Replique Terms & Conditions Materials Database

1. Scope of Application

1.1. These General Terms and Conditions apply to the provision of the services in connection with the materials database (“Database”) and associates Services (“Services”) provided by Replique GmbH, Mafinex B-13, Julius-Hatry-Straße 1, 68163 Mannheim, Germany (“Replique”).

1.2. The Database and the Services are directed exclusively at Users who are entrepreneurs (Sec. 14 BGB (German Civil Code)), a legal entity under public law or a special fund under public law. The provision of the Database and Services to consumers (Sec. 13 BGB) is excluded.

1.3. The use of the Database and the provision of the Services is exclusively governed by these Terms and Conditions. The general terms and conditions of the User shall not apply. This also applies if Replique does not expressly object to the User’s general terms and conditions in individual cases.

2. The Database

2.1. The Database is designed for manufacturers (“Manufacturers”) of industrial materials (“Materials”) to upload data, information and documents on their Materials (together “Documentation”), for potential customers (“Customers”) of such Materials to view and download such Documentation and for Manufacturers and Customers to connect. Manufacturers and Customers are jointly referred to as “User(s)”.

2.2. The User acknowledges that the Database is under constant development and may be subject to changes. Therefore, some functionalities of the Database may change or be discontinued and the compatibility requirements of the Database may change. Replique further reserves the right to discontinue the use or provision of the Database altogether. In case a certain functionality or feature or access to the Database as such constitutes a Paid Service and a User has made pre-payments of such use, the User may cancel the Service and demand reimbursement of the pre-paid amounts for the time the pre-paid Service cannot be used. Further claims are excluded in this respect.

2.3. The use of the Database is only permitted within the contractually agreed scope and in accordance with applicable laws and governmental regulations. Users may not (i) make the Database available to or use it for the benefit of any third party; (ii) sell, resell, license, sublicense, distribute, rent or lease the Database and its contents; (iii) use the Database to store or transmit infringing, defamatory or otherwise unlawful or tortious material or to store or transmit material which infringes the rights of any third party; (iv) use the Database to store or transmit malicious code; (v) interfere with or disrupt the integrity or performance of the Database or any third-party data contained therein; (vi) attempt to gain unauthorized access to the Database or any related systems or networks; (vii) permit direct or indirect access to or use of the Database in any manner that circumvents any contractual restriction on use; (viii) copy the Database or any part, feature, function, content or user interface thereof except as necessary for the use of the Database contemplated under this Contract; (ix) frame or mirror any part of the Database, other than framing on its own intranet or otherwise for its own internal business purposes; (x) access the Database to create a competing product or service; or (xi) reverse engineer the Database (to the extent such restriction is not mandatory to be permitted by statutory law).

2.4. The Database is provided via a server hosted by or on behalf of Replique. This server can be accessed via the internet and therefore requires a functioning internet access of the User.

2.5. Replique undertakes efforts to provide the Database on an ongoing basis but cannot promise availability 24/7. In particular, the Database may be unavailable for necessary maintenance from time to time. Replique shall not be responsible if the Database is unavailable for external reasons (e.g. disruption of internet or server access).

3. User Accounts

3.1. The use of the Database requires a password-protected user account (“User Account”). User Accounts are available for both Manufacturers and Customers. In order to obtain a User Account, the User must complete the online registration process for the Database.

3.2. The User Account must only be used by the User. The corresponding password shall not be passed on to third parties. In case the password is disclosed or lost, the User shall contact Replique immediately so the User Account can be reset.

3.3. Replique reserves the right to disable or temporarily suspend User Accounts in case Users default against these Terms and Conditions, in particular in breaches of Sec. 2.3.

4. Uploading of Documentation

4.1. Manufacturers can upload Documentation to the Database via their User Account. Unless otherwise stated, the manual upload of Documentation via the User Account is free of charge.

4.2. Manufacturers may further upload Documentation via an API interface supplied by Replique. The use of the API is a Paid Service and subject to a separate agreement between Replique and the Manufacturer.

4.3. Manufacturers shall ensure that the uploaded Documentation is correct and complete and always kept up to date. In case a new version of a certain document is released, Manufacturers shall upload such new version and ensure that older versions of such document are either deleted from the Database or labelled as outdated.

4.4. Replique reserves the right to review Documentation without assuming any responsibility for the Documentation. In the event that Replique deems certain Documentation inappropriate, Replique will contact the Manufacturer to discuss the matter. Replique reserves the right to delete or block Documentation at its discretion if it is deemed inappropriate.

4.5. The Manufacturer indemnifies Replique, its directors, employees and agents from and against any claims, costs or damages (including reasonable legal fees) resulting from the upload of incorrect, misleading or outdated Documentation.

4.6. The Database is not designed as a storage space for the Documentation but as a means to make the Documentation available to third parties. Manufacturers are therefore advised to keep copies of any Documentation uploaded to the Database and shall not rely on retrieving the Documentation from the Database.

5. Viewing and Downloading of Documentation

5.1. All Users with a User Account may view, compare and download Documentation uploaded by Manufacturers. Only manual downloads of specific documents and information are permitted. Users must not use crawlers or similar devices or techniques to automatically download large quantities of Documents or information contained therein.

5.2. Users accept that the use of the Documentation occurs at their own risk. Replique does not verify or warrant that the Documentation is true and correct, not misleading or up-to-date. Users are advised to verify the accuracy of the Documentation with the Manufacturer before purchasing Materials or otherwise making use of the Documentation.

6. Paid Services

6.1. Basic access to the Database is generally free of charge. Replique however reserves the right to make parts of the Database or specific functions and Services subject to the payment of fees (“Paid Services”).

6.2. Unless indicated otherwise, offers of Replique for paid Services are subject to confirmation and non-binding and are to be understood as an invitation to the User to make an offer to Replique. Users can make an offer to purchase a paid Service by completing the purchase dialogue in the Database. If Replique accepts such offer, Replique shall send a purchase confirmation to the User via e-mail and make available the Paid Service. In certain cases, purchases of Paid Services may also be concluded offline or outside the database (e.g. via e-mail). The contract for a Paid Service shall comprise the offer and acceptance documentation and these General Terms & Conditions (together “Contract”).

6.3. Paid Services may be offered as part of a subscription package (“Subscription”) or on a pay-per-order basis (“Single Service”). Subscriptions shall run for the duration agreed in the Contract (“Subscription Period”). Unless otherwise agreed, Subscription Periods shall automatically renew for identical periods if the Subscription is not cancelled by giving written notice to the other party or by cancelling the Subscription via the User Account at least one (1) month before the end of the running Subscription Period.

7. Performance of Services

7.1. To the extent that the Database is provided free of charge or for free Services, services are performed on a voluntary basis. The provision of Paid Services by Replique is governed by service agreement (“Dienstvertrag”) law. The law on agreements for work and services (“Werkvertrag”) shall only apply if and to the extent that Replique has expressly promised the creation of a specific work or a specific success.

7.2. Insofar as Replique provides consultation beyond the contractually agreed scope of performance, this shall be done to the best of its knowledge. Details and information about the suitability and application of the Services do not exempt the User from carrying out its own tests and trials.

7.3. Replique is entitled to part performances provided that the part delivery is usable for the User within the scope of the contractual purpose, the delivery of the remaining ordered Services is ensured and the User does not incur any considerable additional expenditure or additional costs as a result (unless Replique agrees to bear these costs).

7.4. Any deadlines and dates promised by Replique for the performance of Services are always only approximate and are subject to change. This also applies to dates and deadlines stated in offers and order confirmations, unless these are expressly described as binding.

7.5. If acts of cooperation by the User are required for the provision of Services, Replique is not obliged to render the Services insofar as and to the extent that they cannot be provided without the cooperation.

8. Fees, Prices and Payment Terms

8.1. For Paid Services, the User shall pay the agreed fee for the purchased Subscription (“Subscription Fee”). For Single Services fees apply which will be charged for each Single Service ordered (“Single Service Fee”).

8.2. The prices agreed between the parties in the Contract shall apply. Replique is entitled to adjust the prices at any time by giving at least one (1) month notice via e-mail. The adjusted Subscription Fee shall take effect on the date specified in the notice but shall only apply to running Subscriptions upon the renewal of the Subscription Period. The adjusted Single Service Fee shall not apply to Single Services already ordered.

8.3. In the event that the general inflation according to the German consumer price index increases by more than 5% within a running Subscription Period, Replique shall be entitled to adjust its prices accordingly also during and with effect for such Subscription Period.

8.4. Users may upgrade their Subscription during a running Subscription Period against payment of the difference between the service packages for the remaining time of the Subscription Period.

8.5. The prices quoted are net prices unless they are expressly stated as gross prices.

8.6. Unless otherwise agreed, the obligation to pay the Subscription Fee for Paid Services begins with the start of the Subscription Period and any subsequent renewals thereof and becomes due up front at the beginning of the agreed payment interval (e.g. yearly, monthly) upon receipt of an invoice by Replique.

8.7. Single Service Fees are invoiced on a per-use basis. Unless agreed differently, Single Service Fees are invoiced monthly.

8.8. Payments shall be made within thirty (30) days of the invoice date. In the event that specified payment terms are exceeded, in the case of payment on account, if the payment term of thirty (30) days after the invoice date is exceeded, the User shall be in default without a separate reminder being required. In the event of default in payment on the part of the User, Replique is entitled to demand interest on arrears in the amount of 9 percentage points above the base interest rate announced by the Deutsche Bundesbank at the time of the occurrence of the default. The assertion of further damages caused by default remains unaffected.

9. Rights of the Users in Case of Defects

9.1. To the extent that the Database is provided free of charge or for free Services, warranty is excluded.

9.2. With respect to Paid Services, Replique warrants that the Services are performed in accordance with the agreed terms and specifications. Specific features of the Services are only warranted if they have been explicitly agreed.

9.3. Replique must be notified of defects in Paid Services which can be detected during a proper inspection without delay, at the latest within two (2) weeks after the Paid Services have been provided; Replique must be notified of other defects without delay, at the latest within two (2) weeks after they have been detected. The notification must be made in writing and must precisely describe the type and extent of the defects.

9.4. If the Paid Services are defective and the User has duly notified Replique in accordance with the preceding paragraph, the User is entitled to the statutory rights with the following provisos:
a) Replique first has the right, at its discretion, either to remedy the defect or to render to the User defect-free Services (subsequent performance).
b) Replique reserves the right to make two attempts at subsequent performance. If the subsequent performance fails or is unreasonable for the User, the User can either terminate the Contract or demand a reduction of the price.

10. Liability

10.1. Replique shall in principle be liable for damages in accordance with the statutory provisions. Replique is liable for damages – irrespective of the legal grounds – within the scope of fault liability in the case of intent and gross negligence. In the event of a breach of material contractual obligations due to simple negligence (obligations the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on), Replique’s liability is, however, limited to compensation for typical, foreseeable damage; in the event of a breach of non-material contractual obligations due to simple negligence Replique’s liability is excluded.

10.2. The limitations of liability in accordance with the preceding paragraph do not apply
a) in the case of damages arising from injury to life, body or health which are based on a negligent breach of duty by Replique or an intentional or negligent breach of duty by a legal representative or vicarious agent of Replique,
b) insofar as Replique has fraudulently concealed a defect,
c) insofar as Replique has assumed a guarantee for the quality of a product or a service,
d) for claims under the Product Liability Act.

10.3. Replique’s liability for indirect damages (e.g. loss of profit, interruption of business, consequential damages) is excluded.

10.4. The User itself is responsible for properly securing the data entered into the Database and for making regular backups. Liability for loss of data is limited to the damage that would have occurred if the User had properly backed up the data. Liability for loss of Documentation is excluded.

11. Statute of Limitation

11.1. The limitation period for claims arising from material defects and defects of title shall be one (1) year from delivery or performance. If an acceptance has been agreed, the limitation period shall begin with acceptance.

11.2. The limitation period for contractual and tortious claims for damages shall be one (1) year from the commencement of the statutory limitation period.

11.3. Notwithstanding the above paragraphs, the statutory limitation periods shall apply where prescribed as mandatory under statutory laws, in case of intent or gross negligence and in cases of section 10.2.

12. Use of Data and Referrals

12.1. The viewing and downloading of Documentation is metered by Replique. Replique makes aggregated use statistics (e.g. how many Users viewed or downloaded certain Documentation) available to Manufacturers. Replique may further use such data for own purposes (e.g. benchmarking or improvement of the Database and the Services).

12.2. Replique may at its discretion pass on individual data of a User to a Manufacturer if Replique believes that the User may be interested in the Materials of the Manufacturer. Replique will only pass on the name and contact details of the User as stored in the User Account. If a User does not wish that individual data is being passed on, the User can disable this functionality in the settings of its User Account.

13. Intellectual Property

13.1. Replique reserves all rights to the Services and the Database.

13.2. Replique grants Users the non-exclusive, non-transferable and non-sublicensable right to use the Database in accordance with these Terms and Conditions and in case of Paid Services the Contract. The right of use to the Database expires automatically when the User Account is disabled or the Contract expires or is terminated.

13.3. By uploading Documentation to the Database, the Manufacturer grants Replique a non-exclusive, non-transferable and non-sublicensable right to use the Documentation for the purposes of the Database. This shall in particular include the right to store the Documentation on the Database and make it available for Users to view, compare and download.

14. Term and Termination

14.1. To the extent that the Database is provided free of charge or for free Services, the contractual relationship runs for an indefinite time. Both Replique and the User can terminate the contractual relationship at any point in time. The User can terminate by written notice to Replique or by deactivating its User Account.

14.2. With respect to Paid Services, the Contract shall run until a purchased Subscription Period has expired and is not renewed. Thereafter, the use of the Database will continue as a free service until terminated in accordance with the previous paragraph.

14.3. The Contract or contractual relationship can be terminated in writing by either party without notice for good cause. Good cause for termination by Replique exists in particular if the User is in default with the payment of fees for a period of more than one (1) month.

14.4. In the event of extraordinary termination for good cause by the User, Replique shall refund any fees received for unused Paid Services. In the event of extraordinary termination for good cause by Replique, unused Paid Services shall lapse without refund unless the User proves that Replique has saved corresponding expenses due to the premature termination of the Contract.

14.5. In the event of termination of the Contract or contractual relationship, those provisions shall continue to apply which, according to their meaning and purpose, are intended to survive the Contract or contractual relationship. This applies in particular to the provisions regarding intellectual property rights and licenses, warranty, liability, confidentiality, data protection and final provisions.

15. Confidentiality

15.1. “Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), orally or in writing, which is designated as confidential or which, given the nature of the information and the circumstances of disclosure, is reasonably to be understood to be confidential. However, Confidential Information does not include information that, as demonstrated by the Receiving Party, (i) is or becomes generally known to the public without breach of any duty owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any duty owed to the Disclosing Party; (iii) is received from a third party without breaching any obligation owed to the disclosing party; or (iv) is independently developed by the Receiving Party.

15.2. The Receiving Party shall (i) keep the Confidential Information of the Disclosing Party confidential and use the same degree of care it uses to protect the confidentiality of its own Confidential Information of the same nature (but not less than reasonable care), (ii) not use Confidential Information of the Disclosing Party for purposes outside the scope of this Contract and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees and its affiliates and contractors who need such access for purposes consistent with this Contract, unless otherwise approved in writing by the Disclosing Party.

15.3. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent it is compelled to do so by law or by a court or governmental order, provided that the Receiving Party notifies the Disclosing Party in advance of the compelled disclosure.

16. Force Majeure

Should events and circumstances, the occurrence of which lies outside the sphere of influence of Replique (such as, for example natural events, epidemics, war, industrial disputes, shortage of raw materials and energy, traffic and operational disruptions, damage caused by fire and explosion, public-law decrees), reduce the possibility of performance so that Replique cannot fulfil its contractual obligations (taking into account other internal or external performance obligations on a pro rata basis), Replique is (i) released from the contractual obligations for the duration of the disruption and to the extent of its effects and (ii) not obliged to procure the Services from third parties. The foregoing also applies insofar as the events and circumstances make the performance of the affected business sustainably uneconomical for Replique or are present at Replique’s upstream suppliers. If these events last longer than three (3) months, Replique is entitled to withdraw from or terminate the Contract.

17. Place of Performance

Irrespective of the place of the performance of the Services, the place of performance for the User’s payment obligation is the registered office of Replique.

18. Data Protection

18.1. If Replique provides the User with personal data of its employees or other third parties (hereafter “Personal Data”) in the context of the performance of the Contract or if the User otherwise obtains knowledge of such Personal Data, the following provisions shall apply. Personal data disclosed in the aforementioned manner and not processed on behalf of Replique may be processed by the User exclusively for the performance of the Contract or contractual relationship and may not – except where permitted by law – be processed in any other way, in particular disclosed to third parties and/or analyzed for its own purposes and/or used to create profiles. This also applies in the case of the use of anonymized data. The User shall not acquire any rights to the Personal Data and shall be obliged to correct, delete and/or restrict the processing of the Personal Data at any time under the statutory conditions. Rights of retention in relation to Personal Data are excluded.

18.2. In the event that the User or the User’s employees transmit personal data to Replique or enter personal data into the Database, the User must ensure that he has all the necessary consents or other authorizations required under applicable data protection laws. This applies in particular to the creation and management of User Accounts. The User shall indemnify Replique, its organs, employees or agents against all costs or damages resulting from the User’s breach of these obligations upon first request.

18.3. Further information about the use of personal data by Replique in connection with the Services can be obtained via Replique’s applicable data protection policy.

19. Miscellaneous

19.1. There are no verbal ancillary agreements. Amendments or supplements to any Contracts concluded must be made in writing (Sec. 126 BGB). This also applies to the waiver of the written form requirement.

19.2. Replique reserves the right to amend these Terms and Conditions at any point. Replique shall notify the Users via e-mail or via the Database of any changes. The changes must be accepted by the Users in order to continue using the Database. In case of running Paid Services, if the changes to the Terms and Conditions constitute unreasonable hardship for the User, the User may terminate the Contract and request reimbursement for unused pre-paid Paid Services. This does not apply if the change is mandated by law.

19.3. The User is only entitled to set-off or to assert rights of retention insofar as his counterclaims are undisputed or have been legally established.

19.4. In the event that the contracting parties are merchants, legal entities under public law or special funds under public law, the exclusive place of jurisdiction is the registered office of Replique. However, Replique is entitled to bring an action at the general place of jurisdiction of the User.

19.5. The contractual relationship shall be governed by the law of the Federal Republic of Germany to the exclusion of German international private law and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.

19.6. Should one or more provisions of the Contract prove to be invalid, void or incomplete, this shall not affect the validity of the remaining provisions of the Contract. The parties shall – if necessary in the due form – replace the invalid or void provision by such a provision or fill the gap in the Contract by such a provision with which the economic purpose pursued by them can be achieved as closely as possible. If the ineffectiveness or invalidity of a provision is based on a measure of performance or time (deadline or date), a legally permissible measure shall take the place of the ineffective or invalid performance or time provision.