General Terms and Conditions of Business for the use of the online services of Thorsten Muschler GmbH

§ 1 General Terms and Conditions of Business

(1) Thorsten Muschler GmbH (operator) operates the online service Machineseeker (online service).

(2) Users can use Machineseeker to examine offers and requests for used, new and exhibition machinery and advertise offers and requests for used, new and exhibition machinery. Users involved in the machinery business in a commercial capacity can also be listed in the user/address database of the online service for machinery dealers.)

(3) These General Terms and Conditions of Business (GTCB) govern the legal relationship between the operator and the users of the online service.

§ 2 Placement of advertisements

1. Object of the service

(1) Users (advertisers) can place ads and requests for used, new and exhibition machinery on Machineseeker.

(2) The operator reserves the right to process the listing information provided by the advertiser and to publish it on other platforms on the internet, like product comparison databases and similar sites. Consequently, parts of the advertisements are machine-translated into foreign languages insofar as the advertiser does not enter information in this language in the advertisement. Any liability of the operator for errors in translation and advertisements in foreign languages is excluded.

(3) The operator reserves the right to alter, add to or delete parts of the pages or the entire service without prior notice, as well as to temporarily or permanently discontinue publication.

(4) Contracts which are initiated as a result of an advertisement placed on Machineseeker are established without the legal involvement of the operator.

2. Services provided by the operator

(1) The operator provides an input form for advertisements for offers and requests for used, new and exhibition machinery, activates the advertisements placed via the input form and makes them available on the internet for the period of time agreed with the advertiser. Advertisers can insert, add, modify, and delete their listings in the operator’s database on their own.

(2) Advertisements are activated daily, unless otherwise agreed. The operator reserves the right to delay activation for technical or other reasons.

(3) The operator reserves the right to block advertisements from advertisers who violate provisions of these GTCB.

3. Obligations of the advertisers

(1) Every user who publishes an advertisement on Machineseeker is responsible for the content of his or her ad and is liable for the accuracy of the information provided therein. The operator is not obligated to verify whether orders and advertisements infringe third-party rights.

(2) The advertiser is obligated to explicitly make known in the operator’s input form whether a new/exhibition machine is involved. New machines and exhibition machinery may not be listed in the group for used machinery.

(3) The content of the ad must be fully disclosed in the input form. The advertiser bears sole responsibility and liability for all information and content he or she supplies. The operator is not obligated to verify whether orders and advertisements infringe third-party rights.

(4) The advertiser agrees to provide truthful and lawful information. The advertiser indemnifies the operator against third-party claims of any kind attributable to the unlawfulness or untruthfulness of his or her advertisement or other breach of third party rights. This indemnification obligation also includes the assumption of the operator’s legal defense costs such as Court and attorney’s costs.

(5) The advertiser is obligated to solely furnish relevant technical data for the respective machines. Specifying keywords or keyword lists is prohibited. Dummy values may not be used in fields intended to hold technical data.

(6) The advertiser is obligated to exclusively use authentic photos of machinery. The use of dummy images such as “photo to be inserted” or the use of corporate logos instead of photos of machinery is prohibited. Also prohibited is the use of catalog photos of a machine where copyright is owned by a third party.

(7) Only the respective machinery may be advertised in listings. The placement of references to other products, e.g. consumable materials or similar items, is prohibited. The advertiser bears sole liability for uploaded or linked videos, e.g. in particular to YouTube.

(8) The advertiser is obligated to provide his or her name and address when providing contact details.

(9) The advertiser is obligated to provide a valid email address and agrees to the use of this email address by the operator for the notification of inquiries regarding advertisements.

(10) When making offers for machinery, only specific offers may be entered. General advertisements such as “all kinds of XY machines” may not be inserted. The operator will solely add offers for specific machinery to the database, and only under the condition that a meaningful description is provided together with technical data for the relevant machines.

(11) Only one advertisement can be placed for each machine that is offered. Entering one and the same machine in multiple (sub)categories is not allowed.

(12) Advertisements may not contain telephone numbers, fax numbers, domain name or email addresses, except for the email address in the field provided for this purpose pursuant to the above paragraph (3). Failure to observe this stipulation will result in the deletion of the advertisement by the operator and the operator will not publish ads from the advertiser in the future.

(13) Advertisements are protected by a password chosen by the advertiser. It cannot be ruled out that this password will be acquired third parties who then alter or delete advertisements against the will of the advertiser. The operator’s liability is excluded in this respect.

(14) The advertiser undertakes to independently and immediately delete his or her offer or request from the database if the advertised machine is no longer offered or wanted.

4. Removing and disabling advertisements

(1) The operator reserves the right to refuse, change or delete advertisements without cause. The operator also reserves the right to permanently block individual advertisers from using the online service. The advertiser does not possess the right vis-a-vis the operator to publish advertisements.

(2) The advertiser alone is responsible for the expenses he or she incurs in connection with the insertion and maintenance of advertisements. This also applies if the operator alters, deletes or rejects listings.

(3) The advertiser may delete his or her advertisement at any time by using the password he or she chose when registering.

5. Granting of usage rights

(1) With regard to uploading / placing advertisements via the input form, the advertisers shall grant Thorsten Muschler GmbH as the operator of the on-line service Machineseeker the non-exclusive, temporal, spatial and content-related right to use and exploit the uploaded / placed advertisements (including the photos and texts used) within the scope of online service offered currently and in the future as well as for the purposes of commercial marketing. Granting these rights particularly includes the option to integrate and use the contents within payable and free online services and websites as well as within the freely accessible Internet. In particular, the advertiser grants the following non-exclusive, temporal and territorially unlimited usage rights:

(a) The right to reproduce, publicly make available and disseminate, i.e. the right to reproduce, make publicly available, or publicly disseminate content, without limitation, including all technical means, in particular through digital integration within the framework of the website;

(b) The right to edit, i.e. the right to redesign and edit content as desired, subject to the right of the author themselves or a third party, especially for the purposes of inclusion on the website with a watermark, to translate the content or to adapt the format to the web page.

(2) The advertisers also grant the Thorsten Muschler GmbH the right to edit entered content and to publish it on other platforms on the Internet, for example, in product comparison databases.

(3) The advertisers grant Thorsten Muschler GmbH the right to pursue legal infringements by third parties with regard to the advertisements uploaded / placed on Machineseeker on their own behalf. The advertiser shall also indemnify Thorsten Muschler GmbH against any claims for damages which the advertiser may have against third parties if advertisements posted / uploaded to Machineseeker are proven to have been directly taken from Machineseeker and used elsewhere on the Internet without the consent of the advertiser and / or Thorsten Muschler GmbH.

(4) The advertiser guarantees that they are the owner of the transferred rights and that they are effectually able to grant the aforementioned rights. The advertiser also confirms that the works are free of third-party rights which could be contrary to the contractual legal arrangement.

6. Duration of the advertisements

(1) Advertisements will run for a duration of one to a maximum of six months, as determined by the advertiser.

(2) Listings are automatically deleted from the operator’s database after expiration of the advertising period. That is completely uncoupled from duration of the contract.

7. Costs

(1) The database search for offers and requests for machinery is free of charge and free of commission.

§ 3 User accounts

1. Object of the service

(1) The operator makes available an address and advertisement database on Machineseeker which contains a directory for machinery dealers in the form of a dealer catalog. Registration and the placement of advertisements is only possible for commercial entities. Consumers may not advertise on Machineseeker.

(2) The advertiser’s registration and selection of an appropriate fee on Machineseeker constitutes a binding order. The operator may refuse to accept the order if it not feasible for technical reasons, is fully or partially prohibited by applicable law or violates common principles.

2. Services provided by the operator

(1) The operator’s service consists of its provision of an input form for dealer profiles and advertisements for machinery ads, the activation of the information provided via the input form, as well as enabling access to the advertisements in the operator’s databases for the period of time agreed with the advertiser.

(2) Listings are activated twice a week, unless otherwise agreed. The operator reserves the right to delay activation for technical or other reasons.

(3) In the event of violations of these GTCB by the advertiser, the operator reserves the right to block the user account and the advertiser’s associated data / advertisements.

3. Obligations of the advertisers

(1) Complete information must be provided for the user account on Machineseeker on the order form. The advertiser is solely responsible and liable for all information and content he or she provides. The operator is not obliged to verify whether orders and advertisements infringe third-party rights.

(2) The advertiser agrees to provide truthful and lawful information. The advertiser indemnifies the operator against third-party claims of any kind attributable to the unlawfulness or untruthfulness of the advertisement or other breach of third party rights by the advertiser. This indemnification obligation also includes the assumption of the operator’s legal defense costs such as Court and attorney’s costs.

4. Removing and disabling user accounts and advertisements

(1) The operator reserves the right to reject, alter or delete user accounts and listings on Machineseeker without cause. The operator also reserves the right to permanently exclude individual advertisers from using the online service. In particular, registrations will be rejected, not activated or deactivated if advertisers are competitors of Machineseeker or otherwise harm the operator by their business practices. Where payments have already been made, these will be reimbursed pro rata, as applicable.

(2) The advertiser alone is responsible for the expenses he or she incurs in connection with the insertion and maintenance of advertisements. This also applies if the operator alters, deletes or rejects listings.

(3) Advertisers may make changes to the address they enter free of charge and at any time.

5. Contractual term and termination

(1) The contractually agreed minimum term shall apply. This minimum term will be renewed automatically according to current rates if the contract has not been noted for termination at least 7 days prior to its end date with the Thorsten Muschler GmbH, Kronprinzenstr. 9 in 45128 Essen, Germany

(2) Tariff adjustments will only ensue with the extension of a contract, but not within ongoing contract cycles. Tariff adjustments will be indicated in due time inside the User-Center.

(3) The right to extraordinary termination for cause remains unaffected.

(4) Notices of termination must be in writing or transmitted by electronic means.

6. Terms of Payment

(1) The respectively current prices apply, and may be seen at any time in our Price list.

(2) Payment for the advertisement is charged in advance for the agreed contractual period and is due for payment by the advertiser to the operator within 10 days after invoice has been issued. In the event that the invoice amount is not fully and unconditionally received by the operator by the due date, the operator shall be entitled to block the advertiser’s advertisements as long as payment remains outstanding. The assertion of claims for damages and other claims by the operator against the advertiser remains unaffected.

(2) All prices are understood to exclude the respectively applicable statutory VAT.

§ 4 Liability

(1) The operator bears unlimited liability in the event that damage is caused by intent or gross negligence on the part of the operator. In the event of a slightly negligent breach of material obligations which endangers the contractual purpose, or a breach of obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose observance the user regularly trusts, the operator is liable only for the foreseeable, typical contractual damages. The operator shall not be liable for the slightly negligent breach of other obligations not mentioned in the foregoing provisions. With respect of commercial entities, the operator’s liability is fully excluded in the event of slightly negligent breaches of insignificant contractual obligations. The above limitations shall not apply to injury to life, limb and health and to deficiencies fraudulently concealed by the operator. Potential liability under the Product Liability Act is not affected. Where the liability of the operator is excluded or limited by the above provisions, this also applies to the personal liability of employees, representatives and agents of the operator.

(2) The operator is neither an agent, broker or dealer, but rather solely makes available an advertising database for buyers and sellers.

(3) The operator does not warrant the timeliness, correctness, completeness or quality of the information provided. The operator does not verify the content of information published by users. The operator’s liability for the content of the information provided by users is excluded.

(4) The operator’s liability is excluded for damages arising from the fact that advertisements are not published or are published in shortened or falsified form.

(5) All information offerings are non-binding. The operator is not liable for errors or omissions and reserves the right to make changes to the online services without notice. The operator assumes no liability for the suitability of the product for sale or other purposes.

(6) The operator is not liable for errors in the transmission of inquiries.

(7) The operator is not liable for technical disruptions in the operation of the web pages of the online services. The operator in particular bears no liability in the event that information is not provided in uninterrupted manner or is not free from errors.

(8) The operator is not liable for links whose creator is not the operator. The operator is not liable for contents on the websites of its official partner(s)/advertising partner(s). The operator is not a party to any legal relationships between users and partners/advertising partner(s).

§ 5 Intellectual property

(1) Claims by users to the intellectual property of the operator are excluded.

(2) The further processing and use of advertisements on the web pages of the online services of the operator in media of any kind by third parties requires the prior written consent of the operator.

(3) The operator shall retain the copyright to graphics, audio documents and video clips, text and other objects published and created by the operator. The reproduction of such objects in other electronic or printed publications is subject to the prior written consent of the operator.

(4) All brands and trademarks named on the operator’s online services and potentially protected by third parties are subject in full to the provisions of the applicable trademark law and the rights of the respective copyright owners. The mere mention of a name does not imply that no third party rights are affected.

§ 6 Place of performance

(1) In technical and legal respects, the services provided by the operator are carried out in Essen, Nordrhein-Westfalen, the Federal Republic of Germany. With respect to contractual, legal liability and statutory claims linked to the place of performance, all other locations where the online services of the operator can be accessed are ignored.

(2) The operator does not warrant that the contents of the online services comply with the legal provisions of the country in which the data is accessible.

§ 7 Changes to the GTCB

(1) The announcement of amendments to these GTCB is made on the operator’s web pages.

(2) The amendments shall be deemed accepted by the user insofar as he or she does not object to them in writing at the operator within two weeks of notification.

§ 8 Final provisions

(1) These GTCB and the legal relationships between the operator and user are exclusively subject to the law of the Federal Republic of Germany, to the exclusion of the CISG.

(2) For all disputes arising from or in connection with legal relationships between the operator and users and their handling, and in particular disputes arising from and in connection with these GTCB, exclusive legal venue is Essen, Nordrhein-Westfalen, Germany.

(3) Oral ancillary agreements do not exist. Changes and additions to these GTCB and the legal relationships between the operator and user must be made in writing. This also applies to the modification, addition or revocation of the written-form clause itself.

(4) Should any of the provisions of these GTCB be or become invalid, the validity of the remaining provisions in these GTCB remains unaffected. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision. The same applies to gaps or omissions in these GTCB.

 

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