General Terms and Conditions
For the use of the OMARBABA.SHOP B2B Platform And Omarbaba’s Ombagram Application
1. General Provisions
Babahaus UG (hereinafter Omarbaba) provides an online B2B platform under the domain www.omarbaba.shop (hereinafter “Platform”). The Platform provides online tools and information for promotion, getting in contact, business initiation, exchanging information and general market intelligence. Upon entering into a subscription agreement for the use of the Platform with Omarbaba, manufacturers of all products, retailers and other buyers of such products (hereinafter “Members”) can connect over the Platform. Omarbaba will constantly develop and improve the services on the Platform in order to allow manufacturers and suppliers to display their products on their individual profile and to offer the manufacturing of products to buyers.
The following terms and conditions apply between Omarbaba and the Members of the Platform relating to all services provided by Omarbaba to such Members on the Platform. By subscribing to the Platform the Member accepts these terms and conditions for use.
Terms and conditions deviating from these terms and conditions shall only apply if these are confirmed by Omarbaba in writing.
2. Registration and Conclusion of the Subscription Agreement
The Platform is only available to natural persons or legal entities acting in the execution of their commercial or independent business activity (according to § 14 BGB - German Civil Code).
Members who are interested in subscribing to the Platform can fill the online registration form for the Platform. Upon registration, Omarbaba will confirm your membership under these terms and conditions.
Omarbaba may also provide a subscription form on the Platform, offering further services liable to pay.
In case the membership is liable to pay costs and unless otherwise agreed, Omarbaba may invoice the monthly, quarterly or annual fees plus VAT (if applicable) in each case in advance. The Member shall hold Omarbaba harmless against any such claims for taxes by local authorities at the Member’s place of business.
The information provided in the registration process has to be true and complete.
Omarbaba has the right to withdraw the member’s admission or to block its access to the Platform if the Member is in default of payment of the fees or if there is sufficient reason to assume that the Member is in breach of these terms and conditions.
All log-ins are individualized and may only be used by the respective authorized Member. The Member is obliged to keep the log-in data strictly confidential and to protect them from unauthorized access by third parties. The Member is also responsible for the confidentiality of its employees’ log-ins and shall instruct its staff accordingly. The Member shall inform Omarbaba without delay of any suspected unauthorized use of the log-in data. Omarbaba reserves the right to change a Member’s log-in data and/or to deactivate the account, if there are indications for an unauthorized access by third parties. In such case, Omarbaba shall inform the Member without delay.
3. Use of the Platform
The Member may use all functions of the Platform that are part of the Member’s membership scheme.
The Members may add information to their Personal Profiles on the Platform. Manufacturers (Sellers) shall complete their personal business profile with detailed company information and may share up to 50 of their products in the virtual exhibition on the Platform.
Buyers might create their own Business Card enabling them to contact Manufacturers (Sellers) and to be contacted by sellers following their buying interests.
Buyers and Sellers can add other buyers and sellers as a business contact and can be contacted directly. After being added as a business contact buyers and sellers will receive messages about new posts of their business contacts directly and by e-mail.
Nevertheless buyers and sellers are able to block or unblock added business contacts at any time.
Even not being a business contact will enable buyers and sellers to follow new posts/product releases of other sellers.
Comments added by sellers or buyers to products on the platform will be visible for any visitor on the Platform.
While posting products and messages the Hasthtag (#) shall be used in combination with product descriptions or names in order to optimize search results on the platform for buyers and sellers.
Members are aware that the information provided on the Platform, e.g. information added to the profile and the virtual exhibition are accessible for other Members or for the public, depending on the information added.
By adding such information to the Platform, Members agree that such information is made visible on the Platform.
When being online all visitors will be notified about the online status of the members unless changed in the privacy settings.
Each Member is free to enter into agreements under its own conditions using the functionalities of the Platform. Each Member is solely responsible for any agreements entered into with other Members of the Platform. Omarbaba shall not become a part to any agreements between Members of the Platform and shall not be bound by agreements between Members. Omarbaba is not responsible for the fullfilment of any agreements between Members of the Platform unless otherwise specified.
It is the sole responsibility of each Member to gather information on other Members they enter into agreements with, e.g. relating to creditworthiness and signing authority. Omarbaba is not responsible for the accuracy or completeness of any information available on its Platform. In particular, Omarbaba is not responsible for any results leading to the suggestion of business partners by use of the search functionalities, recommendations or the matching data.
Omarbaba reserves the right to amend or extend the content or structure of the Platform as well as the corresponding user profiles, provided that the fulfilment of the purpose of the contract concluded with the Member is not or not considerably affected as a result.
4. Member’s Obligations and License
The Member has to ensure that all information shared in the profile is complete, correct and not misleading and does not violate the rights of third parties, in particular the rights in trademarks, design rights or rights in secret know how.
By uploading content to the Members profile, the Member grants Omarbaba a non-exclusive, perpetual, worldwide right to use the content in particular to reproduce the content (according to § 16 UrhG – German Copyright Act) and to make the content available to the public (according to § 19 a UrhG – German Copyright Act). The Member grants Omarbaba the right to use such content. In addition, the Member grants Omarbaba referring to the terms of this agreement, a non-exclusive, worldwide right to use the Member’s company name and logo, and the brand name and brand logos of all of the Member’s and its subsidiaries’ brands displayed on the Platform, as a reference for Omarbaba’s services, in newsletters and for advertisement.
The Member shall instruct all employees and other assistants, who have log-in information for the user profile to the membership account, to comply with these terms and conditions. The Member has to ensure that it is entitled to display personal data of employees on the Platform to the extent such information is used when setting up employee log-ins.
The Member shall be obliged
to implement and maintain regular data backups of information, which is of commercial and/or legal importance for the Member during the entire term of the contract;
(b) to ensure the careful handling of log-in information and ensure that no unauthorized person gains access to the log-in information;
(c) to cooperate with Omarbaba in order to prevent unauthorized access to the Platform;
(d) to use the Platform exclusively for the purpose to enable business connection between Platform Members for commercial purposes;
(e) to comply with the Omarbaba Code of Conduct in the latest relevant version.
Members shall ensure that the information and data published on the Platform does not contain any malware such as trojans, viruses and similar software. The Member is obliged to compensate Omarbaba for any damages and to hold Omarbaba harmless from any third party claims resulting from the non-compliance with these obligations.
5. Liability of Platform Operator
Omarbaba shall be fully liable for wilful intent and gross negligence and any harm to body, life and health caused by intent or negligence by Omarbaba, its representatives or other assistants. For slight negligence Omarbaba shall be liable only in case of infringement of essential contractual obligations. The liability in case of infringement of such essential contractual obligation shall be limited to the damages typical for the contract which Omarbaba should have expected when entering into the agreement due to the circumstances known to Omarbaba at that time.
The limitations on liability set out above shall also apply, mutatis mutandis, to Omarbaba’s employees and other assistants or agents.
Regarding the Platform offers options to redirect to databases, websites, services etc. of third parties, for example through links or hyperlinks, Omarbaba shall neither be liable for the accessibility, existence or security of such databases or services nor for its contents. In particular, Omarbaba shall not be liable for its legality, accuracy and completeness.
6. Third Party Contents, Data Security, Confidentiality
The Members shall not publish content which infringes statutory provisions, official orders or common decency. In addition, Members shall not publish content which infringes rights, in particular copyrights and trademark rights, of third parties.
Omarbaba does not review the contents provided by the Members to the Platform and declines any responsibility for such content.
Omarbaba reserves the right to remove any content if such content violates the applicable statutory law or if Omarbaba has reasons to consider the content violating the rights of other Members or third parties.
The Member holds Omarbaba harmless against all claims third parties may have due to the infringement of their rights or statutory violations.
Omarbaba’s servers are secured by industry standard technology, in particular firewalls and/or encryption; however, the Members are aware that there is a risk for all Members of the Platform that data transmitted may be intercepted. This also applies to the integrated messaging system and all other transfers of data.
Omarbaba implements economically reasonable measures to reduce downtimes of the Platform to a minimum. However, as any technical system, there can be downtimes of the Platform due to software bugs, maintenance, upgrades etc. The Member is responsible for the implementation of measures to ensure that temporary downtime does not affect the Member’s business operations.
Omarbaba keeps all information being designated as confidential information provided by its Members strictly confidential and only uses such information in accordance with these terms and conditions. This does not apply to information that
- is lawfully known by Omarbaba at the time of receipt and not through a prior disclosure by Omarbaba,
- is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this agreement by Omarbaba, or
- is substantially disclosed to Omarbaba by a third party who is not under an obligation to maintain the confidentiality of the information.
Omarbaba uses high encryption standards to ensure confidentiality of critical data provided to Omarbaba.
Omarbaba has the right to disclose information in case and to the extent Omarbaba is legally obliged to.
The content provided by Members on the Platform is accessible to other Members of the Platform. Omarbaba does not make such content accessible to third parties which are not Members of the Platform except in case Omarbaba assigns essentially all parts of the Platform to a third party or in case Omarbaba uses such content for references or advertisements as set out in Section 3.3 and 4.2. However, Members are aware that Omarbaba cannot prevent other Members of the Platform from sharing such content with third parties.
The initial term of the subscription as indicated in the offer for the subscription agreement starts with the acceptance of the subscription agreement according to Section 2.2 and shall be extended for another year in case it is a membership liable to pay costs and unless it is terminated by either party at any time before the end of a term, by the end of the term.
Each party shall have the right to terminate this agreement for good cause without a notice period. A good cause for Omarbaba is in particular:
(a) the breach of provisions of these terms and conditions or the Code of Conduct by a Member which are not remedied within a deadline set;
(b) criminal activities by a Member or the attempt of such criminal activities, for example fraud;
(c) if the Member is in default of payment as regards the payment to be made pursuant to Section 2.2 and 2.3 for more than six weeks;
(c) long-term operational disruptions as a result of force majeure beyond the control of FOURSOURCE, such as natural disasters or fire.
The notice of termination must be made in writing, or, if available, by using the termination procedure in the members account area on the Platform. Transmission by e-mail or fax is sufficient.
8. Amendment of the Terms and Conditions for Use
Omarbaba shall inform the Member of amendments of these terms and conditions in writing, by fax, by e-mail or by a message displayed to Members when logging in to the Platform. If the Member does not object to such amendments within a period of two weeks after receipt of the notice, the amendments shall be deemed agreed. Omarbaba shall inform the Members separately of their right of objection and the legal consequences of silence in case of amendment of the terms and conditions.
If the Member objects to the amendment of the terms and conditions Omarbaba has the right to terminate the subscription agreement with two weeks’ notice.
9. Law and Venue
The Law of the Federal Republic of Germany shall apply, excluding its conflict of laws rules and the UN Convention on the International Sale of Goods.
All disputes, controversies or claims arising in connection with or relating to this agreement or its validity or a breach hereof shall be exclusively and finally settled and resolved by arbitration in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The place of arbitration is Cologne. Up to a value in dispute of EUR 100,000.00 the number of arbitrators is one. For a value in dispute exceeding EUR 100,000.00 the number of arbitrators is three. The language of the arbitral proceedings is English.
Except with the prior written consent of Omarbaba, the Member may not transfer any rights and obligations under this agreement to third parties. The Member will consent to any future transfer of this agreement to a company affiliated with Omarbaba.
The Member may invoke set-off or exercise a pledge or right to retain only if the claims made have been acknowledged by Omarbaba or have been adjudicated in court with legal effect.