T&C of XSTAFF AG

General Terms and Conditions (T&C) of XSTAFF GmbH

Preamble

For the benefit of its cooperation partners, XSTAFF continuously negotiates and realises framework agreements with its network partners. For this purpose XSTAFF operates a purchasing cooperation and, in doing so, bundles the business activities and distribution measures of its cooperation partners. XSTAFF aims at negotiating the best possible conditions in the market regarding sea freight FE – NCMP in order to sustainably lower the costs for its cooperation partners.

XSTAFF provides organisational and consulting services with regard to, among other things, the coordination, preparation and optimisation of the contracting of transportation allotments by the network partners to the individual cooperation partners.

1. Scope

1.1 These Terms and Conditions (T&C) shall apply to all business relationships and legal transactions between XSTAFF GmbH (hereinafter: XSTAFF) and its network partners pursuant to no. 2.1 below and its value-added service providers pursuant to no. 2.4 below (hereinafter network partners, value-added service providers and booking agents shall jointly also be called “contractual partners”). These Terms and Conditions shall not apply to agreements or legal transactions with consumers pursuant to § 13 BGB (art. 13 German Civil Code).

1.2 Insofar as the contractual partner also uses General Terms and Conditions, their validity shall expressly be contradicted by us. A contractual partner’s T&C shall not even become part of an agreement if the contractual partner refers to them in its offers and order confirmations. Future cooperation between XSTAFF and a contractual partner shall be governed by XSTAFF’s T&C even if they are not explicitly referred to in the individual order. The fact that these Terms and Conditions are binding is a prerequisite for any agreement with XSTAFF to come into effect.

2. Definition of terms

2.1 A network partner is the contractual party which, as a member of the XSTAFF purchasing network, is entitled to contract a value-added service provider to perform services along the value-added chain.

2.2 A booking agent is a freight forwarder abroad selected by XSTAFF which, for the network partner and by its order, arranges for the organisation and handling of international sea and airfreight shipments from the port / airport of departure to the port / airport of destination.

2.3. Other members of XSTAFF’s network are local incoming forwarders which, on behalf of the network partner and by its direct order, organises the release and invoicing of international sea and airfreight shipments at the port / airport of destination.

2.4 A value-added service provider is the contractual party which is connected with XSTAFF through a framework agreement and performs services of any kind for a network partner. These service providers include, among others, insurance brokers, consultants, CEP service providers, warehouse keepers, etc. Shipping companies, cargo airlines, railway companies and incoming forwarders are not deemed to be value-added service providers. These companies are selected and contracted by the booking agent with due care, taking into account the interests of the network partners.

3. Conclusion of contract

Individual services on the part of the network partner shall exclusively be handled the respective network partner and the booking agent, value-added service provider and the incoming forwarder. XSTAFF does not perform tasks regarding forwarding nor does XSTAFF organise or perform logistics services.

Contracts regarding the respective services shall exclusively be concluded by the network partner and the value-added service provider chosen by him whose services are being procured by XSTAFF.

4. Service content

4.1 XSTAFF provides an opportunity for businesses to become a network partner by joining the purchasing network founded by XSTAFF. Network partners are entitled to make use of the services in value-added service providers’ portfolios. On the other hand, XSTAFF provides the opportunity to value-added service providers to offer their services to the network partners. When negotiating conditions with booking agents and value-added service providers, XSTAFF takes proper care of the network partners’ interests.

4.2 The network partner authorises XSTAFF to obtain offers from value-added service providers for services and to submit these offers to the network partner.

4.3 Non-binding information on conditions communicated to the network partner by XSTAFF or made available for recall pursuant to art. 2.2. are only intended to give an indication of the current rates. These rates shall be valid until the information has been update enabling the network partner to place an order. If possible, XSTAFF tries to provide the network partner with short-notice information on changes to the conditions. Due to the customary fluctuations in the fast-paced markets, failure to notify the network partner of changes to the conditions does not entitle him to claim any rights against XSTAFF or the companies mentioned for.

4.4 XSTAFF further operates an Internet platform at www.x-staff.de where, via a customer login, the network partner can access an overview of the current freight rates as well as further information on ETA time of the ships and the ships available for booking. Any information on this platform is provided to XSTAFF by the booking agents and value-added service providers connected to the network, so XSTAFF cannot guarantee the correctness of the data available on the platform.

5. Tasks of XSTAFF

5.1 XSTAFF is obliged to apply the customary care and attention when doing business for the network partners.

5.2 XSTAFF is obliged to carefully select the value-added service providers and, if the network partner so desires, present several options, even for the same service. XSTAFF helps the value-added service providers to complete the orders placed by the network partners by providing the available documentation. XSTAFF regularly performs quality checks regarding the value-added service partners by obtaining evaluations from the network partners. The final selecting of the value-added service providers and the conclusion of the agreement are exclusively handled by the network partner. XSTAFF is not a part of the logistics supply chain if logistics services have been contracted.

5.3 XSTAFF supports the network partner in handling the complaints concerning the completion of the procured order.

6. Duties of the network partner

6.1 The network partner shall communicate his estimated demand for services one year in advance in each case. If an order is to be placed, the network partner shall provide XSTAFF with all the information necessary to procure one or several value-added service providers. Upon request, the network partner shall provide XSTAFF at any time and on

short notice with significant and detailed information about the volume of the order to be placed with value-added service providers. The network partner is obliged to immediately notify XSTAFF of any objections or irregularities that have arisen within the legal relationship with the value-added service provider, and to provide documentation thereof. The network partner shall immediately notify XSTAFF of any conditions or costs claimed by the clearing offices involved that were not agreed upon with XSTAFF.

6.2 Regarding international shipments, orders based on the conditions agreed upon by XSTAFF and the network partner have to exclusively be handled by the booking agent appointed by XSTAFF.

6.3 The network partner shall provide XSTAFF with the company’s expected minimum volume of orders to value-added service providers for the next year no later than 30 November of the respective year. The minimum volume of orders is used as a basis for the negotiation of conditions with the value-added service provider. If the minimum volume of orders is not reached, the network partner is obliged to pay a contractual penalty amounting to the value of the booking commission the actual order volume falls short of the communicated minimum. If the minimum order volume is missed, XSTAFF may terminate the agreement without notice.

7. Information by value-added service provider

Already at this stage the network partner shall authorise XSTAFF to request the value- added service provider to submit at any time and without delay significant and detailed information regarding the number of services performed for the network partner, their volume and the sales realised. The value-added service provider shall keep all information regarding the completion of the network partner’s orders at the disposal of XSTAFF, and, upon request, forward them to XSTAFF immediately. The value-added service provider commits itself to provide information to XSTAFF regarding the status of the order completion within 24 hours of being asked to do so.

8. Order processing

8.1 The booking of international shipments via sea / air / rail is done directly between the network partner and the booking agent – without the involvement of XSTAFF.

8.2 XSTAFF forwards the network partner’s enquiry to the value-added service providers which submit to XSTAFF a binding offer in writing based on the information provided by the network partner. XSTAFF forwards the offer(s) of the value-added service provider(s) to the network partner who selects the most appropriate offer and contracts the value-added service provider on his own behalf and at his own cost. In any case, the agreement shall be concluded with regard to the respective services between the network partner and the commissioned value-added service provider.

9. Compensation and terms of payment

9.1 As agreed, XSTAFF shall be compensated by the value-added service providers for procuring orders among the network partners.

9.2 Orders placed by the network partner and performed by the booking agent and the value- added service providers shall be invoiced based on the agreed conditions. Invoicing of services rendered by contracted companies and value-added service providers shall regularly be done by the incoming forwarder or directly between the network partner and his contractual partner.

10. Liability

10.1 Liability on the part of XSTAFF, its staff and auxiliary persons for any damage incurred by the network under or in relation to this agreement shall be excluded for cases of simple carelessness.

10.2 The contractual partners and XSTAFF further agree to mutually exclude liability for so- called indirect damages, such as unrealised profit, fruitless expenditures, production downtimes or production disruptions, etc., even in cases of gross negligence.

10.3 The above liability limitations and restrictions shall not apply in cases of wilful and – within the limitations of 10.2 above – grossly negligent damage. Neither shall they apply in cases of culpably caused damage resulting from the destruction of life, personal injury or health damage or in cases of violations of cardinal obligations. For latter incidents liability shall be limited to damage that is typically foreseeable at the time of concluding the agreement.

10.4 XSTAFF shall not be held liable for damage resulting from or in relation to the legal relationships between the network partner and the respective booking agent, value-added service provider or incoming forwarder.

10.5 XSTAFF shall not be held liable for damage caused to the network partner resulting from incorrect third-party information made available to the network partner by XSTAFF via hyperlink on the websites mentioned in art. 4 of the Terms and Conditions. Neither shall XSTAFF be held liable for any damage resulting from incorrect information recalled via embedded third-party track-and-trace systems.

11. Confidentiality

11.1 The parties are obliged to treat all data and information as well as information on conditions and rates shared by XSTAFF with utmost confidentiality – even if the data has not expressly been classified as such – and to use said data only for the intended contractual purpose. The data and information may only be made accessible to third parties to fulfil contractual obligations. “Third parties”, in this context, refers to the value-added service providers and the network partners among themselves as well as their employees and auxiliary persons.

11.2 This obligation does not apply if the data and information are or become generally known or are made known to the receiving party by a third party without restriction, or if the receiving party can prove that it already had knowledge of these or possessed them before this agreement came into force.

11.3 This confidentiality agreement shall be in force for the entire term of the agreement as well as for the pre-contractual negotiation period since these Terms and Conditions were made available. An individual agreement to this effect shall prevail. The confidentiality agreement shall remain in force for another two years after the agreement ends.

11.4 The contractual partner of XSTAFF shall pay a contractual penalty of EUR 10,000.00 for each violation of the stipulations under 10.1 of these Terms and Conditions. Further claims for damages on the part of XSTAFF remain unaffected.

12. Electronic data exchange

12.1 Each party may produce statements and messages electronically and transmit and exchange them (electronic data exchange), as long as the transmitting party is identifiable and these Terms and Conditions do not stipulate a different form. The transmitting party shall bear the risk for the loss and the correctness of the data transmitted.

12.2 Each party is obliged to perform the customary security and control measures to protect the electronic data transmission from access through third parties as well as to prevent alteration, loss or destruction of electronically transmitted data.

12.3 Each party shall appoint one or several contact persons to receive information, statements, messages and requests from the other party. Each party shall provide the other party with the name(s) and contact information. If one party fails to appoint a contact person, the person signing the agreement on behalf of that party – or, if no agreement was concluded, the person who established the contact – shall be the contact person.

12.4 Electronically or digitally created official documents shall be equivalent to written official documents.

13. Customer protection

13.1 The value-added service providers and XSTAFF agree on customer protection for all existing network partners. Customer protection covers:

  • technical aspects, i. e. the services requested by a network partner from XSTAFF.
  • geographical aspects, i. e. areas where services requested by XSTAFF for a network partner have to be rendered.
  • temporal aspects, i. e. customer protection shall be limited to two years following the end of the cooperation. If this period was shorter than two years, then the customer protection is limited to that period.

13.2 While customer protection is in force, the value-added service provider is not allowed to directly or indirectly approach the network partners or their consultants in order to conclude agreements with them directly, unless they have obtained the explicit written consent of XSTAFF.

13.3 The value-added service provider shall pay reasonable damages – the amount of which shall be established by the responsible regional court exercising equitable discretion – for each violation of the stipulations.

14. Termination

The agreement shall be valid for an undetermined period of time. Proper notice of termination of the agreement may be given with prior notice six months before the end of the year. Notice of termination has to be given by registered letter. The right to an extraordinary termination for good reason shall not be affected.

15. Miscellaneous, applicable law and place of jurisdiction

15.1 Any alteration or amendment to this agreement shall be in writing. This also applies to amendments to the written form requirement. E-mails do not meet the requirements of the written form.

15.2 These Terms and Conditions and the corresponding agreement contain all arrangements between the contractual parties. Subsidiary arrangements can be made in writing, but not orally.

15.3 This agreement shall be governed exclusively by German law; the UN Convention on the International Sale of Goods (CISG) shall be excluded. Exclusive place of jurisdiction for both parties shall be Düsseldorf unless a different or a second place of jurisdiction is stipulated by the applicable law.

15.4 Should any individual provisions be or become invalid, the invalid provision shall be replaced by a provision that is as close as possible in economic and legal purpose to the invalid or impracticable provision. If the agreement contains an omission, the contractual parties shall close this omission by negotiating such a substitute provision that they would have negotiated if they had been aware of the omission before concluding the agreement.

as of: 22 June 2017