Terms and Conditions for the Use of the Closelink Platform Solution for Customers

Last updated: 13 March 2018

 

1. Scope

(1) Via the online portal www.closelink.net, Closelink GmbH (“Closelink”) provides sellers and purchasers with a web-based platform solution for the purchase or sale of marine lubricants and other goods and/or services in the shipping industry for shipping lines and shipping companies (“platform”). The platform offers various functions for negotiating and concluding orders as well as for managing and monitoring completed orders. You can find more detailed information on Closelink in the Legal Notice.

(2) The following Terms and Conditions (“T&Cs”) regulate the customers’ rights and obligations for the use of the platform within the meaning of clause 3 below, unless expressly agreed otherwise in an individual contractual agreement between Closelink and the customer. The T&Cs are an integral part of the contract concluded between Closelink and the customer on the use of the services that are offered by Closelink via the platform (“Contract of Use”).

(3) “Customers" are those users of the platform who source and/or wish to source goods and/or services from the vendors via the platform. Potential customers are likewise covered by the term. Customers are in particular shipping lines or shipping companies. “Vendors” are those users of the platform who offer the goods and/or services requested by the customers for sale or supply the goods to the customers or perform the services. Potential vendors are likewise covered by the term. Vendors are in particular marine lubricant manufacturers or other businesses that offer other goods and/or services in the shipping industry for shipping lines and shipping companies. “Users” are all visitors to the platform, especially also vendors, customers, potential vendors and potential customers as well as any person who accesses or causes access to the platform, regardless of prior registration under section 4.

(4) Deviating T&Cs of the customer shall not be an integral contractual component of the Contract of Use. Any subsidiary agreements and other variations from these T&Cs must be made in written or text form.

(5) The customer will be notified of changes to these T&Cs by Closelink in writing or by email. If the customer does not reject such changes within six weeks of receipt of the notification, the changes shall be considered as agreed. In the event of change to the T&Cs, the attention of the customer will be drawn separately to the right to object and the legal consequences of remaining silent.

(6) These T&Cs only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of section 310 (1) BGB [German Civil Code].

 

2. Services

(1) The platform is a platform for customers and vendors for trade in marine lubricants and other goods and/or services for shipping lines and shipping companies. The platform has an integrated, automated message system for simplifying communication between customers and vendors as well as also comprehensive functions for managing and supervising all ongoing business transactions.

(2) The services of Closelink via the platform consist inter alia of:

(a)   provision of opportunities to use the platform after concluding a Contract of Use with Closelink in accordance with section 4;

(b)   provision of online storage space for using the platform. Delivery of the software for the platform solution is not an integral part of the contract;

(c)    provision of access to the platform via which the functions of the platform including uploading content and managing the content can be used ("user account");

(d)   enabling negotiations and entering into contracts on the platform as a result of searches initiated by the customer for vendors for specific goods or services (“requests”) in accordance with section 5 as well as the management of the orders; and

(e)   creating options for information and communication between customers and vendors.

(3) Closelink reserves the right to change or extend the content and structure of the platform as well as the associated user interfaces if this does not impair or not significantly impair the fulfilment of the purpose of the Contract of Use. To this effect, Closelink will inform the customer of any changes.

(4) Closelink strives to keep the platform available without interruption via the internet as far as possible. Due to the technical nature of the internet, uninterrupted availability of the platform is, however, not guaranteed. In particular Closelink does not guarantee success in accessing the platform where access depends on the services of third parties that Closelink does not use for the fulfilment of its obligations arising from the Contract of Use (e.g. the user’s access providers). Furthermore, Closelink will plan maintenance windows during which the platform will not be available or only to a limited extent. The maintenance windows will in principle be outside normal business hours, normally Sundays between 1:00 and 5:00 (CET). Where maintenance is necessary outside the maintenance windows, the registered users will be informed in good time by email at the address given by the user on registration.

(5) The customer has the choice between basic and premium access. With basic access, the customer has the opportunity to initiate requests in accordance with section 5, to choose from the offers made available to it by vendors and to place orders. With premium access, more services are available to the customer. Specifically, this involves the following services:

(a)   enabling the establishment of direct contact to up to three vendors and no additional fees for contracts formed as part of this between customer and vendor;

(b)   access to visual reporting;

(c)   enabling several user accounts to be set up for the customer; and

(d) enabling connection of the customer’s purchasing software via an existing application programming interface (API) to the platform, the connection to be established independently by the customer.

 

3. Obligations of the Customer

(1) The customer is fully responsible for the content posted by it on the platform (any text input and drawings). In particular, the customer is responsible that content posted is completely free of any third-party rights and also legally suitable for this usage and is permitted to be made available.

(2) The customer shall indemnify Closelink from any claims, including claims for damages, that third parties assert against Closelink due to an infringement of their rights and/or breaches of applicable statutory regulations by the content posted by the customer. The customer shall pay all appropriate costs incurred by Closelink, including the appropriate costs arising for the legal defence because of this infringement of third party rights and/or breaches of any applicable statutory regulations. All further rights, as well as claims for damages by Closelink, remain unaffected.

(3) In principle, in compliance with the applicable legislation, all content of the customer can be posted and managed via the platform that the customer considers necessary for entering into contracts with the vendors. The customer is prohibited from posting content via the platform that breaches statutory regulations, official orders or offends common decency, in particular pornographic or racist content or content glorifying violence.

(4) Closelink may check the content or have it checked at any time for admissibility, without however being required to do so. If the content breaches these T&Cs, provisions of the law or third-party rights or if there is any concrete evidence of this, Closelink is entitled to the rights under section 9.

(5) The customer shall ensure that its employees involved in concluding this Contract of Use as well as using the platform are authorised to conclude such contracts. This rule applies for the benefit of Closelink and the vendors. In this case, the principles of a contract with protective effect for third parties shall apply.

 

4. Registration

(1) To use the services offered on the platform, the customer must register for the platform and open a user account. With basic access, there is only one user account per customer allowed.

(2) The platform is only available for merchants within the meaning of the HGB [German Commercial Code] and legal entities under public law. There is no legal right to use of the platform. The offer to use the platform as a customer is only aimed at shipping lines or shipping companies and such companies that represent shipping lines and shipping companies in business as service providers.

(3) During registration, the customer must give its company details, invoice details and a contact person including an email address. The customer must decide between basic access and premium access. Prior to completion of the registration, the customer will have the opportunity to verify or correct its entries. Upon completion of the registration, the customer makes a binding offer to enter into a Contract of Use with Closelink regarding the platform and expressly declares its agreement with the applicability of these T&Cs. In this connection, the customer can download these T&Cs and save them. Closelink will immediately confirm receipt of its request for registration to the customer by email. The confirmation of receipt does not represent the acceptance of the offer to enter into a Contract of Use.  Closelink reserves the right to verify the customer’s details and to decide on the acceptance of the contract offer based on the check. After completion of the verification and positive decision on the acceptance of the contract offer, Closelink will set up a user account for the customer and provide the customer with the access data for the user account (“login data”) to the email address given by the customer (so-called confirmation of permission). With the transmission of the login data, Closelink declares acceptance of the offer to enter into a Contract of Use with application of these T&Cs, which will be sent to the customer again with the login data.

(4) Closelink reserves the right to create a user account for individual customers without prior registration under clause 3 and to send the customer the login data together with these T&Cs by email if the required details of the customer are known to Closelink and the customer has declared its prior consent to the use of its data for this purpose in another way (so-called confirmation of permission). In this case the transmission of the login data is considered as a binding offer to enter into a Contract of Use. On first login, the customer declares acceptance of the offer to enter into a Contract of Use with application of these T&Cs. The attention of the customer is drawn to the legal effect of the first login and the application of these T&Cs when the login data are sent as well as at login.

(5) The customer can change from basic access to premium access at any time. For this purpose, it may contact Closelink by email to amend the existing Contract of Use accordingly. In this case, Closelink will send the customer a binding offer on corresponding amendment of the existing Contract of Use by email to the email address given by the customer. On confirming this offer by email, the customer declares the binding acceptance of this offer. With this, a Contract of Use with premium access supplemented by the further services of Closelink in accordance with section 2 clause 5 and the customer’s payment obligation in accordance with section 7 clause 1 comes into effect. Apart from that, the provisions of the existing Contract of Use remain unchanged (particularly the application of these T&Cs).

(6) Upon creating the user account, the customer is obliged to truthfully and fully provide the data collected on registration in accordance with clause 3 or to verify the data used by Closelink under clause 4 for accuracy and completeness if and to the extent that these details are not marked as voluntary. If the data collected should change after registration pursuant to clause 3, or if it is incorrect or incomplete upon transmission of the user account pursuant to clause 4, the customer is obliged to update its profile without delay to this effect or to otherwise transmit the changed data to Closelink. It is not permitted to give stage names, pseudonyms or other invented names when the name is requested.

(7) The login data sent to the vendor in the confirmation of permission applies to a master account via which in the case of a premium account the customer is authorised to set up further user accounts for its employees. The customer guarantees that it will only make these user accounts available to its own employees who have sufficient authority to use the platform in an internal arrangement with the customer and the user accounts will be deactivated without delay if the employee concerned is no longer employed by the customer or does not have sufficient authority to use the platform. The customer is responsible for all actions of its employees on the platform as for its own actions. The customer shall assure moreover that its employees have been familiarised with data processing as part of the use of the platform in accordance with the legal data privacy regulations and any necessary consent by the data subjects has been validly obtained. If required consent is revoked for one of its employees, the customer must deactivate the user account concerned without delay and inform Closelink. In all other respects, our Data Privacy Statement applies.

(8) The customer must keep its password secret and carefully secure access to its user account. It must ensure that its own employees only use the account carefully and in line with these T&Cs. If any evidence should arise that a user account has been misused by third parties, the customer is required to inform Closelink immediately. As soon as Closelink becomes aware of the unauthorised use, Closelink will block the access of the unauthorised user. Closelink reserves the right to change the customer’s login data and password; in such a case Closelink will immediately inform the customer by email.

 

5. Conclusion of Contracts between Customers and Vendors

(1) Customers have the opportunity to trigger requests that are automatically forwarded to all vendors registered on the platform. The customer may correct its request by changing the details in the respective field up to the time when it sends the request by clicking on the button. For this purpose, a corresponding order description is posted and published on the platform by the customer. Requests can only be initiated by customers and do not contain a binding offer within the meaning of section 145 BGB [German Civil Code] but only represent an invitation to submit offers (so-called invitatio ad offerendum).

(2) Vendors have the opportunity to submit binding offers to customers’ requests. A vendor’s offers are binding offers for entering into a contract with respect to the request initiated by the customer. If expressly indicated to the customer, the vendor may put a time limit on the binding effect or reserve the right of revocation. Apart from that, with respect to the vendor’s offer the general civil law rules apply.

(3) A customer is free to choose whether and which of the offers received it would like to accept. If customer and vendor do not make a deviating agreement, a contract between customer and vendor is formed if the customer accepts a vendor’s offer by sending a purchase order. The vendor must confirm the receipt of the purchase order to the customer by electronic means and without delay. If the customer does not receive an order confirmation within 24 hours of sending its order, it is the responsibility of the customer to contact the vendor via the platform and request confirmation.

(4) Actions using the respective login data of a customer or one of its employees are generally attributable to the customer, except where the customer proves that third parties have illegally used the login data for the respective action without fault on its part. Customers are responsible for all declarations of intent submitted by themselves on the platform.

(5) Where a customer would like to enter into contracts in the name of and on behalf of a shipping company, it shall give assurance that it has the appropriate powers and shall upon request provide evidence of this to Closelink.

 

6. Processing of Contracts between Customers and Vendors

(1) Closelink does not become a party to the contracts between customers and vendors, but solely makes the platform available for the contractual relations between customers and vendors.

(2) Processing contracts entered into via the platform is a matter for the respective customers and vendors alone. For the contracts concluded via the platform, Closelink assumes neither a guarantee for the fulfilment nor liability for material defects nor defects of title of the goods and/or services traded. Closelink bears no obligation for fulfilment.

(3) Closelink cannot assume any warranty for the true identity and power of disposition of the respective users. In cases of doubt, customers and vendors are required to find out in an appropriate manner about the true identity as well as the right of disposal of the other contract party.

(4) A copy of the data on the procedures sent on the portal will remain at Closelink. It will only be used for internal purposes. Closelink will safeguard the confidentiality and correct storage of the data in accordance with the statutory data protection provisions. Data on customer purchases are exclusively stored anonymously and used anonymously for collecting statistics for improving Closelink’s service (cf. on this incidentally the Data Privacy Statement).

(5) The users are responsible for ensuring that all contracts concluded by them, via the platform on sourcing goods and/or services as well as delivering them do not breach national or Community trade restrictions or sanctions applicable at the registered office of Closelink, such as sanction measures in the form of authorisation requirements or prohibitions regarding services or investments and the export, import, transit, movement, sale, acquisition, delivery, provision and forwarding of goods.

 

7. Fees, Sanction of Evasions

(1) Registration for basic access is free of charge for the customer. For the use of premium access, an annual user fee must be paid, which will be communicated to the customer during the registration procedure. The prices are exclusive of VAT.

(2) For a request initiated via the platform, an order may only be placed with a vendor via the platform. If, contrary to sentence 1, the customer is offered execution of a request posted on the platform in another form, particularly outside the platform, the customer must refuse it and ask the relevant vendor to post the offer using the platform. Moreover, the customer may only accept an offer to a request initiated by it and place the order via the platform. The customer is prohibited from circumventing the platform. In the event of a breach of this provision, Closelink is entitled to extraordinary termination of the Contract of Use and can demand a penalty for breach of contract of USD 350 per order submitted by circumventing the platform. Further rights of Closelink remain unaffected. Any claims for damages by Closelink are to be offset against the penalty for breach of contract.

 

8. Copyrights and Rights of Use

(1) The copyright and exclusive right of use to published objects created by Closelink (webpages, scripts, programs, graphics) remain solely with Closelink.

(2) On entering into the Contract of Use, the customer obtains a simple right anywhere in the world to use the platform in the scope agreed in the contract exclusively for its own purposes for the term of the contract. Rights, particularly for reproductions what is beyond the scope necessary for use as in the contract, are not granted. Any rights from sections 69 (2) and (3), 69 e UrhG [Copyright Act] remain unaffected.

(3) The reproduction or use of elements of the platform in other electronic or printed publications, particularly on other webpages, is not permitted without the express consent of Closelink. Closelink is exclusively entitled to the comprehensive copyright with all powers under sections 12 to 27 UrhG to all documents, information and objects of the contract created as part of contract initiation and including warranties and maintenance, unless otherwise agreed in writing.

(4) Upon posting content, the customer grants Closelink in each case a simple, free and transferable right of use, unlimited in time and space to the respective content, in particular for storing the content on Closelink’s server as well as publishing it, in particular making it publicly accessible, editing and reproducing it where this is necessary for provision and publication in connection with the platform and/or advertising it. Where the content posted by the customer is removed again from the platform, this right of use and exploitation expires. However, Closelink remains entitled to store copies created for security and evidence purposes.

 

9. Closelink’s Rights to Delete Content, Block User Accounts etc.

If a customer breaches these T&Cs, statutory provisions or third party rights, there is concrete evidence that a customer is infringing statutory regulations, third party rights or these T&Cs or Closelink has another justified interest, especially for protecting other users from fraudulent activities, Closelink is entitled to take the following actions: (a) Deleting offers or other content that has been posted on the platform, (b) warning customers, (c) limiting/restricting the use of the platform, (d) blocking provisionally and (e) blocking the user account permanently. In the choice of action, Closelink will consider the justified interests of the customer concerned, particularly whether there is evidence that the customer is not at fault for the breach. Closelink will inform the customer on the action by email and give it the opportunity to make a statement.

 

10. Liability of Closelink

(1) For damage arising to legal interests other than life, limb or health, the liability of Closelink to the customer is excluded where the damage is not based on intentional or grossly negligent behaviour of Closelink, of one of its legal representatives or one of its vicarious agents and the behaviour is not a breach of material contractual obligations. Material contractual obligations are such obligations the fulfilment of which makes the proper execution of the contract possible in the first place and which the customer may normally expect to be complied with. Liability for breach of such a material contractual obligation is limited to damage typical of this type of contract the occurrence of which Closelink had to assume when entering into the contract based on the circumstances known on that date. The exclusions of liability and limitations stated do not apply in the event of the assumption of express warranties by Closelink as well as in the event of claims based on the lack of assured properties or where claims under the Product Liability Act are concerned.

(2) Closelink assumes no liability for malfunctions within the activity network that are not the fault of Closelink.

(3) Closelink is only liable for the loss of data in line with the above clauses if such a loss would not have been avoidable on the part of the customer by appropriate data backup measures.

(4) The liability does not cover impairment of the contractual use of the services provided by Closelink via the platform that has been caused by improper or incorrect use by the customer.

(5) The above limitations of liability also apply analogously to the benefit of the vicarious agents of Closelink.

(6) Where via the platform there is opportunity to be routed to a database and websites etc. of third parties e.g. by the insertion of links or hyperlinks, Closelink shall not be liable either for accessibility, existence or security of this database or services or for the content of the same, in particular Closelink shall not be liable for the legality, accuracy of content, completeness or current nature etc.

(7) In all cases the customer is likewise bound to damage limitation. This includes giving timely notice of damage as part of further damage minimisation.

 

11 Data Privacy, Use of Personal Data

(1) Closelink uses the customer’s personal data exclusively for the provision and use of the platform unless the customer has given its express consent to a more extensive use of the data or as provided by law.

(2) Closelink guarantees confidential handling of this data in line with the relevant statutory provisions on data privacy as well as under the Data Privacy Statement.

 

12. Messages to the Customer

If the customer has entered into a Contract of Use on the services of Closelink, Closelink will provide the customer with information on its own similar services using the email address given during registration (section 7 III UWG [Act against Unfair Practices]). The customer may object to being sent these at any time. Reference is made to the Data Privacy Statement in addition.

 

13. Invoicing, Offsetting

(1) The annual user fee (plus VAT) for premium access must be paid in advance (i.e. notably before the start of the corresponding access period). The user fee is due on issue of the invoice.

(2) Invoices are payable within ten days of the due date and receipt of the invoice. All bank charges for foreign transfers will be charged to the customer.

(3) The customer shall consent to the storage of the billing data for evidence purposes and/or as part of the statutory retention duty.

(4) The customer is only permitted to offset with uncontested or legally validated counterclaims. The customer is only entitled to a right of retention if it is based on the same contractual relationship.

 

14. Term of Contract, Termination

(1) The Contract of Use based on these T&Cs is entered into for an indefinite period. Basic access may be terminated by the customer at any time without notice. For premium access, a minimum contract term of twelve (12) months applies, starting with the receipt of the email with access data in accordance with section 5. Upon expiry of the minimum contract term, the Contract of Use is extended each year by another year if the Contract of Use is not terminated by the customer with a notice period of three (3) months on the expiry of the minimum contract term or the end of the extension period. The customer’s right to extraordinary termination shall remain unaffected. Termination may be made in writing, by fax or by email.

(2) Closelink may terminate the Contract of Use (for basic and premium access) with a period of notice of three (3) months to the end of the month. The right to extraordinary termination for good cause remains unaffected by this.

(3) A good cause for Closelink is especially: (a) any breach by the customer of the provisions of these T&Cs that is not rectified after an appropriate deadline; (b) tortious acts of a customer or attempt of the same, e.g. fraud; (c) arrears of payment obligations of the customer in accordance with the fee to be paid by the customer under section 7 by more than six weeks; (d) persistent interruption of operations as a result of force majeure that is outside the control of Closelink, such as natural disasters, fire, no-fault collapse of activity networks.

(4) With the effective date of the termination, Closelink is entitled to block the customer’s login data and its password and to delete all data that the customer has posted on the platform after the expiry of a period of 30 calendar days after the effective date of the termination if Closelink does not continue to need the data for billing or evidence purposes.

(5) Any notice of termination must be made in writing or text form to be effective.

 

15. Final Provisions

(1) If individual provisions of this Contract of Use including these T&Cs are or become wholly or partially invalid, the remaining provisions contract shall not be affected. The invalid provision shall be replaced by the parties by mutual agreement by such a provision that comes closest to the economic purpose of the invalid provision in a legally effective manner. The above provision applies in the case of any loopholes.

(2) The relationships between the contracting parties shall be exclusively regulated by the law applicable in the Federal Republic of Germany excluding UN sales law (United Nations Convention on Contracts for the International Sale of Goods, CISG).

(3) The exclusive place of jurisdiction for all disputes arising from this contract is the registered office of Closelink.

(4) The contract language is German.