1.1 The following Terms and Conditions “General conditions for the use of the LoadFox platform” (the “T & C’s “) regulate the use of the LoadFox Online Platform under www.loadfox.eu (the “Platform”) of the LoadFox GmbH (“LoadFox”) through their users (the “user”; LoadFox and their users each as one “party” and together the “parties”).
1.2 The platforms primary function is the exchange of freight between forwarders (and possibly later user groups). Through the platform the user can,
1.2.1 Offer load (particularly partial load) for truck-tours (the “Freight tour”) to other users of the platform
1.2.2 Incorporate load (particularly partial load) offered by other users of the platform into their freight tour and
1.2.3 Through an algorithm, who incorporates start and end location, load and unload window shifts and load capacity, create a proposal for an efficient freight tour with loads (particularly partial loads) added by other users of the platform (the other users each as the “freight partners”).
About the transportation of the corresponding load the user can conclude a separate contract as §§ 407 ff commercial code (the “freight contract”) with the freight partners, under which – depending on the constellation – either the freight partners (sub paragraph 1.2.1) or the user (sub paragraph 1.2.2 and 1.2.3) carrier is.
1.3 The platform is exclusively available to companies (not consumers) as per section 14 of the civil code, that are forwarders or carriers who meet the necessary requirements for this in Germany. At a later date LoadFox can add other user groups as users of the platform.
1.4 The present T’s and C’s between the user and LoadFox will be arranged online with the completion of the registration and the acceptance of the T’s and C’s. With conclusion of the T’s and C’s, §312i pos. 1 sentence 1 Nr. 1 to 3 and sentence 2 of the German Civil Code shall not apply.
1.5 General terms and conditions of the user do not apply next to these T’s and C’s. If further services of the MAN Group (RIO) will become available over the platform, a separate conclusion of general terms and conditions for RIO of the MAN Group will become necessary.
2 FUNCTIONALITY OF THE PLATFORM, BETA PHASE AND CONCLUSION OF FREIGHT CONTRACTS
2.1 Functionality of the platform
The platform offers the user under sub paragraph 1.2 described functionality in context with the offer and the planning of truck loads (particularly partial loads) and freight tours.
2.2 Limited functionality and geographical coverage as well as non-remuneration through the initial beta; separate terms and conditions after the beta phase
At the beginning of these terms and conditions the platform is offered to the user as a beta version in a test environment (the “beta phase”). During the beta phase, not all functionalities will be present. As the full future range of service is not yet covered in the beta phase, the limited functionality is expressly presented and agreed in these terms and conditions.
Due to the test environment and the limited functionality in the beta phase, the conclusion of freight contracts in relation among user and LoadFox is free of charge.
In advance, the user will be informed via the platform about the intended switch from the beta phase to the upgraded functionality of the platform after the conclusion of the beta phase. Should the user wish to proceed with the use of the platform after conclusion of the beta phase, a separate, accordingly changed terms and conditions of LoadFox will have to be agreed upon online between the user and LoadFox.
2.3 Information about the user and the freight (freight information)
Before the conclusion of freight contracts, the user must upload the on the site requested information and documents about himself truthfully (for example contact details (name, email, company address, phone number), transport license and insurance certificate) and, if applicable, about the freight (the “freight information”). The freight information will be made available to other users (especially the freight partners of the user) via the platform.
LoadFox does not have to prove the relevance, accuracy and completeness of the information added by users about the freight. The freight information, contact details especially, need to be keep current by the user itself. For freight details that are incorrect or not up to date, LoadFox has the right to update, complete or in the case of a serious violation suspend the user account. LoadFox reserves the right to remove by the user offered loads if these are not valid anymore or there is suspicion that the provided details are incorrect.
Freight information about the freight and the tours are to be added manually by the user over the platform.
LoadFox is entitled to obtain information about the creditworthiness of the user.
For the credibility check Bürgel business information GmbH & co. KG, Postbox 500 166, 22701 Hamburg, who provides their rating in the database saved address and credit data to the person of the user to LoadFox, providing LoadFox has provided legitimate interest and there is no reason to believe that the user has a protectable interest in the exclusion of delivery. The stored address and credit data is data which is verifiably significant to compute a probability value based on a scientifically recognized mathematical and statistical procedure for the calculation of the probability of certain behavior. Not only address data will be used for the calculation of the probability value.
2.4 Conclusion of cargo contracts
When accepting the terms and conditions neither LoadFox nor the user arises a claim on the mediation or the conclusion of freight contracts. The following rules apply to the completion of cargo contracts:
2.4.1 Examination of cargo trips and cargo information by the user before a cargo agreement
The users can put together a tour of the cargo before the conclusion of a contract of carriage by the algorithm of the platform. This assembled cargo tour should only be an algorithmically calculated, non-binding proposal.
The user has to comply with its due diligence prior to the conclusion of a contract of carriage and to examine the proposal of the cargo tour, as well as the cargo information of cargo partner on feasibility, accuracy and timeliness at your own risk, and if necessary to obtain additional information required by the cargo partner or other third party.
The actual feasibility of the displayed cargo tour and the accuracy/timeliness of cargo information are not part of the services of the platform and LoadFox. Accordingly, LoadFox is not available for the feasibility of cargo tour and/or the accuracy/timeliness of cargo information and accepts no responsibility for this.
2.4.2 Cargo contracts offline / limited geographical coverage
During the beta phase, the freight contracts between the user and the cargo partner are completed outside of the platform between the two parties. LoadFox is not involved in the conclusion of the contract and offers no functionality on the platform to complete the freight contracts online via the platform.
2.4.3 No rights or obligations for LoadFox from the contract of carriage
The contract of carriage is completed only between the user and the cargo partner (i.e. not with LoadFox). LoadFox is neither the user nor the cargo partner within the framework of the conclusion of the contract and has no rights or obligations towards the user and the freight partners from the contract of carriage.
Accordingly, LoadFox is not liable for damages between the user and the cargo partner and not standing up for the proper execution of the contract of carriage between the user and the cargo partner.
2.5 Payment of freight within the freight contracts
During the beta phase all charges (for the cargo), which are payable by the user to the cargo partner or from the cargo partner to the user, should be paid in accordance with the provisions of the contract of carriage of goods offered on the platform offline outside of the platform directly between the user and the cargo partners. LoadFox is not included in this payment process and offers no payment function on the platform.
2.6 Map displays on the platform
As far as land or city maps are shown on the platform for freight trips, these are purely indicative and shall not contract. The customer should not rely purely on the maps on the platform but use own maps for the planning of the cargo tours as well.
Maps are subject to constant changes and never completely represent the reality. LoadFox reserves the right at any time to modify the maps and data elements, or to delete, including the card-related functionalities. LoadFox assumes no liability of availability, functionality, or accuracy of the information on the cards.
The third-party terms agreed between the user and the third-party providers hereby apply for the use of the cards. Therefore, the cards are approved exclusively for the internal use of the user; He must not copy the cards, adjust or derive the source code or the structure of the cards.
2.7. No exclusivity, no obligation and no sales duties
The use of the platform by the parties and the other users is done on a non-exclusive basis. No party is subject to restrictions of competition. There are no minimum purchase requirements for the user; there is no obligation for the conclusion of freight contracts with freight partners. Beyond the functionalities of the platform, LoadFox has no sales obligation, advertising, or other promotion by the user on goods available on the platform.
3.1. No monthly fee during the beta phase
For the use of the platform under these terms and conditions no fee has to be paid by the users during the beta period. LoadFox might introduce a fee after the beta phase but this will need a separate agreement between the parties.
3.2 No fees for cargo agreements concluded during the beta phase
During the beta phase, there is no fee to be paid by the user to LoadFox for the conclusion of freight contracts for goods offered on the platform.
3.3 Transaction fees for transport orders concluded using the platform after the beta phase
After completion oft he beta phase, LoadFox is entitled to charge a fee (transaction fee) for each conclusion of a transport order containing freight that was offered on the platform. The user will be informed about the cost that will arise for him by conduction of the transaction before each transaction.
3.4 Charges from the freight contracts between the user and the cargo partner
Charges between users regarding the load (the cargo) mediated via the platform are payable outside the platform offline directly between users. LoadFox is not included in this payment process and offers no payment function of the platform.
4 ACCESS TO THE PLATFORM, RIGHTS OF USE AND RULES OF CONDUCT
4.1 The user has to ensure the technical access to the platform. The access occurs during the beta phase only remotely over the Internet. Except for usual Internet browsers the users may not access the platform automated.
4.2 Within the framework of these terms and conditions, LoadFox owes to give an availability of 98% per year for remote access logs. A further availability is not owed. According to paragraph 4.2 owed availability and uptime maintenance Windows are excluded from Sundays between 0:00 am and 4:00 CET.
4.3 LoadFox grants the user the right to use the platform and the content on a non-exclusive, non-transferable, limited in duration to the duration of the terms and conditions not sub-licensable, according to the German right of usage basis to plan their own cargo trips and to conclude contracts with other users of the platform. These terms exclude power to the editing, change or forward / reverse engineering.
The user can make no attempts to download the object or source code of the platform software. The user has no claim on the establishment of a hotline or other advice on the use of the platform software on the delivery of updates or upgrades or to the source code of the platform software.
4.5 LoadFox reserves the right to withdraw the permission of usage and take any legal action against the user, should he cause damage to the platform, breach these terms and conditions (especially against paragraph 4.6), violate a contract of carriage with a cargo partner or use the platform outside of the granted usage rights (see section 4.3 above).
Moreover, LoadFox reserves the right to deprive the user of the permission of usage if the user has received repeated substantiated bad feedback from other users on the platform or a collaboration in the results of the credit check is above unreasonable for the other user.
4.6. The user has to keep to the following rules of conduct regarding the use of the platform and the execution and implementation of cargo contracts.
4.6.1 The user has to comply with all applicable legal regulations, the regulation to hold a valid transport license, the minimum wage, insurance and driving and rest periods, as well as the provisions of §§ 407 ff commercial code;
4.6.2 The data provided by the user of the cargo must be relevant and true. The information has to be provide at the request of LoadFox by the user;
4.6.3 If the user acquires on the platform offered cargo he must be the carrier. A transfer of the on the platform offered and acquired cargo by the user to another carrier is not allowed;
4.6.4 The user has to behave partnership-orientated, especially in relation to its cargo partners and other users of the platform;
4.6.5 The use of the platform is only allowed under 1.2 given purpose and no other, especially not (i) for purposes of dissemination of pornographic, racist, unlawful or otherwise objectionable content, (ii) unsolicited communications (such as spam, bulk requests, advertising) or other content, that would harm or impede LoadFox or other users, (iii) for misrepresentation or deception, (iv) for the infringement of industrial property rights or personal rights, (v) for the establishment of their own data collections, and/or (vi) for the introduction or spread of malicious programs (such as viruses);
4.6.6 The user has to keep his login data (including passwords) confidential and should not redirect to third parties. It is the user’s responsibility, to ensure safeguard for this so that improper use of access by unauthorized person is excluded.
Should the security of the login details, especially the password, not been given anymore, the password has to be changed at once and LoadFox has to be informed about this in writing. Should a user leave the company or retire, the next user must change the previously password or lock the users account by LoadFox. LoadFox assumes no liability for the misuse of login data by third parties, or loss of the password outside of the sphere of LoadFox. The user is aware that they are liable for damages if the unauthorized disclosure of login information is violated.
In case of justified suspicion of an unauthorized access, LoadFox is entitled (but not obliged), to change the login information of the user or suspend the user account temporarily.
4.7 In the case of an appeal, according to which a user has not duly fulfilled his obligations under the contract of carriage, or violate these terms and conditions or laws, LoadFox can forward the complaint to the affected user and other users. The affected user must comment at once (within a week) following a request by LoadFox on the content of the complaint in writing.
LoadFox is not required to pursue individual complaints of the user or against.
5 CHANGES OF THE GENERAL TERMS AND CONDITIONS AND THE PLATFORM
5.1 LoadFox can make appropriate technical changes to the Platform, if this is necessary to improve their functionality, introduce new features or products, or to comply with legal requirements.
5.2 LoadFox can also make changes to the content of the platform, if they don’t diminish the services to the user about the use of the platform or the user did not contradict this change according to paragraph 5.3 below.
5.3 Adequate performance changes to content of the platform or changes of the general terms and conditions are displayed to the user and thereby the possibility is granted to him, to oppose a change within four (4) weeks. The absence of an objection against a reasonable performance change within this four (4) weeks is regarded as consent to the change, if the user has been made aware within the scope of the notification of change about the legal consequence.
Should the user object to such a change, LoadFox is entitled to a right of termination without notice with the user; Moreover, the user can dismiss the term of condition at any time without notice.
6 TERM AND TERMINATION RIGHTS
6.1 The terms and conditions are agreed on for an indefinite period. The terms and conditions may be terminated at any time properly by the user without notice. The customer may declare the termination by deleting his user account on the platform. LoadFox may terminate the terms and conditions in compliance with a period of one (1) month to month-end properly.
6.2. The right of termination for good cause remains unaffected for both parties. Example for a good cause is a significant breach of duty of a party which was not eliminated even after the end of a time limit specified by the other party of two (2) weeks and unreasonably is therefore the more adherence to the contract for the other party.
7 LIABILITY AND EXEMPTION
7.1 LoadFox shall be liable for damages that have been brought about by intent or gross negligence of LoadFox or its vicarious agents. For damages based on simple negligence by LoadFox or its vicarious agents, LoadFox is only liable if a cardinal obligation is violated. Cardinal obligations are essential contractual obligations, which only allow a proper viability of the Treaty and on whose fulfillment the user trusted and allowed to trust. For simple negligence about the violation of cardinal obligations, the liability of LoadFox is limited to the typically foreseeable damage.
Moreover, LoadFox’s liability is excluded for simple negligence, unless it’s damage from injury to life, body or health or claims under the product liability Act.
LoadFox is not liable for damages resulting from misuse or loss of the password by the user outside of the sphere of influence of LoadFox.
For the recording of malicious software by third parties (users, cargo partner or other third party) or the user on the platform, not represented by LoadFox, LoadFox shall not be liable.
7.2 LoadFox accepts no warranty or liability according to these terms and conditions for proper performance of freight contracts concluded via the platform between the user and the cargo partners.
The user has to indemnify LoadFox from claims of a cargo partner which are asserted by the cargo partners against LoadFox due to a violation of the user against its obligations from the contract concluded between the user and the partner of the cargo or from these terms and conditions, unless the user is not responsible for the breach of duty.
8 CONFIDENTIALITY AND DATA PROTECTION
8.1 LoadFox and the user commit to maintain strict confidentiality about all confidential information concerning each other and to pursues only for the implementation of these terms and conditions and their purpose. A use or disclosure to any other (commercial) purposes is not allowed. This obligation shall continue after termination of the agreement for a period of ten (10) years. Section 8.3 shall remain unaffected.
8.2 The confidentiality rules in paragraph 8.1 above shall not apply if the confidential information (i) the other party upon completion of the terms and conditions was probably already known or known then be by a third party, without that this violation of a confidentiality agreement, (ii) upon completion of the terms and conditions are publicly known or then known to be made public, as far as this is not based on a breach of these terms and conditions , (iii) by a party with the prior consent of the other party for any other purpose outside of these terms and conditions be used may, or (iv) due to legal obligations, or on the order of a court or a public authority disclosed; extent permissible and possible the party required to disclose will advance to inform the other party and give her opportunity to proceed against the disclosure.
8.3. The user is aware and he agrees that the rom him provided cargo information – are made available inclusive of contact data – to other users of the platform (and in particular the cargo partners of the user) via the LoadFox platform
Moreover, cargo information can also in compliance with these terms and conditions be given to (internal and external) subcontractors by LoadFox for this purpose.
8.4 Documents uploaded by the user on the platform are stored encrypted by LoadFox on the platform
8.5 LoadFox complies with all applicable data protection laws. Details on the processing of personal data of the user and/or his staff by LoadFox yield from the data protection declaration of LoadFox, which is available on the platform
9 OTHER PROVISIONS
9.1 Where the provision of the platform due to force majeure is not possible, LoadFox is free for the duration and the extent of the impact of the delivery of the platform, provided that LoadFox has taken reasonable precautions to avoid the consequences. Force majeure is each event lying outside the sphere of influence of LoadFox that prevents LoadFox to meet its obligations partly or fully, including fire damage, flooding, strikes, lawful lockouts, and not by their indebted operating errors or official orders.
LoadFox will at once show the user entry as well as the absence of force majeure and endeavor best efforts to resolve the force majeure and to limit its effects as far as possible.
9.2 Should individual provisions of these terms and conditions become totally or partly ineffective, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, the parties will agree an effective provision which comes close to the sense and purpose of the ineffective provision. A gap in these terms and conditions would be closed accordingly.
9.3 Amendments and supplements to these terms and conditions require the text form (online or by E-Mail). The same applies to an agreement about the removal of this text form requirement.
9.4 These terms and conditions are subject to the law of the Federal Republic of Germany (with the exclusion of the Collision Right). The exclusive place of authority for disputes arising out of or regarding these terms and conditions is Munich.
Version: May 2017