General Terms and Conditions for the Use of Online Services of GSK Handels- und Service GmbH

Preamble

(1) GSK Handels- und Service GmbH (hereinafter referred to as the “Operator”) operates the website Machinery-Market.eu (hereinafter referred to as the “Platform”). On this platform, commercial suppliers can place advertisements to sell machinery.

(2) In this context, machines means new and used machines, new and used parts and other items that serve a similar purpose or are in demand by a similar group of buyers. For reasons of simplicity, only the term “machinery” is used in the following.

(3) The Operator operates in the Advertisements segment. Additional services such as top placement, financing options and other features are also offered. The following provisions initially relate to the advertising business.

§ 1 General Terms and Conditions

(1) The operator makes the above-mentioned platform available online.

(2) Users (including advertisers, interested parties, advertisers) can publish machine offers via this platform, search for such offers and place advertisements (services of the operator).

(3) All users of the operator’s services act as traders or companies.

(4) These General Terms and Conditions (GTC) govern the legal relationship between the operator, the advertisers and all other users of the services.

§ 2 Placement of advertisements

1. object of the service

(1) Advertisers can advertise machine offers via the operator’s services. In addition, the services enable the exchange of electronic messages between advertisers and interested parties.

(2) The contents of entire advertisements or parts of advertisements are machine translated into a variety of languages. The advertiser agrees to the automatic translation of his advertisements. The operator accepts no liability for translation errors of any kind.

(3) The operator reserves the right to change, supplement or delete parts of advertisements or offers in their entirety without prior notice or to cease publication temporarily or permanently.

(4) Contracts that are initiated as a result of an advertisement published via the operator’s services are concluded without the legal involvement of the operator.

2. services of the operator

(1) The Operator provides an input mask for advertisements, subsequently activates advertisements entered and imported via an interface and enables the advertisements to be retrieved via the Internet. Advertisers can independently enter, change and delete their advertisements in the Operator’s database, in each case subject to any approval by the Operator.

(2) The activation of newly created or modified advertisements shall take place on working days in the case of subscription rates; in the case of rates for one-time sellers, after 24 hours at the earliest, unless otherwise agreed. The operator reserves the right to delay activation and to refuse activation for technical or other reasons.

(3) The operator reserves the right to block advertisements from advertisers at its reasonable discretion, in particular if there is a violation of the provisions of these GTC, marketplace rules or other regulations of the operator.

(4) Messages sent via the operator’s online services are stored and can be checked by the operator to prevent misuse or fraud.

3 Obligations of advertisers

(1) Every advertiser who publishes an advertisement via the platform is responsible and liable for the content of these advertisements and the accuracy of the information provided therein. The advertiser shall indemnify the operator against claims of third parties of any kind arising from the illegality or falsity of his advertisement or any other infringement of third-party rights. The indemnification obligation also includes the assumption of legal defense costs of the operator, e.g. court and lawyer’s fees. The operator is not obliged to check advertisements to see whether they infringe the rights of third parties or violate statutory or other legal regulations.

(2) The advertiser is obliged to provide only relevant technical data on the properties advertised. Copying texts or parts of texts from advertisements of other advertisers is prohibited. It is irrelevant whether the advertisements were published via the operator’s services or other channels. The use of unspecific keywords or keyword lists is prohibited. Repetitions of words in the advertisement description (except for manufacturers) are not permitted. Placeholders in the “Technical data” field are also not permitted.

(3) The advertiser is obliged to use only original machine photos. The use of placeholder images such as “Photo follows” or the use of company logos instead of machine photos is not permitted. The use of catalog photos of the machine for which the copyrights or rights of use are held by a third party is also not permitted.

(4) Only the respective machines may be described in the advertisements. Neither the machine designation nor information in the entry fields “Manufacturer” and “Model” may contain advertising wording. The placement of references to other products such as consumables or similar is prohibited.

(5) The advertiser is obliged to provide his contact information consisting of name, address and telephone number in the input mask provided for this purpose. The operator reserves the right not to publish or to delete advertisements with missing information.

(6) The advertiser is obliged to provide a valid e-mail address and agrees to the use of this e-mail address by the operator for notifications, in particular regarding purchase requests (requests for an advertiser’s machine), service information and marketing measures as well as for invoicing.

(7) Only one advertisement may be placed for each machine. The entry of one and the same offer in several (sub)categories is not permitted. In addition, the advertisement must be assigned to the correct category.

(8) The advertisements, images, videos and file attachments may not contain a telephone or fax number, domain name or e-mail address. Otherwise, the operator may delete the advertisement and also reserves the right not to subsequently publish any more advertisements from the advertiser. In this case, there will be no price reduction or refund.

(9) The advertiser undertakes to delete an advertised machine from the database immediately if the machine is no longer offered.

(10) If a price is specified, the advertiser undertakes to provide the machine with a price at which there is an intention to sell. Advertisements with unrealistic prices that merely serve to attract attention (e.g. €1 prices) will not be published or deleted. There will be no price reduction or refund. The price field can be left blank if the advertiser does not wish to specify a price.

(11) Further details are regulated by the operator’s marketplace rules (link).

4. removing and deactivating advertisements

(1) The operator reserves the right to reject, change or delete advertisements without giving reasons at its reasonable discretion, in particular if there is a violation of the provisions of these GTC, marketplace rules or other regulations of the operator. The operator also reserves the right to permanently exclude individual advertisers from using its online services.

(2) The advertiser alone shall bear the expenses incurred by him and in particular the costs arising from and in connection with the entry and maintenance of advertisements. This also applies if the operator changes, deletes or rejects advertisements.

(3) The advertiser can delete his advertisements independently at any time, provided that his account has not been blocked for a reason specified in these GTC.

5. granting of rights of use

(1) By placing/uploading advertisements via the entry form, advertisers grant the operator a non-exclusive right, unlimited in terms of time, space and content, to use and exploit the placed/uploaded advertisements (including the photos, videos, file attachments and texts used) comprehensively within the scope of the current and future offer, also with the aim of commercial marketing. The granting of rights includes in particular the possibility to integrate and use the content within paid and free print products, online services and websites as well as within the Internet. In particular, the advertiser grants the following non-exclusive, temporally and territorially unrestricted rights of use:

(a) The right to reproduce, make publicly available and distribute, i.e. the right to reproduce and make publicly available or publicly reproduce the content, including any technical possibilities, in particular through digital integration on websites, without limitation.

(b) The right to edit, i.e. the right to redesign and edit content as desired, either by yourself or through third parties, while respecting the moral rights of the author, in particular to add a watermark or letter and/or number code, translate the content or adapt the format for the purpose of integrating it into the website.

(2) By entering content, advertisers also grant the operator the right to edit the entered content and publish it on other platforms.

(3) Advertisers grant the operator the right to prosecute infringements by third parties of the advertisements placed/uploaded via the operator’s services in their own name. In addition, the advertiser assigns to the operator all claims for damages that the advertiser incurs against third parties due to the fact that posted/uploaded advertisements are demonstrably taken over directly and used elsewhere on the Internet without the consent of the advertiser and/or the operator.

(4) The Advertiser warrants that it is the owner of the transferred rights and that it is able to effectively grant the aforementioned rights. The advertiser also assures that the works are free of third-party rights that could conflict with the contractual granting of rights.

§ 3 User accounts

1. object of the online services

(1) Registration and placement of advertisements is reserved for tradespeople and entrepreneurs. Consumers may not advertise via the operator’s services.

(2) The registration of the advertiser and the selection of a tariff represents a binding order, which the operator can accept by simply confirming the account activation by e-mail. A contract concluded in this way authorizes the operator to invoice the associated tariff price and to collect it from a payment account specified for this purpose. The operator may refuse to accept the order at its reasonable discretion, in particular if there is a suspicion of misuse.

2. services of the operator

The operator’s services consist of providing input masks for dealer profiles and advertisements, processing the data entered and enabling the advertisements to be retrieved from the operator’s databases for the period agreed with the advertiser. The provision of services by the Operator begins on the day of activation and is not dependent on whether advertisements are actually published.

3 Obligations of advertisers

(1) The advertiser shall be liable for any damage caused by third parties gaining knowledge of his/her password through his/her negligent or intentional behavior. If his password has been stolen or if he becomes aware that his password is being used unlawfully by third parties, the operator must be informed immediately.

(2) The advertiser also undertakes not to pass on access data to his user account or purchase inquiries received or general inquiries (category inquiries) to third parties. The advertiser further undertakes to process any purchase inquiries received exclusively himself. In the event of non-compliance, the operator reserves the right to block the advertiser’s user account. In this case, there will be no price reduction or refund of payments made. The operator expressly reserves the right to claim damages from the advertiser in the aforementioned cases. Forwarding an inquiry to third parties constitutes a violation. At least € 500 plus VAT must be paid to the operator for each violation. Due to the seriousness of the violation, at least €2,500 plus VAT must be paid to the operator for the forwarding of access data and the use thereof by third parties.

(3) The advertiser may only advertise machines and other goods that are not his property with a valid brokerage agreement. The advertiser is obliged to disclose the ownership of machines or other offers upon request by the operator. A brokerage contract must be presented to the operator immediately upon request. If an advertiser offers machines that do not belong to him and for the sale of which he has not been commissioned by the owner, the operator reserves the right to claim compensation.

(4) The advertiser is not permitted to use the operator’s online services to advertise offers that compete with those of the operator.

4. removing and deactivating user accounts and advertisements

(1) The operator reserves the right to temporarily or permanently exclude individual advertisers from using its online services. In particular, if advertisers are in a competitive relationship with the operator’s services or otherwise harm the operator through business practices, registrations will not be activated or accounts will be deactivated. There will be no price reduction or refund.

(2) Customer data for accounting purposes shall be stored for ten years in accordance with the legislation.

5 Contract term and termination

(1) The contractually agreed minimum term applies. The contract term shall be extended by the same period at the rates valid at the time of contract extension if the contract is not terminated by the advertiser or the operator seven days before the end of the contract term at GSK Handels- und Service GmbH, An den Gewerbewiesen 17, 67374 Hanhofen, Germany. If the registered office of the operator changes, the notice of termination must be sent to this new address instead. In the case of one-time seller tariffs, the contract term shall only be extended by a further contract cycle if the account continues to contain active advertisements after expiry of the original contract term.

(2) The operator reserves the right to regularly adjust tariffs with regard to price and services. These possible tariff adjustments only affect existing customers after a contract extension, but not during an ongoing contract cycle. If this reduces the scope of services for the customer, the operator reserves the right to implement this adjustment at a later date, but no later than six weeks after the contract extension. Existing customers will be notified of upcoming tariff adjustments in their user account two weeks before they come into effect. Reference is made to the right of termination pursuant to para. 1.

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

(4) Notices of termination must be made in writing and may be transmitted electronically.

6. terms of payment

(1) Unless otherwise agreed, the current prices apply, which can be viewed at any time in the price list. This does not apply to individually agreed tariffs.

(2) Payment of the fee is calculated in advance for the agreed contract term or a partial period and is due for payment by the advertiser within ten days of invoicing. If an invoice amount is not received by the Operator on time, in full and without reservation, the Operator is entitled to block or partially block the Advertiser’s advertisements and user account(s) until all outstanding invoices have been paid in full, so that all functions are no longer available without restriction. There is no entitlement to a refund or waiver of fees for the period of blocking. The assertion of further claims for damages and other claims by the operator against the advertiser remains unaffected by this.

(3) All prices are subject to the applicable statutory VAT. VAT will also be charged to foreign customers if the customer’s registered office is in the European Union (EU) and no VAT ID number is entered upon registration.

§ 4 Liability

(1) The operator shall be liable without limitation insofar as the cause of the damage is based on intent or gross negligence on the part of the operator. For the slightly negligent breach of essential obligations, the breach of which jeopardizes the achievement of the purpose of the contract, or for the breach of obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the advertiser regularly relies, the operator is only liable for the foreseeable, contract-typical damage. The Operator shall not be liable for the slightly negligent breach of obligations other than those specified in the above provisions. In the case of slightly negligent breach of insignificant contractual obligations, the Operator shall not be liable to entrepreneurs. The above limitations of liability do not apply in the event of injury to life, limb or health and in the event of defects fraudulently concealed by the operator. Any liability under the Product Liability Act remains unaffected. Insofar as the liability of the operator is excluded or limited in accordance with the above provisions, this also applies to the personal liability of employees, representatives and vicarious agents of the operator.

(2) The Operator is neither an intermediary, broker nor trader, but provides exclusively an advertisement database.

(3) The operator assumes no liability for the topicality, correctness, completeness or quality of the information provided. The operator does not check the information published by advertisers for its (e.g. technical) content. The operator accepts no liability for the content of the information provided by the advertisers.

(4) The operator shall not be liable for damages resulting from the fact that advertisements are not published or are published in a shortened or distorted form.

(5) All information offered is subject to change and non-binding. The operator is not liable for errors or omissions and reserves the right to make changes to the services without notice. The operator assumes no liability for the suitability of the services for sales or other purposes.

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

(7) The operator is not liable for technical faults in the operation of the services. In particular, the operator is not liable for the fact that information is not available without interruption or without errors.

(8) The operator is not liable for links whose originator is not the operator. The operator is also not liable for the content of the websites of its (advertising) partners.

§ 5 Intellectual property

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

(2) The further processing and use of the operator’s advertisements in media of all kinds by third parties requires the prior written consent of the operator.

(3) The operator retains the copyright for published graphics, image documents, sound documents, video sequences, texts and other objects created by the operator. Reproduction of such objects in other electronic or printed publications requires the prior written consent of the operator.

(4) All brand names and trademarks mentioned within the operator’s services and possibly protected by third parties are subject without restriction to the provisions of the applicable trademark law and the rights of the respective registered rights holders. The mere fact that they are mentioned does not imply that the rights of third parties are not affected.

§ 6 Place of performance

(1) The services of the Operator shall be provided in Hanhofen, Rhineland-Palatinate, Germany, in technical and legal terms. If the registered office of the Operator changes, this new address shall become the place of performance. Any other place where the operator’s services can be accessed shall not be considered for contractual, liability and legal claims linked to the place of performance.

(2) The operator does not guarantee that the contents of the services comply with the legal regulations of the country in which the data can be accessed.

§ 7 Amendment of these GTC

(1) These GTC may be amended insofar as this is necessary to adapt to developments that were not foreseeable when the contract was concluded and which the operator did not cause or cannot influence and whose non-observance would disturb the balance of the contractual relationship to a not insignificant extent and insofar as this does not affect essential provisions of the contractual relationship. Essential provisions are those concerning the type and scope of the contractually agreed services and the term, including the provisions on termination. Furthermore, the GTC may be amended insofar as this is necessary to eliminate not insignificant difficulties in the execution of the contract due to loopholes that have arisen after the conclusion of the contract. This may be the case in particular if the case law on the validity of provisions of these GTC changes, if one or more provisions of these GTC are declared invalid by the courts or if a change in the law leads to the invalidity of one or more provisions of these GTC.

(2) The customer shall be notified by email of any changes to the GTC in accordance with Section 1 at least six weeks before they are scheduled to take effect. In the event of amendments that are not exclusively in the customer’s favor, the customer shall have the right to terminate the contract in writing (e.g. by letter or e-mail) without observing a notice period as of the date on which the amendments take effect. The customer shall be specifically informed of this in the notification of change.

§ 8 Final provisions

(1) The law of the Federal Republic of Germany shall apply exclusively to these GTC and to the legal relationships between the operator and users as a whole.

(2) The exclusive place of jurisdiction for all disputes arising from and in connection with legal relationships between the operator and users and their processing, and in particular from and in connection with these GTC, is the registered office of the operator.

(3) There are no verbal collateral agreements. Amendments and supplements to these GTC and to legal relationships between the Operator and the User must be made in writing. This also applies to any amendment, supplement or revocation of this written form clause itself.

(4) Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining GTC. The invalid provision shall be replaced by a valid provision that comes as close as possible to the economic sense and purpose of the invalid provision. The same applies to loopholes in these GTC.

(5) To the extent that provisions of these GTC do not refer to specific business processes or services of the advertising business, they shall also apply to the other business areas listed in the preamble. In addition, the commercial terms and conditions of other business areas (e.g. additional services) shall apply. If individual contents of these GTC contrast with provisions of the aforementioned provisions, the specific provisions shall take precedence over the GTC in case of doubt.