Terms of Service

Last updated on 16 September 2024

1. General Provisions 1.1 These General Terms of Use (the ‘Terms of Use’) apply between Arbor Technologies GmbH, Kastanienallee 84, 10435 Berlin, Germany (‘Brandback’), Sellers (each a ‘Seller’ and collectively the ‘Sellers’) and Buyers (each a ‘Buyer’ and collectively the ‘Buyers’) (Sellers and Buyers also each a ‘User’) (User and Brandback each a ‘Party’ and collectively the ‘Parties’) with respect to Brandback's services (the ‘Services’). Buyer’ and collectively the “Buyers”) (Seller and Buyer also each a “User”) (User and Brandback each a “Party” and collectively the “Parties”) with regard to the services of Brandback (the “Services”) and the provision of the online marketplace (the “Marketplace”), as described in more detail below. Brandback provides Users with the Services and the Marketplace via the website “brandback.de” (the “Platform”).

2. Services 2.1 On the platform, users can share content, such as personal photos and comments, as well as general information about their products and offered goods (the ‘user content’) with other users. In addition, users can communicate directly with each other via the platform's chat function.

2.2 The services on the platform include, among other things,

• the technical provision of the platform after the user's registration;
• the facilitation of negotiations and the conclusion of sales contracts on the platform (the ‘Sales Contracts’) via the marketplace (see Sect. 5); and
• the provision of information and communication options between users.

2.3 Registration and use of the services on the platform are free of charge for users.

2.4 As an additional service, Brandback provides a Brandback 1-Click-Resale button in the online shops of certain Brandback partners, which is displayed at the end of an order process. This allows sellers who are already registered with Brandback to transfer information about the products they have purchased in the online shop to their user account. This information is stored in the seller's user account. Persons who do not yet have a user account with Brandback are given the opportunity to register with Brandback as potential future sellers within 30 days of using the Brandback 1-Click-Resale button. The information about the purchased products is then stored in their user account by Brandback within this period.

3. Using the Brandback 1-Click-Resale button 3.1 The Brandback 1-Click-Resale button in the Partner's online store constitutes an offer to use the Brandback 1-Click-Resale service. By clicking the button, the (prospective) seller accepts Brandback's offer to (prospectively) have the option of having information about the products purchased by the (prospective) seller transferred by Brandback to his user account. Immediately after clicking the Brandback 1-Click-Resale button, the (prospective) seller receives a contract confirmation via email including the Terms of Use.

3.2 The contract text is not stored by Brandback after the contract is concluded and is not accessible to the (prospective) seller. German and English are available as languages for the contract conclusion.

4. Registration, contract conclusion for use of the platform 4.1 The User is obliged to register on the Platform if they wish to use it as a Buyer and/or Seller. The User is obliged to provide the required information completely and truthfully.

4.2 Registered Users can use the Platform as Buyers and/or Sellers. However, a User cannot be both Buyer and Seller in relation to a Purchase Agreement at the same time.

4.3 When registering a user account (the ‘User Account’), the user must provide the information in the mandatory fields and choose a password. The email address and password serve as login data (the ‘Login Data’). In the last step of the registration process, the user can check his entries and identify input errors before sending his registration request and correct them by editing the fields. By clicking the button, the user submits a binding offer for registration. Immediately after sending the registration, the user receives a registration and contract confirmation via email including the terms of use. With this email, Brandback also accepts the user's offer to use the platform.

4.4 The contract text is not stored by Brandback after the contract has been concluded and is not accessible to the user. German and English are available as languages for the conclusion of the contract.

4.5 The user is obliged to adequately protect login data and content from unauthorised access by third parties, to keep passwords secret and to secure the user account from unauthorised access by third parties. The user shall inform Brandback immediately if the user suspects unauthorised access to the user account and/or if there are indications of such access.

4.6 Brandback is entitled to refuse registration of the user without stating reasons, to delete a user account or to block access to the platform. In such a case, Brandback shall inform the user.

5. Use of the marketplace 5.1 The marketplace is only available to users of legal age. Brandback can therefore demand that users prove their age of consent as part of the registration process. The marketplace is aimed at users who act as consumers in the sense of § 13 BGB (German Civil Code), i.e. who are predominantly not acting in a commercial or self-employed capacity when using the marketplace. Brandback reserves the right to exclude users who act commercially from using the marketplace.

5.2 After registration, sellers have the option of placing their goods on the platform to present them to registered buyers. The listing and presentation of sellers' goods on the platform does not constitute a legally binding offer, but merely an invitation to buyers to place orders for a specific purchase quantity (invitatio ad offerendum).

5.3 Brandback expressly clarifies that no verification of the validity of the data is carried out and that an incorrect entry of data only affects the user relationship. The analyses carried out by Brandback are based on the data provided by the users. Users are obliged to ensure that the data they provide is correct and that they have the necessary authorisation to use and share the data.

5.4 By clicking the button ‘Confirm and pay’ in the last step of the ordering process, the buyer makes a binding offer to purchase the goods. Immediately after sending the order, the buyer receives an order confirmation, which, however, does not yet constitute acceptance of the offer. A purchase contract is concluded between the seller and the buyer when the seller accepts the buyer's order via the platform, possibly after further contract negotiations via the platform.

5.5 Users can search for offers to sell based on various criteria. The ranking of the displayed offers to sell is based on the time setting by default, with the current offers to sell being displayed first. There is no way for sellers to influence the ranking of offers to sell, in particular by paying a fee.

5.6 Brandback assumes no obligations regarding the conclusion of purchase agreements between users on the platform. Brandback has no influence on the realisation or non-realisation of a purchase agreement between the seller and the buyer. The information provided by Brandback regarding services and conditions or other information is intended solely to enable the user to make an independent and responsible decision. Users have no right to conclude a purchase agreement via the platform.

6. Payment terms 6.1 Registration on the platform is free of charge for the user.

6.2 When selling goods on the marketplace, the seller is obliged to pay the agreed transaction fee to Brandback in the event of a concluded purchase contract.

6.3 The user has the option to pay the amount due using the means of payment offered at the time of concluding the contract.

6.4 If the Seller accepts the offer, payment is processed by the payment service providers integrated into the platform. For the payment processing, it may also be necessary to agree to the contractual terms of the payment service providers. When the payment is processed via the platform, the agreed purchase price will be paid to the Seller by the payment service provider thirty (60) days after the contract is concluded, after deducting the transaction fee in accordance with Section 6.2.

6.5 The buyer shall be informed of the means of payment available on the platform in good time before the conclusion of the purchase contract. The buyer is not entitled to a specific means of payment.

7. User content, user obligations 7.1 The user is solely responsible for the user content. The user is generally liable for all activities carried out under his user account. The user is not liable if he is not responsible for the misuse of his user account.

7.2 The user shall ensure that the user content is in particular not

7.2.1 harassing, offensive, harmful to minors or otherwise illegal;

7.2.2 violates the rights of third parties, in particular copyrights, personal rights or other property rights; or

7.2.3 confidential, e.g. contains trade secrets.

7.3 By providing or entering user content, the user irrevocably grants Brandback the non-exclusive, worldwide, royalty-free right to use user content for the fulfilment and execution of the contract. Brandback may also have the rights granted to the user content exercised by third parties, for example by vicarious agents (e.g. hosting service providers).

7.4 The user warrants that the user content does not contain or distribute any viruses or other malware such as worms or spyware and that its transmission and contractual processing by Brandback does not violate any rights of third parties or infringe any laws. The user is obliged to obtain any necessary consent from third parties in advance, in particular those required under applicable data protection law or the German Art Copyright Act (KunstUrhG), and to provide Brandback with evidence of this immediately upon request.

8. Warranty, liability 8.1 Brandback does not guarantee a specific availability of the platform. Brandback is not liable for a temporary unavailability of the platform.

8.2 Brandback does not review the information provided by users on the platform or the information provided on third-party websites. Brandback therefore cannot guarantee the correctness, accuracy, reliability, timeliness, appropriateness and/or completeness of this information available on the platform.

8.3 The fulfilment of the sales contract concluded on the platform is the responsibility of the users. Users are solely responsible for complying with legal requirements when fulfilling the sales contract. With regard to the sales contracts concluded on the platform, Brandback neither warrants the fulfilment of the sales contracts nor assumes liability for material defects. Brandback is under no obligation to ensure the fulfilment of the sales contracts concluded between users.

8.4 Brandback cannot guarantee the actual identity and authority to dispose of the seller. In case of doubt, buyers are advised to take appropriate measures to verify the true identity and authority to dispose of the seller.

8.5 Notwithstanding the above provisions, Brandback shall be liable without limitation for

• intent and gross negligence on the part of Brandback, its legal representatives, executives or other agents;
• in the event of injury to life, limb or health.

In the event of slight negligence, Brandback shall only be liable for the breach of a material obligation (cardinal obligation), the fulfilment of which is essential to the proper performance of the platform and on the observance of which the user may regularly rely. Liability for the breach of such a material obligation is limited to such damages that typically occur and that Brandback had to foresee at the time of the user's registration based on the circumstances known to it at that time. Liability under the Product Liability Act remains unaffected.

8.6 Section 7 also applies in favour of Brandback's employees, representatives, organs and agents.

9. Indemnity 9.1 Users shall indemnify Brandback against all claims asserted by third parties against Brandback due to the infringement of their rights or due to legal violations resulting from offers and/or user content posted by users, insofar as the respective user is responsible for this infringement. The respective user shall also bear the reasonable costs of Brandback's legal defence in this context, including all court and attorney fees.

9.2 Brandback is not able to ensure the legal compliance of user actions before, during or after purchase. Therefore, users agree to indemnify Brandback from all claims asserted by third parties in connection with sales on the marketplace.

10. Term, Termination 10.1 The contract based on these terms of use is concluded for an indefinite period. The term of the contract begins on the date of successful registration of the user.

10.2 This contract can be terminated by Brandback and/or the user at any time with immediate effect. The right to extraordinary termination of the contract for good cause remains unaffected. As a result of the termination, the user no longer has access to his user account.

11. Tax reporting obligations 11.1 As the operator of the Platform, we are obliged under the Platform Tax Transparency Act (PStTG) to report certain information about the sales generated on our Platform to the Federal Central Tax Office (BZSt) in Germany.

11.2 The information to be reported includes, among other things

• Personal details of sellers (e.g. name, address, tax identification number)
• Details of the goods sold
• Amount of remuneration received

11.3 Sellers are obliged to provide us with the required information truthfully and completely in order to be able to comply with our statutory reporting obligations.

12. Final provisions 12.1 The EU Commission provides a platform for online dispute resolutions for consumers on its website. Brandback is not willing and not obliged to participate in dispute resolution proceedings before a consumer arbitration board.

12.2 The law of the Federal Republic of Germany shall apply to the contract and all claims and rights arising therefrom or otherwise in connection therewith.

12.3 If a user is an entrepreneur within the meaning of § 14 BGB (German Civil Code), the exclusive place of jurisdiction for all disputes between the parties arising out of or in connection with the contract is Berlin.

12.4 Should individual provisions of these terms and conditions be or become invalid or contradict legal regulations, the validity of these terms and conditions shall not be affected. The parties shall replace the invalid provision by mutual agreement with a valid provision that most closely approximates the economic purpose of the invalid provision in a legally effective manner. The above provision shall apply accordingly in the event of gaps in the contract.