TERMS AND CONDITIONS FOR CATERERS
TERMS AND CONDITIONS FOR CATERERS FOR THE USE OF THE INTERNET PLATFORM OF
Address: 6th floor, WeWork, 2 Leman Street, Aldgate Tower, E1 8FA London
Company registration number: 09755215
VAT registration: GB 221 6702 41
Represented by its Managing Director Adrian Frenzel
*Hereinafter referred to as “Caterwings”
§ 1 PREAMBLE
Caterwings operates an online platform, which includes in particular the possibility to order catering services and process orders and payments at www.caterwings.com and the related websites (“Platform”). Commercial end customers (“Customers") can order services in particular in the area of catering via Caterwings. For this purpose, Caterwings uses caterers and buys services from them in the internal relationship to then resell them in its own name to its Customers. Against this background, Caterwings is interested in also selling services of the caterer as a reseller on the platform. The objective of the collaboration between Caterwings and the caterers meanwhile is in particular acquiring new customers for the caterer and the participation of Caterwings in the income generated from this in the form of commission payments. For the inventorying, contact management and offer drafting for catering products, Caterwings has developed the software-as-service solution CATERDESK, which must be used by the caterers.
§ 2 SCOPE OF THE T&C
(1) The following General Terms and Conditions (hereinafter “T&C") apply in their respectively current version and define the conclusion of the cooperation agreement between Caterwings and the caterers, as well as the use of the online marketplace including all functions for offering catering products and catering services. The scope of these T&C does not include, in contrast, exclusive contracts that are concluded between Caterwings and some select caterers on special terms and conditions. Caterwings concludes contracts with Customers in its own name for certain catering services (referred to individually as “Catering Contract"). The separate General Terms of the Caterwings Platform apply to these contracts.
(2) Opposing, deviating or additional T&C of the caterer shall not apply or not become effective parts of the caterer license agreement concluded between Caterwings and the respective caterer, unless Caterwings has expressly agreed to their applicability in writing beforehand.
(3) Caterwings expressly reserves the right to change these T&C at any time without a statement of reasons. The changed terms will be sent by email to the caterer two weeks before the changes take effect. If the caterer does not object to the applicability of the revised T&C within a period of two weeks after receipt of the change notice, this shall be regarded as agreement to the revised T&C. Caterwings shall point out the meaning of the two-week period to the caterer in the email by way of which notice of the change is given.
(4) Caterwings and LEMONCAT GmbH, Dircksenstr. 47, 10178 Berlin, are members of a shared corporate group. As part of the performance of services pursuant to these T&C, Caterwings therefore also cooperates with the LEMONCAT GmbH. At the same time, individual services or tasks can also be performed or fulfilled directly by the LEMONCAT GmbH.
§ 3 SUBJECT OF THE CONTRACT
(1) Against a commission paid to it by the caterer, Caterwings markets and sells catering services and catering products of the caterer, which already exist or which are still to be developed in the future, to new and existing Customers via the Platform. A selection from the caterer’s product range is presented on the Platform by Caterwings and it can be retrieved and booked directly online.
(2) The caterer permits Caterwings to present the catering services on the Platform and accept in its own name orders of catering services placed by Customers.
(3) In consequence of the contractual relationships, neither a partnership nor a joint venture nor an agency or franchise relationship is established in the legal sense between the parties. Caterwings shall purchase and sell the catering services of the caterer in its own name and on own account. Caterwings shall not be authorised to represent the caterer in legal transactions. Caterwings is an independent business and not an employee of the caterer.
(4) All trademarks, designs and other intellectual property rights shall remain the property of the party, which was the original owner of these rights or the owner at the time when the contract was concluded.
(5) Caterwings places great value on sustainability and environmental protection. The caterers undertake to also take suitable measures in the cooperation with Caterwings to realise the aforementioned aims, e.g. by using compostable or biologically decomposable packaging materials and raw materials from sustainable or environmentally friendly cultivation, growing or livestock breeding.
Caterwings can request proof of the compliance with this obligation at any time.
(6) The parties do not agree on any minimum sales targets and Caterwings also does not undertake to accept a minimum quantity.
§ 4 RIGHTS AND OBLIGATIONS OF Caterwings
(1) On the Platform, Caterwings shall offer consulting services, catering services and catering products of the caterer.
(2) Caterwings shall promote and market the offers of caterers in its marketing activities such as press releases, newsletters, online marketing, content marketing, etc.
(3) Caterwings shall moreover use its sales staff to pitch the caterer’s offers.
(4) Caterwings shall communicate the acquired orders on at least one of the following electronic channels – e.g. in the Caterdesk software-as-a-service solution, by email, by telephone, by SMS, by messaging service such as Whatsapp or similar.
(5) Caterwings is explicitly permitted to make bids on brands, company logos and other legally protected terms of the caterer as “search terms” as part of the internet search engine marketing (“brand bidding"). At the same time, Caterwings is permitted in particular, but not exhaustively to book the caterer’s brands and company logos as search terms from the internet search engine “Google” (or comparable providers).
(6) Caterwings offers Customers the possibility to enter reviews of the services performed by the caterers. In the process, the caterer’s services are evaluated subjectively. The review is given for the purpose of evaluating, for example, the punctuality, reliability and quality of the meals provided by the caterer. Caterwings is authorised but not obligated to make these reviews visible to all Customers on the Platform. Caterwings reserves the right to delete the reviews for objectively logical or legally mandatory reasons. The caterer shall not have a right to the deletion of review contributions. The caterer undertakes not to manipulate the review system. A manipulation is given in particular, if the caterer reviews itself or initiates third parties to do so (e.g. own employees, friends or family members) or if it initiates unobjective or misleading reviews of competitors.
(7) Caterwings has discretion in the arrangement of the prices and conditions in relation to Customers.
§ 5 RIGHTS AND OBLIGATIONS OF THE CATERER
(1) The caterer expressly assures that it is a registered merchant (or business in the definition of Sec. 14 BGB [German Civil Code]). Corresponding verifications must be presented in writing to Caterwings. The caterer assures that all employees, who contribute to the performance of the contractually owed services on its behalf and in its name, are paid a salary above the statutory minimum wage where applicable. Moreover, the caterer assures that it places special focus on the promotion of women and the life-work balance within its own business organisation and that it takes suitable measures to reach said goals. Verifications of the compliance with said obligations can be requested at any time by Caterwings.
(2) The caterer furthermore undertakes to use the CATERDESK software, which is made available by Caterwings against payment of a monthly fee, within the scope of the collaboration with Caterwings. The amount of the fee results from the software license terms and tariffs and/or the contracts concluded with the caterer. The software license terms and tariffs of CATERDESK are part of these T&C.
(3) The caterer shall perform consulting services with regard to the selection of meals and composition of menus. The caterer shall perform catering services, take on the punctual delivery of the catering products and guarantee compliance with all official regulations relating to the production, processing and delivery of food and beverages.
(4) The caterer shall provide (or “garnish”) the delivered products that have been brokered by Caterwings, with branding elements, trademarks, logos, etc. of Caterwings (such as decoration, banners, napkins, utensils) on request and at the cost of Caterwings, provided that this does not disrupt the regular production and logistics workflow.
(5) The caterer shall assume the phone and email support for the Customers, in particular but not exhaustively in direct reference to the deliveries.
(6) The caterer shall make all sales and marketing materials – of which, in particular company names, logos, descriptions, texts and photographs, etc. of the respective products – available to Caterwings without limitation in the respectively required language. Caterwings shall be granted the complete locally, temporally and substantively unlimited (simple) rights to use all pictures, texts, videos, trademarks and other contents that the caterer provides to Caterwings. This includes, in particular – but not exhaustively – the right of Caterwings to edit/modify the contents uploaded by the caterers (cf. Sec. 23 UrhG [Copyright Act]), reproduce, disseminate, make publicly accessible and edit these for the performance of the service in accordance with the contract (and, respectively, also beyond the termination of the contractual relationship) for advertising for Caterwings, the online platform, particular offers, the caterers, etc. (e.g. for advertising on the internet, as part of affiliate advertising, e-cards, emails, TV ads, on flyers, posters, in newspapers and magazines, etc.) Caterwings, in turn, can grant the aforementioned
rights to third parties (or transfer them to third parties), whereby no separate duty of Caterwings to pay remuneration shall be established.
(7) If Caterwings and the caterer develop joint Caterwings/caterer products, the caterer shall offer these neither (directly) on its own nor indirectly through other partners.
(8) The caterer undertakes to contact Customers of Caterwings neither directly nor in any other way – in particular not by circumventing Caterwings. This includes all actions by the caterer, which serve the purpose of preventing the creation or assertion of a commission claim of Caterwings. In this sense, the caterer shall also only transmit the marketing materials made available by Caterwings but not its own marketing materials to the Customer. In the event of a violation by the caterer, Caterwings shall be entitled at its own discretion to block the contractual services after prior announcement or to remove the caterer from the Platform and/or terminate the contract with immediate effect for good cause. An exception from this contracting prohibition is the contacting of the Customer by the caterer as intended and in accordance with the contract (e.g. via the online platform or an internal messaging tool, etc.) Prospects, who have been acquired by Caterwings and who are contacted by the caterer directly, in particular so as to negotiate the prices or to place an order shall be referred to Caterwings.
(9) In particular, the following product characteristics shall be assured by the caterer to Caterwings with exclusivity during the period of the standard contract: a) branding according to Sec. 4 (5) and (6) of these T&C; b) free cancellation option for Customers before the event, depending on the order value according to the following stipulations:
up to €1,000 incl. VAT – up to 48 hours before the event; up to €2,000 incl. VAT – up to 5 days before the event; up to €10,000 incl. VAT – up to 3 weeks before the event; beyond €10,000 incl. VAT – up to 8 weeks before the event or on individual agreement.
The caterer undertakes to work towards a mutual agreement with the customer in case of change and cancellation requests. Claims against Caterwings arising from reasons of change and cancellation are excluded.
(10) The caterer undertakes to place a directly recognisable and well visible link in its internet appearance(s) and to embed/provide an online widget to the Caterwings website/Platform that is accessible at the URL www.caterwings.com upon receipt of a seal.
(11) The caterer is obligated to enter its own unavailability for certain dates or periods as early as possible in the online area and to keep these updated at all times. If no entries are noted, the caterer will be regarded as being available.
Offers on caterwings.com that can be booked directly by the Customer are binding. As soon as the customer orders them subject to cost, the caterer undertakes to perform the ordered services.
(12) If Customers place a non-committal request via caterwings.com, the caterer undertakes to either indicate its own unavailability via CATERDESK or make a detailed offer. Offers that are made to Customers on request via CATERDESK are likewise binding. As soon as they are accepted by the Customer, the caterer’s duty to perform the service applies.
(13) In case of a repeated violation of the caterer’s duty to update its own availability status at all times and to answer Customer requests promptly, Caterwings reserves the right to downgrade the caterer in the ranking on caterwings.com or to cancel the contract. Further or other claims of Caterwings shall remain unaffected thereof.
(14) The caterer shall offer its catering services neither on its own nor through third parties at a better price than the one entered on the Caterwings Platform.
(15) In occasional and limited cases the caterer assures, after coordination with the partner manager, to make a total of two tasters for promotion of customers available per month, whereas with a total value of not exceeding €100.
(16) The caterer hereby warrants to Caterwings that it holds all permits that are required for the performance of the offered catering services (“Required Permits”). The caterer will hold all Required Permits at all times during the term of this contract.
(17) The caterer warrants to Caterwings that the goods of its catering services are of high quality, and stored, processed and manufactured in accordance with food regulations, the statute governing restaurants (if applicable) and other relevant regulations.
(18) The caterer shall support Caterwings in the exercise of the activities under these contract and transfer to Caterwings in all cases – also without separate request – the required information and details or enter these on its own in the Caterdesk system made available by Caterwings (if such is provided by Caterwings). The required information also includes details on upcoming or effected changes in the caterer’s prices and product range. Furthermore, the required information also includes the ingredients, constituents, allergens and additives contained in the goods of the caterer’s catering services and other information subject to declaration requirements (according to the applicable laws).
(19) The caterer shall give the Customer a flyer on each delivery of an order, which states not only all information, ingredients, constituents, allergens and additives subject to declaration requirements but also relevant information on the basic price, deposits, etc. exhaustively (according to the applicable laws). The caterer shall indemnify Caterwings from all claims of third parties, which are brought by third parties against Caterwings based on shortcomings of
the caterer with regard to the aforementioned duty (in particular on the basis of Regulation (EU) 1169/2011 on food labelling, German Food Additives Directive, Ordinance on the Quotation of Prices, etc.). In this context, the caterer shall also hold Caterwings harmless to the full extent on first request with regard to any damages or costs.
§ 6 COMMISSION PAYMENTS
(1) Caterwings shall receive a commission for the entire order volume of each brokered transaction for catering services and catering products of the caterer. The caterer’s current commission can be checked at any time in the personal profile under www.caterdesk.com.
(2) Caterwings, as the service recipient, shall issue a statement of the sales revenues and a credit note for this to the caterer (according to Sec. 2 (2) sent. 2 UStG [German VAT Act]). The credit note for catering contracts that have been performed between the 1st and 15th day of a calendar month shall be paid out on the 12th day of the following month after the statement was issued by Caterwings. The payment for catering contracts that have been performed after the 15th day for the calendar month will be paid out on the 22nd day of the following month after the statement was issued by Caterwings.
(3) Caterwings will withhold the commission owed according to Sec. 6 (1) and deduct it from the monthly credit note. Caterwings reserves the right to make payments for additional entries that are 20% above the initially agreed amount only after payment by the Customer.
(4) The payment will be made in the amount as stated in the information on the credit note. Payments for additional entries shall be made exclusively on the basis of the written customer order, either in the password protected online area or as a signed contract. If arrangements with the Customer, in particular regarding additional entries, are made on site on the day of the event, the caterer shall be obligated to send the signed “Catering reorder” form to Caterwings, which can be obtained as a download or from Caterwings on request by telephone. This is the only case in which a right to the consideration and correction of the credit note is established. If a payment-by-consumption agreement has been made for the offer accepted by the Customer, the caterer shall be obligated to inform Caterwings of the final sum within 48 hours. Any agreements between the caterer and Customers made in any other form (e.g. verbally) do not have any binding effect and in particular do not obligate Caterwings for payment.
(5) Caterwings shall inform the caterer in the event of increased costs about a change of prices or commissions in text form by letter or email, at the latest 4 weeks before the changes take effect. In that case, the caterer shall have a right of special cancellation, which can be exercised by the effective date of the change of the increase, and which shall become effective 2 weeks from receipt by Caterwings. If the caterer does not cancel within this period, this will be deemed an agreement.
(6) The caterer may offset against Caterwings’s claims only if these claims have been explicitly accepted by Caterwings or found valid by final and absolute judgement.
§ 7 TERM AND TERMINATIONS
(1) The Agreement is valid for an indefinite period, starting from the registration of the caterer.
(2) The Agreement can be terminated by either of the parties without the statement of reasons toward the end of each calendar month. Any orders already confirmed shall be performed to the full extent by the caterer even after expiration of the contract period.
(3) Both parties can terminate the contract at any time without notice for good cause. Good causes in this respect are, in particular: Violations of individual essential contractual provisions that a party fails to stop immediately, in spite of prior written warning; Discontinuation of the business activity of one of the parties; Insolvency proceedings are opened over the assets of a party or the opening of insolvency proceedings over the assets of a party is rejected for a lack of assets.
(4) Termination requires the written form for validity. Terminations shall have no effect on the use of the CATERDESK software pursuant to the license terms and tariffs applicable to it.
§ 8 LIABILITY
(1) Exclusively the caterer shall be liable to the Customer for all claims relating to the catering services and catering products (e.g. for damage compensation, fulfilment, warranty, etc.) Liability of Caterwings is expressly excluded to this extent.
(2) Exclusively the respective caterer shall be liable for all claims of Customers, competitors, industry associations or other third parties that are brought in connection with labelling obligations. Solely the caterer shall be responsible for the correctness and completeness of the required information. Caterwings does not extend any warranty for contents originating from the caterer. Caterwings shall also not have any obligation to review the information received from the caterer with regard to substantive correctness. The caterer shall indemnify Caterwings from all claims of third parties, which are brought by third parties against Caterwings based on missing and/or incorrect required information (in particular, based on the basis of LMIV, ZZulV, PAngV, etc.) or instead based on violations by the caterer against information or labelling requirements (also with regard to basic price information, deposits and ingredients). In this context, the caterer shall also hold Caterwings harmless to the full extent on first request with regard to any damages or costs.
(3) The caterer shall always update the required information in case of changes, so that it is complete, current and truthful at all times. Corresponding changes shall also be announced to the Caterwings in writing (e.g. by email) without delay. The caterer shall bear all disadvantages
that are caused for it or Caterwings if the caterer has failed to make the change or a timely announcement of a change. In the event of a violation of the update obligation, Caterwings shall be entitled at its own choice to block the contractual services after prior announcement or to remove the caterer from the Platform and/or terminate the contract for good cause with immediate effect. In the normal case, Caterwings shall be informed to sufficient extent in advance of any changes with regard to the required information. Any information not notified or notified not on time cannot be considered by Caterwings or only at a delay.
(4) Caterwings shall be liable to the caterer for damage compensation, regardless of the legal reason, only in case of intent and gross negligence by Caterwings. With the exception of intentional conduct, Caterwings shall not be liable for indirect damages and consequential damages, in particular not for lost profit, production outages and/or business interruptions at the caterer. The caterer shall have to prove intent or gross negligence by Caterwings.
(5) If simple negligence is given, Caterwings shall be liable to the caterer – except for injury to life, body and health – only in cases of a violation of essential contractual duties (so-called cardinal duties).
(6) The caterer shall indemnify Caterwings from all claims – regardless of whether or not insurance cover applies in the individual case – which are brought by Customers, competitors, industry associations or other third parties against Caterwings according to Sec. 8 of these T&C in connection with the caterer’s business activity. This applies equally to costs for in-court and out-of-court proceedings, which are incurred for the representation of Caterwings’s rights in this connection. The indemnification obligation does not apply if the claim is based on a verifiable violation of contractual or statutory duties by Caterwings or its vicarious agents or assistants.
(7) If Caterwings’s liability is excluded or limited, this shall apply equally to vicarious agents and assistants, executive bodies, employees and representatives of Caterwings.
(8) The regulations of the Product Liability Act shall remain unaffected thereof.
(9) The caterer must conclude a liability insurance and provide written verification thereof to Caterwings if needed.
(10) Insofar as the Customer brings liability claims against Caterwings, in particular for deficient catering services and/or belated delivery, which are solely or primarily due to a breach of contract by the caterer, whether in relation to the Customer or Caterwings, the caterer shall indemnify and hold Caterwings harmless from all claims of the Customer or third parties on first request, and reimburse Caterwings for the appropriate costs of legal defence incurred in this connection.
§ 9 COMPENSATION CLAIM OF Caterwings IN CASE OF DISRUPTIONS
(1) Caterwings is authorised to reduce its own payment claim against the Customer in part or in full by granting a rebate in case of default, lateness or quality complaints with regard to the catering services. If disruptions in the services to be performed by the caterer arise for reason of a circumstance within the caterer’s responsibility (e.g. outage of catering services, delay, quality complaints from the Customer) Caterwings can assert a compensation claim against the caterer in an appropriate amount. The agreed date for a delivery agreed with the Customer in the Catering Contract shall be decisive, unless the caterer can prove that the date has not been changed on short notice by the Customer.
§ 10 MISCELLANEOUS AND FINAL PROVISIONS
(1) If individual provisions of this contract should be or become fully or partly invalid or impracticable, the validity of the remaining provisions shall not be affected thereby. Instead of the respectively invalid provision, such valid provision shall be deemed agreed that comes closest to the economic meaning and purpose of the invalid provision.
(2) Additions and changes to these T&C and the contracts concluded on the basis of these T&C require the written form for validity. This applies equally to any change and cancellation of the foregoing clause on the requirement of the written form.
(3) These T&C and the standard contracts concluded on the basis of these T&C are governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(4) The place of jurisdiction for all disputes arising from these T&C and the standard contracts concluded on the basis of these T&C is Berlin.