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Terms and Conditions 

General Terms and Conditions for the

www.myusedmachines.com Internet marketplace

 

of MYUSEDMACHINES.COM GmbH

to be used in business dealings with companies.

Schweinfurt, November 2, 2009

 

 

1.    General

 

1.1.     The services to be provided by MYUSEDMACHINES.COM GmbH (hereinafter referred to as the “Operator”) under contracts are, in the below order, governed by:

 

o    the individual contractual agreements between the parties;

o    these General Terms and Conditions;

o    the German Civil Code [BGB].

 

1.2.    These General Terms and Conditions (hereinafter referred to as the “GTC”) apply to our business relations with our customers (hereinafter referred to as the “Advertisers”). These GTC only apply towards companies as defined by § 14 of the German Civil Code [BGB] and towards corporate bodies under public law and special funds under public law.

 

1.3.    These GTC have exclusive effect. Any differing, conflicting or supplementing general terms and conditions of the Advertiser will only become part of the contract if and to the extent the Operator has expressly agreed to their application. Any other terms and conditions, individual understandings, contracts and/or agreements will only be binding if they have been agreed upon in writing. In such events, the Operator’s GTC apply supplementarily.

 

1.4.    By visiting and using the www.myusedmachines.com Internet marketplace (hereinafter referred to as the “Internet marketplace”), the Advertiser accepts the Operator’s GTC. These GTC also apply if the Internet marketplace is entirely or partly visited and/or used from other websites. In addition to these GTC, the Operator’s price list and any special terms and conditions apply as amended.

 

1.5.    Advertisements may only be posted subject to the below terms and conditions irrespective of whether they are offers or want advertisements. 

 

 

2.     Purpose of the Internet marketplace

 

2.1.    The Operator operates an Internet market place for used machines. Via such Internet marketplace, companies as defined by § 14 of the German Civil Code [BGB], corporate bodies under public law and special funds under public law can make their offers and/or want advertisements for used machines accessible to other companies as defined by § 14 of the German Civil Code [BGB], corporate bodies under public law and special funds under public law on the Internet by posting their offers and/or want advertisements in the database provided by the Operator.

 

2.2.    By offering such database, the Operator only provides the technical requirements for the posting of offers and want advertisements for used machines and for the establishment of contacts between the Advertisers.

 

2.3.    Requests on advertisements received from interested parties are either forwarded to the Advertiser by e-mail by the Operator or deposited in the database for the Advertiser of the according advertisement, who can retrieve and view the requests by entering the password selected for the advertisement. The Advertiser agrees to the Operator forwarding requests on the Advertiser’s advertisements to the Advertiser by e-mail. When the Operator forwards notifications, requests etc. by an interested party to the Advertiser of the advertisements or deposits such notifications, requests etc. on the according advertisement, such will be deemed delivered to the sender of the notifications, requests etc.

 

2.4.    The Operator is neither an offerer and/or agent itself nor a representative of an Advertiser. All contracts initiated and/or made between the Advertisers based on the advertisements posted in the database by the Advertisers exclusively become effective without the involvement of the Operator.

 

2.5.    The Internet marketplace is only available to the Advertisers for posting used machines and searching for used machines. Advertisements aimed at offering or searching for new machines will not be included in the database.

 

2.6.    The Internet marketplace is only available for companies as defined by § 14 of the German Civil Code [BGB], corporate bodies under public law and special funds under public law. The Advertisers must indicate and confirm their capacity as companies as defined by § 14 of the German Civil Code [BGB], corporate bodies under public law or special funds under public law upon their registration.

 

 

3.     Services of the Operator

 

3.1.    The Operator provides the Internet marketplace in the form and with the functions that are available at each point in time. The Operator reserves the right to change and/or supplement the form of the Internet marketplace and to disable, replace with new ones, supplement and/or modify existing functions.

 

3.2.    The Operator provides an entry mask to the Advertisers for their offers of and want advertisements for used machines; the advertisements are entered via the entry mask by the Advertisers themselves. The advertisements posted via the entry mask are activated by the Operator in the Internet marketplace. The Operator publishes the advertisements in the Internet marketplace for the period agreed upon. The Advertisers may modify or delete their advertisements via the entry mask until the first bid has been made.

 

3.3.    The Operator does not guarantee that the Internet marketplace will always be available without interruptions and failures. The Operator is not liable for any impairments of the use of the Internet marketplace due to force majeure or breakdowns and failures of communication networks. This also applies to other failures that are not within the control of the Operator and in the event of maintenance and technical problems in relation with the Operator's server.  

 

 

4.    Obligations of the Advertiser

 

4.1.    The Advertiser is responsible for the contents of their advertisement and the accuracy of their information. The Advertiser provides the information and data on their advertisement carefully and complies with any applicable laws and other legal provisions in relation with the contents of their advertisement. The advertisements must contain informative and precise data on the offered or searched machines.

 

4.2.    The Advertiser is obliged to immediately indicate the contact data requested in the entry mask and any changes to such contact data. If an Advertiser fails to fulfill or breaches such obligation, the advertisements posted by such Advertiser will not be published and published advertisements will be deleted.

 

4.3.    One and the same Advertiser may only post one advertisement in the Internet marketplace for each offered or searched machine. Multiple publications of the same advertisement are not permissible.

 

4.4.    The Advertiser is obliged to immediately delete their advertisement from the database of the Internet marketplace if the advertised machine is no longer offered or searched by the Advertiser.

 

4.5.    The advertisements are protected by the Advertiser by a password selected by them. The Advertiser is obliged to secure such password so that it is not available to third parties and store it so that it is protected against access by third parties. Furthermore, the Advertiser is obliged to immediately change their password if there is reason to suspect that their password is or has been available to third parties. Any liability of the Operator will be excluded in such event.

 

4.6.    The Advertiser undertakes not to use any hardware, technical installations or software and not to transmit to or post in the Internet marketplace any data that might affect, change or damage the Internet marketplace or technical installations of third parties using the Internet marketplace.

 

    The Advertiser assures that the contents posted by them in the Internet marketplace do not infringe any copyrights, trademark, industrial property and/or other rights of third parties. The Advertiser is not entitled to post contents in the Internet marketplace that might damage the reputation of the Operator or other Advertisers. Furthermore, the Advertiser is not entitled to reproduce, distribute, sell, publish and/or otherwise transmit information obtained from the Internet marketplace.

 

4.7.    All information, texts, programs, company logos and pictures contained in the Internet marketplace are protected by copyrights, trademark or other industrial property rights. Unless any other rights of third parties exist, such rights are owned by the Operator. The Advertisers are only entitled to process, reproduce and use such rights in any kind of media with the prior written consent of the Operator.

 

4.8.    The Advertiser indemnifies the Operator against any and all damage, claims and costs suffered by or raised towards the Operator in the event of any breach of the Advertiser’s obligations by the Advertiser; this applies in particular if the Advertiser breaches the obligations specified in section 4.6. The scope of such indemnification also includes the obligation to pay for the legal costs incurred by the Operator in the event of claims raised towards it. 

 

 

 

5.    Registration

 

5.1.    The Advertiser is obliged to provide complete and true information in relation with the data requested pursuant to sections 2.6. and 4.2. For registration, each Advertiser must indicate a valid e-mail address. Section 4.2. sentence 1 alternative 2 applies accordingly.      

 

5.2.    Each Advertiser is only entitled to register once. The user is not entitled to assign their registration to a third party or make their registration accessible to a third party.

 

5.3.    Blocked Advertisers are not entitled to continue to use the Internet marketplace or to register again.

 

 

6.    Remuneration

 

    The Advertiser pays to the Operator a remuneration according to the current price list for the use of the services. All prices specified in the price list are net prices. The applicable VAT will be added to such prices. All amounts become payable upon receipt of the invoice.

 

 

7.    Removal and disablement of advertisements

 

7.1.    If the Advertiser uses the services provided by the Operator without paying for them, the Advertiser is not entitled to access and use the Internet marketplace. In particular, the Operator may discontinue or suspend its services without prior announcement or only allow for the further use if a remuneration is paid by the Advertiser.

 

7.2.    If the Advertiser uses the Internet marketplace against payment, the Operator is entitled to refuse, modify or delete advertisements or block access to the advertisements, finally or temporarily exclude Advertisers from the use of the Internet marketplace if the Advertiser is in breach of their obligations under this GTC or of applicable law. In the event of a severe breach of the Advertiser's obligation, the Operator is entitled to take the measures and actions specified in sentence 1 including without prior notice to the Advertiser. This also applies if an according notice has been fruitless.

 

7.3.    The Advertiser must pay the costs and expenses incurred in relation with their registration and the posting and maintenance of their advertisements themselves. This also applies in the events under section 7.1. and 7.2.

 

 

8.    Term and termination of contracts

 

8.1.    The advertisements posted in the Internet marketplace by an Advertiser have the term to be selected in advance by the Advertiser, which may amount to a maximum of six months. 

 

8.2.    Following the expiry of the term, the advertisements will automatically be disabled and deleted after another 90 days.

 

8.3.    Sections 7.1. and 7.3. remain unaffected.

 

 

9.    Data protection

 

    The Advertiser agrees to their data being stored, processed and used to the extent necessary for the business purpose in order to implement the service in accordance with the legal provisions. In particular, the Advertiser’s contact data will be made available to other registered customers for the purpose of establishing contacts. The Operator guarantees that the applicable provisions on data protection will be complied with.

 

 

10.     Liability

 

10.1.    Each Advertiser is solely responsible for the contents of their advertisements. The contents published by the Advertiser are not checked by the Operator. The Operator does not assume any liability whatsoever for the up-to-dateness, lawfulness, accuracy, completeness and/or quality of the information posted in the Internet marketplace by the Advertiser. All offered information is subject to change and non-binding. The Operator does not verify the Advertiser’s identity either. Any liability claims towards the Operator that result from the use or failure to use the information included in the Internet marketplace and/or from the use of incorrect or incomplete information will be excluded unless the Operator has acted willfully or grossly negligently.

 

10.2.    The Operator excludes any warranty and liability in the event that sales contracts initiated or made based on the advertisements are unenforceable or otherwise lead to legal or economic disadvantages with one or both of the parties of such sales contract. The Operator does not assume any liability for the suitability of the product.

 

10.3.     Furthermore, the Operator may not be held liable for errors in relation with the transmission of information. In accordance with section 3.3., the Advertiser is not entitled either to demand the provision or maintenance of certain functions of the Internet marketplace. This also applies to the availability of the system. Any liability for the consequences of limited availability will be excluded.

 

10.4.    The Operator is only liable for link destinations of which it is not the author if it has known about their contents and it would have been technically possible and reasonable for it to prevent their use in the event of illegal contents. The liability for any further contents and in particular for any damage resulting from the use of or failure to use such contents solely lies with the provider of the relevant link destinations. This also applies to third-party entries in the database of the Internet marketplace and to contents of websites of the official partners of the Operator.

 

10.5.    For the rest, the Operator’s liability for damages, on any legal grounds whatsoever, is limited in accordance with the provisions of sections 10.6. to 10.10. if fault is relevant.

 

10.6.    The Operator may not be held liable

 

a.)    in the event of simple negligence of its bodies, legal representatives and executives;

b.)    in the event of gross negligence of its employees and simple vicarious agents

 

unless material obligations of the contract are breached. Material obligations include consulting, protection and custodial duties that are intended to enable the Advertiser to use the Internet marketplace as agreed upon or to safeguard the health and life of employees of the Advertiser or third parties or the property of the Advertiser against significant damage.

 

10.7.    If the Operator is liable for damages on the merits in accordance with section 10.6., such liability is limited to damage that the Operator foresaw upon the execution of the contract as a possible consequence of a breach of contract or should have foreseen when taking into account the circumstances that were known to it or that it should have identified by applying customary diligence. Furthermore, any indirect and consequential damage must only be reimbursed if such damage must typically be expected in relation with the intended use of the Internet marketplace.

 

10.8.    The above exclusions and limitations of liability in accordance with section 10.6. equally apply to the benefit of the bodies, legal representatives, executives, employees and other vicarious agents of the Operator.

 

10.9.    For the rest, the Operator’s liability is limited, if legally admissible, to the extent acknowledged and reimbursed by the Operator’s covered third party liability insurance.

 

10.10.    If the Operator provides technical information or consulting services and such information or consulting is not included in the scope of services owed by it under the contract, such information or consulting is provided free of charge and without any liability.

 

10.11.    The limitations in accordance with sections 10.1. to 10.10. do not apply to the Operator’s liability for willful conduct or gross negligence, including gross negligence of its bodies, legal representatives and executives, for guaranteed properties, for injuries to life, body or health or under the product liability act.

 

 

11.    Final provisions

 

11.1.    The version of these GTC applicable on the date of registration forms part of the user contract made between the Operator and the Advertiser. The Operator is entitled to amend its GTC at any time without indicating any reasons. The Advertisers will be informed by e-mail about amendments that do not only relate to the form of the GTC.

 

    The amended provisions of the Operator’s GTC become effective for Advertisers who registered before the amendment of the Operator’s GTC two weeks following their transmission pursuant to section 11.1. paragraph 1 at the latest unless an Advertiser consents to the amendment earlier. The posting of further offers or want advertisements by the Advertiser constitutes such consent. Advertisers may object to the amendment of the Operator’s GTC during the transition period by deleting their offers or want advertisements. Otherwise the amended GTC will be deemed accepted. The Operator will advise the Advertiser on the option to object in and upon the transmission of the amended GTC.  

 

11.2.    Any and all declarations between the Operator and the Advertiser in relation with the use of the Internet marketplace must be made in writing. This provision on the written form is deemed met if such declarations are transmitted by e-mail. The Operator’s contact data can be seen from the Operator's imprint. The Advertiser’s contact data will be deemed those entered by the Advertiser in the entry mask.

 

11.3.    Rights and obligations under the contract between the Operator and the Advertiser may only be assigned to third parties with the prior written consent of the other party.

 

11.4.    The contract based on these GTC is exclusively governed by the law of the Federal Republic of Germany. The place of jurisdiction is the domicile of the Operator unless the Advertiser is a corporate body under public law or a special fund under public law. The Operator may also sue the Advertiser at the Advertiser’s domicile. The place of performance is the domicile of the Operator.

 

11.5.    Any amendments and supplementations to the contract based on these GTC and these GTC themselves must be made in writing. This also applies to this provision on the written form.

 

11.6.    If any provisions are or become ineffective, this does not affect the effectiveness of the remaining provisions. The ineffective provision will be deemed replaced from the beginning with an effective one the meaning and purpose and the letter of which correspond or come close to the ineffective provision.

 

In case of gaps a provision is deemed agreed upon from the beginning that reflects what the parties reasonably would have agreed upon according to the meaning and purpose of these GTC if they had considered such gap.