Terms of use

BEFORE USING THE CONTAINER xCHANGE PLATFORM (THE PLATFORM), PLEASE READ THESE TERMS OF USE CAREFULLY (THESE TERMS). BY ACCESSING OR USING THE PLATFORM AS (OR ON BEHALF OF) A PARTICIPANT , YOU ARE CONFIRMING TO US THAT YOU ACCEPT ALL OF THESE TERMS IN FULL.

Please click on the Confirm button below to accept these Terms. By doing so, you are confirming that you are an Authorised User and have the authority to accept these Terms on behalf of the Participant.

After these Terms have been accepted, subsequent Authorised Users may be asked to click the Confirm button to accept these Terms. Any subsequent acceptance will not create separate contracts between the Participant and xChange Solutions GmbH except insofar as these Terms have changed in which case the first Authorised User to click the confirm button will bind the Participant to the updated Terms.

This Platform is owned and operated by xChange Solutions GmbH. References to xChange Solutions GmbH, Participants, Authorised Users, and other capitalised Terms Of Used but not defined in these Terms have the meaning set out in Section 16 of the “Definitions” set out below.

GENERAL TERMS

The Container xChange Platform is not intended to be a means for Participants to coordinate their commercial behaviour in the market in view of fixing prices, quantities, and allocating costumers or markets, nor as a forum for the exchange of confidential or otherwise commercially sensitive company-specific information.

It is the responsibility of each Participant to comply with competition law relying on their own legal advice; it is not the responsibility of xChange Solutions GmbH or its staff to ensure that Participants comply with competition law in their own activities.

1

Login Details and security

1.1

Access and use of the Platform is conditional upon receipt of the necessary Login Details from xChange Solutions GmbH which may grant or restrict the Login Details in its absolute discretion and restrict access to all or any part of the Platform.

1.2

The Participants shall instruct their Authorised Users not to provide the Login Details to (or otherwise permit access to the Platform by) any person other than its Authorised Users, and accepts full responsibility at all times for any and all of their use of the Platform. The Participants shall also take responsibility for any unauthorised access to the Platform where, by its acts or omissions, its Login Details are disclosed to person(s) other than its Authorised Users.

1.3

The Participants shall provide details of each Authorised User to xChange Solutions GmbH for the purposes of setting up that Authorised User on the Platform and providing the relevant Login Details. xChange Solutions GmbH shall be under no obligation to ascertain whether any person using the Login Details to access or use the Platform is properly authorised by the Participant, and shall be entitled to assume, without enquiry, that any such person is an Authorised User and their access or use of the Platform is properly authorised by the Participant.

1.4

Each Participant shall ensure all Authorised Users understand how to use the Platform and are appropriately supervised.

1.5

Each Participant shall keep all Login Details secret and shall implement and maintain adequate security measures to prevent access to the Platform by any person other than an Authorised User.

1.6

If xChange Solutions GmbH becomes aware, or suspects that any unauthorised person has obtained or has attempted to obtain unauthorised access to, or there is misuse of, the Platform or Login Details, then it may take such steps as it deems appropriate to change the Login Details and/or the security of the Platform. The Participant shall notify xChange Solutions GmbH immediately in writing or by telephone if it becomes aware of any such actual or potential misuse or unauthorised access.

2

Participant Systems and the Platform

2.1

Each Participant shall be responsible (at its own cost) for:

(a)

the selection, provision, maintenance and support of the Participant Systems;

(b)

co-operating with xChange Solutions GmbH in all matters relating to the Platform; and

(c)

ensuring that the Participant Systems are at all times suitable for use with the Platform.

2.2

xChange Solutions GmbH is not responsible in any way for the configuration of the Participant Systems, the interoperability or reliability of the connection between the Participant Systems and the Platform and is not responsible for any communication failures, distortions or delays when using the Platform.

2.3

xChange Solutions GmbH has sole discretion and control over, and may modify at any time in its absolute discretion: (i) the functionality, performance, configuration, appearance and content of the Platform; (ii) the availability of the Platform to any person at any particular place, time or location; (iii) security protocols or procedures applicable to the Platform or Participant Systems; (iv) xChange Solutions GmbH policies and procedures in relation to accessing and using the Platform.

2.4

The Participant understands and acknowledges that the Platform response times may vary due to external conditions, Platform performance, access device location or other factors, and that access to the Platform may be limited or unavailable during periods of peak demand, systems upgrades, routine or emergency maintenance, Force Majeure Events or for other reasons. xChange Solutions GmbH does not warrant the performance or availability of the Platform.

2.5

By accessing or otherwise making use of the Platform, the Participant and each Authorised User will also be deemed to accept what is stated in: (i) the Privacy Policy; (ii) the User Manual; and (iii) any legal notices or terms displayed on accessing the Platform that are expressly stated as superseding particular provisions of these Terms.

3

Confidentiality and privacy

3.1

Participants shall treat information received from or via the Platform as confidential and will not disclose it to any other person not entitled to receive such information except as may be necessary to fulfil their respective obligations in the conduct of their business and except as may be required by law or regulatory authority. This section will not apply to information to the extent that it is: (i) rightfully in the possession of such Participant; (ii) already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this section); (iii) required to be disclosed pursuant to legal, or regulatory requirements; or (iv) which is trivial or obvious. Each Participant acknowledges and agrees that xChange Solutions GmbH may include and disclose to third parties, on an anonymous and aggregate basis, information relating to use of the Platform and information derived from the Platform in benchmarking, modelling and other analytics offerings and reports derived from such information.

3.2

Participants agree to the payment terms and pricing scheme laid out in the Commercial Terms between each Participant and xChange Solutions GmbH which shall form part of these Terms.

3.3

xChange Solutions GmbH will process and be entitled to disclose and transfer personal data in accordance with the Privacy Policy and the Participant confirms it has read and understands the Privacy Policy and consents to any collection, use, processing, disclosure and transfer of personal data carried out by xChange Solutions GmbH in accordance with the Privacy Policy.

4

Payment

4.1

Participants agree to the payment terms and pricing scheme laid out in the Commercial Terms between each Participant and xChange Solutions GmbH which shall form part of these Terms.

4.2

Participants can choose from three alternatives to add security to their invoices and payments.

4.2.1 – Bilateral invoicing

The parties to the transactions are contract partner in the transaction and directly address invoices to the other party. Invoices are sent directly to the counterparty and payments are collected between the parties. xChange shall, under no circumstances, be liable for these payments and all risk and banking fees are borne by the parties. Any disputes are to be resolved bi-laterally but xChange may support the dispute resolution. In case of a total loss of the containers, the owner invoices the counterparty for the lost assets and manages the collection of funds. Containers can be insured against total loss via xChange regardless of the invoicing model. In case of a bankruptcy of one of the parties, xChange shall, under no circumstances, be liable for any outstanding payments.

4.2.2 – xChange payments

The parties to the transactions are contract partner in the transaction and directly address invoices to the other party or to xChange. Invoices are sent to xChange, xChange checks the invoices and credits/debits immediately for pickup fees and per diems. Repair charges and DRVs are checked with the counterparty, collected by xChange and credited to the invoicing party. All pickup fees and per diems are thereby secured through xChange while repair charges and DRVs are secured only through the invoiced addressee and/or the optional total loss insurance (booked through xChange). Under no circumstance shall xChange be liable for payment of repair charges and DRVs. In case of disputes with regards to repair charges and DRVs/replacement values, xChange facilitates dispute resolution between the contract partners . In case of a bankruptcy of one of the parties, xChange shall under no circumstance be liable for the value of the assets itself—but pickup charges and per diems (until declaration of bankruptcy) will be credited to invoicing party’s account. 3.85% of the invoiced amount is charged by xChange for this service (reducing the payment risk, crediting immediately, removing transaction-related banking fees).

4.2.3 – xChange guarantees

xChange may serve as guarantor for transactions conducted on the platform (e.g. through co-signing of lease agreements). This makes credit checks for its customers obsolete and increases security on the platform. In such cases, the parties to the transactions are contract partners in the transaction but xChange provides a financial guarantee. The parties address invoices to the other party or to xChange, invoices are sent to xChange, xChange checks the invoices and credits/debits immediately for pickup fees, per diems, repair charges and DRVs (unless disputed). In case either party disputes an invoice, xChange shall, under no circumstances, be liable for any outstanding payments until the dispute has been resolved with the support of xChange. All invoices are secured by xChange up to the replacement value of the equipment as agreed in the release reference. In case of a bankruptcy of one of the parties, xChange supports the recovery process to re-collect the assets and vouches for payments up to the DRV/replacement value of the assets as agreed in the release reference. 3.85% of the invoiced amount plus a transaction fee is charged by xChange for this service (eliminating payment risk, crediting immediately, removing transaction-related banking fees). 
For xChange to guarantee a transaction, the following must be followed:

(a)

For counterparties eligible for xChange-guaranteed transactions, xChange determines an overall credit-limit. All individual xChange-guaranteed transactions with that counterpart shall then be pre-approved by xChange prior to release.

(b)

All negotiations (terms, acceptance, declines) of transactions as well as e.g. providing release details and handling operational inquiries remain under the sole responsibility of the lessor and lessee.

(c)

All units transacted under xChange-guaranteed transactions are mandatorily insured against total loss. The insurance is purchased through the xChange platform, and all costs are born by the container user.

(d)

The lessor informs xChange of all gate moves (gate-out and gate-in dates) and operational issues (e.g. damages, misueses, etc) immediately after receiving notice of such information.

(e)

All communication has to be kept on xChange, or with Service@container-xchange.comin copy (“cc”) when using email.

(e)

All invoices and payments related to xChange-guaranteed transactions run through xChange: Lessor and the lessee send all invoices to xChange, xChange checks for correctness and credits the invoicing party’s xChange-account instantly and risk-free.

4.3

xChange Solutions GmbH is not responsible for unapproved purchases of its clients’ employees via the platform. This does not reduce the responsibility of xChange Solutions GmbH to protect its clients’ payment data from the misuse through 3rd parties.

5

Usage of the Platform

5.1

Participants shall only use the Platform to submit or search information about the availability of or need for empty Containers as well as Slots (Availability Information). Participants shall not use or permit the use of the Platform for any other purpose. In particular, Participants shall not share Availability Information to coordinate their behaviour in view of fixing prices or quantities or allocating costumers or markets

5.2

In respect of each Container or Slot, Participants will be responsible for: (i) providing complete, accurate and current Availability Information; (ii) ensuring that at no time is the relevant Availability Information in any way inaccurate, incomplete or misleading; (iii) immediately notifying xChange Solutions GmbH if at any time it becomes aware that the relevant Availability Information is or is likely to become inaccurate, incomplete or misleading; and (iv) keeping the Availability Information up to date and current at all times.

5.3

If the Participant fails to comply with its obligations under section 5.2 above, xChange Solutions GmbH has the right to put limits on the Participant’s ability to list Containers or Slots or use the Platform

5.4

Without prejudice to sections 5.2 and 5.3, the Participants will be entitled to withdraw and/or amend any Availability Information at any time.

5.5

xChange Solutions GmbH may at its sole discretion remove any Availability Information submitted by a Participant via the Platform at any time and for any reason. xChange Solutions GmbH has no obligation to verify the accuracy of any Availability Information.

5.6

Participants accept that xChange Solutions GmbH does not act on behalf of any Participant or any of its Authorised Users when providing access to or use of the Platform or related services.

5.7

The platform contains one or more of the following interactive services: bulletin boards, chat areas and/or other message or communication facilities. Participants agree to use such services only to send and receive messages and material that are proper and related to the particular service or other message or communication facility. In addition, Participants agree that when using such interactive services, they will not:

Upload files that contain software or other material protected by intellectual property laws or by rights of privacy of publicity unless the Participant owns or controls such rights or has received all necessary consents.

Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer.

Delete any author attributions, legal notices or proprietary designations or labels in any file that is uploaded.

6

Transaction Contracts

6.1

No Transaction Contracts (e.g., BIMCO boxchange agreements) can be entered into via the Platform. Transaction Contracts shall be entered into bilaterally or multilaterally between the Participants xChange Solutions GmbH shall have no responsibility or liability under any Transaction Contract to any Participant.

6.2

The Participant may include a link to its website as part of the Availability Information submitted to the Platform (the Participant Website), provided: (i) this is done in a fair and legal way; (ii) it does not damage or take advantage of xChange Solutions GmbH’s reputation or suggest any form of association, approval or endorsement on xChange Solutions GmbH’s part; and (iii) the Participant Website complies in any respects with the content standards set out in the User Manual. No link may be established by Participants between the Platform to any website other than the Participant Website apart from links to the BIMCO. xChange Solutions GmbH reserves the right to withdraw linking permission at any time and for any reason without notice.

6.3

xChange Solutions GmbH accepts no responsibility for any decision to enter into a Transaction Contract made as a result of the use of the Platform, including any Availability Information or other information made available via the Platform.

6.4

By providing access to and use of the Platform, xChange Solutions GmbH acts as a facilitator of communication between Participants, offering Participants the opportunity to provide and search for Availability Information for the most efficient allocation of equipment. xChange Solutions GmbH is not responsible or liable to a Participant for any risks underwritten in a Transaction Contract entered into as a result of the use of the Platform nor for any risks associated with nor any content in the Participant Websites, the BIMCO websites or any other sites that are linked to the Platform and provided by third parties. In any event, the exchange of Available Information shall not be used to promote a general cooperation and coordination in the relevant market between Participants in violation of competition law.

7

Ratings

7.1

Participants and Authorised Users will have the opportunity to rate their satisfaction with particular transactions through the Platform.

7.2

xChange Solutions GmbH shall have the right to amend, remove, alter or prevent access to any Rating at any time for any reason.

8

Reporting

8.1

In addition to the Availability Information, Authorised Users will be able to access the following information via the Platform:

(a)

Participant transaction history and volume

(b)

Ratings provided by other Participants

(c)

Authorised User usage information

(the Reports)

8.2

xChange Solutions GmbH shall have the right to amend, remove, alter or prevent access to any Reports at any time for any reason.

9

Disclaimers

9.1

The Platform and any connected and related Reports, services, systems, information, components, interfaces, equipment, documentation, materials and technology provided by xChange Solutions GmbH are provided „as is“.

9.2

To the extent permitted by law:

(a)

xChange Solutions GmbH makes no representation or warranty whatsoever that the Platform, Reports or information provided under or in connection with the Platform shall be of satisfactory quality, fit for purpose, uninterrupted, timely, secure, accurate, correct, complete, error-free, free from viruses and malicious components, or compatible with the Participant Systems; and

(b)

save where expressly provided in these Terms, all terms, conditions, warranties, representations and undertakings which might be implied, whether by statute or otherwise, in respect of xChange Solutions’ obligations are excluded to the maximum extent permitted by law.

10

Liability

10.1

Nothing in these Terms shall exclude or limit the liability of xChange Solutions GmbH:

(a)

in respect of fraud; or

(b)

in respect of any liability that cannot be excluded or limited by law.

10.2

Subject to section 10.1, xChange Solutions GmbH excludes all liability to the Participant and any Authorised User for any Losses arising out of or in connection with:

(a)

the unavailability or inaccessibility of the Platform;

(b)

any interruption, delay or failure of the Platform, Reports or any connected and related systems, components, interfaces, equipment, documentation, materials and technology provided by xChange Solutions GmbH;

(c)

any third party or xChange Solutions GmbH systems, networks and infrastructure which are used in connection with the Platform;

(d)

any incorrect, inaccurate, corrupt, undelivered or misdirected Availability Information or Reports;

(e)

any Transaction Contracts entered into as a result of using the Platform; or

(f)

any virus or harmful components or loss or damage to the Participant Systems, including if such harmful components stem from files uploaded by other Participants.

10.3

Subject to section 10.1, xChange Solutions GmbH shall not be liable to the Participant (or any person claiming under or through the Participant) whether in contract, in tort (including negligence), under statute or otherwise under or in connection with these Terms for any:

(a)

loss of profit or revenue;

(b)

loss of anticipated savings;

(c)

loss of goodwill;

(d)

loss of opportunity or business;

(e)

business interruption; or

(f)

indirect or consequential Losses of whatever nature including any Losses of a type described in (a) – (e) above which could be regarded as indirect or consequential, in each case whether or not reasonably foreseeable, reasonably contemplatable, actually foreseen or actually contemplated by xChange Solutions GmbH or the Participant at the time these Terms are entered into.

10.4

Subject to section 10.1 to 10.3 above, neither xChange Solutions GmbH nor its officers, directors, agents or employees shall be liable to the Participant or any Authorised User for any loss or damage of any nature arising out of or in connection with the Participant’s or Authorised User’s use of the Platform, where such loss or damage is not caused by xChange Solutions GmbH’s deliberate default.

10.5

Subject to section 10.1, if xChange Solutions GmbH is found to be liable to any Participant in contract, in tort (including negligence), under statute or otherwise, xChange Solutions GmbH’s total liability in respect of all claims arising during each year of these Terms (as determined at the date when the liability arose) shall be limited to the fees paid by the Participant pursuant to the Commercial Terms.

10.6

The limit of liability specified in section 10.5, is an aggregate limit for all members of xChange Solutions GmbH so that the Losses recoverable from the whole xChange Solutions GmbH cannot exceed this limit.

xChange Solutions GmbH does not accept any liability for the performance of the User and Supplier under any Interchange Contract agreed to by the parties.

10.7

The Participant and xChange Solutions GmbH agree that the limitations and exclusions of liability contained in this section are considered by them to be reasonable in all the circumstances.

10.8

Any dispute arising under or in connection with the use or attempted use of the Platform shall be governed by these Terms only.

11

Guarantee

11.1

The User may provide a guarantee on first demand („Guarantee“) for the performance of his obligations under the Transaction Contract. The Guarantee shall be issued by a bank approved by xChange Solutions GmbH in the exact format specified by xChange Solutions GmbH or a format provided by the User which has been approved by xChange Solutions GmbH.

11.2

Details of the Guarantee process are described in the document „xChange Bank Guarantee“ which will be provided upon request or in the event a User wishes to provide a Guarantee.

11.3

Subject to 10.1 of the Terms, except in case of willful misconduct, xChange Solutions GmbH does not agree toshall not be liable any liability vis-à-vis the Supplier and/or the User for the Guarantee process, the validity or enforceability of the Guarantee or the performance of the issuing bank thereunder.

12

Intellectual Property

12.1

All Intellectual Property Rights relating to the software provided to enable access to and use of the Platform (Platform Software) and any Reports shall remain vested in xChange Solutions GmbH or its licensors and may not be used by the Participant or any of its Authorised Users without the prior written consent of xChange Solutions GmbH or its licensors (as applicable). xChange Solutions GmbH shall own all Intellectual Property Rights of the Reports. Ownership of the Availability Information shall remain vested in the Participant.

12.2

xChange Solutions GmbH grants to the Participant a personal, revocable, non-exclusive licence to access the Platform Software and to permit use of the Platform Software by its Authorised Users for the duration of these Terms.

12.3

The Participant shall not:

(a)

cause or permit the reverse engineering, disassembly or decompilation of any Platform Software;

(b)

make the Platform Software available to any third party for any purpose;

(c)

recreate or copy the Platform Software; or

(d)

re-export or re-distribute the Platform Software or any part of the Platform without xChange Solutions GmbH’s prior written permission.

12.4

The Participant and its Authorised Users shall at all times keep the Platform Software, Reports and other related materials and information secure and confidential, except to the extent required by applicable law or Regulations. If the Participant or any Authorised User receives a disclosure order from the Regulator or other governmental authority, it shall promptly notify xChange Solutions GmbH of the required disclosure, and if requested assist xChange Solutions GmbH in challenging such order, in each case to the extent not precluded from doing so by applicable law or Regulations.

12.5

The Participant shall:

(a)

not modify the paper or digital copies of any Platform Software, Reports or related materials and shall not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text; and

(b)

not use any part of the Platform Software, Reports or related materials for commercial purposes without obtaining a licence to do so from xChange Solutions GmbH.

13

Suspension

13.1

xChange Solutions GmbH may in its absolute discretion restrict access to and use of the Platform by the Participant or its Authorised Users, suspend or restrict a Participant’s right to submit or search for Availability Information, suspend or restrict a Participant’s right to view Reports or discontinue or suspend availability of the Platform, at any time, with or without notice to the Participant and for any reason.

13.2

The Participant acknowledges that, in addition to the events described in section 2.4, the Platform may fail or otherwise not be available or be subject to incorrect or restricted functionality or performance for whatever reason, including failure of technology, power failure, failure of communications links or security breach. No course of dealing will be construed as a promise of continued or continuous availability or capability of the Platform and xChange Solutions GmbH is not responsible to the Participant in relation to such unavailability or for incorrect or restricted functionality or performance.

14

Termination

14.1

These Terms (including the Commercial Terms) shall continue in force until terminated in accordance with this section 13.

14.2

xChange Solutions GmbH may terminate the Participant’s or any of its Authorised Users access to or use of the Platform at any time and for any reason.

14.3

Unless required by applicable law or Regulations, these Terms and the Commercial Terms shall terminate with immediate effect at the earliest of:

(a)

xChange Solutions GmbH removing access to the Platform; and

(b)

either party giving written notice of termination to the other party, such termination to be effective, unless otherwise specified in the notice, on receipt of such notice.

14.4

Any termination of access to or use of the Platform shall not affect any accrued or outstanding rights or liabilities of xChange Solutions GmbH or the Participant which have arisen prior to or upon termination, nor shall it affect the coming into force or the continuance in force of any provisions of these Terms which are expressly or by implication intended to come into force or continue in force on or after that termination including the provisions in Sections 3, 9, 10, 11, 14, and 15.

15

Governing law

15.1

These Terms and any non-contractual obligations arising out of or in connection with it are governed by English law.

15.2

The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with these Terms (including a dispute relating to the existence, validity or termination of these Terms or any non-contractual obligation arising out of or in connection with these Terms).

16

General

16.1

All notices must be in writing and must be hand delivered, sent by email or other electronic means, or forwarded by registered or certified mail to the relevant party and shall be deemed to have been delivered on receipt at the relevant address.

16.2

xChange Solutions GmbH may, at any time, amend or supplement these Terms, upon written notice including via the Platform.

16.3

Neither these Terms nor the matters to which they relate shall be assigned by either party without the prior written consent of other, save that xChange Solutions GmbH may assign these Terms to another entity in connection with the transfer of all or part of its assets or business to a member of xChange Solutions GmbH or to a third party without the Participant’s prior written consent.

16.4

These Terms and the Commercial Terms set out the entire agreement between the parties relating to their subject matter and override any prior correspondence or representations. In the event of a conflict between these Terms and the Commercial Terms, these Terms shall prevail. Each party acknowledges that, in entering into these Terms, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than in respect of xChange Solutions GmbH’s reliance on the person agreeing to these Terms having authority to bind the Participant and other than as expressly set out in these Terms, provided that nothing in this section shall limit or exclude any liability for fraud.

16.5

Each of the provisions of these Terms is severable. If any such provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction that shall not affect or impair the legality, validity or enforceability in that jurisdiction of the other provisions of these Terms, or of that or any provision of these Terms in any other jurisdiction.

16.6

These Terms shall be binding upon and take effect for the benefit of xChange Solutions GmbH and the Participant and their respective successors in title, permitted assigns and legal representatives and references to the parties shall be construed accordingly.

16.7

Nothing in these Terms is intended to confer on any person any right to enforce any term of these Terms which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.

17

Definitions

17.1

In these Terms the following words and phrases shall have the following meanings:

Affiliate means, in relation to any person: (i) a Subsidiary of that person; (ii) any company or corporation in respect of which that person is a Subsidiary (direct or indirect); or (iii) any other Subsidiary of the company or corporation described in (ii) above.

Authorised User means, as applicable, the Participant’s employees and agents which the Participant has authorised to use the Platform and any person to whom the Participant is permitted to allow access and use of the Platform.

Availability Information means the information relating to the availability of or need for a Container or Slot by Participants including related information such as locations and dates

BIMCO means Baltic and International Maritime Council.

Commercial Terms means the terms between each Participant and xChange Solutions GmbH that defines the pricing scheme and payment terms relating to the use of the Platform and which form part of these Terms.

Container means a commercial shipping container

Intellectual Property Rights means all patents, trademarks, service marks, trade and business names, copyright (including copyright in computer programs), rights in designs, database rights, rights in know-how, trade secrets, rights in confidential information and all other intellectual property rights or forms of protection of a similar or equivalent nature or effect which may subsist anywhere in the world (whether or not registered or capable of registration), together with all applications for registration of and rights to apply for, and any licence to use, any of the above.

Login Details means the password and user identification or other security information provided by xChange Solutions GmbH in connection with the Participants’ access to the Platform.

Losses means losses, liabilities, damages, claims, costs, fees, or expenses.

Participant means any User or Supplier or any other party using the Platform for its intended use.

Participant Systems means the computer systems, technology and network infrastructure necessary for the Participant and any Authorised User to access and use the Platform.

Participant Website means a website owned by a Participant Force Majeure Event means any event whatsoever beyond xChange Solutions GmbH’s reasonable control including (a) internet interruption, (b) failure, distortion or delay in any communications, systems, networks, hardware and software, power (c) suspension of trading, (d) acts of God, (e) voluntary or mandatory compliance with any Regulations (f) loss or non-grant of any necessary licence or consent (g) any change in any Regulations or interpretation of any Regulations; (h) accidental damage; (i) adverse weather conditions; (j) any labour dispute, (k) non-performance by suppliers, subcontractors or third parties; (l) interruption or failure of any utility service; or (m) war or civil commotion.

Privacy Policy means the privacy policy of xChange Solutions GmbH.

Regulations means all laws, statutes, orders, rules, treaties, regulations, directives, edicts, bye-laws, schemes, other instruments made under any statute or in exercises of the royal prerogative, rules, principles or guidance of a Regulator, decision, judgment and direction of a court, in each case as may be applicable to a Participant, xChange Solutions GmbH or the Platform.

Regulator means any person, or law enforcement or other agency in a relevant jurisdiction having regulatory, supervisory or governmental authority (whether under a statutory scheme or otherwise) over all or any part of the business of the Participant or an Authorised User.

Rating means the rating given to Participants by other Participants depending on their experience or satisfaction regarding a specific transaction

Reports means the reports described in section 7.

Slot means any space on a vessel, barge, train, truck or any other kind of transport that can be used for the transportation of a Container.

Subsidiary means a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006.

Supplier means any Container or Slot owner.

Transaction Contract means the whole or a part of a contract for the interchange, swap, lease, sale or any other kind of temporary or permanent use of a Container or Slot executed between Participants.User means company who temporarily leases a Container or Slot from a Supplier.

User Manual means the on-line manual setting out how to use the Platform and which is made available to Participants and their Authorised Users via the Platform.

17.2

In these Terms:

(a)

headings are for convenience only and shall not affect the interpretation of any provision of these Terms;

(b)

any reference to a section is a reference to a section of these Terms;

(c)

reference to these Terms includes the Commercial Terms unless the context otherwise requires;

(d)

any reference to a person includes any individual, firm, company or other legal entity;

(e)

any obligation in these Terms on a person or party not to do something, includes an obligation not to agree, allow, permit or acquiesce to that thing being done;

(f)

any reference in these Terms to any enactment or statutory provision or subordinate legislation shall be construed as a reference to it as from time to time replaced, amended, consolidated or re-enacted (with or without modification) and includes all orders, rules or regulations made under such enactment;

(g)

words denoting the singular include the plural and vice versa, and words denoting any gender include all genders; and