Terms of Use

XOM Materials Operations Inc., a Delaware corporation (“XOM“) operates a platform under the domain www.xom-materials.com (“Platform“), by use of which XOM enables commercial third parties (“Partners“) to sell certain products (“Products“) solely to registered corporate users (each a “User“ and collectively “Users“). Such sale and delivery shall be referred to herein as a “Transaction“ These Terms of Use (“Terms of use“) apply to the User’s use of the Platform.

§ 1 Services and Registration

1.1 XOM will provide the following services (the “Services“) through its Platform: Platform access; opportunity to publish relevant User and product information; and XOM will forward to vendor (“Vendor”) any communication received from a potential buyer (“Buyer”) regarding an interest in Vendor’s products.

1.2 The use of the Platform requires User’s consent to these Terms of Use via User’s registration.

1.3 By submitting the registration declaration, the User accepts these Terms of Use.

1.4 In order to register for the Platform, User shall follow the registration procedure as set forth at www.us.xom-materials.com If the registration takes place online, the application is initiated by the Customer and, once approved by XOM, XOM shall confirm the registration under acceptance of these Terms of Use by sending an e-mail to the User. XOM reserves the right to reject any application for any reason or for no reason.

§ 2 No remuneration due

The mere use of the Platform does not give rise to any payment obligation of the User to XOM or of XOM to the User.

§ 3 Vendor Services

3.1 User acknowledges and agrees that the sale of any Products shall be governed by the terms of an agreement concluded by Vendor and Buyer (the “Purchase Agreement”), and that XOM shall not be party to such Purchase Agreement, nor engage or be required to engage, in the facilitation of a Transaction.

3.2 To the extent required for the conclusion of, and/or the performance under a Purchase Agreement, the Buyer agrees that XOM shall provide the Vendor with all necessary statements of declaration and data of the Buyer. With respect to the exchange of any information between the Buyer and a Vendor, Buyer acknowledges and agrees that XOM may rely on the information provided by a Vendor, and that XOM shall have no obligation to independently verify such information. XOM shall always be a messenger only, and shall forward nay declarations automatically to the respective contact as provided by the Vendor or the Buyer, as the case may be.

3.3 User acknowledges and agrees that XOM shall neither be responsible for any content and information provided by a User on the Platform, nor the Vendors’ Products or 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 User. In particular, it shall be the User’s sole responsibility to fulfill any obligation under a Purchase Agreement, including, but not limited to the provision of services, invoicing, collecting payments, as well as warranty for defects, refunds and returns. Any Transaction concluded hereunder shall be solely governed by the Purchase Agreement and any appendices thereto.

§ 4 Provision of the Platform

4.1 XOM provides the User with access to, and use of, the Platform and the Services “as is”. XOM does not warrant any specific functionalities or other standards, in particular with respect to availability.

4.2 XOM reserves the right to at any time at its sole discretion for any or for no reason, with prior notice, to change or amend the Platform or any Services.

4.3 XOM shall be 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 will grant the User access to the Platform via an account using login data. The User shall keep its login data secret at all times and inform XOM promptly after obtaining knowledge about any unauthorized access.

5.2 User shall 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 shall not retrieve data or information without authorization, interfere with the software of the Platform, penetrate data networks of XOM or transmit any viruses, Trojans or other malware.

5.3 User acknowledges and agrees 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. User warrants to comply with all applicable laws, including, but not limited to trademark, copyright, data protection, tax and export control laws when using the Platform or the Services under these Terms of Use.

§ 6 No Warranty and Exclusion of Liability

6.1 Except as set forth in this § 6, XOM makes no express or implied warranty , statutory or otherwise, concerning any services provided hereunder, including without limitation any warranty of fitness for a particular purpose or any warranty of merchantability.

6.2 In no event shall XOM be liable to any user or any other person for any (A) indirect, incidental, consequential or punitive damages, including loss of profit or goodwill or (B) direct damages to body, health or property for any matter arising out of or relating to the services or products, whether such liability is asserted on the basis of contract, tort or otherwise even if XOM has been advised of the possibility of such damages.

6.3 This § 6 shall also apply to any of XOM's affiliates, members of the executive board, directors, employees, agents, subcontractors, suppliers, agents and other assistants.

§ 7 Indemnification

7.1 User shall defend, indemnify and hold harmless XOM from and against any and all damages, liabilities, losses, and expenses, including reasonable attorneys’ fees and court costs incurred by XOM as of result of (i) any claim, lawsuit, action, or proceeding against XOM for User's failure to comply with all applicable laws, rules and regulations or any breach of any representations, warranties or covenants governed by these Terms of Use, or (ii) an allegation of a third party, including any authority, that any of the requirements listed in Section 5.3 are not met.

§ 8 Blocking

XOM shall at any time, in its sole discretion, be entitled without prior notice or specifying grounds to partially or completely block the User from using the Platform, unless prohibited by applicable law, rules or regulations.

§ 9 Termination

The use of the Platform on the basis of these Terms of Use may be terminated by either the User or XOM at any time.

§ 10 Electronic communication

10.1 Declarations of XOM given to User shall be deemed effective upon User’s receipt of the e-mail by the e-mail inbox stated by the User during registration.

10.2 Declarations of the User given to XOM shall be effective upon upon receipt by the systems provided by XOM for electronic communications.

§ 11 Amendments

XOM reserves the right to change, modify, add, or delete portions of these Terms of Use from time to time without further notice. Any such changes to these Terms of Use will be posted at www.us.xom-materials.com

§ 12 Severability

Should one or several provisions of these Terms of Use be judged by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these Terms of Use, and 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 Arbitration

In the event that the parties are unable to agree on any matter for which agreement is required under these Terms and Conditions, or if either party commits a default hereunder, whether material or immaterial, either party shall have the right to submit the matter to binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”), as then in effect. Each party shall pay one-half of the deposit required by AAA. If the matter in dispute exceeds One Hundred Thousand Dollars ($100,000), the matter shall be considered by a panel of three (3) arbitrators. If there are three (3) arbitrators, the parties shall request, within fifteen (15) days of receipt of notice of one party to the other party requesting arbitration, from AAA a list of approved arbitrators and, by way of elimination, shall agree on three (3) arbitrators. If the parties agree on less than three (3) arbitrators, they shall request a second list of approved arbitrators from AAA and again follow the process in the preceding sentence to select the remaining arbitrator(s). If the parties fail to elect two (2) arbitrators, then the AAA shall select the arbitrator panel. If the parties elect two (2) arbitrators, then such arbitrators shall elect the third arbitrator. If the matter in dispute is One Hundred Thousand Dollars ($100,000) or less, the matter shall be considered by a single arbitrator. The election of a single arbitrator shall be made in accordance with the process for selecting three (3) arbitrators. The non-prevailing party shall bear the costs of the arbitrator(s), witness fees, attorneys’ fees and all other costs associated with the arbitration proceeding. The Federal Arbitration Act shall be applicable to the arbitration proceedings. The arbitrator(s) shall apply the law of the state of Delaware.

§ 14 Jurisdiction; Venue

For purposes of injunctive relief or should arbitration not be available, in any legal action relating to these Terms of Use, User irrevocably agrees and consents (i) to the exercise of jurisdiction over it by the courts of the State of Georgia or the Northern United States District Court in Georgia; and (ii) that if User brings the action, it shall be instituted in one of the courts specified in Subsection (i) above. Service of process provided to User shall be effective and sufficient to establish jurisdiction and venue in such court in any such action. Should arbitration not be available, XOM may institute legal action in any appropriate jurisdiction.

§ 15 Governing Law

These Terms of Use and any Transaction resulting thereof shall be governed by and construed in accordance with the laws of the State of Delaware, United States of America, but excepting any Georgia or United States rule, law or treaty which would result in the application of the law of a jurisdiction other than Delaware.