General Terms and Conditions for the use of the Platform FOURSOURCE
(Version 5.1, updated 19 February 2019)
- These General Terms and Conditions (“GTC”) govern FOURSOURCE’s business relationships with customers who sign up as Members on the Platform available under www.foursource.com.
- For the purpose of these GTC, the following terms shall have the meaning assigned to them below:
- 2.1. “Account” means Company Account or Individual Account, if applicable, including Subaccounts created under it, including all information visible on the Profile belonging to such Account.
- 2.2. “Buyers” are Members who registered as a buyer (i.e. chose an Account which enables them to buy textiles and garments) on the Platform.
- 2.3. “Company Account” shall mean a company Member’s technical and legal access to the Platform.
- 2.4. “FOURSOURCE” shall mean FOURSOURCE Group GmbH, Torstraße 149, 10119 Berlin.
- 2.5. “Individual Buyer” shall mean a natural person Buyer.
- 2.6. “Manufacturers” are Members who registered as a manufacturer (i.e. chose an Account which enables them to offer textiles and garments on the Platform).
- 2.7. “Subaccount” shall mean a sub-account under a Company Account for single natural persons, which provides access to the Platform.
- 2.8. “Member(s)” shall mean any legal or natural person who has concluded an agreement regarding the use of the Platform with FOURSOURCE
- 2.9. “Platform” shall mean the online platform as provided by FOURSOURCE after a log-in under the domain www.foursource.com.
- 2.10. “Profile” shall mean the information connected to an Account and visible to other Members or non-Members.
- 2.11. “Principal” shall mean any natural person or legal entity on whose behalf or for whose benefit Buyer, partly or completely, uses the Platform (e.g. if the Buyer is an employee of such entity or works for such entity as a freelancer, e.g. as a commercial agent or consultant).
- 2.12. “RFQ(s)” shall mean requests for quotations for garments or other textile products.
- 2.13. “User” shall mean someone who uses Website and has not yet registered as a Member.
- 2.14. “Website” shall mean www.foursource.com, including all content and sub-domains thereunder.
3. General ProvisionS
- 3.1. Under its Platform, FOURSOURCE provides online tools and matching algorithms for promotion, getting in contact, business initiation and qualification, exchanging information, business management and marketing, as well as general market intelligence. Upon entering into a subscription agreement for the use of the Platform with FOURSOURCE, Members can connect over the Platform. FOURSOURCE will constantly develop and improve the services on the Platform to allow Manufacturers and Buyers to display their products on under their Profiles and to offer the manufacturing of products to Buyers and to allow brands, retailers and other buyers to display their demands on their Profiles and to request proposals for manufacturing.
- 3.2. The following terms and conditions apply between FOURSOURCE and Members relating to all services provided by FOURSOURCE to Members on the Platform. By subscribing for the Platform, the Member accepts these terms and conditions for the use. In these GTC, words in the singular include the plural and vice versa.
- 3.3. Terms and conditions deviating from these terms and conditions shall only apply if these are confirmed by FOURSOURCE in writing.
4. Eligibility for Membership
- 4.1. The Platform is generally only available to Users who act in execution of their commercial or independent business activity (according to § 14 German Civil Code). Notwithstanding the previous sentence, Individual Buyers, who are employees and use the Platform as a tool to perform their duties under their employment agreements, may register on the Platform, even if they are considered a consumer (within the meaning of § 13 German Civil Code) under statutory law.
- 4.2. Manufacturers may only subscribe if they are verified garment manufacturers or manufacturing sub-contractors of such manufacturers, agents who act for such manufacturers may not subscribe.
5. Registration Process Conclusion of the Subscription Agreement
- 5.1. FOURSOURCE offers different subscription models for Buyers and Manufacturers, these may be without subscription fee, with a predefined subscription fee or with an individually determined subscription fee. Details of FOURSOURCE’s pricing policy are available under https://www.foursource.com/pricing/.
- 5.2. For subscription models without a subscription fee or with a predefined subscription fee, the User makes a binding offer to enter into a subscription agreement by filling out the online registration form available on the Platform (as the case may be, under the subscription fee indicated on the registration form). FOURSOURCE may accept such offer via email.
- 5.3. For fee-based subscription models whose amount is individually determined, the User may make a request to FOURSOURCE. FOURSOURCE may then make an offer to the User to enter into a subscription agreement for the Platform with a specific monthly or yearly subscription fee. The Member may accept such offer within 14 days by e-mail or by fax or by completing the subscription process within the platform to conclude the subscription agreement.
- 5.4. All information indicated in the registration form, in particular contact information and information on whether the Member will use the Platform as Manufacturer or Buyer, has to be complete and correct. The Member has to inform FOURSOURCE immediately of any changes with respect to the information provided, in particular in terms of e-mail address and, in case of a fee-based subscription, billing and payment information.
- 5.5. In case a Member subscribed to a fee-based subscription model, and unless otherwise agreed, FOURSOURCE may invoice the monthly/annual fees plus any VAT if applicable in each case in advance. The Member is responsible for and shall ensure the payment of all local sales taxes applicable at the Member’s place of business or any other indirect taxes levied upon the payments made to FOURSOURCE under the subscription agreement, except for VAT payable in Germany. The Member shall hold FOURSOURCE harmless against any such claims for taxes by local authorities at the Member’s place of business. FOURSOURCE may assign its claims for subscription fees against a Member to its country-specific subsidiaries and/or collect such subscription fees via its country-specific subsidiaries.
- 5.6. FOURSOURCE has the right to suspend the Member’s access to the Platform if there is sufficient reason to assume that the Member is in breach of these terms and conditions.
6. Accounts and confidentiality of log-in-data
- 6.1. For some subscription models, FOURSOURCE provides Members with the possibility to add additional Subaccounts under their Company Accounts, in order to enable the use of FOURSOURCE by its staff. The number of such Subaccounts is limited depending on the subscription type, as detailed under https://www.foursource.com/pricing/.
- 6.2. All log-ins are individualised and may only be used by the respective authorised Member. The Member is obliged to keep the log-in data strictly confidential and to protect them from unauthorised access by third parties. The Member is also responsible for the confidentiality of Subaccounts (e.g. its employees’ log-ins) and shall instruct its personnel accordingly.
- 6.3. The Member shall inform FOURSOURCE without delay of any suspected unauthorised use of the log-in data. FOURSOURCE reserves the right to change a Member’s or a Subaccount’s log-in data and/or to deactivate an Account and/or Subaccount, if there are indications for an unauthorised access by third parties.
7. Use and FuNCTIONS of the Platform
- 7.1. The Member may use the following functions of the Platform, if and to the extent they are part of the Member’s subscription model (as available under https://www.foursource.com/pricing/).
- 7.2. The Platform’s functionalities include a chat function, matching algorithms and the possibility to connect with other Members by using a follow-function. The Members may add information to their Profiles on the Platform. Manufacturers may share their products in the virtual show room on the Platform and Buyers have the possibility to specify the requirements of products they intend to buy.
- 7.3. Members are aware that the information provided on the Platform, e.g. information added to their Profiles and the virtual showroom are accessible for other Members of the Platform. By adding such information to the Platform, Member makes available such information to other Members of the Platform. Additionally, certain information provided by Manufacturers (such as their company name and scope of business) can also be accessed publicly by non-Members. FOURSOURCE does not show the full name of natural persons outside of the Platform.
- 7.4. Via the Platform, Members who are buyers can list or invite manufacturers not yet signed up on the Platform.
- 7.5. Additionally, Buyers can post specific RFQs on the Platform. Buyer hereby agrees and is aware that the reach of its RFQs extends beyond Members: RFQs are not only shown to Members of the Platform, but may also be forwarded to manufacturers who are not yet Members on the Platform (connected with an offer to sign up on the Platform). Additionally, parts of the RFQs may also be accessed publicly by non-Members. In case of such display of RFQs to non-Members, FOURSOURCE does not show the full name of natural persons outside of the Platform.
- 7.6. Buyers can use the platform to search for Manufacturers, filtered by different criteria. These search criteria are shown to Members of the Platform in connection with such Buyer’s Profile. Additionally, a Buyer’s search criteria are shown to manufacturers not yet listed on the Platform in connection with an offer to sign up on the Platform. In case of a display of search-criteria to non-Members, FOURSOURCE does not show the full name of natural persons.
- 7.7. The Platform provides a knowledge repository on which Buyers can bookmark Manufacturers and vice versa and manage information, such as visit reports, photos, notes, profiles, file uploads, in their Profiles.
- 7.8. Each Member is free to enter into agreements with other Members under its own conditions using the functionalities of the Platform. Each Member is solely responsible for any agreements entered into with other Members of the Platform. FOURSOURCE shall not become a party to any agreements between Members of the Platform and shall not be bound by agreements between Members. FOURSOURCE is not responsible for the fulfilment of any agreements between Members of the Platform.
- 7.9. It is the sole responsibility of Members to gather information on other Members they enter into agreements with, e.g. relating to creditworthiness and signing authority. FOURSOURCE is not responsible for the accuracy or completeness of any information available over the Platform. In particular, FOURSOURCE is not responsible for any results leading to the suggestion of business partners by use of the search functionalities, recommendations or the matching algorithms.
- 7.10. FOURSOURCE reserves the right to change, amend or extend the content or structure of the Platform as well as the corresponding user interfaces, provided that the fulfilment of the purpose of the contract concluded with the Member is not or not considerably affected as a result.
8. Member’s GENERAL Obligations and License
- 8.1. The Member has to ensure that all information on its Account or shared via its Profile is correct and not misleading and does not violate the rights of third parties, in particular the rights of third parties in trademarks, design rights or rights in secret know how. Member shall ensure that its Account’s entries and content uploaded on its Profile (such as company’s and natural person’s names, contact information, products available) are complete, correct and up to date.
- 8.2. By uploading content to the Member’s Profile or sharing content on the Platform, the Member grants FOURSOURCE a non-exclusive, perpetual, worldwide right to use the content in particular to reproduce the content (according to § 16 UrhG – German Copyright Act) and make the content available to the public (according to § 19 a UrhG – German Copyright Act). The Member grants FOURSOURCE the right to use such content. In addition, the Member grants FOURSOURCE, for the term of this agreement, a non-exclusive, worldwide right to use the Member’s company name and logo, and the brand name and brand logos of all of the Member’s and its subsidiaries’ brands which the Members has uploaded or shared on the Platform, as a reference for FOURSOURCE’s services, in newsletters and for advertisement.
- 8.3. The Member shall instruct all its staff who use Member’s Company Account, or, if applicable, all staff who have created Subaccounts under a Company Account or have access to such log-in information, to comply with these terms and conditions.
- 8.4. The Member shall be obliged
- a) to implement and maintain regular data backups of information which is of commercial and/or legal importance for the Member during the entire term of the contract;
- b) to ensure the careful handling of log-in information and ensure that no unauthorized person gains access to the log-in information;
- c) to cooperate with FOURSOURCE, to the extent necessary to investigate and prevent unauthorized access to the Platform;
- d) to use the Platform exclusively for the purpose to enable a connection between Members for commercial purposes.
- 8.5. Member warrants that it complies with the FOURSOURCE Code of Conduct under https://www.foursource.com/code-of-conduct/ in the latest relevant version.
- 8.6. The Member undertakes to refrain from any activities which endanger the performance of the Platform or disturb other Members. The Member refrains from using crawlers to gather data from the Platform and accessing data which the Member is not entitled to use or to share the data provided on the Platform or by other Members with third parties who are not a Member of the Platform for commercial purposes.
- 8.7. Members shall ensure that the information and data published or uploaded by it on the Platform does not contain any malware such as trojans, viruses and similar software. The Member is obliged to compensate FOURSOURCE for any damages and to hold FOURSOURCE harmless from any third party claims resulting from the non-compliance with these obligations.
9. Additional obligations regarding Subaccounts
- 9.1. If a Member’s subscription enables creating additional Subaccounts, it is the Member’s sole responsibility to ensure that the use of Subaccounts by any of its natural person agents (such as employees, managing directors, freelancers) complies with applicable law.
- 9.2. In particular, Member warrants that it is entitled towards such persons to
- a)instruct or allow them to use the Platform, in particular, under employment law;
- b) process or let them process their personal data upon registration process and during the use of the Platform, in particular, under data protection and telecommunications law.
10. Additional Obligations for individual Buyers who act for other entities
- 10.1. If an Individual Buyer acts not for him/herself, but for a Principal, the following additional obligations apply: it is the Individual Buyer’s sole responsibility to ensure that he or she is legally allowed to use the Platform vis-à-vis such Principal and to comply with any contractual and statutory obligations towards such Principal. In case this is not possible, the Individual Buyer may ask his or her Principal to conclude a Company subscription under FOURSOURCE’s Company GTC.
- 10.2. In particular, an Individual Buyer acting for a Principle must ensure that
- a) he or she does not upload any content of a Principal visible to other Members of the Platform, if such content is subject to confidentiality obligations;
- b) he or she has the legal power to grant the licenses under Section 8.2 to FOURSOURCE for any content on the Platform concerning the Principal;
- c) he or she does not upload any content of a Principal if this is prohibited under intellectual or industrial property rights law;
- d) in case he or she enters into agreements with other Members on the Platform on behalf of a Principal, he or she has the legal power to do so, and, in case he or she works for several Principals, he or she provides transparent information vis-à-vis other Members of the Platform on which Principal’s behalf he or she acts.
- 10.3. In case the legal relationship of an Individual Buyer to a Principal ends, Buyer is solely responsible to delete any information on the Platform which he or she was only entitled to upload or publish under such relationship, or to ensure vis-à-vis his or her Principal that he or she may continue using such information, in particular if such information constitutes protected know-how of the Principal.
- 10.4. In case an Individual Buyer’s Principal changes (e.g. if such Buyer is an employee who changes employers), Buyer updates his or her Profile accordingly.
- 10.5. If necessary in order to fulfil the obligations under this Section 8 and, if applicable, 9, or to separate information concerning different Principals, Individual Buyers may maintain several Accounts on the Platform.
- 10.6. In case Individual Buyer uses Platform for the benefit of a Principal, such Individual Buyer’s general obligations under Sections 8 and, if applicable, 9, apply to any information and content shared on its Account on behalf of Principal accordingly. With regard to Section 8.4, the Individual Buyer warrants that his or her Principal complies with FOURSOURCE’s Code of Conduct.
- 10.7. Unless an Individual Buyer informs FOURSOURCE otherwise, FOURSOURCE assumes that all information on his or her Profile is the Individual Buyer’s own information or has been authorized by its Principal. FOURSOURCE may update such information in accordance with Section 11.
11. Subaccount Updates
- 11.1. Member hereby agrees that FOURSOURCE may, on behalf of Member, update information on Member’s Profile, if Member directly sends such information (e.g. company presentations, lists of equipment used, scans of regulatory certificates) to FOURSOURCE which complements, obviously contradicts, or is more up-to-date than, current information on Member’s Profile (e.g. if Member supplied a new version of a manufacturing certificate or informs FOURSOURCE of additional equipment bought).
- 11.2. FOURSOURCE may access public registers (such as the commercial register, customs information, information provided by non-governmental organisations or databases concerning compliance certificates), or request information from third party providers (such as credit scoring agencies). FOURSOURCE may use such supplementary information to (i) complement or update a Member’s Profile, (ii) link such information to a Member’s Profile or (iii) validate the entries on a Member’s Profile visibly for other Members (for example, by adding a checkmark to such verified information).
- 11.3. FOURSOURCE may ask Members to correct, or directly correct, obviously wrongly information on a Member’s Profile (such as wrongly tagged photos in a Member’s virtual showroom).
- 11.4. FOURSOURCE is not obliged to provide such updates of Profiles. Member may inform FOURSOURCE if such information is incorrect and FOURSOURCE will reverse the changes in due time.
12. Liability of Platform Operator
- 12.1. FOURSOURCE shall be fully liable for wilful intent and gross negligence and any harm to body, life and health caused by intent or negligence by FOURSOURCE, its representatives or other assistants. For slight negligence FOURSOURCE shall be liable only in case of infringement of essential contractual obligations. The liability in case of infringement of such essential contractual obligation shall be limited to the damages typical for the contract which FOURSOURCE should have expected when entering into the agreement due to the circumstances known to FOURSOURCE at that time.
- 12.2. The limitations on liability set out above shall apply accordingly to FOURSOURCE’s employees and other assistants or agents.
- 12.3. To the extent the Platform offers options to redirect to databases, websites, services etc. of third parties, for example through links or hyperlinks, FOURSOURCE shall neither be liable for the accessibility, existence or security of such databases or services nor for its contents. In particular, FOURSOURCE shall not be liable for the legality, accuracy and completeness of such third party services.
- 12.4. To the extent the Platform incorporates information from third party providers (for example via an API call), FOURSOURCE shall neither be liable for the accessibility, existence or security of such databases or services, nor for their contents.
13. Third Party Contents, Data Security, Confidentiality
- 13.1. The Members must not publish content which infringes statutory provisions, official orders or common decency. In addition, Members must not publish content which infringes rights, in particular copyrights and trademark rights, of third parties.
- 13.2. Except as set out in Section 11, FOURSOURCE does not review content provided by the Members to the Platform and declines any responsibility for such content.
- 13.3. FOURSOURCE reserves the right to remove any contents if such content violates the applicable statutory law or if FOURSOURCE has reasons to believe that the content violates the rights of other Members or third parties.
- 13.4. The Member holds FOURSOURCE harmless against all claims third parties may have due to the infringement of their rights or statutory violations.
- 13.5. FOURSOURCE´s servers are secured by industry standard technology, in particular firewalls and/or encryption; however, the Members are aware that there is a risk for all Members of the Platform that data transmitted may be intercepted. This also applies to the integrated messaging system and all other transfers of data. Thus, confidentiality of the data transmitted while using the Platform cannot be guaranteed.
- 13.6. FOURSOURCE implements economically reasonable measures to reduce downtimes of the Platform to a minimum. However, as any technical system, there can be downtimes of the Platform due to software bugs, maintenance, upgrades etc. The Member is responsible for the implementation of measures to ensure that temporary downtime does not affect the Member’s business operations.
- 13.7. FOURSOURCE keeps all information provided by its Members and which is designated as confidential information strictly confidential and only uses such information in accordance with these terms and conditions. This does not apply to information that
- a) is lawfully known by FOURSOURCE at the time of receipt and not through a prior disclosure by FOURSOURCE,
- b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this agreement by FOURSOURCE, or
- c) is substantially disclosed to FOURSOURCE by a third party who is not under an obligation to maintain the confidentiality of the information.
- FOURSOURCE uses high encryption standards to ensure confidentiality of critical data provided to FOURSOURCE.
- FOURSOURCE has the right to disclose information in case and to the extent FOURSOURCE is legally obliged to.
- 13.8. The content provided by Members on the Platform is accessible to other Members of the Platform. FOURSOURCE does not make such content accessible to third parties which are not Members of the Platform except (i) in order to provide the Platform’s information and invitation functionalities as provided for under Section 7, or (ii) in case FOURSOURCE assigns essentially all parts of the Platform to a third party or (iii) in case FOURSOURCE uses such content for references or advertisements as set out in Section 8.2. However, Members are aware that FOURSOURCE cannot prevent other Members of the Platform from sharing such content with third parties.
- 14.1. The initial term starts with the acceptance of the subscription agreement according to Section 5. The term of the subscription is unlimited, unless terminated as detailed below.
- 14.2. In case of a subscription model without fees, a Member can terminate its subscription at any time without cause by deleting his or her account or sending FOURSOURCE an email. Due to technical reasons, it may take up to thirty (30) days until Member’s profile is fully deleted from the Platform and not visible to other Members anymore after such termination.
- 14.3. In case of a subscription model based on fees, Member can terminate its subscription without cause to the end of each month with a one month’s period of notice.
- 14.4. Each party shall have the right to terminate this agreement for good cause without a notice period. A good cause for FOURSOURCE is in particular:
- a) the breach of provisions of these terms and conditions or the Code of Conduct by a Member (or, in case of Individual Buyer acting for a Principal, a false warrant regarding the Principal’s fulfilment of the Code of Conduct), which are not remedied within a deadline set;
- b) criminal activities by a Member or the attempt of such criminal activities, for example fraud;
- c) if the Member is in default of payment as regards the payment to be made pursuant to Section 5 for more than six weeks;
- d) long-term operational disruptions as a result of force majeure beyond the control of FOURSOURCE, such as natural disasters or fire.
- 14.5. The notice of termination must be made in writing, or, if available, by using the termination procedure in the Member’s account area on the Platform. Transmission by e-mail or fax is sufficient.
- 14.6. The right to a withdrawal with the consequence that mutually received benefits must be returned (Rücktritt) is exclded.
- 14.7. In case the Member payed subscription fees in advance, the statutory provisions about refunds shall apply.
15. Amendment of the Terms and Conditions for Use
- 15.1. FOURSOURCE shall inform the Member of amendments of these terms and conditions in writing, by fax, by e-mail or by a message displayed to Members when logging in to the Platform. If the Member does not object to such amendments within a period of two weeks after receipt of the notice, the amendments shall be deemed agreed. FOURSOURCE shall inform the Members separately of their right of objection and the legal consequences of silence in case of amendment of the terms and conditions.
- 15.2. If the Member objects to the amendment of the terms and conditions FOURSOURCE has the right to terminate the subscription agreement with two weeks’ notice.
16. Law and Venue
- 16.1. If a Member concludes and performs the obligations under its subscription in execution of their commercial or independent business activity (according to § 14 German Civil Code), the following shall apply:
- a) All disputes arising out of or in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law.
- b) The arbitral tribunal shall be comprised of a sole arbitrator.
- c) The seat of the arbitration is Berlin, Germany.
- d) The language of the arbitration shall be German, if the Buyer speaks German, and otherwise English.
- e) The rules of law applicable to the merits shall be German.
- f) The Parties agree that the arbitration shall be conducted as Expedited Proceedings and that Annex 4 of the DIS Arbitration Rules shall apply.
- 16.2. Else, if a Member is considered a consumer (within the meaning of § 13 German Civil Code), the following shall apply:
- a) The place of jurisdiction shall be as determined by statutory law.
- b) All disputes, controversies or claims arising in connection with or relating to this agreement or its validity or a breach hereof shall be governed by the Law of the Federal Republic of Germany excluding its conflict of laws rules and the UN Convention on the International Sale of Goods.
- c) If you are using the services provided under this website as a registered user, are a consumer within the meaning of § 13 German Civil Code and reside within the European Union, the following applies: The European Commission provides a platform for out-of-court online dispute resolution (OS platform), which can be accessed at www.ec.europa.eu/consumers/odr. Consumers can find FOURSOURCE’s e-mail address in our imprint (www.ec.europa.eu/consumers/odr). FOURSOURCE is neither obliged nor willing to participate in the dispute resolution procedure.
- 17.1. Except with the prior written consent of FOURSOURCE, a Member may not transfer any rights and obligations under this agreement to third parties. Member will consent to any future transfer of this agreement to a company affiliated with FOURSOURCE.
- 17.2. If a Member acts in execution of their commercial or independent business activity (according to § 14 German Civil Code), it may invoke set-off or exercise a pledge or right to retain only if the claims made have been acknowledged by FOURSOURCE or have been adjudicated in court with legal effect.