Terms and Conditions for Partner Businesses

§ 1 Scope and parties

The partner's contracting party is foodfyp UG (haftungsbeschränkt), Gänsestieg 27A, 22549 Hamburg, Deutschland, represented by Alexander Frikel (hereinafter "foodfyp").

These terms apply to every contract under which a food business (hereinafter "partner") offers its dishes through foodfyp and foodfyp forwards orders to it.

They apply only to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) and to legal persons and special funds under public law. No contract with a consumer is concluded on their basis.

The partner's own terms and conditions do not become part of the contract, even if foodfyp does not expressly object to them or begins the cooperation while aware of them. Deviations apply only where foodfyp has agreed to them in text form.

Arrangements the parties make in text form for an individual case take precedence over these terms.

§ 2 Definitions

The following terms are used throughout these terms with the meaning set out here.

• Feed: the sequence of short videos in the foodfyp app in which dishes are shown to guests and from which they can order.
• Guest: the natural person who orders a dish through the foodfyp app.
• Dish: an item of food or a drink the partner offers through the feed, including the associated information on composition, price and availability.
• Order: the declaration a guest submits through the foodfyp app to purchase specific dishes from a partner, and the contract concluded between guest and partner as a result.
• Gross goods value: the sum of the prices of the dishes ordered including the value added tax attributable to them, excluding delivery fees charged by the partner and excluding tips.
• Pickup: the fulfilment route in which the guest collects the order at the partner's location.
• Self-delivery: the fulfilment route in which the partner brings the order to the guest using its own staff or third parties it has engaged.
• Location: an operating site of the partner at one address from which orders are fulfilled.
• Portal: the password-protected area in which the partner manages its menu, opening hours, orders and statements.
• Partner account: a partner's access to the portal, under which its locations are managed.

§ 3 foodfyp's role as an intermediary, and its services

foodfyp operates the feed and forwards orders placed through it to partners. In doing so, foodfyp acts exclusively as an intermediary.

The contract covering the dishes ordered is concluded solely between the guest and the partner. foodfyp owes the guest neither the preparation nor the condition nor the handover of a dish and does not become the seller of the dishes.

foodfyp provides the partner with the following services: presentation of its dishes and the associated videos in the feed, receipt of guests' orders and their transmission to the location, provision of the portal, processing of payments through the payment service provider under § 8, and settlement of the commission.

Under the standard rate in § 7 paragraph 1, foodfyp additionally provides the following: migration of an existing menu from another provider, personal support for the partner, and guidance through onboarding up to the first order forwarded.

foodfyp may continue to develop the design and functional scope of the feed and the portal as long as the purpose of the contract is not impaired. Changes to these terms are governed by § 16.

Uninterrupted availability of the feed and the portal is not owed. foodfyp carries out maintenance outside customary ordering hours where possible and announces plannable work in the portal.

§ 4 Registration and conclusion of the contract

The partner registers using the signup form and provides the information requested there about its business, the address of the location and the contact person who manages the partner account. That information must be correct and complete.

foodfyp sends a confirmation code to the email address provided. By entering the code, the partner confirms that it can be reached at that address; the registration is thereby submitted, but not yet accepted.

foodfyp reviews the registration and may request evidence for that purpose, in particular regarding the business registration, the entry in the commercial register and the food-law registration of the location.

The contract is concluded when the partner account is activated. There is no entitlement to admission; foodfyp communicates a rejection in text form.

One location is maintained per address. Further locations are registered and activated separately.

The partner makes no choice of rate during registration. On activation the pilot rate under § 7 paragraph 2 applies to all locations managed under the partner account; its 3 months begin on activation. After that the standard rate under § 7 paragraph 1 applies, without any further declaration being required.

§ 5 The partner's obligations

The partner provides its services to the guest on its own responsibility. In doing so it complies with all provisions applicable to its business, in particular food and hygiene law under the German Food and Feed Code (LFGB) and Regulation (EC) No 852/2004, and it holds the required permits and registrations.

The information about its dishes must be correct, complete and current. This applies to the name, composition, portion size, price and availability just as it does to the opening and ordering hours of the location.

The partner states the allergens subject to labelling under Article 9(1)(c) in conjunction with Annex II and Article 21 of Regulation (EU) No 1169/2011 (Food Information Regulation), as well as the additives subject to labelling. Under Article 14 of that Regulation this information must be available to the guest before the order is placed, which is why the partner maintains it in the portal.

The partner states prices as total prices including value added tax and all price components, as required by the German Price Indication Ordinance. The price shown in the feed is the price the guest pays for the dish.

If a recipe, a price, availability or the opening hours change, the partner updates the information in the portal without undue delay. Dishes it cannot offer are deactivated rather than dealt with by declining the orders placed for them.

During the ordering hours stored in the portal, the partner is reachable through the portal, accepts or declines incoming orders and keeps the device used for that purpose ready for operation.

The credentials for the partner account are confidential and must not be passed on to third parties. If there is reason to suspect that a third party has gained access, the partner informs foodfyp without undue delay.

The partner informs foodfyp without undue delay of official measures affecting the operation of the location, in particular a prohibition or a closure.

§ 6 Videos and images

The videos and images shown in the feed either come from the partner or are produced by foodfyp. Who produced the material determines who holds the rights in it.

The partner retains its rights in material it provides or has provided on its behalf. It grants foodfyp a non-exclusive, royalty-free right of use in that material, unrestricted as to territory and limited to the term of the contract, covering use in the feed and in advertising for foodfyp, including reproduction on third-party channels.

That right of use includes the editing necessary for publication — cropping, shortening, colour adjustment, subtitles and labelling — as well as the right to permit service providers such as data centres, content delivery networks and app stores to make the technically necessary uses. The substance of what the material shows must not be altered in the process.

The partner warrants that it holds all rights required for that use. This concerns in particular copyright and neighbouring rights, trade mark and name rights, rights in any music used, and the consent of every person depicted.

If third parties assert claims against foodfyp because material provided by the partner infringes their rights, the partner indemnifies foodfyp against those claims and reimburses the reasonable costs of legal defence. foodfyp informs the partner of such claims without undue delay and makes no acknowledgement without consulting it.

The rights in material produced by foodfyp itself belong to foodfyp. The partner may use it free of charge during the term of the contract to present its own location; that right ends with the contract unless the parties agree otherwise in text form.

The right of use under paragraph 2 ends when the contract ends. foodfyp removes the partner's material from the feed within a reasonable period. This does not affect copies held in third-party caches beyond foodfyp's control, records foodfyp retains as evidence, or publications the partner arranged itself.

§ 7 Remuneration

foodfyp receives a commission for forwarding an order. It amounts to 8 % of the gross goods value where the guest collects the order, and 15 % of the gross goods value where the partner delivers the order itself.

Every partner starts on the pilot rate; it is not chosen, it applies by virtue of this contract. For the first 3 months from activation, the commission is 5 % for pickup and 10 % for self-delivery. The additional services named in § 3 — migration of an existing menu, personal support and guidance through onboarding — are not included in the pilot rate.

After those 3 months the rates under paragraph 1 apply automatically. foodfyp announces the change in text form at least 30 days in advance. The partner may terminate the contract up to the moment the change takes effect; by way of derogation from § 14 paragraph 2, that termination then takes effect on the date of the change, so that the partner does not pay the higher rate.

The basis of assessment is the gross goods value, that is the amount including value added tax that the guest pays for the goods. Delivery fees the partner charges itself are not part of it. Statutory value added tax is added to the commission.

No further charges apply for the intermediation service. There is no base fee, no setup fee and no fixed fee per order. Advertising services the partner books separately and voluntarily are not covered by that statement; they are remunerated separately and may be set off under § 8 paragraph 8.

There is no free trial period. The pilot rate under paragraph 2 is not one: it is a lower commission rate for a limited period, not an exemption from the commission.

§ 8 Payment processing via Stripe

Guests' payments are processed via Stripe Connect. foodfyp, or the payment service provider engaged by foodfyp, collects the guest's payment in the name of and for the account of the partner. The guest's debt towards the partner is discharged upon that payment, even if the amount reaches the partner later.

For that purpose the partner opens an account with the payment service provider and supplies the information requested there, in particular for identification of the business and for the bank details. This is an obligation to cooperate: for as long as that account is not activated, a location cannot be made available for ordering. The relationship between the partner and the payment service provider is additionally governed by that provider's own terms.

The amounts due to the partner — the gross goods value plus any delivery fees it charges, less the commission under § 7 and less any amounts for advertising services set off under paragraph 8 sentence 3 — are disbursed through its connected payment account, according to the payout schedule stored there and to the bank account named there. The payment service provider's charges are borne by foodfyp; they are not passed on to the partner.

foodfyp makes a statement available to the partner in the portal for each settlement period. It sets out the orders forwarded, the gross goods value, the commission and the statutory value added tax attributable to it. The value added tax treatment of the dishes towards the guest remains the partner's responsibility.

If an order is refunded in whole or in part, the commission ceases to apply to the same extent; an amount already settled is credited to the partner or set off against the next statement.

Chargebacks are borne by the partner to the extent that they result from an order not being fulfilled, being fulfilled late or being fulfilled defectively. Where they result from other circumstances, in particular from misuse of the means of payment, the partner does not bear them.

The partner raises objections to a statement in text form without undue delay after it is made available. The review of an objection is governed by § 18.

The partner may set off only claims that are undisputed or have been established with final and binding effect. foodfyp may set off its commission claims against the amounts to be paid out through the payment service provider. Where the partner books advertising services separately, foodfyp may set off the amounts owed for them in the same way.

§ 9 Pickup and self-delivery

An order forwarded through foodfyp is fulfilled by exactly one of two routes: collection by the guest at the location, or self-delivery by the partner. foodfyp provides no delivery service, supplies no delivery staff and does not owe the transport of the dishes.

The partner specifies in the portal which of these routes it offers. If it offers self-delivery, it also specifies the delivery area and the delivery fee there; the delivery fee belongs to the partner and is not part of the basis on which the commission is assessed.

The partner accepts or declines incoming orders without undue delay. An order that has been accepted is ready at the time the partner stated to the guest on acceptance.

The partner packages the order so that it is fit for transport: with material approved for food, sufficiently sealed and visibly closed, so that the guest notices if it has been opened. The obligations under the German Packaging Act rest with the partner.

Hot dishes are handed over hot and dishes requiring refrigeration are handed over chilled. The partner chooses the packaging and the moment of preparation so that the temperatures required by food law are maintained until handover to the guest.

For pickup, the partner keeps the order ready in an appropriate manner from the stated time and hands it out on receiving the order number.

For self-delivery, the partner delivers using its own staff or third parties it has engaged. It is responsible for the applicable requirements of employment, trade and road traffic law. Risk passes on handover to the guest. If the delivery is significantly delayed, the partner informs the guest through the portal.

If an order that has already been accepted cannot be fulfilled, the partner informs foodfyp through the portal without undue delay so that the guest's payment can be refunded.

§ 10 Order of presentation in the feed

foodfyp determines the order in which videos are shown to a guest in the feed by automated means. This section describes the main parameters and their relative importance in outline, as required by Article 5 of Regulation (EU) 2019/1150.

Each video receives a score made up of five component values which foodfyp adds together with weightings. The list below names those components in the order of their weight, beginning with the strongest. This contract does not state the weights themselves: they are settings foodfyp adjusts in operation, and a figure fixed here would be wrong after the next adjustment.

Alongside the score, a diversity rule applies: once a video of one location has appeared, a further video of that same location which would fall due within the next three videos is not moved further down but removed from the list. It is not made up for on the following pages either, because the rule is applied to the entire selection before that selection is divided into pages. A location with several videos therefore reaches the individual guest with fewer videos than its scores would produce. That is intended and favours variety over the score alone.

A location from which a guest has not yet ordered has no head start on the usage-history component: for that location the component initially stays at the lower end. Since it carries the smallest weight of the five components, the order for such a location is determined mainly by the other criteria. Equal treatment with a location the guest already knows is therefore not promised.

On the first page of the feed, foodfyp mixes paid placements in among the videos sorted according to paragraphs 2 and 3; this does not happen on subsequent pages. Remuneration therefore influences whether, and at which point, a video is additionally shown, but it does not alter a video's score under paragraph 2 and has no effect on the order of the other videos. Paid placements are labelled as such and identifiable by the guest.

The rate under § 7 has no effect on the order. foodfyp offers no dishes of its own and therefore cannot give preference to its own offerings.

foodfyp may continue to develop the component values and their weighting. foodfyp announces a change that would render this description inaccurate at least 30 days before it takes effect, in accordance with § 16.

There is no entitlement to a particular position, to a particular number of views or to a particular level of visibility.

The component values, ordered by their weight, are:

• the match between the video's tags and the guest's preferences as they follow from the guest's previous behaviour in the app — the strongest component,
• the popularity of the video, which at present follows essentially from likes,
• the distance between the guest and the location,
• the age of the video, whose weight decreases exponentially as it ages,
• the guest's previous usage history, that is how often the guest has ordered from this location and how well its type of cuisine matches the guest's preferences.

§ 11 Ratings

Only a guest who has ordered from the location in question through foodfyp may submit a rating, and only after the order has been completed. Each order can be rated once.

The partner must not influence ratings. It grants guests no benefit for submitting or amending a rating and does not have ratings submitted by its own staff or by third parties acting on its instructions.

The partner may request the removal of a rating concerning it. It submits that request through the portal or in text form to support@foodfyp.com, stating what it bases the request on. foodfyp decides on removal; § 18 remains applicable alongside this.

There is no entitlement to the removal of a rating to the extent that it contains a permissible expression of opinion or an accurate statement of fact.

foodfyp removes a rating where it is unlawful or manifestly inaccurate. That is the case in particular where it

• has criminal, insulting or discriminatory content,
• contains untrue statements of fact about the partner,
• discloses personal data of third parties or of the partner's staff,
• contains advertising or a reference to a third party's offering,
• evidently does not relate to the order rated, or
• is evidently bought, submitted on instruction or manipulated in some other way.

§ 12 Liability

foodfyp is liable without limitation in cases of intent and gross negligence, in cases of fraudulent concealment of a defect, for injury to life, body or health, to the extent of a guarantee assumed, and under the German Product Liability Act.

In cases of simple negligence, foodfyp is liable only for breach of a material contractual obligation. An obligation is material where its fulfilment is what makes the proper performance of this contract possible in the first place and where the partner may regularly rely on its being met. In such cases liability is limited to the damage that was foreseeable and typical for this type of contract at the time it was concluded.

foodfyp's liability is otherwise excluded.

For the loss of data, foodfyp is liable only to the extent that the damage would also have occurred had the partner backed up its data properly and regularly.

The limitations in paragraphs 2 to 4 also apply to liability for foodfyp's legal representatives, employees and vicarious agents.

The partner is liable for the dishes and their condition. It indemnifies foodfyp against claims brought against foodfyp by guests, authorities or other third parties because a dish was defective, because food, labelling or product law was infringed, or because the information about a dish was incorrect or incomplete. The indemnity covers the reasonable costs of legal defence. foodfyp informs the partner of such claims without undue delay and makes no acknowledgement without consulting it.

§ 13 Data protection

foodfyp and the partner each process guests' personal data as separate controllers within the meaning of Article 4(7) GDPR. foodfyp processes them to operate the feed and to forward the order; the partner processes them to fulfil the order and to meet its own statutory obligations.

Joint controllership under Article 26 GDPR is not intended. Should it nevertheless exist for an individual processing operation, the parties will conclude an arrangement covering it. Where one party processes data on behalf of the other, they conclude an agreement under Article 28 GDPR beforehand.

The partner uses the data foodfyp transmits to it for the fulfilment of an order — in particular the guest's name, the contents of the order and, for self-delivery, the delivery address and telephone number — exclusively for that purpose. It may use them for its own advertising only with the guest's consent. It erases them as soon as they are no longer required for fulfilment and no statutory retention obligation stands in the way.

The partner takes appropriate technical and organisational measures under Article 32 GDPR and obliges the persons processing those data to maintain confidentiality.

If a party becomes aware of a personal data breach affecting orders forwarded through foodfyp, it informs the other party without undue delay and supports it in meeting the obligations under Articles 33 and 34 GDPR.

The data foodfyp processes about the partner and its contact persons are set out in the partner privacy statement as amended from time to time. The partner directs requests for access or erasure and any other data protection matters to datenschutz@foodfyp.com.

§ 14 Term and termination

The contract runs for an indefinite period. There is no minimum term.

The partner may terminate the contract at any time in text form, without stating reasons, to the end of a calendar month. foodfyp may give ordinary notice only with a period of 30 days and only stating the reasons in text form; this corresponds to Article 4(2) of Regulation (EU) 2019/1150. Orders received up to the moment termination takes effect are still fulfilled and settled.

The right of either party to terminate for cause remains unaffected; the period under paragraph 2 does not apply to it. Cause exists for foodfyp in particular where the partner repeatedly breaches obligations under food law, persistently fails to accept orders, or fails to meet payment obligations despite a reminder.

Notices of termination are to be sent in text form to support@foodfyp.com or to foodfyp UG (haftungsbeschränkt), Gänsestieg 27A, 22549 Hamburg, Deutschland.

§ 15 Suspension

foodfyp may restrict the visibility of a location in the feed, remove individual content or dishes, or temporarily suspend the partner account where there is an objective reason to do so. The measure must not go further than that reason requires.

foodfyp communicates the measure to the partner in text form and states the reasons for it. The communication precedes the measure taking effect, so that the partner can remedy the reason where it is capable of being remedied.

Where there is a danger to guests' health, where an authority has prohibited operation, and in cases where foodfyp is required by law to act immediately, the measure takes effect at once. foodfyp then provides the reasons without undue delay.

Orders already accepted are fulfilled where that is still possible and reasonable for the guests. The measure is lifted as soon as the reason for it ceases to apply.

The partner may object to a measure under this section in accordance with § 18. The right of either party to terminate remains unaffected. A suspension does not replace ordinary termination under § 14 paragraph 2 and does not shorten its notice period.

An objective reason exists in particular in the case of:

• a significant or repeated breach of the obligations under § 5 or § 9,
• reasonable suspicion that the dishes from the location pose a danger to guests' health,
• incorrect or misleading information in the menu or in the videos,
• a breach of § 6, in particular the infringement of third-party rights by material provided,
• an attempt to manipulate ratings or the order of presentation in the feed,
• the partner being in arrears with payment despite a reminder,
• an official prohibition or closure of the location,
• the payment account under § 8 ceasing to be activated.

§ 16 Changes to these terms

foodfyp may amend these terms, in particular where the legal position or the case law of the higher courts changes, where new or altered functionality requires a provision, or where the processes of the cooperation change.

foodfyp announces an amendment in text form at least 30 days before it takes effect. The announcement contains the amended text and the date from which it is to apply.

The partner may object to the amendment in text form up to the moment it takes effect. If it does not object, the amendment is deemed accepted; foodfyp draws attention to that effect separately in the announcement.

If the partner objects, the amendment does not take effect in relation to it. In that case either party may terminate the contract under § 14.

Irrespective of this, the partner may terminate the contract up to the moment the amendment takes effect; by way of derogation from § 14 paragraph 2, that termination then takes effect on the day the amendment would take effect.

The change from the pilot rate to the standard rate under § 7 paragraph 3 is not an amendment within the meaning of this section. It is already part of this contract; its announcement is governed by § 7 paragraph 3.

§ 17 Notices

Declarations under these terms — in particular termination, objection, announcement, complaint about a rating and complaint under § 18 — require text form under Section 126b of the German Civil Code unless provided otherwise. An email and a message sent through the portal satisfy that form.

foodfyp addresses declarations to the email address stored in the partner account or makes them available in the portal. The partner addresses declarations to support@foodfyp.com or to foodfyp UG (haftungsbeschränkt), Gänsestieg 27A, 22549 Hamburg, Deutschland.

The partner keeps the contact details stored in the partner account up to date and retrieves messages in the portal at intervals appropriate to ongoing operations.

A declaration sent to the address last stored is deemed received as soon as the partner can take note of it under ordinary circumstances; for an email that is the working day following dispatch. The partner remains free to prove that the declaration did not reach it, or reached it later.

Where the partner has stored an incorrect address or one that is no longer in use, it bears the consequences of any delay in taking note that results.

§ 18 Complaints

foodfyp maintains an internal system for handling partner complaints within the meaning of Article 11 of Regulation (EU) 2019/1150. It is open to the partner for complaints about foodfyp failing to comply with these terms, about technical disruptions with a significant effect on the partner's offering, about measures under § 15, about the order of presentation in the feed under § 10, and about statements under § 8.

The partner submits a complaint through the portal or in text form to support@foodfyp.com. It should make the facts, the location concerned and the partner's request identifiable.

foodfyp confirms receipt without undue delay, reviews the complaint within a period appropriate to the matter, and communicates the outcome to the partner individually, in text form and in clear and intelligible language. If the review takes longer, foodfyp informs the partner of its status and of the expected further course.

Handling a complaint is free of charge for the partner. Submitting a complaint must not put the partner at a disadvantage.

A complaint is not a precondition for asserting claims. The partner's right to go directly to the courts remains unaffected.

§ 19 Final provisions

This contract is governed by German law. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

Where the partner is a merchant, a legal person under public law or a special fund under public law, Hamburg is the exclusive place of jurisdiction for all disputes arising from or in connection with this contract. foodfyp remains entitled to bring proceedings at the partner's general place of jurisdiction as well.

The partner may transfer rights and obligations under this contract to a third party only with foodfyp's consent in text form. Transferring a location as part of a transfer of the business requires a fresh registration under § 4.

Should a provision of these terms be or become invalid or incapable of performance, the remaining provisions are unaffected. The statutory provision takes the place of the invalid provision or the one incapable of performance.

These terms are also available in German. In the event of any inconsistency between the two language versions, the German version prevails.