1. Services, Conclusion of Contracts and Fees
1.1. XOM allows the Supplier to access the Platform in order to make offers to Buyers in response to a specific request from a relevant Buyer to enter into contract negotiations (“Enquiry”).
1.4. Use of the Platform does not lead to any payment obligations of the Supplier towards XOM or of XOM towards the Supplier.
2. Services of XOM
2.1. XOM will provide the Supplier with the Platform and other services “as is”. XOM is not obliged to guarantee specific functions or other requirements, including with regard to availability.
2.2. XOM can provide an updated or modified ver- sion of the Platform or other services at any time at its sole discretion, without prior notice and without specifying any rea-sons.
2.3. Where XOM allows declarations to be made or received under the Platform, XOM is only acting as a messenger in all cases. XOM will forward such declarations as well as any communication enabled via the Platform automatically using the contact details provided for the recipient.
2.4. XOM will provide the Supplier with access to the Platform at the WAN port of the data center used by XOM. XOM does not accept any liability or responsibility for establishment of a data con- nection to this WAN port. An internet connection and suitable software and hardware are re- quired for this data connection and access to the Platform.
2.5. Unless explicitly agreed otherwise, XOM will provide all services to the Supplier as activities (services) performed on its behalf.
2.6. XOM is entitled to use any of its affiliates and any other subcontractors for the provision of ser- vices.
3. Use of the Platform
3.1. When using the Platform, the Supplier warrants that it will comply with all applicable laws, including competition, e-commerce, data protection, tax and export control laws, including U.S. export control laws, and in particular that it will obtain and maintain all necessary consents, approvals and authorizations at its own expense.
3.2. The Supplier agrees not to make any content available on the Platform the use of which in ac- cordance with Section 5.2 results in a breach of applicable laws or infringes intellectual property, copyright, business secrets, or other rights of third parties or towards third parties, in particular confidentiality obligations.
3.3. The Supplier also agrees:
(a) to use the Platform exclusively for its intended purpose,
(b) not to enter any other information and data apart from that required for the intended use, and
(c) to refrain from all actions that may jeopard- ize the security and stability of the Platform, in particular but not exclusively accessing information or data without au- thorization, interfering with the Platform’s software, infiltrating XOM’s data networks or those of its subcontractors and not to pass on any viruses, Trojan horses or other malware.
3.4. The Supplier will notify XOM promptly if the Supplier becomes aware of circumstances and in particular incidents indicating that the require- ments set forth in Sections 3.1 to 3.3 may not be met.
4. Relationship with Buyers
4.1. XOM makes a platform (the Platform) available to the Supplier on which it is able to make offers for products upon receiving individual Enquiries from Buyers and is able to conduct negotiations. No contract is entered into through the Platform.
4.2. If the Supplier enters into a contract with the Buyer regarding the provision of services or other agreements, it does so in its own name and on the Supplier’s own account and that of the Buyer at all times, and only the terms and conditions agreed between the Supplier and the Buyer apply.
4.3. The Supplier acknowledges that XOM is not responsible either for the content and information provided by Buyers via the Platform or for the services offered by them or their actions, and that no contractual and/or performance relation- ship will come into existence between XOM and the Supplier in this respect. The Buyer is in particular but not exclusively solely responsible for fulfilling any contracts entered into with the Supplier.
5. Intellectual Property
5.1. With the exception of any rights explicitly granted under the agreement, both Parties and their licensors remain the holders of all intellecttual property rights and copyrights. All rights to the Platform, also covering all future developments, will in particular remain with XOM and its licensors.
5.2. The Supplier grants XOM and its subcontractors the non-exclusive, transferable, sublicensable and gratuitous right to use the content made available by the Supplier or third parties who the Supplier allows to use the Platform in connection with the use of the Platform by or for the Sup- plier, including any marks, in particular logos (together “Content”), for the purpose of use and operation of the Platform, marketing, in particular online and search engine marketing, and the fulfillment of legal obligations and official orders by authorities.
6.1. XOM excludes any warranty or liability for and in connection with use of the Platform by the Sup- plier. XOM’s liability for intent and gross negligence and in the case of fraudulent concealment of defects remains unaffected.
6.2. All limitations and exclusions of liability set out in Section 6 also apply to XOM’s affiliates, mem- bers of the executive board, directors, employees, agents, subcontractors, sub-Suppliers and other persons assisting XOM.
7.1. The Supplier indemnifies XOM and XOM’s affili- ates and subcontractors against all and any claims, damage and costs (including litigation and legal costs) arising from or in connection with an actual or alleged breach by the Supplier against this agreement, in particular but not exclusively against the requirements in Sections 3.1 to 3.3.
7.2. The Supplier’s duty to indemnify according to Section 7.1 does not apply if XOM or a third party is responsible for the occurrence of the rel- evant claims, damage or costs.
9. Disabling Access
XOM is entitled to completely or partially disable the Supplier’s possibility to use the Platform at any time at its sole discretion, without prior notice and without specifying any reasons.
10.2. The right to give notice of termination for cause remains unaffected.
10.3. The notice of termination must be in text form.
12. Final Provisions
12.3. The exclusive legal venue for all disputes arising out of or in connection with the agreement and/or in relation to the validity of the agreement is Berlin. The place of performance for all performance by the Parties under or in connection with the agreement is Berlin.