1 FIELD OF APPLICATION
1.1 The following General Terms and Conditions (hereinafter referred to as GTC) apply to all offers and services, as described in particular in section 2 of these GTC, of LoadFox GmbH, Dachauer Straße 667, DE-80995 Munich, Germany (hereinafter referred to as Provider).
1.2 All offers of the provider are directed exclusive at marchants in the sense of § 14 BGB (in the following referred to as customer).
1.3 For the contractual relationship between the provider and the customer, the following General Terms and Conditions apply exclusively. Other terms and conditions of the customer are explicitly contradicted. The inclusion of deviating terms and conditions of the customer requires the written consent of the provider.
2 SERVICES BY THE PROVIDER
The provider operates an internet-based platform (market place). The purpose of the platform is the automated computation of freight (freight goods or cargo) and suitable freight capacities and vice versa for forwarders and carriers. After successful registration, customers have the opportunity to offer and search for freight and/or freight space (cargo space/ freight routes/ capacities) on the platform. Via the platform’s suggestions, customers can contact each other and conclude freight contracts directly.
The details can be found in the performance description, which can be viewed under description of services and which is an integral part of these conditions.
The provider reserves the right to change or expand the functionalities, content and structure of the platform if the fulfilment of the contract concluded with the customer is not or not significantly impaired.
3 SUBJECT MATTER OF THE CONTRACT
3.1 Subject of the contractual relationship between the provider and the customer is the access to the platform described under number 2 as well as the services provided on it. The platform can be accessed via the web interface and/or, if contractually agreed, via a programming interface (API).
3.2 Access to the platform is made available to the customer by the provider for the duration of the contract. Depending on the individual contract agreement, the customer receives and account and separate accesses for each of the users named by the customer and, if applicable, for API access for the applications named by the customer (applications are understood to be those internal applications of the customer that access the provider’s platform via the API).
4 CONCLUSION OF CONTRACT
4.1 The contract between the provider and the customer is concluded when the customer registers on the provider’s platform and receives confirmation from the provider.
4.2 The customer can register online via the platform. The customer is obliged to truthfully provide all data and information requested for the registration. In addition, the customer commits to keep the data on the platform up-to-date.
4.3 The provider has the right to check the customer’s registration and, if deemed necessary, to refuse it. The provider is also entitled to refuse access for individual users or applications of the customer. He may demand evidence from the customer to verify the information provided, in particular regarding his role as a carrier. The provider is also entitled to obtain information about the creditworthiness of the customer. There is no claim to take part in the platform.
5 DURATION AND TERMINATION OF CONTRACT
5.1 The contract between the provider and the customer is entered for an indefinite period of time.
5.2 The customer can terminate the contract at any time by notice and demand the deletion of his account.
5.3 The provider has the right to terminate the contract between himself and the customer with one month’s notice to the end of the month.
5.4 The right to extraordinary termination for good cause remains unaffected.
5.5 Notice of termination must be given in writing (text form is sufficient).
6.1 The payment will be agreed based on individual contracts and/or transactions. Unless otherwise agreed in an individual contract, a payment period of 30 days will apply to the provider’s invoices.
6.2 If the term of payment is exceeded or in case of default, the provider will be entitled to charge interest at a rate of 9 percentage points above the base interest rate, unless higher interest rates have been agreed upon. The provider reserves the right to assert further damage caused by default.
6.3 Payment claims arising between customers based on freight contracts brokered via the platform are to be settled directly between them. The provider is not involved in this payment process and does not offer a payment function on the platform.
7 RIGHTS AND OBLIGATIONS OF THE CUSTOMER
7.1 Before concluding freight contracts, the customer is obliged to truthfully provide the data and information requested by the platform, both concerning himself – for example contact data, transport licenses and insurance certificates – and concerning the freight and freight space. The data specified in sentence 1 must be kept up-to-date by the customer.
7.2 When the platform generates suggestions for the customer, the customer is obliged to independently check the suggestions (route, time sequence, combination of loads, required vehicles, compliance with driving and test times) for correctness, actuality and feasibility at least on the basis of the customer’s own map material and, if necessary, by obtaining (additional) information from third parties or the freight partner before commencing the tour.
7.3 The customer is responsible for the technical access to the platform.
7.4 The customer is obliged to ensure the security of access to the platform, in particular to keep passwords secret and to secure access via the API in accordance with the state of the art. The customer is prohibited from allowing unauthorized persons access to the platform via his access data or via the API. If an unauthorized person learns of the customer’s access data, the customer is obliged to inform the provider immediately and to change the access data. The customer is also prohibited from granting further rights of use (licenses) for the use of the platform to third parties.
7.5 The customer commits to follow the rules of conduct listed in section 9 of these GTC, both when using the platform and when executing the brokered freight contracts. In particular, customers are only permitted to offer freight or freight space if the relevant legal requirements are met.
7.6 The customer accepts the license and usage terms of third parties (in particular regarding the use of maps) whose services are included in the use of the platform.
7.7 The customer can lodge a complaint with the provider if a freight contract concluded via the platform has not been properly fulfilled and/ or if the carrier has violated laws and/ or these GTC, in particular the rules of conduct regulated in section 9. The provider is entitled but not obliged to examine the complaint. In the event of a complaint, the customer permits the provider to forward the complaint including the name of the complainant to the party concerned for comment. The customer has no right to have the provider investigate the complaint or forward it or act against other customers. In the event of disputes with other customers regarding freight contracts brokered via the platform, the customer is free to take legal action.
7.8 The customer must not attempt to download, copy or modify the object or source code of the platform and/ or the underlying software. In particular, in the case of access via the API, the customer must ensure that neither malware reaches the provider’s servers, nor that manipulation or misuse is made possible in any form.
7.9 The customer is obliged to refrain from all actions and measures which could endanger, impair or injure the legitimate interests of the provider. In particular, the customer is obliged to ensure that the users named by him also observe the contractual regulations and access the platform in accordance with this contract. This applies accordingly to the use of the platform via designated applications to the API.
7.10 The customer is prohibited from uploading to the platform prohibited or illegal content or offers – regardless of whether these are prohibited under criminal law, infringe the rights of third parties or are illegal for other reasons.
8 RIGHTS AND OBLIGATIONS OF THE PROVIDER
8.1 The provider has the right to correct or supplement incomplete or incomplete information in the customer data or freight or freight space information to his possible extent.
8.2 In the event of initial violations of these GTC, in particular of the rules of conduct listed in section 9 of these GTC, or of obligations arising from freight contracts concluded via the platform, the provider is entitled to temporarily block the customer’s account at his own discretion. The same applies in the event of unauthorized or improper use of the platform. The right of the provider to terminate the contract remains unaffected.
8.3 The customer grants the provider the right to use customer, freight and freight room information made available by the customer in the context of fulfilling contractual obligations, in particular to provide it to the platform, to store it there in encrypted form, to make it accessible to other customers – irrespective of how they access the platform – and to transmit it to third parties commissioned by the provider in the context of fulfilling the contract.
8.4 The provider has the right to demand from the customer documents of proofs based on which it is possible to verify the information provided by the customer, both at the time of registration and on the freight or freight room offered by the customer.
8.5 Since the platform is subject to constant further development, in particular regarding its functionality, the provider reserves the right to make technical changes to the platform and to introduce new functions or products. In the event of changes that restrict or impair the previous functions or the previous service, the provider shall inform the customer of the planned change at least four weeks prior to its introduction by e-mail to the address provided by the customer. At the same time, the customer is granted the right to terminate the contract at the time of the change of service, which must be exercised no later than two weeks prior to the announced change date. To be effective, notice of termination must be given in text form (e-mail to firstname.lastname@example.org).
9 RULES OF CONDUCT
9.1 The following provisions apply in particular, but not exclusively, as rules of conduct for both the use of the platform and for the freight contracts concluded between customers via the platform.
9.2 Individual rules of conduct:
(1) The parties of a freight contract concluded via the platform will ensure compliance with the contractual obligations and the applicable statutory provisions.
(2) The customer must act in a spirit of partnership with his freight partners and other platform customers.
(3) The customer may use the platform and its functions exclusively for the purpose of fulfilling the contract.
(4) The customer must not use the data and information made known to him via the platform for any purpose other than the fulfillment of the contract or a freight contract concluded via the platform.
(5) All information provided by the user regarding his company, himself, the freight to be transported and/ or the freight space must be truthful and kept up-to-date.
10 LIABILITY AND EXEMPTION
10.1 The provider is liable for intent and gross negligence. In the case of slight negligence, the provider is only liable in the event of breach of an essential contractual obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely, as well as in the event of damage resulting from injury to life, limb and health.
10.2 In the event of slight negligence, liability is limited to the amount of the typical and foreseeable damage.
10.3 The above provisions also apply to the benefit of the managing directors, executives, employees and vicarious agents of the provider.
10.4 In the event of system failures, the provider is not liable beyond the agreed renumeration for the period in which the service failure occurred.
10.5 The provider will not be liable for impairments of his offers which are attributable to causes for which the provider is not responsible. This includes in particular force majeure, actions of third parties not acting on behalf of the provider or system failures outside the sphere of the provider.
10.6 The provider is not liable for the correctness, completeness and/ or actuality of the data and information provided by the customer on the freight or the freight space. This applies in particular to information provided by the customer which is culpably incorrect.
10.7 The suggestions generated by the platform are merely non-binding references, so that the provider does not owe any economic success for them and does not guarantee their feasibility.
10.8 The provider is not responsible for the proper handling of freight contracts and is not liable for any damages incurred by a customer as a result of transport.
10.9 The customer exempts the provider from damages caused to another customer by the costumer or his vicarious agents as a result of a breach of the obligations arising from the freight contract.
11 PROHIBITION OF ASSIGNMENT AND SET-OFF
11.1 A partial or complete transfer of the customer’s rights from the contract with the provider to third parties is excluded.
11.2 The customer is only entitled to offset against the provider with undisputed or legally binding counterclaims.
11.3 The customer may not exercise any right of retention against the provider which has not arisen based on the present contract.
12 CONFIDENTIALITY AND DATA PROTECTION
12.1 Both the provider and the customer commit to keeping secret the information they obtain in the course of the contractual relationship. This applies in particular to the customer data stored on the provider’s servers.
12.2 If the provider passes on data and/ or information to third parties for the purpose of fulfilling the contract, the provider will ensure that the third party complies with the statutory provisions, in particular the GDPR.
12.3 The customer is prohibited from publishing, disseminating, making accessible to third parties in any way or using data or information which has been gained within the scope of the contractual relationship for other activities that are not connected with the fulfilment of the contract. This applies in particular to suggestions made to him by the platform. This provision continues to apply even after termination of the contractual relationship between the customer and the provider.
13 AMENDMENT OF THE GENERAL TERMS AND CONDITIONS
The provider reserves the right to change these terms and conditions at any time and without giving reasons. The provider will inform the customer of any changes to these GTC by e-mail to the address given in the registration form. If the customer does not object to such changes within two weeks of receipt of the notification of change, the changes will be deemed agreed. The customer will be informed separately about the right of objection and the legal consequences of silence.
14 FINAL PROVISIONS
14.1 German law will apply to the contract existing between the provider and the customer. The application of UN sales law is excluded.
14.2 Place of performance is the registered office of the provider.
14.3 If the customer is a merchant, the place of jurisdiction is the registered office of the provider. However, the provider is also entitled to sue the customer at his domicile branch court.
14.4 Should any provision of this contract become invalid, this shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by a valid provision which comes as close as possible to the meaning and economic purpose of the invalid provision. The same will apply in the event of a loophole.
14.5 Verbal ancillary agreements have not been made. Amendments, supplements and/ or additions to this contract are only valid if they are agreed between the parties in writing (text form is sufficient). The same applies to the amendment of this provision.
Version: Feb 01 2019