English / German
§1 Subject-matter of the agreement and range of application
1. Klüber Lubrication München SE & Co. KG (hereinafter referred to as "KLM") offers on the internet (under https://extranet.klueber.com) solely for business associates (suppliers, customers, sales partners and project partners) information in electronic form (hereinafter referred to as "Extranet").
2. These General Standard Terms and Conditions (abbreviated in German and hereinafter referred to as "AGBs") apply for all information provided by KLM on the Extranet at any time, in particular for information in the categories of sales promotion material, data sheets, product applications, discussion forums and corporate news.
3. The legal relations with KLM shall be governed by the version of these AGBs valid on the date when the agreement was signed. Alterations shall be governed by § 9.
§2 Terms and definitions
1. "Partners" are all suppliers, customers, sales partners or project partners of the Klüber Group (hereinafter referred to as "KL") which KLM has registered for the Extranet services.
2. "Administrators" are the staff at KLM who enter, alter and delete utilization authorizations for partners.
3. "Users" are the partner's staff who have been authorized by the administrators to utilize the Extranet services.
4. "Extranet data" are all access data, contract data, transaction data, company profile data, other data and registration data as defined in Paragraphs 5 to 9 below.
5. "Contract data" are master data required for establishing, formulating or altering the contractual relationship with the customer regarding use of the KLM Extranet services.
6. "Company profile data" are the data which the partner enters as his own description of his company, his products and his services.
7. "Registration data" are contract data and company profile data.
8. "Access data" consist of user name and password or other features with which the users log onto the Extranet services.
9. "Other data" are the data described in § 1 Para. 2.
10. "Transaction data" and "routing data" plus "reporting data" are the data which are electronically recorded automatically as log files when the Extranet services are utilized.
§3 Duties to perform
1. (Main duty)
KLM shall provide the partner with the contractually agreed Extranet services.
The precise scope of the individual services shall be detailed in the performance descriptions, including the security and operating concept involved.
The performance descriptions, and the security and operating concept, shall not be construed as dependent or independent guarantee undertakings from KLM.
For utilizing the Extranet services, KLM grants the partner a simple, non-transferable right, limited to the term of the utilization agreement, to use the information and data provided by KLM.
2. (Availability of the Extranet services)
The fundamentally targeted availability of the Extranet services shall be governed by the performance descriptions, including the security and operating concept. A legal duty to perform on the part of KLM cannot be derived herefrom. If the specified level of availability is not reached, the partner shall not be entitled to any claims whatsoever, irrespective of the legal grounds involved.
3. (No obligation to perform on the part of KLM)
KLM is the technical service provider for the purveyance and communication of Extranet data. KLM shall not be responsible for the correctness of the data provided by the partner on the Extranet.
4. (Exemption from performance for KLM and its vicarious agents in cases of force majeure)
KLM shall not be obligated to provide its services as detailed under Paragraphs 1 to 3 of this section if such performance becomes impossible for KLM or its vicarious agents by reason of force majeure such as labor disputes, natural disasters, war or similarly comparable unforeseeable events lying outside the responsibility of KLM.
§4 Rights of KLM
1. (Rights at registration)
KLM shall be entitled, but not obligated to check the partner's registration data by obtaining data from the partner himself or from third parties.
KLM may demand documentary evidence of the authority granted to each subscriber registered by the partner concerned. KLM shall be entitled to refuse registration for objectively justified reasons, particularly if a prospective user states incorrect or misleading registration data or there is evidence pointing to violations of current international, European or national statute law.
2. (Rights of use)
KLM shall be entitled for the term of the agreement to utilize the company profile and business data, the brands and logos for the purposes necessary to fulfill the agreement, in particular to duplicate, to translate and to communicate data and information. Domain names, name brands, image brands and trademarks of KL are legally protected. All other brands or logos appearing in the services of KLM shall not be the intellectual property of KLM. The rights of the owners involved shall remain reserved. KLM reserves all property and utilization rights to the present and future design of the Extranet services.
3. (Disabling access to impermissible contents)
KLM will disable access to illegal contents as soon as it becomes aware of them, particularly in the event of a violation as detailed in § 5 Para. 8 (prohibition on impermissible contents).
4. (Withdrawal of utilization authorization in the event of abuse)
KLM shall be entitled to bar partners from using particular Extranet services on a temporary or permanent basis if despite a written warning specifying the violation involved they violate their contractual obligations, particularly those dealt with in § 5. Notification by email shall in this context satisfy the requirement for the written form.
KLM may, in the event of a breach of duty, disable access to Extranet data of the partner concerned two weeks after a written warning. Notification by email shall in this context satisfy the requirement for the written form. The threat of access disablement can be linked to the warning, specifying the violation involved. Disabling access without prior notification and compliance with the two-week notice period shall be permissible only when
1. the partner concerned has given cause for termination without notice of the contractual relationship, or
2. there is an imminent risk to KL's facilities or to public safety and order, or
3. immediate access disablement has been ordered by a government agency.
After termination of the breach of duty by the partner, KLM will reverse the access disablement, if no further breaches are to be expected from the partner involved.
§5 Duties of the partner
1. (Duties at registration)
Each partner must register before using the Extranet. For this purpose, KLM records registration data. The partner shall be obligated to state the registration data correctly and completely, to update them immediately with any changes involved, and to notify KLM thereof. Registration shall as a rule take effect when KLM enables the agreed Extranet services for the customer on the basis of a signed agreement.
2. (Compliance with the AGBs and the code of conduct)
The partner shall be obligated to comply with these AGBs.
3. (Choice of competent staff; representation rights)
The partner may appoint as users only natural persons with appropriate specialist knowledge. He must grant them powers of representation for issuing and accepting declarations of intention in his name.
4. (Data formats)
The partner shall be obligated to provide the Extranet data for KLM in the specified formats, by using the interfaces provided for this purpose.
5. (Duty for technical requirements and data checking)
The partner shall be obligated to himself provide the entire equipment and technology required for utilizing the KLM Extranet. This shall apply particularly to all requisite devices, data transmission lines, telecommunication services, and the acquisition of browsers and the use of encryption procedures. The partner must conclude the relevant agreements with third parties in his own name, and ensure compliance with the applicable international, European and national laws and regulations.
The technical requirements shall be governed by the performance descriptions of the KLM Extranet. The partner shall himself bear the costs and other burdens involved here.
6. (Prohibition on manipulations)
The partner may not manipulate the Extranet services in any way.
In particular, the partner must not make any entries or transfer any data which contain or may contain viruses, Trojan Horses or comparable executable program codes, and/or are suitable for damaging, viewing, intercepting, forwarding or erasing data or systems, or provide unauthorized persons with access to data, systems or areas. The partner must not use mechanisms, software or other routines which may disturb or overload KLM's Extranet services.
7. (Safekeeping of users' access data)
The partner shall be obligated to pass on access data only to those users whom the partner has registered with KLM. Access data must be protected from cognizance, from access and from use by third parties. This shall in particular apply for employees of the partner who have not been named as users. Actions involving utilization of a user's access data shall be construed as actions of the user concerned, and will be assigned to the partner involved. This shall not apply if the partner is able to prove that he has complied with the requirements of Sentences 1 to 3.
8. (Prohibition on impermissible contents)
Those contents shall be deemed impermissible which violate legal regulations, particularly infringe criminal laws or public morals, especially contents which infringe copyrights, patents, brands, business secrets or other industrial property rights, personal rights or data protection rights of third parties, or violate provisions of competition law.
9. (Duty of disclosure)
The partner shall be obligated to inform KLM immediately after discovering specific indications that one of the duties detailed under Paragraphs 6 to 8 above is being breached.
10. (Prohibition on alteration and commercial exploitation; industrial property rights)
The partner must not alter, publish, transfer, or participate in the transfer or sale of the Extranet services of KLM or parts thereof, nor store or duplicate them, nor produce, distribute, or display contents derived from them, nor commercially exploit the services and information in any other way. The partner undertakes not to violate the rights of other partners or other third parties.
§6 Data security
1. (Principle of data security)
KLM shall comply with the valid European, national and country-referenced data protection laws and regulations. KLM undertakes to obtain, to process or to use no or as few person-referenced data as possible, and as far as possible to make use of data anonymization and pseudonymization (principle of data avoidance and data economy)
2. (Consent of the partners)
By concluding the written utilization agreement and the registration, the partner consents in advance to KLM's obtaining, processing and utilizing the data required solely for fulfilling the contractual purpose of the Extranet services involved.
If a customer refuses his consent as detailed in Sentence 1 of this paragraph, KLM shall immediately draw his attention to the consequences of such a refusal, in particular to the possibility of KLM not providing its contractual duties as detailed under § 4.
3. (Data security rights of the partners)
The partner shall be entitled at any time to obtain information on the data he has provided, to correct them, or to have them erased or access to them disabled by KLM.
If the partner wishes his data to be erased or access to them disabled, the arrangements detailed under § 6 Para. 2 Sentence 2 on refusal of consent shall apply correspondingly.
4. (Security and operating concept)
The details of how the Extranet data of the Extranet services involved are obtained, processed, utilized and communicated can be found in the security and operating concept of the Extranet-referenced performance description.
1. (Mutual liability for loss or damage)
The contracting parties shall be mutually liable for loss or damage caused by them, their legal representatives or vicarious agents.
2. (Unlimited liability)
In the event of a breach of duty committed with intention or with gross negligence a breach of significant contractual duties (cardinal duties), injury to life or limb, damage to health or product liability claims, the contracting parties shall be mutually liable with no restriction.
3. (Non-liability for indirect loss or damage)
In the event of a breach of duty committed by the contracting parties out of simple negligence, there shall be no liability for indirect loss or damage, such as lost profits and consequential loss or damage � also in the case of contractual partners of the contracting parties. This shall not apply if the preconditions laid down in Paragraph 2 are met.
4. (Limitation of liability typical for such agreements)
In the event of a breach of duty committed by the contracting parties out of simple negligence, the liability shall be limited to the loss or damage typically foreseeable for the contracting parties in the context of KLM's Extranet operations. This shall not apply if the preconditions laid down in Paragraph 2 are met.
5. (Mutual indemnity against liability)
The contracting parties indemnify each other against liability in connection with all claims involving disputes with third parties arising from a breach of the contractual duties by the contracting parties concerned. The contracting parties shall inform each other immediately of any impending legal disputes.
§8 Alterations to the AGBs or the scope of performance
1. (Permissible changes)
KLM may alter these AGBs or the scope of performance as detailed under § 3 Paragraphs 1 to 3 of these AGBs without the customer's consent if
a. KLM leaves the main performance duty as detailed in § 3 Para. 1 essentially unaffected,
b. the alterations are being caused by mandatory stipulations from third parties, outside KLM's culpable responsibility,
c. the alterations at least also serve the partner's interests, by improving procedures or offering services more efficiently, without entailing any significant disadvantages for the partner, or
d. KLM is increasing the scope of performance.
2. (Announcement of alterations)
KLM shall announce alterations by means of individualized communication, pointing out the right of objection, in particular by email and on its Extranet website.
3. (Right of objection and operability of the alteration)
The partner can object to alterations which do not meet the criteria laid down in Para. 1, within a period of four weeks after announcement of the alterations concerned. If as the partner raises no objection during this four-week period, these alterations shall become operative.
4. (Objection to altering the AGBs)
If the partner, citing grounds in writing, objects within the four-week period to the alterations to these AGBs, specifying the clauses he finds unacceptable, the AGBs in their form valid on the date of signing the agreement shall continue to apply for the partner concerned.
5. (Objection to altered performance)
If the partner, citing grounds in writing, objects to alterations in the scope of performance which are not permissible under the provisions of Paragraph 1 without his consent, he shall have the right to terminate the agreement in accordance with § 9 Para. 4.
1. (Obligation to maintain secrecy)
KLM and partners hereby undertake to keep secret the information, empirical feedback, formulas, drawings, models, technical records, process methods and other technical and commercial know-how received from and/or learned from the other party (hereinafter referred to as "confidential information"), not to disclose them to third parties, and not to use this confidential information for a purpose other than the purpose of cooperation specified above.
2. (Exceptions from the obligation to maintain secrecy)
The obligation to maintain secrecy shall not apply to confidential information for which the recipient concerned is able to prove that it
a) was already public knowledge when it was communicated,
b) at the time of being communicated was already known to the recipient or after being communicated has been lawfully made available by third parties, without a duty to maintain secrecy having been directly or indirectly violated beforehand,
c) after being communicated to the recipient has become public knowledge without any involvement on his part,
d) was developed by the recipient or his employees autonomously and independently of any confidential information being communicated.
3. (Restriction on dissemination)
The parties undertake to disclose or make accessible the confidential information only to such employees and consultants who necessarily as a consequence of their involvement in the cooperation have to have knowledge of the confidential information concerned. The parties undertake to impose on such employees and consultants the obligation to maintain secrecy specified in Section 1 above, and to evidence this in writing to the other party on request.
4. (No acquisition of rights)
The disclosure of confidential information and any handing over of corresponding documents shall not establish for the recipient concerned any rights whatsoever to industrial property rights, know-how or copyrights. The parties concur that the disclosure or communication of confidential information shall in no way establish prior printed publication or right of prior use within the meaning of German protection-of-inventions legislation (Patent- und Gebrauchsmustergesetz). No warranty is assumed for the correctness or completeness of the confidential information disclosed or rendered accessible. Unless otherwise agreed, no party shall be liable for ensuring that the confidential information is suitable for the purpose of this cooperation.
§ 10 Term of the agreement, termination, suspension in the event of these Standard Terms and Conditions being infringed
1. (Term of the agreement)
Unless otherwise specified, the contractual relationship shall begin with access being enabled by KLM.
The agreement is not tied to any fixed term.
2. (Due and proper notice of termination)
KLM and the partner can terminate the contractual relationship at 4 weeks' notice.
3. (Termination with good cause)
The contracting parties shall be entitled to terminate the contractual relationship for good cause without first complying with a period of notice, if when taking into account all circumstances of the individual case involved and weighing up the interests of both parties, a continuation of the contractual relationship until its agreed end or expiry of the period of notice cannot reasonably be expected of the party wishing such termination.
For KLM, good cause shall in particular apply if a partner abuses the services of KLM, or seriously or repeatedly violates his contractual duties as laid down in § 5 Paras. 6 to 10. In the event of an operative termination without notice, KLM can disable access to the partner's data without having to comply with a period of notice and without prior notification.
4. (Form of termination)
Every notice of termination must be made in writing. Electronic documents without an authorized electronic signature within the meaning of the German Signature Act shall not be sufficient to be construed as written form.
5. (Effect of termination)
When termination becomes operative, the contracting parties' performance duties shall end, apart from post-contractual duties such as surrender, deletion and access disablement of Extranet data.
§11 Out-of-court dispute arbitration
1. (Waiver of right to legal appeal)
The parties undertake, waiving all rights to legal appeal, to submit to arbitration all disputes arising between KLM and the partner in connection with the utilization agreement, its validity, and with provision of the Extranet services.
2. (Rules of arbitration)
All disputes shall be finally decided in accordance with the rules of arbitration laid down by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS), admitting of no legal appeal.
3. (Applicable law)
The applicable substantive law shall be the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sales of Goods and conflicts between German and international private law. The place of arbitration shall be Munich, Germany. The language of the arbitration procedure shall be German.
The arbitration tribunal shall consist of an individual arbitrator appointed jointly by the contracting parties. If the parties have not reached agreement within a period of 15 working days from submission of the arbitration suit, each party may apply for the individual arbitrator to be appointed by the DIS Appointments Committee. The individual arbitrator has to be a qualified lawyer well-versed in IT legislation.
§12 Closing provisions; applicable law; place of performance; written form; arbitration of disputes
1. (Applicable law)
This agreement shall be governed solely by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sales of Goods and conflicts between German and international private law.
2. (Place of performance)
Place of performance for the services is the registered domicile of KLM.
3. (Alterations and supplements)
Alterations and supplements to this agreement must be made in writing. This shall also apply to deviations from this written-form clause. Electronic documents without an authorized electronic signature within the meaning of the German Signature Act shall not be sufficient to be construed as written form.