Terms and conditions july 2019

Terms and conditions

Terms and Conditions of Bottler und Schmacke GbR concerning the use of the online platform cherryfish
Effective: 29.07.2019

cherryfish is an online platform for high-quality services operated by Bottler und Schmacke GbR (“cherryfish”), Döringstr. 7, 10245 Berlin, Germany. cherryfish enables demanders (hereinafter referred to as “clients“) and contractors (hereinafter referred to as "contractors" or “service providers”) of services (“project positions”) to negotiate assignments and to enter a cooperation in the scope of the concluded contracts (“service contracts”). Clients can post project positions, compare offered candidates posted by contractors and manage project positions. Contractors view project positions and propose candidates.

Proposed candidates can view their profile and supplement it with additional information. Thus, customers, service providers and candidates alike are "users" of the online platform.With cherryfish. Bottler and Schmacke GbR provides a corresponding platform for the users. In addition, Bottler und Schmacke GbR offers clients the option of purchasing individual service packages directly from cherryfish.These Terms and Conditions (“T&C”) are applicable to all contracts between users and cherryfish except for “cherryfish direct” contracts for which separate T&Cs exits. These direct business T&Cs are handed over individually to the users.cherryfish reserves the right to modify, to amend or to redraft the existing T&C at any time and without giving reasons. Users will be informed about modifications, amendments or redrafts of this T&C in sufficient time per e-mail (hereinafter referred to as “notice of change“). Should the user not object within two weeks of receiving the notice of change, the modified T&C are considered approved. The user will be reminded of this in the notice of change.

1. User contract
2. Account and user profile
3. Service contracts
4. Cancellation right of the consumer
5. Use of the online platform - in general
6. Trade and economic sanctions
7. Granting of rights
8. Billing payment terms
9. Anti-circumvention provision exclusitivit
10. Contract duration/ termination
11. Consequences of infringement by user
12. Warranty and liability
13. Extra-judicial settlement
14. Final provisions

§ 1 User contract

1.1 Object of the contract
Object of this contract is the access to the online platform cherryfish ("online platform") for the purposes as described in the preamble of the T&C, on which the users may present their offers. cherryfish creates, services and maintains the online platform, however, does not itself act as an intermediary between the users.

1.2 Eligible users
Clients in the sense of the preamble can be legal entities or natural persons who have who have reached the age of 18 and are fully legally competentIf a natural person is not acting on his own behalf, he affirms to cherryfish that he has been authorized or delegated to perform the particular action.Solely contractors, i.e. natural or legal persons or partnerships which have legal capacity, who are acting within the scope of their commercial or self-employed professional capacity when concluding a legal transaction, are considered to be contractors, and are eligible to conclude contracts with cherryfish.Candidates can only be natural persons who have reached the age of 18, are fully legally competent and who, who are acting within the scope of their commercial or self-employed professional capacity when concluding a legal transaction

1.3 Conclusion of contract
The contract with cherryfish for the use of the online platform is concluded with the completion of the online registration process and use of the activation link in the verification e-mail sent to the user by cherryfish (hereinafter referred to as “registration”). With his registration, the user attests that he is an eligible user as stipulated in § 1.2 of these T&C. Furthermore, the user is obliged to make a truthful and complete declaration of the information requested for the registration.The user is required to provide a current e-mail address at all times, which also serves the communication between user and cherryfish.In case of a modification of the recorded data subsequent to the registration, the user is required to change these in his account without delay.Following a successful registration, cherryfish will provide the user with an account.

1.4 Membership and fees
For the users, cherryfish offers various membership models, free of charge or paid, with respectively different ranges of functions and access rights.The applicable fees for and the scope of the additional services will be displayed during the respective processing step. Upon conclusion of a service contract according to § 3 of these T&C, the service provider or the client becomes liable to pay cherryfish a service fee of a percentage of the total project value. If the percentage service fee is less than the minimum service fee, the minimum fee is due instead. cherryfish’s claim for the service payment arises with the use of the online platform and falls due for payment with the conclusion of a service contract between client and service provider. Project value is the amount paid by the client to the service provider for the performance of the awarded project, at the time the contract was concluded.The respective valid prices and the respective scope of services can be viewed at https://www.cherryfish.me/pricing-plans-for-companies

§ 2 Account and user profile

2.1 Account and user profile
Upon a successful registration the user is provided with an account, within which he can create his own profile.Each user is limited to max. one account, resp. one user profile as client, and one account, resp. user profile as service provider. Candidates are limited to creating one account or user profile.The account, resp. the user profile is protected by a user name and a password (hereinafter referred to as “login information“) which are determined during the registration process. The user must ensure that his login information is not accessible to third parties. In case of loss of the login information, or in case of suspicion that a third party has knowledge of the information or is making use of the user´s account, the user is obliged to inform cherryfish about this immediately and to change his login information.

2.2 Account and user profile information and updating
The user ensures that the information provided during the creation of the account, resp. the user profile, is accurate and complete. The user is obliged to promptly reflect all modifications of his account and profile data on his account, resp. user profile on the online platform.

2.3 Binding user account and profile
The account, resp. the user profile is bound to the user and cannot be transferred to a third party without the explicit approval by cherryfish.

2.4 Data protection
The user is obliged to back up all data (i.e. profile data, project position descriptions, etc.) which he uses in connection with cherryfish on a daily basis, to the necessary extent.

§ 3 Service contracts

3.1 Contract parties
The creation and negotiation of projects, the related contract conclusion and contractual performance are the sole responsibility of the participating users. The users are also solely responsible for ensuring that the projects and the conclusion of the contract comply with German law as well as the law of the respective user; the service provider is especially required to instruct the client accordingly. The users will negotiate their projects independently among themselves. cherryfish will provide the users solely with the necessary infrastructure but shall not act as representative or agent of a user and shall not become a party to a service contract concluded between the client and the service provider.

3.2 Formation of service contracts
A service contract is concluded when the client submits a non-binding project request upon which the service provider can submit his initial, likewise non-binding bid including the prices of corresponding candidates. Upon successful selection of one or more candidates, the service provider subsequently sends the client a binding offer. After final contract negotiation and signing, the client is obliged to inform cherryfish by e-mail to contract@cherryfish.me about the conclusion of the service contract and the contract amount agreed therein.

3.3 Content of the service contracts
The users are free in the structuring of the service contracts; however, the content of the service contracts may not contradict these T&Cs, the German laws or the legislation the respective user may be subject to. The conduct of the users during their contractual performance also affects cherryfish´s reputation. Therefore, the users are also obliged toward cherryfish to adhere to and correctly fulfill the service contract. This means, in particular, the strict observance of any confidentiality agreements unless explicitly agreed otherwise by the parties of the service contract.  

§ 4 Cancellation right of the consumer

Provided the user is a consumer within the meaning of § 13 BGB (German Civil Code) and has provided true information to this effect in accordance with § 1.2. and 1.3. the following right of withdrawal shall apply:

Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The period begins after receipt of this instruction in text form, however not before the conclusion of the contract and also not before fulfilment of our information duties according to article 246 § 2 EGBGB in connection with § 1 exp. 1 and 2 of these AGB, as well as our duties according to § 312e exp. 1 sentence 1 BGB in connection with article 246 § 3 EGBGB. To exercise the right of withdrawal, you must inform us

Bottler und Schmacke GbR
Döringstr. 710245 Berlin

Tel: +49 (0)30 40694226
Email: support@cherryfish.me

of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or e-mail). To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
Termination of the right to withdraw
The consumer hereby agrees that the provider commences work prior to the 14 day right of withdrawal period, and therefore acknowledges that the right to terminate the agreement is relinquished at the point of purchase.
The right of withdrawal as per the § 312 g II BGB is not applicable to contracts regarding the delivery of made-to-order goods involving personalized production, that are not prefabricated.

- End of statutory information on right of withdrawal -

§ 5 Use of the online platform – in general

5.1 General obligation to comply with legal requirements
Users can utilize various services when using the online-platform. This includes, for example, sending messages to other users and posting their own contents, especially contents concerning projects and service contracts (i.e. pictures, texts…). The user undertakes to comply with these T&C and applicable law, especially criminal law, competition law, trademark law, copyright law, personal rights, data protection law and laws concerning the protection of young persons, and not to violate the rights of any third party when using this platform.
This also signifies in particular that the user may not send messages with advertising content (especially spam-messages) without the consent of the recipient. In the event that the contents posted by the user contains hyperlinks to pages of third parties, the user shall ensure that he has the authorization to use the hyperlinks and that the website to which the link is established complies with applicable laws and the right of third parties in the context of clause 3.

5.2 Interdiction of fake offers and bids
cherryfish is dependent on the fact that solely genuine bids and offers are posted. Therefore, it is prohibited to users to post offers or bids whose fulfillment has never been intended as supposed clients, supposed contractors or supposed candidates.

5.3 Blocking and deleting contents
cherryfish is authorized to block the access to or delete certain contents at any given time. This is particularly applicable in case of suspected violation of the T&C, applicable laws or rights of third parties, or if projects are completely finalized.

5.4 Prohibition of technical interference
The user must abstain from all actions which are suited to manipulate, impair and / or excessively strain the operation of the online platform or the underlying technical infrastructure and its functions / access possibilities. In particular these include:

• the use of software, viruses, robots, scripts or databases in connection with the use of the online platform;
• blocking, overwriting, modifying, copying of data and / or other contents, insofar as that it is not necessary for the correct use of the online platform.

5.5 Communication
The current contact information for cherryfish is available on the platform. The information provided in the profile is considered as contact information of the user. Any declaration transmitted to these contact details per fax or e-mail is considered received upon sending, via post three days after sending, unless a later reception can be proved.The user acknowledges the effectiveness of declarations sent via e-mail between himself and cherryfish, or himself and other users as being absolutely effective declarations of intent. Unless evidence to the contrary is produced, a received e-mail is considered to be from the person whom the address belongs to.

§ 6 Trade and economic sanctions

6.1 Business or transactions relating to trade and economic sanctions
The user represents that he is not owned or controlled by any party which is, and neither the user nor any of its subsidiaries, nor any directors, officers or employees of it or of any of its subsidiaries are, a party targeted by Sanctions. The user represents that no party which owns or controls it and none of the user nor any of its subsidiaries, directors, officers or employees of it are or have ever been subject to any claim, proceeding, formal notice or investigation with respect to Sanctions.The user shall take reasonable measures to ensure that the user and its subsidiaries comply with Sanctions and shall not engage in activities that would cause cherryfish to violate Sanctions.The user shall ensure that it shall not provide funds to cherryfish that are derived from business or transactions with a party targeted by Sanctions, or from any action which is in breach of any Sanctions.
Sanctions means: any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any (relevant) sanctions authority.

6.2 Blocking access
cherryfish is entitled to block the user's access permanently or temporarily if there is a justified suspicion of a violation of § 6.1. Section 10.5 of these terms and conditions shall apply.

§ 7 Granting of Rights

7.1 Granting of rights
The user grants cherryfish a non-exclusive right of use without restrictions of time and space of posted contents. cherryfish is entitled at any given time to use and exploit the contents entirely or in parts within the scope of the fulfillment of the service contract. cherryfish is particularly entitled to represent and publish the contents posted by the user on the online platform. Furthermore, this includes the right of reproduction, the right of distribution, the right of communication to the public and the right to make publicly available.

7.2 Guarantee of proprietorship
The user guarantees that he is the proprietor of all rights necessary for posting contents on the online-platform, and that he is fully entitled to effectively grant cherryfish the rights as named in § 7.1. The user guarantees furthermore that the contents are unencumbered by third party rights, which could exclude the granting of rights and their use as covered by the contract. The user guarantees that the use of the contents according to contract does not violate any rights, especially personal rights of third parties, in particular that any represented persons agree with the contractual use of the contents.

7.3 Exemption from third party claims
On cherryfish´s first demand, the user shall release cherryfish from all third-party claims, in particular claims concerning violations of copyrights, competition law, brand infringement, data protection breach and violation of personality which may be raised by the user in connection with the use of the online platform. The user must inform cherryfish immediately of third-party claims in connection with the use of the online platform that he may become aware of. cherryfish is entitled to take such measures as seem appropriate for the defense against third party claims or for the pursuit of their rights. The user must agree with cherryfish concerning his own measures in advance. The exemption also includes the compensation of reasonable costs which have incurred due to the pursuit of rights / defense of rights by cherryfish.

7.4 Rights to the online platform
All rights to the online platform (especially copyrights) reside with cherryfish. The user is obliged to consider this and undertakes not to use – privately or commercially – any parts of the platform or other contents whatsoever beyond the possibilities granted to himself within the context of the use of the online platform. This particularly means that the users will not use data and information achieved via the online platform beyond the communication in the context of an existing project or the payment of a completed project. It is especially prohibited to use such information for advertisement, unsolicited e-mails or other non-authorized purposes.

§ 8 Billing and payment terms

8.1 Electronic invoices
Invoices are issued electronically in English language and made available in the user´s account as well as sent to the user´s e-mail address registered in his account. The user is entitled to send a request to invoice@cherryfish.me , and demand the German translation of the general cherryfish invoice template. Furthermore, contractors based in Germany have the right to request by e-mail, directed to invoice@cherryfish.me , stating their username, invoice number and complete address that an invoice is sent to them by post within 6 months after issue of the invoice.

8.2 Payment terms
a) The due date of fees or charges is stated in the respective invoice. Unless otherwise stated, invoices are due for payment immediately.
b) The user is obliged to pay the fees or charges per online payment processes to the bank account of Bottler und Schmacke GbR

8.3 Interest for default and reminder fees
If payments are overdue, cherryfish reserves the right to charge interest in the amount of 8 percentage point p.a. above the annual base interest rate or, if the local legal limit is lower, the lower percentage rate. cherryfish charges a reminder fee of 4.95 EUR for every justified reminder.

8.4 Blocking of the account in case of delay
If the user is more than 30 days in arrears with a payment or does not make overdue payments within the period set in the reminder, cherryfish is entitled to block the user's account until full payment of all outstanding amounts including interest and fees. The suspension has no effect on the membership term, the contractually agreed minimum term and the fees incurred for this remain in force.

8.5 Due date of the annual fee in case of delay
If the user is more than 30 days in arrears with a payment or does not make overdue payments within the deadline set in the reminder, all payments that would have to be made by the end of the contract period are due immediately.  

§ 9 Anti-circumvention provision, exclusivity

9.1 Circumvention of cherryfish
If a service contract according to § 3.2 is concluded between the client and the service provider, the user undertakes not to carry out any project by circumventing the online platform or paying the service fee as stated in § 1.4. The declaration of a lower contractual volume with the intention of lowering the service fee is also considered a contract-breaching circumvention.

9.2 Requests of circumvention
Should another user request a formation of contract in breach of the regulation of the previous paragraph, such a request must be declined and the correct contract formation via the platform be pointed out. Users are urged to inform cherryfish immediately of such request by e-mail to violation@cherryfish.me.

9.3 Exclusivity
In the event that the users have initiated their business connection or concluded a service contract cherryfish, cherryfish will charge a percentage as service fee of the project value on any follow-up projects between the same users during a period of 12 months following the initial contract. The users undertake to exclusively conclude any follow-up service contracts during this period via cherryfish. Should the users not have access to the online platform during this period, e.g. because one user has terminated this contract, they undertake to inform cherryfish immediately of the (follow-up) service-contract with a declaration of the project value.

§ 10 Contract duration / Termination of the user contract

10.1 Contract duration and notice period
The term of the contract depends on the respective membership chosen by the service provider. These can be viewed at https://www.cherryfish.me/pricing/.
Contracts for a free membership without a term can be terminated at any time without giving reasons. The user contract is automatically extended by the respective term of the membership if it is not terminated in due form at the respective end of the contract term by observing a period of notice agreed for the respective membership.  

10.2 Termination options
A termination must be made in writing or can be sent by e-mail and is to be directed to the following addresses:
Bottler und Schmacke GbR
Döringstr. 710245 Berlin

Tel: +49 (0)30 40694226
Email: support@cherryfish.me

10.3 Modification of the membership
Contractors can modify the type of membership.An upgrade to a membership model with a wider function scope is possible at all times and will be validated at the latest by 24:00 hours of the next working day. A return of the credit balance, or a credit note for not-used fees, is not possible.A downgrade to a membership model with a lesser function scope is only possible at the end of the regular contract term of the current membership, under observance of the ordinary notice period as stated in § 10.1.

10.4 Fee and price modifications by cherryfish
In the case that cherryfish adjusts fee or prices for various types of membership (current listing available under https://www.cherryfish.me/pricing/), contractors affected by the adjustment will be automatically reset to the level with the lowest function scope at the end of their contract term, so that they can then immediately modify their membership

10.5 Extraordinary termination and blocking access
Both, cherryfish and the users have the right to terminate the contract extraordinarily for good cause. For cherryfish there shall be good cause to terminate the contract in particular if, within the first ten days after contract conclusion, cherryfish becomes entitled to claim a lump-sum damage payment according to §11, if the user does not meet the due remuneration claims despite reminder and / or violates his obligations according to §§ 2.3, 3.2, 5.1, 5.3, 5.4 and/or 6 of these T&C. In these cases, cherryfish also becomes entitled to block the user´s access to the platform without terminating the contract. cherryfish will remove the block if the user proves that the obligations have subsequently been fulfilled and provides credible evidence that a further breach of duty is excluded.

10.6 Consequences of a contract termination
After terminating a contract, the user no longer has access to his account, resp. his profile, and can no longer view information, messages, files or other contents posted on the platform. cherryfish has the right to delete contents. cherryfish has the right to inform other users about the termination of contract with that user. The user is prohibited from re-registering on cherryfish after an extraordinary termination or blocking by cherryfish according to § 10.5. The regulations of § 9 remain unaffected by a contract termination.

§ 11 Consequences of infringement by user

11.1 Lump-sum damage payment
In case of specific infringements as defined in § 10.5 of these T&C, the concerned user (joint debtor in case of several users) is obliged to pay a lump-sum damage, unless the user is not responsible for the violation in question. cherryfish´s right of claim for damages beyond these remains unaffected. Users are allowed to provide proof that no damage has occurred or has occurred in a significantly lower extent.

11.2 Amount of the lump-sum payment
The amount of the lump-sum according to § 11.1 amounts to the triple of the service fee as calculated according to § 1.4 if the user infringes the circumvention prohibition of § 11.1 and § 11.2. In the event that the user is a consumer, the lump-sum as per sentence 1 is reduced to the amount of the service fee. The price/budget notion of the client is decisive for the amount of the service fee, or, if higher, the highest bid entered for the project.The lump-sum according to § 11.1 amounts to 500,00 EUR if the user infringes the following:o prohibition to make fake offers and bids according to § 5.2.o prohibition of re-registering after termination, resp. blocking by cherryfish according to § 9, 10.6.o prohibition to create more than one account as a client and/or service provider according to § 2.1

§ 12 Warranty and liability

12.1 Availability
It is cherryfish´s endeavor to provide the failure free operation of the online platform and enable users to access the stored information. Naturally, this is limited to services which cherryfish can influence. The user acknowledges that a complete and uninterrupted availability of cherryfish is technically not feasible. Nevertheless, cherryfish endeavors to keep the platform available as continuously as possible. There can be no claim to availability. In particular cherryfish remains free to restrict the access to the online platform completely or partially, temporarily or permanently due to maintenance, capacity restrictions, and due to events beyond cherryfish´s control. Individual users do not have any claim on the upkeep of certain functions and services by cherryfish.

12.2 Limitation of liability
In case of slight negligence, cherryfish will only be liable in case of violation of contract-essential obligations (cardinal obligations), whereat the liability in this case is limited to the amount of contract-typical, foreseeable damage. Otherwise, the pre-contractual, contractual and extra-contractual liability of cherryfish is limited to cases of intent and gross negligence, as well as to damages due to loss of life, bodily injury or damage to the health of a person. The liability for damages which occur despite undertaking a guarantee for the condition of the work, as well as the liability according to the German Product Liability Act remain unaffected. The limitation of liability also applies if the damage is the fault of an agent of cherryfish.

§ 13 Extra-judicial settlement

In case of legal problems arising in connection with a service contract, the user is obliged to send an appropriate claim/complaint justification to the service partner in writing prior to initiating arbitration or court proceedings. The service contract partner is granted a 15-day period to state his opinion and resolve the conflict. Arbitration or court proceedings may only be initiated by the affected party after the expiration of this period. This clause is not valid if a consumer (according to §13 BGB (German Civil Code) is involved in the service contract.

§ 14 Final provisions

14.1 Applicable time designation
All times, periods of time and terms are stated in Central European Time, resp. Central European Summer Time (CET / GMT+1 resp. CEST / GMT+2).

14.2 Applicable law and court of jurisdiction
The laws of the Federal Republic of Germany, under exclusion of the UN Sales Convention (CISG), shall apply. If the user is a merchant, the competent court for all disputes arising from or in relation with this contract is, irrespective of the legal grounds, the company headquarters of cherryfish at the time of the contract conclusion.

14.3 Contract transfer
cherryfish has the right to transfer this contract with all rights and duties to a company of his choice. This transfer becomes effective after 28 days from communication to the user. With the transfer of this contract to another company, the user is granted an extraordinary termination right which must be enforced within 1 week of transfer communication.

Bottler und Schmacke GbR
Helmerdingstr. 8 
10245 Berlin
+49 3040694226

© 2024 Bottler und Schmacke GbR.