Click here for Chinese version (Translated as per 12/May/2021)
After these Terms have been accepted by an Authorized User at first access to the Platform, subsequent Authorised Users may be asked to accept these Terms as well. Any subsequent acceptance will not create separate contracts between the Participant and xChange Solutions GmbH except insofar as these Terms have changed in which case the first Authorised User to accept the Terms will bind the Participant to the updated Terms. xChange Solutions GmbH reserves the right to change any of the Terms at any time. Participants will be notified both within the Platform as well as by email. Participants continued use of the Platform following the posting of any changes to these Terms constitutes acceptance of such new/revised Terms.
This Platform is owned and operated by xChange Solutions GmbH. References to xChange Solutions GmbH, Participants, Authorised Users, and other capitalised Terms but not defined in these Terms have the meaning set out in Section 18 of the “Definitions” set out below.
The Platforms allows Suppliers to offer their services, in particular available container leasing capacity and container sale stock, to Users which have been granted access to the Platform by xChange Solutions GmbH and to enter into corresponding Transaction Contracts with Users. xChange Solutions GmbH as commercial agent for the supplying party in each transaction (the Supplier) will use reasonable efforts to arrange the execution of corresponding Transaction Contracts and to foster related negotiations.
The Platform is not intended to be a means for Participants to coordinate their commercial behaviour in the market in view of fixing prices, quantities, and allocating costumers or markets, nor as a forum for the exchange of confidential or otherwise commercially sensitive company-specific information.
It is the responsibility of each Participant to comply with competition law relying on their own legal advice; it is not the responsibility of xChange Solutions GmbH or its staff to ensure that Participants comply with competition law in their own activities.
Login Details and security
Access and use of the Platform is conditional upon receipt of the necessary Login Details from xChange Solutions GmbH which may grant or restrict the Login Details in its absolute discretion and restrict access to all or any part of the Platform.
The Participants shall instruct their Authorised Users not to provide the Login Details to (or otherwise permit access to the Platform by) any person other than its Authorised Users, and accepts full responsibility at all times for any and all of their use of the Platform. The Participants shall also take responsibility for any unauthorised access to the Platform where, by its acts or omissions, its Login Details are disclosed to person(s) other than its Authorised Users.
The Participants shall provide details of each Authorised User to xChange Solutions GmbH for the purposes of setting up that Authorised User on the Platform and providing the relevant Login Details. xChange Solutions GmbH shall be under no obligation to ascertain whether any person using the Login Details to access or use the Platform is properly authorised by the Participant, and shall be entitled to assume, without enquiry, that any such person is an Authorised User and their access or use of the Platform is properly authorised by the Participant.
Each Participant shall ensure all Authorised Users understand how to use the Platform and are appropriately supervised.
Each Participant shall keep all Login Details secret and shall implement and maintain adequate security measures to prevent access to the Platform by any person other than an Authorised User.
If xChange Solutions GmbH becomes aware, or suspects that any unauthorised person has obtained or has attempted to obtain unauthorised access to, or there is misuse of, the Platform or Login Details, then it may take such steps as it deems appropriate to change the Login Details access level of the Participant, and/or the security of the Platform. The Participant shall notify xChange Solutions GmbH immediately in writing or by telephone if it becomes aware of any such actual or potential misuse or unauthorised access.
Participant Systems and the Platform
Each Participant shall be responsible (at its own cost) for:
(a) the selection, provision, maintenance and support of the Participant Systems;
(b) co-operating with xChange Solutions GmbH in all matters relating to the Platform; and
(c) ensuring that the Participant Systems are at all times suitable for use with the Platform.
xChange Solutions GmbH is not responsible in any way for the configuration of the Participant Systems, the interoperability or reliability of the connection between the Participant Systems and the Platform and is not responsible for any communication failures, distortions or delays when using the Platform.
xChange Solutions GmbH has sole discretion and control over, and may modify at any time in its absolute discretion: (i) the functionality, performance, configuration, appearance and content of the Platform; (ii) the availability of the Platform to any person at any particular place, time or location; (iii) security protocols or procedures applicable to the Platform or Participant Systems; (iv) xChange Solutions GmbH policies and procedures in relation to accessing and using the Platform.
The Participant understands and acknowledges that the Platform response times may vary due to external conditions, Platform performance, access device location or other factors, and that access to the Platform may be limited or unavailable during periods of peak demand, systems upgrades, routine or emergency maintenance, Force Majeure Events or for other reasons. xChange Solutions GmbH does not warrant the performance or availability of the Platform.
Confidentiality and privacy
Participants shall treat information received from or via the Platform as confidential and will not disclose it to any other person not entitled to receive such information except as may be necessary to fulfil their respective obligations in the conduct of their business and except as may be required by law or regulatory authority. This section will not apply to information to the extent that it is: (i) rightfully in the possession of such Participant; (ii) already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this section); (iii) required to be disclosed pursuant to legal, or regulatory requirements; or (iv) which is trivial or obvious. Each Participant acknowledges and agrees that xChange Solutions GmbH may include and disclose to third parties, on an anonymous and aggregate basis, information relating to use of the Platform and information derived from the Platform in benchmarking, modelling and other analytics offerings and reports derived from such information.
Unless objected to by the Participant, each Participant acknowledges and agrees that xChange Solutions GmbH may publish and/or disclose to third parties information relating to each Participant and its performance on the Platform on e.g., “Public Company Profiles”.
Participants agree to the payment terms and pricing scheme laid out in the Commercial Terms between each Participant and xChange Solutions GmbH which shall form part of these Terms.
The Platform offers two models to settle payments between the Participants. The first alternative is a bilateral payment settlement according to 4.2.1. The alternative consists of a payment settlement via xChange Solutions GmbH acting on behalf of the Supplier as commercial agent pursuant to 4.2.2; such payment settlement mechanism pursuant to 4.2.2 will be activated automatically for all Suppliers. To change to a different “alternative”, Supplier can reach out to the service team at any time during its membership.
Containers can be insured against total loss and damages via the Platform regardless of the invoicing model. In case of a Default or bankruptcy of one of the parties, xChange Solutions GmbH shall under no circumstances be liable for any outstanding payments.
4.2.1 – Bilateral invoicing
The parties to the transactions are contract partners in the transaction and directly address invoices including related charges and applicable taxes to the other party. Invoices are sent directly to the counterparty and payments are collected between the parties. xChange Solutions GmbH shall under no circumstances be liable for these payments and all risk and banking fees are borne by the parties. Any disputes are to be resolved bilaterally but xChange Solutions GmbH may support the dispute resolution. In case of a total loss of the containers, the owner invoices the counterparty for the lost assets and manages the collection of funds.
4.2.2 – xChange payment settlement
xChange Solutions GmbH in its capacity as commercial agent of the Supplier organizes the invoicing and collection of any receivables of Supplier vis-à-vis User related to a Transaction Contract (e.g. per-diems and pickup charges). For this service, xChange Solutions GmbH may levy a service fee as a percentage of the invoiced amount.
Unless otherwise instructed by the Supplier, the Supplier grants xChange Solutions GmbH power of proxy for invoicing and organizing the collection of any receivables of Supplier vis-à-vis User related to a Transaction Contract.
In case the invoiced party is subject to mandatory withholdings or deductions by operations of law (e.g. taxes), xChange Solutions GmbH reserves the right to gross-up the invoice amount with the applicable rate to ensure the party receiving payment receives the full amount, free of any deductions. The resulting additional charges are to be borne by the invoiced party.
The obligations of xChange Solutions GmbH under this paragraph cease from the moment of declaration of Default of one of the parties.
The Participants accept that all communication has to be kept on the Platform , or with [email protected] in copy (“cc”) when using email.
The payment terms specified in the invoices issued by xChange Solutions GmbH are binding and enforceable. Unless explicitly stated otherwise on the invoice, monthly invoices are to be paid within 7 days and container trading invoices are due immediately upon receipt. In case of overdue payments, xChange Solutions GmbH reserves the right to – at its own discretion – impose Platform restrictions on debtors (e.g. credit stop, or revoked Platform access), charge interest on late payments in accordance with Directive 2011/7/EU of the European Parliament and of the Council on combating late payment in commercial transactions, or pursue legal actions against the debtor.
xChange Solutions GmbH is not responsible for unapproved purchases of its clients’ employees via the Platform. This does not reduce the responsibility of xChange Solutions GmbH to protect its clients’ payment data from the misuse through 3rd parties.
Notwithstanding any notices for cancellation of the Participant’s membership on xChange, the Participants membership contract with xChange Solution GmbH extends until all ongoing transactions handled through xChange have been fully completed. For the avoidance of doubt, “completion” means return of any leased/transacted assets to the respective owner and settlement of the Participants financial accounts with xChange.
Usage of the Platform
Participants shall only use the Platform to submit or search information about the availability of or need for empty Containers as well as Slots (Availability Information). Participants shall not use or permit the use of the Platform for any other purpose. In particular, Participants shall not share Availability Information to coordinate their behaviour in view of fixing prices or quantities or allocating costumers or markets
In respect of each Container or Slot, Participants will be responsible for: (i) providing complete, accurate and current Availability Information; (ii) ensuring that at no time is the relevant Availability Information in any way inaccurate, incomplete or misleading; (iii) immediately notifying xChange Solutions GmbH if at any time it becomes aware that the relevant Availability Information is or is likely to become inaccurate, incomplete or misleading; and (iv) keeping the Availability Information up to date and current at all times.
If the User fails to comply with its obligations under section 5.2 above, xChange Solutions GmbH has the right to put limits on the Participant’s ability to list Containers or Slots or use the Platform. As represantative of the Supplier xChange Solution GmbH supports the Supplier to comply with its obligation under section 5.2.
Without prejudice to sections 5.2 and 5.3, the Participants will be entitled to withdraw and/or amend any Availability Information at any time.
xChange Solutions GmbH may at its sole discretion remove any Availability Information submitted by a Participant via the Platform at any time and for any reason. xChange Solutions GmbH has no obligation to verify the accuracy of any Availability Information. The obligation of xChange Solutions GmbH to arrange Slot- and Container-related services remains unaffected.
Participants accept that xChange Solutions GmbH acts as commercial agent of each of the Suppliers and that xChange Solutions GmbH acts on the relevant Supplier`s behalf to negotiate and to execute Transaction Contracts.
Participants accept that xChange Solutions GmbH is entitled to automatically and proactively send offers regarding Slot- and Container-related services to appropriate Users in order to initiate Transaction Contracts.
The Platform contains one or more of the following interactive services: bulletin boards, chat areas and/or other message or communication facilities. Participants agree to use such services only to send and receive messages and material that are proper and related to the particular service or other message or communication facility. In addition, Participants agree that when using such interactive services, they will not:
Upload files that contain software or other material protected by intellectual property laws or by rights of privacy of publicity unless the Participant owns or controls such rights or has received all necessary consents.
Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer.
Delete any author attributions, legal notices or proprietary designations or labels in any file that is uploaded.
The Participant may include a link to its website as part of the Availability Information submitted to the Platform (the Participant Website), provided: (i) this is done in a fair and legal way; (ii) it does not damage or take advantage of xChange Solutions GmbH’s reputation or suggest any form of association, approval or endorsement on xChange Solutions GmbH’s part; and (iii) the Participant Website complies in any respects with the content standards set out in the User Manual. No link may be established by Participants between the Platform to any website other than the Participant Website apart from links to the BIMCO. xChange Solutions GmbH reserves the right to withdraw linking permission at any time and for any reason without notice.
Scope of the services provided by xChange Solutions GmbH
As commercial agent of the Supplier xChange Solutions GmbH uses reasonable efforts to arrange the conclusion and the execution of Transaction Contracts via the Platform and to foster related negotiations on behalf of Supplier.
xChange Solutions GmbH is entitled to arrange transactions as commercial agent for various Suppliers. The Suppliers acknowledge and agree that xChange Solutions GmbH decides at its own discretion which Suppliers will be connected with which Users. In particular, xChange Solutions GmbH is not obliged to arrange specific Transaction Contracts for a particular Supplier and xChange Solutions GmbH is free in the way of presenting (including ranking) the Suppliers and their services on the Platform.
The agency services to be provided by xChange Solutions GmbH include the following services:
xChange Solutions GmbH operates the Platform and presents the Supplier`s profile and its available Container- and Slot-related services to the Users continuously on the Platform.
xChange Solutions GmbH checks in its discretion information provided by a Supplier regarding their respective available services and adapts such information on the Platform, if required. Supplier is aware and agrees that xChange Solutions GmbH adapts such information at its discretion in the interest of quality assurance, reliable resource planning and in order to increase the contracting rate. Section 5.2 remains unaffected.
Before Users are granted access to the Platform, xChange Solutions GmbH checks in its discretion the information provided by the User during the registration process in the interest of the security of the Platform and in the interest of the Suppliers regarding potential Transaction Contracts.
xChange Solutions GmbH seeks appropriate Users for available services offered by the Supplier at its own discretion considering in particular the operational reliability and creditworthiness of the Users and any instructions given by the Suppliers. xChange Solutions GmbH is free whether and how it approaches Users in order to arrange Transaction Contracts for Suppliers.
Supplier is immediately and automatically informed by xChange Solutions GmbH after a User request has been placed on the Platform.
xChange Solutions GmbH forwards to the Supplier a User request verified by xChange Solutions GmbH. xChange Solutions GmbH is exclusively obliged to the Supplier and acts solely in the Supplier’s interest. In particular, xChange Solutions GmbH examines in its discretion the requirement for risk reduction measures (e.g., insurance, prepayment, pickup-charges) and supports the Supplier in evaluating the respective commercial terms of a potential contract.
A decision on the acceptance of a User’s request is made solely by the Supplier. However, a final agreement between the Supplier and the User on a Transaction Contract is subject to final approval by xChange Solutions GmbH. xChange Solutions GmbH is free to reject the conclusion of a transaction for reasons of quality assurance and risk management; in particular, xChange Solutions GmbH may reject its final approval if the agreement is faulty or if the conditions for the conclusion of a transaction are no longer fulfilled – in particular due to lack of Container/Slot availability, concerns regarding the User’s creditworthiness etc. Therefore, a Transaction Contract is concluded only once xChange Solution GmbH has given its approval to the Transaction Contract and the request is moved to status “Accepted” or “Payment”.
xChange Solutions GmbH itself does not enter into a Transaction Contract. The respective Transaction Contract is exclusively concluded in each case between the relevant Supplier and the the relevant User.
After sales support
xChange Solutions GmbH supports the Supplier administratively in the contract performance after a Transaction Contract has been concluded. This includes
(a) Preparation and monitoring of the release documents; providing release information;
(b) Communication with the depot regarding Container availability, gate moves etc.;
(c) Tracking of Containers and forecasting of the return date;
(d) Support with the collection and the return of the Containers (e.g. in case of depots refusing accpetance of a Container);
(e) Damage claim handling; and
(f) Calculation of the remuneration to be paid by the User to the Supplier, invoicing and receivable collection, if applicable (see Section 4.2).
xChange Solutions GmbH shall have no responsibility or liability under any Transaction Contract to any Participant. As service provider, xChange Solutions GmbH only acts as commercial agent of the Supplier.
xChange Solutions GmbH accepts no responsibility for any decision to enter into a Transaction Contract made as a result of the use of the Platform, including any Availability Information, Credit Worthiness Assessment or other information made available via the Platform.
By providing access to and use of the Platform, xChange Solutions GmbH connects Participants, offering Participants the opportunity to provide and search for Availability Information for the most efficient allocation of equipment. xChange Solutions GmbH is not responsible or liable to a Participant for any risks underwritten in a Transaction Contract entered into as a result of the use of the Platform nor for any risks associated with nor any content in the Participant Websites, the BIMCO websites or any other sites that are linked to the Platform and provided by third parties. In any event, the exchange of Available Information shall not be used to promote a general cooperation and coordination in the relevant market between Participants in violation of competition law.
The responsibility of xChange Solutions GmbH for services performed as a commercial agent for the Supplier remains unaffected insofar as this responsibility cannot be deviated from according to applicable mandatory laws.
Participants and Authorised Users will have the opportunity to rate their satisfaction with particular transactions and other Participants through the Platform.
xChange Solutions GmbH shall have the right to amend, remove, alter or prevent access to any Rating at any time for any reason.
Authorized Users will have the opportunity to book insurance cover for Containers through the xChange platform. By booking insurance the User agrees to be added as an additional assured to an open policy (Equipment Cover) taken out by xChange Solutions GmbH or one of its group companies.
If insurance is booked by the User,
- a) the User will notify any loss of or damage to a Container to the xChange platform,
- b) xChange Solutions GmbH or one of its group companies will perform the claims handling, e.g. instruct a surveyor, liaise with the insurance intermediary and arrange for a payout of the insurance proceeds to repair facilities or in case of a total loss to the Supplier; in this connection, the User agrees to the insurer making payment of the insurance proceeds to xChange Solutions GmbH or one of its group companies in order to be passed on to the repair facility or the Supplier, as the case may be,
- c) and if the User’s claim under the insurance policy is rejected by the insurer, xChange Solutions GmbH and its group companies shall not be obliged to enforce the claim against the insurer.10
The Platform and any connected and related Reports, services, systems, information, components, interfaces, equipment, documentation, materials and technology provided by xChange Solutions GmbH are provided “as is”.
To the extent permitted by law:
(a) xChange Solutions GmbH makes no representation or warranty whatsoever that the Platform, Reports or information provided under or in connection with the Platform shall be of satisfactory quality, fit for purpose, uninterrupted, timely, secure, accurate, correct, complete, error-free, free from viruses and malicious components, or compatible with the Participant Systems; and
(b) save where expressly provided in these Terms, all terms, conditions, warranties, representations and undertakings which might be implied, whether by statute or otherwise, in respect of xChange Solutions’ obligations are excluded to the maximum extent permitted by law.
Nothing in these Terms shall exclude or limit the liability of xChange Solutions GmbH:
(a) in respect of fraud of xChange Solutions GmbH; or
(b) in respect of any liability that cannot be excluded or limited by law.
Subject to section 11.1, xChange Solutions GmbH excludes all liability to the Participant and any Authorised User for any Losses arising out of or in connection with:
(a) the unavailability or inaccessibility of the Platform;
(b) any interruption, delay or failure of the Platform, Reports or any connected and related systems, components, interfaces, equipment, documentation, materials and technology provided by xChange Solutions GmbH;
(c) any third party or xChange Solutions GmbH systems, networks and infrastructure which are used in connection with the Platform;
(d) any incorrect, inaccurate, corrupt, undelivered or misdirected Availability Information or Reports;
(e) any Transaction Contracts entered into as a result of using the Platform; or
(f) any virus or harmful components or loss or damage to the Participant Systems, including if such harmful components stem from files uploaded by other Participants.
Subject to section 11.1, xChange Solutions GmbH shall not be liable to the Participant (or any person claiming under or through the Participant) whether in contract, in tort (including negligence), under statute or otherwise under or in connection with these Terms for any:
(a) loss of profit or revenue;
(b) loss of anticipated savings;
(c) loss of goodwill;
(d) loss of opportunity or business;
(e) business interruption; or
(f) indirect or consequential Losses of whatever nature including any Losses of a type described in (a) – (e) above which could be regarded as indirect or consequential, in each case whether or not reasonably foreseeable, reasonably contemplatable, actually foreseen or actually contemplated by xChange Solutions GmbH or the Participant at the time these Terms are entered into.
Subject to section 11.1 to 11.3 above, neither xChange Solutions GmbH nor its officers, directors, agents or employees shall be liable to the Participant or any Authorised User for any loss or damage of any nature arising out of or in connection with the Participant’s or Authorised User’s use of the Platform, where such loss or damage is not caused by xChange Solutions GmbH’s deliberate default.
Subject to section 11.1, if xChange Solutions GmbH is found to be liable to any Participant in contract, in tort (including negligence), under statute or otherwise, xChange Solutions GmbH’s total liability in respect of all claims arising during each year of these Terms (as determined at the date when the liability arose) shall be limited to the fees paid by the Participant pursuant to the Commercial Terms.
The limit of liability specified in section 11.5, is an aggregate limit for all members of xChange Solutions GmbH so that the Losses recoverable from the whole xChange Solutions GmbH cannot exceed this limit.
xChange Solutions GmbH does not accept any liability for the performance of the User and Supplier under any Transaction Contract agreed to by the parties.
The Participant and xChange Solutions GmbH agree that the limitations and exclusions of liability contained in this section are considered by them to be reasonable in all the circumstances.
Any dispute arising under or in connection with the use or attempted use of the Platform shall be governed by these Terms only.
All Participants that enter into a Transaction Contract with CMA CGM S.A., confirm their compliance with the the “CMA CGM Third Party Code of Conduct” [Link]
All Intellectual Property Rights relating to the software provided to enable access to and use of the Platform (Platform Software) and any Reports shall remain vested in xChange Solutions GmbH or its licensors and may not be used by the Participant or any of its Authorised Users without the prior written consent of xChange Solutions GmbH or its licensors (as applicable). xChange Solutions GmbH shall own all Intellectual Property Rights of the Reports. Ownership of the Availability Information shall remain vested in the Participant.
xChange Solutions GmbH grants to the Participant a personal, revocable, non-exclusive licence to access the Platform Software and to permit use of the Platform Software by its Authorised Users for the duration of these Terms.
The Participant shall not:
(a) cause or permit the reverse engineering, disassembly or decompilation of any Platform Software;
(b) make the Platform Software available to any third party for any purpose;
(c) recreate or copy the Platform Software; or
(d) re-export or re-distribute the Platform Software or any part of the Platform without xChange Solutions GmbH’s prior written permission.
The Participant and its Authorised Users shall at all times keep the Platform Software, Reports and other related materials and information secure and confidential, except to the extent required by applicable law or Regulations. If the Participant or any Authorised User receives a disclosure order from the Regulator or other governmental authority, it shall promptly notify xChange Solutions GmbH of the required disclosure, and if requested assist xChange Solutions GmbH in challenging such order, in each case to the extent not precluded from doing so by applicable law or Regulations.
The Participant shall:
(a) not modify the paper or digital copies of any Platform Software, Reports or related materials and shall not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text; and
(b) not use any part of the Platform Software, Reports or related materials for commercial purposes without obtaining a licence to do so from xChange Solutions GmbH.
xChange Solutions GmbH may in its absolute discretion restrict access to and use of the Platform by the Participant or its Authorised Users, suspend or restrict a Participant’s right to submit or search for Availability Information, suspend or restrict a Participant’s right to view Reports or discontinue or suspend availability of the Platform, at any time, with or without notice to the Participant and for any reason.
The Participant acknowledges that, in addition to the events described in section 2.4, the Platform may fail or otherwise not be available or be subject to incorrect or restricted functionality or performance for whatever reason, including failure of technology, power failure, failure of communications links or security breach. No course of dealing will be construed as a promise of continued or continuous availability or capability of the Platform and xChange Solutions GmbH is not responsible to the Participant in relation to such unavailability or for incorrect or restricted functionality or performance.
These Terms (including the Commercial Terms) shall continue in force until terminated in accordance with this section 15. Membership Confirmations for Participant’s Platform access shall supplement this section 15.
xChange Solutions GmbH may terminate the Participant’s or any of its Authorised Users access to or use of the Platform at any time and for any reason.
Unless required by applicable law or Regulations, these Terms and the Commercial Terms shall terminate with immediate effect at the earliest of:
(a) xChange Solutions GmbH removing access to the Platform; and
(b) the end of the Participant’s membership period as defined in the Participant’s respective Membership Confirmations based on the receipt of a written notice of termination at least two weeks in advance.
Any termination of access to or use of the Platform shall not affect any accrued or outstanding rights or liabilities of xChange Solutions GmbH or the Participant which have arisen prior to or upon termination, nor shall it affect the coming into force or the continuance in force of any provisions of these Terms which are expressly or by implication intended to come into force or continue in force on or after that termination.
These Terms and any non-contractual obligations arising out of or in connection with it are governed by English law.
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with these Terms (including a dispute relating to the existence, validity or termination of these Terms or any non-contractual obligation arising out of or in connection with these Terms).
All notices must be in writing and must be hand delivered, sent by email or other electronic means, or forwarded by registered or certified mail to the relevant party and shall be deemed to have been delivered on receipt at the relevant address.
xChange Solutions GmbH may, at any time, amend or supplement these Terms, upon written notice including via the Platform.
Neither these Terms nor the matters to which they relate shall be assigned by either party without the prior written consent of other, save that xChange Solutions GmbH may assign these Terms to another entity in connection with the transfer of all or part of its assets or business to a member of xChange Solutions GmbH or to a third party without the Participant’s prior written consent.
These Terms and the Commercial Terms set out the entire agreement between the parties relating to their subject matter and override any prior correspondence or representations. In the event of a conflict between these Terms and the Commercial Terms, these Terms shall prevail. Each party acknowledges that, in entering into these Terms, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than in respect of xChange Solutions GmbH’s reliance on the person agreeing to these Terms having authority to bind the Participant and other than as expressly set out in these Terms, provided that nothing in this section shall limit or exclude any liability for fraud.
Each of the provisions of these Terms is severable. If any such provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction that shall not affect or impair the legality, validity or enforceability in that jurisdiction of the other provisions of these Terms, or of that or any provision of these Terms in any other jurisdiction.
These Terms shall be binding upon and take effect for the benefit of xChange Solutions GmbH and the Participant and their respective successors in title, permitted assigns and legal representatives and references to the parties shall be construed accordingly.
Nothing in these Terms is intended to confer on any person any right to enforce any term of these Terms which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.
In these Terms the following words and phrases shall have the following meanings:
Affiliate means, in relation to any person: (i) a Subsidiary of that person; (ii) any company or corporation in respect of which that person is a Subsidiary (direct or indirect); or (iii) any other Subsidiary of the company or corporation described in (ii) above.
Authorised User means, as applicable, the Participant’s employees and agents which the Participant has authorised to use the Platform and any person to whom the Participant is permitted to allow access and use of the Platform.
Availability Information means the information relating to the availability of or need for a Container or Slot by Participants including related information such as locations and dates
BIMCO means Baltic and International Maritime Council.
Default means the Participant is unable to repay outstanding debts. This includes Participants in the following cases: Participant has filed bankruptcy in court; Participant possesses no active business or trading license; Participant is put in default by xChange; a fraud case involving the Participant is identified; xChange has opened legal proceedings against Participant to recover deb; Participant is subject to international sanctions; Participant is affected by force majeure.
Commercial Terms means the terms between each Participant and xChange Solutions GmbH that defines the pricing scheme and payment terms relating to the use of the Platform and which form part of these Terms.
Container means a commercial shipping container
Intellectual Property Rights means all patents, trademarks, service marks, trade and business names, copyright (including copyright in computer programs), rights in designs, database rights, rights in know-how, trade secrets, rights in confidential information and all other intellectual property rights or forms of protection of a similar or equivalent nature or effect which may subsist anywhere in the world (whether or not registered or capable of registration), together with all applications for registration of and rights to apply for, and any licence to use, any of the above.
Login Details means the password and user identification or other security information provided by xChange Solutions GmbH in connection with the Participants’ access to the Platform.
Losses means losses, liabilities, damages, claims, costs, fees, or expenses.
Participant means any User or Supplier or any other party using the Platform for its intended use.
Participant Systems means the computer systems, technology and network infrastructure necessary for the Participant and any Authorised User to access and use the Platform.
Participant Website means a website owned by a Participant
Force Majeure Event means any event whatsoever beyond xChange Solutions GmbH’s reasonable control including (a) internet interruption, (b) failure, distortion or delay in any communications, systems, networks, hardware and software, power (c) suspension of trading, (d) acts of God, (e) voluntary or mandatory compliance with any Regulations (f) loss or non-grant of any necessary licence or consent (g) any change in any Regulations or interpretation of any Regulations; (h) accidental damage; (i) adverse weather conditions; (j) any labour dispute, (k) non-performance by suppliers, subcontractors or third parties; (l) interruption or failure of any utility service; or (m) war or civil commotion.
Regulations means all laws, statutes, orders, rules, treaties, regulations, directives, edicts, bye-laws, schemes, other instruments made under any statute or in exercises of the royal prerogative, rules, principles or guidance of a Regulator, decision, judgment and direction of a court, in each case as may be applicable to a Participant, xChange Solutions GmbH or the Platform.
Regulator means any person, or law enforcement or other agency in a relevant jurisdiction having regulatory, supervisory or governmental authority (whether under a statutory scheme or otherwise) over all or any part of the business of the Participant or an Authorised User.
Rating means the rating given to Participants by other Participants depending on their experience or satisfaction regarding a specific transaction
Slot means any space on a vessel, barge, train, truck or any other kind of transport that can be used for the transportation of a Container.
Subsidiary means a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006.
Supplier means any Container or Slot owner which has been granted access to the Platform by xChange Solutions GmbH.
Transaction Contract means the whole or a part of a contract for the interchange, swap, lease, sale or any other kind of temporary or permanent use of a Container or Slot executed between Participants.
User means company who temporarily leases or buys a Container or Slot from a Supplier and which has been granted access to the Platform by xChange Solutions GmbH.
In these Terms:
(a) headings are for convenience only and shall not affect the interpretation of any provision of these Terms;
(b) any reference to a section is a reference to a section of these Terms;
(c) reference to these Terms includes the Commercial Terms unless the context otherwise requires;
(d) any reference to a person includes any individual, firm, company or other legal entity;
(e) any obligation in these Terms on a person or party not to do something, includes an obligation not to agree, allow, permit or acquiesce to that thing being done;
(f) any reference in these Terms to any enactment or statutory provision or subordinate legislation shall be construed as a reference to it as from time to time replaced, amended, consolidated or re-enacted (with or without modification) and includes all orders, rules or regulations made under such enactment;
(g) words denoting the singular include the plural and vice versa, and words denoting any gender include all genders