Terms and Conditions - European Buyers Council

GENERAL TERMS AND CONDITIONS
of
the Platform EBC

The European Buyers Council Stock Company (in the following “EBC”) is active in the areas of brokerage of business contacts, investigation of business affairs, marketing and online-advertising. In relation to this, it operates inter alia an internet-based platform for the initiation of transactions between companies. According to § 13 BGB (German Civil Code) private consumers are excluded from using this platform.

The platform should enable companies to present their products and/or services to industrial users. The companies must register as members on the platform in order to present their products/services there. The registration is carried out on the basis of the following general terms and conditions. As part of the registration, the company in question has to confirm that it has taken note of the general terms and conditions. The membership only occurs with the receipt of the payment of the membership fee at EBC. Members who offer their products/services through this platform will hereinafter be referred to as “Supplier”. Companies that are interested in the purchase of products/use of services will hereinafter be referred to as “Buyer”. In case a Buyer purchases products of a Supplier and/or wants to use services of a Supplier, Buyer and Supplier must enter into a contract outside the platform. EBC is not a party to the contract between Buyer and Supplier. The relationship of EBC with the Supplier will be regulated in the following under section I. and the relationship of EBC with the Buyer under section II. Section III. contains clauses that apply to the Supplier as well as the Buyer.

Relationship of EBC with Supplier
§ 1 Acquisition of membership
1. Offers of EBC on the platform for the conclusion of a membership are principally subject to change. They merely represent an invitation to the Supplier to apply for a membership for the platform. The application of the Supplier for a membership requires the following:
  1. completion of the online application form, deposited on the homepage, and sending off of the application and the consent to the privacy statement via click. Furthermore, the Supplier must forward documents to the platform via separate email from which can be deducted that the Supplier is registered as a tradesman in his country (e.g. extract from the Commercial Register; trade license; opinion letter of a recognized law firm etc.). In addition, the Supplier must send EBC pdf-copies of the passports/identification cards of the authorized representatives of the Supplier.
    alternatively to a) the Supplier can proceed as follows:
  2. completion of the online application form, deposited on the homepage, and sending off of the application form and the privacy statement with the signature of the authorized representative of the Supplier via email. Pdf-copies must be attached to the form which prove that the Supplier is registered as a tradesman in his country (e.g. extract from the Commercial Register; trade license; opinion letter of a recognized law firm etc.). In addition, pdf-copies of the passports/identification cards of the authorized representatives of the Supplier must be attached.
  If no further written confirmation is made by EBC, the billing of the membership fee is deemed to be the confirmation of EBC that EBC –subject to the payment of the membership fee - is willing to accept the membership of the Supplier. The membership – and with that the contract between EBC and the Supplier - occurs only with the receipt of the agreed membership fee at EBC. Fees for the remittance of the membership fee are borne by the Supplier. With the occurrence of the membership the Supplier receives a password (see also § 5 Duties of the Supplier) and an own account. On this account, the Supplier can deposit his products as well as company related data.
2. Any amendments or supplements of the contract for the membership require a written confirmation of EBC for their effectiveness. This also applies to any waiver of the written form requirement. Verbal ancillary agreements do not exist.
§ 2 Term of the membership
1. The membership begins with the day EBC transmits the password to the Supplier (see § 1.1).
2. The membership has a term of 12 months. It ends without requiring a notice of termination from the Supplier or EBC. The Supplier can apply for an extension of its membership at any given time. In which case the membership fees in force at the point in time of the request for extension apply to the extension period. Condition precedent for the extension of the membership is the receipt of the membership fee for the extension period at EBC.
§ 3 Type and scope of performance of EBC
1. Type, scope and all details of services to be rendered by EBC are determined exclusively by these general terms and conditions and the description of the services on the platform. The service package for the memberships can be gathered from attachment 1 [Note Esche: place link.]. The services to be rendered by EBC are from a legal point of view classified as business activities with a service-orientated nature. Accordingly, unless otherwise agreed, EBC does not owe a success in each individual case, in particular EBC does not owe the sales success of the products/services of the Supplier. Agreements between the Supplier and the Buyer as well as with other third parties are irrelevant for the determination of the services to be provided by EBC. The same shall apply in case EBC becomes aware of these agreements, statements and information.
2. The membership of the Supplier includes also a so-called Quick Check which EBC carries out for the Supplier. With this Quick Check it is verified whether the Supplier meets the criteria which are listed in attachment 2 [Note Esche: place link.]. If the Supplier meets the criteria as per attachment 2 EBC will issue a respective certificate for him.
3. EBC also is not liable vis a vis the Supplier for the existence, respectability and/or creditworthiness of the Buyer, unless EBC acted intentionally or grossly negligently in this regard.
4. EBC is entitled to have its services carried out wholly or partly by carefully selected and suitable service partners. Furthermore, EBC is entitled to engage companies, which are affiliated to it pursuant to § 15 Aktiengesetz (German Stock Corporation Act) (analog), for the operation of the platform.
§ 4 Recommendations

EBC does neither issue any ratings nor give any advice or written recommendation with regard to products/services of the Supplier.

§ 5 Duties of the Supplier

The Supplier is obliged to act truthfully and non-misleadingly both when applying for membership on the platform and when presenting its products and services on the platform. Further, the Supplier commits himself to observe the legal requirements of the country where he has his business seat as well as the legal requirements in force in Germany. In particular, the Supplier commits to
1. provide the necessary and correct information in order to put EBC in the position to decide about the application for membership;
2. manufacture his products in conformity with legal standards and rules, especially the safety standards, in force in Germany and in the country in which the Supplier has his seat, in particular the Supplier shall not offer the following products: products that violate third-party (e.g. patents, brands etc.) rights; weapons in the sense of the Waffengesetz (German Weapons Act); stolen goods; illegal goods; living animals; radioactive materials as well as all types of harmful materials; organs of humans or animals; drugs; all types of bonds; flight tickets; admission tickets;
3. advertise his products and services on the platform only in accordance with the legal standards of the country where it has his seat and of Germany as well as the general Internet standards. In particular, the Supplier shall not make advertisement that violates third-party rights or conventions in his country or in Germany. Advertising with e.g. erotic, pornographic, discriminatory, racist etc. content is prohibited;
4. not producing his products/services by means of inadmissible child labor. The guiding principles of the UN-Convention on the Rights of the Child (UNCR) shall apply;
5. care for secure working conditions for his employees, his vicarious agents and his subcontractors respectively their employees and vicarious agents.
6. fulfill his contractual obligations vis a vis the Buyers with whom he concluded contracts via the platform;
7. inform EBC and affected Buyers about changes regarding his legal form or modifications regarding his authorized representatives and as the case may be to adjust his profile deposited with EBC.
The Supplier will keep EBC free from any claims of third parties which are due to the fact that the Supplier has culpably violated his aforementioned obligations. This obligation to keep free shall not apply to the extent EBC causes the claims of the third-party themselves through willful or grossly negligent acts/omissions.

§ 6 Membership fee, payment terms, offset and right of retention
1. If German VAT applies to the membership fee it will be charged in addition.
2. The payment of the membership fee is to be provided in advance for each term of 12 months
3. The receipt in the bank account is relevant for the timeliness of payment and for the amount of possible agreed discounts.
4. In the event of default of payment by the Supplier, EBC can, among other claims, claim interest for the outstanding sums in the amount of 10 percentage points above the German base rate interest.
5. An offset of the Supplier with counterclaims is excluded, unless the counterclaims of the Supplier are recognized by EBC or assessed by a final and binding court decision. The same shall apply to the assertion of defects. The clause in § 6.5 also applies to the exercise of rights of retention.
Relationship with the Buyers
§ 7 Free use /limited obligations of EBC

The use of the platform is free of charge for the Buyer. EBC points out to the Buyer that
1. the Quick Check of the Supplier provided by EBC does not exempt the Buyer from controlling the Supplier;
2. an EBC-certificate that has been granted to the Supplier does not replace a CE-labeling nor any other type of official or public seal of examination;
3. EBC has no obligation whatsoever towards the Buyer to supply/deliver a product/service that is advertised on the platform. Contractual partner of the Buyer and with that liable to him is solely the Supplier. In this regard, it is the duty of the Buyer to legally safeguard his claims against the Supplier;
4. the Supplier is solely responsible for the content-related, legal and other content of the advertisement for his products and services.
5. EBC can't be held liable for the existence, the respectability and/or the creditworthiness of the Supplier. This limitation of liability does not apply to the extent EBC acted intentionally or with gross negligence.
General regulations
§ 8 Prevalence of these conditions
1. Only these general terms and conditions apply to the whole business relationship, including any future business relationships, between the Supplier and EBC and the Buyer and EBC. Terms and conditions of the Supplier and of the Buyer are hereby objected also to the extent they overlap these general terms and conditions. EBC is entitled to amend its general terms and conditions having affect for future business relationships with the Supplier and/or the Buyer after having provided Supplier and/ or Buyer with a respective notification. The change shall be deemed as approved, if the Supplier/Buyer fails to dispatch his written objection against an amendment of the general terms and conditions 4 weeks after having received the respective notification of the amendments. EBC will specifically indicate this consequence to the Supplier/Buyer in the notification of the amendments.
2. If a provision of these general terms and conditions is or will be invalid, this will not affect the validity of the relationship with the Supplier/Buyer. The invalid provisions shall be replaced by the legal provisions. By no means the provision concerned in these general terms and conditions shall be replaced by general terms and conditions of the Supplier and/or Buyer.
§ 9 Intellectual property
1. EBC is holder of the exclusive usage rights of the brand and firm “European Buyers Council” as well as the software programs that are used for the operation of the platform. It is prohibited for the Supplier and the Buyer to use the above mentioned brands, firms, names and software programs outside of the platform without the approval of EBC. The Supplier is only permitted to refer to his membership with the following wording: “Member of the platform EBC.”
2. The Supplier and the Buyer are prohibited to use the information or documents they obtained through the platform for the development and generation of statistics or other information which are provided to third-parties respectively to tolerate or support the development or generation of statistics or information. It is furthermore prohibited to the Supplier and the Buyer to disclose information or documents provided by EBC in any type of legal and/or judicial proceedings, unless they are legally obligated to disclosure.
3. If a Supplier culpably violates one of his obligations under § 9.1 or § 9.2, he has to pay EBC an appropriate contractual penalty for each violation. The contractual penalty shall be assessed by EBC adequately. The contractual penalty for each violation shall be no less than € 5,001.00. The contractual penalty can also with regard to its amount be reviewed by a court in terms of appropriateness. An offset of the Supplier against a forfeited contractual penalty is only permitted with a counterclaim which has been recognized by EBC or assessed by a final and binding court decision. The same shall apply to the exercise of rights of retention.
§ 10 Liability

Complementary to the liability limitations under sections I. and II., the following principles for liability for EBC shall apply:
1. The following disclaimers and liability limitations also apply to actions in tort as long as they compete with contractual claims.
2. The liability of EBC for damages of any type is excluded. This liability limitation does not apply
  1. for damages that EBC caused intentionally or grossly negligent;
  2. in cases of slight negligence for damages that are based on the injury of life, body or health as well as – subject to the regulations in § 10.3 and § 10.4 - for damages that are due to the violation of essential contractual obligations by EBC. Essential contractual obligations are all obligations the fulfillment of which is condition precedent for the proper execution of the platform and on which’s fulfillment the Supplier and/or Buyer relies and may rely.
3. In case of negligent violation of essential contractual obligations, the liability of EBC – with the exception of damages to life, body or health - is limited to the contractual and foreseeable damage that was foreseeable for EBC at the time of entering into the contract or at the time of breach of duty. EBC is not liable for damages, which fall exclusively within the sphere of risk of the Supplier and which were caused by a slight negligent violation of essential contractual obligations.
4. EBC will not liable for damage claims of the Supplier or of the Buyer that were caused by slight negligence, if they are not legally asserted within a period of three months after having been rejected by EBC or the insurance company involved and condition precedent being that EBC or the insurance company involved has informed the Supplier/Buyer about the consequences of an expiration to the three months term. All other damage claims that are based on slight negligence of EBC according to § 10.3 become time-barred in one year. The limitation period commences with the completion of the respective activity of EBC. This limitation does not apply, to the extent life, body or health are damaged by EBC.
5. The afore mentioned disclaimers and limitations of liability also apply to the liability of EBC for its legal representatives, employees and vicarious agents as well as the personal liability of legal representatives, employees and vicarious agents of EBC.
6. The afore mentioned disclaimers and limitations of liability do not apply to mandatory claims pursuant to the Produkthaftungsgesetz (German Act for Product Liability). Further, they do not apply when EBC has issued a guarantee with regard to quality.
§ 11 Force Majeure
1. In case EBC is wholly or partially prevented from fulfilling its obligation due to force majeure (e.g. war, natural disasters), it is discharged from its obligations. Accordingly, in such case Supplier or Buyer shall not be entitled to claim for damages. Any membership fees paid for the time period in which the services can't be performed have to be refunded. Force Majeure shall also be labor disputes including strikes and lawful lockouts with EBC or with the service partners of EBC or at authorities.
§ 12 Severability

Should one or more provision in the contract between EBC and the Supplier due to circumstances which are not based on statutory regulations for general terms and conditions, be or become wholly or partially invalid, the validity of the other provisions of the contract shall remain unaffected. The invalid provision will be replaced – if necessary with retroactive effect - by a valid provision which comes closest to the intention of the parties at the time of entering the contract. The same applies to a gap in the particular contract.

§ 13 Place of performance, venue, applicable law
1. Place of performance is Stuttgart.
2. Stuttgart is agreed upon as an additional venue for Suppliers that are merchants, legal entities of public law or special funds under public law. Lawsuits against EBC can only be made pending in Stuttgart. The same applies to the relationship between EBC and Buyers.
3. German law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies.
§ 14 Data protection

As operator of the website, EBC is the responsible institution for ascertainment, processing and usage of personal data of the Supplier, the Buyer and other visitors and users (in the following jointly called “Users”) pursuant to the Bundesdatenschutzgesetz (“BDSG” German Federal Data Protection Act).

EBC protects the privacy and the private Data of the Users in compliance with the relevant regulations of the BDSG and of the Telemediengesetz (“TMG” German Telemedia Act). The following privacy policies regulate the type, scope and aim of the ascertainment and usage of the personal data of the Users.
1. Survey and usage of personal data
  As a rule, the User can use the online services of EBC without having to provide personal data. Personal data in the sense of the privacy policies are information about the personal or factual conditions of the User. In particular the information include name, address or email-address
  
  EBC collects and uses personal data of the User to the extent necessary to provide the services required by the User in the context of the use of the website of EBC (e.g. registration, a request to EBC or an order of a newsletter).
2. Usage of Google Analytics
  The website of EBC uses Google Analytics. This is a so-called “Tracking-Tool” which helps EBC to make the internet service more interesting for the User. EBC can align their internet offer with the individual interests of the User by using information regarding the preferred activities of the User on the website. For this purpose, EBC uses so-called “Cookies” on this website. Cookies are small text files which are stored on the User’s computer and which enable EBC to recognize the internet browser of the User. The User can generally delete the Cookies through the privacy features of his internet browser at any time. However, EBC points out to the User that in such case not all functions of this website can be fully used.
  
  Google Analytics is a web analysis service that is run by Google Inc. (in the following: “Google”) in the USA. The information, which have been generated by the Cookies through the usage of the EBC-website by the User, are generally transferred to and saved in a server of Google in the USA. In case the IPanonymization is activated on this website, the IP-address of the User is shortened in advance by Google within the member states of the European Union or in other contracting states of the Agreement on the European Economic Area.
  Only in exceptional cases the whole IP-address will be transferred to a server of Google and then shortened there. On behalf of EBC Google will use the information received to evaluate the usage of the EBC-website by the User in order to compile reports about the activities on the website and to produce further services for EBC that are connected to the usage of the website and the internet. The IP-Address of the User will not be merged with other data of Google.
  
  EBC points out that Google Analytics on the EBC website has been “expanded” with the code “ gat._anonymizeIP()” to ensure an anonymized collection of the IPaddress of the User (so-called IÜ-Masking). For further information see:
  
  http://www.google.com/analytics/terms/de.html
  
  As described above, the User can prevent the storage of Cookies through an appropriate setting of his browser software. The User can prevent the collection of data, which have been produced by the Cookies and which are related to the use of the EBC-website by the User (including his IP-address) by Google as well as the processing of his data by Google, by downloading and installing the browser plugin which is available under the following link (http:\\tools.google.com\dlpage\gaoptout?gl=de). Furthermore, the User can prevent the collection by Google Analytics by clicking on the following link [please fill in link]. By doing so, the so-called Opt-Out-Cookie is set which prevents the future collection of data of the User during a visit on the EBC-website.
3. Usage of the email-address for the sending of direct advertising
  To the extent the User uses the services provided by EBC on the website of EBC, EBC is entitled to use the email-address that the User provided in this relation regardless of the purpose according to numeral 1 for the sending of direct advertising for similar own products or services. If a User should disagree with this, he can object to the usage at any time. No further costs arise for the User for such an objection apart from the transmission costs as assessed in the basic tariffs. The contact data for the objection can be found under § 14.6 “Rights of the User and contact”. When receiving a newsletter, the User can also exercise his right of objection through the link in the newsletter.
4. No transfer of personal data of the User
  EBC does not transfer personal data of the User to third-parties unless the User agreed to data transfer, the data transfer is necessary for the performance of services of EBC or EBC is entitled or obliged to transfer data by statutory provisions and/or governmental or judicial order.
5. Hyperlinks to websites of third-parties
  The EBC-website may contain hyperlinks to and from websites of third parties. If a User follows a hyperlink to that website, it is to be noted that EBC does not assume any responsibility or liability for those contents or privacy policies. Accordingly, the User is urged to inform himself about those privacy policies prior to transfering personal data to the particular website of the third party.
6. Rights of the User and contact
  The User can ask EBC at any time whether and which of his personal data EBC has stored. Moreover, the User generally has the right to correction, blocking and deletion of his data. The User identifying himself unambiguously is asked to address his specific request either in written from or via email to EBC.

GENERAL TERMS AND CONDITIONSofthe Platform EBC

GENERAL TERMS AND CONDITIONS
of
the Platform EBC