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

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 vendors’ 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 vendor. The T&Cs are an integral part of the contract entered into between Closelink and the vendor on the use of the services that are offered by Closelink via the platform (“Contract of Use”).

(3) “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 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. “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. “Users” are all visitors to the platform, especially also vendors, customers, potential vendors and potential customers, as well as any person who accesses or provides access to the platform, regardless of prior registration under section 4.  

(4) Deviating T&Cs of the vendor 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 vendor will be notified of changes to these T&Cs by Closelink in writing or by email. If the vendor 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 vendor 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 the trade of marine lubricants and other goods and/or services for shipping lines and shipping companies. In addition to comprehensive functions for managing and monitoring all ongoing business transactions, the platform has an integrated, automated message system to facilitate the communication between customers and vendors.

(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 platform’s functions can be used ("user account"), including uploading content and managing content;

(d)   enabling negotiations and the conclusion of contracts on the platform through 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 significantly impair the fulfilment of the purpose of the Contract of Use. To this effect, Closelink will inform the vendor 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.

 

3. Obligations of the Vendor

(1) The vendor is fully responsible for the content posted by it on the platform (any text input and drawings). In particular, the vendor 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. The vendor guarantees to Closelink and the other users that the goods and/or services it offers on the platform do not infringe any intellectual property rights, brands, patents, other protected rights or business secrets. The vendor shall also be responsible that its content does not violate the law against unfair competition and that any obligations regarding information on the goods and services and that any applicable duties to inform regarding the goods and/or services offered by him on the platform are fully met.

(2) The vendor 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 vendor. The vendor shall pay all appropriate costs incurred by Closelink, including the appropriate costs arising for the legal defence from 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 vendor can be posted and managed via the platform that the vendor considers necessary for entering into contracts with the customers. The vendor 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 vendor shall ensure that its employees involved in concluding this Contract of Use as well as use of the platform are authorised to conclude such contracts. This rule applies for the benefit of Closelink and the customers. 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 vendor must register for the platform and open a user account.

(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 vendor is only aimed at businesses that deliver services in the area of the shipping industry for shipping lines or shipping companies.

(3) During registration, the vendor must give its company details, invoice details and a contact person including an email address. Prior to completing the registration, the vendor will have the opportunity to check or correct its entries. Upon completion of the registration, the vendor 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 vendor can download these T&Cs and save them. Closelink will immediately confirm receipt of its request for registration to the vendor 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 vendor’s details and to decide on the acceptance of the contract offer based on the verification. After completion of the verification and positive decision on the acceptance of the contract offer, Closelink will set up a user account for the vendor and provide the vendor with the access data for the user account (“login data”) to the email address given by the vendor (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 vendor again with the login data.

(4) Closelink reserves the right to create a user account for individual vendors without prior registration under clause 3 and to send the vendor the login data together with these T&Cs by email if the required details of the vendor are known to Closelink and the vendor 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 vendor declares acceptance of the offer to enter into a Contract of Use with application of these T&Cs. The attention of the vendor 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) Upon creating the user account, the vendor 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 vendor 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.

If the data collected changes after registration pursuant to para. 3 or is incorrect or incomplete upon transmission of the creation of the user account pursuant to para. 4, the provider is obliged to update his profile immediately or to otherwise transmit the changed data to Closelink.

(6) The login data sent to the vendor in the confirmation of permission applies to a master account via which the vendor is authorised to set up further user accounts for its employees. The vendor 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 vendor and the user accounts will be deactivated without delay if the employee concerned is no longer employed by the vendor or does not have sufficient authority to use the platform. The vendor is responsible for all actions of its employees on the platform as for its own actions. The vendor 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 vendor must deactivate the user account concerned without delay and inform Closelink. In all other respects, our Data Privacy Statement applies.

(7) The vendor 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 vendor is required to inform Closelink immediately. As soon as Closelink becomes aware of any unauthorised use, Closelink will block the access of the unauthorised user. Closelink reserves the right to change the vendor’s login data and password; in such a case, Closelink will immediately inform the vendor 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. 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 concluding 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 when 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.

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

(5) The fulfilment of any obligations applicable in e-commerce transactions, in particular of Section 312i BGB and article 246c EGBGB [Introductory Law to the German Civil Code], which may also apply between companies, is the responsibility of the vendor. Here, the platform provides technical means to help the customer to identify input errors before submitting its purchase order and to be able to correct them. The vendor must recognise the technical means as sufficient and according to contract.

 

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) Setting up a user account for the platform is free of charge for vendors.

(2) For every order agreed between the vendor and a customer via the platform, the vendor owes Closelink a fee as under the current pricing conditions, which can be viewed on the platform. The prices are exclusive of VAT. The fee is due one day after the delivery date given on the platform and is invoiced in accordance with section 13. The vendor has the right to notify Closelink within 30 days of the delivery date given on the platform that the relevant order has not been carried out (“non-performance notice”). In this respect, only partial performance is not considered as non-performance. Closelink will check the non-performance notice and, if applicable, ask the customer concerned for confirmation. It is at the professional discretion of Closelink to declare a non-performance notice for justified or unjustified. In the event of a justified non-performance notice, Closelink will credit the vendor with the fee concerned with the next possible invoice.

(3) 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 vendor 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 placed 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 vendor 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 vendor 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 vendor 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 vendor breaches these T&Cs, statutory provisions or third party rights, there is concrete evidence that a vendor 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 vendors, (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 vendor concerned, particularly whether there is evidence that the vendor is not at fault for the breach. Closelink will inform the vendor 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 vendor 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 vendor 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 vendor 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 vendor.

(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 an 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 vendor 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 vendor’s personal data exclusively for the provision and use of the platform unless the vendor 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 Vendor

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

 

13. Invoicing, Offsetting

(1) Invoices for Closelink’s services will be issued monthly at the start of the month, incurred for the previous month.

(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 vendor.

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

(4) The vendor is only permitted to offset with uncontested or legally validated counterclaims. The vendor 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. It may be terminated by the vendor at any time without notice. Termination may be made in writing, by fax or by email.

(2) Closelink may terminate the Contract of Use 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 vendor of the provisions of these T&Cs that is not rectified after an appropriate deadline; (b) tortious acts of a vendor or attempt of the same, e.g. fraud; (c) arrears of payment obligations of the vendor in accordance with the fee to be paid by the vendor 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 vendor’s login data and its password and to delete all data that the vendor 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.