Terms of use for the openpack platform of openpack GmbH​
§ 1 General regulations and scope

(1) The company openpack GmbH, Böttgerstraße 40, 92637 Weiden (hereinafter "openpack"), represented by the managing director Dr. Stefan Uebelacker, offers merchants within the meaning of the German Commercial Code and legal entities under public law as customers or providers (hereinafter "users") within the framework of a service contract the opportunity to use a business-to-business trading system and other services specified under Section 2 (2). to use the online platform "Openpack" (hereinafter: "Platform") in accordance with the provisions of these Terms of Use.

(2) These Terms of Use finally contain the conditions applicable between openpack and the user for the services offered by openpack within the framework of this service contract. The validity of any regulations of a party that exist outside of these terms of use, in particular general terms and conditions of the user or regulations that conflict with these terms of use, is expressly excluded. Such regulations are also not included if there is a declaration aimed at inclusion, for example by references to business papers, delivery notes or similar.  Ä., is kept silent or not expressly contradicted. With the admission according to § 3, the user recognizes these terms of use as authoritative.

(3) Provisions from any individual agreements or framework agreements between the user and openpack take precedence over these Terms of Use. Supplementary contractual components in addition to this usage agreement are the individual agreements made between the user and openpack, as they result in particular from offers from openpack together with its attachments (in particular the service description on the platform).

(4) All agreements made between openpack and the user for the purpose of executing the contract must be recorded in text form.

(5) Changes to these Terms of Use will be communicated to the user by openpack in writing, by fax or by email. If the user does not object to such changes within six weeks of receipt of the notification, the changes are deemed to have been agreed. In the event of a change in the terms of use, the user will be informed separately of the right to object and the legal consequences of remaining silent.

 

§ 2 Services of the openpack GmbH

(1) Openpack is a platform for customers and providers to trade in goods, services and apps. The platform has an integrated, automated messaging system to simplify communication between the customer and the provider, as well as extensive functionalities for managing and monitoring all ongoing business transactions.

(2) The services of openpack result from their  the current service specification, which can be viewed at [https://openpack.net/services-directory] and also consist of, among other things:

(a) The provision and maintenance of user access to the platform as a cloud application for the indirect procurement of products/services from providers after the user has been approved in accordance with § 3,

(b) Enabling the conclusion of contracts on the platform in accordance with § 4,

(c) Creation of information and communication options among users or contracting parties,

(d) Advice and support services for users by separate agreement with openpack.

(3) openpack owes an average annual availability of the platform for the services to be provided by openpack of 99%. This includes required maintenance work. An interruption may not last longer than 48 hours.

 

§ 3 Admission and access to the platform

(1) The prerequisite for using the platform is approval by openpack. The platform is aimed exclusively at entrepreneurs i. s.d. § 14 BGB. Therefore, before the contract is concluded, openpack can demand that the user provide sufficient proof of his entrepreneurial status, e.g. B. by specifying the VAT ID number. or by other suitable evidence. The data required for proof must be provided completely and truthfully by the user. There is no entitlement to admission or use of the platform.

(2) In the application for admission, the user must name his company data, billing data and a contact person and state whether he would like to use the platform for sales and/or purchases. The acceptance of the application for admission takes the form of a confirmation of admission sent via e-mail with a user ID and password.

(3) The user is responsible for ensuring that the information provided to openpack and other users, in particular as part of his application for admission in accordance with paragraph 2, is true and complete. He undertakes to notify openpack immediately of any future changes to the information provided. The same applies to all information provided by the user when setting up employee logins.

(4) openpack is entitled to withdraw a user's approval, delete their data, warn them, restrict their access to the platform or temporarily or permanently block them if there is reasonable suspicion that they are violating these Terms of Use or statutory provisions Has. The user can avert these measures if he eliminates the suspicion by presenting suitable evidence at his own expense. When choosing the measure, openpack takes into account the legitimate interests of the user.

(5) All logins are individualized and may only be used by authorized users. The user is obliged to keep the login and password secret and to protect them from unauthorized access by third parties. The user is also responsible for keeping employee logins secret and will instruct their employees accordingly. If misuse by a third party is suspected, the user will inform openpack of this immediately. As soon as openpack becomes aware of the unauthorized use, openpack will block the unauthorized user's access. openpack reserves the right to change a user's login and password; in such a case, openpack will inform the user immediately.

 

§ 4 Conclusion of Contracts on the Platform

(1) Providers have the option of posting goods, services and apps. Customers can then submit binding offers. Goods, services and apps can only be posted by providers and do not constitute a legally binding offer within the meaning of § 145 BGB, but only represent an invitation to submit offers ("invitatio ad offerendum").

(2) Customers have the option of selecting providers according to individual criteria and submitting binding offers or placing orders for their goods, services and apps. openpack then transmits these offers/orders to the respective provider via the platform. The offers of a customer are binding and irrevocable declarations to complete the service advertised by the provider.

(3) A customer is free to choose whether and which of the available offers ("invitatio ad offerendum") he would like to use to submit his offer. Unless the customer and provider agree otherwise, a contract is formed when a provider accepts a customer's offer by sending an individual or framework contract order.

(4) Actions using the respective login of a user are generally attributable to the user. Users are responsible for all declarations of intent they make on the platform. The users are liable to a foreseeable extent for declarations made by third parties under the user's member account in accordance with the principles of a contract with a protective effect for third parties.

(5) For all transactions on the platform, only the relevant system time on the platform applies.

(6) openpack reserves the right to change or expand the content and structure of the platform and the associated user interfaces if this does not significantly affect the purpose of the contract concluded with the user. openpack will inform the users of the platform about significant changes within a reasonable period of time.

 

§ 5 Obligations of the user

(1) Goods, services and apps may not be offered if

(a) the information is so incomplete that the item and price cannot be determined;

(b) the posting, sale of goods and apps or the performance of services would violate statutory provisions, official orders or morality in accordance with the legal system applicable to the intended contract. In particular, no items may be offered whose offer or sale infringes the rights of third parties. openpack is entitled to remove such a posting or offer from the platform immediately.

(2) Goods or services that may only be offered against legally required proof may only be offered and requested on the platform if the proof was included in the description of the goods or services and the goods or services were only provided against the legally required proof proof is submitted.

(3) With the approval according to § 3, the user guarantees to openpack and all other users that the user complies with the data protection requirements with regard to the data transmitted by him and indemnifies openpack against any claims, including those of a public law nature, free. In particular, the user must inform the persons acting for him on the platform (in particular employees) about the data processing processes required by openpack in accordance with openpack´s data protection declaration at [Link] and obtain any necessary consent from these persons acting before their personal data is processed within the framework of the setup entered into the platform by employee logins or in any other way. 

(4) The user undertakes to process contracts that are initiated or come about through the use of the platform exclusively via this platform. Furthermore, the user undertakes to provide openpack with written information on all contracts and order volumes that come about through use of the platform at openpack´s request.

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§ 6 Duties of the user to cooperate

(1) The user actively supports the activities of openpack that are necessary for the implementation of the agreement. In particular, he creates the necessary conditions in his operational sphere on his own account, which are necessary for the proper execution of the order.​

(2) The transfer point for all data is the router exit of the data center used by openpack to the Internet. openpack is entitled to redefine the data transfer point at any time after prior notification in text form (at least 3 months in advance), if this is necessary to enable smooth use of the services by the client. The user is responsible for establishing and maintaining the data connection between the user's IT systems and the transfer point.

(3) The user provides openpack with the necessary information for the intended areas of application and all other factors and specifications that are required for the specification of openpack´s services.

(4) In the event that openpack services are used by unauthorized third parties using the user's access data, the user is liable for the resulting fees within the framework of civil liability until the user has received the order to change the access data or reporting the loss or theft if the user is at fault for the access by the unauthorized third party.

(5) If the user does not meet his contractual obligations or does not do so in good time, this may result in delays in performance and additional expenses and costs that must be borne by the user.

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§ 7 Remuneration and Commission; terms of payment

(1) The user undertakes to pay a fee and/or a commission to openpack for the use/services of the platform. The amount results from the current openpack price lists under [Link], unless otherwise agreed in writing.

(2) The user undertakes to provide openpack with information in writing immediately and without being asked about the conclusion of a contract that comes about from and in connection with the use of the platform and to inform openpack of increases or reductions in the order volume.

(3) Unless otherwise agreed, the remuneration or commission payments to be made are settled by the 10th of each month for the respective previous month and are due immediately after invoicing without deduction, but plus VAT at the applicable tax rate. Unless otherwise agreed, payment of an invoice amount must be made within 20 days of the invoice date.

(4) openpack reserves the right to reconcile and adjust invoices accordingly by the 20th of each month, taking paragraph 2 into account.

(5) openpack reserves the right to ask users whether contracts have been concluded and whether orders or the order volume have changed or been adjusted after the initiation or conclusion of the contract using the platform. In this case, the user undertakes to provide information in accordance with Section 5 (4).

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§ 8 Processing of contracts concluded on the platform

(1) The processing of contracts concluded on the platform is the sole responsibility of the respective user. openpack neither guarantees the fulfillment of contracts concluded on the platform nor accepts liability for material or legal defects in the goods and services traded. openpack has no obligation whatsoever to ensure the fulfillment of the contracts concluded between the users.

(2) openpack cannot guarantee the true identity and the power of disposal of the users. In case of doubt, both contractual partners are obliged to find out in a suitable manner about the true identity and the power of disposal of the other contractual partner.

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§ 9 Liability Openpack

(1) As part of the use of the Openpack Marketplace, openpack is only unrestrictedly liable for misconduct for which it is responsible in the case of intent and gross negligence, but for simple negligence only in the event of a breach of essential contractual obligations. Essential contractual obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the user can regularly rely. Liability in the event of a breach of such an essential contractual obligation is limited to the contractually typical and foreseeable damage that openpack had to reckon with at the time the contract was concluded due to the circumstances known at the time, but up to a maximum of €20,000 per claim and €100,000 per calendar year per Company/plant of a user.

(2) Liability for indirect and unforeseeable damage, loss of production and use, loss of profit, missed savings and financial losses due to claims by third parties is excluded in the case of simple negligence - except in the case of injury to life, limb or health.

(3) openpack assumes no liability for disruptions within the network that are not the fault of openpack.

(4) openpack is only liable for the loss of data in accordance with the above paragraphs if such a loss could not have been avoided by appropriate data backup measures on the part of the user.

(5) Liability does not extend to impairments of the contractual use of the services provided by openpack on the platform that have been caused by improper or incorrect use by the user.

(6) The above limitations of liability also apply to representatives, employees, vicarious agents and organs of openpack.

(7) Insofar as there is a possibility of forwarding to databases, websites, services etc. of third parties via the platform, e.g. B. given by the posting of links or hyperlinks, openpack is not liable for the accessibility, existence or security of these databases or services, nor for the content of the same. In particular, openpack is not liable for their legality, correctness of content, completeness, topicality, etc.

(8) Claims for damages against openpack expire in accordance with the statutory provisions and in deviation from § 199 Para. 3 No. 1 and No. 2 BGB no later than five years from the point in time at which the claim arose and regardless of the point in time at which the claim arose no later than ten years after the commission of the act, the breach of duty or the other event that caused the damage. Excluded from this are claims for damages due to injury to life, limb or health and/or claims for damages due to damage caused by openpack through gross negligence or intent. In this respect, the statutory limitation periods apply.

(9) Within the framework of the use of free services according to § 7 paragraph 6, openpack is only liable for intent.

 

§ 10 Rights and obligations of the user in the event of disruptions

(1) The user will describe faults in as much detail as possible, describing the symptoms, the conditions of use, previous instructions to the system and any relevant third-party machines or systems. A disruption occurs when the functionality specified in the service description does not fulfill essential functions or delivers incorrect results, so that their use becomes impossible or is significantly restricted. The fault must be reported immediately after the fault is discovered.

(2) openpack will support the user by telephone or other long-distance communication channels with regard to the use of the platform and in the event of disruptions.

(3) openpack eliminates disruptions to the use of the platform to the extent technically possible. openpack will eliminate disruptions in the use of the platform by taking suitable measures of its own choosing.

(4) The user's right to take action himself in the event of disruptions is only permissible after prior confirmation by openpack in text form. openpack´s right to rectification of faults remains unaffected.

(5) No-fault liability for errors in computer programs that already existed at the time the contract was concluded is excluded.

(6) The user's warranty rights are excluded if he has made unauthorized changes to the contractual platform or used it improperly, unless these changes and uses had no influence on the occurrence of the error.

(7) Warranty claims expire one year from the time of provision agreed in the order confirmation or the time of provision or acceptance of a service. This does not apply in the event that a defect has been fraudulently concealed and/or if openpack has assumed a special form of manufacturer's guarantee. Excluded from this are claims for damages due to injury to life, limb or health and/or claims for damages due to damage caused by openpack through gross negligence or intent. In this respect, the statutory limitation periods apply.

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Section 11 Force Majeure 

(1) If openpack is unable to perform services as a result of an unforeseen event through no fault of openpack, this is particularly the case in cases of

(a) force majeure, e.g. mobilization, war, epidemics, acts of terrorism, riots, or similar events (e.g. strike, lockout),

(b) Attacks on openpack´s IT system, insofar as these were carried out despite compliance with the usual level of care for protective measures,

(c) Obstacles due to German, US American and other applicable national, EU or international regulations of foreign trade law or due to other circumstances, or

(d) openpack does not supply itself in a timely or proper manner, there is no breach of duty for the duration of the non-performance.

(2) openpack will inform the user in text form of the occurrence of an unforeseen event after it becomes known.

(3) If the end of the hindrance to performance is not foreseeable or if it lasts longer than ten working days, the user is entitled to withdraw from the contract to the exclusion of any further claims or to terminate it extraordinarily; fees paid in advance will be refunded proportionately.

 

§ 12 External content

(1) Users are prohibited from posting content (e.g. through links or frames) on the platform that violates legal regulations, official orders or public decency. Furthermore, they are prohibited from posting content that infringes the rights, in particular copyrights or trademark rights, of third parties.

(2) Under no circumstances does openpack adopt third-party content as its own. The user guarantees openpack and the other users of the platform that the goods, services and apps offered by him in the settings do not infringe any copyrights, trademarks, patents, other property rights or trade secrets.

(3) openpack reserves the right to block third-party content if it is punishable under the applicable laws or is clearly used to prepare for criminal acts.

(4) The user shall indemnify openpack against all claims that third parties assert against openpack due to the violation of their rights or due to legal violations due to the offers and/or content posted by the user, insofar as the user is responsible for them. In this regard, the user shall also bear the costs of openpack´s legal defense, including all court and attorney's fees.

(5) The user grants openpack the simple right, limited in time to the term of the contract and geographically unrestricted, to copy, display and use the content posted by him, in particular images and videos, and to carry out all other acts of use that are necessary for the user distribution of the user's goods, services and apps.

 

§ 13 Other obligations of the user

(1) The user is obliged

(a) set up and maintain the necessary data backup precautions throughout the contract period. This essentially refers to the careful and conscientious handling of logins and passwords;

(b) notify openpack immediately of any technical changes occurring in his area if they are likely to impair the provision of services or the security of openpack´s platform,

(c) to participate in the investigation of attacks by third parties on the platform, insofar as this participation by the user is required,

(d) to conduct business on the platform exclusively within the framework of commercial business operations for commercial purposes.

(2) The user undertakes to refrain from any measures that endanger or disrupt the functioning of the platform and not to access data that he is not authorized to access. Furthermore, he must ensure that the information and data transmitted via the platform are not infected with viruses, worms or Trojan horses. The user undertakes to compensate openpack for all damages arising from the non-compliance with these obligations for which he is responsible and also to indemnify openpack from all third-party claims, including legal fees and court costs, which these may incur as a result of the user's non-compliance with these obligations assert against openpack.

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§ 14 Data processing and compliance with confidentiality; protection of secrets

(1) Data security/confidentiality of data transmission

openpack´s servers are secured in accordance with the rules of technology, in particular with firewalls; however, the user is aware that there is a risk for all participants that transmitted data can be read during transmission. This applies not only to the exchange of information via e-mail that leaves the system, but also to the integrated messaging system and to all other data transmissions. The confidentiality of the data transmitted when using the platform can therefore not be guaranteed.

(2) Processing of non-personal data

(a) The user agrees that openpack may save and use information and non-personal data about the history of settings and the behavior of customers or providers when carrying out these transactions in an anonymous form.

(b) The user makes machine data available to openpack when using the digital platform interfaces.

The user guarantees that he will only provide openpack with data that is correct in terms of content, which he is entitled to provide/pass on to the extent defined below and which does not contain any personal reference.

(ba)
The user grants openpack a non-exclusive, transferrable, sublicensable, spatially and temporally unrestricted right to use this data provided via the digital platform interfaces, provided that this data is used in anonymous form.

(bb)
For the non-anonymized use of the data provided via the digital platform interfaces by openpack, a separate, explicit consent by the user is required in advance.

By granting this consent, the user grants openpack a non-exclusive, non-sublicensable, spatially and temporally unrestricted right to use the data provided via the digital platform interfaces, which can only be transferred to partners selected by the user.

(bc)
Insofar as parts of the data provided are protected by intellectual property rights (e.g. by copyright), this right of use also includes these intellectual property rights.

(bd)
The user is aware and accepts that all rights to the database resulting from the data provided, which openpack creates using the data provided, belong exclusively to openpack in the relationship between the parties.

(be)
If the contractual relationship between the parties ends, openpack is not obliged to delete the machine data provided via the module. openpack´s rights to use this data continue to exist.

(3) Processing of personal data

(a) openpack is entitled to process the personal data received from the user in connection with the business relationship with the following provisions (b) during the term of this contract.

(b) Personal data is processed with and after the creation of a user profile and when using the platform. The user can find details on which personal data is specifically processed in the openpack data protection declaration under B.II. [ https://openpack.net/datenschutz/ ]. openpack is entitled to collect and further process the personal data listed under B.II when creating the user profile, as this is necessary in order to be able to make the platform offer available to the user.

Detailed information on the advertising and analysis trackers used can be found in openpack´s data protection declaration [ https://openpack.net/datenschutz/ ] under E. Tracking and analysis tool  be retrieved. Further information on the tag manager used can be found under D. Online advertising.

Cookies, device identifiers and similar tracking technologies are stored and used on the user's end devices for advertising tracking. A detailed overview of the services and cookies used for this can be found in the openpack cookie details [ https://openpack.net/cookies-erklaerung/ ].

The consent to tracking can be revoked by the user at any time.

(4) Protection of Secrets
(a) The contracting parties undertake to treat as confidential all contract items that they receive or become aware of from the other contracting party before or during the execution of the contract and that are explicitly designated as confidential business or trade secrets, even beyond the end of the contract, unless it there is an exception according to the GeschGehG. The contracting parties keep and secure these designated business or trade secrets in such a way that access by third parties is excluded.

(b) The contractual parties only make the contractual objects accessible to employees and other third parties who need access to carry out their official duties. You instruct these persons about the confidentiality of the contractual items.

(5) If you send us requests via the contact form, the information you provide in the request form, including your contact details, is
including the contact details you provide there, will be stored by us for the purpose of processing the inquiry and in the case of follow-up questions. We do not share this data without your permission.
The processing of this data is based on Art. 6 para. 1 lit. b DSGVO, provided that your request is related to the
fulfillment of a contract or is necessary for the implementation of pre-contractual measures.
In all other cases, the processing is based on our legitimate interest in the effective
processing of the requests addressed to us (Art. 6 para. 1 lit. f DSGVO) or on your consent (Art. 6 para. 1 lit.
lit. a DSGVO) if this has been requested.
The data you enter in the contact form will remain with us until you request us to delete it,
revoke your consent to storage or the purpose for storing the data no longer applies (e.g. after the
completed processing of your request). Mandatory legal provisions - in particular
retention periods - remain unaffected.

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§ 15 Payment Services

Are payment service functions integrated by openpack in such a way that it is a payment initiation service i. S.v. § 1 para. 1 sentence 2 no. 7, para. 33 ZAG or an account information service i. S.v. § 1 para. 1 sentence 2 no. 8, para. 34 ZAG, the provisions of the ZAG remain unaffected.

 

Section 16 Assignment and offsetting

(1) A partial or complete transfer of the user's rights from the contract with openpack to third parties is excluded.

(2) The user is only entitled to offset against openpack with undisputed or legally binding counterclaims.

 

§ 17 Duration of contract

(1) The contract on which these Terms of Use are based is concluded for an indefinite period. It starts with the approval by openpack according to § 3.

(2) The contract can be terminated by either party with a notice period of three months to the end of the respective quarter.

(3) Each party has the right to terminate the contract for good cause without observing a period of notice. An important reason for openpack is in particular:

(a) the breach by a user of the provisions of these Terms of Use, which is not remedied even after a deadline has been set,

(b) a user committing or attempting to commit a tort, e.g. B. Fraud,

(c) the user's default of payment by more than six weeks in accordance with the commission payment to be made by the user in accordance with Section 7.

(d) ongoing operational disruptions due to force majeure beyond openpack´s control, such as B. Natural disasters, fire, no-fault collapse of supply networks.

(4) Any termination must be in writing. Terminations by fax or e-mail must be in writing.

(5) The termination of this contract does not affect other agreements between the contracting parties.

 

§ 18 Final Provisions

(1) Verbal or written ancillary agreements have not been made. Any change or addition to these Terms of Use must be made in writing. This also applies to a waiver of the written form requirement.

(2) Should individual provisions of these Terms of Use be or become invalid and/or contradict the statutory provisions, this shall not affect the validity of the remaining Terms of Use. The ineffective provision will be mutually replaced by the contracting parties with a provision that comes as close as possible to the economic purpose of the ineffective provision in a legally effective manner. The above provision applies in case of loopholes accordingly.

(3) The law of the Federal Republic of Germany applies to the exclusion of the UN Sales Convention. The place of jurisdiction for all legal disputes is the registered office of openpack (Weiden id OPf.). openpack is also entitled to bring an action at the place of performance of the provision or at the general place of jurisdiction of the user.

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Status: 29.06.2022