General Terms and Conditions

for using the exchange and action platform

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1 Subject of agreement; scope

1.1 Fairpartners GmbH (supplier data, see Legal Notice: is the provider (designated below as the Provider) of the business-to-business exchange and action platform (designated below as the Platform) and offers companies (designated below as the utilizers) and their responsible employees (users) access to and the use of the Platform. In addition, guest access to the Platform can be arranged for natural persons on request without the latter being able to take any action relating to such (guest); this guest access is free of charge, limited in time and hence automatically deactivated and may be terminated at any time by either party.

1.2 These General Terms and Conditions apply to all utilizers (to guests correspondingly) of the Platform with the first access to the Internet services available on the Platform. These General Terms and Conditions are supplemented in their current version in each case by the data protection note, the pricelist and the action rules.

1.3 Confirmations to the contrary by utilizers with reference to their own Terms of Business and/or Purchasing are hereby contradicted. This does not apply to individual agreements.

1.4 Utilizers are entitled to make use of the Internet services offered by under the following conditions.

2 Services; costs

2.1 The Platform enables companies to present their services and to seek and find business and cooperation partners, to exchange communications, information and documents and to carry out actions for the purchase and sale of merchandise and services. For this, the Platform disposes of an integrated, automated messaging system for simplifying communication between one company and another as well as wide-ranging functional capabilities for the management and monitoring of ongoing actions.

2.2 The services offered on the Platform consist, among other things, of the following:

  • availability of possible uses of the Platform after admission of the company under subclause 3;
  • availability of possible publication of the company profile;
  • providing a company directory for seeking and finding business and cooperation partners;
  • availability of an electronic control board (cockpit) for the operation and use of the Platform;
  • enabling of actions (information, negotiations, auctions) for the purchase and sale of merchandise and services;
  • creation of information and communication facilities between the companies and their users with links to dedicated publishing channels;
  • Services, consultation and support for the companies as defined in separate agreements with the Provider;
  • assignment of roles with various rights.

2.3 Costs and billing arrangements for individual services are shown in the current pricelist on the Platform. The current pricelist at the time of the conclusion of the agreement with the Provider (order) determines the price in each case. For the prolongation of the agreement, it is the current pricelist at the time of the prolongation of the agreement which counts, provided that the utilizer has been separately informed by the Provider of the change in prices at least 14 days before the prolongation of the agreement and has continued to make use of the services without objection. The utilizer will be advised separately of the right of objection and the legal consequences of remaining silent in the event of a change in prices.

3 Conditions for admission and use; registration; guest access

3.1 Use of the Platform requires the conclusion of an agreement for its use. The utilizer submits an agreement offer for this by sending the Provider online the registration form with the minimum details and accepts these General Terms and Conditions by a mouse click. Entrepreneurs and companies are entitled to register as utilizers. These are exclusively natural persons or legal entities or partnerships with legal capacity which, when they make use of the Internet services offered on the Platform, are exercising their trade or self-employed professional activities.

3.2 Within the scope of the registration procedure, the Provider will decide on the acceptance (admission) of the offer communicated by the utilizer for the conclusion of a use agreement under subclause 3.1 whereby a verification of the plausibility of the corporate data provided by the utilizer is reserved. The admission enables the responsible users of the utilizer to access the application area of the Platform.

3.3 For natural persons who wish to learn about the Platform for professional or scientific reasons, guest access to the Platform can be arranged on request without the latter being able to take any action relating to such (guest); this guest access is free of charge, limited in time and hence automatically deactivated and may be terminated at any time by either party.

3.4 There is no right to admission for the use of the Platform. The admission ceases to be effective if conditions specified for such no longer apply.

4 Actions for the preparation or conclusion of contracts on the Platform

4.1 Utilizers may use the Platform to start actions for the purchasing or sale of merchandise and services and for this to invite other utilizers, according to to individual criteria, to make declarations of intention (offer or acceptance). The various actions available, with their different versions in regard to opening and award procedures, are described in detail in the action rules. The legal ruling on the conclusion of contracts at auctions (§ 156 BGB [German Civil Code]) is expressly excluded.

4.2 Actions initiated by utilizers, if not stated otherwise in the action rules or in the description of the action and with the exception of auctions in which the defined award criteria have been met, do not constitute a legally binding offer but are only a request to the utilizers addressed to make offers or to begin contractual negotiations.

4.3 The bids given by users to actions of other utilizers, if not stated otherwise in the action rules or in the description of the action (e.g., since only a request for information), are binding and irrevocable declarations for the conclusion of the contract in question. The utilizer making the declaration is bound to its bid until the expiry of the binding/declaration date if it has not expired due to a previously made award. Utilizers have no right to be invited to take part in certain actions. The same applies for the performance of any actions announced.

5 Drafting and execution of contracts initiated or concluded on the Platform

5.1 The drafting and execution of contracts initiated or concluded via the Platform is the exclusive business of the utilizers in question. The Provider does not give any guarantee of performance in respect of such contracts nor is it liable for physical or legal defects of the merchandise or services traded. In particular, the details communicated by the utilizers and/or users and taken over on the Platform do not represent any properties promised by the Provider. The Provider has no obligation whatsoever to ensure the performance of the contracts concluded between utilizers.

5.2 If the Provider is a contracting party in respect of contracts concluded on the Platform, subclause 5.1 does not apply.

5.3 The Provider assumes no responsibility for the true identity and power of disposal of the utilizers and/or users. In case of doubt, both contracting parties are urged to inform each other in a suitable manner of their true identity and of the power of disposal of the other contracting party.

6 Cockpit

The Platform is equipped with a cockpit from which utilizers and/or users can control their own actions and post information and news and follow actions, information and news of other utilizers.

7 Best Practices; Templates

7.1 For utilizers and users, the Platform has available possible tips and recommendations with possible Best Practice examples and templates for operation and use and for making use of individual services such as the initiation of actions on the Platform. All tips, recommendations, Best Practices and templates are to be considered as not binding. The utilizer shall decide for itself whether it wishes to follow the recommendations and/or tips or not. The utilizer takes its decisions in regard to the performance or omission of any action on the Platform on its own responsibility.

7.2 The Provider provides no guarantee or warranty for the tips, recommendations, Best Practice examples and templates that following a recommendation or tip will lead to a favourable result for the utilizer.

8 Company directory

8.1 The order of the registered companies shown to utilizers and user on the Platform is determined by a non-public point system which is influenced among other things by the previous actions of the utilizer and the action-specific relevance and completeness of the corporate profile.

8.2 The utilizer is entitled to exercise an influence on its ranking by actions such as the publication of news and information, the opening of serious auctions and the submission of bona fide bids or the completion and cultivation of its corporate profile, for example.

8.3 The utilizer shall not exercise an influence on its ranking by unauthorized and/or unfair actions or by technical manipulations.

9 Rights and obligations of utilizers

9.1 The utilizer is entitled to use the services of the Platform in a proper manner within the range of the access possibilities granted by the Provider. The utilizer is obliged to desist from illegal actions and the abuse of access possibilities in regard to Internet services provided on the Platform.

9.2 The utilizer undertakes to constantly verify its corporate data for factual correctness and update it. Corporate profiles, any news and information introduced or any actions must not contain any content which or the intended contract of which infringe any legal or official regulations and/or the rights of third parties and/or public morals. The utilizer may only introduce virus-free files on the Platform.

9.3 Utilizers shall only initiate bona fide actions on the Platform, shall realistically assess the specialist requirements in regard to the merchandise or service demanded or the technical specification of their merchandise or service and shall only make offers which they can fulfil.

9.4. Utilizers shall use a suitable form of action when the purchase or sale of merchandise or a service is only a future prospect, for example (inform).

9.5 If a utilizer cannot keep a promise due to changed circumstances, he shall advise the other utilizer of this without delay.

9.6 Utilizers are entitled – and required to do so before the introduction of a court case against the Provider – to demand from the Provider the blocking or removal of information, contents, news and information published and files of which the accuracy is dubious, which infringe any legal or official regulations or public morals and are prejudicial to the utilizer in its own rights (notice-and-take-down procedure).

9.7 If legal action is taken against the Provider by reason of breaches by third parties or a utilizer as stated in subclauses 8.3, 9.1 to 9.5, the utilizer responsible for the breach undertakes to hold the Provider free from any claims whatsoever. The indemnity obligation refers to all expenditure necessarily incurred by the Provider through the claims asserted by a third party. This shall expressly not affect the right of the Provider to claim further compensation of damage.

9.8 The utilizer shall require its users taking action on the Platform to observe its obligations under these General Terms and Conditions.

10 Rights and obligations of the Provider

10.1 The Provider undertakes to verify its own editorial contributions and other services to the best of its ability in regard to topicality, factual correctness, completeness and security.

10.2 The Provider monitors the observance by utilizers of the general laws, agreements, rules and regulations when use is made of the services offered on the Platform. The Provider will investigate complaints by utilizers concerning infringements of rules and communications about any illegal content on the Platform and decide which measures are to be taken in the case of breaches of regulations.

10.3 The Provider reserves the right to block or remove information, content, news and files of which the factual correctness is dubious, which infringe legal or official regulations or the rights of third parties or public morals or are attacked by viruses when it becomes aware of such and, depending on the severity of the infringement in question, also without notice or prior consultation (notice-andtake-down procedure). No claims relating to the removal of such information or files can be lodged against the Provider.

10.4 Should the utilizer breach an obligation under subclauses 8, 9, the Provider is entitled to delete the corresponding data or make it wholly or partly impossible to access such on the Platform. The same applies to any other serious breach of the agreement by the utilizer and also following justified complaints by utilizers in accordance with the notice-and-take-down procedure.

10.5 The design of the content and technology of the Platform, particularly its form and content, are exclusively at the discretion of the Provider. Thus, the Provider reserves the right to stop, restrict, expand, supplement or improve all services offered free of charge.

11 System failure: availability of services and reimbursement of consideration; rules for actions

11.1 The Platform and the services offered on this Platform are provided without any assurance whatsoever in regard to availability. For services offered at a charge and if the service is not available to a considerable extent (> 2 % non-availability) a proportionate reimbursement of the consideration is made. The availability is calculated on the basis of the time for the respective month in the term of the agreement less the planned maintenance times and downtimes

which cannot be influenced by the Provider (force majeure, third party defaults, etc.). During maintenance work, it can happen that the above-mentioned services are not available for a short time. Planned maintenance work takes place outside core business hours (Monday to Friday 8:00 a.m. to 6:00 p.m. Central European Time).

11.2 In the event of the complete or partial failure of communication equipment of the Platform, the Provider, in the case of actions ending during a system failure and in agreement with the initiating utilizer, may continue these actions at the next possible date, restart such or declare them as ended. Up to then, bids which have been submitted retain their validity up to the end of the binding/declaration period. In this case, utilizers do not have a right to the continuation or restarting of an action and cannot claim damages against the Provider or the initiating utilizer.

12 Term of agreement; termination

12.1 The use agreement on which these General Terms and Conditions are based is concluded for a period of one year – with the exception of guest access. It begins with the admission of the utilizer by the Provider under subclause 3 and is tacitly prolonged for another year unless terminated by one of the contracting parties with one month’ notice to the end of the term.

12.2 The right of the Provider to wholly or partly withdraw access possibilities to the Platform for the utilizer under subclause 10.4 is not affected.

12.3 The term of the agreement in regard to services against payment and if necessary the right to give regular notice of termination of services against payment is regulated in the pricelist of the Provider.

12.4 Either party has the right to terminate this agreement for an important reason without observing a period of notice. An important reason for the Provider is, in particular:

  • a serious breach by a utilizer of the provisions of these General Terms and Conditions;
  • a tortious action of a user and/or utilizer or the attempt of such;
  • the opening of insolvency proceedings concerning the assets of a utilizer or the dismissal
  • of such petition for insufficiency of assets.

12.5 Any termination must be either in writing (letter, fax) or in text form (e-mail to the Provider:

13 System time

13.1 The relevant system time of Fairpartners on the Platform is exclusively applicable for the term of actions and agreements of the utilizer with the Provider. The system time is displayed on the Platform.

13.2 The system time is determined by the Central European Time applicable in Germany but may deviate from the official time in individual cases.

14 National partners

The Provider is entitled to supply individual services from this agreement for utilizers with a registered office in another country with the aid of federations, associations and companies (national partners) from the country in question. Furthermore, national partners may offer their own services to utilizers.

15 Liability; limitation of liability

15.1 The liability of the Provider for malicious intent or gross negligence is unlimited. For slightly negligent infringements of important contractual obligations caused by the Provider or its legal representatives or its agents within the framework of this use agreement, the liability of the Provider towards utilizers is restricted to foreseeable, direct, average damages typical of the contract. As regards the total sum, liability is restricted to a maximum of 1 million euros per case of liability. Liability is otherwise excluded.

15.2 If the Platform allows access to other websites through links, the Provider is not responsible for those third party contents. The Provider does not identify itself with third party contents. Liability for third party contents is excluded. Should the Provider learn of illegal contents on external websites, the Provider will immediately close the link to such.

15.3 The Provider is not liable for the factual correctness of data or for the freedom from viruses of files which are entered on the Platform by utilizers. Reference is made to the possibility of introducing a notice-and-take-down procedure (subclauses 9.6, 10.4).

15.4 The Provider is not liable for damage to the utilizer caused by following or not following recommendations, tips or Best Practices or by the use of templates.

15.5 The above restrictions of liability and exclusions do not apply to claims by utilizers relating to product liability. Furthermore, the restrictions of liability do not apply to damage to the health and body of utilizers attributable to the Provider.

15.6 If utilizers carry out services for other utilizers on behalf of the Provider, the liability of the contractual parties in this connection is regulated separately in the contract concluded for this.

15.7 If the Provider carries out services for utilizers, the liability of the contractual parties in this connection is regulated separately in the contract concluded for this.

16 Data protection

16.1 The Provider has taken comprehensive technical and organizational measures to ensure the confidential and exclusively purpose-oriented handling of data. Misuse through illegal actions of third parties cannot be totally excluded, however.

16.2 The Provider undertakes to use or communicate (e.g., also to the national partner in question) the data stored on registration and in use only for its own purposes or for the purpose of initiating or concluding contracts initiated or concluded via the Platform and not to communicate such to external third parties in the absence of any prescribed official obligation or if the utilizer has not expressly given its consent by the explicit activation of a publication button for Social Networks, for example. This ruling on the handling of data is specified further and supplemented by the Data Protection note.

16.3 The Provider undertakes to oblige its users entrusted with the administration and/or operation of the Platform to strictly observe the regulations of data protection law.

16.4 For the registration of companies as utilizers and for its own credit check, the Provider is entitled if necessary to retrieve creditworthiness information on the basis of mathematical-statistical procedures of so-called credit agencies and to receive updated information.

16.5 To ensure the orderly operation of the Platform and for combating misuse, the Provider has the right to observe and record how utilizers use the Platform. Subclause 16.2 applies accordingly to such data.

16.6 If a utilizer places personal data of an agent on the Platform, it must give an assurance that it has a right to do this. The utilizer is obliged to inform the agent of the transmission of his/her personal data.

16.7 Utilizers are exclusively entitled to use the personal data communicated to them by the Provider or other utilizers for the purpose of initiating or concluding

contracts. The utilizer shall accordingly require its users carrying out actions on the Platform to observe its obligations from these General Terms and Conditions.

17 Information in electronic business traffic; exclusion of § 312g para. 1, p. 1, nos. 1-3 BGB [German Civil Code]

17.1 The utilizer may at any time download and save these General Terms and Conditions on the Platform in a reproducible form.

17.2 Comprehensive information on possibilities of use and methods of use of the Platform for specific actions, such as action rules, Best Practices and templates, will be made available to utilizers. The application of

§ 312g para. 1, p. 1, nos. 1-3 BGB [German Civil Code] is otherwise excluded.

18 Copyrights and industrial property rights

18.1 The Provider is the proprietor of all property rights, copyrights and industrial property rights concerning its own contributions and other contents originated by it.

18.2 The property rights, copyrights and industrial property rights relating to contributions and contents such as Best-Practices and Templates, for example, which are uploaded by utilizers on the Platform for retrieval by other utilizers, remain with the uploading utilizer. If necessary, the uploading utilizer grants the Provider a simple right of use for the purpose of calls by other utilizers on the Platform without the Provider becoming the proprietor of the third party contents through this.

18.3 The utilizer undertakes not to remove or render illegible the copyright notices or other notes on such rights of the Provider or other utilizers contained on the Platform.

19 General

19.1 The law of the Federal Republic of Germany is exclusively applicable with the exclusion of the reference norms of international private law (IPR) and of the

United Nations Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction is Frankfurt/Main in the Federal Republic of Germany if the utilizer is a merchant according to German law. The Provider is also entitled to sue at the general place of jurisdiction of the utilizer.

19.2 The German contract text of these General Terms and Conditions and the constituent parts of such takes priority in case of doubt over translations into other languages.

19.3 The invalidity of one or several provisions of this agreement shall not affect the validity of the rest of this agreement.

19.4 The supplementary parts of these General Terms and Conditions can all be retrieved in the public area of the Platform.

19.5 These General Terms and Conditions supersede all earlier General Terms and

Conditions and replace these. Other changes to these General Terms and

Conditions will be communicated to the utilizer in text form by e-mail from the Provider. If the utilizer does not contradict such changes within 14 days of receipt of the notification, the changes are deemed to be agreed if the utilizer continues to make use of services of the Provider made available under Should a change be made to these General Terms and

Conditions, the attention of the utilizer will be separately drawn to the right of objection and the legal consequences of silence. – Fairpartners GmbH

Issue: March 2013