FIMOFO e.K. (hereinafter: Provider) provides the entrepreneur (hereinafter: Customer) with an online platform for location advertising for street food, as well as the possibility to offer gastronomic services through catering. This serves as a sales and marketing channel as well as a digital marketplace. Contractual partners of FIMOFO e.K. are exclusively entrepreneurs and businesses. For all services that the provider provides on or through this platform, including the related functionalities, these General Terms and Conditions (hereinafter: GTC) apply, unless otherwise agreed in accordance with these GTC. Deviating agreements before or at the time of contract conclusion must be made in writing (here and hereinafter: including postal mail and email).
2. Conclusion of contract
2.1 In order to use the free basic services, the customer must register with the provider free of charge. For this purpose, the Provider shall provide the Customer with a digital registration process. The registration is carried out by the customer on his own responsibility by providing the company data and contact details. By registering, the customer confirms that he/she is acting as an entrepreneur within the meaning of § 14 BGB (German Civil Code). In particular, the customer releases the provider from liability with regard to the violation of copyrights and/or trademark rights.
The customer may then use the basic services without restriction. The contract for the use of the basic services between the provider and the customer comes into effect with the provider's feedback. There is no right to admission. The decision is made solely by the provider.
2.2 Contracts for the use of chargeable services are concluded by the customer ordering these in the access-protected area. Chargeable functions include booking a location for a specific weekday or a selected date or dates specifying the stand time, booking catering, booking as an event service provider, and booking event venues specifying the maximum number of guests, so that a listing can be created under the respective category in the search.
The booking of a weekday with the chosen stand time applies to each corresponding weekday of the current month. The booking for a specific date applies once for the selected date or selected dates. The booking of catering, booking as an event service provider, or booking of event venues each applies for the entire current month. The amount of remuneration for booking an event venue depends on the maximum number of guests specified by the customer.
Bookings of a weekday, catering, event service provider services, or event venues remain active until the selected expiration date. If no expiration date has been defined, a booking is extended for an additional month each time against payment. In this case, cancellation is possible at any time.
If a booking is canceled during the current month, the full amount for this month must still be paid. The same applies to a booking of a selected date or dates; the full amount for the respective date or dates is still due.
2.3 The customer is obliged to specify the correct and complete maximum number of guests when booking an event venue. The actual capacity of the venue is decisive. The customer must book the price category within whose capacity range (from...to) his maximum number of guests falls. If the actual capacity of the venue deviates from the booked category, the provider is entitled to immediately adjust the remuneration from the time of discovery to the price of the next higher, actually applicable category.
2.4 If an already created food truck is deleted, all associated locations are released and any active bookings are automatically canceled.
2.5 Chargeable functions can only be used if a billing address has been previously specified, and a bank account has been deposited with consent to the SEPA direct debit mandate.
3. Use and requirements
3.1 The customer receives access to the services upon conclusion of the contract in accordance with section 2. Each account may only be used by the customer to whom the account was assigned during registration. The customer must keep the account data secret and protect it from access by third parties by taking appropriate precautions. In the event of infringement, the Provider reserves the right to block the Customer's access.
3.2 The Provider shall make the services available to the Customer on a continuous basis, but to the exclusion of maintenance work and technical failures for which the Provider is not responsible. As far as possible, the Provider shall inform the Customer about planned maintenance work in good time.
3.3 The services of the Provider do not include the procurement and provision of hardware and software for the input and retrieval of information and data.
3.4 The Provider is entitled to temporarily block the Customer's account if the Customer is guilty of serious breaches of contract, in particular breaches of the obligations listed in section 6, or if there is sufficient suspicion. If the customer continues the violation despite a warning or if the violation is so serious that the provider cannot reasonably be expected to continue the contractual relationship, the provider is entitled to terminate the contract without notice and without reimbursement of any amounts paid.
4. Rights and duties
4.1 For the term of the contract, the Provider grants the Customer a simple, non-exclusive right to use the services within the scope of his commercial or self-employed activity for his own use. The customer may only use content which he receives from the provider for his own use within the scope of his commercial or self-employed activity. Any use beyond this is excluded. Violations will result in the account being blocked.
4.2 The customer is obliged to use the services of the provider exclusively for the intended purpose and in compliance with the restrictions resulting from the respective service descriptions and in compliance with the contractual secondary obligations. When using the services, the customer shall refrain from any violation of legal provisions and from misuse. In particular, he is obliged to observe all rules generally applicable to the use of the Internet.
The customer is solely responsible for keeping his data up to date. If changes are made to data already stored in the system, the customer is obliged to update this data immediately after the change. The customer is liable for the correctness of the data provided to third parties.
5. Changes in performance
5.1 The Provider is entitled to update, expand, exchange or restrict functions at any time in order to ensure their quality standard, insofar as this does not disproportionately disadvantage the Customer. This is especially not the case if technical changes are necessary or safety aspects require this. A deviation to the detriment of the customer is not permissible. The provider is free to choose the technical means to provide the agreed services.
5.2 In the event of restrictions, the customer shall have an extraordinary right of termination.
6. Remuneration
6.1 The amount of remuneration for the provider's services depends on the price lists and conditions applicable at the time of contract conclusion, possibly applying the current dynamic discount system. For booking event venues, the maximum number of guests specified by the customer is price-determining. For monthly flat rates, the full month is calculated, while for bookings of a selected date or multiple dates, the actual number of booked dates is used as the basis.
All prices are in Euro plus statutory VAT. Shipping costs only apply in case of a chargeable order of physical products, which are specifically marked as such.
6.2 The remuneration becomes due at the end of the respective service month. All bookings of a month are invoiced monthly in the total quantity and sum of all costs plus VAT. Invoices are always sent at the beginning of the following month and exclusively by email. The amount determined with the invoice is collected exclusively via a direct debit procedure 14 days after the invoice date.
6.3 The Provider reserves the right to increase the remuneration appropriately with three months' notice to the end of the quarter. In this case, the Provider shall be obliged to inform the Client in writing in compliance with the aforementioned period. In the event of increases of more than 15%, the customer shall have an extraordinary right of termination.
6.4 Offsetting by the customer is excluded unless the counterclaim is legally established, ready for decision or undisputed. The customer may only assert a right of retention against claims of the supplier insofar as it is based on claims from the same contractual relationship that are undisputed, ready for decision or legally established.
7. Warranty
7.1 The warranty for defects shall be governed by the statutory provisions, with the exception of paragraphs 2 and 3.
7.2 The Provider shall provide its services with the care to be expected. There is no warranty for the data and functions.
7.3 The customer shall only be entitled to claims for damages due to defects insofar as the liability of the provider is not excluded or limited in accordance with § 8.
8. Liability
8.1 Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the provider, its legal representatives or vicarious agents. Material contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
8.2 In the event of a breach of material contractual obligations, the Provider shall only be liable for the foreseeable damage typical for the contract if such damage was caused by simple negligence, unless the Customer's claims for damages are based on injury to life, body or health.
8.3 The limitations of liability resulting from paragraphs 1 and 2 do not apply if the supplier has fraudulently concealed the defect or has given a guarantee for the quality of the item.
8.4 The limitations of paras. 1 and 2 also apply in favour of the legal representatives and vicarious agents of the supplier if claims are asserted directly against them.
8.5 With the exception of claims arising from tort, claims for damages by the customer, insofar as the customer is an entrepreneur, shall become statute-barred one year after the statutory commencement of the limitation period.
9. Contract period
9.1 Bookings remain active until the selected expiry date. If no expiry date is defined, a booking is extended by one month at a time until the booking is cancelled.
Termination
9.2 The right to terminate without notice for good cause remains unaffected.
9.3 Bookings can only be cancelled individually; if a Foodtruck is cancelled, all active bookings are automatically cancelled (see 2.3).
9.4 The cancellation can only be made via the booking system by means of the selection field "Cancel booking".
10. Final clauses
10.1 The law of the Federal Republic of Germany shall apply to contracts between the Provider and the Customers to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
10.2 The place of performance for all obligations of the contractual partners is at the registered office of the Provider.
10.3 The exclusive place of jurisdiction for all disputes arising from contractual relationships between the customer and the provider is the provider's registered office.
10.4 Should individual provisions in these General Terms and Conditions or the Special Terms and Conditions be void, the remainder of the contract shall remain valid.
10.5 Amendments to the contract or ancillary agreements must be made in writing. The same applies to the waiver of this formal requirement. The same applies to amendments to the GTC. In this case, the customer must be notified in writing with one month's notice before the new GTC come into force. In this case, the customer has an extraordinary right of termination.
