Terms of Use

XOM Materials GmbH, Berlin (“XOM”) operates a platform under the domain www.xom-materials.com (“Platform”), via which XOM enables commercial third parties (“Partners”) to distribute products solely to registered entrepreneurs, legal entities under public law and special funds under public law (“Customers”). These Terms of Use (“Terms of Use”) apply to the use of the Platform by Customers.

§ 1
Registration

1.1 The use of the Platform requires the consent of Customers to these Terms of Use via the registration of the Customer. The contractual language is German or English.

1.2 By submitting the registration declaration, the Customer accepts these Terms of Use and warrants only to use the Platform as an entrepreneur, a legal entity under public law or a special fund under public law. XOM is entitled at any time before and after registration to request appropriate proof of this from the Customer.

1.3 If the registration takes place online, the application is initiated by the Customer and XOM confirms the registration in accordance with these Terms of Use by sending an e-mail to the Customer. XOM is not obliged to accept any application. XOM stores the contractual text, but is not obliged to provide this to the Customer.

§ 2
No remuneration due

Use of the Platform does not lead to any remuneration obligation of the Customer to XOM or of XOM to the Customer.

§ 3
Services of Partners

3.1 Products are always offered and sold via the Platform by the Partner specified in each case on the Platform.

3.2 To the extent required for the conclusion and/or the performance of contracts with a Partner, the Customer agrees that XOM will provide the Partner with the required declarations and data of the Customer. With respect to the exchange of declarations between the Customer and Partners, XOM always is only a messenger. XOM shall forward such declarations automatically to the respective contact provided by the Customer or the Partner.

3.3 The Customer acknowledges that XOM is neither responsible for the content and information provided by the Partners on the Platform nor the services offered by them or their actions and that no contract and/or performance relationship will come into existence in this respect between XOM and the Customer. In particular, the Partner alone is liable for the fulfilment of contracts concluded with Customers, the provision of services, invoicing, collecting payments, as well as warranty for defects, refunds and returns. The contract concluded with any Partner is solely governed by the general terms and condition and the privacy policies of the Partner specified in each case when the contract is concluded.

§ 4
Provision of the Platform

4.1 XOM provides the Customer with the Platform and any other services agreed in accordance with these Terms of Use “as is”. XOM is not obliged to provide specific functions or other requirements, in particular with respect to availability.

4.2 XOM can at any time at its sole discretion, without prior notice and without specifying any reasons provide an updated or amended version of the Platform or any other services agreed under these Terms of Use.

4.3 XOM is entitled to use any of its affiliates and/or other subcontractors for the provision of services under or in connection with these Terms of Use.

§ 5
Use of the Platform

5.1 XOM grants the Customer access to the Platform via an account using login data. The Customer will keep its login data secret at all times and inform XOM promptly after obtaining knowledge about any unauthorised access.

5.2 The Customer will take all necessary measures to prevent any risks to the security and stability of the Platform and the systems of XOM and its subcontractors and will not retrieve data or information without authorisation, interfere with the software of the Platform, penetrate data networks of XOM or transmit any viruses, Trojans or other malware.

5.3 The Customer acknowledges that XOM, its subcontractors and licensors are fully entitled to all trademarks and other distinctive signs, other intellectual property rights and copyrights in and to the Platform. The Customer warrants to comply with all applicable laws, including trademark, copyright, data protection, tax and export control laws when using the Platform or other services under these Terms of Use.

§ 6
Warranty and liability

6.1 XOM excludes any warranty and liability for and in connection with the use by the Customer of the Platform and any other services agreed under these Terms of Use.

6.2 The liability of XOM for wilful intent and gross negligence and the fraudulent non-disclosure of defects remains unaffected.

6.3 All limitations and exclusions of liability set out in § 6 also apply to XOM's affiliates, members of the executive board, directors, employees, agents, subcontractors, sub-suppliers and other assistants.

§ 7
Indemnification

7.1 The Customer shall indemnify XOM, XOM’s affiliates and subcontractors from any and all claims, damages and costs (including litigation and legal costs as well as consultancy costs) arising from or in connection with the following circumstances: (i) an allegation of a third party, including an authority, that any of the requirements listed in Section 5.3 are not met and (ii) any breach by the Customer of these Terms of Use.

7.2 The obligation of the Customer to provide the indemnity pursuant to Section 7.1 does not apply if XOM is liable for the occurrence of the corresponding claims, damages or costs.

§ 8
Blocking

XOM is at any time at its sole discretion entitled without prior notice or specifying grounds to partially or completely block the Customer from using the Platform.

§ 9
Termination

9.1 The use of the Platform on the basis of these Terms of Use can be terminated by the Customer and XOM at any time.

9.2 The right to termination for good cause remains unaffected.

§ 10
Electronic communication

10.1 Declarations of XOM are deemed received by the Customer upon receipt of the e-mail by the e-mail inbox stated by the Customer during registration.

10.2 Declarations of the Customer are received by XOM upon receipt by the systems provided by XOM for electronic communications.

§ 11
Amendments

11.1 XOM is entitled to amend these Terms of Use anytime. Amendments may in particular be made to adapt to applicable laws or to implement changes to the contractually agreed services. XOM shall notify the Customer in writing or in electronic form of any altered Terms of Use with a notice period of at least thirty (30) days before their effective date. The amended Terms of Use will become effective only if the Customer does not object within the above mentioned period in writing or in electronic form. XOM is required to inform the Customer separately of said consequences in the notification. If, in the event of an objection to the amendment by the Customer within the agreed timeframe, it is unreasonable for XOM to continue the Terms of Use, XOM is entitled to terminate these Terms of Use no earlier than the effective date of the amendment set forth in the notification. Any other right of termination of the parties remains unaffected.

11.2 Any other amendments and additions to these Terms of Use must be agreed in electronic form. This also applies to an amendment of this form requirement.

§ 12
Severability

Should one or several provisions of these Terms of Use be or become invalid or unenforceable, the remaining provisions of these Terms of Use will remain unaffected. An effective provision in place of the invalid or unenforceable provision which comes legally and economically as close as possible to the spirit and purpose of the invalid or unenforceable provision is deemed agreed. This applies accordingly to any gaps in these Terms of Use.

§ 13
Choice of law

These Terms of Use and business relation arising between XOM and the Customer under this agreement are governed exclusive by the law of the Federal Republic of Germany, subject to exclusion of German conflict of laws rules and all international and supranational (contract) laws, in particular the United Nations Convention of Contracts for the International Sale of Goods of 11 April 1980 (CISG).

§ 14
Legal venue, place of performance

The exclusive legal venue of all disputes arising under or in connection with these Terms of Use and/or with respect to the validity of these Terms of Use is Berlin. The place of performance for all services under or in connection with these Terms of Use is Berlin.