Vanilla Steel Gmbh
Version 17th June 2020
1. Scope of Application
1.1 These general terms and conditions (hereinafter referred to as "T&C") apply to the use of the Vanilla Steel platform (hereinafter and as substantiated in Section 2.2 the "Platform") by Vanilla Steel GmbH i.G., Stolzingstrasse 44, 13465 Berlin, founded on 20.05.2020 (hereinafter referred to as "Vanilla Steel"). The services offered by Vanilla Steel are directed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) (hereinafter referred to as "Users", together with Vanilla Steel the "Parties", each a “Party”). The Platform is designed for business-to-business Users that are familiar with the metallurgical/ steel business and industry. 1.2 Deviations from these T&C shall only be considered agreed if they have expressly been confirmed in writing by Vanilla Steel. In particular, the mere omission of an objection by Vanilla Steel against any terms and conditions of the User shall not cause such terms and conditions to be considered agreed. This shall also apply if Vanilla Steel performs services unconditionally upon knowledge of opposing terms and conditions of the User or terms and conditions diverging from these T&C.
2. Conclusion of Contract, Contract Purpose
2.1 In the course of the registering process for the Platform or the first log-in on the Platform, the User confirms the validity of these T&C for the contractual relationship with Vanilla Steel. A use of the Platform is not possible without adherence to these T&C unless agreed otherwise in writing by the Parties. By clicking on the registration button or accepting the T&C in the course of their first log-in on the Platform, the User makes an offer to Vanilla Steel to conclude a user contract (the "Contract") on the basis of these T&C. Vanilla Steel accepts such an offer – and the Contract comes into place legally binding – by sending the User a separate confirmation by e-mail. In case Vanilla Steel does not send such separate confirmation, a Contract is not concluded. If Vanilla Steel provides login credentials to the user this shall be deemed an anticipated acceptance of the offer. 2.2 The Platform provides its Users the opportunity to sell (a selling User a “Seller”) or purchase (a purchasing User a “Buyer”) metallurgical material (the “Material”) (the "Contract Purpose"). 2.3 The scope of services of the Platform for the User is determined by Vanilla Steel at its own discretion. The User has no right to the retention of certain functions or the specific design of the Platform by Vanilla Steel.
3. Use of the Platform by the User
3.1 The User may only use the access to the Platform for the Contract Purpose itself. The User undertakes to take appropriate security precautions to ensure that access to the Platform is not used by unauthorised persons. Such security precautions include in particular the use of a secure password. 3.2 The User acknowledges that the functionalities of the Platform rely on a fair use of the Platform by its Users. Therefore, the User undertakes vis-à-vis Vanilla Steel that they will a) comply with all applicable law (in particular, but not limited to, antitrust and competition law), Vanilla Steel’s policies as set forth on Vanilla Steel’s website from time to time and, more generally, all rules of good faith and loyalty required for all commercial transactions; b) not fail to pay for Material purchased by the User pursuant to these T&C and the respective Sale Agreement (as defined in 4.1), unless for a valid reason, e.g. the Seller has materially changed the Material´s description after the respective Buyer’s bid; c) not fail to deliver Material sold pursuant to these T&C and the respective Sale Agreement, unless for a valid reason, e.g. the Buyer fails to comply with the terms posted by the Seller; and d) not manipulate the price of any Material or inadequately interfere with any other User’s Selling Process. 3.3 The User may only post data, texts, images and other content on the Platform which they are entitled to use accordingly and which does not violate applicable law or the rights of third parties. Vanilla Steel is entitled to block content posted by the User if there is a reasonable suspicion that such content is illegal, violates these T&C or infringes the rights of third parties. 3.4 The User shall indemnify Vanilla Steel against all claims of third parties, in particular claims for copyright, competition, trademark and data protection law infringements, which should be raised against Vanilla Steel in connection with the use of the Platform by the User. This indemnification shall also include the reimbursement of reasonable costs incurred or to be incurred by Vanilla Steel as a result of legal action or defence.
4. Conclusion of contracts via the Platform
4.1 The Sellers and Buyers are free to conclude contracts with each other via the Platform (each a "Sale Agreement"). Parties to the Sale Agreement are exclusively the respective Seller and the respective Buyer; Vanilla Steel is not a party to the Sale Agreement. The content of the Sale Agreement (in particular payment terms, delivery conditions, applicable Incoterms etc.) shall be governed solely by the respective Sale Agreement and shall, unless otherwise agreed between the parties to the Sale Agreement, correspond to the modalities proposed by the Seller in the Selling Process. 4.2 A Sale Agreement can be concluded via the Platform by way of (i) an English auction process, i.e. the highest bid at the Auction End shall win the auction (“English Auction Process”), (ii) a Blind auction process, i.e. the winning bid will be selected by the Seller (“Blind Auction Process”, each the English Auction Process and the Blind Auction Process an “Auction Process”) or (iii), if such functionality is offered on the Platform at the relevant time, a buy-now- procedure, i.e. the Material to be sold are offered for a fixed price (“Buy-Now-Process”, each the English Auction Process, the Blind Auction Process and the Buy-Now-Process a “Selling Process”). By offering Material on the Platform (irrespective of the Selling Process), the Seller makes a binding offer to sell the respective Material pursuant to the terms proposed by the Seller in the Selling Process. 4.3 In an English Auction Process, the Sale Agreement shall be concluded with the highest bidding Buyer at the Auction End (“Winning Buyer”). Vanilla Steel will then send the Seller a purchase order on behalf of the Winning Buyer; however, the validity of the Sale Agreement is subject to the condition precedent (aufschiebende Bedingung) that the Winning Buyer, in case advance delivery is agreed upon, passes the Seller’s credit check. “Auction End” shall mean in an Auction Process the earlier of (i) the lapse of the time period predetermined by the Seller when initiating the Auction Process or (ii), if the Auction Process is combined with a Buy-Now-Process, the point in time when Material has been purchased by use of the Buy-Now-Process according to Sec. 4.5. 4.4 In a Blind Auction Process, the bidding Buyers each make a binding offer to the Seller to conclude a Sale Agreement under the terms proposed in their respective bid. Up until Auction End, the Seller is free to decide which Buyer's bid they want to accept via the Platform (the Buyer that the Seller selects is the “Selected Buyer”). Vanilla Steel will then send the Seller a purchase order on behalf of the Selected Buyer; however, the validity of the Sale Agreement is subject to the condition precedent (aufschiebende Bedingung) that the Selected Buyer, in case advance delivery is agreed upon, passes the Seller’s credit check. 4.5 In a Buy-Now-Process, the Sale Agreement is concluded when the Buyer clicks the “Buy-Now”-Button and confirms their selection. Vanilla Steel will then send the Seller a purchase order on behalf of the respective Buyer; however, the validity of the Sale Agreement is subject to the condition precedent (aufschiebende Bedingung) that the Buyer, in case advance delivery is agreed upon, passes the Seller’s credit check. 4.6 Once the Sale Agreement has been concluded pursuant to Section 4.3, Section 4.4 or Section 4.5 (i.e. the condition precedent has been met), the Seller is obliged to send the respective Buyer an order confirmation. If the condition precedent pursuant to Section 4.3, Section 4.4 and Section 4.5 is not met (i.e. the respective Buyer does not pass the Seller’s credit check) the Seller is obliged to send Vanilla Steel via the Platform a rejection message. Vanilla Steel notifies the respective Buyer of such rejection. The rejection only becomes effective upon receipt by the respective Buyer. 4.7 The fulfillment of the contractual obligations under a Sale Agreement is the sole responsibility of the parties of the Sale Agreement. Vanilla Steel does not owe the fulfillment of any party's obligations under a Sale Agreement, nor does Vanilla Steel assume any warranty, guarantee or liability with regard to a Sale Agreement. 4.8 The Buyer is aware that Material is, unless otherwise agreed between the parties to the Sale Agreement, generally purchased on an “as-is” basis regarding the quality of the Material.
5. Availability, Free-of-Charge Platform
5.1 Vanilla Steel does not owe the User any specific availability of the Platform. Vanilla Steel is free to prevent the User's access to the Platform at any time or to take the Platform off the market. 5.2 Upon their registration, the User gains access to the Platform. 5.3 The use of the Platform for the Contract Purpose is free of charge. Vanilla Steel reserves the right to introduce a paid version of the Platform in the future; for the avoidance of doubt: a cost obligation for the User arises only if agreed upon with Vanilla Steel.
6. Warranty for Material and Legal Defects
6.1 Vanilla Steel warrants that the Platform is not encumbered with material or legal defects (hereinafter “Defects”) which more than insignificantly impair the suitability of the Platform for the Contract Purpose. Immaterial deviations shall not be considered as Defects. 6.2 The User shall be obliged to communicate any Defect to Vanilla Steel immediately upon appearance. Vanilla Steel shall remedy any duly notified Defects appearing with the Platform within a reasonable period of time.
7.1 The no-fault based liability pursuant to Section 536a(1) Alternative 1 German Civil Code for Defects with the Platform existing at the time of contracting shall be excluded. 7.2 Vanilla Steel warrants for damages if arising from (i) willful misconduct or gross negligence of Vanilla Steel or its legal representatives or agents (gesetzlicher Vertreter oder Erfüllungsgehilfe), (ii) negligent violation of such contractual duties the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner may regularly rely (material contractual duties, so-called Kardinalpflichten), by Vanilla Steel or its legal representatives or agents, however, limited to typical damages which are foreseeable at the time of the conclusion of the Contract or (iii) negligence of Vanilla Steel or its legal representatives or agents in a way causing injury to life, body or health, or (iv) any compulsory statutory liability of Vanilla Steel. 7.3 Any contributory negligence on the part of the User shall be taken into account. In particular, Vanilla Steel shall only be liable for the recovery of data if the User has taken all necessary and reasonable data backup precautions and ensured that the data can be recovered at reasonable cost from data material kept in machine-readable form. 7.4 This liability arrangement is conclusive (Section 4 above remains unaffected). It shall apply with respect to all damage compensation claims, irrespective of their legal ground, particularly also with respect to pre-contractual claims or collateral contractual claims. This liability arrangement shall also apply in favor of legal representatives and agents of Vanilla Steel if claims are asserted directly against them. 7.5 The User is obliged to immediately notify any damage pursuant to the above liability arrangements to Vanilla Steel in text form or to have such damage documented by Vanilla Steel, so that Vanilla Steel is informed as early as possible and can possibly still mitigate the damage together with the User.
8. Limitation of Claims
8.1 Claims of the User based on the breach of any duty not consisting of a Defect become time-barred, except in the event of intention or gross negligence, within one year from the beginning of the limitation period. This shall not apply if the damage in question incurred by the User consists in personal injury. Claims for personal injury become statute-barred within the statutory limitation period. 8.2 Any rescission or reduction shall be invalid if the claim to performance or subsequent performance of the User has become time-barred.
9. Rights of Use
9.1 The Platform is protected by copyright. Vanilla Steel is the sole holder of all intellectual and commercial property rights. Vanilla Steel represents that the general operation of the Platform is permitted by law, does not violate any statutes, regulations or directives and, in particular, does not infringe on any third party rights. 9.2 The User shall have the non-transferrable, non-exclusive right, temporally restricted to the term of the Contract, to use the Platform for the agreed Contract Purpose. The User shall not obtain any rights beyond this. In particular, the User is not entitled to have the Platform, or data from Vanilla Steel used by third parties, to make them accessible to third parties or to use them in any other way outside the Contract Purpose.
10. Term and Termination
10.1 The Contract for the use of the Platform has an indefinite term and can be properly terminated by both parties at any time without notice. 10.2 Vanilla Steel advises the User that they are responsible for the timely backup of their data before termination of the Contract. For technical reasons, Vanilla Steel cannot generally guarantee that the User will be able to access their data files after termination of the Contract.
11.1 The Parties undertake to maintain temporally unlimited confidentiality regarding all Confidential Information which they will obtain or have already obtained in the context of the contractual relation and not to disclose or otherwise use such information, unless it is necessary to achieve the Contract Purpose. “Confidential Information” are all information and documents of the respective other Party labeled as confidential or to be considered confidential based on the circumstances, particularly information concerning operating routines, business relations, further business or trade secrets, know-how, all work results as well as the business model of Vanilla Steel. 11.2 Exempt from this obligation shall be confidential information, a) that can be demonstrated to have already been known to the other Party upon initiation of the Contract or become known thereafter through third parties without any breach of a confidentiality agreement, of statutory provisions, or of administrative orders; b) that was known to the general public, unless this was due to a breach of this Contract; c) that had to be disclosed based on statutory obligations or on the order of a court or authority. If permissible and feasible, the Party obliged to disclosure shall inform the other Party in such event in advance, providing it with the opportunity to take action against the disclosure. 11.3 Any disclosure of confidential information to third parties shall require the express written approval of the respective other Party, unless other arrangements are expressly agreed. 11.4 The Parties shall ensure through suitable contractual arrangements that the employees and contractors working for them shall also, without temporal restriction, refrain from individual use or disclosure of confidential information. The Parties shall only disclose to employees or contractors confidential information to the extent that such employees or contractors need to know the information for the fulfilment of the Contract. 11.5 The User consents for Vanilla Steel to disclose the collaboration between Vanilla Steel and the User for marketing purposes, e.g. in the form of a press release, a mention on the homepage or on social media profiles. In this connection, the User allows Vanilla Steel to also use the company logo of the User. The User may revoke this consent under this Section 11.5 at any time with effect for the future by written notification to Vanilla Steel.
12. Data Protection, Data Use
12.1 Vanilla Steel treats the User's personal data in accordance with data protection standards and specifications. Vanilla Steel only acts as data processor within the meaning of Art. 28 GDPR vis-à-vis such Users that feed personal data (personenbezogene Daten) of their customers into the Platform. The User is obliged to notify Vanilla Steel beforehand of its intent to feed personal data of their customers into the Platform; in this case, the Parties are obliged to conclude a separate data processing agreement. 12.2 Within the applicable law (in particular, but not limited to, antitrust/competition law), Vanilla Steel is entitled to use data fed into the Platform by the Users in anonymised or aggregated form. Vanilla Steel shall be entitled to do so in particular in order to improve existing functions of the Platform or to provide new functions of the Platform.
13. Final Provisions
13.1 Should any provision of the Contact be or become invalid or unenforceable in whole or in part or should they not contain a necessary provision, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision or to fill the loophole, the legally admissible provision shall be deemed to have been agreed retroactively which corresponds as closely as possible to what the Parties would have wished or would have been agreed in spirit and purpose by the Parties if they had considered the invalidity or unenforceability of the provision in question or the loophole. 13.2 If these T&C refer to a written form or notification, the sending of an e-mail shall also suffice respectively. 13.3 The Contract and the other contract documents are subject to the law of the Federal Republic of Germany to the exclusion of the German conflict of laws principles and the UN Convention on Contracts for the International Sale of Goods. 13.4 For all disputes arising from or in connection with the Contract or the T&C, including their validity, the District Court of Berlin (Landgericht Berlin) shall have exclusive jurisdiction to the extent permitted by law.