve such disputes, and cannot guarantee any particular result, but if the other User’s contact information is Restricted Information, Covalent may disclose such contact information to facilitate the resolution of such dispute. In the event that you have a dispute with one or more other Users, you release Covalent, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will Covalent ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to part or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice. Note that this may involve the de-listing of certain Materials as available for Sale, including if Covalent suspects the the Seller Content describing such Materials is inaccurate.
How do Fees and Payments Work?
Sale Transaction Fees
Covalent will charge a transaction fee on all Sales consummated through the Services (the “Covalent Fee”), as well as any applicable sales tax (“Materials Sales Tax”) which will each be payable by the Buyer in each Sale. The amount of the Covalent Fee will be agreed by Covalent and the Seller, and will be set forth in a Purchase Order generated in connection with a Sale (and may be calculated as a percentage of the Materials Price). The applicable Covalent Fee and the Materials Sales Tax will be added to the purchase price otherwise payable by the Buyer in such Sale (the “Materials Price”), and the total amount of the Materials Price plus the Covalent Fee will be charged to Buyer. The Materials Price will include any shipping and handling fees (“Materials Transport Fees”), which may or may not be listed as a separate line item in the Materials Price.
To the extent not already addressed by the requirement to pay the Materials Sales Tax described above, Buyer and Seller will each pay the taxes lawfully levied upon it by any governmental authority.
All Sales are between the applicable Buyer and Seller; for that reason, in the event you seek a refund related to a Sale or have any questions, you must directly contact the applicable Seller and pursue dispute resolution pursuant to the Purchase Terms.
In no event will we be obligated to refund the Covalent Fee or the Materials Sales Tax with respect to any Sale, even if Seller refunds to Buyer the underlying Materials Price applicable to such Sale.
Payments for Sales
Payments received from Buyers for Materials purchased via Sales will be processed by Covalent on behalf of the Seller, and the Materials Price will be either, as mutually agreed by Covalent and Seller prior to the Sale being consummated, (a) paid by Covalent to Seller within thirty (30) days after Covalent’s receipt of Seller’s invoice for the Materials Price, or (b) credited to the Seller’s Services account. Seller appoints Covalent as its limited payment collection agent solely for the purpose of accepting funds from Buyers on behalf of Seller. Seller understands that Covalent’s obligation to pay Seller is subject to and conditional upon successful receipt of the associated payments from Buyer. We guarantee payments to Seller only for such amounts that have been successfully received by us from Buyer. In accepting appointment as the limited payment collection agent of Seller, we assume no liability for any acts or omissions of the Seller. Unless otherwise set forth in the applicable Purchase Order, Payments from Buyers are due and payable immediately upon entering into a Purchase Order, including the applicable Covalent Fee and any Materials Sales Tax.
Covalent reserves the right to apply late charges, and/or cancel any Sale, if payment is not made in full as required by the applicable Purchase Order.
What if I want to stop using the Services?
You’re free to do that at any time by contacting us at support@covalentmarket.com. Please refer to the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.
Covalent is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including if you breach any provision of these Terms, engage in fraudulent or misleading activity or are acting in a manner inconsistent with the letter or spirit of these Terms. Covalent has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content (including Seller Content) associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at support@covalentmarket.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration provision.
What else do I need to know?
Warranty Disclaimer. Covalent and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Covalent and all such parties together, the “Covalent Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content (including any information regarding Materials) contained in or accessed through the Services and any Materials purchased or sold through the Services. The Covalent Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services (including your participation in any Sale). The Covalent Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services, including any Materials. THE SERVICES AND CONTENT ARE PROVIDED BY COVALENT (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE MATERIALS (INCLUDING ANY CHEMICALS) MAY BE HIGHLY REGULATED BY LOCAL, STATE, AND FEDERAL LAWS; COMPLIANCE WITH SUCH LAWS IS YOUR SOLE RESPONSIBILITY, INCLUDING, BUT NOT LIMITED TO, PROPER PREPARATION AND MAINTENANCE OF ALL REQUIRED DOCUMENTATION. WE ARE NOT AND CANNOT BE RESPONSIBLE FOR ENSURING COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS, AND YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ANY FAILURE TO SO COMPLY.
Modification of Terms. We are constantly trying to improve our Services, so these Terms may need to change along with our Services or as otherwise determined by us in our sole discretion. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at www.covalentmarket.com, send you an email, and/or seek to notify you by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us. For clarity, no change to these Terms shall apply with respect to (i) Purchase Orders that are in place at the time of such change, or (ii) Sales that have been executed at the time of such change.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE COVALENT PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE THOUSAND DOLLARS ($1000) OR (II) IF YOU ARE A BUYER, THE AGGREGATE AMOUNT OF COVALENT FEES PAID AND/OR PAYABLE BY YOU TO COVALENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU. WITHOUT LIMITING THE FOREGOING, WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS, AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANYTHING RELATED TO YOUR USE OF OR ACCESS TO THE MATERIALS. THE LIMITATIONS OF LIABILITY IN THIS CLAUSE DO NOT EXCUSE OR RELIEVE COVALENT OF ANY LIABILITY RESULTING FROM ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Release. If you have a dispute with one or more Users, whether related to a Sale or otherwise, YOU RELEASE US FROM CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Covalent's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Covalent and limits the manner in which you can seek relief from Covalent. Both you and Covalent acknowledge and agree that for the purposes of any dispute between you and Covalent arising out of or relating to the subject matter of these Terms, Covalent's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. Covalent and you shall use their best efforts to settle any dispute, claim, question, or disagreement between them arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and 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.
(b)
Costs of Arbitration. The Rules will govern payment of all arbitration fees. Covalent will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Covalent will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c)
Small Claims Court; Infringement. Either you or Covalent may assert claims, if they qualify, in small claims court in San Francisco, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to settle disputes through good-faith negotiations or arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d)
Waiver of Jury Trial. YOU AND COVALENT WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Covalent are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Covalent over whether to vacate or enforce an arbitration award, YOU AND COVALENT WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e)
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Covalent is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f)
Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Covalent Technologies Inc. 490 43rd Street, Unit #232 Oakland, CA 94609 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g)
Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Covalent to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Covalent agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco, California, or the federal district in which that city falls.
(h)
Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Covalent.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Covalent may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Covalent agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Covalent, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Covalent, and you do not have any authority of any kind to bind Covalent in any respect whatsoever. You understand that Covalent is not qualified to give either legal advice or tax advice regarding Materials, prospective transactions or otherwise, and shall not rely on Covalent for advice on such matters.
Except as expressly set forth in the section above regarding the arbitration agreement, you and Covalent agree there are no third-party beneficiaries intended under these Terms.
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