Oktopus 

General Terms and Conditions for Users

 

These "General Terms and Conditions for Users" are applicable to the relationship between Oktopus and its users.

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1. Definition of Terms

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Offer: The range of products and services offered by the Homecook and services that can be ordered by the visitor via the can be ordered.
Visitor: A natural or legal person who submits an order to the Homecook via the Platform. Platform submits an order to the Homecook.
Platform: the website(s), apps and tools of Oktopus and of Oktopus affiliates and business partners on whose website the Service is made available. whose website the Service is made available.
Homecook: A natural or legal person who prepares and sells meals, beverages and related products and who and sells, and who uses the Platform to enter into and pay for the contracts and for the payment thereof.
Homecook Information: The information relating to the Homecook, including, but not limited to, the Homecook and his or her contact details, general information, the product range (meals, side dishes, options and drinks), prices for each product (including individual product (including VAT), logo, graphics.
Eating Agreement: An agreement between the Visitor and the Homecook via the Platform regarding an order including the meeting and meal.
Users: Both Homecooks and Visitors.

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2. Identity of Oktopus

E-Mail: oktopus.business@gmail.com

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3. Applicability

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1. Oktopus (hereinafter referred to as "Oktopus" or "we"), offers users the use of the "Oktopus" platform in accordance with these Terms of Use and the Oktopus Privacy Policy.

2. These Terms of Use govern the use of the Platform by users (hereinafter "Users" or "You") and the contractual relationship between Oktopus and the User. They do not govern the contractual relationship between the users themselves. Oktopus and the User are collectively referred to as the "Parties".

3. Users may be natural persons and businesses represented by their legal representatives who are at least 18 years old and have unlimited legal capacity.

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There are no verbal collateral agreements between the parties. These Terms of Use together with the price list of Oktopus, the description of the functionalities of the platform and the Privacy Policy of Oktopus for the use of the Community- Platform "Oktopus", which are made available on the website https://oktopusbusiness.wixsite.com/main, conclusively govern the use of the Platform conclusively. 

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4. Liability

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1. The offer published on the platform is published in the name of the respective homecook, based on the homecook information provided. Oktopus does not assume any responsibility or liability for the content of the offer and the Homecook Information on the Platform. The Homecook may use ingredients and additives for food and drinks that may trigger allergies and intolerances. If you are allergic to food, we advise you to contact the Homecook by chat to find out about current allergens before accepting an offer.

2. Oktopus presents all homecook information in a way that makes it clear to the visitor what their rights and obligations are after they have accepted the offer.

3. It is not the responsibility of Oktopus or its agents to ensure the accessibility of the platform. For this reason, Oktopus is not liable for the accessibility of the Platform.

4. The platform enables homecooks and visitors to conclude contracts independently and on their own responsibility. Only those users who have entered into a contractual relationship with one or more other users are bound and entitled to such contracts. The fulfilment of the contract is the sole responsibility of the homecooks and visitors.

5. Oktopus does not become a contractual partner; Oktopus only acts as an intermediary and operator of the platform. As such, Oktopus does not own, sell, resell or provide listings. Furthermore, Oktopus does not create or control the Offerings. Homecooks are solely responsible for the listings they post. When users create or accept an offer request, they enter into the booking contract directly with each other. Oktopus is neither a catering business nor an insurance company.

6. Terms and conditions of the user that deviate from or conflict with these terms of use do not apply; this also applies if Oktopus does not expressly object to the terms and conditions of the user.

 

5. Subject matter of the contract, conclusion of an "eating contract" between Homecook and visitor rights of use

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Subject to these Terms of Use, Oktopus provides Users with the use of the Platform under the domain https://oktopusbusiness.wixsite.com/main and as a Progressive Web App for use on mobile devices.

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1. The platform is a community platform that offers users the opportunity to share and purchase food. Users can act as "Homecooks" and in this role post offers for food they prepare themselves, to eat at the Homecook or to pick up at the Homecook on the platform. Other users can search for such offers on the platform, contact the Homecook regarding the offer and send a booking request to the Homecook.

2. The presentation, ranking and order of the offers on the platform is at the sole discretion of Oktopus.

3. The Homecook is free to respond to and accept a booking request from a User. If the Homecook does not accept a booking request within eight hours of receipt, it will be automatically rejected via the Platform. If a Homecook accepts a booking request from a User via the Platform, the Homecook undertakes to that User (also referred to as the "Visitor") to provide the food offered as specified in the offer at the time offered either for eating at the Homecook or for collection from the Homecook, depending on the nature of the offer, and, in the case of eating at the Homecook, to meet the requirements necessary for this (e.g. availability of a seat, cutlery, hygiene requirements). For his or her part, the Visitor undertakes to pay a contribution towards the costs of providing the meal, as regulated in more detail in Article 9.1. After receipt of the payment by Oktopus, both Homecook and the Visitor will receive a binding booking confirmation via the Platform. With the booking confirmation, a direct contractual relationship in the form of a binding "dining contract" between Homecook and Visitor is established via the Platform and the Homecook is exclusively responsible for the fulfilment of this contract directly towards the Visitor. Homecook and Visitor may cancel the dining contract subject to the cancellation conditions described in more detail in article 7.

4. With regard to the information concerning the meeting time / place, the Visitor and Homecook must be contactable by telephone, chat or email (as specified in the order) and be present at the agreed address at the agreed time, as specified in the confirmation email, SMS or on the Oktopus website.

5. Oktopus is neither a party to the "Dining Contract" nor obligated to the Homecook or the Visitor hereunder, but merely arranges the Dining Contract via the Platform against payment of a service fee for the use of the Platform pursuant to Article 9.2. Oktopus assumes no liability whatsoever with regard to the execution of the Contract. The Homecook is solely responsible for the provision of the Meal as well as the compliance with legal and fiscal requirements in connection therewith.

6. The platform also offers various complementary functionalities, such as the creation of public profiles by users, the search for meals, offers and homecooks, the rating of meals offered and of homecooks as well as direct communication between homecook and visitor. 

7. Registered users may also act as a Homecook and post information such as meal offers, photos, details about the Homecook etc. on the platform and make it accessible to other users. For this purpose, the user grants Oktopus as well as all other users the simple, temporally unlimited, spatially unrestricted and free of charge right of use to all information which the user posts on the platform to publicly reproduce, make publicly accessible, copy, disseminate, edit and use this information for purposes of the intended use of the platform. The user is responsible for ensuring that they have the necessary rights of use for the information they post on the platform. The user is required to make backup copies of all information they post on the platform, as Oktopus may delete this information in accordance with these terms of use.

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6. Conclusion of contract between Oktopus and user, registration, creation of a user account

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1. The user and Oktopus enter into a contract for the use of the platform in accordance with these terms of use. Oktopus is entitled to use subcontractors to perform the services under this contract without the user's consent.

2. A user of the platform who wishes to act as a homecook must first register on the platform and create a user account, acknowledging these terms of use and providing his or her name, age, e-mail address and login data (username and password). Other users may register on the platform and create a user account by providing this information. Oktopus may refuse a user's registration without giving reasons. After entering this information, the registration has taken place, the contract between the parties in accordance with these Terms of Use for the use of the Platform as a Homecook or registered user has been effectively concluded and the user's user account has been created. In addition, the user will receive a confirmation e-mail to the e-mail address provided by the user. If the user clicks on the registration link contained in this e-mail, his or her e-mail interlaced with the user account is deemed to be verified.

3. In order to use the platform as a homecook or with the functionalities of a registered user, the user must log in to his user account with his or her login data ("log in"). After the end of the use, he or she should log out for security reasons ("log out").

4. All communication between Oktopus and registered users with legal relevance shall take place via the e-mail address provided by the user.

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7. Termination of the contract and cancellation of the order

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1. In view of the perishable nature of the offer, the visitor is not permitted to dissolve the contract. Orders can be cancelled vis-à-vis Oktopus by the Visitor. A monetary refund of the order towards the Homecook is only possible for the Visitor if the Homecook explicitly states that a cancellation of the order by the Visitor is possible or if the Homecook has provided other contact information, if he serves an offer that has not been agreed upon or in case of force majeure.

2. The Homecook is entitled to cancel the order, e.g. if the offer is no longer available, if the visitor has provided an incorrect or non-functioning telephone number or other contact information or in case of force majeure. Oktopus is entitled to refuse all (future) orders from the visitor, should there be appropriate reasons.

3. If the Visitor places a false order (e.g. by providing false contact information, by not paying or by not being present at the Meeting Place) or otherwise fails to fulfil its obligations under the Agreement, Oktopus shall be entitled to refuse future orders from that Visitor.

4. Oktopus is entitled to refuse orders and dissolve contracts on behalf of the homecook if there is reasonable doubt as to the accuracy or authenticity of the order or contact information or if the homecook does not wish to enter into a contract with the visitor. If the visitor places orders that are proven to be false or fraudulent, Oktopus is entitled to report the matter to the police. If the visitor places orders that appear to be false or fraudulent, Oktopus may report this to the police.

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8. Duties and obligations of the user, blocking and deletion of user information, blocking of the user account, exemption

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1. Only food may be offered via the platform. Use of the platform for the offering or advertising of other goods or other services is not permitted.

2. Users may use the platform in the role of homecook solely for the purpose of offering food to eat at the homecook or to take away. All users may also use the platform for the sole purpose of searching for offers for food, food products or culinary workshops, reacting to offers of homecooks and e.g. submitting a booking request to the homecook and using the further functionalities such as the rating function in connection with the offer of food, food products or culinary workshops on the platform.

3. The user alone is responsible for all information that the user posts on the platform. For Oktopus, this is third-party information for which Oktopus is not responsible. In particular, Oktopus is not obliged to check this information for possible legal violations.

4.  The user is also obliged in particular,

   • a​) to give his or her real name (i.e. no pseudonyms) and his or her e-mail address when registering for the platform;

   • b) as a Homecook or registered user, to keep his or her login data for the platform secret and not to disclose them to third parties;

   • c) if he or she offers food via the Platform, to state the essential ingredients of the food offered and not to make any false statements about the food he or she offers;

   • d) in the event that he or she is not a commercial Homecook, to charge only a contribution to costs in an amount with which the Homecook does not make a profit (cf. Article 9.1.b.)

   • e) as a non-commercial Homecook to post an offer only for food in customary quantities and not to use the Platform commercially; the multiple posting of an offer on the Platform at the same time is thus prohibited;

   • f) to ensure that, with regard to all information that the user posts on the platform or makes accessible to third parties via the platform, all commercial property rights, personal rights and copyrights are observed and that no commercial property rights, personal rights and copyrights of third parties are violated;

   • g) to refrain from using the platform for purposes other than offering food, food products and culinary workshops, in breach of contract, unlawfully or abusively; in particular, the user shall not post or make available via the platform any information with illegal or immoral content, or post, make available or refer to such information which serves to incite the people, incite to criminal offences or glorify or trivialise violence, are sexually offensive or pornographic, are likely to seriously endanger children or young people morally or impair their well-being or may impair or damage the reputation of Oktopus or other users;

   • h) not to post or use any information or malware on the Platform that may impair or damage the functionality of the Platform;

   • i) refrain from unauthorised retrieval of information from the Platform by yourself or by unauthorised third parties, or from unauthorised interference with computer programs or data processing operations operated by Oktopus, for example in the form of Denial of Service (DOS) attacks, or from unauthorised intrusion into data processing systems or data networks of Oktopus.

5. Use of the platform for purposes other than those specified in paragraphs 1 and 2 or use of the platform in breach of contract, in violation of the law or in an abusive manner is prohibited and entitles Oktopus, after giving appropriate warning, to temporarily or permanently block the user's access to the platform and the user's account, to delete information, offers or contributions of the user on the platform and to terminate the contract with the user without notice for good cause.

6. Oktopus is also entitled to delete information of the user which the user has posted on the platform or made accessible via the platform at any time if this information is obviously false or unlawful, if third parties make a claim against Oktopus for the deletion of this information, or if this information violates the duties and obligations of the user.

7. The user must indemnify Oktopus against all claims by third parties which are based on the user's use of the platform in breach of contract, unlawfully or in an abusive manner, or on unlawful information which the user has posted on the platform, or which arise in particular from disputes under data protection law, personality law, copyright law or other legal disputes which are connected with the user's use of the platform in breach of contract, unlawfully or in an abusive manner.

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9. Cost contribution, service fee for platform use, terms of payment, prohibition of set-off, right of retention

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The Visitor shall pay a contribution towards the cost of the meal to Oktopus, which will be credited to the Homecooks by Oktopus less a service fee for the use of the Platform as further described below:

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1. Cost contribution of the visitor

   • a) The Homecook must state for its food offer the cost contribution that a visitor has to pay for the food. If the Homecook does not use Oktopus commercially, the cost contribution may only include the actual costs incurred by the Homecook for the food, i.e. the Homecook may not make a profit with it. To avoid abuse, Oktopus limits the amount of the cost contribution on the platform.​

   • b) With the acceptance of the booking request by the Homecook, the visitor is obliged to pay the specified cost contribution for the meal. The cost contribution is due for payment immediately.

   • c) The payment of the cost contribution must be made exclusively via the platform. The following payment options are available to the visitor:

     • i) Payment by online payment (the payment options offered by Oktopus, such as Twint) ​

   • d) A direct payment of the visitor's cost contribution to the Homecook is not permitted.

2. Service fee for the use of the platform

   • a) With the acceptance of the booking request by the Homecook, a claim of Oktopus against the Homecook for a service fee for the platform use arises. The amount of the service fee is a percentage of 5% with a basic fee of 0.50 CHF of the cost contribution that the visitor has to pay for the meal.​

   • b) Oktopus withholds the service fee for the use of the platform from the payment of the visitor's cost contribution.

3. Crediting of the cost contribution to the Homecook

   • a) When registering, the Homecook must select a payment system to which the fee is to be credited.​

   • b) For the selected payment system, the Homecook must deposit the necessary information so that the cost contribution can be credited. 

   • c) After receipt of payment of the cost contribution of the visitor and after successful provision of the meal by the Homecook, Oktopus will transfer the cost contribution for the corresponding meal minus the service fee for the platform use to the specified account within 1 month. 

4. Prohibition of set-off, right of retention, assignment

   • a) Offsetting by the user against claims of Oktopus is excluded unless the counterclaim of the user is undisputed or legally established.​

   • b) The user is only entitled to a right of retention against Oktopus insofar as his counterclaim is based on the same contractual relationship with Oktopus.

   • c) Oktopus is entitled to assign payment claims against the user.

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10. Payment

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1. Complaints of the visitor about the offer, the order or the fulfilment of the agreement are to be submitted to the Homecook. The sole responsibility for the Homecook's offer and the fulfilment of the agreement lies with the Homecook. Oktopus only assumes an intermediary role.

2. In accordance with the provisions of article 6 of these general terms and conditions for visitors, the (partial) refund of an online payment is only possible if the order is not (fully) prepared or if the meeting does not take place. The refund will always be made to the account from which the payment was made. Depending on the payment method used by the visitor, the processing of the refund takes a maximum of 30 working days.

3. The Homecook has authorised Oktopus to accept the visitor's online payment on behalf of the Homecook.

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11. Use and availability of the platform

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1. In order to use the platform, the user needs a computer or an internet-capable mobile device with a sufficiently fast internet connection, as well as an up-to-date web browser.

2. The platform is not permanently and uninterruptedly accessible, but is provided to the user within the scope of reasonable technical and operational possibilities.

3. The internet is an insecure and unreliable transmission medium, so that Oktopus is not responsible for interruptions or delays in internet access to the Platform outside of Oktopus' responsibility.

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12. Limitation of liability, no guarantee

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1. Oktopus is not liable for any damage, delays or impediments to performance that lie outside oktopus' sphere of responsibility.

2. Oktopus is not liable for any damage caused by unsuitable, improper or improper use of the platform.

3. Oktopus is not liable for information that users have posted on the platform.

4. Oktopus is not liable for the proper performance of the contract concluded between a homecook and a visitor for the provision of the meal (meal contract) or for any other claims arising from or in connection with the contractual relationship existing directly between homecook and user.

5. The strict liability of Oktopus due to defects of the platform already existing at the beginning of the contract is excluded.

6. Regardless of the legal grounds, Oktopus is only liable for damages caused by Oktopus intentionally or through gross negligence, or if Oktopus culpably causes damage to life, body or health, or in the event of non-fulfilment of a guarantee given by Oktopus, or if a defect in the platform was fraudulently concealed by Oktopus.

7. Oktopus is also liable in the event of culpable breach of a material contractual main obligation or cardinal obligation by Oktopus which is attributable to simple negligence, whereby the liability of Oktopus in this respect is limited to the typically foreseeable damage. A "cardinal obligation" within the meaning of this provision is an obligation of Oktopus, the fulfilment of which makes the proper performance of the contractual relationship between the parties possible in the first place, the breach of which jeopardises the achievement of the purpose of the contract and the observance of which the user regularly relies on.

8. Any further liability of Oktopus is excluded. Liability under the Swiss Product Liability Act remains unaffected.

9. The specifications set out on the Oktopus website or other documentation do not constitute guarantees or warranted characteristics unless they are expressly designated as such.

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13. Settlement of complaints

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1. Visitors' complaints concerning the offer, the order or the execution of the contract will be reported to the Homecook. In the event of complaints, Oktopus can only play a mediating role.

2. If the user has a complaint regarding the Service, this complaint must be reported to the Oktopus Visitor Service using the contact form or by email to the contact address indicated in Article 2 of these General Terms and Conditions.

3. Once Oktopus has received the complaint, Oktopus will respond as soon as possible with an acknowledgement of receipt. Oktopus will endeavour to deal with the complaint as soon as possible.

4.  Complaints as described in sections 1 and 2 of this article must be reported to the Homecook (section 1) or Oktopus (section 2) within a reasonable period of time after the user has discovered the defects and must be fully and clearly described.

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14. Changes to the terms of use and the functionalities of the platform

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1. The current version of the terms of use provided by Oktopus under the domain https://oktopusbusiness.wixsite.com/main/agb shall apply.

2. Oktopus reserves the right to change these Terms of Use and the functionalities of the Platform. For non-registered users, the amended terms of use and functionalities of the platform shall apply with the next use of the platform by the non-registered user.

3. In case of changes to these terms of use or in case of adverse changes to the functionalities of the platform, Oktopus will inform homecooks and registered users in text form. A homecook or registered user can reject such changes in text form within one month after receipt of the notification. If the rejection is not made in due time, the changes will come into force and become binding after the expiry of this one month period. Oktopus will explicitly inform Homecook and registered users of this legal consequence together with the notification of the changes.

4. Such changes of the terms of use or the functionalities of the platform may only be made if the relation between performance and consideration is not significantly shifted to the disadvantage of Homecooks and registered users.

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15. Duration, Cancellation and Termination of Contract

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1. The contract for the use of the platform shall apply to non-registered users in accordance with these terms of use in their current version for the duration of the use of the platform. It shall end with the end of the use of the platform and shall be concluded again upon renewed use of the platform.

2. The contract for the use of the platform begins for homecooks and registered users with the successful registration of the homecook or user according to article 6.2 and can be terminated by the homecook or registered user at any time without notice. The termination can be effected by deleting the user account by giving notice of termination to Oktopus in text form (e.g. by e-mail). Oktopus may terminate the contract with a Homecook or registered user at any time with a notice period of two weeks in text form (e.g. by e-mail).

3. The right to terminate without notice for good cause remains unaffected.

4. Upon termination of the contract, the user is no longer entitled to use the platform as a homecook or registered user and his or her user account will be deactivated and any existing credits will be paid out to the deposited bank account. Upon termination of the contract, all information that the user himself or herself has posted on the platform will also be deleted, unless this information is posted in the generally accessible area of the platform, e.g. ratings.

5. The personal data of the user stored by Oktopus and required for the performance and termination of the contract will be retained even after termination of the contract to the extent permitted by data protection law. In addition, reference is made to the privacy policy of Oktopus for the use of the community platform "Oktopus", which is available for inspection and retrieval on the website of Oktopus under https://oktopusbusiness.wixsite.com/main/.

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16. Newsletter

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1. When placing an order, the Visitor may subscribe to the Newsletter. The Visitor may unsubscribe from this newsletter via the link in the email or by contacting the Visitor Service using the contact details provided under the heading "Correspondence address" in Article 2 of these General Terms and Conditions for Visitors.

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17. Inspection and correction of the stored personal data

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1. Oktopus processes personal data in relation to the visitor. The processing of personal data is subject to the provisions of the privacy policy.

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18. Applicable law

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1. The contractual relationship between the parties and all disputes arising from or in connection with this contractual relationship shall be governed by the laws of Switzerland. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

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19. Place of jurisdiction

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1. Insofar as the user is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction domestically, or moves his or her place of residence or habitual abode out of the inland after conclusion of the contract or his or her place of residence or habitual abode is not known at the time the action is brought, the exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship between the parties in all such cases shall be Zurich.

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20. Dispute resolution

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1. The European Commission provides a platform that enables the online resolution of disputes between consumers and entrepreneurs (ODR platform). The ODR platform can be accessed at the following link: https://ec.europa.eu/consumers/odr. The email address of Oktopus is: oktopus.business@gmail.com 

2. Oktopus is not obliged or willing to participate in dispute resolution proceedings before a consumer arbitration board.

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20. Salvatory clause

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1. Should one or more provisions of these terms of use be or become invalid, this shall not affect the validity of the remaining provisions.

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This is a translated version, in case of discrepancies please refer to the German version.

Status: September 2022