TERMS & CONDITIONS
General terms and conditions governing the relationship between fooba GmbH and the client
fooba GmbH (also referred to as “provider”) operates an online ordering platform in the form of an application for mobile devices for the distribution of food and beverages to end customers. The use of the application enables the catering business to offer its products for in-house and take-away orders. The application thus acts as an intermediary for the orders and payment of the end customer to the restaurant business and as an intermediary for the product range of the restaurant business to the end customer. The conclusion of a contract for the ordering of goods is exclusively concluded between the catering business and the end customer (brokerage business on a commission basis). The fulfilment of the contractual obligations arising from the brokered order orders, in particular the proper manufacture of the goods, is the sole responsibility of the catering business.
(1) Payment for these catering services is also made via the application, whereby an agent’s commission is charged by the provider to the catering business. This consists of a fixed and a variable component, which is based on the amount of the order value. The amount paid is forwarded directly to the catering establishment by the means of payment provider (“Wirecard AG”). The fooba GmbH is in advance and provides a monthly invoice to the catering business for the services rendered.
(2) For the use of all platforms as well as the conclusion and processing of the contracts brokered by fooba GmbH, the “General Terms and Conditions for Gastronomy” apply.
(3) In the contractual relationship between the fooba GmbH and the end customer the “General Terms and Conditions between the fooba GmbH and the end customer” and the data protection conditions of the fooba GmbH are valid.
2. Address of fooba GmbH as operator of the platform fooba.de
Address, e-mail, telephone, fax
The following definitions form the basis for the terms used in the following:
- Goods: food and drinks offered by the catering establishments.
- Take-away order: The end customer collects the ordered goods from the catering establishment and consumes them outside the catering establishment.
- In-house ordering: The end customer consumes the ordered goods at the location of the restaurant.
- Contact information: First and last name, date of birth, address, valid telephone number and valid e-mail address of the end customer.
3. Contract between the restaurant and the end customer
- fooba GmbH acts exclusively as an agent for the range of goods offered by the catering establishments registered with the fooba platform. She does not become a contractual partner of the end customer by placing an order. An order results in the conclusion of a contract between the catering establishment and the end customer for the goods selected by the end customer.
- The contract between the catering establishment and the end customer is effectively concluded when the end customer clicks on the “Order payable” button on the platform.
- An electronic notification confirms the order to the end customer.
- The catering establishment is entitled to cancel the order if it is foreseeable that it will not be possible to serve the goods punctually to the end customer or to make the goods made available to the end customer for collection punctually. Unpunctuality occurs when a waiting time of the end customer is more than 45 minutes from the agreed pick-up time.
- The catering establishment is entitled to cancel the order if the customer has provided incorrect contact and/or payment details or in the event of force majeure.
- The customer is obliged to update his contact data and payment data in his profile if these data change.
- The customer must be reachable by telephone or e-mail (as indicated in the order) for the catering establishment and fooba GmbH in order to receive information regarding the status of his order.
- In the case of an in-house order, the goods are brought to the table specified by the end customer when placing the order. If he changes the table after placing the order and before serving the goods, it is the responsibility of the end customer to ensure that the goods are brought to the table of his choice.
- If there is a take-away order, the end customer should pick up the goods at the time at the restaurant pick-up location specified in the confirmation e-mail, SMS or on the platform. If the customer fails to collect the goods on time, his claim to a sufficiently heated product shall lapse. If the collection by the end customer is delayed by more than 30 minutes and if the end customer is to blame for the delay, there is no longer any claim to return the goods to the end customer.
- If alcoholic beverages are ordered, the catering establishment may require the presentation of an age identification. If the end customer is unable to prove his identity or does not meet the age requirements, the restaurant can refuse delivery of the goods to the customer. In this case, cancellation costs in the amount of the purchase price (excluding VAT) for the refused goods can be charged to the end customer.
- fooba GmbH is not liable for the execution of the contract.
4. Cancellation and rejection of orders by fooba GmbH
- fooba GmbH is entitled to cancel an order and/or reject future orders from this end customer if
- The end customer provides incorrect contact or payment information when placing an order and/or
- The end customer does not pay or cannot pay for his order (e.g. due to lack of valid or uncovered means of payment) and/or
- The End Customer otherwise fails to perform its obligations under the Agreement and/or
- there is reasonable doubt as to the accuracy or authenticity of the contact details and/or
- the restaurant does not wish to enter into a contract with the customer.
- If fooba GmbH cancels an order that has already been paid for, fooba initiates the Wirecard refund process to transfer the amount of the payment back to the account from which the payment originated.
- All prices in the fooba application are in Euro and include the applicable statutory value added tax.
- In the course of the conclusion of the contract between the catering establishment and the end customer, the end customer is obliged to provide services to the catering establishment. The end customer must fulfil his payment obligation in full via the online payment method WireCard in the fooba application.
- The fooba GmbH accepts the payment on behalf of the gastronomy business.
- The (partial) refund of an online payment to the end customer is only possible if the order cannot be handed over (completely) to the end customer or to a third party designated by the end customer who is not a service employee in the catering business and the end customer is not responsible for this. The refund will always be made to the account from which the payment was made.
- Payment must be made to WireCard. The customer receives the goods first and has a payment period of 14 days. The complete terms and conditions of WireCard for purchase on account can be found under WireCard Terms and Conditions (LINK).
- If a debit from the customer’s account by direct debit fails for reasons for which the customer is responsible, the customer must reimburse fooba GmbH for the bank processing fees resulting from the chargeback.
6. Right of withdrawal
- If the end customer is a natural person who concludes a legal transaction for purposes which can predominantly neither be attributed to his commercial nor his self-employed professional activity, he is entitled to a statutory right of revocation pursuant to § 312g in conjunction with § 355 BGB.
- The end customer may not revoke the order vis-à-vis the catering establishment insofar as it concerns the delivery of goods,
- which are not prefabricated and for the manufacture of which an individual choice or destination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer (§ 312g Paragraph 2 No. 1 BGB);
- which can spoil quickly or whose expiration date would quickly be exceeded (§ 312g Para. 2 No. 2 BGB);
- which, for reasons of health protection or hygiene, are not suitable for return if their seal has been removed after delivery (§ 312g Paragraph 2 No. 3 BGB) and/or
- if, after delivery, these are inseparably combined with other goods due to their quality.
goods (§ 312g Para. 2 No. 4 BGB).
7. Revocation instruction
- right of withdrawal
You have the right to revoke this contract within fourteen days without giving reasons.
The revocation period for a purchase contract is fourteen days from the day on which you or a third party named by you, who is not a service employee in the catering business, have taken possession of the goods.
In the event of a contract for several goods which you have ordered as part of a single order and which are delivered separately to you or to a third party named by you who is not a service employee in the catering establishment, the revocation period shall be fourteen days from the day on which you or a third party named by you who is not the service employee in the catering establishment took or took possession of the last goods.
In order to exercise your right of withdrawal, you must inform us by e-mail (firstname.lastname@example.org) of your decision to withdraw from this contract by means of a clear declaration. You can use the attached model withdrawal form, which is not mandatory.
In order to comply with the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the expiry of the revocation period.
- Consequences of revocation
If you revoke the contract with the restaurant business, the restaurant business shall repay you all payments which it has received from you immediately and at the latest within fourteen days of the day on which we received notification of your revocation of the contract. For this repayment, the catering establishment uses the same means of payment that you used for the original transaction.
The catering establishment may refuse repayment until it has received the goods back or until you have provided proof that you have returned the goods, whichever is earlier.
You shall bear the direct costs of returning the goods.
They shall be liable for any depreciation in the value of the goods only if such depreciation is due to handling of the goods which is not necessary for the examination of their nature, properties and operation
End of the revocation instruction
- Sample withdrawal form
(If you want to cancel the contract, please fill out this form and send it back.)
Sample withdrawal form
I/we (*) hereby cancel the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following services (*):
Ordered on (*)/received on (*): __________________________
Name of the consumer(s): __________________________
Address of the consumer(s): ________________________
Signature of consumer(s) (only for paper communication)
(*) Delete as appropriate.
- complaint settlement
- fooba GmbH makes itself available between the end customer and the catering establishment for the settlement of disputes that are directly related to the fooba application.
- A complaint that must be directly related to the fooba application can be sent by e-mail or post to the contact address specified in paragraph II.
- The European Commission provides a platform for online dispute resolution (OS platform). This platform can be found at http://ec.europa.eu/odr .
- fooba GmbH expressly excludes alternative dispute resolution in accordance with Directive 2013/11/EU. The e-mail address of the fooba application is email@example.com.
- fooba GmbH refuses to participate in dispute resolution proceedings before a consumer arbitration board.
8. Liability of fooba GmbH
- fooba GmbH is not liable for the correctness and completeness of the product range and/or the gastronomy information, the fulfilment of the contract and/or the accessibility of the platform.
- Excluded from the exclusion of liability are claims for expenses and damages by the end customer arising from injury to life, limb or health, as well as liability for other damages resulting from an intentional or grossly negligent breach of duty by fooba GmbH, its legal representatives or vicarious agents. Furthermore, liability for the breach of cardinal obligations shall remain unaffected. Cardinal obligations are obligations the fulfilment of which is essential for the proper execution of the contract and on the observance of which the end customer may regularly rely. In the case of a slightly negligent breach of these contractual obligations, fooba GmbH is only liable for the foreseeable damage typical for the contract, unless it is a matter of claims for damages by the end customer arising from injury to life, body or health.
- Paragraph 2 also applies in favour of the legal representatives and vicarious agents of fooba GmbH if claims are asserted directly against them.
- In all other respects, claims of the customer for damages against fooba GmbH – for whatever legal reason, in particular due to material defect, defect of title and/or violation of other duties arising from the contractual obligation or from a pre-contractual contractual obligation by fooba GmbH, its legal representatives, employees or vicarious agents, from § 311 a BGB (German Civil Code) or from tort – are excluded.
- A change in the burden of proof to the disadvantage of the customer remains unaffected by the above provisions.
- Any exclusion or limitation of the customer’s claims to interest on arrears or to the lump sum in accordance with § 288 Para. 5 BGB (German Civil Code) or to compensation for damage arising from the costs of legal proceedings shall remain unaffected by the above provisions.
- The statutory limitation periods shall apply to the end customer’s claims for damages from the start of the statutory limitation period.
9. Privacy notice
- The payment data entered during the payment process are not stored by fooba GmbH, but may be stored by the payment provider. The respective data protection regulations of the payment provider apply.
- The law of the Federal Republic of Germany shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- The effectiveness of the agreement between the end customer and fooba GmbH about the services or the contract between the catering business and the end customer remain binding in their remaining parts even if individual points are legally ineffective. The ineffective points shall be replaced, if any, by the statutory provisions.