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Terms and conditions of the marketplace operator

General terms of use and additional terms FRANKANA updated 10/2021

1. Customer information

1.1 Identity of the platform operator

FRANKANA Caravan und Freizeit GmbH, Spitzwasen 2, D-97340 Marktbreit 

District court Würzburg, HRB 1992

Management (each authorised to represent individually):
Wilfried Neumann, Karsten Neumann, Klaus Büttner, Michael Fuchs

VAT ID: DE134170826

1.2 Website of the online portal

https://www.frankana.de/

1.3 OS platform

Platform of the European Commission for online dispute resolution:
https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=EN

1.4 Essential characteristics of the service

Operation of a platform for third-party suppliers of camping and leisure accessories

2. General terms of use

2.1 Scope

2.1.1 FRANKANA Caravan und Freizeit GmbH (hereinafter referred to as "FRANKANA") operates a portal on the Internet for commercial suppliers of camping and leisure accessories who can advertise, offer and sell their articles to consumers ther.

2.1.2 These General Terms and Conditions of Use of FRANKANA govern the user relationship between FRANKANA and the users of the portal who offer camping and leisure accessories or wish to purchase such accessories.

2.1.3 FRANKANA expressly does not accept any deviating terms of use of users unless FRANKANA has expressly agreed to their application.

2.2 Subject of the contract of use

2.2.1 FRANKANA provides the technical Internet platform of the portal in order to enable the posting, retrieval and sending of content with the functions currently offered there.

2.2.2 Without express agreement with FRANKANA, the users of the portal have no claim to the provision of certain functions by FRANKANA, regardless of whether such functions already existed in the past or not. As the operator, FRANKANA is entitled to change, delete or add new functions of the portal at any time without stating reasons or to link the use of functions to the occurrence or continuation of factual or personal conditions, unless expressly agreed otherwise between the parties.

2.2.3 The use of the portal and the retrieval of content is free of charge for consumers.

2.2.4 For commercial users, the additional terms and conditions for commercial users under clause 3 shall apply in addition and with priority.

2.3 User profile and registration

2.3.1 In order to use the platform's mediation services, the user may register by providing the master data necessary for his/her identification. All data must be provided truthfully and completely and must be kept up to date by the user at all times. Every user has the possibility to edit their master data or their profile. Consumers can also use the platform without registering. By registering, the consumer can take advantage of additional options, e.g. a faster ordering process, saving of different shipping addresses or viewing and tracking of orders. Commercial suppliers conclude a separate, individual agreement with FRANKANA for registration if they wish to use the services of the platform. You can then create a user profile on the platform.

2.3.2 FRANKANA does not check the data provided by users and therefore assumes no responsibility for the accuracy and/or completeness of user data. This information is the information of the respective responsible persons who post it and not information of FRANKANA, which does not adopt this information and content as its own.

2.3.3 There is no claim against FRANKANA for the admission of a user; FRANKANA reserves the right either not to admit users or to delete the master data or the profiles of admitted non-commercial users without giving reasons.

2.3.4 Each user may only maintain one profile. FRANKANA is entitled to exclude users from use in part, in whole or permanently or to block user profiles. A blocked user is prohibited from creating a new profile.

2.3.5 The registered user is obliged not to make their user and access authorisation accessible to third parties and to protect it from access by unauthorised third parties. Commercial users have the option of applying for several sub-accounts to enable profile access by different users. The responsibility for the use of the profile remains with the commercial user.

2.4 Special terms of use; granting of rights

2.4.1 The platform may only be used in accordance with legal regulations and these General Terms of Use and may not infringe the rights of third parties. 

2.4.2 This applies in particular to the content and type of information posted, as well as to the manner in which it is fulfilled, the existence of personal and factual requirements for fulfilment, and the submission and content of evaluations or opinions. FRANKANA points out that individual items must comply with legal requirements, such as DIN regulations; FRANKANA does not check compliance with these. 

2.4.3 The user is responsible for the entry and maintenance of their data and information. FRANKANA is not obliged to check the contents of the data for accuracy, completeness, legality or freedom from viruses. FRANKANA does not adopt the contents of the user's data as its own, nor does it adopt contents to which the user grants access by setting a link. The user is obligated to ensure that the data he or she transmits is truthful, error-free and not misleading.

2.5 Conclusion of contract, role of FRANKANA, payment, general terms and conditions of commercial suppliers and right of withdrawal 

2.5.1 FRANKANA only offers commercial suppliers the opportunity to advertise, offer and sell their products to consumers on the portal. FRANKANA thereby only facilitates transactions between the suppliers and consumers and is thus neither the seller nor the buyer of the items, nor the representative of either party. A contract is concluded exclusively between the commercial supplier and the consumer and FRANKANA is neither a contractual partner, nor a payment service provider, nor involved in this contractual relationship in any other way. The processing of the contractual relationship, including payment processing and any disputes (e.g. regarding the faultlessness of the products), takes place exclusively between the third-party provider and the consumer and is not part of the service in the relationship between the user and FRANKANA.

2.5.2 FRANKANA does not perform any editorial tasks and does not edit the user's texts. The information posted is exclusively that of the author, FRANKANA has no knowledge of it and does not adopt it as its own. Excluded from this are product descriptions which the commercial user explicitly receives from FRANKANA.

2.5.3 It is solely the user's responsibility to ensure that his or her information is legally unobjectionable; FRANKANA is under no obligation to act. The following is prohibited in principle: the posting of information content that is insulting, threatening, racist or sexually offensive, glorifies violence or encourages the use of harmful substances (as defined by the German Medicines and Narcotics Act). Furthermore, the posting of religious and political information that offends the feelings of those who hold a deviant religious or political position is prohibited. FRANKANA reserves the right to remove entries that disseminate immoral content or violate applicable laws and legal norms.

2.5.4 At the end of the ordering process, the consumer can view the general terms and conditions of the commercial third party supplier from which they wish to purchase the item and must agree to them in order to complete the order.

2.5.5 Consumers have a statutory right of withdrawal for distance contracts. At the end of the ordering process, the consumer can view the cancellation policy of the commercial third-party supplier from whom he/she wishes to purchase the item. 

2.5.6 At the end of the ordering process, the consumer can also view these FRANKANA terms of use and must agree to them in order to complete the order.

2.6 Reviews

2.6.1 Registered users can submit reviews of articles; when reviewing, the following must be observed in particular:

  1. The reviews are to be written objectively in accordance with the principle of fairness and may not contain any illegal, insulting, defamatory or criminal content. Reviews that violate this will not be published or deleted. FRANKANA reserves the right to take legal action against the user in the event of violations. The reviews always represent statements and opinions of the author and not statements and opinions of FRANKANA.
  2. Improper accumulation of reviews, self-reviews or any other form of influence on the review system is prohibited.
  3. By sending the review, the user grants FRANKANA the spatially and temporally unlimited rights to all possibly existing rights to their review text (copyright, right of use, other industrial property rights). FRANKANA is entitled to freely dispose of the review, to process and use it, in particular for other review services, and to publish it in any form. 

2.6.2 There is no entitlement to publication of the reviews by FRANKANA. In particular, FRANKANA reserves the right to edit or remove data that is incorrect or incomplete or violates the provisions of this contract. By transferring the data, the user guarantees to be able to dispose of the rights granted to FRANKANA. Furthermore, the user warrants that no conflicting rights of third parties exist and that he/she has not yet made any other disposition regarding the rights to the content that would conflict with the granting of rights to FRANKANA under these General Terms of Use. 

2.6.3 The commercial user is prohibited from rating themselves or their own content. The commercial user obliges their employees to only give reviews that refer to the commercial user or their content if the relationship to the commercial user is disclosed.

2.7 Liability and warranty

2.7.1 FRANKANA shall be liable without limitation only in the event of damage caused intentionally or by gross negligence, in relation to claims under the Product Liability Act and for injury to physical integrity and loss of life. In the event of negligent breach of material contractual (cardinal) obligations, which are understood to be those obligations which grant the contracting parties the right which the contract is specifically intended to grant according to its content and purpose, in particular those obligations the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularly relies and may rely, the liability for contract-untypical, unforeseeable damage shall be limited to the amount of the agreed remuneration for additional services, otherwise to an amount not exceeding EUR 500.00 in each individual case. FRANKANA's liability is otherwise excluded.

2.7.2 In the event of force majeure, FRANKANA's liability is excluded.

2.7.3 FRANKANA makes the platform available for use in the form and function available at the time: No guarantee is given or minimum availability assured with regard to the availability of the system. The availability of the system may be restricted in whole or in part for various reasons. Liability due to limited availability of the system is excluded, irrespective of the legal reason.

2.7.4 The user or the author is liable for the content of their information content and evaluations (text, image, sound, design, general terms and conditions, cancellation policy, etc.) and for all information contained therein and any legal consequences arising therefrom. This is third-party content for FRANKANA. It is the exclusive responsibility of the user to check and clarify any questions relating to competition law, trademark law, copyright law or the law on the use of names before making statements and publishing statements. In the event of claims being made by third parties, the user shall be solely liable and undertakes to indemnify FRANKANA against claims, costs and damages of third parties, including legal costs

2.7.5 If FRANKANA is made aware of potentially illegal content by a specific and substantiated complaint, FRANKANA will investigate this information and, if necessary, delete the entry or take further steps.

2.7.6 The reimbursement of payments already made in the event of the deletion or blocking of the user's profile before the expiry of the agreed period due to circumstances within the user's sphere of influence or for which the user is responsible shall not be made.  

2.8 Final clauses

2.8.1 The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. If the user is a consumer, this shall only apply to the extent that no mandatory statutory provisions, in particular those of consumer protection law, are circumvented thereby.

2.8.2 If the user is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes shall be Würzburg.

2.8.3 If any provision of these Terms of Use is or becomes invalid or incomplete, the remaining provisions shall remain unaffected. 

2.8.4 FRANKANA is entitled to amend these General Terms of Use at any time without giving reasons with effect for the future. FRANKANA shall notify users of the amendment by email. Users may object to the validity of the amended General Terms of Use within six weeks after receipt of the notification of amendment. In this case, FRANKANA has the option of either continuing to apply the General Terms of Use valid at the time of conclusion of the contract or terminating the contractual relationship without notice. If the user does not object in due time, the amended General Terms and Conditions of Use shall be deemed to have been agreed from the date of receipt of the notice of amendment. 

3. Additional terms for commercial users

The following supplementary terms and conditions additionally apply to commercial users of the platform. If the following terms and conditions conflict with the general terms and conditions of use, the supplementary terms and conditions shall take precedence over the general terms and conditions of use.

3.1 Duration of the contract of use and termination

3.1.1 Commercial users enter into a separate user contract with FRANKANA in order to be able to use the services of the platform. The contract is concluded for a term of twelve calendar months and can be terminated in writing with three months' notice. If the commercial user does not terminate the contract in due time, the contract shall be extended by a further term of twelve calendar months.

3.1.2 The right of both parties to terminate the contract without notice remains unaffected. Good cause for termination without notice exists in particular if 

  1. contractual partner breaches material contractual obligations or repeatedly breaches non-material contractual obligations and does not remedy the breach within a reasonable period of time even after being requested to do so by the other contractual partner, or  
  2. a contracting party cannot reasonably be expected to adhere to the contract as a result of force majeure, whereby force majeure shall be assumed in particular in the event of fire, explosion, flood, war, mutiny, blockade, embargo, industrial action lasting more than six weeks and not culpably caused by the party, and in the event of technical problems with the Internet beyond the control of a party, or  
  3. insolvency proceedings have been opened against the assets of the other contracting party or the opening is imminent.

3.1.3 FRANKANA is entitled to transfer its rights and obligations under this contractual relationship in whole or in part to third parties. FRANKANA shall notify the commercial user thereof in writing or by email with reasonable notice prior to the transfer of rights. In this case, the commercial user shall have an extraordinary right of termination.  

3.2 Offer contents

3.2.1 The user grants FRANKANA an unrestricted, transferable and sub-licensable right of use and exploitation, in terms of time, content and location, to all transferred data. In particular, FRANKANA is entitled to store, reproduce, edit, distribute, communicate, make publicly available, make available in any form and use the data for advertising and marketing purposes. 

3.2.2 By transmitting the data, the user warrants that he/she is able to dispose of the rights granted to FRANKANA. Furthermore, the user warrants that no conflicting rights of third parties exist and that he/she has not yet made any other disposition regarding the rights to the contents that would conflict with the granting of rights to FRANKANA under these General Terms of Use. If the user is not entitled to dispose of said rights, they are obliged to obtain the consent required for the granting of rights from the rights holder. FRANKANA is not obliged to name the photographer in the case of transferred photos. The user must therefore ensure that FRANKANA can use all photos without naming the copyright holder. 

3.2.3 To the extent that the user has received data from FRANKANA, such as a product description or a product photo, the user is granted a non-exclusive, non-transferable right of use for product distribution on the platform and the obligations of the user described in section 3.2.2 do not apply.

3.3 Restriction, suspension and termination

3.3.1 FRANKANA may only restrict, suspend or terminate offers of the commercial user for good cause. Good cause is, in particular, a breach of statutory provisions or default of payment. 

3.3.2 If FRANKANA decides to impose a restriction or suspension, FRANKANA shall provide the commercial user concerned with the reasons for this decision on a durable medium before or simultaneously with the restriction or suspension taking effect.

3.3.3 If FRANKANA decides to completely terminate the provision of online intermediary services to a specific commercial user, FRANKANA shall provide the commercial user concerned with the reasons for this decision on a durable medium at least 30 days before the termination takes effect. This deadline need not be met if at least one of the reasons pursuant to Art. 4 (4) of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for commercial users of online intermediary services (P2B Regulation) applies.

3.3.4 In the statement of reasons, FRANKANA shall state the specific facts or circumstances, including the content of the third party communications, which led FRANKANA to take the decision and the reasons applicable to that decision in accordance with Article 3(1)(c) of the P2B Regulation.

3.3.5 FRANKANA is not obliged to provide a statement of reasons if FRANKANA is not allowed to disclose the specific facts or circumstances and the applicable reason(s) due to legal or officially ordered obligations, or if FRANKANA can prove that the commercial user concerned has repeatedly violated the applicable general terms and conditions of use, which has led to the complete termination of the online brokerage services concerned.

3.4 Special terms for the termination of the contract

 

3.4 Special provisions for the termination of the contract

3.4.1 The contract may be terminated in accordance with the terms of 3.1.

3.4.2 In the event of termination, FRANKANA shall retain access to the information provided and generated by the commercial user. In addition, reference is made to the regulations on data protection.

3.5 Ranking

3.5.1 The user can click on various product categories with subcategories on the platform. Here, the products are displayed to the user according to the standard sorting "price". The sorting can be changed from "price" to "name". With the setting "price", the products are sorted according to their purchase price. With the "name" setting, the products are sorted according to their item description. For all sorting settings, you can also choose between "descending" sorting and "ascending" sorting.

3.5.2 An additional display of the products in the category "%SALE%" takes place if the commercial supplier has marked the product as a special offer. The supplier is responsible for the admissibility of the advertising of a special offer under competition law, e.g. they are responsible for the fact that the product was already offered at a regular, higher price before it was marked as a special offer.

3.5.3 The user can conduct a product search on the platform by entering a search term in a search field and pressing the "Enter" key. Even before pressing the "Enter" key, the user is shown a ranking of various search suggestions according to a standard sorting.

3.5.4 Instead of pressing the "Enter" key, the user can click on the listed search suggestions. This default sorting is determined by the closest possible match to the search term.

3.5.5 When the "Enter" key is pressed (instead of clicking on a search suggestion), the user is presented with a list of results according to a standard sorting "price". The sorting can be changed from "price" to "name". With the setting "price", the products are sorted according to their purchase price. With the "name" setting, the products are sorted according to their item description. For all sorting settings, you can also choose between "descending" and "ascending" sorting.

3.5.6 FRANKANA reserves the right to change or supplement the sorting criteria at any time.

3.5.7 During the order process under "Shipping", the user is shown a list of retailers and a retailer is already pre-selected. The pre-selected retailer is determined according to the postcode given by the buyer based on the criterion of the shortest distance. The buyer can select another retailer via drop-down menu.
 

3.6 Data access

The commercial user has unrestricted access to the data provided by them and to the data generated by access to their offers. In addition, reference is made to the  regulations on data protection.

3.7 Complaint management

3.7.1 FRANKANA has set up an internal system for handling complaints from commercial users. The commercial user can access this system via marketing@frankana.de.

3.7.2 The complaint management system is free of charge for commercial users. Commercial users have the possibility to submit complaints regarding the following issues:

  1. FRANKANA's alleged non-compliance with any of the obligations set out in the P2B Regulation which affects the complaining business user (hereinafter "complainant"),
  2. Technical problems directly related to the provision of FRANKANA's services and affecting the complainant; 
  3. Actions or conduct by FRANKANA directly related to the provision of FRANKANA's services that affect the complainant.

3.7.3 FRANKANA will carefully examine incoming complaints, deal with them swiftly and effectively, taking into account the importance and complexity of the problem, and inform the complainant individually, clearly and comprehensibly about the outcome of the internal complaints management procedure.

3.7.4 Information on the functioning and effectiveness of the internal complaints management system can be requested via marketing@frankana.de.

3.8 Mediation

3.8.1 FRANKANA will work with mediators listed below to reach an out-of-court settlement with commercial users of any disputes between FRANKANA and the commercial user relating to the provision of FRANKANA's services, including complaints, which cannot be resolved through the means of the internal complaints management system:

Mediator:
Christian Semmler
Lawyer

Kanzlei
Cornea Franz Rechtsanwälte
Partnerschaft mbB

Berliner Platz 10
97080 Würzburg

3.8.2 FRANKANA shall participate in all mediation attempts and shall bear an appropriate share of the total costs of mediation in each individual case. The reasonable share of the total costs shall be determined on the basis of a proposal by the mediator, taking into account all relevant elements of the case in question, in particular the validity of the claims of the parties to the dispute, the conduct of the parties and the size and financial strength of the parties in relation to each other.

3.8.3 At the request of a commercial user, FRANKANA will provide information on the functioning and effectiveness of mediation in relation to FRANKANA's activities before or during a mediation.

3.8.4 Any attempt to reach agreement on dispute resolution through mediation shall be without prejudice to the right of FRANKANA and the commercial user concerned to bring an action in court at any time before, during or after the mediation.

3.9 Final clauses

3.9.1 If any provision of these Supplementary Terms and Conditions is or becomes invalid or incomplete, the remaining provisions shall not be affected thereby.

3.9.2 FRANKANA is entitled to amend these Supplementary Terms and Conditions at any time without giving reasons with effect for the future. FRANKANA shall notify users of the amendment by email. Users may object to the validity of the amended General Terms and Conditions of Use within six weeks of receipt of the notice of amendment. In this case, FRANKANA has the option of either continuing to apply the General Terms of Use valid at the time of conclusion of the contract or terminating the contractual relationship without notice. If the user does not object in due time, the amended General Terms and Conditions of Use shall be deemed to have been agreed from the date of receipt of the notice of amendment.