Terms of Use

For XOM eProcurement

Background 

XOM Materials GmbH, Ackerstraße 14-15, 10115 Berlin (“XOM”) owns and operates an online (B2B) platform under the domain https://procurement.xom-materials.com/ (“Platform”). Potential buyers (“Buyers”) can obtain offers from sellers of goods (“Suppliers”) via the Platform and negotiate prices. The conclusion of contracts between Buyers and Suppliers via the Platform is not intended. Use of the Platform is governed by the following Terms of Use between XOM and the Supplier (each a “Party” and collectively “Parties”).

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”). 

1.2. The use of the Platform requires the Supplier’s consent to these Terms of Use and creation of a user account. When a Supplier contacts a Buyer the first time, the Supplier receives an e-mail in which it is invited to set up a user account on the Platform. When setting up the user account, the Supplier explicitly accepts these Terms of Use by checking the relevant box and warrants that it will only use the Platform as an entrepreneur. 

1.3. Upon receiving the consent to the Terms of Use, XOM will save the text of the agreement entered into by XOM and the Supplier. XOM is not required to make the texts of the agreements available to the Supplier after conclusion of the agreement. 

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. Liability 

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. Indemnification 

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. 

8. Responsibility 

The Supplier is responsible towards XOM for all actions and omissions by employees and third parties acting on its behalf, as well as for third parties who the Supplier allows to use the Platform to the same extent as for its own actions or omissions. In particular, the Supplier is fully responsible for ensuring that third parties who the Supplier allows to use the Platform comply in full with all the Terms of Use. 

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. Termination 

10.1. Use of the Platform on the basis of the Terms of Use may be terminated by the Supplier or by XOM at any time. 

10.2. The right to give notice of termination for cause remains unaffected. 

10.3. The notice of termination must be in text form. 

11. Changes to the Terms of Use

XOM is entitled to amend these Terms of Use at any time. Amendments may depend in particular but not exclusively on adjustments to reflect applicable law or to implement changes in order to develop the Platform. XOM will notify the Supplier about changes to the contractual terms and conditions in text form providing a notice period of at least thirty (30) days before their ef- fective date. The amended Terms of Use will become effective unless the Supplier objects to them in writing or text form within the notice period referred to above. XOM will specifically point out these consequences to the Supplier in the notification. If the Supplier objects to the contractual amendment within the agreed timeframe, XOM is entitled to terminate the agreement no earlier than the effective date of the amendment if XOM cannot be reasonably expected to continue the agreement. Other rights of the Parties to terminate remain unaffected. 

12. Final Provisions 

12.1. Should any provision of the Terms of Use be or become invalid or unenforceable, the remaining provisions of the Terms of Use will remain unaffected thereby. To replace the invalid or unenforceable provision, a valid provision coming as close as possible to the intent and purpose of the invalid or unenforceable provision in legal and commercial terms is deemed to have been agreed. The same applies to any omissions in the Terms of Use.

12.2. The Terms of Use and the business relationship arising between the Parties are governed exclu- sively by the laws of the Federal Republic of Germany, without regard to German conflict of law provisions and without regard to all interna- tional and supranational (contractual) legal systems, including but not limited to the United Nations Convention on Contracts for the Interna- tional Sale of Goods of 11.04.1980 (CISG). 

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.