1. SCOPE OF APPLICATION
1.2. Chemster owns, operates and further continuously develops a collaborative and interactive worldwide B2B platform by the name of Ozmi, which enables all stakeholders (including solution providers and brand owners) to actively participate in a simple and dynamic space for cosmetic product creation, within the beauty and personal care ecosystem. In the pursuit of providing a complete solution and more delight to the User, Ozmi delivers rich content that is conducive and helpful to all the intended stakeholders with an aim to educate, train, measure, assess, consult, help, follow trends, and improve the User’s current market capabilities. Relevant industry news, trends, and data points based on industry experience complete the platform’s offerings.
1.3. Ozmi acts as an intermediary and aims at bringing together the Solution Providers (alternatively referred to as “Suppliers”), namely manufacturers, producers, distributors, professional suppliers of materials, and consulting services, on the one side and small and medium-sized brand-owners from the beauty and personal care industry (alternatively referred to as “Buyers”) on the other side, to provide a digital end-to-end product creation and collaboration platform. To these ends, Ozmi provides tools for each of the above market participants to achieve this target, such as (but not limited to):
(a) the possibility for eligible suppliers to create their own online presence to advertise and distribute their products to other Users;
(b) the possibility for eligible Users to offer their consulting services to interested manufacturers, brand-owners etc. via Ozmi;
(c) search and discovery functionality to find services and products including supplier presences;
(d) matchmaking functionality within the search and discovery functionality to bring together buyers and suppliers of ingredients, formulations, packaging, and labeling as well as the suppliers of technical, regulatory consulting, safety assessment, and general consulting including marketing, branding, and associated services;
(e) a growing list of curated and chargeable data-to-value, knowledge, and educational content that can be accessed by all eligible Users;
(f) product lifecycle management support for brand owners as well as collaboration tools between suppliers and brand owners;
(g) support services that are aimed to further help the ease of business for both the suppliers and brand owners in the cosmetic product creation ecosystem;
(h) an ecommerce functionality to enable the Users to purchase data-to-value services, products and consulting services.
If the Users connect and collaborate through the platform, Chemster does not become a party to their contractual relationship, for which the Users are solely responsible themselves.
1.4. Within this scope, Users can furthermore sign up to be Account Users and create company profiles. There are three different types of Account Users:
· Distributors, who distribute Supplier’s products.
2. ADMISSION AND REGISTRATION
· The first User of a company to sign up as an Account User becomes the Owner of the company profile.
· Account Users can invite their team members from their company as admin users or as team members of the company.
In the latter case, the first registered user as an Account User will be assumed as Owner and provides more flexibility in assigning other roles for other invited users such as team members and admin users.
2.1. The registration of a legal entity or partnership may only be made by an authorized natural person who must be named by their real name. The use of nicknames or aliases is prohibited.
2.2. The remuneration for the registration and use as an Account User and for the creation of a company profile is agreed between Chemster and the User at signup. Chemster can offer registration, use, and the creation of a profile free of charge for a limited time. After such a free period, Chemster can demand remuneration from the User at which point the User is reverted back to being a Registered Free User or they can upgrade to keep using Ozmi as an Account User. Currently applicable prices can be viewed at www.ozmi .com/pricing.
3. CONCLUSION AND REGISTRATION REQUIREMENTS AS AN ACCOUNT USER
3.1. The mere provision of the Ozmi platform does not constitute a binding offer by Chemster which anyone can just accept by registering and thus establish a registration as an Account User.
3.5. Throughout the registration process, the User can correct entries using the standard input functions of their device such as keyboard and mouse until the User submits the entries for registration.
3.7. As an entrepreneur, business owner or a representative of the company, the User has no right of withdrawal.
3.8. Upon registration, Chemster may in its sole discretion perform, but shall not be obliged to, the following verifications and checks which may be carried out via external service providers:
· verification of tax IDs, registered company name and addresses, including email addresses and cross-checking of publicly available information;
· blacklist check with a view to requirements under applicable trade legislation regarding economic sanctions, money laundering, etc.;
· credit check.
These verifications and checks are subject to change from time to time, including the introduction of additional checks.
3.9. Notwithstanding Section 3.8, the User represents and warrants and shall be solely responsible that any information and data provided in the course of registration is true, accurate and complete. Ozmi shall not be obliged to review, verify or correct any such information and data. The User shall notify Ozmi without undue delay of any changes to such information, in particular changes in the circumstances which are relevant pursuant to Section 2 for admission to the use of the Ozmi Platform.
3.10. If Chemster detects or is otherwise informed of any attempt of a User to use multiple registrations by fraudulent means, Chemster reserves its right to withdraw from this agreement and to exclude the User from the further use of Ozmi.
3.11. Each User will act in strict compliance with applicable antitrust laws, including but not limited to the ban on exchanging competitively relevant information among competitors.
4. USE OF THE OZMI PLATFORM, OBLIGATIONS AND RESPONSIBILITIES
Subject to the obligations in Sections 5. and 6. below, the Account users can use the platform as follows:
4.1. Buyers can view the Suppliers’ and Distributors’ company profiles and check their products and services. They can contact Suppliers, Distributors and if supported or offered by suppliers, request for quote or even start a collaboration.
4.2. Distributors can list Suppliers’ products and services. Upon interest of a Buyer, Distributors can establish contact or coordinate between the Buyer and a respective supplier.
4.3. Suppliers are responsible to keep their service or product descriptions up to date, accurate and have to inform Chemster reasonably in advance if any changes have to be made.
4.4. In order to enhance the quality of their offerings, Suppliers might be encouraged to display their committed response times for fulfillment, delivery, queries and/or requests from Buyers. Such commitments are generic in nature and may not become legally binding between Buyer and Supplier unless they are explicitly agreed to between the Supplier and the Buyer.
4.5. If Buyers and Suppliers are sharing documents through the platform, the entire responsibility for those documents and their contents, including but not limited to data accuracy, personal or sensitive data, intellectual property, or confidential information, lies with the Buyers and the Suppliers alone.
4.6. Ozmi provides a Product Lifecycle Management (PLM) tool to enable Buyers and Suppliers to collaborate in creating Buyers’ own cosmetic products. Since Chemster only provides a tool for its Users, it does not take responsibility or is in any way liable for these products.
4.7. If Buyers and Suppliers or Distributors—upon making contact on the platform—conduct business on or off the platform, Chemster is not liable and does not take responsibility for any direct or indirect consequences.
4.9. Chemster can block and/or blacklist users for infringements against rules in this Section 4 or against the Users’ obligations in Sections 5. and 6. below.
5. GENERAL USER OBLIGATIONS
5.2. The Users are solely responsible for any content they upload, publish or otherwise make publicly available through Ozmi. Chemster does not check the content, particularly not for completeness, accuracy, legality, availability, quality and suitability for a specific purpose.
5.3. The Users are prohibited from any activities on or in connection with Ozmi that violate applicable law, infringe the rights of third parties or violate the principles of youth protection.
5.4. Furthermore, the Users are prohibited from performing the following activities irrespective of any violation of the law:
- the distribution of viruses, trojans, and other harmful files;
- sending junk or spam mails and chain letters;
- the dissemination of offensive, sexually oriented, obscene, or defamatory content or communication as well as such content or communication which is/are suitable to promote or support racism, fanaticism, hatred, physical violence, or illegal acts (either explicitly or implicitly in each case);
- the distribution of unsolicited advertising or promotional material, except with the recipient’s consent,
- the distribution of advertising or promotional material related to products or services not offered on the Ozmi Platform,
the harassment of other Users, e. g. by repeated personal contacts without invitation or against the wish of the other User, as well as the promotion or support of such harassment;
- the dissemination of any content that violates any intellectual property or other rights of any third party;
- the request of other Users to disclose passwords or personal data for commercial or illegal purposes;
- the dissemination and/or public reproduction of content available on Ozmi.
5.5. Should the Users become aware of the loss or misuse of their access data or the suspicion of misuse of their user account, the Users must notify Chemster immediately. A disclosure of the login data to third parties is prohibited.
5.6. The Users shall indemnify and hold Chemster (including members of the company and any service recipient, their employees, officers, directors, shareholders, agents, successors, and assignees) harmless from and against any claims, lawsuits, actions, damages, costs, fines, and expenses (including reasonable legal costs and disbursements) or other liability arising out of or related to the Users’ content on Ozmi.
6. FURTHER USER OBLIGATIONS
6.1. The Users shall be solely responsible for
(a) ensuring that any information they provide on the Ozmi Platform and any information about themselves is true, accurate, and complete and is kept up to date;
(b) ensuring that their presence and communication on the Ozmi Platform complies with applicable legal requirements, e.g. as regards the obligation to provide an imprint/legal notice or to include mandatory information in their communication;
(c) storing and creating regular backups in accordance with best industry practice of any data related to the purchase transactions entered into through the Ozmi Platform;
(d) any activities, in particular any contractual declarations, that occur on the Ozmi Platform under its accounts or passwords;
(e) ensuring that any information (including any technical information on products or product compositions) it provides on the Ozmi Platform or products it generates under use of the services provided on the Ozmi Platform is free of third-party intellectual property rights.
6.2. The Users must not do or attempt to do any of the following:
(a) manipulate prices, e.g. by collaborating with intermediaries or using fake profiles;
(b) contact other Users outside the Ozmi Platform to conclude or implement a purchase transaction which was initiated with such User over the Ozmi Platform;
(c) gain unauthorized access to any portions or areas of the Ozmi Platform for which access has not been expressly granted to the User by Ozmi;
(d) obtain or recreate any access credentials of any other Users by hacking, password mining or similar means;
(e) block, falsify or otherwise interfere with any information or data communicated by other Users over the Ozmi Platform, or use any information provided by other Users outside the Ozmi Platform or otherwise for any purpose other than the initiation or implementation of purchase transactions over the Ozmi Platform; or
(f) take any action or do anything that could impair the security, integrity, availability or performance of the Ozmi Platform.
6.3. The Users shall notify Ozmi without undue delay if they encounter any issues or malfunctions during the use of the Ozmi Platform.
7. INTELLECTUAL PROPERTY RIGHTS
7.2. The User may not copy, reproduce, distribute, display, transmit, modify, create derivative works, or reverse engineer any portion of the Ozmi Platform or any information, data, and other content made available by other Users through the Ozmi Platform. The User must not use any robots, spiders, crawlers, deep links, or any similar technology, devices, or manual processes to systematically and/or repeatedly access and collect information made available through the Ozmi Platform.
7.3. The User grants Chemster the non-exclusive, royalty-free, transferable, sub-licensable worldwide right to use any information, data, and other content provided or submitted by the User for the purpose of operating the Ozmi Platform, in particular to store, reproduce, distribute, edit, change, make available, transmit, publish, and make publicly accessible such information. This especially includes any logos, trademarks, and other material that is used to create a company profile.
8. RIGHTS TO THE DATABASE
8.1. Chemster is the legal owner of the contents of the Ozmi platform and the database. All copyrights, trademark and other property rights to the database work, the database and the contents, data, and other elements posted here are the exclusive property of Chemster or third-parties that licensed the contents data and other elements to Chemster; any rights of the User to the contents posted by them shall remain unaffected.
8.3. The User may not use the data obtained by means of a query, either in full, in part or in excerpts, to build up their own database in any form and/or for commercial data exploitation or provision of information and/or for any other commercial exploitation. The linking, integration or other connection of the database or individual elements of the database with other databases or meta-databases is not permitted.
9. DATA PROTECTION
10.1. Either party shall treat as strictly confidential and not disclose, enable access to or use any information, data, documents, or materials in any form (whether written, electronic, graphic, visual, oral, or otherwise) and any copies of the foregoing that are provided by either party to the other or which otherwise become accessible or known to a party, including any such materials provided by other Users and including in particular any offer received from a Supplier (in case of a Buyer) and any quote request received from a Buyer (in case of a Supplier) (in each case, “Confidential Information”). All parties shall use all reasonable endeavours to prevent any access by third parties to such Confidential Information.
10.3. This Section 10 shall not prohibit disclosure or use of any information if and to the extent:
(a) the disclosure or use is required by law or any regulatory body, provided that the party so required to disclose Confidential Information shall notify the other party without undue delay and reasonably cooperate with the other party in the defense of such request and/or to obtain assurances as to confidentiality from such body;
(b) the disclosure or use is required for the purpose of any judicial proceedings arising out of the agreement between the User and Ozmi, or the disclosure is made to a tax authority in connection with the tax affairs of the disclosing party;
(c) the disclosure is made to professional advisers of either party on terms that such professional advisers undertake to comply with the provisions of this Section 1010 in respect of such information as if they were a party to the agreement between the User and Ozmi; or
(d) the other party has given prior written approval to the disclosure or use.
10.4. Notwithstanding the preceding provisions, Ozmi may use the User’s name and logo as reference in its marketing materials, promotion and advertising of the Ozmi Platform.
11. WARRANTY AND LIMITATION OF LIABILITY
11.1. Warranty for the Provisioning of Ozmi:
(a) Chemster provides Ozmi with 99 % uptime based on a monthly average. Chemster will take reasonable measures to ensure this availability and to maintain operations. Nevertheless, it may happen that the platform is temporarily unavailable. Such downtime without Chemster’s fault (Verschulden) does not affect the uptime according to sentence 1 and Chemster is not liable for such downtime. Chemster endeavors to restore the availability as quickly as possible, as far as the cause for the unavailability is within its own sphere of influence. Chemster will inform in due time about planned maintenance work that may affect the services. The User is, in particular, responsible for making their own backups of their system. These provisions do not apply, if availability was limited due to Chemster’s gross negligence or willful misconduct.
(b) Chemster shall not be liable without fault (verschuldensunabhängige Haftung) for damages of Ozmi regarding § 536a para. 1 alt. 1 BGB.
11.2. Limited Liability for the Provisioning of Ozmi
(a) Chemster’s liability for intent and gross negligence as well as under the German Product Liability Act (Produkthaftungsgesetz) and for simple negligent injury to life, limb, or health shall be unlimited.
(b) Liability for the slight negligent breach of contractual obligations, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely (cardinal obligations, Kardinalpflichten), is limited to the typically foreseeable damage.
(c) All other liability of Chemster is excluded.
11.3. Evaluation Services for enhancing Ozmi:
(a) Ozmi releases additional features or feature enhancements from time to time for the purpose of testing and evaluation. Those features are usually labeled as “NEW”, “BETA” or “EXCLUSIVE EARLY ACCESS” or “TEST” and are used to collect user behavioral feedback with a sole purpose to enhance the user experience and to evaluate the feature compatibility.
(b) Such releases do not guarantee the same reliability and availability due to the testing and evaluation nature of the release. This, however shall not affect other features that are already offered on the platform.
(c) Not all testing and evaluation features can be labeled according to Section 11.3 (a) above due to their dependency on an unchanged UI. These features will not, however, negatively impact reliability, availability or the other features that are already offered on the platform.
The User shall indemnify and hold Chemster and its affiliates, directors, officers, agents, employees and contractors harmless from and against any claims or losses or costs, including reasonable attorney fees, incurred by Chemster
(a) which arise out of or in connection with any agreement entered into by such User with any other User or any third party via Ozmi;
(c) due to the User’s improper use of Ozmi Platform; or
(d) due to or violation by such User of any applicable laws or any rights (including any intellectual property rights) of any third party.
13. TERM AND TERMINATION
13.3. As a general rule, Chemster does not issue refunds. However, Chemster will refund or reimburse Customers’ fees if required by applicable law.
13.4. It is the User’s sole responsibility to create a backup of any of its data stored on the Ozmi Platform prior to termination taking effect.
14.1. The User is solely and fully responsible for any of its communication through the Ozmi Platform.
14.2. Any communication between Users or by Ozmi to Users shall be deemed received by the respective User upon receipt of such communication through the Ozmi messaging function or, if sent by e-mail, upon receipt of such e-mail by such User in the account specified during registration for the Ozmi Platform.
14.3. With respect to any communication exchanged between Users over the Ozmi Platform, Ozmi acts as a messenger only and not as representative or agent of either User. None of the Users have authority to act on behalf or in the name of Ozmi, nor does Ozmi act on behalf or in the name of any User.
14.4. Chemster will transfer the data and information entered by the User into the Ozmi Platform to other Users of the platform. The other Users include Users within the same company, Registered Free Users of suppliers and buyers as well as any other registered Users on the Ozmi platform. Such data and in particular any data or communication relating to a purchase transaction between a Supplier and a Buyer will not be disclosed by Ozmi to any third party other than the Supplier and Buyer who are party to such transaction without consent.
15.7. In case of any dispute between a User and Chemster in relation to the use of the Ozmi Platform, the parties will faithfully attempt to amicably resolve such dispute. Place of performance of all services rendered by Chemster hereunder and the exclusive place of jurisdiction for all disputes arising under or in connection with the agreement between a User and Chemster, including tort claims and pre-contractual claims, shall be Mannheim, Germany.
15.8. The agreement between any User and Chemster for the use of the Ozmi Platform and any disputes arising out of or in connection with such agreement shall be governed by substantive German law without giving effect to any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. For the avoidance of doubt, any claims and disputes arising from or relating to any agreement between a Supplier and a Buyer (including without limitation any claims for supply of products, payment of the purchase price, warranty or liability claims) shall be dealt with and resolved solely by and between the respective Supplier and Buyer. Chemster will not act as a mediator or arbitrator or otherwise be involved in any such disputes.