General Terms and Conditions of Use
(“Brain of Materials”)
for use of the Brain of Materials platform
Version: March 15, 2021
1.1 Brain of Materials (hereinafter “Brain of Materials” or “we”) operates a digital material platform accessible via the Internet (“Digital Material Platform” or “Platform”) which enables users to view and search for a wide range of materials from a number of producers/distributors from various industries. Digital Material Platform customers can also commission certified material tests digitally using external third parties’ services.
Material producers and distributors (“Producers/Distributors”) can use the Platform free of charge to display and thus distribute images, visualisations, information and other data relating to their materials. Registered Producers/Distributors can upload images, visualisations, information and other material data for a fee in the material producer area (“Material Producer Area”). Freelancers and start-ups are also considered Producers/Distributors, but they can use the Digital Material Platform to display up to five (5) materials free of charge. The conditions for Producers/Distributors therefore apply for freelancers and start-ups with the exception of payment for the service provided by Brain of Materials. A start-up in this sense is a legal person or partnership (Personengesellschaft) which was founded no more than five (5) years prior to registration on the Platform and which employs fewer than ten (10) employees (full-time or part-time). A freelancer is a natural person who is self-employed and is not an employee or representative of a legal person and acting on its behalf.
The images, visualisations, information and other material data posted by Producers/Distributors are displayed to Users of the Platform on separate material detail pages (“Material Detail Page(s)”) in the user area (“User Area”) and can be searched through using the search function provided by Brain of Materials.
In the event that there are such regulations which affect both groups of Users, Producers/Distributors and Users are hereinafter also collectively referred to as Customers.
1.3 The following provisions (T&C) apply exclusively for business relationships with customers, as well as for information and advice. If our T&C are applied to dealings with a contractual partner, they also apply for all further transactions between Brain of Materials and the contractual partner, unless otherwise expressly agreed.
1.4 Any deviating conditions stipulated by the Customer as the contractual partner only apply if and to the extent that Brain of Materials expressly acknowledges them in writing. It should be noted in particular that silence on the part of Brain of Materials in respect of such deviating conditions is not considered acknowledgement of or agreement with them, including for future contracts.
1.5 The T&C also apply instead of any of the Customer’s terms of purchase, even if, in accordance with these, acceptance of an order constitutes unconditional acknowledgement of the terms of purchase or if Brain of Materials supplies goods or services after being notified by the Producer/Distributor of the application of its general terms of purchase, unless Brain of Materials expressly waives the right to the application of its T&C. The Customer’s general terms of purchase are excluded even if the T&C do not contain any separate provisions for specific points which require regulation. By accepting the order confirmation or using the Platform, the Customer expressly waives its right to make an objection based on the terms of purchase.
1.6 Where Brain of Materials has concluded framework agreements or other contracts with the Customer regarding the same contractual object, these take priority. Unless any specific provisions are laid out therein, they are supplemented by these T&C.
1.7 Where damages claims are discussed below, they are also understood to mean claims for reimbursement of expenses within the meaning of Section 284 BGB.
1.8 By using or visiting the websites www.brainofmaterials.com, www.brainofmaterials.de, the software and all subpages and/or applications found there (collectively referred to as the “Website”) which are provided by Brain of Materials or its affiliated enterprises within the meaning of Section 15 AktG (Aktiengesetz [German Stock Corporation Act]), the Customer declares that it accepts the T&C.
If you use the Platform as a Producer/Distributor for paid services from Brain of Materials, you must also conclude a paid contract with Brain of Materials in addition to the User Agreement.
2.4 Use of the Platform by a Customer is subject to the prerequisite that the Customer already meets the personal conditions of use laid out in Section 2.5:
2.5 Use of the Platform as a Customer is restricted to those who
- have unrestricted legal capacity as natural persons and are at least 18 years old, and
- have been duly incorporated, in the case of legal persons, and
- are duly represented when concluding the contract with us, and
- are acting on their own behalf, and
- are using the Platform as part of their self-employed or commercial activities.
3.1 Definitively, the scope of services provided by Brain of Materials solely consists (a) for Customers of the means to view, free of charge, the content of the Platform (materials posted by Producers/Distributors) subject to availability via the features provided and (b) for Producers/Distributors of the technical conditions required to transmit information (material data for the Material Detail Pages). The following in particular are not provided, however, and do not form part of the scope of services: Consultancy services, advice or information on the materials posted, material recommendations.
3.2 Upon use of the first service, we are obliged to guarantee access to the Platform with average annual availability of 95%. Uninterrupted availability is not part of the services we are obliged to provide, however. Necessary maintenance work, compelling safety reasons and events beyond our control (e.g. disruptions to public communication networks, failure of computer network nodes, power outages or similar events) in particular can lead to disruptions or the temporary suspension of our services and the availability of the Platform and may even entail availability being reduced to below the average of 95% without this constituting a contractual breach of obligation on our part, provided that we did not cause such a breach of obligation culpably. Access to the Platform and the availability of it for the Customer also depend in particular on the Customer’s own technical equipment, as well as on data transmission over the Internet by third parties. We are not responsible for the transfer and/or capacity to transfer data via the World Wide Web.
3.3 We render our services solely based on the technical status of the Platform when the User Agreement is concluded, the technical status of the Platform and the Internet at this point and at the exact point at which services are used, and the general legal and commercial conditions of its use within the Federal Republic of Germany.
3.4 We may temporarily restrict or suspend access to the Platform at any time by limiting the level of availability required in accordance with Section 3.2 above if it is absolutely necessary to do so in the interests of the security or integrity of our server or to carry out urgent technical work to enable continued provision of our contractual service, including to other Customers. In particular, it may be necessary to restrict access to the Platform to provide protection against attacks from the Internet (e.g. Denial of Service attacks) and doing so is permitted in such a case, even if doing so will reduce the annual average availability in accordance with Section 3.2. We would advise in this regard that in order to prevent unauthorised third-parties from gaining access to the data we have stored, we only protect our systems using the security systems currently available to us, and that complete protection against third-party attacks is not possible using current technology and we are not obliged to provide this.
3.5 Brain of Materials acts as neither an intermediary nor a party nor a representative of a party in the relationship between Producer/Distributor and User. Contracts which are initiated as a result of a material posted via Brain of Materials are concluded and fulfilled without the involvement of Brain of Materials.
3.6 The service which Brain of Materials is obliged to provide to Producers/Distributors consists of providing an entry form for Material Detail Pages, activating the Material Detail Pages entered using the entry form, hosting the data entered and enabling the Material Data Pages to be accessed on the Platform over the Internet up to the point of the World Wide Web connection on Brain of Materials’ pages for the period of time agreed with the Producer/Distributor. Brain of Materials may use other companies for the purposes of fulfilling the contract and exercising the rights arising from this contract. Brain of Materials is not responsible for the availability or transmission of data via the World Wide Web or for the compatibility of every type of Producer/Distributor data. The Producer’s/Distributor’s contractual account is non-transferable and cannot be used by different branches or locations.
3.7 The service provided by Brain of Materials to the Producer/Distributor is rendered when the Producer’s/Distributor’s Material Detail Pages are posted on the Platform with average annual availability of 95% and can be accessed on the Platform via the World Wide Web (see Section 3.2).
3.8 Brain of Materials is not responsible for whether the Material Detail Pages completed by the Producer/Distributor meet legal requirements. Brain of Materials is also not responsible for whether purchase agreements which are initiated or concluded on the basis of the Material Detail Pages are enforceable in accordance with the state law of a state concerned or whether they have the desired legal or commercial results for one or both of the parties to the purchase agreement in any other way.
3.9 Depending on the chosen service package, the Producer/Distributor can set up as many Material Detail Pages on the Platform as it likes in accordance with the contractual provisions. Brain of Materials gives the Producer/Distributor the option to choose from various service packages either listed on the website or agreed personally. The Producer/Distributor chooses its desired service package when concluding the Producer Agreement for Material Producers/Distributors between Brain of Materials and the Producer/Distributor.
3.10 Brain of Materials promotes the Digital Material Platform and the Material Detail Pages posted by Producers/Distributors itself and/or via third parties, e.g. by integrating the Material Detail Pages or excerpts of them into other websites, software applications or emails or into print, radio and TV marketing campaigns. Brain of Materials also allows third parties to advertise their offers and Platform services via the Platform. For support with these activities, Brain of Materials may also grant third parties access to the data, information and content published on the Platform.
3.11 The right to use the Digital Material Platform and its features is only granted within the bounds of current technology.
3.12 In accordance with this contract, Brain of Materials does not give a guarantee in the legal sense or assume any procurement risk within the meaning of Section 276 BGB.
3.13 Brain of Materials may make use of the Digital Platform or the scope within which individual features and services can be used subject to certain prerequisites, e.g. the verification of registration details, the length of the contractual relationship, the nature and scope of use and the fulfilment of certain security measures such as entering passwords.
3.14 Brain of Materials has the right to test new or modified functions and features, restricted to certain user groups, at its reasonably exercised discretion (Section 315 I BGB) for the purpose of improving the user experience, provided that doing so is considered reasonable by the Producer/Distributor, taking Brain of Materials’ legitimate interests into account. This may result in different things being displayed for different Users.
3.15 Brain of Materials reserves the right to limit the daily number of records entered by a Producer/Distributor where it is necessary to do so for technical reasons relating to the Platform, particularly with regard to capacity. This applies in particular for data transmission via the interfaces provided by Brain of Materials for this purpose.
3.16 For technical reasons beyond Brain of Materials’ sphere of control or due to necessary maintenance work, access to published Material Detail Pages may be temporarily unavailable or restricted (unplanned system downtime and maintenance).
3.17 Any general terms and conditions stipulated by the Producer/Distributor in any form, particularly in the form of general terms of purchase, do not form part of the contract. This applies even if the Producer/Distributor repeatedly makes reference to them and, in particular, even if Brain of Materials continues to provide its service after such reference has been made.
4.1 As a Producer/Distributor within the meaning of this contract, the Producer’s/Distributor’s individual branches, points of sale or other locations also apply in addition to its head office in respect of the right to use the Platform. Separate registration is required for each of these locations and Brain of Materials invoices each of the specified locations individually.
4.2 When a Producer/Distributor registers on the Platform, Brain of Materials decides at its own discretion whether to accept its application. The Producer’s/Distributor’s application is accepted by way of an order confirmation in text form sent to the email address provided by the Producer/Distributor or by sending the login details (username and password) for the User Area to the Producer/Distributor.
4.3 The Customer is obliged to provide complete, accurate details during registration and performance of the contract. This applies in particular for details which determine whether free-of-charge status as a freelancer or start-up should be granted.
4.4 During registration and in the course of the contract, Brain of Materials has the right to request from the Producer/Distributor an excerpt from the trade register (Handelsregister) and/or register of business activities (Gewerberegister), as well as other documents and information which are necessary for registration, for the continuance of the contractual relationship or as proof of identity.
4.5 If the details provided change following registration, the Producer/Distributor is obliged to immediately inform Brain of Materials of this in writing or in text form.
4.6 The Customer must check whether the details provided are accurate when it first registers and every time they change.
4.7 Brain of Materials may at its discretion allow Producers/Distributors to enable Users from another affiliated enterprise within the meaning of Section 15 AktG (e.g. another company within the same group of companies or another of the Producer’s/Distributor’s locations) to log into the Producer’s account with its login details and use this. However, this is always subject to the authentication and authorisation of the User; proof of this must be provided to Brain of Materials at Brain of Materials’ request by way of appropriate evidence and/or declarations by the Producer/Distributor. Brain of Materials informs the Producer’s/Distributor’s contact person(s) that such access has been granted.
4.8 The Producer/Distributor and, where they are required to use a password on the Platform, the User are obliged to keep their password secret and to carefully protect their login details from third-party access. It is also obliged to immediately inform Brain of Materials in writing or in text form if there are any indications that its login details have been misused by a third party. This also applies for the login details of a Producer’s/Distributor’s individual Users where a Producer/Distributor has several logins.
4.9 Brain of Materials does not share Customers’ passwords with third parties and never asks Customers for their passwords by email or telephone.
4.10 The Customer is liable in accordance with the legal regulations for all activities carried out using its login details or by user logins on their account which it has authorised, including in particular for all activities carried out by its individual Users where a Producer/Distributor has several logins. If the Customer is not responsible for misuse of its login details because it has not breached its duties of care, it is not held liable.
The Producer/Distributor is obliged to take all cooperative action within its sphere free of charge and in a timely manner so that Brain of Materials can fulfil the contract concluded with the Producer/Distributor as contractually agreed. In particular, the Producer/Distributor is obliged to provide Brain of Materials with all materials, information and data which are necessary for the provision of its services in a timely manner and in full before orders are fulfilled and to make copies of the data provided before it is transmitted to Brain of Materials. The Producer/Distributor shall also designate a competent contact person for any queries by Brain of Materials regarding the materials and/or product information provided.
6.1 Brain of Materials shall inform the Customer immediately if, for reasons beyond its control, Brain of Materials does not obtain services which are necessary to render its own contractual services from its own suppliers despite correct and adequate coverage of its requirements before concluding the contract with the Customer in terms of the required quantity and quality arising from its contractual agreement with the Customer (congruent coverage), or if it is unable to do so properly or in time, or if force majeure occurs and lasts for a substantial period of time (i.e. for longer than 14 calendar days). In this case, Brain of Materials has the right to postpone the service for the duration of the hindrance or withdraw from the contract in part or in full on the grounds of the unfulfilled part provided that Brain of Materials has fulfilled the above information obligation and has not assumed procurement risk in accordance with Section 276 BGB or given a performance guarantee. Force majeure includes circumstances such as strikes, lockouts, official interventions, epidemics, pandemics, energy and raw material shortages, transport bottlenecks or disruptions, operational hindrances for which it is not responsible — caused for example by fire, water and damage to machinery — and any other obstructions which, when considered objectively, have not been caused culpably by Brain of Materials.
6.2 If a service deadline or service period is agreed by Brain of Materials and the Customer with binding effect and/or if the agreed deadline or agreed period is not complied with due to events laid out in Section 3.1, the Customer has the right to withdraw from the contract on the grounds of the unfulfilled part if an adequate grace period lapses with no success. In this case, any further claims by the Producer/Distributor, particularly those relating to damages or reimbursement for expenses, are excluded.
6.3 The above provisions laid out in Section 6.2 apply accordingly if, for the reasons stated in Section 6.1, continuing to adhere to the contract is objectively unreasonable to the Customer, even if a fixed service deadline is not contractually agreed.
7.1 The User Agreement for use of the Platform is concluded for an indefinite period of time. It can be terminated by Users or by us by way of ordinary termination with a notice period of two (2) weeks to the end of the month. Producers/Distributors can only terminate the User Agreement by way of ordinary termination as of the end of the additional contract specified in Section 3, or as of the end of the contract with the longest term if there are multiple contracts.
7.3 The right to terminate the User Agreement without notice remains unaffected.
8.1 The Customer grants Brain of Materials free of charge a non-exclusive, transferable right, unlimited by time, territory and content and for which sub-licences may be granted, (“Licence”) to use the content which it has provided to Brain of Materials online and offline in all known and unknown forms of use, and in particular to make the content public and to copy it, distribute it and edit it in any way. This Licence remains in force until the Producer/Distributor removes its content from the Website; after this, the Licence expires after a period of 6 months. Irrespective of the above, the Licence remains in force for an unlimited period of time for the purposes of archiving/storage for legal reasons.
In particular, the rights granted above include
• the right to copy the content on any analogue and digital image and sound media (e.g. CD, CD-ROM, DVD, memory cards, hard drives, video cassettes, etc.) and in any print media (e.g. magazines, newspapers, trade press, billboards, flyers, brochures, newsletters);
• the right to combine the content with other content (text, images, hyperlinks, trademarks, logos, etc.) and other advertising materials and to use these combinations in accordance with this Agreement;
• the right to edit the content or have it edited, particularly to decrease it, increase it, split it into parts, shorten it, modify it and use these edits in accordance with this Agreement (Brain of Materials does not modify the substance of it and the Producer’s/Distributor’s details on the Material Detail Page when doing so);
• the right to use and present the content in presentations, e.g. in PowerPoint presentations and at internal and public events such as trade fairs, seminars and training sessions;
• the right to enter the content into any database and store it there.
8.2 Brain of Materials also has the right to translate or have translated its Material Detail Pages for the aforementioned purposes for international websites and software applications.
8.3 The Customer guarantees that it has produced the aforementioned content for the Digital Material Platform itself and/or that it has the right to share it with Brain of Materials within the contractually agreed scope, including for the contractual licensing of Brain of Materials, and that their content complies with all applicable laws.
8.5 The content on the Website may only be downloaded, distributed, advertised or copied if the Customer has concluded a licensing agreement with Brain of Materials.
8.6 Producers/Distributors or other Users of the Website may not remove watermarks or copyright notices from the content.
8.7 The design of the Brain of Materials Website, including all page headers, user-defined graphics, button icons and scripts, is trademarked by Brain of Materials and cannot be copied, imitated or used by the Customer, in part or in full, without prior written consent from Brain of Materials.
8.8. The Customer will not use any Brain of Materials trademarks or variations thereof (including misspellings) as domain names or, regardless of the top level domain, as part of a domain name or a meta tag, keyword or any other type of program code or data.
All other trademarks, product names and company names or logos which appear or are used on the Website remain the property of the respective owner. References to products, services, processes or other information by brand name, trademark, producer, supplier or otherwise do not necessarily constitute endorsement, backing or recommendation by Brain of Materials, unless otherwise expressly stated.
• Deleting Material Detail Pages or other content published on Brain of Materials;
• Delaying publication of content published on Brain of Materials;
• Warning the Customer;
• Limiting/restricting use of the Platform;
• Temporarily blocking the Customer;
• Permanently blocking the Customer.
When deciding which measure to take, Brain of Materials shall take the legitimate interests of the affected Customer into account, particularly whether there are any indications that the User has not committed the breach culpably.
9.3 Brain of Materials can temporarily block a Customer to stop them from using the Digital Material Platform. The result of a temporary block is that the Customer can no longer log into the Platform and a Producer/Distributor can no longer access its Material Detail Pages via the Platform.
9.4 In the event of payment default on the part of the Producer/Distributor, withdrawal of its direct debit authorisation or a dishonoured direct debit in relation to the Producer/Distributor, Brain of Materials has the right to withhold its own service and make the material listings posted by the Producer/Distributor concerned unavailable so that its Material Detail Pages can no longer be reached via the Digital Material Platform.
9.6 If Material Detail Pages or their contents are erased for any legitimate reason or taken offline, Brain of Materials has the right to retain the data previously entered by the Producer/Distributor for the purposes of data and user analysis.
10.1 Materials are presented on Material Detail Pages within the Digital Material Platform. A Material Detail Page contains descriptions, properties, media and general data directly related to the material, its use or its purchase options. The following criteria are used to determine whether different types of material require separate Material Detail Pages:
• Differences in colour, dimensions and shape do not require separate Material Detail Pages.
• Differences in all other properties (including material composition, finish, cladding, provision, surface finish, function, product name, price) require a separate Material Detail Page.
Regardless of the above criteria, Brain of Materials has the right to combine several materials in one Material Detail Page.
10.2 Displaying several materials on one Material Detail Page, either individually or as a package, is not permitted.
10.3 The Producer/Distributor is obliged to only post a material in the material category provided for it (e.g. leather, metal, plastic, textiles, wood, etc.). The valid material categories are those displayed via the filter option on the Digital Platform at the point at which the Material Detail Page was put online.
10.4 The Producer/Distributor is not permitted to post the same material in the same category multiple times. The Producer/Distributor is not permitted to post the same material in different categories either.
10.5 The Producer/Distributor is obliged to provide complete and accurate information relating to the material, the material properties, the material description, the uploaded documents and the other content on the Material Detail Page. Incorrect details which are entered by mistake (e.g. typing errors, entry into the wrong material category, assignment of wrong properties) must be reported to Brain of Materials at firstname.lastname@example.org immediately following discovery.
10.6 For the lifespan of the Material Detail Page, the Producer/Distributor must ensure that the material displayed is available for purchase, unless the material posted is under development and labelled as such.
10.7 The Producer/Distributor must illustrate the Material Detail Pages with photographs. The Producer/Distributor is obliged to only use on the Platform photographs which it is allowed to use without restriction and which are not covered by third-party rights — particularly by third-party copyrights — unless it has obtained the appropriate licence from the copyright holder with the corresponding sub-licensing rights in favour of Brain of Materials and given Brain of Materials proof of this. The photos used must not be misleading and must reflect the actual condition of the materials offered.
10.8 Where Brain of Materials provides certain quality seals, labels of guarantee, certificates or other quality assurance symbols, the Producer/Distributor is obliged to ensure that these are only displayed on Material Detail Pages for materials which qualify for them. Other quality assurance symbols may only be used if expressly authorised by Brain of Materials.
10.9 The wording, content, visual presentation and purpose of a Material Detail Page must not violate legal regulations or generally accepted customs and practices. Traders must comply with the provisions of copyright and trademark law and the imprint obligations laid out in the German Telemedia Act (Telemediengesetz) in particular.
10.10 The Producer/Distributor is obliged to provide true and correct price details. The provisions of the German Price Quotation Regulation (Preisangabenverordnung, PAngV) in particular must be observed in this regard. In accordance with Section 1(1) PAngV, final prices must be provided; in particular, they must include VAT and other pricing components (e.g. shipping costs). Material Detail Pages with price details which are obviously inaccurate or misleading are prohibited.
10.11 The Producer/Distributor is not permitted to insert links to external websites, other platforms and sources of information into a Material Detail Page unless this is required by law. In this context, links also include email addresses and inactive web addresses (URLs) and parts thereof. This does not include the Producer’s/Distributor’s contact details under the header “Company”.
10.12 The Producer/Distributor is not permitted to display advertising copy on Material Detail Pages or to encourage Digital Material Platform Users to purchase materials or services using text, images, attachments and other information.
10.13 The Producer/Distributor cannot upload, publish or transmit any images, text, videos, audio files or other content which
• infringe third-party copyrights, intellectual property rights, privacy or data protection rights;
• are used for fraudulent purposes or give rise to concerns relating to misleading advertising or unfair competition; or
• breach laws, legal provisions or regulations.
10.14 Brain of Materials has the right to refuse to publish Material Detail Pages which do not meet the requirements of this contract or the contractually agreed General Terms and Conditions of the Platform.
12.1 The Producer/Distributor is solely responsible for the information and material data which the Producer/Distributor has added to the Material Detail Page. Brain of Materials is not obliged to check whether the content of the Material Detail Pages is accurate or complete. Brain of Materials does not give any guarantee regarding the accuracy and completeness of the Material Detail Pages.
12.2 Brain of Materials has the right to add additional data (e.g. properties, tags, attachments, pictures) to the Producer’s/Distributor’s Material Detail Page in order to optimise searches on the Digital Platform.
12.3 Brain of Materials is also authorised to amend generic material names in order to ensure that the structure of the gallery view is consistent.
12.4 If a Producer/Distributor transmits its entire stock of materials or individual Material Detail Pages to the Digital Material Platform via an interface or any another means provided by Brain of Materials for automatic transmission, it is obliged to check whether the transmitted data is correct and complete. Due to the differing technical specifications of different file formats, Brain of Materials gives no guarantee that the data will be transmitted in full and with no errors. The Producer/Distributor is also obliged to only carry out such transmission in the format agreed with Brain of Materials for this transmission, even if it is carried out by one of the Producer’s/Distributor’s data service providers.
13.1 To make searches for materials on the Digital Material Platform as interesting and successful as possible, Brain of Materials endeavours to keep data up-to-date. For this reason, the Producer/Distributor should immediately label Material Detail Pages as “out of stock” or the equivalent on the Platform if the material offered becomes unavailable, goes out of stock or is no longer produced for any reason. To make finding materials with certain properties easier, Brain of Materials may display information on properties taken from the free text on the Material Detail Pages as optional properties in the detailed search.
13.2 Every Producer/Distributor is obliged to keep the stock of materials advertised via Brain of Materials up-to-date and to perform administration in the Producer Area regularly within a six-month period. If administration is not performed within this period of time, Brain of Materials reserves the right to disable the Producer’s/Distributor’s Material Detail Pages so that, in the absence of up-to-date data, the relevant Material Detail Pages can no longer be viewed in the User Area on the Digital Material Platform and can no longer be accessed via the search form on the Digital Material Platform. The Material Detail Pages are activated automatically when the Producer/Distributor independently performs such administration.
13.3 Every Producer/Distributor is obliged to make back-up copies of its data, including material photographs, so that Material Detail Pages can be recovered quickly in the event of data loss.
13.4 Every Producer/Distributor is responsible for archiving information which can be viewed on the Platform, and which Brain of Materials stores for the purposes of preserving evidence, accounting or otherwise, on a storage medium independently of Brain of Materials.
14.1 Customers can only search for materials on the Platform using the search forms provided by Brain of Materials. Searching for materials by bypassing search forms, particularly by using search software which is not authorised by Brain of Materials and which accesses the Platform, is prohibited. The content of the Platform cannot be extracted, reused, integrated into another website, linked and/or connected in any other way, either in part or in full. The use of data mining, robots, grabbing, scraping and/or similar data collection and extraction programs and techniques is prohibited, including in particular in respect of the content accessible in the User Area. Violations are prosecuted under civil law, including as encroachments of an established and operating business, and may have consequences under criminal law as prohibited encroachments of related rights in accordance with Sections 108 et seqq. of the German Copyright Act (Urhebergesetz).
14.2 Activities aimed at impairing the performance of the Platform are prohibited. The Customer cannot take any measures which result in an unreasonable or excessive burden on the infrastructure of Brain of Materials. The Customer is not permitted to block, overwrite or modify content generated by Brain of Materials or interfere with the Platform in any other disruptive way.
14.3 The search function on the Platform enables Users to find specific materials quickly. So that Users can use appropriate search terms to obtain the desired search results, the text on a Material Detail Page must clearly relate to the material offered. Producers are therefore prohibited from tampering with or manipulating the results of the search function on the Platform using incorrect or misleading information or terms, by posting materials in the wrong material category, by taking technical measures or by misusing the Platform’s features in any other way. Keyword spamming in particular is prohibited. Keyword spamming means using terms which do not describe, or only partially describe, the actual material and are only used to draw interested parties to the Material Detail Page. This also applies for hidden HTML text and the unlawful use of brand names.
15.1 Brain of Materials has the right to provide a system for rating Producers and/or materials in the future. The rating system enables Brain of Materials Users to rate Producers and/or materials. There is also the option for Producers/Distributors to respond to ratings given by Brain of Materials Users. Once it is launched, the rating system will form an integral part of the Platform. The Producer’s/Distributor’s ratings are displayed together with the Material Detail Pages and the relevant Distributor’s information across the Platform; there is no option to disable them. Depending on the range of services chosen, the Producer/Distributor may be given the option to display the ratings it has been given on its own website.
15.2 The Customer must not misuse the rating system. Misuse includes in particular cases in which the Producer/Distributor positively or negatively influences its own ratings or those of other Producers/Distributors by way of ratings written by it itself or on its behalf, by distributing false information, by granting special terms or incentives, or by making threats or exerting similar influence over Brain of Materials Users.
15.3 The rating system provided by Brain of Materials consists solely of the technical conditions required to transmit information (ratings and responses). Brain of Materials does not have any control over the content of the ratings.
15.5 In the event of an objection regarding the content of a rating, the Producer/Distributor is obliged to assist with investigations into the matter to the best of its ability. To this end, the Producer/Distributor shall, in particular, respond to queries from Brain of Materials on the matter within 14 calendar days, by email or in writing.
15.6 Brain of Materials can advertise the rating system as part of the Digital Platform itself and via third parties in accordance with the contractual provisions. The Producer/Distributor is prohibited from using the content of the rating system (e.g. the ratings) outside the Platform unless Brain of Materials has expressly given consent for such use. Without the appropriate consent from Brain of Materials, the Producer/Distributor is prohibited in particular from using the content on other websites (e.g. its homepage) or in other advertising materials and from providing links to the rating system and its content, e.g. to increase confidence in its product range. In the event of use with consent from Brain of Materials, the Producer/Distributor is obliged to comply with any separate provisions and legal regulations during such use.
16.1 All data, information, company logos, text and images uploaded by the Producer/Distributor to the Material Detail Pages, as well as any other content (e.g. ratings and responses given within the scope of the rating system), may be subject to copyright. The other images available via the Platform are also covered by copyright. Third parties are prohibited from amending them, editing them and using them in media of any kind. This does not affect the rights of the relevant copyright holder and the Producer/Distributor. The Producer/Distributor remains free to use its own data and information as it wishes.
16.2 If the Producer/Distributor uses services or tools offered by Brain of Materials to create videos or other content to be displayed on its Material Detail Pages, the videos and other content created in this way can only be used outside the Producer’s/Distributor’s Material Detail Pages with prior express consent from Brain of Materials.
The Producer/Distributor indemnifies Brain of Materials against all claims made by third parties against Brain of Materials on the grounds of a culpable breach of the Producer’s/Distributor’s obligations under the contract concluded with Brain of Materials or claims made by third parties against Brain of Materials on the grounds of a culpable infringement of their rights by the Producer’s/Distributor’s Material Detail Pages or other use of the Platform by the Producer/Distributor. In this regard, the Producer/Distributor also covers the costs of the necessary legal defence by Brain of Materials, including all court costs and a reasonable amount of proven lawyers’ fees. This does not apply if and to the extent that the Producer/Distributor is not responsible for the legal infringement.
18.1 The service packages supplied are used within the context of a continuing obligation on the basis of the applicable service packages and payment details for Material Producers/Distributors for the publication of materials on the Digital Material Platform. The currently applicable service packages and payment details are contractually agreed with Producers/Distributors on an individual basis.
18.2 Brain of Materials charges its fee in advance for a period of one year. Invoices are always sent electronically by email. The total amount stated on the invoice is payable within one week of receiving the invoice.
18.3 The Producer/Distributor must pay an extra fee for additional services offered on the Platform by third parties. The contract regarding these additional services is concluded exclusively between the Producer/Distributor and the provider of the additional service on the Platform subject to the terms agreed in this regard. Payments for additional services (e.g. commissioning material tests) which the Producer/Distributor arranges via the Platform are made by the Producer/Distributor to the relevant service providers or suppliers of the additional services directly. Brain of Materials solely enables Users to order additional services from third-party suppliers via the Digital Platform. Responsibility for pricing, invoicing, processing payments and supplying services lies with the provider of the relevant additional service. In technical terms, Brain of Materials provides on the Platform, where necessary, a link to a payment transaction service provided by a payment service provider, through which Producers/Distributors can pay for the third-party supplier’s service.
Brain of Materials is responsible for neither access to the aforementioned payment service provider’s service nor the processing of such payments. Brain of Materials therefore accepts no liability for access to the payment service provider accepted by the third-party supplier or its services either. In particular, the payment service provider listed by the relevant third-party supplier on the Platform or otherwise is not considered an agent of Brain of Materials.
18.4 If a Material Detail Page is erased by Brain of Materials in accordance with Section 9 of these T&C for a reason which the Producer/Distributor is responsible for, the listing fee is not refunded and a credit for the service is not issued unless the Producer/Distributor can prove that no damages or expenditure for the erasure are incurred or that they are significantly less (=>10%) than the contractually agreed pro rata remuneration for the period after the erasure until the end of the remuneration period for which remuneration was paid. The deleted Material Detail Page must be paid for together with the invoice for the monthly participation fee.
In the case of paid services, we have the right to unilaterally increase the fee appropriately in the event of an increase in material production and/or material and/or product and/or service procurement costs, wage costs and non-wage labour costs, hosting costs, social security contributions, energy costs, costs incurred as a result of environmental regulations and/or currency regulations and/or public levies or other administration costs if these have a direct or indirect effect on the costs of our contractually agreed services and provided that the length of time between contract conclusion and the service itself is no more than 4 months. An increase in the above sense is precluded if the cost increase in respect of individual factors or all the factors stated above is offset by a cost decrease in respect of any of the other factors stated in respect of the total cost of the service (cost-balancing). If the aforementioned cost factors decrease and the cost decrease is not offset by an increase in any of the aforementioned cost factors, the cost decrease must be passed on to the Customer by way of a price decrease.
If, due to our aforementioned price adjustment right, the new price is 20% or more higher than the original price, the Producer/Distributor has the right to withdraw from any contracts which have not yet been fulfilled in respect of the outstanding part of the contract. In the case of continuing obligation agreements, it may terminate the contract without notice. It can only exercise this right immediately after receiving notice of the price increase, however.
The Producer/Distributor only has a right of set-off and retention in relation to counter-claims which are undisputed or which have been established by law.
The Producer/Distributor does not have the right to assign claims arising from this contract without consent from Brain of Materials. Section 354a HGB (Handelsgesetzbuch [German Commercial Code]) remains unaffected.
22.1 Claims against Brain of Materials on the grounds of breaches of obligation due to poor performance, particularly defective performance, expire 12 months after performance of the service, or upon transfer of risk in the case of services rendered under contracts for work. This does not apply for claims covered by a guarantee, the assumption of procurement risk in accordance with Section 276 BGB, claims on the grounds of physical injury, loss of life or damage to health, in the event of malicious, premeditated or grossly negligent actions, or where a longer limitation period is otherwise required by law. The above provisions do not entail a reversal of the burden of proof.
22.2 Subject to the following exceptions, Brain of Materials is not liable in particular for claims made by the Customer for damages or reimbursement of expenses, on any legal grounds, in the event of breaches of the obligations laid out in this contract.
The above liability disclaimer in accordance with Section 22.2 does not apply
• for our own intentional or grossly negligent breaches of obligations or intentional or grossly negligent breaches of obligation by our legal representatives and agents;
• for the breach of fundamental contractual obligations: “fundamental contractual obligations” are obligations which protect the fundamental contractual rights which the Customer must be granted by the contract based on its content and purpose. Fundamental obligations are also obligations which must be fulfilled in order for the contract to be properly fulfilled and upon compliance with which the Producer/Distributor regularly relies and should be able to rely;
• in the event of physical damage, loss of life and damage to health, including by our legal representatives or agents;
• where Brain of Materials has a given a guarantee for the quality of a product or the successful performance of a service or a procurement risk in accordance with Section 276 BGB;
• in cases in which liability is mandatory by law, particularly in accordance with the German Product Liability Act (Produkthaftungsgesetz).
22.3 In the event that Brain of Materials or one of its agents is merely liable for ordinary negligence and none of the cases laid out in the first, third, fourth and fifth bullet points of Section 22.2 apply, Brain of Materials is only held liable in the event of a breach of fundamental contractual obligations for the damages which are foreseeable and typical of the contract.
22.4 In terms of amount, Brain of Materials’ liability is limited to maximum liability of EUR 50,000.00 for each individual event. This does not apply if Brain of Materials is liable for malicious, premeditated or grossly negligent actions, on the grounds of claims due to physical injury, loss of life and damage to health, and in the event of a claim based on a criminal act, a guarantee given or the assumption of a procurement risk in accordance with Section 276 BGB or in cases in which higher levels of liability are mandatory by law. Any further liability on the part of Brain of Materials is precluded.
22.5 The exclusions and limitations of liability laid out in Sections 22.2 to 22.4 above apply to the same extent in favour of the boards, executive and non-executive employees, and other agents and sub-contractors of Brain of Materials.
22.6 The above provisions do not entail a reversal of the burden of proof.
23.1 The place of performance for all contractual obligations is the registered office of Brain of Materials.
23.2 The exclusive place of jurisdiction for all disputes is Düsseldorf, provided that the Customer is a merchant within the meaning of the German Commercial Code. Brain of Materials has the right to make claims at a general place of jurisdiction, however.
23.3 The law of the Federal Republic of Germany applies exclusively for all legal relationships between Brain of Materials and the Producer/Distributor, to the exclusion of the UN Sale of Goods Convention (CISG). For clarity, it is stated that this choice of law is considered a choice as defined in Article 14(1b) (Regulation (EC) No 864/2007) and therefore also applies for non-contractual claims as defined in this Regulation.
Amendments and/or additions to the contract between the Parties must be made in writing. This also applies for an amendment of the written form requirement itself. Section 305b BGB (Priority of individually agreed terms) remains unaffected for individually agreed terms of any kind.
If a provision laid out in the contract concluded is or becomes wholly or partly ineffective/void or unenforceable for reasons pertaining to the regulation of the General Terms and Conditions in accordance with Sections 305 to 310 BGB, the legal provisions apply.
If a current or future provision laid out in the contract is or becomes wholly or partly ineffective/void or unenforceable for reasons other than the provisions pertaining to the regulation of the General Terms and Conditions in accordance with Sections 305 to 310 BGB, this does not affect the validity of the other provisions of this contract, unless the performance of the contract would present unreasonable hardship for either of the Parties, taking the following provisions into account. The same applies if a loophole requiring supplementation emerges after the contract is concluded.
In the event of a provision which is ineffective/void/unenforceable for reasons other than the provisions pertaining to the regulation of the General Terms and Conditions in accordance with Sections 305 to 310 BGB, or in the event of a loophole which requires supplementation, the Parties shall replace these with a valid provision which corresponds to the invalid/void/unenforceable provision and the overall purpose of the contract in legal and commercial terms. Section 139 BGB (Partial invalidity) is expressly excluded, including in terms of a provision regarding the burden of proof. If the invalidity of a provision in the above case is based on a measure of performance or time (period or date) stipulated therein, the provision is to be agreed with a legally permissible measure which comes as close as possible to the original measure.
The relevant contract as well as the implementation agreements concluded in accordance with it, the applicable General Terms and Conditions of Use for the Platform and non-mandatory legal provisions apply in the following order, with the higher-ranking provision taking priority over the lower-ranking provision in the event of any disputes:
First place: This contract, unless the Parties mutually agree in written or text form in an implementation agreement to amend a provision of this contract with explicit reference to the provision to be amended;
Second place: the content of any implementation agreements;
Third place: non-mandatory legal provisions, particularly the German Commercial Code and the German Civil Code.