General Terms and Conditions of YouSellWeSend GmbH
under inclusion of the GENERAL GERMAN TERMS AND CONDITIONS OF SHIPPING ADSp as well as the logistics GTCs
YouSellWeSend bases its General Terms and Conditions on the German Freight Forwarders’ General Terms and Conditions as well as the Logistics General Terms and Conditions. The General Forwarders’ Terms and Conditions are recommended for use by the Federation of German Industry, the Federation of German Wholesale and Foreign Trade, the Federal Association of Freight Forwarders and Logistics, the Association of German Chambers of Industry and Commerce, and the German Retail Federation.
In addition to these agreements, our transactions are based on the German Freight Forwarders’ Standard Terms and Conditions (ADSp), as well as the Logistics Terms and Conditions, as amended from time to time, and shall be deemed an integral part of our General Terms and Conditions.
2. goods receipt and goods issue; reporting
2.1 YouSellWeSend undertakes to send reports to the Customer upon receipt and dispatch of goods. The traffic of goods is to be communicated to the Client in monthly reports in summary form. This is done via the dashboard.
2.2 The Customer undertakes to reconcile the reports with the sales/outgoing goods known to it. If the Customer does not object to the figures of the reports within one week, the actual stocks recorded in the reports shall be deemed to be target stocks. The Customer shall then no longer be entitled to any claims against YouSellWeSend arising from stock shortages.
2.3 In all other respects the provisions concerning the liability of the forwarder/contractor of the ADSp and the logistics GTC shall apply. In particular, the regulations on qualified fault remain unaffected.
3. service accounting / remuneration
3.1 Unless otherwise agreed in individual cases, the claim to remuneration shall arise upon the provision of the respective service.
3.2 All prices are net, plus the applicable statutory VAT.
3.3 Invoicing on the part of YSWS takes place via the customer portal my.yousellwesend.de. The monthly invoice is provided in the portal. The client has seven days to check the invoice. After that, it will be debited from the client’s account by direct debit, unless otherwise agreed in the special services.
4. customs clearance; costs
4.1 In addition to the costs of customs clearance, the Client shall bear all fines and import duties incurred in connection with the order and for which YouSellWeSend is not responsible.
4.2 In all other respects the provisions of the ADSp shall apply.
5. consequences of termination of the contract
5.1 The parties shall support each other to the best of their ability in the event of termination of this Agreement and shall refrain from making damaging statements of any kind in public, such as on social networks.
5.2 In the context of the termination of the contract, the costs of an outsourcing shall be invoiced to the Client separately and against advance payment according to expenditure (commercial expenditure and commercial expenditure) in accordance with the service overview. The Client shall ensure that proof of payment of the advance payment invoice is received by the Contractor no later than two working days before the outsourcing. If this is not available, the goods will not be removed from storage. For the continuation of storage, storage fees will be charged in accordance with the contract, as well as cancellation fees for the scheduled removal from storage in the amount of € 25.00 per pallet, per day.
5.3 The individual prices and conditions are no longer applicable from the day of the end of the contract. Post-contractual services of YSWS will be charged on an hourly basis. Hourly rates apply according to the service overview, unless otherwise agreed upon after the end of the contract.
5.4 In the event that the client leaves stored contractual goods in the warehouse of YSWS beyond the time of termination of the contract, the liability provisions of this contract shall continue to apply accordingly until the time of removal from storage. Storage and administration activities as well as storage fees will be charged according to time and effort and according to the agreed hourly rates.
5.5 Upon request of the client, YSWS shall carry out a final inventory upon termination of the contract. The costs of the aforementioned final inventory will be invoiced according to expenditure and according to the agreed hourly rates.
5.6 In case of removal from storage, the goods of the Customer shall be assembled on a pallet. A pallet accompanying bill is attached to each pallet. This is given the number of the loading carrier. Upon removal from storage, the Customer shall receive a file with the load carriers and the corresponding stock lists. The inventories correspond to those of the last status from the inventory report in the myYousellwesend portal.
6. insurance of the goods
6.1 In principle, the goods are to be insured by the client and registered as an external warehouse with the client’s insurer. Only in exceptional cases YouSellWeSend will arrange for the insurance of the goods (e.g. warehouse insurance) with an insurer of its choice if the Principal explicitly instructs it to do so before handing over the goods.
6.2 In all other respects the provisions of the ADSp apply.
7. liability insurance and liability of YouSellWeSend
7.1 YouSellWeSend is not obliged to take out liability insurance with an insurer at standard market conditions, as YouSellWeSend is not a freight forwarder in the sense of the ADSp and exclusively arranges transports.
7.2 The forwarding agencies mediated by YouSellWeSend, which are required for the transport of the goods, are subject to the liability insurances of the ADSp.
7.3 Upon request of the client YouSellWeSend has to prove this liability insurance coverage by a confirmation of the assigned forwarding agent. YSWS is liable for culpably caused damage to goods and loss of goods according to the regulations of the ADSp (latest version).
7.4 For the provision of distribution services YSWS is liable as follows:
- As far as the distribution service is carried out via a contract of YSWS with the respective service provider, as soon as the goods have been handed over to the transport company – towards the client for damages according to the transport conditions (current – version) of the respective transport company.
- Normally, the distribution service is provided via a contract between the client and the distributor (parcel service provider, transport company). Liability for transport damages or losses by YSWS is excluded in this case.
- The shipments are considered to be handed over to the CEP service provider upon creation of the shipping label by YSWS.
7.5 The liability of both parties for indirect damages/consequential damages (e.g. business interruption, loss of profit) is excluded.
7.6 The limitations of liability shall also apply to claims directed against the vicarious agents or assistants of the parties in their favor.
7.7 The exemptions from and limitations of liability in this Agreement shall not apply in the event of an intentional or grossly negligent breach of duty by one of the Parties or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of one of the Parties or in the event of injury to life, body or health.
7.8 Damages shall be reported after knowledge of the damage that has occurred, but no later than seven working days after delivery or the occurrence of the damage.
7.9 Should YSWS be held liable by third parties, including affected end customers and governmental institutions, who claim alleged infringement of rights due to the use of the data provided by the client for the agreed forms of end customer approach (in particular, but not exclusively due to alleged infringements of competition law, in particular §7 para. 2 UWG, copyright and/or data protection regulations or because of the forwarding of the data of the end customers to YSWS), the client shall immediately indemnify YSWS from all claims of third parties to be derived from a violation of the law caused by the client (including imposed warning fees and/or fines), provide YSWS with the necessary support in the legal defense and indemnify YSWS from the reasonable costs of a judicial and/or extrajudicial legal defense. The same applies to the alleged violation of regulations of the Product Liability Act or the Product Safety Act.
8. liability limits
8.1 The liability of both parties is limited to € 20,000.00 per damage event, maximum € 50,000.00 per contract year for all damages other than damage/loss of goods. The limitation shall apply to contractual and non-contractual claims.
8.2 In addition it is agreed that paragraph 27 ADSp neither extends the liability of YouSellWeSend nor the attribution of the fault of people or other third parties in deviation of legal regulations such as Art. 25 MÜ, Art. 36 CIM, Art. 21 CMNI, § 660 HGB in favor of the Principal.
9. impediments to performance due to force majeure
9.1. The Parties shall not be liable to each other for breaches of obligations under this Agreement if such breach of obligations is due to a cause which is unforeseeable, unavoidable, beyond the control and influence of the affected Party and for which the affected Party bears no responsibility, including strikes, lockouts, acts of God, war, riots, civil commotion, malicious damage (other than damage caused by personnel), change in any law or compliance with any governmental order, regulation, rule or instruction (except where the affected party should reasonably have been able to comply with such change in law or governmental order, regulation, rule or instruction), accident, fire, flood or storm (“Force Majeure”).
9.2 Performance disruptions on the part of a Party’s upstream supplier or service provider shall be deemed to be force majeure if the upstream supplier or service provider, for its part, is prevented from performing the services incumbent upon it due to an event of force majeure.
9.3 The affected party shall inform the other party in writing immediately after the occurrence of the event of force majeure about the nature of the event, its effects on the fulfillment of the performance obligations under this agreement, as well as the expected duration of the event.
9.4 The affected party shall inform the other party immediately after the end of the event of force majeure and shall immediately resume the performance of its obligations under this Agreement.
9.5 Each Party shall have the right to terminate the Agreement extraordinarily in the event that the Force Majeure event lasts for more than two months without interruption.
10. Set-off / right of retention
10.1 Offsetting and retention of due invoice amounts shall be 10.1. The set-off and retention of due invoice amounts is only permitted with undisputed or legally established claims or claims for damages which are in a close synallagmatic relationship to the claim for defect-free performance of the contract.
10.2 YSWS has a lien and right of retention on the goods in its power of disposal due to all due claims arising from this contract.
11.1 YSWS may, upon request and at the expense of the client, carry out a full inventory as a cut-off date inventory. Such a physical inventory requires a lead time of six weeks. The contracting parties agree that a remuneration according to expenditure (commercial expenditure) will be made according to the agreed hourly rates. The transmission of the inventory result (difference and inventory list) shall be effected by e-mail.
11.2 YSWS is obliged to compensate the client for possible inventory differences (balance of plus and minus differences to which no concrete damage event can be assigned) according to ADSp, however, up to a maximum of € 150.00 per item and € 25,000.00 per contract year. In such a case, the proven purchase price shall be documented in writing by the Customer and, if necessary, the current market value shall be estimated by an independent expert.
11.3 Inventory differences shall only be reimbursed if the articles were counted individually upon receipt of the goods. This is to be ordered separately by the client at the time of goods receipt.
11.4 Upon request, the client is entitled to accompany inventory checks of the goods in the warehouses of YSWS with its own personnel within the usual business hours of YSWS after prior notice and reasonable lead time. In doing so, the client shall comply with the visitor regulations of YSWS and observe the work safety regulations of YSWS.
12.1 Both contracting parties are obligated to keep the contents of the contract and the data, business and trade secrets of the respective other party and its affiliated companies confidential and not to disclose them to third parties. A disclosure to subcontractors of YSWS is permitted as far as this is necessary for the execution of the contract and the subcontractors are correspondingly obliged to confidentiality. Affiliated companies in the sense of §§ 15 ff. AktG (German Stock Corporation Act) are not third parties, provided that the acting persons are directly involved in the performance of the contract or a disclosure is required in the context of internal audits. This obligation shall apply beyond the end of the contract for a period of five years. Excluded from this are disclosures to professional groups that are obligated to maintain confidentiality, such as lawyers, tax consultants, judges, public prosecutors and police law enforcement officers insofar as in an official or professional function.
12.2 All rights to the resources and documentation provided by the Client shall remain exclusively with the Client at all times.
12.3 The obligation to maintain confidentiality shall not apply to information which was already publicly known at the time of the conclusion of the contract or which subsequently becomes publicly known without a breach of these confidentiality obligations, or which is otherwise accessible to anyone.
12.4 After termination of the cooperation, all confidential information made available to the other Party and any copies made thereof shall be returned to the respective other Party or destroyed after prior written agreement. Destruction shall be confirmed in writing to the respective other Party.
13. Data processing
13.1 The Parties shall observe and comply with the relevant data protection regulations, in particular the Telecommunications Telemedia Data Protection Act (TTDSG) and the General Data Protection Regulation (DSGVO) as amended from time to time.
13.2 Insofar as YSWS processes personal data on behalf of third parties in the performance of this fulfillment contract, this shall take place in accordance with the agreement on commissioned processing attached to this contract.
13.3 YSWS shall back up the collected customer and order data at regular intervals and archive them according to the legal requirements.
14. Press release / Self-promotion
The client grants YSWS the right to use the client as a reference, as well as the cooperation with the client and the services provided for the client, for self-promotion and in the public relations of YSWS (e.g. on the website, in advertising materials, publications and press releases). For this purpose, the client grants YSWS a non-exclusive, revocable, non-transferable and non-sublicensable right to use the trademarks and the company name.
15. Contract adjustments
15.1 YSWS may amend the provisions of the Contract and its Annexes with effect for the future. In such cases, YSWS shall inform the client in text form in due time, at least with a notice period of one month before the change takes effect. If the client does not object to the changes within this period, the changes shall be deemed approved. YSWS will inform the client in the notification about the right of objection and the importance of the objection period. In case of an objection, YSWS may exercise an extraordinary right of termination with effect from the effective date of the respective changes.
15.2 In case of the entry into force of legal provisions or price increases of subcontractors, which have a direct effect on the costs of YSWS (e.g. introduction/increase of minimum wages, energy costs, carrier fees etc.), YSWS is additionally entitled to charge these costs to the client with the entry into force of the respective provision. The cost increase has to be proven accordingly by YSWS.
15.3 YSWS is entitled to hand over the contract to the respective logistics partner for contract takeover. If the logistics partner takes over the service contract, the customer is obliged to agree to the contract takeover.
16. Individual agreements
The contracting parties are at liberty to make agreements deviating from these GTC and the included components.
17. Place of jurisdiction, applicable law
17.1 The place of jurisdiction for all legal disputes arising from or in connection with the contractual relationship for all parties involved, insofar as they are merchants, shall be the registered office of 4e management GmbH as the parent company of YouSellWeSend.
17.2 The legal relationship between the Freight Forwarder and the Customer or its legal successors shall be governed by German law.