Version 1.1, last revision date: 6 December 2019
Kurfürst 1633 GmbH, Charlottenstraße 4, 10969 Berlin, Germany (“everstox”) operates the digital platform www.everstox.com, an online portal for brokerage and consulting services for warehouse space and associated logistics services (“Platform”).
The following Terms and conditions for everstox (“Terms”) shall apply to the use of the Platform by Merchants and Logistics Providers.
everstox, Merchant and/or Logistics Provider may each be referred to as a “Party” or collectively as “the Parties”.
Special requirements for Logistics Providers are also governed by Special Terms for Logistics Services.
A. General terms and conditions for everstox
API shall mean application programming interface. Day shall mean a calendar day.
Logistics Provider shall mean a service provider in the field of logistics, offering inter alia services relating to warehousing, fulfillment and similar.
Logistics Services shall mean services by a Logistics Provider regarding storage of goods and related services such as packaging or order picking, as further specified by Merchant and Logistics Provider for each transaction concluded via the Platform.
Merchant shall mean a company operating in the field of ecommerce, retail or similar.
Pricing Framework shall mean an annex which defines standards for exchanging quotes between the Parties.
Profile shall mean one (1) user account/profile for a User.
Services shall mean all functionalities available for a User of the Platform, that he/she might use or have the right to use.
Terms shall mean the Terms and Conditions which a User agrees to accept upon usage, registration and/or log in.
Users shall mean any Merchant(s) and Logistics Provider(s) using the Platform.
2. General information
2.1 The Platform aims to connect Merchants to Logistics Providers and vice versa including (without being limited to) enabling transparent communication and conclusion of contracts relating to Logistic Services between Merchants and Logistics Providers.
2.2 Merchant may use the Platform inter alia to search for Logistics Services offered by Logistics Providers and conclude respective contracts with Logistics Provider for Logistics Services.
2.3 Logistics Provider may use the Platform inter alia to offer their Logistics Services and conclude respective contracts with Merchant for Logistics Services.
2.4 Users shall comply with all applicable laws, in particular, without being limited to, employment, copyright and data protection law as well as the Terms at all times when using the Platform and/or performing Logistics Service(s) concluded via the Platform.
3. Requirements for use of Platform
3.1 Being a pure business-to-business platform, the Platform shall only be used by natural or legal persons or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his/her
or its trade, business or profession (sec. 14 of the German Civil Code). Consumers are not allowed to use the Platform.
3.2 Certain and/or selected Platform Services shall only be used by registered Users. Certain/selected information within the platform shall only be visible after successful registration.
3.4 The information requested during registration must be given in full. If the provided information changes after registration, the User is obligated to update their profile as soon as possible or request the change in the profile on the Platform or by everstox.
3.5 When registering, a User must choose a password in accordance with the Platform’s requirements. Users are not allowed to disclose this password and/or any other login data to any third parties. Users shall take appropriate measures to maintain confidentiality of said data and to prevent the misuse of their Profile by third parties. If a User has any indications that their Profile is being or was misused, the User shall immediately opt for changing their password and notify everstox.
3.6 Users shall be liable for all activities under their Profile.
3.7 Users shall keep the communication and interaction with other Users professional.
4. Offers and requests for Logistics Services
4.1 Merchant may publish non-binding search requests for Logistics Services on the Platform and Logistics Provider may publish non-binding offers in regard to these search requests.
4.2 If Merchant publishes a search request, certain data of Merchant will be shared with respective Logistic Providers in order to create matching offers.
4.3 If a search request of a Merchant is successful, the Platform will contact the Merchant with one or more offers by Logistics Providers. Merchant may decide to proceed with respect to one or more offer(s) and contact will be established between the respective Logistics Provider(s) and the Merchant as further specified in Section 5.
4.4 If everstox has not found a Logistics Provider for the Merchant or Merchant has not entered into an agreement with a Logistics Provider, everstox reserves the right to introduce other Logistics Provider to the Merchant at a later point in time.
4.5 everstox will take measures to ensure that the Merchant gets in contact with the most suitable Logistics Providers from the Platform but cannot guarantee suitability in individual cases. Logistics Providers on the Platform are committed to comply with industry guidelines and quality standards. However, the Merchants agree to review each Logistics Provider as appropriate without further guidance by the Platform or everstox.
5. Negotiations and conclusion of agreements for Logistics Services
5.1 The negotiations for the conclusion of an agreement regarding the Logistics Services between Merchant and Logistics Provider shall not take place on the Platform. everstox may request information from Merchant
and/or Logistics Provider regarding the status of the respective negotiations at any time and Merchant and/or Logistics Provider shall provide this information as reasonably requested to everstox within ten (10) Business Days.
5.2 This agreement will only be concluded between Merchant and Logistics Provider on the basis of a contract to be provided by Logistics Provider. For this contract, the Logistics Providers will use the Pricing Framework. everstox will not be a party of this agreement. Merchant and Logistics Provider shall submit the final contract to everstox within ten (10) Business Days after conclusion
5.3 If a contract is concluded between the Merchant and the Logistics Provider brokered via the Platform and everstox has been informed in accordance with Section 5.2 sentence 3, everstox shall provide further services to the Merchant as specified in the Special Terms for Software Services.
6. Platform service center
6.1 everstox provides a service center for the Platform during German business hours for the Platform’s Users from Monday through Friday (excluding public holidays in Munich) from 9 am to 5 pm Central European Time.
6.2 everstox can be contacted via telephone, email and other means as indicated on the Platform.
6.3 The Users acknowledge that any reports will be processed on a “first come, first serve” approach and that the Platform, therefore, cannot warrant a specific reachability or responding time of the service center.
7. Fees and payments
7.1 The general use of and the registration for the Platform is free of charge for Logistics Providers and Merchants.
7.2 The conclusion of an agreement for Logistics Services is subject to performance-linked fees for the Logistics Providers for the term of the underlying agreement. Details are governed by the Special Terms for Logistics Providers.
7.3 Fees for the Merchant may apply on the basis of the Special Terms for Software Services.
7.4 Any fees and payments shall be subject to VAT, if VAT is applicable.
7.5 Everstox’s fees shall be invoiced on a monthly basis and paid by Logistics Providers and Merchants within fourteen (14) Days after receipt of the respective invoice.
8. Term, termination, blocking and limitation
8.2 everstox may discontinue and terminate the operation of the Platform including the Software Services as stipulated by the Special Terms for Software Services and shall inform the affected Logistics Providers and Merchants with a notice period of at least three (3) months.
8.3 everstox may terminate the Profile of any User at any time in case a User does not comply with the Terms. User shall be notified of such termination by everstox.
8.4 A termination does not affect the User’s duties with respect to the use of the Platform before the termination becomes effective unless expressly stated otherwise by everstox.
8.5 Before or instead of a termination of a Users’ Profile, everstox may at its sole discretion also limit the access of a User to the Platform’s functionalities. This particularly applies to cases of inappropriate use of the Platform or to where such a measure is in the reasonable judgments of the Platform and is deemed necessary to defend against inappropriate content, malware, computer viruses and other technical or commercial threats for the Platform, everstox or other Users.
9. Warranty and liability of everstox for the Platform
9.1 As far as everstox is not a party to Logistics Services concluded via the Platform in accordance with these Terms (except for providing the Platform as virtual meeting place and means of communication) everstox is not liable for (i) any claims only between the Merchant and Logistics Provider involved, and (ii) any other illegal or immoral interactions with the use of the Platform between the Parties.
everstox will not provide any legal advice, or help, or act as a third party technical expert. Legal remedies available to Users in case of a breach of warranty are subject to the Terms or the applicable law.
9.2 everstox does not grant any warranty, e.g. for the compliance of applicable laws and regulations in the respective business relations between Users as well as regarding any Logistics Services.
9.3 everstox shall use reasonable efforts to make and maintain the Platform available via the internet. However, like other online services, the Platform’s availability depends on provided services by third parties and requires technical maintenance. Thus, the Platform may be at times
temporarily unavailable or only available with limited functionality. The availability level of the Platform is targeted at ninety eight percent (98%) excluding scheduled maintenance times. The Platform endeavors to announce scheduled maintenance of the Platform well in advance.
9.4 everstox shall be liable for damages resulting from injury to life, body or health, for damages resulting from intentionally or grossly negligent acts or omissions. For damages resulting from slight negligence acts or omissions by everstox, an employee or representative of everstox, everstox shall be only liable in events of a breach of a cardinal duty, i. e. those duties which are material to the proper performance of the Services and on the fulfillment of which the other Party generally relies or is entitled to rely. In this case everstox’s liability shall be limited to the typical, foreseeable damage (excluding loss in profits and indirect damages).
9.5 Events of force majeure, which render a service or obligation of everstox substantially more difficult or impossible, shall entitle everstox to defer the fulfilment of this obligation or duty for the duration of the hindrance and a reasonable time thereafter. Industrial disputes in the Parties’ businesses or industrial disputes in third party’s businesses and similar circumstances which directly or indirectly affect the Parties shall be treated as force majeure.
Users indemnify and hold harmless the Platform from and against any claims of third parties as well as any loss and damage (including any and all costs incurred hereby), resulting from,
● the use of the Platform by a User who is not in compliance with these Terms;
● claims of a third party based on the allegation that the use of the Platform infringes a right of a third party; and
● claims of a third party, including administrative orders, based on the allegation that the use of the Platform by a User infringes any applicable law or regulation.
11.1 The Parties agree to keep all confidential information which becomes known to them during the performance of the Terms strictly confidential and only to use such information for the contractually agreed purposes. Confidential information for the purpose of this provision shall mean information, documents, details and data, which is marked as such or is to be seen as confidential because of its nature. Merchants and Logistics Providers agree to allow only such of its employees, who are entrusted with the provision of services in the course of the Terms, access to the confidential information of everstox. The Parties agree at the request of the respective other Party to require their employees to sign an appropriate confidentiality declaration and to present this to the respective other Party. The Parties shall not seek to register intellectual property rights in respect of confidential information of the other Parties.
11.2 If confidential information within the above definition is requested by a public authority, then the other Party/Parties shall be informed without delay and before the information is supplied to the public authority.
11.3 The rights and obligations under 11.1 and 11.2 shall not be affected by the termination of the Terms. The Parties agree at the option of the other Party/Parties to return or destroy the confidential information of the other Party upon the termination of the Terms, to the extent that such information still exists.
12. Data protection
13. Dispute, applicable law and jurisdiction
13.1 These Terms will be subject to, interpreted and construed in accordance with the laws of Germany. In the event of any conflict of the English legal meaning and the German legal meaning of these Terms or any part thereof, the German legal meaning shall prevail.
13.2 Place of jurisdiction for all disputes resulting from or based on the use of the Platform is Berlin, Germany.
14.1 Users may not assign any of their rights and/or obligations under the Terms or part thereof without the prior written consent of everstox.
14.2 Users agree that everstox may assign any of its rights and/or obligations under the Terms in total or in part to a company directly or indirectly controlled by, or jointly held with a third party, by everstox. Users shall be informed by everstox about such assignment in due time.
14.3 Failure by either Party to enforce any of the provisions of these Terms shall not be construed as a waiver of such provisions. If any of the provisions of these Terms are held unlawful or otherwise ineffective by any court of competent jurisdiction, the remainder of these Terms shall remain in full force and the unlawful or otherwise ineffective provision shall be substituted by a new provision mutually agreed upon by the Parties reflecting the intent of the provision so substituted.
14.4 Nothing in these Terms creates, implies or evidences any partnership or joint venture between the Parties, or the relationship between them of principal and agent. None of the Parties has any authority to make any representation or commitment, or incur any liability, on behalf of any other.
14.5 everstox reserves the right to make non-material changes to the Terms. Users shall receive the amended Terms via email and/or via a notification in the interface before the new Terms come into effect. The latest revision date is stated at the beginning of the document. In the event that a User does not object the new Terms within two weeks after receiving the email and/or notification, the new Terms are deemed accepted. In the event that a User objects the new Terms, everstox may terminate the User’s Profile which shall not affect contracts already concluded on the basis of the Platform and the Terms.
14.6 In the event that a provision or parts of a provision of the Terms is/are ineffective, all other provisions or parts of the provision remain unaffected therefrom.
14.7 everstox has taken great care to compile the information as incorporated in the Platform and to ensure that it is correct and complete. The information is updated at irregular intervals. As such information may be subject to rapid and recurrent changes, we would like to point out that despite all efforts, the information may occasionally be out of date, incorrect or incomplete. As a result, everstox provides this information “as is” and makes no assurance or warranty with regard to such information.