General Conditions of Business for IT Services

General Conditions of Business of
DACHSER GmbH & Co. KG
(referred to as "DACHSER")
for IT Services in the fields of
Transport and Logistics
(referred to as "IT General Conditions")
Clause 1 Scope of Application
1. DACHSER develops, operates and markets
electronic data interchange (= EDI) clearing
platforms and, with the aid of said
communication platforms, offers to electronically
handle data interchange processes as a
supportive service - also as part of its provision
of further logistics services which are not subject
to these IT General Conditions - using all sorts of
software and hardware structure without,
however, owing any successful result in this
regard. Only these General Conditions of
Business shall apply to the IT services to be
rendered by DACHSER or any other undertaking
affiliated to DACHSER. Any other deviating
conditions of the customer shall have no validity.
2. In addition these IT General Conditions shall
apply to all users of the so-called e-logistics
applications available on DACHSER's
homepage (e.g. shipment control, D-SHUTTLE,
D-Komm etc.). The user is deemed to know and
accept these IT General Conditions as soon as
he/it uses the e-logistics applications.
Clause 2 The coming into existence of EDI agreements
(only concerns EDI partners)
The EDI partner/user ("Partner") declares its agreement to
DACHSER being mandated by means of the exchange
and/or transfer of EDI messages to DACHSER and
expressly waives the right to challenge the validity of a
transaction or order concluded with the aid of EDI in
accordance with the terms and conditions of the
agreements only because it was concluded with the aid of
EDI. The parties shall not question the admissibility of EDI
messages as evidence relating to DACHSER's mandate.
DACHSER shall, however, be able to oppose any mandate
placed by EDI within a reasonable period.
Clause 3 Warranty and Liability
1. There shall be no right to any warranty claims due
to a defective transfer of data, particularly the nontransfer
or misdirected transfer of data as well as
wrong information, unless the defective nature of
the data transfer is due to wilfulness or gross
negligence. No successful result with respect to
the data transfer is owed.
2. In the event that the Partner realises or has good
reason to suspect that there is a disruption in the
communication/clearing system (for example, in
the form of a continuous transmission or faulty
data content), the Partner shall be under a duty to
promptly notify DACHSER.
3. Notwithstanding the duty to notify, the Partner
must promptly take every available action to
identify the error and to avoid errors so as to
mitigate the damage, provided however that the
cost of the measure is reasonably proportionate to
the mitigation of damage which can thereby be
achieved.
4. When rendering IT services, DACHSER shall not
be liable towards the Partner for damage or for
consequential damage (caused by a defect) unless
damage was caused by DACHSER or its vicarious
agents wilfully or grossly negligently. This
exclusion of liability shall particularly apply in the
event of:
IT General Conditions of DACHSER GmbH & Co. KG
Version II
- the absence of system availability
provided by DACHSER,
- defective data transfer, including multiple
transfers and communication disruptions
as well as breakdowns in the e-logistics
applications.
- consequential harm caused by a defect
such that far-reaching damage to the
Partner's hardware or software or its data
is caused by the faulty transmission of
data or
- damage or consequential harm (caused by
a defect) is caused to the Partner's
computer system or the computer system
of a company affiliated to the Partner
through the unlawful intervention by third
parties who cannot be attributed to
DACHSER.
5. The exclusion of liability does not apply to damage
arising out of any injury to life, body or health due
to any negligent breach of duty by DACHSER or
any wilful or negligent breach of duty by a statutory
representative or vicarious agent of DACHSER.
Clause 4 The Partner's Obligations
1. The Partner shall ensure that all confidential data
and information transferred to the Partner upon
concluding the Agreement or in order to use the elogistics
applications (especially access details)
are not disclosed to third parties. In the event of
any disclosure which has not been authorised by
DACHSER, DACHSER can hold the Partner liable
for any damage caused by the passing on of said
data. In this case neither the Partner nor any third
party can assert any claims of its own.
2. The Partner and DACHSER undertake to take
every reasonable safety precaution so that third
parties (or "hackers") cannot obtain access to the
IT system made available by DACHSER and
cannot cause damage in terms of integrity,
confidentiality or availability.
3. In the event that other EDI customers/users of
DACHSER or other natural persons or legal
entities suffer harm through third parties
("hackers") via the system made available by
DACHSER, and the third party ("hacker") logged
into the Partner or carried out other manipulations
because of reproachable neglect by the Partner,
the Partner shall indemnify and hold DACHSER
harmless against any claims by the damaged
parties unless DACHSER or its vicarious agents
acted wilfully or grossly negligently within the
meaning of Clause 3(4).

Only in this case shall the Partner have rights of its own.
DACHSER, however, assigns any rights of its own to the
Partner.
Clause 5 Confidentiality
1. The parties shall treat the information and
knowledge, to which they are given access by the
respective other party under this Agreement and
which they obtain in the course of the EDI
processing, as confidential and shall not exploit or
use such information or knowledge or make such
information or knowledge available to third parties
without the written consent of the other party, even
after the EDI processing has ended.
2. The obligation to treat such information and
knowledge as confidential shall not apply to
information which the receiving party already knew
before the Agreement was concluded or for
information which at that time was already in the
public domain and the receiving party proves this.
Clause 6 Rights to the Software
No rights, in particular but without limitation no copyrights,
rights to inventions and technical intellectual property
rights shall pass to the Partner through the connection to
DACHSER's EDI network. DACHSER shall continue to be
exclusively entitled to all rights in the work results, also to
consulting results, as against the Partner, even to the
extent that work results were created through the
instructions or co-work of the Partner or the Partner's
employees.
Clause 7 Additional Provisions for the use of eLlogistics
application „Download“ from www.dachser.com
1. Both Parties shall see to it that measures are taken
within their area of responsibility which ensure that
the electronically exchanged data is proper and
which in particular shows cases of data loss or other
manipulations. In case of dysfunction parties are to
inform one another immediately and shall initiate respective
and necessary measures to eliminate the
dysfunction. Partner agrees not to question authenticity
of the electronic documents and electronic certificates
in court or outside court proceedings.
2. In case of use of eLogistics application “Download”
regarding electronically transmitted attachments to
invoice summaries the following principles shall apply:
partner shall receive with a respective imprinted
notice the respective original of the invoice summary
generally without attachments in hard copy. In this
case, Partner shall be obligated to download the respective
attachments to the summary invoices sent
from the eLogistics application “Download” as soon
as possible. Furthermore, he shall be obligated to
preserve the data in accordance to the legal requirements
in an approved format. DACHSER shall
make the respective data as a download available
for a period of 3 years from the respective invoicing
date.
Alternatively DACHSER will make available the respective
data via EDI-transfer. In this case the Partner
also has to meet the above mentioned demands.
Clause 8 Miscellaneous
1. If these Conditions contain a gap or a provision is or
becomes invalid, whether in whole or in part, the
remainder of these Conditions shall continue to be
valid.
In the event that the invalidity is not due to a breach
of Paragraphs 305 et. seq. of the German Civil Code
(BGB) a provision shall be deemed to have been
agreed which comes closest to the commercial
purpose of the absent or invalid provision originally
intended by the contract parties and such provision
shall apply in lieu of the absent or invalid provision.
2. The contractual relationship between the contract
parties shall be governed by the laws of the Federal
Republic of Germany.
If there is no written agreement between the Partner
and DACHSER, only these IT General Conditions
shall apply to DACHSER's provision of IT services.
If there is a written agreement between the Partner
and DACHSER, these IT General Conditions shall
constitute an integral part of the agreement to the
extent there is no conflict to any individual
agreement in writing which may exist regarding the
provision of IT services.
3. The place of performance and exclusive place of
jurisdiction for any and all disputes which arise either
directly or indirectly out of the contractual
relationship shall be Kempten.
IT General Conditions of DACHSER GmbH & Co. KG
Version II