| § 1 |
Subject of the Agreement; Scope |
| 1.1 |
Skill Portal AG (operator) for information see company details: www.fairpartners.com/impressum.htm operates the business-to-business Internet platform www.fairpartners.com (procurement platform) and provides purchasers and suppliers of goods and services (users) access to and use of the procurement platform. |
| 1.2 |
These General Terms and Conditions (Terms) apply to all users of the procurement platform from the first time they access the Internet services provided by the procurement platform. These Terms and Conditions are supplemented by the rules concerning procurement processes, the information on data protection and the price list found in their current versions. |
| 1.3 |
Counter statements by users referring to their own business and/or purchasing conditions are hereby rejected. |
| 1.4 |
Users are entitled to use the Internet services provided by www.fairpartners.com subject to the following conditions: |
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| § 2 |
Services; Costs |
| 2.1 |
The procurement platform enables users to present their companies on the procurement platform and to initiate or to conclude agreements on the sale of goods or services on the procurement platform. To this end, the procurement platform has an integrated, automated information system for the purpose of simplifying communication between users and comprehensive functions for the administration and monitoring of business transactions in progress. |
| 2.2 |
The services offered on the procurement platform include the following: |
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- providing the opportunity to use the procurement platform subject to user authorisation having been completed in accordance with Paragraph 3;
- the allocation of roles with various rights;
- providing the opportunity to publish company profiles and information;
- enabling agreement negotiations through requests for quotations initiated by purchasers;
- enabling agreement negotiations through offers of goods and services published by suppliers;
- creating opportunities for communication and the exchange of information between users;
- provision of an electronic wizard for the operation and use of the procurement platform;
- advice, assistance and other consultancy services for users subject to separate agreement with the operator.
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| 2.3 |
The costs and invoicing procedures for individual services are contained in the current price list on the procurement platform. The appropriate current price list, applicable at the time of entering into a contract with the operator (the order), shall apply in determining the price of individual services. |
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| § 3 |
Authorisation and Conditions of Use; Registration |
| 3.1 |
The use of the Internet services provided by www.fairpartners.com is subject to completion of a user agreement. For this purpose, users will submit an offer of contract by returning the registration form with the required minimum information online to the operator and by acknowledging their acceptance of these Terms, including attachments, by means of a mouse-click. Businesspersons and companies are entitled to register as users. They are exclusively individuals, legal entities, or unincorporated partnerships, with the legal capacity to carry out their commercial or independent professional activities when making use of the Internet services offered on the procurement platform. |
| 3.2 |
The operator will verify the company information supplied by the user for its accuracy and will decide on whether to accept the user's offer to complete a user agreement as part of the registration procedure described in Item 3.1 (authorisation). Authorisation will enable the user to access the non-public area of the procurement platform.
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| 3.3 |
There is no legal right of authorisation to use the procurement platform. Authorisation expires when the requirements as specified are discontinued. |
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| § 4 |
Requests for Quotations for Initiating or Concluding Agreements on the
Procurement Platform |
| 4.1 |
Purchasers have the opportunity to issue requests for quotations for the purchase of goods or services on the procurement platform and to invite bids from suppliers according to individually specified criteria. The various types of requests for quotations and their respective opening and acceptance procedures are described individually in the rules concerning rules concerning procurement processes. The legal requirements concerning the conclusion of agreements at auctions (Paragraph 156 of the German Civil Code) are expressly excluded. |
| 4.2 |
Unless otherwise stated in the rules concerning procurement processes or in the text of the request for quotations, and with the exception of auctions where the binding limit price is underbid, requests for quotations initiated by purchasers do not represent a legally binding offer; they only constitute an invitation for suppliers to submit a bid or to enter into business negotiations. |
| 4.3 |
Suppliers have the opportunity to select purchasers according to individual criteria and to submit offers in response to their requests for quotations. Unless otherwise stated in the rules concerning procurement processes or in the text of the request (e.g. solely a request for information), the bids submitted by suppliers in response to requests for quotations are binding and irrevocable declarations to complete the advertised contract. The supplier is bound by his offer until the expiry of the validity or declaration period, provided it has not expired due to a previously submitted acceptance. Suppliers have no right of invitation or participation in any specific requests for quotations. The same applies in respect of advertised requests for quotations. |
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| § 5 |
Offers of Goods and Services for the Initiating of Agreements
on the Procurement Platform |
| 5.1 |
Suppliers have the opportunity of publishing offers for their goods and services in the public area of the procurement platform. |
| 5.2 |
Offers of goods and services do not constitute a legal offer; but merely an invitation to third parties to submit offers and to enter into contract negotiations. |
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| § 6 |
The Form and the Processing of Agreements Initiated or Concluded on the procurement platform |
| 6.1 |
The form and processing of agreements initiated or concluded via the procurement platform is the sole concern of the respective users. The operator neither guarantees performance nor accepts liability for faulty goods or services traded nor legal deficiencies in the same. In particular, the information provided by the users and published on the procurement platform does not constitute any warranted qualities by the operator. The operator is not obliged to ensure the fulfilment of any agreements concluded between users. |
| 6.2 |
Insofar as the operator is a contracting party to any agreements concluded via the procurement platform, e.g., as a central contracting party, Item 6.1 does not apply. |
| 6.3 |
The operator accepts no responsibility for the true identity of the user or the user’s right of disposal. In cases of doubt, both contracting parties are obliged to inform themselves in an appropriate manner as to the true identity and the right of disposal of the other contracting party. |
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| § 7 |
Electronic Wizard |
| 7.1 |
The procurement platform is equipped with an electronic wizard which provides user tips and recommendations in respect of its operation and use, as well as describing how to use individual services of the procurement platform. |
| 7.2 |
There is no legal responsibility in respect of tips and recommendations made by the electronic wizard. It is the user's sole concern, whether the recommendations and/or tips are followed or not. The user has sole responsibility for all decisions concerning the execution or non-execution of transactions on the procurement platform. |
| 7.3 |
The operator undertakes neither a guarantee for the recommendations and tips made by the electronic wizard, nor a guarantee that following a tip or recommendation will lead to a successful outcome for the user. |
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| § 8 |
Rating System |
| 8.1 |
Users consent to the rating given to them by other users, in respect of their business transactions, appearing in the non-public area of the procurement platform. |
| 8.2 |
The ratings given by the user must be truthful and in accordance with law. When giving a rating the user must be objective. |
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| § 9 |
Rights and Obligations of the Users |
| 9.1 |
The user is authorised to utilise the services of the procurement platform in an orderly way and within the scope of the user rights granted to him by the operator. He is obliged to refrain from any unlawful acts and misuse of the services provided on the procurement platform. |
| 9.2 |
The user is obliged to regularly check and update company information for accuracy. Company profiles, requests for quotations and offers for goods and services shall not display any content which or whose intended agreement is contrary to legal or official regulations and/or the rights of third parties or is contrary to moral standards. The user may only upload virus-free files to procurement portal. |
| 9.3 |
Purchasers may only initiate requests for quotations on the procurement platform for actual requirements or use an appropriate type of procurement for future requirements (the so-called Request for Information – RFI). |
| 9.4 |
Suppliers shall only publish and submit bids in response to requests for quotations that they are able to fulfil. |
| 9.5 |
Purchasers shall assess the technical requirements for their requests for quotations realistically. In return, suppliers will make a true representation of their professional expertise. |
| 9.6 |
In the case of users being unable to adhere to an undertaking due to changed circumstances, they are obliged to inform the other user and the operator of the procurement platform immediately. |
| 9.7 |
If a claim is made against the operator for an infringement - as specified under Items 8.2, 9.1 to 9.6 - committed by third parties or by a user, the user responsible for the infringement undertakes to exempt the operator from all claims. This exemption clause applies to all expenses necessarily incurred by the operator resulting from a claim by a third party. The operator expressly reserves the right to claim compensation over and above the aforementioned claims. |
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| § 10 |
Rights and Obligations of the Operator |
| 10.1 |
The operator undertakes to check his own contributions and other services for relevance, correctness of material content, completeness and reliability to the best of his ability. |
| 10.2 |
The operator reserves the right to remove without previous notice any information, content or files appearing for which the accuracy of content is in doubt, which contravenes legal or official regulations, the rights of third persons, is immoral or infected by viruses. Claims resulting from the removal of such information or files cannot be made against the operator. |
| 10.3 |
If the user contravenes a duty pursuant to Paragraphs 8 and 9, the operator is entitled to delete the relevant data and/or to partially or completely withdraw access to the procurement platform. The same applies in the case of any other serious breaches of the user agreement as well as any justified complaints made by users to the Marketplace Surveillance. |
| 10.4 |
The content and technical make-up of the procurement platform, especially its form and content, are at the exclusive discretion of the operator. The operator thus reserves the right to discontinue, restrict, extend, supplement or improve all free services offered at any time. |
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| § 11 |
The Marketplace Surveillance |
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The Marketplace Surveillance of www.fairpartners.com monitors the platform to ensure that users observe general legal obligations, agreements and regulations when making use of the services offered on the procurement platform. The Marketplace Surveillance will investigate complaints by users concerning infringements of the rules and decides on what action to be taken in the case of any such infringements. |
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| § 12 |
Availability of Services and Reimbursement of Charges; Rules for Requests for Quotations in Case of System Failure |
| 12.1 |
The procurement platform www.fairpartners.com and the services offered via this procurement platform are provided without any guarantee as to their availability. In the case of any major non-availability (over 2 % non-availability), the charges made for billable services will be reimbursed on a pro-rata basis. |
| 12.2 |
If the communications equipment of the procurement platform fails, either partially or totally, the operator may in the case of requests for quotations whose deadlines expire during the period of the failure and with the consent of the purchaser, extend them until the next possible end-date, reissue them or declare them completed. Offers submitted until this time shall continue to be valid up until the validity / declaration period deadline. In this case, suppliers have no claim for damages against the operator or the purchaser in respect of the continuation or re-issuing of a request for quotations. |
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| § 13 |
Term of the Agreement ; Termination |
| 13.1 |
The user agreement based on these Terms and Conditions is valid for the period of one year. It begins with the authorisation of the user by the operator, in accordance with § 3, and is implicitly extended for a further year, in so far as it has not been terminated by one of the contracting parties, giving one month's notice to the end of the validity period. . |
| 13.2 |
The operator's right to withdraw the user's access to the procurement platform, either partially or wholly, according to Paragraph 10.3, remains unaffected. |
| 13.3 |
The contract period for chargeable services, as well as, where applicable, the contractual period of notice in respect of chargeable services, is given in the operator's price list. |
| 13.4 |
Either party has the right to terminate this agreement with good reason without notice. For the operator, good reason includes in particular: |
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- a serious infringement by a user of the provisions contained in these Terms and Conditions;
- a criminal act by the user or the attempt to commit such an act;
- declaration of insolvency in respect of a user's assets or the dismissal of the application for insolvency proceedings due to the absence of such assets.
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| 13.5 |
Notice must be given in writing. Notices of termination made by fax or e-mail (to the operator: communicationcenter@fairpartners.com) shall be deemed to fulfil the requirement for written notice. |
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| § 14 |
System Time |
| 14.1 |
The system time of the procurement platform as shown in the fairpartners’ system is binding and applies to the validity period of requests for quotations and for agreements between user and operator. The system time is displayed on the procurement platform. |
| 14.2 |
The system time is based on Central European Time as it applies in Germany ; on occasions, it may however deviate from the official time. |
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| § 15 |
Country Partners |
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The operator is authorised to provide individual services in this agreement to users based outside Germany with the help of associations and companies (country partners) from the respective country. Country partners may at the same time offer users their own services. |
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| § 16 |
Liability; Limitation of Liability |
| 16.1 |
The operator has unlimited liability for premeditated acts and acts of gross negligence. In case of minor acts of negligence by the operator or his legal representatives or assistants, the operator's liability to users is limited to the predictable, direct and average damages characteristic to the contract. Liability is limited to a maximum of 1 million Euros in each case. No further liability is accepted. |
| 16.2 |
Insofar as the procurement platform permits access to other websites via links, the operator is not responsible for the content of these other websites. The operator assumes no ownership of external content. No liability is accepted for the content of other websites. If any illegal content on external websites is brought to the attention of the operator, the link will be immediately removed. |
| 16.3 |
The operator is not liable for the accuracy of data entered by users in the portal, nor obliged to ensure that files uploaded by users onto the procurement portal are virus-free. |
| 16.4 |
The operator is not liable for any damages incurred by the user, as a result of following or not following recommendations or tips made by the electronic wizard. |
| 16.5 |
The above limitations of liability and exclusions do not affect claims by users in respect of product liability. Furthermore, the limitations of liability do not apply to physical harm or damage to the health of users attributable to the operator. |
| 16.6 |
Insofar as suppliers provide services to purchasers on behalf of the operator, the liability in this instance is determined by a separately concluded special agreement between the contracting parties. |
| 16.7 |
Insofar as the operator provides services to purchasers as central contracting party, the liability in this instance is determined by a separately concluded agreement between the contracting parties. |
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| § 17 |
Data Protection |
| 17.1 |
The operator has made comprehensive technical and organisational safeguards in order to ensure the confidentiality and appropriate handling of data. Misuse due to the unlawful acts of third parties cannot be entirely excluded. |
| 17.2 |
The operator undertakes to use the data saved during registration and use solely for his own purposes, or for purposes of initiating agreements, or the administration of agreements initiated or concluded via the procurement platform or to pass on (e.g. to the respective country partner); he also undertakes not to pass this data on to external third parties insofar as the authorities have not made any official order to the contrary or without the users' express consent. This regulation on data management is explained in detail and supplemented by the data protection information. |
| 17.3 |
The operator undertakes to require all employees entrusted with the administration and/or the operation of the procurement platform to adhere strictly to the data protection regulations. |
| 17.4 |
To guarantee the correct operation of the platform and to combat misuse, the operator is entitled to observe and record the actions of users. Item 17.2 applies to this data accordingly. |
| 17.5 |
Insofar as the user uploads personal data of auxiliary persons onto the procurement platform, he gives assurance that he is entitled to do this. The user is obliged to inform the auxiliary about the transfer of his personal data. |
| 17.6 |
Users are only entitled to use the personal data transmitted to them by the operator or by another user for the purpose of initiating or administering agreements. |
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| § 18 |
Information in Electronic Business; Exemption from § 312e Section 1, Clause 1, Nos. 1-3, Clause 2 of the German Civil Code (BGB) |
| 18.1 |
The user has the opportunity to download and save these General Terms & Conditions in a reproducible form from the Download Area of the procurement platform at any time. |
| 18.2 |
The procurement platform provides the user with extensive information about the opportunities it offers and how to use the platform e.g. FAQs and
the Procurement Wizard. Generally, the use of § 312e Section 1, Clause 1, Nos. 1-3 and Clause 2 of the German Civil Code is excluded. |
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| § 19 |
Copyright and Industrial Property Rights |
| 19.1 |
The operator owns all property rights, industrial property rights and copyright relating to his own contributions and other content. |
| 19.2 |
The user undertakes to neither remove nor render unrecognisable the please notes to copyright on the procurement platform or other please notes to such rights. |
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| § 20 |
General |
| 20.1 |
This agreement is governed by the laws of the Federal Republic of Germany. The application of the United Nations code of sales is excluded. The sole place of jurisdiction is Frankfurt am Main in the Federal Republic of Germany. The operator is also entitled to take legal action in the user’s general place of jurisdiction. |
| 20.2 |
In cases of doubt, the German version of these Terms and their constituent parts shall take precedence over translations in other languages. |
| 20.3 |
Amendments and additions must be made in writing. This also applies to the clause requiring written notification of alterations and additions itself. |
| 20.4 |
The non-validity of one or several provisions of this agreement does not affect the validity of the rest of the agreement. An invalid provision shall be replaced by a valid one that meets the commercial intent of the invalid provision as closely as possible. |
| 20.5 |
All supplementary parts of these Terms can be accessed in the public area of the procurement platform. |
| 20.6 |
These Terms replace and supplant all previous Terms. Users will be notified in writing by e-mail of any further amendments to these Terms by the operator. If the user does not register objections to such amendments within 14 days after receipt of the notification, the amendments shall be deemed to have been agreed to if the user continues to use the operator's services provided at www.fairpartners.com. In case of amendments, separate please note will be made regarding the user’s right to object and regarding the legal consequences of the user’s silence. |
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www.fairpartners.com - Skill Portal AG |
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Valid: May 2005 |
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Download - (PDF-Format) |