General Term and Conditions
This is a translation into English of the General Terms and Conditions from 01/07/2019 of HappyBart, Winterfeldstr. 15, 10781 Berlin. The English version is for informal purposes only. For all legal matters only the German version is to be considered.
Provider and Scope
- Provider of the internet market place www.happybart.com (hereafter: online platform) and thus contractual partner for the users of this online platform is the company HappyBart (hereafter: Provider).
- These terms and conditions contain the terms and code of conduct for using the online platform and for all legal transactions and quasi-contractual activities which are effected between you and the Provider. It is, however, possible that additional terms are applied for certain special services. These will be made available to you before use in the form of additional terms and conditions. General terms and conditions deviating from these terms are not applicable unless the Provider agrees explicitly.
Specification of Services
- The online platform is an internet market place where home services are offered, sold and bought. The Provider merely acts as an agent arranging contracts between sellers and buyers. Users of the online platform are given the opportunity to place offer for service, and to manage sales procedures via the online platform operated by the Provider. The Provider is no party to the contracts made between the users of the online platform operated by the Provider. Instead, the fulfillment of the contracts concluded via the online platform is effected exclusively between the users.
- A free registration is necessary in order to be able to use the online platform. Member's use of the online platform is only permitted under legal regulations and these general terms and conditions.
- Usage of the Provider's online platform requires the registration of a user account. Account registration is free of charge.
- During registration you state your name, address, phone number, and e-mail address. Furthermore, you choose a user name comprised of your first name and last initial) and password. Additionally, you have to confirm that you have read and accepted the General Terms and Conditions and that you have received the Terms of Revocation. You accept this offer by confirming your email address after your first login and the activation of your user account. The Provider reserves the right to refuse registration without giving reasons.
- All information can be changed or complemented later in your profile settings.
- Your chosen password must be kept confidential. Particularly, you have to ensure that your login data do not come into the possession of any third party who could then use your user account. In case you lose your password or suspect that a third party is using your user profile, you are obliged to inform the Provider immediately. In order to protect your account from the unauthorized access of a third party, you should change your password regularly.
- All natural and legally competent persons above 18 years of age, as well as legal persons can register as a user. In the case of legal persons the registration must be completed by an authorized representative. Account registration for third parties without consent, as well as multiple accounts for a single user are expressly prohibited. The Provider reserves the right to demand that appropriate evidence (excerpt from the commercial register, trade license, regulatory licenses) be provided prior to account activation.
- The data requested during registration is to be entered completely and correctly. Changes of personal data shall immediately be reported and/or corrected by the user in the profile settings. This particularly applies to the termination of business or freelance activities, as well as insolvency and company liquidation. User accounts are not transferable.
- The Provider reserves the right to make the utilization of the service provided dependent on certain requirements, such as the verification of personal user data and the amount of positive and negative ratings or the payment of the agreed commission.
Right of Withdrawal
- The law provides a right of withdrawal for consumers for the provision of services also for distance contracts which are free of charge. Accordingly, we have to inform you about the right of withdrawal as follows: Cancellation policy: A customer is any natural person who concludes a legal transaction which predominantly cannot be attributed to their commercial or freelance activities. Right of revocation: You may revoke this contractual statement up to 24 hours before the start of the arrival time window of your requested services. Should cancellation take place within the aforementioned 24 hour window, a minimum 2 hour fee and call out fee due from the Client payable within 3 days of the original service scheduled date. The right of withdrawal does not apply, if you, upon conclusion of the legal transaction, exercise your commercial or freelance activity and are thus to be regarded as entrepreneur (§ 14 German Civil Code).
- You expressly agree to us commencing the provision of services before the end of the withdrawal period.
- For services rendered to you by us within the period until the withdrawal the agreed payments (prices) are to be paid.
- Account registration, scheduling services, and booking services, are all free of charge.
- If contracts are made via the platform provided, the Provider charges the seller with a fee depending on the value of the service, which is directly withheld. The Provider's right to charge a fee is constituted by the conclusion of a contract between buyer and seller. The right to charge the fee also applies if the contract between the users is not fulfilled at all, or not to the users' satisfaction, unless the Provider is responsible for the result. The right to charge a fee applies regardless of further handling and performance of the contract between the users. In particular, the right to charge a fee does not depend on the payment of the remuneration negotiated between buyer and seller. The amount of the fee charged depends on the Fee Table of the Provider valid at the time of the sales offer.
- Confirmed appointments can be cancelled up to 24 hours before the start of the scheduled arrival window at no cost. Should within 24 hours of the schedule arrival window, the first hour of labor and call out fee will be charged based on the rate of the vendor chosen during booking.
Duration of Contract
- The contract between you and the Provider is concluded for an indefinite duration. The contract may be terminated by you at any time by notifying the Provider within a notice period of two weeks to the end of the month. The notification must be in writing.
- The Provider may terminate the contract at any time within a period of two weeks to the end of the month. The right to suspend user accounts shall remain unaffected by this.
- The right to extraordinary termination of contract of both parties remains unaffected.
Contract Conclusion Between Users
- Booking services on the platform operated by the Provider constitutes a legally binding offer for the conclusion of a contract.
- If a buyer accepts such an offer by adding one or more items to their shopping cart and by confirming the purchase, a legally valid contract between seller and buyer is concluded.
- The price of the purchase is to be paid directly after the comlpetion of services by using the Platform payment methods. Payment directly to the Provider in any other means besdies using the platform voids any guarantee that would otherwise apply, and does not release the Provider of their legal obligation to pay commissions for the transactions. The Platform reserves the right to cancel the account of any provider without notice in the case of the above circumstances.
Rights of Use for Uploading Contents
- You grant the Provider transferable, single rights, unlimited in time and place to the contents published by you on the online platform so far as necessary for operating the online platform.
- In particular, you grant the Provider the right to upload the respective contents to the online platform and to perform the duplication of the contents as necessary (saving to servers etc.). Furthermore, you grant the Provider the right to edit contents in order to better present them on the website. Editing may consist in shortening or editing texts, cutting uploaded images or reducing images as thumbnails. In addition, the Provider is entitled to reproduce, communicate and make publicly available contents in the best possible quality via different terminal devices and different networks (public and private), comprising particularly the right to make the transfer of contents available for fixed and mobile terminal devices (e.g. mobile phones etc.) of other users. The right of public reproduction specifically also includes the right to stream contents on the site.
- If you upload contents to the online platform, you permit other users to use your contents to a certain extent. Uploaded texts thus may be read and any images may be viewed. Inevitably, this involves that the respective content is saved to the memory of the other user's terminal device.
- You commit to the Provider not to upload any illegal contents to the online platform. Accordingly you will particularly not provide, offer to provide access to or advertise contents (in particular photos, videos, texts, graphics, logos etc.) contrary to the provisions of the German Penal Code or to the Narcotics Act, the Pharmaceutical Products Act or the gun control law or which are 1) libellous or defamatory, irrespective of who is affected by these contents, 2) pornographic, glorifying violence, abusive, immoral or violating the law for the protection of children and youth, 3) constitute unacceptable harassment of other users, in particular in the form of Spam according to § 7 UWG (German fair trade law), 4) protected by law (e.g. by the copyright, trademark, patent, design patent or utility model law) without being entitled to do so, or 5) serve the performance or assistance of anti-competitive actions, including progressive customer canvassing (such as chain, snowball or pyramid systems),
- Furthermore, you are prohibited from disseminating or publicly reproducing contents of the online platform or of other users, unless the dissemination and public reproduction is envisaged within the use of the online platform or the other user agreed to the dissemination and public reproduction. In addition, you are prohibited from using hyperlinks in your offers. The Provider reserves the right to remove such links immediately. The placing of sham service requests solely serving to advertise services outside the Provider's platform or to obtain ratings is prohibited. You are likewise prohibited from using the post-contractual communication serving the execution of contracts concluded on the Provider's platform for advertising your own or another's commercial services or merchandise.
Warranties and Indemnities
- You warrant to the Provider that you are entitled and able to grant the rights in the aforementioned scope for the contents posted by you. You warrant especially not to post contents violating copyright, trademark rights or other third party intellectual property rights. Furthermore, you warrant not to post anti-competitive contents. You are obligated to seek information accordingly and, in case of doubts regarding the authorisation, to seek permission of the right-holder. Doubts exist especially, if: 1) it concerns works which are protected under copyright or neighbouring right, such as third party videos, photos, graphics, logos, brands and texts. In this context, it should be noted that you may not alienate or otherwise edit third party works and post the result on the online platform without the consent of the right-holder, 2) a third party contributed to the production of the contents in such a way that they may have acquired a neighbouring right. 3) the contents involve any sensitive information on individual persons or groups of persons, unless the required consent and/or rights of use are at hand.
- Moreover, you warrant to the Provider not to post contents on the online platform which infringe the rights of third parties or the content of which is unlawful or has been declared inadmissible by the Provider.
- The Provider is liable under statutory provision with the following exceptions: If your damages result from the loss of data, the Provider is not liable, provided that the damages could have been avoided by you by regularly and completely backing up any relevant data. The Provider's liability for damages not typical to the contract is excluded. This does not apply if the damage concerns life, body or health, was caused intentionally and by gross negligence, results from the absence of warranted properties or from a culpable violation of a major contractual obligation, the fulfilment of which enables the proper implementation of the contract in the first place and the observance of which the contracting party regularly trusts (cardinal duties). Liability according to the Product Liability Act also remains excluded.
- The Provider is not liable for the accuracy, quality, completeness, reliability, type and character or believability of the content uploaded by the users. Such content does not represent the Provider's opinion and in particular the Provider does not endorse such contents. The Provider is also not liable for the formation, implementation and fulfilment of contracts between users. They only provide the platform for the purpose of allocating offers.
- The Provider is not liable for possible damages and/or misuse of personal data which may arise by your use of a third party app.
- You bear full responsibility for any granting of rights, contributions, contents of your user profile and offers.
- In case the Provider's services are employed via a third party, because you have breached your obligations regarding the granting of rights, you shall indemnify the Provider completely and at first request against any liability and costs, including potential procedural costs. The Provider will inform you immediately about the claim and give you the opportunity to enter a defence against the claims being asserted as far as this is legally necessary and/or possible. The same applies to claims of third parties because the contents violate third party rights regardless of the authorship, especially rights of use and exploitation under copyright law.
- You are responsible to the Provider and third parties for your own contributions, commentaries and any user profile contents, especially regarding the accuracy of the contents. If legal proceedings are taken against the Provider by another user or other third parties due to unlawful contributions, commentaries, user profile contents and/or offers, you shall indemnify the Provider from any liability and costs to the aforementioned extent.
- The use of the online platform via third party apps and similar application programmes shall be at your own risk.
- The Provider shall provide registered users with a user account for the purchase of services on the online platform. The use of this user account is free of charge. The user account is a mere clearing account for services bought by the user.
Extraordinary Contract Termination and Suspension of the Account
- You and the Provider shall have the right to extraordinary contract termination in the event of good cause without notice at all times. An extraordinary contract termination is especially possible in case of major violations against these General Terms and Conditions, violations against the obligation to truthfully submit the required personal data or major violations against the prohibition of posting illegal contents. Furthermore, an extraordinary contract termination shall be considered in case of another good cause, especially in case of the loss of access data or the suspected misuse thereof by a third party. Notice of termination must be given in writing in any event.
- As a less severe measure, the Provider may suspend you temporarily in case of violations against these General Terms and Conditions, in order to urge you to meet your obligations. You will be informed of the suspension in writing. In case of the suspension of the user account or a termination by the Provider for good cause, you are prohibited to re-register on the online platform in order to open a new user account without the prior express consent of the Provider.
- As an even less severe measure the Provider is entitled to delete such offers violating legal regulations or these General Terms and Conditions. In choosing the measures, the Provider will consider your legitimate interests, and in particular, whether you were responsible for the violation.
- The collection of your data serves to be able to offer a user friendly, efficient and secure internet service.
Functional Changes, Transfer of Contract
- The Provider reserves the right to continually adapt, update, extend, restrict, or remove features of the online platform.
- The Provider shall be entitled to transfer all or part of their rights and obligations arising from this contract to a third party by giving four weeks' notice. In this case you are entitled to an extraordinary termination after notification of the transfer of contract.
Amendments to the General Terms and Conditions
- The Provider reserves the right to change these General Terms and Conditions at any time.
- The changes and the new General Terms and Conditions will be sent to you by e-mail. The new General Terms and Conditions shall be considered as agreed, if you do not object to its applicability within six weeks upon receiving the e-mail. The objection has to be entered in writing. In this e-mail the Provider will inform you separately about your possibility of objection, the time limit, the form and the consequences of your inactivity.
- The mandatory consumer protection regulations applicable in the country where you usually reside shall remain applicable, as long as these offer you extensive protection.
- If the user is an entrepreneur, a legal entity under public law or a special fund under public law, as defined by the German Civil Code, the exclusive place of jurisdiction for all disputes arising from the licence agreement and these General Terms and Consitions is the Provider's place of business in Berlin.