Fillsend General Terms and Conditions (“Terms and Conditions”)
§ 1 Scope
1. These general terms and conditions (hereinafter also “GTC”) are the exclusive basis for the provision of individually commissioned logistics services.
2nd These terms and conditions apply exclusively to entrepreneurs within the meaning of Section 14 BGB, i.e. natural, legal persons or partnerships with legal capacity, who act in the exercise of their commercial or independent professional activity when concluding a legal transaction.
3rd These terms and conditions apply exclusively. Divergent, conflicting or supplementary conditions apply only if both parties have expressly agreed to them in writing.
§ 2 Subject matter of the contract
1. Fillsend offers its customers (hereinafter also referred to as “client”) standardized logistics services with the option of expanding this with additional services specified in the price and service schedule.
2nd As part of the contractual relationship, the client receives a user account for the platform, via which he can view these services. In addition, the client is able to connect their own order management and inventory management systems — subject to compatibility — with the systems of via interfaces (hereinafter “fillsend interfaces”) and automatically exchange orders. Once connected to the Fillsend system, the client receives the address of his Fillsend warehouse and can deliver his goods there. After orders have been submitted by the client or its systems, Fillsend carries out the order placed by submitting the order. Details (e.g. the procedure, the more detailed delivery conditions and prices) can be found in the delivery guidelines as well as in the list of prices and services.
§ 3 Conclusion of contract
The logistics framework contract is concluded by mutually signing the contractor and client.
§ 4 Rights and obligations of the contracting parties
1. Fillsend only offers the services offered in the price and service list at the prices stated there. The provision of different services must be agreed individually between the parties; there is no claim to the provision of different services.
2nd Fillsend is entitled, but not obliged, to check the client's individual orders. In addition, Fillsend is entitled to reject individual orders for good cause; important reasons include in particular doubts as to the accuracy of the order, reasons which make it impossible for Fillsend to provide the necessary capacity, for example due to force majeure.
3rd The client provides Fillsend with all information necessary to properly perform the services to be provided and is solely responsible for the information provided. In particular, but not exclusively, this includes information required for optimal capacity planning as well as information on the client's goods (e.g. with regard to dangerousness, dangerous goods classifications or their values, insofar as this may have an influence on insurance coverage or security) as well as information that Fillsend requests as part of order processing or on its website.
4th Furthermore, the client assures that the goods taken over are not subject to a ban on joint loading or combined storage and that the goods and packaging pose no risk to the environment, people and property, even in the event of damage. In the event of an infringement, the client shall bear any costs arising against proof.
5th The client will pack and label the goods to be stored safely and securely and in accordance with the relevant legislation and state of the art. In addition, the client ensures that systemically announced incoming goods quantities correspond to the actual, physical quantities.
6th The client must immediately forward reports of any damage to goods to Fillsend. If no immediate damage report is made, it is assumed that the property damage was not caused by Fillsend.
7. Any costs for the use and maintenance of any of the client's systems and for the commissioning of service providers by the client will not be borne by Fillsend. This also applies to development and testing costs incurred as part of changes to the Fillsend interfaces by the client and/or external service providers of the client.
8th Any changes in the client's front end that have an impact on Fillsend's technical and/or operational processes must be coordinated with Fillsend in advance. Expenses caused by changes made by the client will be charged to the client.
§ 5 Prices and Payment
Payment term, billing period and price increase
1. The client is obliged to pay the agreed remuneration to Fillsend. Invoices are payable without deductions within 14 days of receipt by the client. Invoices are paid through a SEPA corporate direct debit mandate.
2nd Payee: Fillsend
IBAN: DE15 7502 0073 0371 4191 10/BIC: HYVEDEMM447
3rd Unless otherwise agreed, the agreed remuneration is based on the price and service schedule valid at the time of conclusion of the contract. The prices in the list of prices and services exclude sales tax. The agreed monthly service fee is due even if there is no shipping.
4th Unless otherwise agreed, services provided will be invoiced retroactively for a period of one full month.
5th Fillsend reserves the right to amend the valid list of prices and services. Fillsend will inform the client of this at least one month in advance. The reasons for this may include higher supplier prices, higher raw material costs and rising employee costs.
6th The contractor has the right to cancel at any time and without notice should the client be in default of payment and fails to meet his payment obligations after the first reminder.
Securing receivables and default risk
1. As specified in Section 321 of the German Civil Code and with a default risk of over 10,000 EUR (as defined below), Fillsend covers commercial credit insurance (hereinafter “WKV”) for all its customers as group insurance as standard. The parties therefore assume that the default risk of claims affected by Fillsend against the client (i.e. the average remuneration of 3 months in the previous 12-month period (hereinafter “default risk”) is secured by WKV.
2nd Should the commercial credit insurer not cover the default risk for reasons that were not caused by Fillsend and are due to a worsening of the client's financial circumstances, or not fully related to the client, Fillsend must inform the client of this in order to give the client the opportunity (also in direct consultation with the commercial credit insurer) to restore coverage.
3rd If this is not successful within 5 working days, the client and Fillsend are obliged to seek an amicable solution; this does not affect the due date of Fillsend's compensation claims for clarification.
The parties will try to provide equivalent protection against default risk, e.g. by changing payment modalities
- Adjustment of billing interval and/or
- Advance payment and/or
- other guarantees
to be agreed within a further 5 working days.
4th If no amicable solution is found within this time, the client is obliged to provide alternative security at Fillsend's request. This may be at the discretion of the client, in each case in the amount of default risk:
- Conversion of payment methods to payment in advance
- Issuance of a joint and several bank guarantees upon first request, excluding the right to deposit
- Depositing or paying a deposit to Fillsend
5th If the client does not provide one of these alternative securities within a period of 5 working days, Fillsend is entitled to discontinue the services and is entitled to make the resumption dependent on the provision of the securities.
6th Should the commercial credit insurer fully cover the default risk following a period of non-coverage or only partial coverage, Partner is no longer obliged to provide the agreed alternative collateral. In this case, Fillsend is also obliged to immediately surrender any securities granted to it.
§ 6 Liability and indemnification
1. Fillsend is liable without limitation for damage caused intentionally by Fillsend, its legal representatives, executives or other vicarious agents.
2nd Fillsend is liable for damage caused by negligence as a result of the breach of essential contractual obligations by Fillsend, its legal representatives or vicarious agents, limited to the damage typically foreseeable by the contracting parties at the time the contract is concluded. Significant contractual obligations are obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on whose fulfilment the client may rely.
3rd In addition, unless otherwise provided for in an individual contract or in Section 8 of these terms and conditions, the liability limits of ADSp 2017 apply.
4th Insofar as Fillsend's liability is excluded or limited, this also applies to any personal liability of Fillsend's employees, representatives or vicarious agents.
§ 7 Contract duration and termination
1. The logistics framework contract comes into force upon mutual signature and indication of the date.
2nd The logistics framework contract is concluded for one year (12 months).
3rd After the initial end of the first 12 months, the contract is always extended by a further year. The parties may terminate the contractual relationship with six months to the end of the year by notifying the other party. There is no special right of termination. If the deadline of six months is not met, the contract is terminated at the end of the following year.
4th The notice of termination must be made in writing.
5th After termination of the contract, the client's data will be irrevocably deleted unless there are legal storage obligations.
6th In the event of termination of the logistics framework contract, Fillsend is entitled to demand appropriate advance payments for the expected remuneration for the last two billing periods of the contract period.
7. The client undertakes to ship all goods exclusively via the service provider Fillsend for the entire duration of the business relationship. The client may not hire any other fulfillment service provider without prior written approval from Fillsend. In addition, the client is not entitled to manage or introduce its own warehouse as long as the business relationship with Fillsend exists. A breach of this obligation entitles Fillsend to assert claims for damages. The business relationship does not end upon termination, but only upon expiry of the period of notice. Up to this point, the client remains bound by the obligation.
§ 8 Performance-related regulations
ADSp applicability
In addition, unless otherwise agreed, the ADSp 2017 in its current version shall apply, provided that they do not contradict the provisions of these terms and conditions.
warehouse logistics
1. The client must transport the goods to be stored up to the site ramp at his own expense and make them available for unloading.
2nd Fillsend is responsible for the independent and responsible administration of the warehouse from delivery of the goods, through storage and transfer to a carrier. Fillsend can store the customer's goods in a warehouse of its choice. Fillsend will inform the client about the storage location.
3rd Fillsend checks the incoming goods for obvious, externally visible damage to the packaging and the completeness of the delivered units (e.g. number of collies). A receipt issued to the delivering carriers or suppliers for receipt of the goods relates exclusively to the number of units delivered and in no way confirms the completeness or integrity of the content of the units. No further inspection is required unless agreed in writing.
4th The contractor is not liable for damage caused by transport or by other third parties, such as shipping service providers, mailman, customer.
5th The contractor agrees with the client that the goods are received by type. There is no check for damage (within the packages) and for the exact number of items delivered. The receipt of goods is posted one-to-one as stated on the delivery note. There is only an external visual inspection for damage. The receipt of goods must be announced via the Fulfillment Network. The contractor is not liable for missing products. It is clear to the client that the actual number of products can only be determined on the basis of an inventory.
Wrapping
The costs for packaging are set out in the list of prices and services.
The client is obliged to obtain packaging material, such as cardboard, filling material, films, adhesive tape, from Fillsend, unless otherwise agreed in writing.
Using the platform, connecting shops and using Fillsend interfaces
1. The client must keep the access data provided to him to the platform confidential.
2nd The client is also responsible for connecting its systems to the Fillsend interfaces.
3rd The client is responsible for all activities carried out using his user account. If the client is not responsible for the misuse of his password because there has been no violation of existing due diligence obligations, the client is not liable. The client is free to prove that he is not responsible for the misuse of his password.
4th Furthermore, the client is responsible for activities, loss and accuracy of data via the interface provided to him (e.g. triggering orders via the shop connections).
5th If the client becomes aware of the misuse of the platform or the Fillsend interfaces, he is obliged to inform Fillsend immediately. In these cases, Fillsend is entitled to block access to the platform until there is no longer a threat of further misuse in consultation with the client. The same applies if Fillsend becomes aware of misuse of the platform without the involvement of the client. In these cases, Fillsend will immediately inform the client.
Transportation services
1. The transport of the goods by CEP service providers is carried out on the basis of the general terms and conditions (“GTC”) of the respective CEP service provider in the current version. The terms and conditions of the CEP service providers used at the time of conclusion of the contract are valid. In addition, the measurement and weight restrictions of CEP service providers apply, as amended from time to time. The currently valid version must also be observed.
2nd Dangerous goods shipments are generally excluded from shipping and cannot be stored at Fillsend.
3rd The transport services provided by CEP service providers as carriers are subject exclusively to the agreed liability regulations in accordance with the terms and conditions of the respective CEP service provider.
4th The contractor is not liable for damage caused by transport or by other third parties, such as shipping service providers, mailman, customer.
5th The client is responsible for all costs that arise in connection with shipping the goods via the selected CEP service provider. Additional costs such as shipping costs, customs fees, toll surcharges, energy surcharges, taxes or other fees that arise in connection with shipping are borne exclusively by the client.
The service provider Fillsend will take all necessary measures to fulfill the shipment of the goods in accordance with the client's specifications and taking into account the conditions of the CEP service provider. The AG undertakes to provide all necessary information and documents required for shipping.
The client understands and accepts that the service provider Fillsend is not liable for delays or damage that occur in connection with shipping via the KEP service provider. The customer agrees to indemnify the service provider from any liability with regard to shipping and associated costs. This agreement applies to all shipping service providers that can be used for the AG in the future.
§ 9 Obstacles to performance and force majeure
1. Performance barriers that are not attributable to Fillsend's area of risk exempt Fillsend from obligations for the duration of their duration, the fulfilment of which has become impossible.
2nd Obstacles to performance include force majeure (e.g. storms, floods, storms), strikes and lockouts, unrest, acts of war or terrorism, pandemics, official measures and other unforeseeable, unavoidable and serious events. The client acknowledges that Fillsend and its subcontractors and suppliers may be affected by the corona pandemic. In particular, this could lead to delays in the provision of logistics services. The parties agree that although the 2021 global corona pandemic is known at the time the logistics framework agreement is concluded, its concrete consequences and effects are still unpredictable.
3rd If there is an impediment to performance, Fillsend shall inform the client of the expected duration of the impediment to performance and will endeavour to keep the effects on the other party as low as possible within the limits of what is economically reasonable.
§ 10 Data protection
Fillsend processes and uses the client's personal data within the framework of legal data protection regulations. Detailed information on this can be found in the privacy policy.
§ 11 Confidentiality
1. Both parties will keep all information they receive under this contractual relationship strictly confidential. The transfer of information, e.g. to interface partners or shipping service providers who are also responsible for the execution of the order, is permitted.
2nd This does not apply to information that is publicly available or is not in need of protection when viewed objectively.
§ 12 Customer reference
Fillsend is entitled — until revoked at any time by the client — to use the client on Fillsend print and online media, in particular on the Fillsend website and in customer and acquisition presentations, and also to use the client's brands and logos for this purpose. Such references are mentioned without the use of the client's trade and trade secrets.
§ 13 Other provisions
1. A right of retention can only be asserted by the client due to counterclaims arising from this contractual relationship.
2nd The contracting parties can only offset claims that have been legally established or are undisputed and are related to this contractual relationship.
3rd Additional agreements or additions which have not been expressly permitted in these terms and conditions or result from the list of prices and services, as well as the removal of this formal requirement, must be made in writing.
4th Should individual provisions of the party agreements be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties agree to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreements.
5th The place of fulfilment and jurisdiction is the city of Regensburg.
6th The law of the Federal Republic of Germany applies, excluding the UN Sales Convention (CISG). In the case of a multilingual version of these terms and conditions, only the German text is decisive for the legal effects.