§ 2 Service specification
2.1 The Marketplace is a platform with the purpose of entering into sales contracts for milk, dairy raw materials and other dairy products (in particular skimmed milk, skimmed milk concentrates, cream, whey, buttermilk, liquid lactose; hereinafter: "Products") (hereinafter "Sales Contracts") as well as freight forwarding contracts for the shipment of Products (hereinafter: "Freight Forwarding Contracts"; Sales Contracts and Freight Forwarding Contracts hereinafter jointly: "Transactions").
2.2 MilkScout itself does not offer any products or forwarding services and does not become a contractual partner to the contracts concluded exclusively between the users of this marketplace.
The Marketplace has an integrated, automated messaging system to support com munication between Users, as well as extensive functionality to manage and monitor all ongoing Transactions.
2.4 MilkScout provides the following services in accordance with the provisions set out below:
2.4.2 Enabling negotiations and closing of contracts in the Marketplace through User initiated tenders and auctions;
2.4.3 Creating information and communication channels among the Users, particu larly for the final coordination of prices depending on the volumes to be deliv ered and the specifications of the products after the fulfilment of the Sales Con tracts (so-called MilkMatch).
2.5 The right of Users to use the Marketplace is limited by the current state of technology. MilkScout temporarily restricts its services if this is necessary with regard to capacity limits, the security or integrity of the servers or to carry out technical measures, if any of the above serves the proper or improved provision of the services (maintenance work). In these cases, MilkScout will take into account the legitimate interests of the Users and will inform them in advance if possible.
2.6 MilkScout reserves the right to change or expand the content and structure of the Marketplace and the User interfaces, if the fulfilment of the purpose of the agreement between the User and MilkScout is not or not significantly impaired as a result. MilkS cout will inform the Users of the Marketplace about the changes accordingly.
§ 3 Registration for the Marketplace; User Agreement
3.1 Using the Marketplace is only permitted if the User is registered. The Marketplace is only open to entrepreneurs within the meaning of § 14 of the German Civil Code and legal entities of public law. There is no legal entitlement to registration or use of the Marketplace.
3.2 The User is obliged to provide the information specified in the registration mask (in cluding his e-mail address, password, company name, company location, address, phone number and tax identification number) and to indicate whether he/she wishes to use the Marketplace as a "dairy" for the purchase or sale of Products (hereinafter "Trade User") or as a "freight forwarder" as a provider of freight forwarding services (hereinafter "Freight Forwarder").
3.4 Trade Users can enter further data at any time in a designated "company settings" mask on the Marketplace (e.g. loading times or naming specific other Users with whom Sales or Forwarding Contracts can be concluded or whose offers are not to be displayed to the Trade User).
3.5 Freight Forwarders can enter further data at any time in a designated "company set tings" mask on the Marketplace (e.g. certificates).
3.6 The User guarantees that the information provided by him/her, in particular as part of his/her application for registration, to MilkScout and other Users is correct. The User obliges to immediately notify MilkScout of any future changes to the information pro vided on the Marketplace.
§ 4 Login
4.1 Each User is allowed to act on the Marketplace with several employees and logins. The User will be held accountable for the declarations and actions of his/her employ ees.
4.2 All logins are individualised and may only be used by the respective authorised per son. The login and password must be kept secret and protected from unauthorised access by third parties. The User is responsible for maintaining the confidentiality of employee logins and will instruct his/her employees accordingly. If misuse by a third party is suspected, the User will immediately inform MilkScout of this. As soon as MilkScout becomes aware of the unauthorised use, MilkScout will block the access of the unauthorised user. MilkScout reserves the right to change the login and password of a User or employee; in such a case MilkScout will immediately inform the User thereof.
§ 5 Data protection; data processing
5.1 By registering in accordance with § 3, the User warrants to MilkScout and all other Users that the requirements of data protection regulations will be complied with by the User in respect of the data transferred by him/her and indemnifies MilkScout against any claims, including claims under public law. In particular, the User must inform the persons acting on his behalf on the Marketplace (in particular employees) of the rele
vant data processing procedures required by MilkScout in accordance with MilkS cout's data protection declaration at milkscout.eu/datenschutz and obtain any neces sary consent from these persons before their personal data is submitted to the Mar ketplace as part of setting up employee logins or in any other way.
5.2 MilkScout's servers are secured in accordance with the current state of technology, in particular by firewalls; the User is aware, however, that there is a risk for all partic ipants that transmitted data can be read out or deleted during transmission. This ap plies not only to the exchange of information via e-mail that leaves the system, but also to the integrated messaging system and all other transmissions of data. The con fidentiality and availability of the data transmitted in the course of using the Market place can therefore not be guaranteed.
5.3 The user agrees that MilkScout may store information and non-personal data about the course of Transactions as well as the conduct of Users in carrying out Transac tions in anonymised form and use it exclusively in this anonymised form for marketing purposes, e.g. for compiling statistics and presentations.
5.4 MilkScout has the right to process and store the non-personal data received from the User in the course of the business relationship during the duration of this agreement. In particular, the User agrees that MilkScout:
5.4.1 stores and processes the information provided by the User in the context of the registration application regarding company data and billing data as well as cor responding updates communicated by the User;
5.4.3 stores non-personal data on the content of the Transactions and makes it ac cessible to the respective Users in the public section of the Marketplace.
5.6 With regard to the processing of personal data, the User is referred to MilkScout's separate data protection declaration at milkscout.eu/datenschutz.
5.7 Users may not use addresses, e-mail addresses and other contact data obtained through the use of the Marketplace for any purpose other than for contractual and pre contractual communication. In particular, it is prohibited to resell this data or to use it for sending advertising unless the respective User has expressly consented to this in advance in accordance with the applicable statutory provisions or has not objected to the permissible use of the contact data for advertising purposes without consent.
5.8 After termination of the use agreement, the data provided by the respective User or generated by his/her use of the Marketplace will be deleted. As an exception to this, MilkScout retains this information even after the end of the agreement, insofar as MilkScout is legally obliged to do so or has a legitimate interest in doing so. Aggre
gated and anonymised data generated through use (e.g. statistics on Transactions) will generally be retained even after the end of the contract.
5.9 MilkScout is only liable for the loss of data if such a loss could not have been avoided by appropriate data backup measures on the part of the User. The User is obligated to ensure an appropriate backup of all data provided or obtained by him/her in the context of the use of the Marketplace.
5.10 MilkScout has the right to use the e-mail address provided by the User in the context of the use of the Marketplace to send information about its own similar offers of goods and services (§ 7 para. 3 no. 4 of the German Act against Unfair Competition). The User may object to this use of his/her email address for the purpose of advertising to existing customers at any time by sending an email to firstname.lastname@example.org.
§ 6 Conclusion of Sales Contracts on the Marketplace
6.1 Trade Users who intend to sell Products (hereinafter "Sellers") have the possibility to open tenders and to invite other (selected, if applicable, according to individual criteria pursuant to Clause 3.4) Trade Users who wish to buy Products (hereinafter "Buyers") to do so.
6.2 When opening an invitation to tender, sellers shall specify the product, the quantity, the price, the product characteristics, the collection location and the collection date (hereinafter "sales enquiry"). description of the products shall be made with regard to the legal definitions and the legal requirements for production, labelling and packaging, in particular in accordance with Regulation (EU) 1308/2013 and the Milk Products Regulation; the seller can choose for each product between the standard specification provided by MilkScout and the seller's own specification. The sales enquiry shall be sent anonymously to the buyers of the group of addressees (selected, if applicable, in accordance with section 3.4). addressees) anonymously - i.e. without stating the Seller's company and contact details. Unless he cancels or amends the sales enquiry, the Seller shall be bound by the information given in the sales enquiry until 24:00 hours on the collection day specified therein. However, a sales enquiry does not constitute a legally binding offer.
6.3 Buyers may submit binding offers in response to the Request for Sale, to which they shall be bound for eight hours during a period from 8:00 a.m. to 5:00 p.m., from the time of submission (examples: (i) If a Buyer submits an offer on Thursday at at 4:00 p.m., he is bound by it until 3:00 p.m. on Friday; (ii) if he submits the offer at 8:30 a.m., he is bound by it until 4:30 p.m. on the same day). By submitting an offer, the full details of the seller and the contact details of the seller and the contact details are disclosed to the buyer and the request for sale is no longer displayed on the marketplace.
The Seller is free to choose whether to accept the offer. A contract is concluded when the Seller accepts the Buyer's offer. After the conclusion of the contract, the Buyer and the Seller receive a confirmation e-mail containing the essential data of the pur chase contract.
§ 7 Conclusion of Freight Forwarding Contracts on the Marketplace
7.1 Buyers wishing to use freight forwarding services (hereinafter "Senders") have the option of opening auctions in which (selected, according to individual criteria pursuant to section 3.4) Freight Forwarders can submit bids.
7.2 When opening an auction, Senders are required to indicate the Product, the quantity, the maximum price, the pick-up location and the delivery location as well as any fur ther information on the dispatch (hereinafter "Forwarding Offer"). The Forwarding Of fer is disclosed to the Freight Forwarders (who may be selected, if applicable and in
accordance with section 3.4). The Forwarding Offer is binding and the Sender is bound by the information provided therein for the auction period. The auction period is three hours after a Forwarding Offer is submitted on the Marketplace during a period from 8:00 a.m. to 5:00 p.m., Monday to Friday (examples: (i) if a Forwarding Offer is posted at 4:00 p.m. on Thursday, the auction period will end at 10:00 a.m. on Friday; (ii) if a Forwarding Offer is posted at 9:30 a.m., the auction period will end at 12:30 p.m. on the same day).
7.3 Freight Forwarders can submit binding bids on the Forwarding Offer, which must be below the maximum price specified by the Sender. With the bid, the Freight Forwarder
accepts the Sender's Forwarding Offer subject to the condition precedent that the Freight Forwarder is the lowest bidder at the end of the auction period. Freight For warders are bound by their bids until the end of the auction period described in section 7.2. The Freight Forwarding Contract is concluded with the Freight Forwarder who has offered the lowest price at the end of the auction period. After the conclusion of the contract, the Sender and the Freight Forwarder receive a confirmation e-mail con taining the essential key data of the forwarding contract.
§ 8 Execution of Sales and Forwarding Contracts concluded on the Marketplace
8.1 The execution of Sales and Forwarding Contracts concluded on the Marketplace is the sole responsibility of the respective Users. MilkScout shall neither guarantee the fulfilment of the contracts concluded on the Marketplaces between the Users nor as sume any liability for material defects or defects of title of the traded goods and ser vices or any other performance failures. MilkScout is under no obligation to ensure the fulfilment of the contracts concluded between the Users.
8.2 MilkScout does not guarantee the true identity and the power of disposition of the Users. In case of doubt, both contractual partners are required to inform themselves in an appropriate form about the true identity and the power of disposition of the other contractual partner.
§ 9 Transaction fees for concluded Sales and Forwarding Contracts
9.1 MilkScout charges the respective Buyer a fee for the use of the Marketplace and for arranging the conclusion of a Sales Contract.
9.2 MilkScout charges the respective Freight Forwarder a fee for the use of the Market place and for arranging the conclusion of a Freight Forwarding Contract.
9.3 The individual fee rates are based on the current price list, which is available at milks cout.eu. MilkScout may change the fee rates at any time with effect for the future. Users will be notified of any changes to the fee rates in good time before they come into force.
9.4 MilkScout invoices the incurred fees to the Users who are obligated to pay on a monthly basis. MilkScout informs the User by e-mail about the provision of the respec tive invoice. The User can access the complete invoice via his login. All fees payable by the User to MilkScout shall be paid against proper invoicing plus the statutory value added tax.
9.5 Users under obligation to pay shall be in default without further notice after a period of 30 days after notification of the invoice amount.
9.6 The User is only entitled to set-off against MilkScout with counterclaims that are un disputed or have been legally determined by a court and are non-appealable.
§ 10 Use of the Marketplace, contents
10.1 Users are prohibited from placing content (e.g. through links or frames) on the Mar ketplace that violates statutory regulations, administrative orders or public morality. Furthermore, they are prohibited from posting content that infringes the rights, in par ticular copyrights, design rights or trademark rights of third parties.
10.2 The User guarantees MilkScout and the other Users that the goods and services of fered by him/her in tenders or auctions, in particular Product images, descriptions or labels, do not infringe any copyrights, trademarks, designs, patents, other industrial property rights, business or trade secrets.
10.3 MilkScout does not under any circumstances assume ownership or responsibility for third-party content. User content published on the Marketplace does not represent the opinion of MilkScout and is generally not checked by MilkScout for its legality, correct ness and completeness.
10.5 The User will indemnify MilkScout against all claims asserted by third parties against MilkScout due to the infringement of their rights or due to legal violations based on the data and other content posted by the User. In this respect, the User will also bear the costs of MilkScout's legal defence, including all court costs and lawyers' fees.
§ 11 Other obligations of the User
11.1 The User is obligated,
11.1.1 to set up and maintain the necessary data security precautions throughout the term of the contract and to handle the logins and passwords carefully and dili gently;
11.1.2 to immediately notify MilkScout of any technical changes or personnel changes occurring in his/her field of responsibility with regard to the employees author ised to access the Marketplace if they are likely to impair the provision of ser vices or the security of the Marketplace;
11.1.3 to cooperate in the investigation of attacks by third parties against the Market place, insofar as this cooperation by the User is required;
11.1.4 to conduct business on the Marketplace exclusively within the scope of busi ness operations for commercial purposes.
11.2 Users may not block, overwrite or modify content generated by MilkScout or other Users or otherwise interfere with the Marketplace in a disruptive manner, particularly if doing so could cause an excessive burden on the Marketplace infrastructure.
11.3 The User agrees to refrain from all actions which endanger or disrupt the functioning of the Marketplace and not to access data which he/she is not authorised to access. Furthermore, the User must ensure that the information and data transmitted via the Marketplace are not infected with viruses, worms or trojans. The User agrees to com
pensate MilkScout for all damages resulting from the User's failure to comply with these obligations and, in addition, to indemnify MilkScout against all claims of third parties, including lawyers' fees and court costs, which such third parties assert against MilkScout due to the User's failure to comply with these obligations.
§ 12 Liability of MilkScout
12.1 MilkScout is liable in accordance with the statutory regulations for deliberate intent and gross negligence on the part of MilkScout, its legal representatives, executive employees or other agents. The same applies in case of guarantees or other no-fault liability as well as in case of claims under the Produkthaftungsgesetz (German Prod
uct Liability Act) or culpable injury to life, limb or health.
12.2 MilkScout is liable for breaches of essential contractual obligations caused by simple negligence on the part of MilkScout, its representatives, executives and agents, i.e. obligations on whose fulfilment for the proper performance of the contract the User regularly relies and may rely on, in this case, however, limited to the amount of the typically arising, foreseeable damage.
12.3 Any further liability on the part of MilkScout is excluded.
12.4 Insofar as MilkScout's liability is excluded or limited, this also applies in favour of the personal liability of its legal representatives, executive employees and agents.
12.5 The liability does not extend to impairments of the contractual use of the services provided by MilkScout on the Marketplace caused by improper or incorrect use by the User.
§ 13 Term of the User Agreement; Termination
13.2 Each party has the right to terminate the contract for good cause without giving prior notice. A good cause for MilkScout is in particular:
13.2.2 the default of the User with the payment obligation pursuant to § 9 by more than six weeks.
13.2.3 permanent interruptions to business as a result of force majeure beyond MilkS cout's control, e.g. natural disasters, fire, breakdown of supply networks without MilkScout's fault.
13.3 Each party has the right to terminate the contract for good cause without notice. An important reason for MilkScout is in particular:
13.3.2 the User's default in payment in accordance with the payment to be made by the User pursuant to § 9 by more than six weeks.
13.3.3 permanent operational disruptions as a result of force majeure beyond MilkScout's control, e.g. natural disasters, fire, breakdown of supply networks through no fault of MilkScout.
13.4 Termination shall have no effect on the validity of contracts already concluded on the marketplace and the resulting remuneration claims of MilkScout.
§ 14 Final provisions
14.1 A partial or complete transfer of the User's rights under the agreement with MilkScout to third parties is excluded.
14.2 All declarations made within the framework of the User agreement concluded with MilkScout must be made in writing or text form (e.g. by e-mail).
14.3 The law of the Federal Republic of Germany applies under exclusion of the UN Sales Law.
14.4 The place of jurisdiction for all legal disputes is Landshut, Germany. MilkScout is also entitled to take legal action at the User's place of jurisdiction.
tiations to replace the non-applicable or invalid provision with a valid provision that comes as close as possible to it in economic terms.