A. General Terms and Conditions of Business (GTB)
General terms and conditions of business for the use of the online marketplace www.MilktheSun.com as well as proof of referral and procurement services of Milk the Sun Ltd.
The provider of the services described below is Milk the Sun Ltd (hereinafter referred to as MtS), Mendelstrasse 11, 48149 Münster, Germany, represented by the CEOs Philipp Seherr-Thoss and Dirk Petschick (see also: Imprint).
§ 1 Scope of validity
1. These general terms and conditions of business (GTB) apply to
a. the use of the online marketplace "www.milkthesun.com" operated by MtS.
b. the proof of referral and procurement services of MtS in correlation with the planning and installation, trading and the procurement of services concerning photovoltaic systems. It is of no significance whether the procurement services or proofs of referral are recorded in one or several documents or consist of online marketplace information and/or other communication in part or in whole.
2. According to these provisions a "CUSTOMER" is any individual person, legal entity or (including partially) judicable partnership that is registered by MtS and has received access data from MtS. A customer who is a consumer as defined by section 13 of the German civil code is any natural person who enters into a transaction for a purpose, which can be attributed to neither their commercial business activity nor their self-employed occupation. In other cases, the customer is a contractor according to section 14 of the German civil code.
3. The GTB of MtS shall apply exclusively. Contradictory or deviating terms and conditions of a contracting party are opposed. The deviating terms and conditions of business shall be without effect unless MtS has expressly agreed to their validity.
§ 2 Registration, conclusion and duration of contract, termination
1. In order to use the MtS online marketplace, every customer registers using the registration form with his e-mail address and a password he has selected. He will then receive an e-mail for the purpose of verifying his e-mail address and activating his account. After activation, the customer can use the online marketplace. The contract between MtS and the CUSTOMER is concluded by the activation of the account.
2. The contract shall be concluded for an unlimited period and can be terminated by either party by giving one month’s notice to the end of the month. Giving notice has no effects on obligations whose fixed period of validity has been agreed upon (e.g. the obligation to pay commission as per §8 of these provisions).
§ 3 Specification of services
1. MtS provides the CUSTOMER an online marketplace with a protected area for communicating, verifying and rating as well as preparing conclusions of contracts, which are connected with the selling, and/or buying of so-called "objects for sale". The term "objects for sale" is to be broadly interpreted. It includes (a) project rights for photovoltaic systems, (b) photovoltaic systems to be installed in the future and (c) photovoltaic systems already completed in part or whole as well as combinations of objects to be subsumed under (a) to (c). The term "project rights" stated in the preceding sentence is also to be broadly interpreted and describes every kind of transferable legal position connected with the planning and installation of a photovoltaic system. This includes, for example, approvals, surveys, studies, technical plans, contracts of use or contracts relating to the acquisition, the manufacturing or supplying of individual parts or assembly groups of a photovoltaic system under public or private law.
2. Registered CUSTOMERS can either offer objects for sale as a supplier (referred to as "SUPPLIERS" in the online marketplace), or make such offers as prospective buyers (referred to as "INTERESTED PARTIES" in the online marketplace). INTERESTED PARTIES can send offers or questions directed to SUPPLIERS via MtS. MtS passes these questions and offers on to the respective SUPPLIERS. It is not possible for INTERESTED PARTIES to contact or negotiate with SUPPLIERS directly until MtS has released the respective project documents.
3. MtS is not a contractual party to the sales agreements between SUPPLIERS and INTERESTED PARTIES. These sales agreements solely bind the respectively involved supplier and interested party. The sales agreements shall be concluded and settled outside the online marketplace provided by MtS. MtS do not submit any offers to conclude a sales agreement in their own name and do not accept any offers by the CUSTOMERS to conclude a sales agreement on their own account.
4. MtS does not own the objects for sale offered on the online marketplace nor the legal positions offered. MtS has no influence on the settlement of the contracts concluded between the CUSTOMERS of the online marketplace. MtS is not responsible for the suitability of an object for sale for a certain purpose assumed by a USER or for the success a buyer strives for with the object for sale supplied/promised by the seller. The same applies to large defects or defects in quality of the subject matter of the contract.
§ 4 General conditions of use/confidentiality of information
1. The services and information rendered by MtS to the CUSTOMER (c.f. the regulation provided in § 3 of the GTB) are only for the CUSTOMER’S own direct use and must be treated as strictly confidential. The CUSTOMER is not permitted to disclose data and information obtained via MtS about persons, partnerships, products, projects, offers or companies to third parties or to do business with the data without express permission from MtS. Should the CUSTOMER represent operating or investment companies, he shall have the opportunity to name these companies when registering as a CUSTOMER. The companies named and represented by the CUSTOMER will then no longer be regarded as third parties in the sense of this provision.
2. The CUSTOMER is obliged to inform MtS immediately of all changes to his address, personal or company details (in particular the legal status of the company or company name).
3. The access data issued by MtS for the use of the online marketplace must be kept away from third parties and protected against unauthorized access.
4. Within the framework of statutory provisions, the CUSTOMER is responsible for all unlawful acts and/or those contrary to contract committed by the use of his access data. The CUSTOMER must inform MtS of every misuse of his access data after acquiring such knowledge and without undue delay, so that MtS can block the access data.
§ 5 Special terms for suppliers
1. A SUPPLIER has the opportunity to place information about the objects being offered for sale in the online marketplace. The SUPPLIER must place all of the objects offered for sale in the correct category and describe them appropriately and in full. He is particularly obliged to indicate possible conditions, rights of withdrawal and other restrictions. Objects offered for sale are described in the fields intended for this purpose by entering project information. A SUPPLIER will additionally provide further project documentation. The supplier must provide all information necessary for the customer to make a decision. This includes, in particular, all transportation-related properties and characteristics that increase the value of the object offered for sale as well as any restrictions and circumstances which may influence the value of the object offered for sale. MtS is not obliged to verify the supplier information. No information may be entered into the boxes for project information which could be useful for contacting the respective supplier (such as telephone or fax numbers, e-mail addresses, website addresses, etc.) or which is suitable for finding out such information.
2. MtS reserves the right to check over every offer before it is advertised on the online marketplace and to refuse or discontinue the advertisement.
3. Should the object offered for sale have been sold as a whole or in part or no longer be available as a whole or in part for other reasons, the supplier is obliged to delete his offer from the platform or modify it without due delay. Should changes to the object offered for sale be made or occur, these must be made known by rectifying the project information and project documentation on the online marketplace without delay, and within 5 days at the latest.
4. A breach of the afore-mentioned obligations shall lead to the blocking and to the exclusion from the MtS services.
5. The SUPPLIERS undertake to inform MtS about the conclusion of subsequent business transactions with CUSTOMERS of their own accord and to provide full information about any subsequent business transactions upon first request by compiling an extract from a book where necessary.
§ 6 Special terms for prospective buyers
1. In order to register as a prospective buyer, an interested party must announce and prove his buying interest to MtS.
2. After his registration, a prospective buyer can view the project information of the objects being advertised on the online marketplace.
3. Registration, however, does not enable the prospective buyer to view the protected project information that is available for every project. The prospective buyer may request that the protected project documentation is released to him for each individual object for sale and that the contact details of the provider be revealed to him. Once Mts has reviewed and approved the application, the requester is given the right of access to the project documentation of the respective object for sale as soon as the requester has paid the service charge described in § 8 Section 1 via an online payment process or as soon as it has been invoiced to him. In the scope of reviewing the application for release, the CUSTOMER will be informed about how much the service charge shall be according to § 8 Section 1 and how much the subsequent commission shall cost in the event of purchasing the object according to § 8 Section 2 and 3.
4. MtS shall establish contact with the prospective buyer of an object for sale upon the requester’s application, which has previously been released to the INTERESTED PARTY as per § 6 Section 3.
§ 7 Contractual penalties/damages when transferring or publishing data
INTERESTED PARTIES and other CUSTOMERS of the online marketplace are not allowed to use the information and data made accessible to them through their use of the marketplace (particularly data pertaining to projects, contacts, offers or products) in return for money, purposes other than those in the contract or for third-party purposes. This applies in particular to publishing, distributing, disclosing, storing or copying offer and address data, having third parties perform this or participating in such acts, whether in return for money or not. A breach of this obligation to secrecy and confidentiality shall lead to claims for damages amounting to the full commission as per § 8 Sections 2, 3 and 7, that MtS would have been entitled to upon procurement or proof of the object made accessible to the third party by the CUSTOMER, against the CUSTOMER responsible for the breach of contract. The CUSTOMER is also not allowed to send advertising, or have advertising sent to registered CUSTOMERS without their express permission in advance. A breach of the above-mentioned obligations shall lead to blocking and exclusion from the MtS services. As the case may be, confidentiality agreements existing between the INTERESTED PARTY and MtS shall remain unaffected to the same extent as continuously existing obligations to pay commission as per § 8.
§ 8 Service charge (processing/nominal fee), commission fee, follow up commission, quotations, terms of payment
1. MtS shall invoice a service charge (processing fee/ protection fee, cf. see also § 6 Section 3) for the release of protected project documentation to interested parties. The service charge fee for each project is calculated from the price list published on the website www.MilktheSun.com (price lists for using MilktheSun.com). The service charge shall be paid via an online payment process or invoiced prior to releasing the project documentation.
2. For the establishment of a contact between providers and prospective buyers and for business transactions resulting from the contact, MtS shall also invoice commission to the buyer of an object offered for sale according to § 3 of these GTB.
3. The amount of commission is calculated on the basis of the installed or installable module capacity. It will be calculated according to the applicable expiration date (§ 8 Section 4) and the price list published on the website www.MilktheSun.com. The installable module capacity is based on the available plant plans. Should there be no plant plans available, the installable module capacity will be estimated together with the provider based on the site-related conditions and data and published in the project information.
4. Commission entitled to MtS is due and earned after one or more contracts (e.g. development cooperations, option contracts, sales contracts, works contracts or contracts for work and material, etc.) covering the object offered for sale bought via the MtS platform or another of the supplier’s photovoltaic projects.
5. All prices stated in these terms, the price list and in individual offers are net prices plus the statutory VAT, which will be charged in addition.
6. Should the fulfilment of an effectively concluded contract between supplier and purchaser fall through, the claim to commission MtS shall remain unaffected. This also applies if one or both parties withdraws from the contract, annuls the concluded contract afterwards or contests it.
7. The obligation to pay commission also remains for every follow-up transaction between the prospective buyer and the supplier that the USER concludes within five years of the date of conclusion of an initial transaction proven or procured by MtS. It is of no significance whether the follow-up transaction takes place via the online marketplace. The commission for follow-up transactions to be invoiced amounts to 100% as per the regulations in Sections 2 and 3 for the first two transactions following the initial transaction as well as 50% of the commission to be determined for all further transactions as per Sections 2 and 3. The CUSTOMER undertakes to inform MtS about the conclusion of subsequent business transactions and to provide full information about any subsequent business transactions upon first request by compiling an extract from a book where necessary.
8. If the interested party is given the same offer from another source prior to MtS providing proof, they must inform MtS in writing of this prior knowledge within 10 days of receiving proof. If this is not done, the objection to prior knowledge shall be excluded and the claim to commission upon providing proof to MtS, shall remain irrespective of the prior knowledge. The claim to commission MtS from successful procurement services shall result irrespective of any prior knowledge the interested party may have.
9. CUSTOMER’S payments to MtS are processed by „PAYONE“ payment services (PAYONE GmbH, Fraunhoferstr. 2-4, 24118 Kiel).
§ 9 MtS additional services
1. Mts gives SUPPLIERS access to a range of fee-based additional services, so that they can increase opportunities to target INTERESTED PARTIES directly. Amongst other things, this includes advertising opportunities in the MtS newsletter or on the MtS website.
2. MtS furthermore, offers additional services that deal with the improvement and assessment of objects.
3. The SUPPLIER is able to understand the costs and the concrete scope of service before the contract concludes.
§ 10 Brokerage services
1. MtS offers CUSTOMERS selected, industry-specific brokerage services. The CUSTOMER declares his consent for MtS to pass his information onto selected service suppliers and for these suppliers to contact the CUSTOMER directly.
2. Arranging these services for the CUSTOMER is free.
3. MtS does not establish a contractual partner between the CUSTOMER and the service supplier.
The CUSTOMER therefore cannot make any valid claims from the service contract against MtS.
§ 11 Solarganizer
1. MtS offers CUSTOMERS an online data room (also known as the „Solarganizer“). CUSTOMERS can download project-related support and files here.
2. The basic version of the solarganizer is 250MB in volume and is free for CUSTOMERS. Larger volumes of data can be ordered for a charge. The costs and contract conditions will be agreed separately with the customer.
3. The opportunity to save data to the solarganizer does not exempt the customer from the responsibility of regularly backing up data independently. MtS is under no obligation to back up the data.
4. MtS cannot ensure a minimum availability of the solarganizer.
5. The available contents and data that the CUSTOMER saves to the solarganizer must not violate any law regulations, the accepted principles of morality or third-party rights (especially design rights and copyrights).
The CUSTOMER is under obligation to release MtS of possible claims of any kind by third parties, resulting from the unlawfulness of content that the CUSTOMER has saved onto the contractual disk space and/or misuse contrary to the agreement, which results in the provided server performance. The exemption obligation also includes the obligation to indemnify MtS from all legal costs (e.g legal and administrative costs).
6. The CUSTOMER ensures that the MtS website, the solarganizer or information from other CUSTOMERS, server stability, and server performance or server availability does not affect the contractually agreed usage. This also includes the CUSTOMERS’ obligation to only upload files onto the solarganizer that have been checked by up-to-date virus and anti-malware software. This also means that the CUSTOMER is solely responsible for the data he himself uploads onto the solarganizer.
§ 12 Responsibility for contents and right to exemption
1. MtS is merely the operator of the online marketplace. It merely enables the CUSTOMER to publish his own offers on the online marketplace. MtS is not obliged to check the contents of the offers or their legal admissibility prior to their placement. MtS does not appropriate the content provided on their site.
2. The CUSTOMER is solely responsible for his offers, content, and information placed on the online marketplace. The CUSTOMER is obliged to observe applicable law when publishing on the online marketplace. This applies in particular with regard to the selection, design and placement of the offers as well as the conveyance and publication of the project information and project documentation. The CUSTOMER must ensure that no rights are violated by his actions. His publications must not violate protection acts, criminal laws or regulatory laws or third party rights (in particular commercial protection rights such as patent, trade mark, labelling or name and personality rights), irrespective of their nature.
3. The CUSTOMER undertakes to release MtS from all claims by third parties - irrespective of their nature - which are connected with the publication of data and offers he has provided. The obligation of release covers claims for damages and reimbursement of expenses. It also covers the reimbursement of costs for legal defence (e.g. court fees, lawyer’s fees and where applicable patent lawyer’s fees) that MtS pays to defend claims and demands asserted against MtS that are based on information published by the CUSTOMER. The CUSTOMER must make appropriate advance payments of these release claims if MtS requests so.
§ 13 Refusal and removal of data base entries/blocking the account
MtS reserve the right to block a CUSTOMER’S offers and/or his access data if the CUSTOMER violates the provisions of these terms, offends moral decency, applicable law or third-party rights or if MtS has a justified interest in blocking the CUSTOMER. The acceptance of new offers takes place at the discretion of MtS.
§ 14 Special provisions covering the limitation of liability of MtS
1. MtS is not liable for the correctness and/or comprehensiveness of the information, tips, advice or recommendations contained on their websites or made accessible by them.
2. Furthermore, all liability of MtS is excluded for damages based on the incorrect transfer of data, a loss of data or an incorrect reproduction of a data base entry after entering it, to the extent that these are not damages caused by intentional or grossly culpable behaviour by MtS, their legal representatives or vicarious agents.
3. MtS is only liable towards companies in accordance with § 14 of the German Civil Code for damages if and to the extent that the legal representatives or executive staff of MtS act with intent or gross negligence. This does not apply in the case of a breach of essential contractual obligations (obligations whose observance and fulfilment enable the proper settlement of the contract in the first place and those, whose fulfilment may be trusted by the contracting party under consideration of all circumstances of the individual case). The preceding limitation of liability applies for the reimbursement of indirect damages, in particular for losses in profit. In the scope of the afore-mentioned limitation rule, MtS is liable to the extent of damages typically foreseeable upon conclusion of the contract.
4. The afore-mentioned limitations of liability and exemptions do not apply for claims from the Product Liability Act, damages from injury to life, body, health or mandatory liability rules or in the event of intentional or grossly culpable behaviour.
5. MtS is not liable for failures of hardware or software on the servers, which serve the operation or administration of the online marketplace, indirect failures such as the destruction of the CUSTOMER’S data on local systems, the passing on of viruses, non-availability, damage to hardware and software on the CUSTOMER’S local EDP system. The CUSTOMER has no claim to the comprehensiveness, correctness or restoration of data (e.g. in the event of destruction of the data bases used for the operation of the online marketplace). This only applies insofar as MtS is not liable for intent or gross negligence.
§ 15 Data protection
1. MtS processes personal data from the CUSTOMER for appropriate purposes and according to statutory regulations. MtS will only use data required for registration or personal data from the contract (e.g name, email address, address, payment details) to fulfill and process the contract. This information shall be treated confidentially and shall not be passed onto third parties, who are not part of the contract or payment process.
2. Upon request, the CUSTOMER has the right to obtain information about the personal data MtS stores in relation to them free of charge. He also has the right to correct inaccurate data and to block and delete his personal data provided there is no legal obligation to keep records.
3. According to the contract between MtS and the customer, in the event of a payment transaction of the disclosed information, the customer passes this information along with information about the contract to the „PAYONE“ payment service (PAYONE GmbH, Fraunhoferstr. 2-4, 24118 Kiel). The sole purpose of the data transfer is to settle the payment.
§ 16 Place of fulfilment and court of jurisdiction/applicable law
1. If the CUSTOMER is an entrepreneur, the place of fulfilment of all obligations from or in relation to this contract, in particular for payment and delivery, is Berlin, Germany.
2. Substantive law of the Federal Republic of Germany shall apply for this contract under exclusion of the UN Convention on Contracts for the International Sale of Goods.
3. If the contracting party to MtS is an entrepreneur, if he is a corporate body under public law or a special fund under public law, Berlin, Germany, is the court of jurisdiction for all disputes arising from the business relationship with the CUSTOMER. Insofar as the jurisdiction does not imperatively deviate by law, a chamber for commercial matters at the Regional Court in Berlin, Germany, is to be responsible in the first instance.
§ 17 Amendments to these TGB, contractual language
1. MtS reserves the right to amend these terms at any time without stating any reasons. The CUSTOMER shall receive the amended terms by e-mail at least two weeks before they come into effect. Should the CUSTOMER not oppose the validity of the new TGB within two weeks after the receipt of the email, the amended terms shall be regarded as accepted.
2. The contractual language is German unless mandatory rules contradict this.
§ 18 Online Dispute Resolution
1. Complaint process via Online Dispute Resolution (ODR) for consumers: http://ec.europa.eu/consumers/odr/.
2. We are obliged to resolve disputes with consumers in front of the following mediation body for consumers. Therefore consumers can reach out to the following mediation body: Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e.V., Straßburger Straße 8 - 77694 Kehl am Rhein, www.verbraucher-schlichter.de
B. Notice of right to cancel
Right to cancel
You may dissolve the agreement without explanation during a period of 14 days.
The withdrawal period amounts to fourteen days from the day of contract conclusion.
To exercise your right to cancel, you must send a clear declaration to us (Milk the Sun GmbH, Mendelstraße 11, 48149 Münster, Telephone: +49 30 46 999 0330, Fax: +49 30 46 999 0331, E-mail: email@example.com) indicating your decision to cancel this contract (e.g letter by post, fax or e-mail). You may use the attached sample cancellation forms however this is not obligatory. To comply with the cancellation period, it is sufficient for you to send your notice of cancellation to us before the cancellation period expires.
Consequences of cancellation
If you revoke the contract, we are required to reimburse all payments that we have received to you including delivery costs (with the exception of additional costs, resulting from your selection of a delivery option other than the cheapest standard delivery option offered by us) without delay and no later than 14 days from the date on which we receive your notification of withdrawal. We use the same means of payment for this reimbursement as in the original transaction, unless we have expressly agreed to other arrangements with you. You will not be charged fees for this reimbursement under any circumstances.
You may dissolve the agreement without explanation during a period of 14 days. The withdrawal period amounts to fourteen days from the day of contract conclusion.
Information on the right of cancellation (not part of the cancellation policy)
The right to cancel will expire at an earlier date if we have provided the entire contractually agreed services and only began to provide services after you gave your express consent for services to begin and acknowledged that you would lose your right to cancel following complete performance of the contract by us.
C. Sample cancellation form
(If you wish to cancel the contract, please complete this form and return it to us.)
Milk the Sun GmbH
Telephone: +49 30 46 999 0330
Fax: +49 30 46 999 0331
I/we (*) hereby cancel the contract entered into by me/us (*) on the purchase of the following goods / the performance of the following service (*)
Ordered on (*)/ received on (*)
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only in case of notification on paper)
(*) Delete as appropriate.