GENERAL TERMS AND CONDITIONS OF PARTICIPATION AND USE OF ORCAS PORTAL FOR CARRIERS
A - SUBJECT OF CONTRACT, AMENDMENTS
1. Subject of the Conditions of Participation and Use
1.1. sennder Technologies GmbH, Genthiner Straße 34, 10785 Berlin (hereinafter "sennder") provides an internet platform at orcas.sennder.com (hereinafter "Portal"), via which duly registered commercial participants (hereinafter "Carrier") can apply for transport orders, manage and follow up on transport orders and contact sennder in other ways. The Carriers can create individual profiles, retrieve content available on the Portal and use other free or paid Services currently available on the Portal within the scope of their respective availability. Further information on the Services can be found in the description of Services and Content on the Portal, (Section C). sennder and Carrier are hereinafter also referred to as the “Parties”.
1.2. The present Conditions of Participation and Use govern:
the provision of Services by sennder through the Portal and the use of these Services by duly registered Carriers (Sections B and D), and
the general conditions for the execution of transports - subject to Carrier receiving a corresponding order from sennder (Section E).
1.3. General terms and conditions or other pre-formulated contractual conditions of the Carrier shall not apply, even if these conditions should only contain supplementary provisions to these Conditions of Participation and Use.
1.4. The consent of the Carrier to these Conditions of Participation and Use shall not constitute any obligation of sennder to commission the Carrier to execute transport orders.
2. Modifications to the Conditions of Participation and Use
sennder shall be entitled to amend and/or supplement these Conditions of Participation and Use. sennder will inform Carrier about any such amendments in writing by sending an email to the address provided by Carrier on the Portal at least three weeks prior to the amendments taking effect. In this email sennder will outline the content of the amended provisions. The Carrier's consent to the amended Conditions of Participation and Use shall be deemed to have been given unless the the Carrier objects in text form (e.g. e-mail) within three weeks of receipt of the amended Conditions of Participation and Use. This will be pointed out separately in the notification email. If the Carrier objects to the amendment of the Conditions of Participation and Use in due form and time, the contractual relationship will be continued under the previously agreed conditions. sennder reserves the right in this case to terminate the contractual relationship at the earliest possible date.
B - REGISTRATION AND PARTICIPATION
3. Login Authorization
3.1. Access to the use of the Services available on the Portal requires the registration of the Carrier. There is no entitlement of Carrier to be granted access to the Portal. sennder is entitled to reject Applications for Participation without stating any reason.
3.2. The registration is permitted only to independent merchants and commercial entrepreneurs in the exercise of their independent or commercial activity. Minors are not permitted to register. In the case of a legal entity, registration must be made by a natural person with full legal capacity and power of representation. With the registration, the registering participant confirms his entitlement to legally represent the Carrier.
4. Registration Process
4.1. During the registration process the Carrier has to provide the full and correct information as requested. When registering a legal entity, all authorized representatives of the entity must be specified.
4.2. Once the Carrier has provided all requested data (the "Application for Participation"), sennder will check the data for completeness and plausibility. If the information is correct and sennder does not have any other concerns, sennder will activate the requested access and notify the Carrier by email. The email shall be deemed acceptance of the Application for Participation. Upon receipt of the email, the Carrier is entitled to use the Portal within the scope of these Conditions of Participation and Use. The actual possibility of use requires the Carrier to confirm the activation by clicking on the link contained in the aforementioned notification email.
4.3. During the log-in process, the Carrier is assigned a user name and is required to enter a password. With this data, the Carrier can log on to the Portal after the activation of his access and the confirmation according to section 4.2. If the user name is determined by the Carrier himself, the Carrier shall ensure that this name does not infringe any rights of third parties, in particular any name or trademark rights, and that it is not contrary to accepted principles of morality.
5. Responsibility for access data and use
5.1. The login credentials for the Portal - including the password - shall be kept confidential by the Carrier and shall not be made accessible to any unauthorised third parties.
5.2. The Carrier shall ensure that access to the Portal and use of the Services shall remain exclusive to the Carrier and its authorised staff. If the Carrier should become aware that unauthorised third parties have gained or are about to gain knowledge of the login credentials, sennder must be informed immediately.
5.3. All actions on the Portal, in particular the registration and the submission of declarations or statements, shall be treated as those of the respective logged in Carrier. The personal liability of the user remains unaffected. The Carrier undertakes to oblige all its representatives that have been authorized to use the Portal, to comply with these Conditions of Participation and Use.
5.4. sennder does not verify the identity of the profile owner and the information in the profiles, but reserves the right to do so at any time. sennder assumes no liability for the fact that a profile owner is actually the person the respective profile owner claims to be.
6. Update of Carrier data
The Carrier is obliged to keep the data submitted to the Portal (in particular contact details) up to date. If during the Term there is a change in the data provided, the Carrier will have to have to correct the data within the personal profile settings without undue delay. If this should not be possible, the Carrier will immediately inform sennder in text form (e.g. e-mail) about the required data update.
7. Term and termination
7.1. The agreement about the use of the Portal and the Services is entered into for an indefinite period of time (“Term”). Subject to the provisions of this Section 7, the agreement can be terminated by either party at any time by giving 7 days' notice in text form (email) to the other party.
7.2. The deletion of the profile set up on the Portal by the Carrier shall be deemed as receipt of termination at sennder.
7.3. A termination is not possible as long as the Carrier has accepted a transport order offered by sennder which has not yet been completed in full, whereby the completion of such transport order requires in particular the submission of all legally or contractually required documents (e.g. proof of delivery) from the Carrier to sennder.
7.4. Furthermore, a termination is not possible as long as a contractual arrangement exists between the Parties regarding the provision of regularly recurring transport services ("Relation Agreement"). The effectiveness of a termination can therefore not take effect before the effective termination of the Relation Agreement.
C - SERVICES AND CONTENT ON THE PORTAL
8. Range and availability of Services
8.1. sennder provides various information and Services on the Portal. Such Services may include, for example, providing data, image/sound documents and information as well as opportunities for initiating and concluding transport contracts (hereinafter collectively referred to as "Services"); it is also possible to create profiles and to contact sennder via the Portal.
8.2. On the Portal, the Carrier has the possibility to express its interest in particular available transport orders by clicking the displayed "Request" button and thereby submitting a binding offer to execute the transport. Such request does not constitute a transport contract with sennder or any third party. sennder will review the request received for a transport order and will then decide at its sole discretion whether it will accept the offer of the carrier or submit to carrier an alternative offer to execute the transport.
8.3. The type and scope of the Services are subject to the respective contractual arrangements, otherwise according to the functionalities currently available on the Portal.
8.4. The Services may also include third party services to which sennder merely provides access. For the use of such services - which are marked as third party services - different or additional terms and conditions may apply, to which sennder or the third party provider will refer.
8.5. The Carrier does not have an entitlement to the use of the Services or to the supply of particular services or functionalities. sennder endeavours to ensure a constant availability of its Services. However, temporary restrictions or interruptions may occur due to technical failures (e.g. interruption of power supply, hardware and software faults, technical problems in the data lines).
9. Modification of Services
sennder is entitled at any time to change Services provided free of charge on the Portal, to make new free or paid services available and to discontinue the provision of free Services. If Services are discontinued, sennder will - as far as feasible - take the legitimate interests of the Carrier into consideration.
10. Protection of contents, responsibility for contents of third parties
10.1. The contents available on the Portal are largely protected by copyright or other intellectual property rights and are the property of sennder or other third parties who have made the respective contents available. The compilation of the contents as such may be protected as a database or database work iSd. §§ 4 Abs. 2, 87a Abs. 1 UrhG. The Carrier may only use these contents in accordance with these Conditions of Participation and Use as well as within the specific instructions on the Portal.
10.2. The contents of Carriers and other third parties are hereinafter collectively referred to as "Third Party Content". sennder does not verify the completeness, accuracy and legality of Third Party Content and therefore assumes no responsibility or warranty for the completeness, accuracy, legality and timeliness of such Third Party Content. This also applies with regard to the quality of third-party content and its suitability for a specific purpose as well as to Third-Party Content on linked external websites.
D - USE OF SERVICES ON THE PORTAL BY THE CARRIER
11. Scope of permitted use, monitoring of use activities
11.1. The Carrier's right of use is limited to access to the Portal and use of the available Services subject always to the provisions of these Conditions of Participation and Use.
11.2. The Carrier acknowledges that usage activities can be monitored to the extent permitted by law. This may also include the logging of IP connection data and call histories as well as their analysis in the event of a concrete suspicion of a violation of these Conditions of Participation and Use and/or the existence of another illegal act or criminal offence.
12. Content upload by the Carrier
12.1. Insofar as such functionality is available on the Portal, the Carrier may upload content on the Portal and make it available to third parties in accordance with the following provisions.
12.2. By uploading content, the Carrier grants to sennder a free, transferable, worldwide license to use such content in perpetuity. This right includes, but is not limited
to store the content on sennder’s servers and to make it publicly accessible (e.g. by displaying the content on the Portal),
to process and duplicate the content, as far as this is necessary to publish and hold available the respective content, and
to grant rights of use to third parties - paid or unpaid - in respect of the content in accordance with Section 13.
12.3. Insofar as the Carrier removes previously uploaded content from the Portal, the rights granted to sennder shall expire. sennder shall, however, remain entitled to retain copies made for security and/or verification purposes.
12.4. The Carrier is fully responsible for uploaded content. sennder does not assume any responsibility for checking the contents for completeness, accuracy, legality, currentness, quality and suitability for a particular purpose.
12.5. The Carrier warrants and represents to be the sole owner of all rights in and to the contents uploaded to the Portal, or that the Carrier is otherwise entitled (e.g. by valid permission of the rights’ owner) to upload the content to the Portal and to grant the rights as per Section 12.2 above.
12.6. The Carrier shall fully indemnify and keep sennder and its affiliates harmless from all damages incurred by sennder and its affiliates arising out of or in connection with any (judicial) claim against sennder or its affiliates for alleged or actual infringement of any third party rights (including intellectual property rights) arising out of or in connection with the use of content uploaded by the Carrier.
12.7. sennder reserves (a) the right to refuse the upload of content and/or (b) the right to edit, block or remove content that has already been uploaded, without prior notice, provided that the upload of the content by the Carrier or the uploaded content itself has led or is likely to lead to a breach of Section 14. In such case, sennder shall take due account of the legitimate interests of the Carrier.
13. Right to use content available on the Portal
13.1. Unless any further use is expressly permitted in these Conditions of Participation and Use, on the Portal or if a further use is made available on the Portal by a corresponding functionality,
the content made available on the Portal may be retrieved and displayed by the Carrier exclusively for own purposes. This right of use is limited to the duration of the Term;
it is prohibited to edit, change, present, publish, exhibit, reproduce, make publicly accessible or broadcast the contents available on the Portal in whole or in part. It is also prohibited to remove or change copyright notices, logos and other marks or protective notices.
13.2. The Carrier is only entitled to download or print out content if a functionality to download or print is made available on the Portal (e.g. by means of a download button).
13.3. Subject to section 13.1 above, the Carrier is granted a non-transferable and non-exclusive right for the duration of the Term to use the duly downloaded or printed content for its own commercial purposes. In all other respects, all rights to the contents remain with the original copyright holder (sennder or the respective third party).
14. Prohibited activities
14.1. The permitted use by the Carrier of the Services available on the Portal does not include:
Offers, applications and the holding of competitions, raffles, barter transactions, advertisements or snowball systems, and
an electronic or other collection of identity and/or contact information (including e-mail addresses) from third parties (e.g. for sending unsolicited e-mails);
the posting, distribution, offering and advertising of pornographic content, services and/or products that violate youth protection laws, data protection laws and/or other laws and/or fraudulent content, services and/or products;
the use of content that offends or defames sennder or third parties;
the use, provision and distribution of content, services and/or products that are legally protected or encumbered with the rights of third parties (e.g. copyrights) without being expressly entitled to do so;
the distribution of viruses, trojans and other harmful files;
the sending of junk or spam e-mails as well as chain letters;
the distribution of offensive, sexually explicit, obscene or defamatory content or communication as well as content or communication that is/is suitable to promote or support racism, fanaticism, hatred, physical violence or illegal acts (in each case explicitly or implicitly);
harassing other carriers, e.g. by contacting other carriers personally several times without or against the reaction of such carrier, as well as promoting or supporting such harassment and by requesting other carriers to disclose passwords or personal data for commercial or illegal or unlawful purposes,;
the distribution and/or public reproduction of content available on the Portal, unless the Carrier is expressly permitted to do so by the respective rights’ holder or unless expressly made available as a functionality on the Portal.
14.2. Also prohibited is any action that is likely to interfere with the frictionless operation of the Portal, in particular to excessively stress the sennder systems.
14.3. In case of any suspicion of illegal, abusive, non-contractual or punishable acts, sennder is entitled and, if necessary, obliged to examine the activities of the Carrier and, if necessary, to take appropriate legal action.
15. Blocking of access
15.1. sennder may temporarily or permanently block the Carrier's access to the Portal if there should be concrete indications of a breach of these Conditions of Participation and Use and/or applicable law, or if sennder has any other justified interest in the blocking. In case of a blocking, sennder shall take due account of the legitimate interests of the Carrier.
15.2. The blocking of access shall not affect the rights, obligations or liabilities of the Parties which have arisen up to the time of the blocking, including the right to damages for breach of these Conditions of Participation and Use that already existed at that time.
15.3. In the event of a temporary or permanent blocking, sennder will deactivate the Carrier's access authorisation and notify the Carrier about this by e-mail.
15.4. In the event of a temporary blocking, sennder will reactivate the access authorisation after the expiry of the suspension period and will notify the Carrier about this by e-mail. A permanently blocked access authorization cannot be reactivated. Permanently blocked persons are perpetually excluded from using the Portal and may not re-register.
E - PROVISION OF TRANSPORT SERVICES
With the placing of a transport order, the following regulations shall become the basis of the contractual relationship and shall apply in the event of any inconsistencies in the following order of priority:
These Conditions of Participation and Use;
Terms and Conditions for Carriers and Transport Companies (visible under www.sennder.com);
16. Freight documents, operational structure and lapse of official permits
16.1. In the event of an order for transport services by sennder, Carrier shall keep the originals of the shipping notes and other freight documents in its possession for a period of three (3) years after the completion of the respective transport. The Carrier shall make digital copies of the consignment notes and other freight documents available to sennder without delay, but no later than fourteen (14) days after completion of the transport. sennder has the right to suspend payments if the Carrier does not provide these documents within the aforementioned deadline.
16.2. The Carrier will inform sennder immediately in text form (e.g. e-mail) about any significant changes in its operational structure, particularly about any changes of its legal form.
16.3. The Carrier will inform sennder without delay in text form (e.g. e-mail) about the loss or withdrawal of any official permits which are or could be of importance for the provision of the contractual services.
16.4. The Carrier will provide sennder with the following documents at least once a year as of 15 January: certificate of registration, transport license and insurance confirmation.
17. Remuneration and demurrage
17.1. Once all conditions for payment have been met, the freight shall be paid within thirty (30) days of the credit note being sent to the Carrier.
17.2. Standstill times of two (2) hours for vehicles with a total weight of at least twelve (12) tonnes and one (1) hour for vehicles with a total weight of less than twelve (12) tonnes are free of charge.
17.3. If the above-mentioned free period is exceeded, an additional charge per commenced half hour will be made as follows:
EUR 40.00 per hour for vehicles of at least twelve (12) tonnes, with a maximum of EUR 280.00 per 24 hours;
EUR 40.00 per hour for vehicles under twelve (12) tonnes, with a maximum of EUR 160.00 per 24 hours.
18.1. The Carrier hereby authorizes sennder to obtain all information on its operational insurance status including past claims or other claims for insurance benefits as well as amounts of cover and premium payments ("Insurance Information") from domestic and foreign personal insurers, property and damage insurers and insurance brokers, especially from the above-mentioned insurers of Carrier. In particular, sennder is entitled to obtain the following information: copies of insurance policies and supplements, copies of applications and declarations, contractual conditions, claims histories and details of individual claims as well as reserves formed and offers of conversion and continuation.
18.2. Furthermore, the Carrier consents that sennder may use this Insurance Information (collect, report, organize, arrange, store, adapt, modify, use, disclose by transmission, dissemination or otherwise make available, delete or destroy, compare, connect, restrict) and in particular pass on this information to such persons who are able to analyse and evaluate the insurance cover of the Carrier and who themselves or through third parties may submit alternative or supplementary insurance offers to the Carrier. According to § 15 General Data Protection Regulation (GDPR), the Carrier is, at any time, entitled to request sennder to provide information regarding the storage of its personal data as well as the correction, deletion, and blocking of individual or the entire personal data. The Carrier is entitled to change or revoke a consent given with effect for the future at any time and without stating reasons. A notice in text form (e.g. e-mail) is sufficient for such revocation.
19. Tracking Systems (GPS)
The Carrier acknowledges and agrees to use the mobile sennder application or direct telematics integration with sennder for all transport services to enable GPS tracking of his location.
F - PROCESSING OF PERSONAL DATA
20. Data Protection
20.1. One of sennder’s quality requirements is the responsible handling of personal data (hereinafter "Personal Data"). Personal Data resulting from the registration on the Portal as well as from the use of the available Services is therefore only collected, stored and processed by sennder as far as this is necessary for the contractual provision of Services and permitted or requested by legal regulations. In addition, the sennder will only process Personal Data if the Carrier has expressly consented to this. A given consent can be revoked at any time.
G - LIMITATIONS OF LIABILITY
21. Limitations of liability
21.1. If the Carrier should suffer any damages through the use of the Services that are provided free of charge on the Portal (including the retrieval of free content), sennder shall only be liable if the damage has arisen due to the contractual use of the free Service and/or content.
21.2. sennder shall not be liable for damages caused by its own simple negligence or the simple negligence of its employees, legal representatives or subcontractors, unless the damage has been caused by a breach of cardinal obligations. Cardinal obligations are essential contractual obligations, the performance of which the Carrier may regularly rely on. In the event of a slightly negligent breach of cardinal obligations, liability shall be limited to the amount of the damage foreseeable at the time of conclusion of the contract, the occurrence of which must typically be expected. Liability of sennder for any indirect damages and consequential damages is excluded.
21.3. The aforementioned limitations of liability according to section 21.1. shall also apply to any competing claims arising from tortious acts, but not to claims for damages arising out of death or injury to body or health, as well as those under the Product Liability Act or the mandatory provisions of the CMR and HGB.
H - FINAL PROVISIONS
22. Final Provisions
22.1. Unless expressly stated otherwise in these Conditions of Participation and Use, all declarations relating to the use of the Portal must be made in text form (e.g. e-mail).
22.2. These Conditions of Participation and Use contain all agreements between the Parties relating to the subject matter hereof and supersede and terminate all prior agreements, representations, warranties, representations and understandings, whether written or oral, between the Parties.
22.3. Neither Party shall be in breach of these Conditions of Participation and Use nor shall it be liable for any delay in the performance or non-performance of any of its obligations hereunder if such delay or non-performance is due to any event, circumstance or cause beyond its reasonable control.
22.4. Should any provision of these Conditions of Participation and Use be or become invalid, this shall not affect the legal validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible to the economic intent of the Parties.
22.5. These Conditions of Participation and Use are subject to the law of the Federal Republic of Germany and exclude the UN Convention on Contracts for the International Sales of Goods (CISG).
22.6. For all legal disputes between the Carrier and sennder arising out of or in connection with the use of the Portal and/or the Services, the exclusive place of jurisdiction and performance shall be Berlin.