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 communicating via the platform and the conclusion and/or the performance of contracts with a Partner, the Customer agrees that XOM will provide the Partner with the required communications, 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 communications and 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 declarations and other 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 conditions 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 warrants, that he will not purchase items via the Platform for end use or strive to do so, but only in order to resell, convert, process, lease and/or pass them on to subcontractors.

5.4 The customer acknowledges that XOM, its subcontractors and licensors are fully entitled to all trademark and other designation rights, other intellectual property rights and copyrights in the platform. The customer warrants to comply with all applicable laws, including trademark, copyright, privacy, tax and export control laws when using the platform and other services under the terms of use.

5.5 The Customer is fully responsible to XOM for the use of the Platform and compliance with the applicable terms of use as amended by the persons allowed to use the Platform under his account. The customer guarantees XOM that the persons mentioned above are fully authorized to use the Platform vis-à-vis the customer within the scope of the access rights granted to them and that they are in particular entitled in this respect to legally binding representation for the Customer, including the authorization to conclude contracts.

§ 6 Intellectual Property

6.1 Except where expressly provided for in this contract, both parties, their third-party suppliers and licensors shall remain owners of all intellectual property rights and copyrights.

6.2 The customer grants XOM and its subcontractors the non-exclusive, transferable, sub-licensable and royalty-free right to use the information, data and other content provided by the Customer in connection with the online platform for the purpose of fulfilling the obligations arising from the contract, for the operation of the online platform and for the fulfilment of legal obligations and official orders.

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 Confidentiality

13.1   The customer warrants that he will treat all information made directly or indirectly available to him in connection with the use of the platform, including the initiation, implementation and performance of a contract with a partner, as confidential and warrants that the information will not be used for purposes other than the use of the platform or the performance of a contract with the respective partner. The information may only be passed on or disclosed to such employees, affiliated companies, subcontractors or consultants and their respective employees who are themselves subject to confidentiality obligations and usage restrictions that are no less strict than those agreed in these Terms of Use and who require this information for the use of the platform or a contract with the respective partner.

13.2   The limitations under Section 13.1 do not apply insofar as the information is already publicly known, has been made public by third parties without breach of a contractual duty or is subject to a statutory obligation or court/official order for disclosure.

13.3   In accordance with this Section 13, the confidentiality agreement shall apply for a period of three (3) years beyond termination of these Terms of Use.

13.4   Any other regulations concerning confidentiality between the customer and a partner shall remain unaffected.

§ 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.