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Declaration of use eXpresso

Terms and conditions for the use of the “eXpress-o” web portal
of Frigosped GmbH

Sälzerstraße 1
56235 Ransbach-Baumbach

Last updated: June 2020

Table of Contents
  1. General provisions 3
  2. Preamble. 3
  3. Definitions. 3
  4. Rights and obligations of Users 3
  5. General provisions. 3
  6. Authorised users. 4
  7. Prohibition of misuse. 4
  8. Access blocking; revocation of right of use. 4
  9. Confidentiality; storage of personalised credentials. 4
  10. IT security. 5
  11. Requesting and exchanging information through the web portal 5
  12. Uploading documents; electronic data exchange. 6
  13. Warranty and liability. 6
  14. Statute of limitations. 7
  15. Final Provisions 7
  16. Severability. 7
  17. Modifications and amendments. 7
A. GENERAL PROVISIONS
1. PREAMBLE
  • The company Frigosped GmbH (“Frigosped”) is an international freight forwarding and logistics provider specialising in transportation, storage, and handling of temperature-controlled goods. The core operating areas of Frigosped are transportation and warehousing as well as third party logistics in connection with the relevant goods.
  • Aiming to facilitate the effective and unbureaucratic mutual provision of freight forwarding and/or logistics services, Frigosped has established the free and partly customised web portal “eXpress-o”, which, among other security measures, is password protected. The web portal helps give Clients and business partners of Frigosped the opportunity to digitally handle processes in connection with the provision of freight forwarding and/or logistics services. Tasks that can be performed in that respect primarily include implementing, controlling, and monitoring the management of orders, processes, transportation, and information.
  • The Terms of Use set out herein below govern the legal framework for the use of the web portal. The operation of the web portal is a service provided by Frigosped in the economic context of a contract for traffic operations, carriage, freight forwarding, or warehousing.
  • In addition to the Terms of Use, there is a privacy statement for the web portal which contains further details on the processing of personal data in connection with the use of the web portal. The current version of the privacy statement is available on the web portal.
2. DEFINITIONS
  • “Business Partners” as used herein means logistics providers and their employees who assist Frigosped in the performance of contracts for traffic operations, transportation, warehousing, and/or freight forwarding (service providers).
  • “Client(s)” as used herein means individuals and legal entities with whom Frigosped has, or is negotiating, contractual relationships with a view to the services offered by Frigosped or with whom Frigosped is engaged in similar business dealings.
  • “User(s)” as used herein means all Clients and Business Partners, including their respective employees, who are authorised to access the web portal.
B. RIGHTS AND OBLIGATIONS OF USERS
3. GENERAL PROVISIONS
  • Operating and using the web portal in a manner that takes into account the legitimate interests of Frigosped’s Clients and Business Partners, Frigosped aims to make it easier for its Clients and Business Partners to provide the services owed by them under their contracts for transportation, freight forwarding, and/or warehousing.
  • Frigosped reserves the right to alter the nature and scope of the services provided through the web portal at any time and with immediate effect.
  • Frigosped shall endeavour to ensure uninterrupted provision of the web portal. However, there is no obligation on the part of Frigosped to provide and/or maintain the operation of the web portal and individual functionalities thereof.
  • The web portal may be used only by or on behalf of merchants and associations of equal standing. Any use for private purposes is excluded. Clients and Business Partners are responsible for the actions of their respective employees.
4. AUTHORISED USERS
  • Clients and/or Business Partners are authorised to use the web portal only if they have consented to these Terms of Use. Use of the web portal is permitted exclusively to Clients and/or Business Partners and to their respective designated employees. Clients and Business Partners shall pass these Terms of Use to their employees before access to the web portal is granted to such employees.
  • After prior verification by Frigosped, Clients and Business Partners may be given access to the web portal either by means of a permanent login or an individual login. Except as otherwise agreed in writing, there is no entitlement to the granting of a permanent or even temporary access authorisation.
  • Frigosped shall set up an Administrator-Account according to the requirements in clause 4 of these Terms of Use, with the help of which the Client or Business Partner shall manage the access of his employees according to the provisions of these Terms of Use and any other instructions given by Frigosped in individual cases. For this purpose, Friogosped must be provided with the necessary data, namely first and last name, title, gender, telephone number and e-mail address of the Administrator. The Administrator must be carefully selected by the Client or Business Partner respectively. A change in the person of the Administrator is to be reported to Frigosped immediately.
  • Users will be allowed to access the web portal exclusively by means of credentials transmitted in the course of the registration and/or authentication process and consisting of a user name and a password.
  • Employees that are to be allowed access to the web portal must be selected with care. The credentials to the web portal must not be accessible to employees who do not have a sufficient degree of reliability. If a Client or Business Partners obtains knowledge of circumstances which substantiate the suspicion that the web portal has been misused by an employee, such Client or Business Partners shall immediately notify Frigosped thereof.
5. PROHIBITION OF MISUSE
  • Clients and Business Partners are prohibited from using the web portal for illegal purposes and from allowing or facilitating any such use. Clients and Business Partners warrant, among other things, that they shall observe intellectual property rights when using the web portal.
  • Users of the system shall notify Frigosped immediately if they discover any misuse or unauthorised use of the web portal. This applies also if Users suspect that an unauthorised person has or may have wrongfully obtained knowledge of personalised credentials for access to the web portal.
6. ACCESS BLOCKING; REVOCATION OF RIGHT OF USE
  • Frigosped is entitled to block access to the web portal by technical means on a permanent or temporary basis, if good cause exists. This applies in particular if:
    1. specific circumstances lead to the assumption that there are reasons which entitle Frigosped to terminate the contract for use of the web portal under its provisions;
    2. such blocking is justified in connection with the security of the web portal; or if
    3. there is a suspicion of unauthorised use or misuse of the web portal.
  • If access is blocked, Frigosped shall immediately inform the Client or the Business Partner thereof.
  • Frigosped reserves the right to revoke any access rights granted for the web portal for good cause. In the event of a revocation, Frigosped shall state its reasons for such revocation if a legitimate interest exists.
  • Users of the portal do not have any rights or claims whatsoever in the event of access blocking or revocation of access rights under the above-mentioned conditions.
7. CONFIDENTIALITY; STORAGE OF PERSONALISED CREDENTIALS
  • All Users are under a general obligation to use any not publicly accessible data and information processed in connection with the web portal exclusively for the contractually agreed purposes and to generally treat such data and information as confidential.
  • Data and information communicated by means of the web portal may be forwarded to third parties (such as subcontractors and insurance companies) only if such forwarding was intended or is necessary in connection with the performance of contractual obligations existing between the relevant Users and Frigosped.
  • More specifically, personalised credentials shall be kept confidential and shall be protected from unauthorized access, among other things by avoiding transmission thereof via e-mail or text message.
  • The obligation of confidentiality does not apply to data and information which has to be disclosed to third parties such as government agencies by virtue of legal obligations. If relevant data is disclosed, Clients and Business Partners shall at all times notify Frigosped thereof.
8. IT SECURITY
  • All Users shall carry out any security and verification measures that may be necessary to protect electronic data exchange through the web portal as well as data, documents, and information communicated via the web portal and the web portal as such from unauthorised access and that may be necessary to prevent any alteration, loss, or destruction of transmitted data, documents, or the web portal as such as well as the underlying technical infrastructure. To achieve this purpose, Clients and Business Partners shall, among other things, ensure that the credentials, which must be kept confidential, are changed in regular intervals and that the security level in place is adequate on the whole.
  • Users shall observe and shall, to the extent necessary, implement any safety instructions issued for the protection of the web portal and of data, information, and documents transmitted through the web portal and of the hardware and software employed for using the web portal, that are communicated by Frigosped via suitable means. Any User failing to abide by the relevant safety instructions shall bear liability for the resulting risks and/or disadvantages.
9. REQUESTING AND EXCHANGING INFORMATION THROUGH THE WEB PORTAL
  • Clients and Business Partners basically have the right and the obligation to use the web portal for communication in connection with the performance of obligations resulting from any contract for carriage, traffic operations, warehousing, or freight forwarding.
  • Users are under an obligation to provide truthful information and to update data to the extent necessary during the registration process and during their subsequent use of the web portal. Clients and Business Partners shall bear the risk with regard to any consequences that may result from the provision of information or data that is inaccurate, incomplete, or no longer up-to-date.
  • Clients shall generally have the possibility to call up through the web portal information about current delivery orders, such as the delivery status of a consignment or a proof of delivery. Among other things, the Client may use the Warehouse Management Module to enter and/or view production orders and to create and/or process inventory overviews.
  • Frigosped and service providers may use the web portal to exchange a variety of information related to the execution of any contract for transportation, traffic operations, warehousing, and/or freight forwarding. For this purpose, access to the web portal can be granted on the one hand to the responsible dispatchers of the service provider by means of a desktop version and on the other hand to the service provider’s drivers by means of a mobile application.
  • Among other things, the desktop version has been developed so that service providers can receive and document the processing of orders in digital form. The task of processing an order includes, without being limited to, accepting or rejecting an order, status reports with regard to the driver in charge and the vehicle employed and generally uploading relevant information.
  • Using a mobile application, the Business Partner’s drivers in charge will continuously transmit location data and status reports to Frigosped. GPS data is transmitted only if the corresponding functionality has been activated by the relevant driver. The Business Partner is responsible for creating the legal basis necessary for the transmission of location data.
  • In addition, there is the option to allow the system to access the mobile device used by the driver, e.g. to digitise and share documents. Also, the driver in charge can allow the system to access the mobile card application installed on the mobile device in order to create an ongoing exchange about the execution of the order.
  • Users have the obligation to immediately document and inform Frigosped of any concerns and irregularities arising during the use of the web portal.
  • Frigosped will allocate statements and/or entries of any kind that are communicated by means of the web portal to the Client or service provider who has been given access to the user account from which the statement or entry originates. This does not apply insofar as Frigosped has justified cause to doubt the authenticity of the User. The above is without prejudice to mandatory legal provisions governing legal capacity and/or apparent or ostensible authority.
10. UPLOADING DOCUMENTS; ELECTRONIC DATA EXCHANGE
  • Users may upload documents in the web portal and thus make the documents available to Frigosped.
  • Users shall make sure to check the web portal regularly with a view to the entry or upload of up-to-date data, information, and documents.
  • Clients and Business Partners shall ensure that the originals of uploaded documents are stored safely, if necessary. Frigosped reserves the right to request the originals of uploaded documents in an individual case.
  • Frigosped shall use best efforts to ensure the availability and security of any documents uploaded and data or information transmitted. However, Frigosped does not make any warranties regarding the availability of continuous access to uploaded documents and transmitted data and information. Uploaded documents and stored data will be deleted at regular intervals of 7 years, unless there are legal requirements preventing deletion. Any deletion or storage of personal data is governed by the privacy statement for the use of the web portal. Any loss of data is subject to the liability provisions in Section 11.
  • The transmitting party shall bear the risk of loss and the responsibility for the accuracy of the data transmitted.
11. WARRANTY AND LIABILITY
  • Frigosped shall endeavour to handle the communication process via the web portal in a proper manner with regard to contents as well as organisational and technical aspects. However, Frigosped does not make any express or implied warranties for this web portal or the contents and for the statements of participating Clients and Business Partners.
  • Unless otherwise provided herein below, Frigosped has liability towards Users in accordance with the applicable legal provisions.
  • Frigosped has unlimited liability in the event of intent and gross negligence; in all other respects, liability shall be limited and/or excluded in accordance with the following provisions.
  • Taking into account the risks resulting from the use of the web portal and the fact that the web portal is available to Users free of charge, the parties agree on a limitation of liability in the amount of the volume of the order during the execution of which Client or Business Partner, as the case may be, has incurred the damage claimed. However, the amount of the damage to be compensated shall in the aggregate not exceed EUR 20,000.00.
  • The liability of Frigosped is limited to reasonably foreseeable losses or expenses typical of this kind of contract.
  • Frigosped shall be liable for simple negligence only in the event that an obligation which is of particular importance for realizing the objective of the contract is infringed upon (i.e. a material duty). In such a case, the above limitations of liability apply; in all other cases, liability for simple negligence is excluded.
  • Liability for indirect and/or consequential damage or loss, in particular for damage or loss from business interruption and/or for loss of profits, is excluded.
  • As far as services under a lease agreement are provided, strict liability on the part of the provider for defects that already existed at the beginning of the contractual relationship is excluded; the provisions of section 536a, paragraph 1 of BGB does not apply.
  • Insofar as Users have free access to the web portal for testing purposes, Frigosped’s liability for any form of negligence, including gross negligence, is generally excluded. Frigosped’s unlimited liability remains in effect in cases of intent.
  • The aforementioned limitation of liability does not apply in cases of injury to life, body or health as well as claims under the German Product Liability Act (ProdHG) or the General Data Protection Regulation (GDPR). Liability for warranties given by Frigosped is also not affected hereby.
12. STATUTE OF LIMITATIONS

Any damage claims or claims for reimbursement of expenses made by Clients or Business Partners in connection with use of the web portal become time-barred within one year. The above does not apply to claims covered by the provisions of Section 11.5 herein above.

C. FINAL PROVISIONS
13. SEVERABILITY
  • If individual provisions of these Terms of Use are or become invalid or unenforceable, the remaining provisions hereof shall continue in full force and effect. The invalid or unenforceable provision shall be replaced with a provision which comes as close as possible to the commercial purpose of the invalid or unenforceable provision.
  • The same applies in the event that it is subsequently determined that there is a gap in these Terms of Use.
14. MODIFICATIONS AND AMENDMENTS
  • No oral collateral agreements have been made with regard to the use of the web portal.
  • The standard terms and conditions of the Client or the Business Partners do not apply with regard to their use of the web portal.
  • Frigosped reserves the right to make changes or amendments to these Terms of Use, including the access requirements for the web portal, at any time, including without limitation changes or amendments due to technical and/or legal basic conditions. Such changes shall be communicated to Clients and Business Partners in writing or in electronic form. User’s approval of any changes made to the Terms of Use is deemed to have been granted if the User has not expressly objected to such changes within a period of three months from receipt of the change notice. If an objection to the change in the Terms of Use has been raised, Frigosped has a special right of termination which entitles Frigosped to termination without notice.

The place of jurisdiction for any disputes arising in connection with the use of the web portal is the location of the Frigosped branch office to which the order related to the specific use of the web portal was addressed or from