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Terms & Conditions Portal Netherlands

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Convenience translation of the General Terms and Conditions (“GT&C”) of Gerlach Zolldienste GmbH, Keniastraße 12, D-47269 Duisburg (“Gerlach”) for the Use of the Gerlach Platform (“Platform”)

Preamble

This documents is a convenience translation of the GT&C. As outlined in section II(3), the contracting language is German. In the event of any conflict or inaccuracy between the German version and the English convenience translation of the GT&C, the German version shall prevail.

1 Parties to the agreement

The parties to the agreement for the use of the platform are Gerlach and the customer (“Customer”), being an entrepreneur within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). An entrepreneur within the meaning of section 14 (1) BGB means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. Gerlach and the Customer are also jointly called “the Parties”.

2 Subject matter of the contract

1) Gerlach provides the use of the Platform for the Customer including all functions described in section I. of these GT&Cs. The Platform is an online platform that allows customers to commission Gerlach with the provision of customs services. The Platform digitally supports the end to end process from the registration of the Customer on the Platform to the payment of the offered service.

2) Gerlach may link the use of the Platform or individual functions of the Platform, or the scope in which the individual functions and services may be used, to specific conditions, e.g. checking registration details or proof of payment.

3) Gerlach provides the Platform and all functions on the basis of the current state of the art. Gerlach may temporarily limit the use of the Platform if this is necessary with respect to capacity limits, the security or integrity of the servers or the implementation of technical measures and this is for the purposes of the proper or improved provision of the Platform services. In these cases, Gerlach shall take the legitimate interests of the Customer (Section 315 BGB) into account, e.g. via information provided in advance.

4) If an unexpected system failure prevents the conclusion of contracts or other functions of the platform, the customer will be informed where possible by e-mail or using another suitable means.

3 Confidentiality, data protection

1) The Parties undertake to keep strictly confidential any trade secrets and other commercial or technical information or know-how of the respective other party which they receive within the scope of the Platform Agreement (as further defined below) or the Customs Clearance Contracts as well as the conclusion of the Agreement as such, and to oblige their employees and third parties, insofar as they commission them with the execution of the Platform Agreement (as further defined below) or the concluded Customs Clearance Contracts, to maintain a corresponding confidentiality.

2) Each party undertakes to observe the relevant provisions of the applicable data protection laws and to protect the data relating to the other party that is collected and stored during the performance of the Platform Contract (as defined below) against unauthorized third-party access. Gerlach is entitled to process data transmitted by the Customer insofar as this is necessary for the execution of the Platform Contract or Customs Clearance Contracts. Furthermore, Gerlach points out that it may be legally obliged to notify personal data or shipment data to courts and authorities. Customer permits Gerlach to use its email address in order to provide it with information on new offers. The Customer may at any time withdraw such permission free of charge by email to the following [email protected]. If the Customer provides Gerlach with the email address and, if applicable, other contact details of the recipient of the shipment for the purpose of informing them of the shipment status, it warrants to be legally entitled to do so (for example, by consent). In case of unauthorized disclosure of personal data by the Customer to Gerlach, the Customer indemnifies Gerlach upon first written demand from all claims asserted by third parties, in particular by recipients, as far as Gerlach processes the data in accordance with the contract. Gerlach will maintain data protection in accordance with applicable laws.

Section I. Special contractual provisions for the Platform services

1 Service specification of the Platform

The Platform provides the Customer with the technical means, within the infrastructure provided by Gerlach, to obtain offers for customs services from Gerlach, to order customs services, to perform all actions relevant to the processing of the customs order via the Platform and to communicate with Gerlach in connection with the services offered.

2 Registration, conclusion of the contract for use of the Platform and the Platform account

1) The proper registration of Customer and the maintenance of an activated account on the Platform shall be a mandatory requirement and condition for the use of the Platform in accordance with these GT&C.

2) Only companies within the meaning of Section 14 (1) BGB shall be allowed to register as customer.

3) To register, Customer must complete the registration form made available by Gerlach and submit it to Gerlach.

4) Customer shall specify the data truthfully and in full on the registration form. Customer must notify Gerlach of any changes in writing without delay.

5) By submitting the registration form, Customer issues a binding offer to conclude a contract with Gerlach about the use of the Platform (“Platform Contract”) which incorporates these GT&Cs. Gerlach can confirm receipt of the Customer’s proposal by sending a registration confirmation in text form. The registration confirmation shall solely constitute information to the Customer on receipt of the registration form and shall not constitute acceptance of the offer. Gerlach reserves the right to comprehensively check the customer’s offer, in particular his creditworthiness and his status as an entrepreneur. Gerlach is entitled to accept or reject the customer’s offer at any time at its own judgment. If Gerlach accepts the customer’s offer, Gerlach sends an activation confirmation to the Customer. The conclusion of the Platform Contract shall be effected in this way and the service may be used immediately thereafter.

6) Customer shall choose a secure password after the successful activation of its account. Customer undertakes to keep secret its password and any other access details relating to the use of the Platform and to carefully secure access to its account. Customer informs Gerlach immediately if it suspects that its account has been misused by any third party.

7) Customer shall be liable for all use of its account, whether authorized by Customer or not. Where Customer is not responsible for the misuse of its account because there is no violation of existing duties of care, Customer shall not be liable.

8) The account may not be transferred to a third party without the explicit consent of Gerlach.

3 Use of the Platform functionalities

1) Gerlach provides Customer with functions and tools on the platform to order Customs Services (as defined below) from Gerlach and to handle all communication regarding the services offered on the Platform.

2) Customer shall only use the functions and tools provided by the Platform for the aforesaid communication and for processing of Customs Clearance Contracts, unless another form of communication is explicitly indicated herein or unless it is technically impossible to do so (for example, if original documents are required).

4 Payment and Remuneration

1) The use of the Platform is free of charge.

2) The price for the customs services ordered via the Platform  shall be the price accepted by the Customer.

3) Additional fees from authorities may apply (e.g. inspection costs, veterinary costs).

4) The customer shall pay the agreed price for the services by using the payment methods offered on the platform.

5) If the Customer fails to make payment for the customs service to be provided by Gerlach within the agreed payment period, Gerlach may terminate the Platform Contract or block the Customer’s access to the Platform.

6) If the Customer chooses a payment method requiring him to provide upfront payment, but fails to do so, Gerlach is entitled to treat the relevant Customs Clearance Contract as cancelled and charge the cancellation fees up to the amount of the clearance costs (depending on the processing status).

7) All invoices will be subject to VAT, if applicable.

8) All items in Gerlach invoices must be paid in full. No setting off or retention of amounts claimed by Customer against Gerlach is permitted. However, Customer may offset claims which are finally decided, ready for decision or undisputed.

5 Licensing rights, rights of use

1) Gerlach grants the Customer a non-exclusive licence, restricted to the term of the Platform Contract, to personally use the Platform web frontend and related mobile applications. The Customer shall not lease, confer or provide in any other way the above rights of use to a third party.

2) The Customer shall not be entitled without explicit prior written consent to use, exploit or modify the “Gerlach” trademark (words and image).

3) Customer shall comply with the usage requirements provided on the Platform, as well as with instructions that the Customer receives from Gerlach as regards services. This shall, for example, also apply to usage and integration requirements that exist based on legal provisions or the regulations of credit card companies.

4) When using the Platform and other services of Gerlach, Customer shall comply with the applicable laws, in particular the provisions relating to data protection and competition law.

5) The Customer itself shall be responsible for archiving on its own storage medium the information which can be viewed on the Platform that the Customer requires for the purposes of performing the Customs Clearance Contract, securing evidence, accounting, etc.

6) If Customer fails to comply with the requirements of this clause 7, Customer shall be liable for damages that are incurred by Customer, Gerlach or a third party.

6 System integrity

1) Gerlach maintains appropriate security measures in accordance with the International Standard Organization standard ISO 27001/2013. These are DHL’s final commitments regarding the security of the Customer’s information and data and Gerlach’s IT systems in connection with the Customer’s use of the Platform. The customer is responsible for creating and maintaining backup copies of its information and data and for protecting its own IT systems with all state-of-the-art security standards.

2) The customer shall not:

o take any action which may result in an unreasonable or excessive load on the Platform or the related technical infrastructure.

o block, overwrite or modify content generated by Gerlach or interfere in any other way with the content or functions of the Platform.

o perform activities on the Platform by automated technical means, in particular the Customer shall not use automated systems and/or software (including but not limited to crawlers, spiders, search robots, browser plug-ins, extensions, add-ons or other technical means or procedures) to access, read or modify the Platform or to copy, add, download or retrieve content from the Platform;

o take the following actions, hereinafter collectively referred to as “Cyber Attacks”:

o interfere with or damage the accessibility or operation of the Platform or take any action that, in our reasonable judgment, may impair or compromise the security of the Platform;
o Interfere with, alter or disable any features or security controls of the Platform;
o remove, disable or otherwise circumvent any protective mechanisms of the Platform;
o introduce viruses, Trojan horses, worms, logic bombs or other technologically harmful or malicious materials into the Platform or conduct denial-of-service attacks or other hacking attacks;
o unlawfully obtain (e.g. through pishing or (social) pharming), use or disclose access data, such as username, passwords, credit card information, etc;
o engage in espionage in order to obtain data and/or information (in particular data and/or information that constitute trade or business secrets) by means of one of the aforementioned actions.

3) Except as permitted by clause § 6 (5) the content stored on the Platform may not be copied nor distributed, nor used or reproduced in any other way without the prior consent of the legal owner. This shall also apply to copying using “robot/crawler” search engine technologies or using other automated mechanisms.

7 Measures by Gerlach in the event of violations of rights by Customer

In addition to any rights it may have under applicable law, Gerlach shall be entitled to take one or more of the following measures if there is reason to suspect that Customer has violated legal provisions, these GT&C or specifications relating to the Platform or the closed Customs Clearance Contracts, or if Gerlach has any other legitimate interest, particularly as regards the protection of party against fraudulent activities:
1. Issue a warning to the Customer;
2. Reduce/limit the use of the platform functions;
3. Impose a temporary block;
4. Impose a permanent block.

8 Liability

1) Gerlach shall only be liable for the infringement of essential obligations, the infringement of which jeopardizes the achievement of the purpose of the Platform Contract, or of which the observance is vital for the proper performance of the Platform Contract, and on whose compliance the Customer can normally rely (“Cardinal Obligation”). In the case of infringement of a Cardinal Obligation Gerlach shall only be liable for foreseeable loss/damage which would reasonably be anticipated in a typical case under the Platform Contract. The above limitation of liability shall not apply in the case of:
a) damage caused by intent or gross negligence,
b) or personal injury (to life, limb or health).
c) as well as obligations guaranteed by Gerlach (Garantieübernahme)
2) Gerlach shall not be liable if the circumstances substantiating a claim asserted against Gerlach

  1. a) relate to an unusual and unforeseeable event over which Gerlach has no influence and the consequences of which could not have been avoided despite exercising due care (“force majeure”), or
    b) have been caused by Gerlach based on a statutory obligation.

3) Furthermore, Gerlach shall not be liable for any downtime or incidents in the technical infrastructure, which are based on unforeseeable events for which Gerlach cannot be held responsible (force majeure). Force majeure events include, but are not limited to, war or national emergency, riot, civil commotion, acts of terrorism, piracy forces of nature, such as fire, flood, severe weather or severe weather conditions, criminal acts, threats or attacks related to information security (such as, for example by computer viruses, BOT attacks or other cyber attacks), power outages, governmental orders, epidemics, pandemics, lockouts, strikes and other labor disputes, shortages of labor, materials and services, and the inability to obtain or delays in obtaining supplies and the failure or limited performance of communications networks and gateways of other operators.

9 Contract term and termination

1) The term of the Platform Contract shall commence on the date on which Gerlach confirms its registration to Customer (access) and shall have a term of an indefinite period (“Contract Term”).

2) The Parties may terminate the Platform Contract at any time by giving one (1) weeks’ written notice to the other party at any time. Upon termination of the Platform Contract, all rights and obligations of the Parties under the GT&C shall cease to be valid. The termination will not affect any Customs Clearance Contracts concluded prior to the date of termination. The Customer shall continue to have access to the functions of its account needed for this reason for up to four weeks after the termination takes effect.

3) The right to terminate the Platform Contract for good cause shall be unaffected. Gerlach shall have the right to termination for good cause, in particular if:

  1. a) Customer violates contractual obligations;
  2. b) Customer is in liquidation or insolvency proceedings are initiated with respect to Customer’s assets, or if Customer sells all or parts of its assets, its company or its business outside the normal business process, or
  3. c) Customer has provided incorrect information about its financial situation, where this information is particularly important as regards the decision made by Gerlach on whether to enter into the Platform Contract, or
  4. d) the financial situation of Customer deteriorates significantly, whereby the payment of amounts or the fulfilment of other obligations vis-à-vis Gerlach is questioned, or
  5. e) legal regulations or official orders, e.g. according to foreign trade law, prevent a further business relationship with the customer.

4) Either party shall be entitled to termination for good cause only after the expiry of a reasonable period of time granted to remedy the breach or if a warning letter from the other party failed, unless this time period or warning letter can be dispensed with under applicable law due to the specific circumstances of the individual case.

10 Exercise of rights by third party, transfer of the Platform Contract

1) For the purpose of performing the Platform Contract Gerlach may use other companies or in-house branches as vicarious agents.

2) Gerlach is also entitled, with a notice period of four (4) weeks and within the legally admissible framework, to transfer its rights and obligations from this the Platform Contract in whole or in part to a third party. In this case, the Customer shall be entitled to immediately terminate the Platform Contract.

11 Jurisdiction, applicable law

1) The Platform Contract shall be subject to the law of the Federal Republic of Germany.

2) The place of jurisdiction for any and all disputes arising from the Platform Contract shall be Bonn, Germany.

Section II. Miscellaneous

1) Gerlach shall notify the Customer of any changes to these GT&C in text form (e.g. by platform or e-mail), so-called “Notice of Change”. The changes shall take effect vis-à-vis Customer and the contractual relationship shall continue under the changed conditions if Customer does not object to these changes within one week after receiving the notification of changes by means of written notification to Gerlach. This deadline shall be deemed to have been met if the objection has been sent to Gerlach within this period. Gerlach shall specifically point out to Customer in the written notification of changes the above consequences of failure to object.

2) Should any individual provision of these GT&C be or become ineffective, the validity of the remaining provisions shall remain unaffected. In this case, the Parties undertake to agree on a valid replacement provision which most closely approximates to the invalid provision or the intended purpose of the invalid provision. The same shall apply to contractual omissions. No verbal side agreements to these GT&Cs have been made.

3) The contracting language is German. In the event of any conflict or inaccuracy between the German version and the English convenience translation of the GT&C, the German version shall prevail. Any interpretation of the English or German provisions shall be construed in accordance with German law not taking into account any English or other foreign law concepts.

4) Insofar as written form is required in these GT&C or declarations are to be made “in writing”, the transmission of a document signed by hand with a name signature by means of a physical letter or by ordinary e-mail shall be sufficient for the written form requirement.

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