Terms and Conditions
Last revised: July 1, 2017
frutra GbR Wolfgang Baumann, Samuel Fürle, Lindenmattenstraße 25, 79117 Freiburg, operates the Internet platform "frutra" as a purely technical service for the purchase and sale of raw materials for beverage production. The platform is hereinafter referred to as "frutra". The details of the use of frutra's English website are governed by the following General Terms and Conditions (hereinafter: "GTC").
1. General provisions
1.1 frutra exclusively addresses entrepreneurs within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”), who have registered a member account (hereinafter: "Members"). Members may offer or purchase basic materials for beverage production (hereinafter referred to as "Products") on frutra.
1.2 frutra GbR does not participate in the purchase contracts concluded on frutra as a contracting party or as a representative or vicarious agent of a contracting party or in any other way. Notifications sent via frutra in connection with an offer or a request are for the information of the respective member only. Insofar as these notifications contain legally significant declarations, these shall be deemed to have been made for and against the person concerned. The parties to a purchase contract concluded with frutra are solely the members involved (seller and buyer). These are also contact persons for all questions in connection with the purchase contract, e.g. regarding payment agreements, appointment arrangements or warranty claims. There is no claim against frutra GbR for the receipt and processing of complaints against other members of frutra or for mediation in or arbitration of disputes between them, unless the subject of the complaint is the fulfilment of legal or contractual obligations of frutra GbR arising from the contract of use in accordance with section 2 of these GTC.
1.3 frutra GbR offers its members the technical opportunity to use frutra GbR within the framework provided by frutra GbR, in order to make offers or requests for products and to conduct purchase negotiations about them. The offers and requests published on frutra by the members as well as the purchase negotiations resulting from them are not checked by frutra GbR for their legality, correctness and completeness.
1.4 frutra GbR has the right, but not the obligation, to technically process, prepare and adapt offers and requests as well as purchase negotiations in such a way that they can also be displayed on mobile end devices or software applications of third parties. The members themselves are responsible for viewing the complete content of an offer, a request or another content on frutra before making a purchase decision, if the entry or the conclusion of a contract takes place via a mobile terminal or the software application of a third party provider.
1.5 frutra GbR checks the data of each member deposited during registration before the member account is activated. Nevertheless, it cannot be ruled out that false data has been deposited for a member account. Every member therefore has to convince himself of the identity of his (possible) contractual partner.
2. User contract, referencing
2.1 The use of frutra requires the registration as a member and the activation by frutra GbR. Registration is free of charge. It takes place by opening a member account with agreement to these GTC. Upon registration and activation, a contract on the use of frutra (hereinafter referred to as "user contract") is concluded between frutra GbR and the member. There is no entitlement to the conclusion of a user contract. The provision of brokerage services in the sense of a brokerage contract is not subject of the user contract.
2.2 Registration is only permitted for entrepreneurs according to section 14 of the German Civil Code (“BGB”). frutra GbR reserves the right to have the entrepreneurial status verified on request by submitting suitable information or documents (e.g. trade licence/trade register excerpt, trade register excerpt).
2.3 The data requested during registration must be complete and correct.
2.4 The registration of a legal entity or a partnership may only be carried out by a natural person authorised to represent the company, who must be named. When registering, only individual persons may be named as the holder of the member account.
2.5 If the data provided changes after registration, the member himself is obliged to correct the data in his member account immediately.
2.6 Registration takes place via an e-mail address and a password, with which the member can then log in to frutra. Third party rights, in particular name and trademark rights, may not be infringed.
2.7 The member is obliged to keep his password secret and to carefully secure access to his member account. The member is obliged to inform frutra GbR immediately in writing if there are indications that a member account has been misused by third parties.
2.8 The member is basically liable for all actions that are carried out using his membership account, unless the member is not responsible for the abuse.
2.9 frutra GbR is entitled to transfer its rights and obligations from the user contract in whole or in part to a third party (hereinafter referred to as "legal succession"). frutra GbR will inform the member of this at least four weeks in advance. If the member does not agree with the legal succession, he can terminate the user contract within four weeks after receipt of the information without notice. With the information about the legal succession frutra GbR will inform the member about the right of termination and the period of notice.
2.10 frutra GbR is not obliged to provide members with technical means for the early recognition and correction of input errors in accordance with section 312i subsect. 1 of the German Civil Code (“BGB”), to communicate the information in accordance with article 246c no. 3 of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – “EGBGB”) and/or to confirm the receipt of orders electronically without delay.
2.11 frutra GbR is entitled for advertising purposes to make the fact of membership public and to name and use the member's company name and logo on frutra. The same right exists to reference the membership outside of frutra in the trade media and vis-à-vis associations as is customary in the industry.
3. Subject and scope of these GTC
3.1 frutra GbR makes frutra available to the member with the functions described in these GTC. frutra GbR is entitled to make the use of frutra or individual functions or the extent to which individual functions and services can be used subject to certain conditions, such as verification of registration data, proof of payment, trade or commercial register excerpt, etc., in order to be able to use the services.
3.2 frutra GbR reserves the right to introduce measures to delay the publication on frutra of content created by the members for security reasons, despite the absence of a legal obligation to do so.
3.3 The Member's claim to use frutra and its functions shall only exist within the framework of the current state of technology. frutra GbR may temporarily restrict the services of frutra if this is necessary with regard to capacity limits, the security or integrity of the servers or for the implementation of technical measures and if this serves the proper or improved provision of the services (maintenance work). In these cases frutra GbR will take into account the legitimate interests of the members as far as possible, e.g. through advance information.
4. Sanctions, blocking and termination
4.1 frutra GbR is entitled to take the following measures in particular if there are indications that a member disregards legal regulations, the rights of third parties or these GTC:
- Deletion of offers, requests or other contents
- Warning of members
- Restricting the use of frutra
- Temporary blocking
- Final blocking
4.2 When selecting a measure, frutra GbR shall observe the legitimate interests of the member concerned, in particular whether there are indications that the member is not responsible for the infringement.
4.3 frutra GbR is entitled, in order to avoid its own liability, in particular also without its own legal examination, to temporarily block user accounts and/or offers if content is objected to by third parties. As far as possible frutra GbR will give the affected member the opportunity to comment.
4.4 frutra GbR may definitively exclude a member from using frutra GbR for good cause (final suspension) if he or she has provided false contact data, in particular a false or invalid e-mail address; or transfers his or her membership account; or significantly damages other frutra members or frutra GbR, in particular misuses frutra GbR services.
4.5 A renewed registration and/or login of the member after final blocking is excluded.
4.6 Members can terminate this user contract at any time without notice by deleting the member account.
4.7 frutra GbR may terminate the user contract at any time without giving reasons by giving 14 days' notice to the end of the month. The right to block remains unaffected.
5. Fees and other charges, invoicing
5.1 Registration and membership with frutra are free of charge. Otherwise, fees and other charges shall be based on the current fee schedule. The current version of the scale of fees is an integral part of these GTC and is therefore part of the contract of use.
5.2 The individual fees and other charges shall be invoiced to the member. The member consents to frutra GbR sending him an invoice in electronic form which entitles him to deduct input tax. The fees and other charges are due for payment upon receipt of the invoice.
5.3 Members shall be in default without further reminder 30 days after the due date and receipt of the invoice.
5.4 Members may only offset claims of frutra GbR against claims of frutra GbR from credit notes not yet issued and against due and/or future claims if these claims have been legally established or are undisputed.
5.5 frutra GbR reserves the right to charge a lump sum of 200 EUR for the deletion of offers or content or for the blocking of members due to violation of these GTC, insofar as the member is responsible for the violation. This does not apply if the member proves that no damage at all or a significantly lower amount has been incurred. frutra GbR can also charge a reasonable fee for the activation of a blocked member account.
5.6 frutra GbR may change the scale of fees for frutra at any time. Members will be notified of changes to the scale of fees on frutra in good time before they come into force.
6. Contractual penalty in case of misuse of the fee system
6.1 Members are prohibited from circumventing frutra's fee structure, e.g. by concluding purchase contracts outside frutra.
6.2 If a sales contract for a product offered on frutra is concluded between members, the above prohibition shall be deemed to have been violated. This does not apply if the seller proves that there is no violation of section 6.1 of these GTC.
6.3 For each case of violation of the prohibition in Section 6.1 of these General Terms and Conditions, the respective seller undertakes to pay a contractual penalty amounting to 5% of the net purchase price of a purchase contract concluded in violation of this prohibition.
7. Forbidden products
It is forbidden to publish content on frutra, to offer products or to submit applications that violate legal regulations, the rights of third parties or morality.
8. General duties of the members
8.1 Members are obliged to comply with the applicable laws when using frutra. It is the responsibility of each Member to ensure that its offers, requests or other content are lawful and do not infringe the rights of third parties.
8.2 frutra GbR offers the member the opportunity to store the legally required information according to section 5 of the German Telemedia Act (Telemediengesetz – "TMG") for his company in his profile. The member is obliged to make use of this possibility. It is the member's sole responsibility to check which information is required. frutra GbR is not obliged to audit.
8.3 It is the member's responsibility to archive on a storage medium that is independent of frutra any information that can be viewed on frutra GbR and is stored by frutra GbR and that is required for the purposes of preserving evidence, bookkeeping, etc. The member is also responsible for ensuring that the information is stored on a storage medium that is independent of frutra GbR and that is accessible to frutra GbR.
8.4 The Member may not use addresses, contact data and e-mail addresses obtained through the use of frutra for any purpose other than contractual and pre-contractual communication. It is expressly forbidden to resell these data or to use them for the sending of advertising unless the respective member has previously agreed to this use.
9. Prices, transport costs
9.1 All purchase prices quoted or agreed on frutra are net prices without value added tax.
9.2 Whether the purchase price agreed between the members includes the costs of transporting the product depends on the content of the respective purchase contract. The Incoterm 2010, if used, shall be decisive.
10.1 If a member submits an application, this is a request to the other members to submit a binding offer according to section 145 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”) to conclude a purchase contract (so-called "invitatio ad offerendum"). The application shall be displayed to the other members on the marketplace for as long as the member has determined this when placing the application on the marketplace.
10.2 The other Members may accept the Offer or negotiate the Offer (see Section 12 of these GTC).
11.1 When a member publishes a request, this is the request to the other members, to make him a legally binding offer according to section 145 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”) to conclude a purchase contract (so-called “invitatio ad offerendum”). The request will be displayed to the other members in the marketplace for as long as the member has determined when placing the request in the marketplace.
11.2 The other members may negotiate the request (see section 12 of these GTC).
12. Negotiations, "frutraProtect"
12.1 The contract negotiations between the members are designed in such a way that only one member is "on the move" at a time. This means that only this member can bring the sales contract negotiations to a conclusion or continue to negotiate.
12.2 Each state of negotiations is a legally binding offer accoding to section 145 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”) to conclude a purchase contract. The respective negotiating status can be accepted as long as this has been determined by the other member ("valid until").
12.3 After expiry of the validity period, the status of the negotiations can no longer be accepted. Negotiations may only continue. The corresponding button for "Sell" or "Buy" is deactivated in this case.
12.4 Each state of negotiations is subject to the intermediate purchase or intermediate sale. If this reservation applies, this will be made clear by a system message ("frutraProtect"). In this case, the "Buy" or "Sell" button is deactivated and only further negotiations are possible.
13.1 With "frutraProtect", frutra GbR has developed a system to protect its members. "frutraProtect" ensures that the member as seller of a certain product does not sell a larger quantity than the member offers, even if the member offers the product to several potential buyers. Similarly, "frutraProtect" ensures that the member as buyer only purchases the quantity of a product that the member actually wants to purchase, even if it negotiates the total quantity with several sellers in each case.
13.2 The exact functionality of “frutraProtect” is described in detail on the help page at http://frutra.com/faq.html
14. Product responsibility
14.1 The responsibility for the respective product lies solely with the Member.
14.2 The member undertakes to indemnify frutra GbR against all claims asserted by other members, private third parties or authorities relating to products offered or sold by frutra. This applies in particular to any food liability of frutra GbR.
14.3 Section 15 of these GTC shall apply accordingly.
15.1 The member indemnifies frutra GbR against all claims asserted by other members or third parties against frutra GbR due to infringement of their rights by content posted on frutra by the member or due to other use of frutra by the member.
15.2 The member shall bear the costs of the necessary legal defence of frutra GbR, including all court and attorney fees in the statutory amount. This does not apply if the member is not responsible for the infringement.
15.3 The member is obliged to provide frutra GbR immediately, truthfully and completely with all information necessary for the examination of the claims and a defence in the event of a claim by third parties.
16. Limitation of liability
16.1 frutra GbR shall be liable in accordance with the statutory provisions for any breach of material contractual obligations for which frutra GbR is responsible. Essential contractual obligations are those contractual obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose observance the contractual partner regularly trusted and could trust and whose culpable non-performance endangers the achievement of the contractual purpose.
16.2 frutra GbR shall only be liable for all other breaches of duty if damage was caused intentionally or through gross negligence by one of its legal representatives or vicarious agents.
16.3 Insofar as frutra GbR is not guilty of intentional conduct, it shall only be liable for the foreseeable damage typically occurring.
16.4 Liability under the Product Liability Act remains unaffected; this also applies to liability for injury to life, limb or health.
16.5 frutra GbR shall be liable in accordance with the statutory provisions in the event of assumption of a guarantee or fraudulent intent.
16.6 Unless otherwise agreed above, claims for damages against frutra GbR for breach of duty are excluded. This shall apply to the same extent in favour of representatives, employees and other vicarious agents of frutra GbR if claims are asserted directly against them.
16.7 Claims for damages according to section 16 of these GTC become statute-barred within the statutory periods.
17. Applicable law and place of jurisdiction
17.1 The contract of use is subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). For members who are merchants within the meaning of the Commercial Code, Freiburg im Breisgau, Germany, is the exclusive place of jurisdiction for all disputes arising from the contract of use and these GTC. This also applies to members who do not have a general place of jurisdiction in Germany.
17.2 These GTC also exist in a German version. The German version shall be solely and exclusively authoritative in the event of doubt and/or contradictions.
18. Amendments to these GTC, severability clause
18.1 frutra GbR reserves the right to change these General Terms and Conditions at any time, stating the reasons, as long as this is not unreasonable for the members. Permissible reasons for such changes are, in particular, a change in the applicable legal situation and a necessary adaptation of the GTC to this effect as well as an adaptation to changed market conditions. The changed conditions will be sent to the members by e-mail at the latest two weeks before they come into force. If a member does not object to the validity of the new GTC within two weeks after receipt of the e-mail, the amended GTC shall be deemed accepted. frutra GbR will separately inform the members of the significance of this two-week period in the e-mail containing the amended terms and conditions.
18.2 If a provision of these GTC is invalid, the remaining provisions shall remain unaffected. The invalid provision shall be deemed to be replaced by a provision that comes closest to the meaning and purpose of the invalid provision in a legally effective manner. The same applies to any loopholes.