Status: March 2021

1 Areas of application

1.1 WR Wertstoffbörse Recycling GmbH & Co. KG, Urbanstrasse 71, 10967 Berlin (“platform operator”) offers entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) and legal persons under public law (hereinafter referred to as “users”) the opportunity to use a business-to-business trading system on the online marketplace operated by the platform operator at https://app.recyfy.com (hereinafter referred to as the “marketplace”) in accordance with the provisions of these terms of use. On this marketplace, the platform operator brings together suppliers and buyers of recyclables and waste (e.g. waste paper, industrial waste and other recyclables) (hereinafter: “Recyclables”) and enables them to conclude contracts (hereinafter: “Transactions”). The platform operator itself is merely an intermediary, it does not obtain possession or ownership of the Recyclables or waste and does not itself become a contractual partner to the contracts concluded between the users for the exchange of the goods.

1.2 These Terms of Use conclusively contain the terms and conditions applicable between the platform operator and the user for the services offered by the platform operator under this service contract. Any provisions deviating from these terms of use shall only apply if confirmed in writing by the platform operator. With the admission according to section 4 of these terms of use, the user accepts these terms as authoritative.

1.3 The platform operator shall notify the user of any amendments to these Terms of Use in text form, regularly by e-mail. If the user does not object to such amendments within six weeks after receipt of the notification, the amendments shall be deemed agreed. The user shall be informed separately of the right to object and the legal consequences of silence in the event of an amendment to the terms of use.

2 Use of the marketplace

2.1 The portal is used via web access. This requires an active internet connection.

2.2 The user is entitled to access the marketplace with the agreed number of users.

2.3 Use of the marketplace requires a compatible PC system, smartphone, tablet or compatible other device. Information on compatibility can be found on the website of the platform operator.

2.4 The user is not authorised to circumvent technical limitations of the marketplace.

2.5 The data transfer point for incoming and outgoing data of the marketplace is the WAN interface to the Internet of the portal server operated by the platform operator.

2.6 The platform operator shall endeavour to ensure the continuous availability of the marketplace. No guarantee is given for the continuous availability of the marketplace. Downtimes may occur in particular due to necessary maintenance work. The platform operator reserves the right to carry out maintenance work every day between 11.00 p.m. and 6.00 a.m., during which time continuous availability cannot be guaranteed. The platform operator shall endeavour to limit the number and duration of such work.

3 Services of the platform operator

3.1 The Marketplace is a platform for buyers and suppliers of recyclable materials and waste.

3.2 The services of the platform operator consist, inter alia, of:

1. Providing access to and use of the market place after admission of the user in accordance with section 4;
2. Enabling negotiations and conclusion of contracts on the market place by means of advertisements (requests and offers) initiated by the user pursuant to section 5.
3. Creation of information and communication possibilities among the users or contracting parties.

4 Admission and access to the marketplace, transaction fees

4.1 The prerequisite for the use of the market place is the activation of the user by the platform operator. The marketplace is only available to entrepreneurs within the meaning of section 14 of the German Civil Code (BGB) and legal persons under public law. There is no entitlement to activation for use of the marketplace. The activation of a user is at the discretion of the platform operator. If the user is inactive for longer than 3 months (no login / no trading activity), the platform operator may set the user to inactive or deactivate him completely after a reminder. The company is recommended to place at least three advertisements per quarter on the marketplace.

4.2 In the onboarding form, the user must provide, among other things, his company and invoice data and prove that he has a permit to trade in waste and, if applicable, also to transport waste. At the request of the platform operator, he must also provide further information within the scope of the onboarding or thereafter, which is required, for example, due to tax or regulatory requirements. The user is obliged to provide the platform operator with a certificate pursuant to Section 22f (1) sentence 2 of the German Value Added Tax Act (UStG) or – if the electronic certification procedure has been introduced – an electronic confirmation pursuant to Section 22f (1) sentence 6 UStG when registering to use the marketplace. For users from countries other than Germany, a certificate corresponding to the regulatory content of the German law must be provided here.  Activation can take place with reservations and under the condition that the company provides a VAT certificate within the next two months after activation. If a transaction occurs within this period, the platform operator reserves the right to cancel the resulting transaction in the event of non-compliance. All information in the profile, company and trade profile and contact profile must be filled in truthfully. The organisation administrator is the profile owner and can invite further users, but he is obliged to inform and instruct these further users about rights and obligations. In addition, the organisation administrator and invited users must regularly attend training sessions on new functions. All information shall be kept up to date by the organisation administrator who has completed the company profile.

4.3 Transactions are subject to transaction fees payable to the Platform Operator. Information on transaction fees can be found here. The fee to be paid by the user is based on the current price conditions, which can be viewed on the website of the platform operator and on the marketplace. Any free fees paid by users must be claimed within the first three months after activation, as they will otherwise expire. Any additional free quantities made available to the company by individual agreement expire within one quarter with the start of the activation of the free quantity. In the case of fixed quantities, graduated prices for the brokerage fee can be agreed individually.

4.4 Unless otherwise agreed, the respective fee shall be invoiced by the platform operator after the conclusion of a transaction and shall be due immediately after invoicing without deduction, but plus VAT at the applicable tax rate. The User agrees to the storage of the billing data for purposes of evidence and/or within the scope of the statutory retention obligations.

4.5 The user guarantees that the information he provides to the platform operator and other users, in particular within the scope of his application for activation pursuant to section 4.2, is true and complete. He undertakes to notify the platform operator immediately of any future changes in the information provided (e.g. address, managing director, etc.).

4.6 The platform operator is entitled to withdraw a user’s admission or to block access to the marketplace if there is sufficient suspicion that the user has violated these terms of use. The user may avert these measures if he eliminates the suspicion by submitting suitable evidence at his own expense. In particular, the platform operator may withdraw the user’s authorisation or deactivate the user’s access if

• the user is inactive for more than three months (no login)
• the conditions of a concluded transaction are not complied with
  required documents are not submitted
• sales tax certificates and other permits are not submitted
• the data in the profile is incorrect or not kept up to date
• several trainings have not been attended and
• data from advertisements on the platform are used to conclude a transaction outside this platform.

4.7 All user accounts are individualised and may only be used by the respective authorised user. The user is obliged to keep the access data secret and to protect it from unauthorised access by third parties. In the event of suspected misuse by a third party, the user shall inform the platform operator thereof without delay. As soon as the platform operator becomes aware of the unauthorised use, it will block the access of the unauthorised user. The platform operator reserves the right to change a user’s access data; in such a case, the platform operator will inform the user immediately.

4.8 The platform operator is entitled to adjust his fee model. The user will be informed of this and then has the right to deactivate his profile.

5 Conclusion of contracts on the marketplace

5.1 Users have the opportunity to place advertisements for negotiation and to submit binding offers. Before submitting an advertisement, the user has the opportunity to correct his or her details. Advertisements do not contain a legally binding offer in the sense of § 145 BGB (German Civil Code), but only represent an invitation to submit offers (“invitatio ad offerendum”). Users are not permitted to participate as a trading partner in an advertisement (offer or request) opened by their company. Likewise, users may not participate in an advertisement as a trading partner through third parties acting on their behalf. Advertisements and requests may be terminated by the placing user at any time. It is not permitted to conclude transactions advertised via recyfy offline. In the event of infringements, the user will be warned and deactivated in the event of a further infringement. The company will be informed of the infringement. The platform operator reserves the right to assert claims for damages.

5.2 Trading parties have the possibility to select trading partners according to individual criteria and to submit binding offers or counter-offers for their advertisements. Before submitting an offer or counter-offer, it is possible to correct the information entered by the user. The counter-offers submitted are binding and irrevocable declarations to conclude the contract advertised. Users have no right to be invited to participate in advertisements. Advertisements are regularly validated for market relevance. Users are encouraged to formulate realistic advertisements that are in line with the market. In the event of a negative validation, the creator will be advised to revise his listing. recyfy may remove a listing from the marketplace if it does not conform to market conditions.

5.3 The creator of the advertisement is free to choose whether and which of the offers or counter-offers received he wishes to accept. Unless the parties agree otherwise, a contract shall be concluded if the creator of the advertisement accepts the offer or a specific counter-offer of the other party by individual selection. Acceptance takes place via the technical option provided to the creator of the advertisement on the marketplace to respond to the offer or counter-offer with an acceptance.

5.4 Each quarter, the registered company shall place advertisements in the amount of at least 1,000 tons and trade 300 tons. If the User does not trade to the extent stated, he may be transferred to a functionally restricted version at the discretion of the Platform Operator. As soon as the user wishes to place corresponding quantities again, he can be switched back to the fully functional version.

5.5 Actions using the respective login of a user account are attributable to the user to whom the user account belongs. Users are responsible for all declarations of intent made on the platform through one of the user accounts belonging to them. For declarations made by third parties under a user account of the user, they shall be liable to a foreseeable extent in accordance with the principles of a contract with protective effect for third parties.

5.6 The system time applicable on the platform of the respective marketplace shall apply exclusively to all transactions on the marketplace. Offers or counter-offers may only be submitted within the term of listings specified by the creator of the listing.

5.7 The platform operator reserves the right to change or expand the content, structure and functionality of the platform as well as the associated user interfaces if the fulfilment of the purpose of the contract concluded with the user is not or not significantly impaired thereby. The platform operator shall inform the users of the marketplace about the changes accordingly.

5.8 Contracts on the purchase or sale of recyclable materials and waste via the marketplace are concluded exclusively between the supplier and the buyer and not with the platform operator. Consequently, the platform operator assumes no responsibility for such contracts and is neither the representative of the creator of the advertisement nor of the supplier or purchaser. Transactions that have arisen via recyfy are obligatory and serve to initiate business. Should a party fail to fulfil its obligation to deliver or accept, a warning will be issued. In the event of a further breach, this will be deactivated.

6 Ratings

6.1 If a rating function is available, which is at the discretion of the platform operator, users may rate each other and be visible to other users, provided that:

• the parties have previously concluded a legal transaction and the rating relates to this,
• the rating is factual and truthful and does not violate legal provisions, in particular it is not defamatory, insulting or threatening, contains advertising statements or otherwise violates the law.

6.2 The platform operator may remove a rating that does not comply with the regulations in section 6.1 or is otherwise abusive. No obligation is assumed in this respect; in particular, the platform operator will not review ratings unless the platform operator has been sufficiently informed of the illegality of a rating.

6.3 In the event of a violation, the platform operator may take measures according to section 7.

7 Sanctions

7.1 In the event of concrete indications of a violation of the law, a violation of these Terms of Use, a violation of the rights of third parties or if there is any other justified interest of the platform operator and taking into account the interests of the users concerned, the platform operator reserves the right to

1. deactivate advertisements
2. to switch to a functionally restricted version and
3. to warn users and
4. temporarily or permanently exclude users from using the platform.

7.2 If the user does not fulfil his tax obligations or does not fulfil them to a significant extent (tax unreliability) and if the platform operator is informed of this by the user’s tax office in accordance with § 25e para. 4 UStG (German Turnover Tax Act) or if the platform operator becomes aware of the user’s tax unreliability in some other way, the platform operator is entitled to exclude the user from using the marketplace without notice. In such cases, the platform operator shall take all necessary technical measures to prevent further use of the marketplace. The right to assert claims for damages remains reserved.

8 Duties of the users

8.1 Advertisements are inadmissible if

• the information in the advertisement is so incomplete that the object and price cannot be determined;
• the advertisement or the transaction would violate legal provisions, official orders or morality according to the legal system applicable to the intended contract. In particular, no items may be offered whose offer or sale violates the rights of third parties; the same applies to pornographic articles or articles harmful to minors, weapons, drugs, propaganda material of anti-constitutional organisations and parties, live animals and items whose offer and sale is inadmissible. The platform operator is entitled to remove such an advertisement from the marketplace immediately.

8.2 The user is responsible for the completeness and accuracy of the information in an advertisement and in his profile.

9 Processing of contracts concluded on the marketplace

9.1 The processing of contracts concluded on the marketplace is the sole responsibility of the respective users. The platform operator shall not assume any warranty or guarantee for the fulfilment of the contracts concluded on the marketplaces between the users nor any liability for material defects or defects of title of the traded recyclable materials. The platform operator shall have no obligation whatsoever to ensure the performance of the contracts concluded between the users.

9.2 Users are obliged to comply with all legal requirements for the sale of goods via the platform and with information obligations in this respect. In particular, users are obliged to comply with all public-law requirements and authorisation reservations when handling recyclable materials or waste. If transboundary shipments within the meaning of the EC Waste Shipment Regulation take place, only the users are to be regarded as any notifier on the basis of this Regulation or as the person initiating the shipment within the framework of the requirements of the so-called Annex VII procedure. Public-law classifications of recyclable materials and waste are carried out by the users on their own responsibility; the same applies to the keeping of forms and declarations prescribed by public law. In particular, the user is responsible for the correct classification in accordance with the Waste Catalogue Ordinance and the Basel Code as well as DIN EN 643; he is also responsible for the correct classification of substances as products or waste. The platform operator is not to be regarded as the person responsible under public law from any point of view.

9.3 The platform operator cannot guarantee the true identity and the power of disposal of the users. This also applies to the monitoring of compliance with any regulatory requirements for the users (e.g. existence of a permit to trade in waste). In case of doubt, both contractual partners are required to inform themselves in an appropriate manner about the true identity as well as the power of disposal of the other contractual partner as well as other requirements for him.

10 Liability of the platform operator

10.1 The platform operator shall be liable without limitation for intent and gross negligence, but for slight negligence only in the event of a breach of material contractual obligations. Material contractual obligations are obligations the fulfilment of which makes the performance of the contract possible in the first place and on the fulfilment of which the user may therefore regularly rely. Liability in the event of a breach of such a material contractual obligation shall be limited to the damage typical for the contract, the occurrence of which the platform operator had to expect at the time of conclusion of the contract on the basis of the circumstances known at that time.

10.2 The platform operator shall not be liable for disruptions within the line network for which the platform operator is not responsible. The platform operator assumes no liability for an incorrect classification of recyclable materials and in particular waste with regard to the Waste Catalogue Ordinance or with regard to the European Waste Catalogue and an associated allocation of a specific waste code or the allocation of an incorrect Basel code in accordance with the EC Waste Shipment Regulation. Users are solely responsible for the correct classification. Such classification must always be carried out by the waste producer.

10.3 The platform operator shall only be liable for the loss of data in accordance with the above paragraphs if such loss could not have been avoided by appropriate data backup measures on the part of the user.

10.4 Liability shall not extend to impairments of the contractual use of the services provided by the platform operator on the marketplace caused by improper or incorrect use by the user.

10.5 The above limitations of liability shall also apply mutatis mutandis in favour of the platform operator’s vicarious agents.

10.6 The above limitations of liability shall not apply in the event of injury to life, limb or health and in the event of mandatory liability under the Product Liability Act.

10.7 Insofar as the marketplace offers the possibility of forwarding to databases, websites, services, etc. of third parties, e.g. through the marketplace, this shall not apply. third parties, e.g. by setting links or hyperlinks, the platform operator shall neither be liable for the accessibility, existence or security of these databases or services nor for their content. In particular, the platform operator is not liable for their legality, correctness of content, completeness and up-to-dateness.

11 Third-party content

11.1 Users are prohibited from posting content (including through links or frames) on the marketplace that violates legal regulations, official orders or morality. Furthermore, they are prohibited from posting content which infringes the rights, in particular copyright or trademark rights, of third parties.

11.2 The platform operator does not adopt third-party content as his own under any circumstances. The user guarantees the platform operator and the other users of the platform that the goods and services offered by him in advertisements do not infringe any copyrights, trademarks, patents, other industrial property rights or trade secrets.

11.3 The platform operator reserves the right to block third-party content if such content is punishable under the applicable laws or is recognisably used for the preparation of punishable acts.

11.4 The user shall indemnify the platform operator against all claims asserted by third parties against the platform operator due to the infringement of their rights or due to legal violations based on the advertisements or contents posted by the user, insofar as the user is responsible for these. In this respect, the user shall also bear the costs of the platform operator’s legal defence, including all court costs and lawyers’ fees.

12 Other obligations of the user

12.1 The user is obliged to

• to set up and maintain the necessary safety precautions during the entire term of the contract. This essentially refers to the careful and conscientious handling of logins and passwords;
• to inform the platform operator immediately of any technical changes occurring in his area if they are likely to impair the provision of services or the security of the platform operator’s marketplace;

12.2 to cooperate in the clarification of attacks by third parties on the market place, insofar as this cooperation by the user is required;

12.3 to conduct business on the marketplace exclusively within the scope of commercial business operations for commercial purposes.

12.4 The user undertakes to refrain from all measures which endanger or disrupt the functioning of the marketplace and not to access data to which he is not entitled. Furthermore, he must ensure that the information and data he transmits via the marketplace do not contain any malware. The user undertakes to compensate the platform operator for all damages resulting from the user’s failure to comply with these obligations and, in addition, to indemnify the platform operator against all claims of third parties, including lawyers’ fees and court costs, which they assert against the platform operator due to the user’s failure to comply with these obligations.

13 Assignment and set-off

13.1 A partial or complete transfer of the user’s rights from the contract with the platform operator to third parties is excluded.

13.2 The user is only entitled to set-off against the platform operator with undisputed or legally binding counterclaims.

14 Terms of payment

The user shall receive an invoice electronically for the completed month. The term of payment is 14 days after receipt of this invoice. As a rule, payment is made electronically; in special cases, another method of payment may be agreed.

15 Duration of contract

15.1 The contract underlying these Terms of Use is concluded for an indefinite period. It shall commence with the activation of the user by the platform operator in accordance with section 4.

15.2 The contract may be terminated by either party with three months’ notice to the end of the month.

15.3 Either party has the right to terminate the contract for good cause without notice. An important reason for the platform operator is in particular

• the violation of the provisions of these Terms of Use by a user which is not remedied even after a period of notice has been set;
• the tortious act of a user or the attempt to commit such an act, e.g. fraud;
• the User’s default of payment in accordance with the payment to be made by the User pursuant to sections 4.2 and 4.3 by more than six weeks;
• permanent operational disruptions due to force majeure beyond the control of the platform operator, e.g. natural disasters, fire, breakdown of line networks through no fault of the platform operator.

15.4 Any termination must be made in text form (e.g. by e-mail).

16 Connection of technical systems

The marketplace may be connected to an external ERP system (IT system). The type and duration of a connection shall be described and concluded in a separate project contract. The General Terms and Conditions for Technical Services shall apply to the implementation and operation. These shall be attached to the project contract.

17 Final provisions

17.1 The law of the Federal Republic of Germany shall apply to the exclusion of conflict of laws provisions. The place of jurisdiction for all legal disputes is Berlin. The platform operator is also entitled to bring an action at the user’s general place of jurisdiction.

17.2 Should individual provisions of these Terms of Use be or become invalid or contradict the statutory provisions, this shall not affect the validity of the remaining provisions of the Terms of Use. The ineffective provision shall be replaced by the contracting parties by mutual agreement with a provision that comes as close as possible to the economic purpose of the ineffective provision in a legally effective manner. The above provision shall apply accordingly in the event of loopholes.