Terms of Use for recyfy

Status: March 2021

  1. Area of Application

1.1 Within the context of a Service Agreement, WR Wertstoffbörse Recycling GmbH & Co. KG, Boxhagener Str. 72, 10245 Berlin (“platform operator”) offers companies within the meaning of Article 14 of the German Civil Code (BGB) and legal entities under public law (hereinafter referred to as “primary users”) the opportunity to use a Business-to-Business trading system on the online marketplace (hereinafter: “marketplace”) operated by the platform operator at https://app.recyfy.com in line with the specifications of these Terms of Use. On this marketplace, the platform operator brings together suppliers and customers of recyclables and wastes (e.g. waste paper, industrial waste and other “recyclables”) and enables them to conclude contracts (hereinafter: “transactions”). The platform operator itself is only a broker; it does not acquire possession or ownership of the recyclables or waste and does not itself become a contracting partner in the contracts concluded between the primary users on the exchange of the goods.

1.2 Finally, these Terms of Use contain the conditions for the services offered by the platform operator as part of this Service Agreement that are applicable between the platform operator and the primary user. Any regulations that deviate from these Terms of Use apply only if they have been confirmed in writing by the platform operator. With approval in accordance with No. 4 of these Terms of Use, the primary user acknowledges these terms as applicable.

1.3 Changes to these Terms of Use shall be communicated to the primary user by the platform operator in text form, regularly by e-mail. If the primary user does not object to such changes within six weeks of receiving the communication, the changes shall be deemed to have been accepted. In the event of a change to the Terms of Use, the primary user will be specifically advised of the right to object and the legal consequences of remaining silent.

2. Use of the Marketplace

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

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

2.3 Use of the marketplace requires a compatible PC system, smartphone, tablet or other compatible device. You can find information about compatibility on the platform operator’s website.

2.4 The primary user is not entitled to circumvent technical restraints of the marketplace.

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

2.5 The platform operator will endeavour to ensure continuous availability of the marketplace. No guarantee of continuous availability of the marketplace is given. In particular, downtimes may result due to necessary maintenance work. The platform operator reserves the right to undertake maintenance work every day between 23:00 and 06:00 hours; continuous availability is not guaranteed between these hours. The platform operator will endeavour to limit the frequency and duration of such work.

3. Platform Operator Services

3.1 The marketplace is a platform for customers and suppliers of recyclables and waste.

3.2 The platform operator’s services include:

  • provision of the access and usage opportunities of the marketplace after approval of the primary user in accordance with No. 4;
  • enabling negotiations and the conclusion of contracts on the marketplace by means of advertisements placed by the primary user (buyer inquiries and supplier offers) in accordance with No. 5;
  • creating information and communication opportunities among the primary users or contracting parties;

4. Approving and Granting Access to the Marketplace, Transaction Fees

4.1 The platform operator must activate the primary user in order for them to able to use the marketplace. The marketplace is available only to companies within the meaning of Article 14 BGB and legal entities under public law. There is no entitlement to approval to use the marketplace. The approval of a primary user is left to the sole discretion of the platform operator. If the primary user is inactive for longer than 3 months (no log-in/no trading activity), after a reminder the platform operator may set the primary user to inactive or completely deactivate it. It is recommended that companies place at least three advertisements on the marketplace per quarter.

4.2 In the onboarding form, the primary user must state its company and invoice data and prove that it has a permit for dealing in waste and, where appropriate, for transporting waste. At the request of the platform operator, it must also add further information during onboarding or afterwards that may be necessary for tax or regulatory requirements. The primary user is required to provide the platform operator with a certificate according to Article 22f para. 1 sentence 2 of the German Turnover Tax Act (UStG) or – if the electronic certification process has been introduced – an electronic confirmation according to Article 22f para. 1 sentence 6 UStG when registering for use of the marketplace. For primary users from countries other than Germany, a certificate corresponding to the regulatory content of the German legislation must be submitted. Approval may be granted provisionally and subject to the proviso that the company will submit a turnover tax certificate within the two months following approval. If a transaction comes into being during this period, the platform operator reserves the right to cancel the transaction in question in the event of non-compliance. All information in the profile, company and trade profile and contact profile must be completed truthfully. The organisation administrator is the profile owner and can invite other users but is required to inform these other users of their rights and obligations and to make them adhere to them. Furthermore, the organisation administrator and invited users must regularly attend training courses on new functions. All information must be kept up to date by the organisation administrator who completed the company profile.

4.3 The transactions incur transaction fees to be paid to the platform operator. You will find information on the transaction fees here. The fee to be paid by the user is based on the current price conditions, which can be seen on the platform operator’s website and on the marketplace. Users must make use of any exempt amounts in the first three months after approval, otherwise they will expire. Any other additional exempt amounts made available to the company through an individual agreement will expire within a quarter, starting with approval of the exempt amount. In the case of fixed amounts, graduated amounts for the commission fee can otherwise be individually agreed.

4.4 Unless agreed otherwise – the fee incurred will be invoiced by the platform operator after the end of a transaction and become due immediately after invoicing without deduction, but plus turnover tax at the applicable rate. The user agrees to the invoicing data being saved for the purposes of proof and within the context of the statutory archiving obligations.

4.5 The user is responsible for ensuring that the statements made by him to the platform operator and other users are true and complete, in particular within the context of its application for approval according to No. 4.2. It undertakes to inform the platform operator of all future changes to the statements made (e.g. address, managing director, etc.) without undue delay.

4.6 The platform operator is entitled to withdraw approval from a user or block access to the marketplace if there is sufficient suspicion that it has infringed these Terms of Use. The user can avert these measures if he dispels the suspicion by submitting appropriate evidence at its own expense. In particular, the platform operator can withdraw approval from the user or deactivate this access if

  • the user is inactive for longer than three months (no log-in)
  • the conditions of a completed transaction are not adhered to
  • required documents are not submitted
  • turnover tax certificate and other permits have not been submitted
  • the data in the profile are incorrect or not kept up-to-date
  • multiple training courses have not been attended and
  • data from advertisements on the platform have been used to conclude a transaction outside this platform.

4.7 All user accounts are individualised and may be used only by the authorised user. The user is required to keep the access data secret and protect them from unauthorised access by third parties. If there is a suspicion of misuse by a third party, the user must inform the platform operator without undue delay. As soon as the platform operator becomes aware of the unauthorised use, he will block access by 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 of this without undue delay.

4.8 The platform operator is entitled to adapt its fee model. The user is informed of this and, in turn, has the right to deactivate its profile.

5. Concluding Contracts on the Marketplace

5.1 Users have the opportunity to post advertisements for negotiation and to make binding offers. Before submission, the users have the opportunity to correct its information. Advertisements contain no legally binding offer within the meaning of Article 145 BGB but are just a request to submit offers (invitatio ad offerendum”). It is not permitted for users to participate as a trading partner in an advertisement opened by its company (offer or inquiries). Nor may users participate as trading partners in an advertisement through third parties acting on their behalf. Advertisements and buying inquiries may be ended by the posting user at any time. It is not permitted to conclude transactions advertised via recyfy offline. In the event of contraventions, the user will be warned and deactivated in the event of another infringement. The company is informed of the contravention. The platform operator reserves the right to assert claims for damages.

5.2 Trading parties have the opportunity to select trading partners according to individual criteria and submit binding offers or counteroffers. Before submitting an offer or counteroffer, it is possible to correct the information entered by the user. The counteroffers submitted are binding and irrevocable declarations for concluding the contract put out to tender. Users are not entitled to be invited to participate in advertisements. Advertisements are regularly validated for market relevance. Users are required to formulate realistic advertisement that conform to the market. In the case of a negative validation, the creator is invited to revise its advertisement. recyfy can remove an advertisement that does not conform to the market from the marketplace.

5.3 The creator of the advertisement is free to choose whether he wants to accept the offers or counteroffers received, and if so, which one. If the parties do not agree a deviating agreement, a contract will come into being when the creator of the advertisement accepts the offer or a specific counteroffer from the other party by means of individual selection. Acceptance is via the technical facility for reacting to the offer or counteroffer provided by the creator of the advertisement on the marketplace.

5.4 Each quarter, the registered company must place advertisements for a minimum quantity of 1,000 tonnes and trade 500 tonnes. If the user does not trade the required amounts, it may be moved to a function-restricted version at the platform operator’s discretion. As soon as the user wants to place advertisements for the requisite quantities, it can be switched back to the full-function version.

5.5 Actions using the log-in for a user account must be assigned to the user to whom the user account belongs. Users are responsible for all of the declarations of intent made on the user accounts assigned to them. They are liable to a foreseeable extent for declarations made by third parties in one of the user’s user accounts according to the principles of a contract containing protection for third parties.

5.6 Only the relevant time on the platform of the marketplace in question applies to all transactions on the marketplace. Offers or counteroffers can be made only within the term of the advertisements set by the creator of the advertisement.

5.7 The platform operator reserves the right to amend or extend the content, structure and functionality of the platform and the associated user interfaces if this does not, or does not greatly, impair fulfilling the purpose of the contract concluded with the user. The platform operator will inform the marketplace user accordingly of any changes.

5.8 Contracts on the purchase or sale of recyclables and waste via the marketplace come into being only between the vendor and purchaser and not with the platform operator. Consequently, the platform operator accepts no responsibility for such contracts and is neither the representative of the advertisement creator nor of the vendor or purchaser. Transactions that have come into being via recyfy are binding and are designed to initiate business. If one party does not meet its obligations to supply or accept, it will receive a warning. It will be deactivated in the event of a further infringement.

6. Ratings

6.1 If a rating function is available, which is at the discretion of the platform operator, the users can rate each other in a way that is visible to other users, if

  • the parties have previously concluded a legal transaction and the rating refers to it,
  • the rating is objective and truthful and does not violate statutory provisions, in particular it is not defamatory, libellous or threatening, does not contain advertising claims or is illegal in any other way.

6.2 The platform operator can remove a rating that does not comply with the regulations in No. 6.1 or is improper in any other way. No obligation in this respect is accepted, in particular, the platform operator will not review ratings unless the platform operator has been adequately informed of the illegality of a rating.

6.3 In the event of an infringement, the platform operator may take action according to No. 7.

7. Sanctions

7.1 In the case of specific indications of an infringement of the law, a breach 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 account of the interests of the users concerned, the platform operator reserves the right

  • to deactivate advertisements.
  • to switch it to a function-limited version and
  • to warn users and
  • temporarily or permanently exclude then from using the platform.

7.2 If the user does not meet its tax obligations, or not to a great extent (tax unreliability) and if the platform operator is informed of this by the user’s tax office according to Article 25e para. 4 UStG or if the platform operator becomes aware of the user’s tax unreliability in another way, the platform operator is entitled to exclude the user from use of the marketplace without any notice. In these cases, the platform operator will take all of the necessary technical action to prevent further use of the marketplace. The platform operator reserves the right to assert claims for damages.

8. Duties of the User

8.1 Advertisements are impermissible if

  • the information in the advertisement is so incomplete that the subject matter and price cannot be determined;
  • the advertisement or the transaction would infringe the statutory provisions, official instructions or public morals in the legal system relevant to the intended contract. In particular, no items may be offered whose offer or sale infringe the rights of third parties; the same applies to items that are pornographic or liable to corrupt the young, weapons, drugs, propaganda material from unconstitutional organisations and parties, living animals and items whose offer and sale is not permitted. The platform operator is entitled to remove such an advertisement from the marketplace without undue delay.

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

9. Processing Contracts Concluded on the Marketplace

9.1 The processing of contracts concluded on the marketplace is a matter solely for the users concerned. The platform operator will not assume a warranty or guarantee for the fulfilment of contracts concluded between users on the marketplaces nor liability for physical or legal defects in the recyclables traded. No obligation will be incumbent on the platform operator to ensure fulfilment of contracts that have been agreed between the users.

9.2 The users are required to adhere to all legal requirements concerning the sale of goods over the platform and information obligations in this respect. In particular, the users are required to respect all requirements and approval reservations under public law when handling recyclables or waste. If shipments are sent across borders within the meaning of the EC Waste Shipment Regulation, on the basis of this regulation, only the users should be considered possible notifiers or the person instigating the shipment within the context of the Annex VII procedure. Public law classifications of recyclables and waste will be undertaken by the users under their own responsibility; the same applies to maintaining forms and declarations required under public law. In particular, the user is responsible for the correct classification according to the German Waste Catalogue Ordinance and the Basel Code as well as DIN EN 643, furthermore, it is responsible for the correct classification of substances as a product or waste. From no point of view should the platform operator be considered a responsible party under public law.

9.3 The platform operator cannot assume any guarantee for the true identify and power of disposition of the users. This also applies to monitoring compliance with any regulatory requirements of the users (e.g. existence of a permit for trading in waste). In the event of doubt, both contracting partners are required to inform themselves appropriately of the true identity and powers of disposition of the other contracting partner and other requirements.

10. Liability of the Platform Operator

10.1 The platform operator is liable without limitation for intent and gross negligence, in the case of mild negligence only if significant contractual duties are infringed. Significant contractual duties are those duties that can be fulfilled only by implementing the contract and that the user can therefore regularly depend on them being fulfilled. Liability in the event of violation of such a significant contractual duty is limited to damage typical of the contract that the platform operator had to anticipate when concluding the contract on the basis of the circumstances known at this time.

10.2 The platform operator assumes no liability for disruptions in the mains network that are not the fault of the platform operator. The platform operator assumes no liability for the incorrect classification of recyclables and, in particular, waste with respect to the German Waste Catalogue Ordinance or with respect to the European Waste Catalogue and an associated allocation of specific waste code or the allocation of an incorrect Basel Code in line with the EC Waste Shipment Regulation. The user alone is responsible for the correct classification. But such a classification must be made by the producer of the waste.

10.3 According to the provisions above, the platform operator shall be liable for the loss of data only if such a loss would not have been avoidable with appropriate data backup measures.

10.4 The liability does not extend to impairments to contractual use of the services provided by the platform operator on the marketplace that have been caused by improper or incorrect use by the user.

10.5 The above limits to liability also apply accordingly in favour of the platform operator’s agents.

10.6 The above limits to liability do not apply in the case of injury to life, limb, or health or in the case of statutory liability under the German Product Liability Act.

10.7 If marketplace enables an option to connect through to websites, services, etc. from third parties by setting links or hyperlinks, the platform operator is liable neither 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 nor the correctness, completeness or topicality of their content.

11. External Content

11.1 It is prohibited for users to post content (including through links or frames) on the marketplace that infringe statutory provisions, official instructions or public morals. Moreover, it is prohibited for them to post content that infringe the rights of third parties, especially copyright or trademark rights.

11.2 Under no circumstances can the platform operator make external content its own. The user guarantees to the platform operator and the other users of the platform that the goods and services it offers in advertisements do not infringe any copyrights, trademarks, patents, other property rights or company secrets.

11.3 The platform operator reserves the right to block external content if it is punishable under the applicable laws or clearly serves the purpose of preparation of criminal acts.

11.4 The user will exempt the platform operator of all claims asserted by third parties against the platform operator due to infringement of their rights or due to legal infringements due to advertisements or content posted by the user, provided that the user is responsible for them. In this respect, the user will also pay the platform operator’s costs for legal defence, including all court and lawyer costs.

12. Other Duties of the User

12.1 The user is required

  • to set up and maintain the necessary security precautions during the entire term of the contract. This largely refers to careful and conscientious treatment of log-ins and passwords;
  • to inform the platform operator of any technical changes in its area without undue delay if they are likely to impair the service provision or safety of the platform operator’s marketplace;
  • to help to identify third-party attacks on the marketplace where this help from the user is necessary;

12.2 to carry out transactions on the marketplace only within the context of business for commercial purposes.

12.3 The user undertakes to refrain from all actions that jeopardise or disrupt the functioning of the marketplace, also not to access data that it is not authorised to access. Moreover, it must ensure that the information transmitted via the marketplace and data posted do not contain any malware. The user undertakes to compensate the platform operator for all damage incurred as a result of non-compliance with these duties for which it is responsible and, furthermore, to exempt the platform operator of all third-party claims, including lawyer and court costs, asserted by third parties against the platform operator due to non-compliance of the user with these duties.

13. Assignment and Offsetting

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 entitled to offset against the platform operator only with undisputed or legally binding counterclaims.

14. Payment Terms

14.1 The user will receive an invoice for the completed month by electronic mail. The payment terms are 14 days after receipt of this invoice. Payment will usually be made electronically; in special cases a different form of payment can be agreed.

15. Contract Term

15.1 The contract on which these Terms of Use are based is concluded for an indefinite time. It commences with approval of the user by the platform operator in accordance with No. 4.

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

15.3 Each party has the right to terminate the contract for good cause without a requirement to observe a notice period. For the platform operator, good cause is in particular

 

infringement by a user of the provisions of these Terms of Use, which is not remedied even after a deadline has been set;

  • a criminal act by a user or an attempt at such, e.g. fraud;
  • payment delay by the user in accordance with the payment to be made by the user according to numbers 2 and 4.3 by more than six weeks;
  • Continuing disruptions to operations as a consequence of force majeure that are outside the control of the platform operator, such as natural disasters, fire, breakdown of mains networks.

15.4 All terminations must be made in text form (e.g. by e-mail).

16. Connection to Technical Systems

The marketplace can be connected to an external ERP system (IT system). The nature and duration of a connection will be described and concluded in a separate project contract. The General Terms and Conditions for Technical Services apply to implementation and operation. This will be enclosed with the project contract.

17. Concluding Provisions

17.1 The law of the Federal Republic of Germany will apply with the exclusion of conflict-of-law rules. The place of jurisdiction for all legal disputes is Berlin. Additionally, the platform operator is authorised to file a suit in the user’s general place of jurisdiction.

17.2 If single provisions of these Terms of Use are or become ineffective or contradict the statutory regulations, the effectiveness of the remaining Terms of Use will not be affected. The contracting parties will replace the ineffective provision by a provision that is legally as close as possible to the economic purpose of the ineffective provision. The above regulation applies accordingly to loopholes.

Contact

WR Wertstoffbörse Recycling GmbH & Co. KG
Boxhagener Str. 72
10245 Berlin