General Conditions of Business for IT Services
General Conditions of Business for IT Services
General Conditions of Business for IT Services
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<strong>General</strong> <strong>Conditions</strong> <strong>of</strong> <strong>Business</strong> <strong>of</strong><br />
DACHSER GmbH & Co. KG<br />
(referred to as "DACHSER")<br />
<strong>for</strong> <strong>IT</strong> <strong>Services</strong> in the fields <strong>of</strong><br />
Transport and Logistics<br />
(referred to as "<strong>IT</strong> <strong>General</strong> <strong>Conditions</strong>")<br />
Clause 1 Scope <strong>of</strong> Application<br />
1. DACHSER develops, operates and markets<br />
electronic data interchange (= EDI) clearing<br />
plat<strong>for</strong>ms and, with the aid <strong>of</strong> said<br />
communication plat<strong>for</strong>ms, <strong>of</strong>fers to electronically<br />
handle data interchange processes as a<br />
supportive service - also as part <strong>of</strong> its provision<br />
<strong>of</strong> further logistics services which are not subject<br />
to these <strong>IT</strong> <strong>General</strong> <strong>Conditions</strong> - using all sorts <strong>of</strong><br />
s<strong>of</strong>tware and hardware structure without,<br />
however, owing any successful result in this<br />
regard. Only these <strong>General</strong> <strong>Conditions</strong> <strong>of</strong><br />
<strong>Business</strong> shall apply to the <strong>IT</strong> services to be<br />
rendered by DACHSER or any other undertaking<br />
affiliated to DACHSER. Any other deviating<br />
conditions <strong>of</strong> the customer shall have no validity.<br />
2. In addition these <strong>IT</strong> <strong>General</strong> <strong>Conditions</strong> shall<br />
apply to all users <strong>of</strong> the so-called e-logistics<br />
applications available on DACHSER's<br />
homepage (e.g. shipment control, D-SHUTTLE,<br />
D-Komm etc.). The user is deemed to know and<br />
accept these <strong>IT</strong> <strong>General</strong> <strong>Conditions</strong> as soon as<br />
he/it uses the e-logistics applications.<br />
Clause 2 The coming into existence <strong>of</strong> EDI agreements<br />
(only concerns EDI partners)<br />
The EDI partner/user ("Partner") declares its agreement to<br />
DACHSER being mandated by means <strong>of</strong> the exchange<br />
and/or transfer <strong>of</strong> EDI messages to DACHSER and<br />
expressly waives the right to challenge the validity <strong>of</strong> a<br />
transaction or order concluded with the aid <strong>of</strong> EDI in<br />
accordance with the terms and conditions <strong>of</strong> the<br />
agreements only because it was concluded with the aid <strong>of</strong><br />
EDI. The parties shall not question the admissibility <strong>of</strong> EDI<br />
messages as evidence relating to DACHSER's mandate.<br />
DACHSER shall, however, be able to oppose any mandate<br />
placed by EDI within a reasonable period.<br />
Clause 3 Warranty and Liability<br />
1. There shall be no right to any warranty claims due<br />
to a defective transfer <strong>of</strong> data, particularly the nontransfer<br />
or misdirected transfer <strong>of</strong> data as well as<br />
wrong in<strong>for</strong>mation, unless the defective nature <strong>of</strong><br />
the data transfer is due to wilfulness or gross<br />
negligence. No successful result with respect to<br />
the data transfer is owed.<br />
2. In the event that the Partner realises or has good<br />
reason to suspect that there is a disruption in the<br />
communication/clearing system (<strong>for</strong> example, in<br />
the <strong>for</strong>m <strong>of</strong> a continuous transmission or faulty<br />
data content), the Partner shall be under a duty to<br />
promptly notify DACHSER.<br />
3. Notwithstanding the duty to notify, the Partner<br />
must promptly take every available action to<br />
identify the error and to avoid errors so as to<br />
mitigate the damage, provided however that the<br />
cost <strong>of</strong> the measure is reasonably proportionate to<br />
the mitigation <strong>of</strong> damage which can thereby be<br />
achieved.<br />
4. When rendering <strong>IT</strong> services, DACHSER shall not<br />
be liable towards the Partner <strong>for</strong> damage or <strong>for</strong><br />
consequential damage (caused by a defect) unless<br />
damage was caused by DACHSER or its vicarious<br />
agents wilfully or grossly negligently. This<br />
exclusion <strong>of</strong> liability shall particularly apply in the<br />
event <strong>of</strong>:<br />
<strong>IT</strong> <strong>General</strong> <strong>Conditions</strong> <strong>of</strong> DACHSER GmbH & Co. KG<br />
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- the absence <strong>of</strong> system availability<br />
provided by DACHSER,<br />
- defective data transfer, including multiple<br />
transfers and communication disruptions<br />
as well as breakdowns in the e-logistics<br />
applications.<br />
- consequential harm caused by a defect<br />
such that far-reaching damage to the<br />
Partner's hardware or s<strong>of</strong>tware or its data<br />
is caused by the faulty transmission <strong>of</strong><br />
data or<br />
- damage or consequential harm (caused by<br />
a defect) is caused to the Partner's<br />
computer system or the computer system<br />
<strong>of</strong> a company affiliated to the Partner<br />
through the unlawful intervention by third<br />
parties who cannot be attributed to<br />
DACHSER.<br />
5. The exclusion <strong>of</strong> liability does not apply to damage<br />
arising out <strong>of</strong> any injury to life, body or health due<br />
to any negligent breach <strong>of</strong> duty by DACHSER or<br />
any wilful or negligent breach <strong>of</strong> duty by a statutory<br />
representative or vicarious agent <strong>of</strong> DACHSER.<br />
Clause 4 The Partner's Obligations<br />
1. The Partner shall ensure that all confidential data<br />
and in<strong>for</strong>mation transferred to the Partner upon<br />
concluding the Agreement or in order to use the elogistics<br />
applications (especially access details)<br />
are not disclosed to third parties. In the event <strong>of</strong><br />
any disclosure which has not been authorised by<br />
DACHSER, DACHSER can hold the Partner liable<br />
<strong>for</strong> any damage caused by the passing on <strong>of</strong> said<br />
data. In this case neither the Partner nor any third<br />
party can assert any claims <strong>of</strong> its own.<br />
2. The Partner and DACHSER undertake to take<br />
every reasonable safety precaution so that third<br />
parties (or "hackers") cannot obtain access to the<br />
<strong>IT</strong> system made available by DACHSER and<br />
cannot cause damage in terms <strong>of</strong> integrity,<br />
confidentiality or availability.<br />
3. In the event that other EDI customers/users <strong>of</strong><br />
DACHSER or other natural persons or legal<br />
entities suffer harm through third parties<br />
("hackers") via the system made available by<br />
DACHSER, and the third party ("hacker") logged<br />
into the Partner or carried out other manipulations<br />
because <strong>of</strong> reproachable neglect by the Partner,<br />
the Partner shall indemnify and hold DACHSER<br />
harmless against any claims by the damaged<br />
parties unless DACHSER or its vicarious agents<br />
acted wilfully or grossly negligently within the<br />
meaning <strong>of</strong> Clause 3(4).
Only in this case shall the Partner have rights <strong>of</strong> its own.<br />
DACHSER, however, assigns any rights <strong>of</strong> its own to the<br />
Partner.<br />
Clause 5 Confidentiality<br />
1. The parties shall treat the in<strong>for</strong>mation and<br />
knowledge, to which they are given access by the<br />
respective other party under this Agreement and<br />
which they obtain in the course <strong>of</strong> the EDI<br />
processing, as confidential and shall not exploit or<br />
use such in<strong>for</strong>mation or knowledge or make such<br />
in<strong>for</strong>mation or knowledge available to third parties<br />
without the written consent <strong>of</strong> the other party, even<br />
after the EDI processing has ended.<br />
2. The obligation to treat such in<strong>for</strong>mation and<br />
knowledge as confidential shall not apply to<br />
in<strong>for</strong>mation which the receiving party already knew<br />
be<strong>for</strong>e the Agreement was concluded or <strong>for</strong><br />
in<strong>for</strong>mation which at that time was already in the<br />
public domain and the receiving party proves this.<br />
Clause 6 Rights to the S<strong>of</strong>tware<br />
No rights, in particular but without limitation no copyrights,<br />
rights to inventions and technical intellectual property<br />
rights shall pass to the Partner through the connection to<br />
DACHSER's EDI network. DACHSER shall continue to be<br />
exclusively entitled to all rights in the work results, also to<br />
consulting results, as against the Partner, even to the<br />
extent that work results were created through the<br />
instructions or co-work <strong>of</strong> the Partner or the Partner's<br />
employees.<br />
Clause 7 Additional Provisions <strong>for</strong> the use <strong>of</strong> eLlogistics<br />
application „Download“ from www.dachser.com<br />
1. Both Parties shall see to it that measures are taken<br />
within their area <strong>of</strong> responsibility which ensure that<br />
the electronically exchanged data is proper and<br />
which in particular shows cases <strong>of</strong> data loss or other<br />
manipulations. In case <strong>of</strong> dysfunction parties are to<br />
in<strong>for</strong>m one another immediately and shall initiate respective<br />
and necessary measures to eliminate the<br />
dysfunction. Partner agrees not to question authenticity<br />
<strong>of</strong> the electronic documents and electronic certificates<br />
in court or outside court proceedings.<br />
2. In case <strong>of</strong> use <strong>of</strong> eLogistics application “Download”<br />
regarding electronically transmitted attachments to<br />
invoice summaries the following principles shall apply:<br />
partner shall receive with a respective imprinted<br />
notice the respective original <strong>of</strong> the invoice summary<br />
generally without attachments in hard copy. In this<br />
case, Partner shall be obligated to download the respective<br />
attachments to the summary invoices sent<br />
from the eLogistics application “Download” as soon<br />
as possible. Furthermore, he shall be obligated to<br />
preserve the data in accordance to the legal requirements<br />
in an approved <strong>for</strong>mat. DACHSER shall<br />
make the respective data as a download available<br />
<strong>for</strong> a period <strong>of</strong> 3 years from the respective invoicing<br />
date.<br />
Alternatively DACHSER will make available the respective<br />
data via EDI-transfer. In this case the Partner<br />
also has to meet the above mentioned demands.<br />
Clause 8 Miscellaneous<br />
1. If these <strong>Conditions</strong> contain a gap or a provision is or<br />
becomes invalid, whether in whole or in part, the<br />
remainder <strong>of</strong> these <strong>Conditions</strong> shall continue to be<br />
valid.<br />
In the event that the invalidity is not due to a breach<br />
<strong>of</strong> Paragraphs 305 et. seq. <strong>of</strong> the German Civil Code<br />
(BGB) a provision shall be deemed to have been<br />
agreed which comes closest to the commercial<br />
purpose <strong>of</strong> the absent or invalid provision originally<br />
intended by the contract parties and such provision<br />
shall apply in lieu <strong>of</strong> the absent or invalid provision.<br />
2. The contractual relationship between the contract<br />
parties shall be governed by the laws <strong>of</strong> the Federal<br />
Republic <strong>of</strong> Germany.<br />
If there is no written agreement between the Partner<br />
and DACHSER, only these <strong>IT</strong> <strong>General</strong> <strong>Conditions</strong><br />
shall apply to DACHSER's provision <strong>of</strong> <strong>IT</strong> services.<br />
If there is a written agreement between the Partner<br />
and DACHSER, these <strong>IT</strong> <strong>General</strong> <strong>Conditions</strong> shall<br />
constitute an integral part <strong>of</strong> the agreement to the<br />
extent there is no conflict to any individual<br />
agreement in writing which may exist regarding the<br />
provision <strong>of</strong> <strong>IT</strong> services.<br />
3. The place <strong>of</strong> per<strong>for</strong>mance and exclusive place <strong>of</strong><br />
jurisdiction <strong>for</strong> any and all disputes which arise either<br />
directly or indirectly out <strong>of</strong> the contractual<br />
relationship shall be Kempten.<br />
<strong>IT</strong> <strong>General</strong> <strong>Conditions</strong> <strong>of</strong> DACHSER GmbH & Co. KG<br />
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