1.1 These General Terms and Conditions ("GTC") are used by Beond GmbH with registration number HRB 150562 and with its seat in Berlin ("Trim").
1.2 Trim has developed and operates a platform for fashion brands as well as garment manufacturers, and suppliers to offer and purchase certain manufacturing services and to use related services offered by Trim (the “Platform”) as further described on www.be-trim.com (the“Website”) pursuant to these GTC.
1.3 The offer of Trim for the use of the Platform is directed exclusively to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) and their Affiliated enterprises (each “User(s)", jointly withTrim the “Parties”, each a “Party”). "Affiliated enterprises" means affiliated enterprises of the User within the meaning of §§ 15ff AktG. The User is solely responsible and liable for its affiliated enterprises’ compliance with the provisions and limitations of these GTC.
1.4 The basis for the legal relationship between Trim and the User are exclusively these GTC. General terms and conditions of the User shall not apply. Counter-confirmations of the User with reference to their terms and conditions are hereby contradicted.
2.1 The subject of the Contract is the internet-based access to thePlatform in its current version. The Platform provides its Users a marketplace, i.e. the opportunity to sell or buy certain garments and associated garment production services from other Users, and the use of certain additional functions. Such additional functions of the Platform are further described on the Website and include for fashion brands (such User a “Brand”) the possibility to search a manufacturer network or for fabric mills and fabrics. Garment manufacturing companies (such User a “Manufacturer”) may present its business as well as inventory via the Platform to receive orders from Brands.
2.2 The scope of services to be provided as part of the Platform are further described on the Website. Trim reserves the right to change, amend or extend the content or structure and functions of the Platform, as well as the corresponding user interfaces, provided that these changes, amendments and extension do not materially affect the User as a result.
2.3 Trim shall make the Platform available for use at the router outlet point of the computer centre in which the server with the Platform is housed. The User is responsible for the Internet connection between the User and the computer centre and the hardware and software required therefor (e.g. PC, network connection).
2.4 Before a User is granted access to the Platform by Trim, the User must be admitted to the Platform. In its application for admission or sign-up process, the User shall specify its corporate information, invoice data or payment source and organisational contact. By notice of admission to the User by Trim or by sending the User login credentials the application request is accepted and a service contract under these GTC is formed between Trim and the User (the “Contract”). If a person acts on behalf of a company, that person must be duly authorised to represent the company and to conclude the Contract on its behalf.
2.5 User has the ability to grant or to be granted upon request its employees their own access authority. When granting such access to the Platform, the User is responsible that the employees with access are duly authorised to represent the company and to conclude a PurchaseAgreement (as defined below) on the User’s behalf.
2.6 All logins are individualised and may only be used by the authorised user in question. The User must keep its login and password secret and protect them against unauthorised access by third parties. The User is also responsible for keeping staff logins confidential and shall instruct its staff accordingly. In the event of any suspicion of misuse by a third party, the User shall promptly notify Trim thereof. As soon as Trim learns of such unauthorised use, Trim shall block access by the unauthorised User. Trim reserves the right to change the login and password of any User; in such case, Trim shall promptly inform the User thereof.
3.1 The Brands and Manufactures are free to conclude contracts for the purchase of garment or manufacturing services via the Platform (each a “Purchase Agreement”). Parties to the Purchase Agreements are exclusively the respective Brand and the respective Manufacturer, Trim is not a party to the Purchase Agreement. The content of the Purchase Agreement (in particular payment terms, order content such as styles and delivery conditions) shall be governed solely by the respective Purchase Agreement and shall, unless otherwise agreed between the parties to the User Agreement, correspond to the modalities proposed in the purchase order by the Brand.
3.2 In order to conclude a Purchase Agreement, the Brand sends to selected Manufacturers a Request for Quote (“RFQ”) via the Platform stating the goods and/or services to be purchased as well as price ranges and delivery address and delivery dates. The selected Manufactures then have the opportunity to submit a quote in response to the RFQ, which is a binding offer of the Manufacturer to the Brand to conclude a Purchase Agreement. The Brand may accept such binding offer by confirming the quote and by that the Purchase Agreement between the Brand and the Manufacturer is concluded.
3.3 The fulfilment of the contractual obligations under a Purchase Agreement is the sole responsibility of the parties of such PurchaseAgreement. Trim does not owe the fulfilment of any party’s obligations under a Purchase Agreement, nor does Trim assume any warranty, guarantee or liability with regard to any Purchase Agreement or the fact the person acting for a User is authorised to do so.
3.4 Trim is also not responsible for and does not know or verify whether the person acting for a User is authorised to do so. Users shall bear responsibility for all declarations of intent made by or for them on the Platform. For other activities under their User's account, they shall bear liability to the extent foreseeable in line with the principles of contracts with protective effect to the benefit of third parties (Grundsätze eines Vertrages mit Schutzwirkung für Dritte).
3.5 In the event of any doubts about the true identity or authority of a User, both contracting parties are advised to take appropriate steps to inform themselves of the other contracting party’s true identity and authority to dispose over the goods and services in question.
4.1 The Platform is offered subject to availability. The average availability of the Platform is 98.5 % on a monthly average. The decisive factor is the availability of the Platform at the delivery point. Not included in the calculation of availability are (i) the regular maintenance windows, which can be up to 8 hours per week and are usually carried out between 10:00 p.m. and 4:00 a.m. CentralEuropean Time, (ii) periods of unavailability due to mandatory unscheduled maintenance work necessary to eliminate malfunctions,(iii) periods of unavailability due to circumstances beyond the control of Trim, in particular force majeure.
4.2 In deviation from section 4.1 above, Trim does not owe any particular availability of the Platform if it is offered as part of services provided free of charge.
4.3 Trim will make daily backups and store them for a period of seven days.
5.1 Support requests can be sent to firstname.lastname@example.org.
5.2 Support requests are generally processed on working days (Berlin)between 9am and 5.30pm.
6.1 Customer and Affiliated enterprises shall not: (a) permit persons other than authorised Users to access or use the Platform (or any part thereof); (b) use the Platform (or any part thereof) in breach of any applicable laws or regulations.
6.2 The User undertakes to take appropriate security precautions to ensure that access to Platform is only used by authorised persons. User data and passwords for the Platform shall be carefully stored by the user at all times, shall not be disclosed to third parties and the user shall inform Trim immediately if a third party may have gained unauthorised knowledge of passwords and user names.
6.3 The Platform allows the User to post, upload, save, share or otherwise make available text, images or other information regardless of the form of that content (“Content”). The User is responsible for the content that the User posts on the Platform, including its legality, reliability, and appropriateness.
6.4 The User undertakes not to transmit any Contents that are false, illegal, are in breach of the law or official requirement or infringe rights of third parties.
6.5 The User shall make backup copies of data transmitted to Trim on its own data carriers in order to ensure the reconstruction of the data and information in the event of loss.
6.6 The User is aware that Trim does not operate its own network and does not provide the Internet access to the User. For this reason, Trim assumes no responsibility for the functionality of the respective access to the Internet.
6.7 The User shall indemnify Trim against all claims of third parties, in particular for copyright, competition, trademark and data protection infringements, which should be raised against Trim in connection with the use of the Platform by the User. This indemnification shall also include the reimbursement of reasonable costs incurred or to be incurred by Trim as a result of legal action or defence.
7.1 Trim may offer the Platform for a certain period for free. In all other cases, the User shall pay Trim the agreed fees. Unless otherwise stated, the fees do not include the statutory value added tax. In case the User has accepted to pay Trim a commission, Trim’s claim entitlement to such commission arises upon conclusion of the Purchase Agreement. The following circumstances do not affect Trim’s claim to the agreed commission: (i) the Purchase Agreement is entered into in breach of the prohibition on circumvention set out in section 8 below, (ii) the amount of the price under the Purchase Agreement is subsequently changed, or (iii) a concluded Purchase Agreement is not executed, subsequently cancelled or terminated.
7.2 The payment source chosen by the User will be billed as soon as the payment becomes due. Details of the offered payment methods and conditions will be communicated to the User. If the User has not chosen a payment source, all fees shall become due and payable upon receipt of the invoice and, unless otherwise shown on the invoice, shall be made payable within thirty (30) days of the date of the invoice to the account specified therein.
7.3 Trim reserves the right to increase the fees for future contract periods. In this case, Trim is obliged to communicate the increase in writing to the User at least four (4) weeks before it takes effect. In the event that the User does not accept the price increase, the user shall be entitled to terminate the Contract extraordinarily with a notice period of 14 days to the end of the then current Contract Period.
8.1 Users are prohibited from circumventing the commission structure of Trim. Circumvention is prohibited in particular if Users that have previously become aware of an offer on the platform or another user contact each other directly or transmit their contact details (e.g. address, company name, telephone number, e-mail address) via the communication functionalities of the company account with Trim or in any other way in order to conclude purchase or service agreements outside the Platform. Trim reserves the right to assert claims for damages in the event of a breach of the prohibition of circumvention.
9.1 The Platform provided by Trim essentially corresponds to the product description. In the case of update, upgrade and new version deliveries, the claims for defects are limited to the innovations of the update, upgrade or new version deliveries compared to the previous version status.
9.2 Trim does not provide any additional warranty for the Platform without express confirmation.
9.3 Any claims for damages shall be subject to the limitations set out in section 9.
10.1 In the following cases, Trim shall be liable for damages or reimbursement of fruitless expenses to an unlimited extent and in accordance with the statutory limitation periods:
10.1.1 in the event of intent and gross negligence on the part ofTrim,
10.1.2 in the event of personal injury for which Trim is responsible,
10.1.3 for guarantees from Trim and
10.1.4 in the event of claims under the German Product Liability Act (Produkthaftungsgesetz) against Trim.
10.2 In cases of simple negligence, Trim shall be liable in the event of a breach of material contractual obligations by Trim or one of its legal representatives or agents for the contract-typical, foreseeable damages. A material contractual obligation is an obligation the fulfilment of which is a requirement for the proper performance of this contract or the breach of which jeopardises the achievement of the purpose of the contract and on the observance of which the User regularly can rely.
10.3 Without prejudice to sections 9.1 and 9.2 the liability of Trim, its legal representatives and agents is excluded, i.e. in particular for force majeure (incl. strikes, natural disasters, pandemics) and for the simple negligent breach of non-material contractual obligations. Strict liability for defects present ab initio (Section 536a (1) German Civil Code) as well as the User’s right to remedy defects themselves (Section 536a (2) German Civil Code) are hereby waived.
10.4 Trim retains the right to object due to contributory negligence on the part of the User (e.g. due to a breach of the User's duty to cooperate).
Contrary to clauses 8 (Warranty) and 9 (Liability of Trim) above, the following shall apply for Services provided by Trim free of charge:
11.1 Trim shall not be obligated to remedy a defect.
11.2 If the User has suffered harm from a defect, Trim shall owe damages only if the defect was wilfully concealed by Trim. Otherwise, Trim's liability shall be limited to intention and gross negligence.
The Platform (including any functions or applications as part of thePlatform) are protected by copyright. Subject to payment of the agreed fees, Trim grants the User a non-exclusive, non-transferable license to access and use the Platform, subject to the terms and conditions of these GTC, for the User's internal use and that of its Affiliated enterprises for the term of the applicable Contract. The license is limited to the agreed scope. Any use of the Platform not expressly permitted by these GTC is prohibited. In particular, the User is not entitled to have the Platform used by third parties or to make them accessible to third parties. The User is also not permitted to decompile, disassemble or reverse engineer the Platform.
13.1 The User undertakes to treat all knowledge of confidential information and trade secrets of Trim ("Trade Secrets") obtained in the course of the initiation and performance of this Agreement as confidential for an unlimited period of time and to use them only for the purposes of the performance of this Agreement. Trim's Trade Secrets shall include the Services performed under this Agreement.
13.2 The aforementioned obligations do not apply to Trade Secrets that
13.2.1 were already apparent or known to the User at the time of their transmission by Trim;
13.2.2 have become apparent after their transmission by Trim through no fault of the User;
13.2.3 have been made accessible to the User by a third party after their transmission by Trim in a non-illegal manner and without restriction with regard to confidentiality or exploitation;
13.3.4 developed by the User independently, without using Trim's Trade Secrets;
13.3.5 required to be disclosed by law, governmental order or court order, provided that User promptly notifies Trim and assists Trim in defending such order or order; or
13.3.6 insofar as the User is permitted to use or disclose the TradeSecrets on the basis of mandatory statutory provisions or on the basis of this Contract.
The User shall be obliged to provide evidence for the above privileges of sections 9.2.1 to 9.2.6.
14.1 Where necessary, the User and Trim shall enter into an agreement which is subject to commissioned processing and technical organisational measures (TOM) in accordance with the template provided by Trim.
14.2 Trim takes appropriate technical and organisational measures to ensure data security. Personal data and business-critical data are stored in a secure environment (protection by means of firewall, password protection, encryptions, etc.).
15.1 The Contract shall be concluded for a 12-months period (the "InitialTerm") and shall be automatically renewed for the same period (the Initial Term and each renewal a "Contract Period") unless the Contract is terminated by a Party with four (4) weeks' notice to the end of the respective Contract Period.
15.2 The right of either party to terminate the Contract without notice for good cause and the right to terminate the Contract in accordance with section 7.3 (extraordinary termination in the event of a fee increase) and section 14 (extraordinary termination in the event of changes to the GTC). Trim shall be deemed to have a good cause to terminate the contract in particular if (i) the User does not comply with payment obligations under the Contract for at least six (6) weeks from the due date despite a reminder an the setting of a reasonable deadline or (ii) insolvency proceeding have been opened against the assets of the User or the opening of such proceedings has been rejected due to lack of assets.
16.1 Trim reserves the right to change or amend these GTC. The planned changes or amendments shall be announced to the User by e-mail or in writing with a reasonable period of notice before the planned entry into force. If the User does not object to the amended GTC in text form (e.g. letter or e-mail) within six (6) weeks after receipt of the e-mail, the amended GTC shall be deemed accepted. In the event of an objection, the original GTC shall continue to apply unchanged; in this case, however, Trim shall be entitled to terminate the Contract within the scope of an extraordinary right of termination with a notice period of two months from receipt of the objection to the end of a calendar month.
17.1 The User shall only be permitted to offset claims that are undisputed by Trim or have been legally established.
17.2 Changes to the Contract shall only be valid if made in writing. This shall also apply to the waiver of this requirement of written form.
17.3 The exclusive place of jurisdiction for all disputes arising from and in connection with this Contract is Berlin. Place of performance is the registered office of Trim.
17.4 The law of the Federal Republic of Germany shall apply exclusively.
17.5 Should a provision of these GTC be or become invalid, contain an inadmissible deadline provision or a loophole, the legal validity of the remaining provisions shall remain unaffected. Insofar as the invalidity does not result from a violation of §§ 305 ff. BGB (validity of general terms and conditions), an effective provision which comes closest to the economic intentions of the parties shall be deemed to have been agreed in place of the ineffective provision. The same shall apply in the event of a loophole. In the event of an invalid term, the legally permissible term shall apply.