General Terms and Conditions for Cooperation Contract

 

Preamble

These General Terms and Conditions (GTC), as set forth below, shall apply to the use of the web-based platform www.trademachines.de (“Platform”).  The Platform is an offer provided by Trade Machines FI GmbH (“TradeMachines”).

TradeMachines provides a web-based Platform with the aim to bring together sellers of used industrial machines (hereinafter referred to as “Suppliers”) and potential buyers (hereinafter referred to as “Users”). 

The Platform of TradeMachines grants Suppliers the opportunity to approach Users intending to purchase online used industrial machines and to refer them to the Suppliers’ offer portfolio.  Users are provided with information about websites and online shops of Suppliers and their products under the web address www.trademachines.de and its corresponding partner pages, including mobile applications (hereinafter jointly referred to as “Website”).  The User is enabled to easily provide himself with comprehensive information about the offer portfolio and to approach the respective Supplier directly and to place orders on the Supplier’s Website.  Suppliers realize the sale of their goods directly or interactively through their Websites.

TradeMachines itself does not act as seller of the products offered on the Platform.  The Supplier himself acts as seller of the offered products.   

The services performed by TradeMachines occur exclusively on the basis of these General Terms and Conditions.  These General Terms and Conditions shall likewise apply to all future business relationships, also in case that no express agreement is made to this effect. 

The language of communication and for any contractual agreement is German.  Any notification or statement relating to your contractual relationship with TradeMachines on the basis of the present General Terms and Conditions shall be addressed to TradeMachines FI GmbH, Stromstr. 39, 10551 Berlin, Germany, unless otherwise agreed upon in these General Terms and Conditions.

The currently valid version of our General Terms and Conditions is retrievable on our website where it can be saved and accessed in PDF format.

 

§ 1 Scope of Application

The services of TradeMachines are exclusively provided to Suppliers who have reached the age of 18 and who qualify as entrepreneurs within the meaning of Sect. 14 para. 1 BGB [German Civil Code], i.e. to natural or legal persons or legal entities exercising commercial or independent professional activities at the time when a legal transaction is concluded.

 

§ 2 Subject Matter of the Agreement and Formation of Contract

The subject matter of the agreement is the provision of the Platform as well as advice services provided by TradeMachine to the Supplier with regard to the sale of the products offered by the Supplier by means of the Platform.

Formation of contract occurs upon conclusion of a co-operation agreement between TradeMachines and the respective Supplier.  For this purpose, TradeMachines shall send to the respective Supplier a contract offer via link in an e-mail which leads to a separate website; the Supplier shall accept the contract offer in writing or in text form by clicking on a confirmation button.  The co-operation agreement shall regulate the type of service, the amount of the remuneration and the contract term.  The remuneration shall be payable irrespective of whether or not the procured Users avail themselves of the services provided by the Supplier.

 

§ 3 Settlement and Time for Payment

TradeMachines shall compile a report (reporting) for performance-based products, indicating the respective Supplier’s number of user visits due to TradeMachines acting as intermediary and shall thus calculate in accordance with the terms of the co-operation agreement the corresponding remuneration plus currently applicable VAT (if necessary). 

The invoice for fixed-price products shall specify the type of service that has been agreed in the co-operation agreement.  TradeMachines is entitled to send the invoice in PDF format via e-mail or as download link to the designated e-mail address of the respective Supplier.

The respective invoice amount shall be immediately due and payable, unless stipulated otherwise.

The Supplier may pay the remuneration either by direct debit or online payment procedures. TradeMachines reserves the right to exclude certain forms of payment in the individual case.

The Supplier may also issue a SEPA-based direct debit mandate/SEPA business-to-business debit mandate.  The pre-notification period shall be at least one day before debiting of the respective claim shall occur.  The Supplier undertakes to maintain sufficient available funds in his account.  Costs incurred as a result of inadequate account funds or back-posting of the direct debit shall be borne by the Supplier, unless the non-redemption or the back-posting has been caused by TradeMachines.

 

§ 4 Contract Term

Applicable are the notice periods and contractual terms which have been agreed under the co-operation agreement.  In the event that the co-operation agreement is not terminated within the set period, its term is automatically extended by 12 months.  Any agreement that is automatically extended shall be subject to a notice period of 2 months to the end of the respective contractual term.  The right to terminate the agreement for good cause without notice remains unaffected.  As good cause shall in particular qualify the event that Users complain to TradeMachines about the Supplier’s order processing and the respective Supplier fails to provide TradeMachines with appropriate evidence for the implementation of remedial action, such remedial action to be executed to the satisfaction of the User and within a timeframe of 48 hours.  Notice of termination shall be served in text form in order to be effective. Once the listing of products being terminated, no additional performance-based costs shall arise.

 

§ 5 De-Listing

Upon request of the Supplier, TradeMachines may terminate the listing of the respective offer portfolio (hereinafter referred to as “De-Listing”).  The De-Listing shall, however, not discharge the Supplier from his obligation to pay the agreed remuneration.  The Supplier is allowed to request De-Listing by transmitting a corresponding notification referring to the following working day (Monday - Friday).  The cleaning or deletion of any data provided by the Supplier shall not result in De-Listing.

 

§ 6 Use of the Online Platform

6.1. General Principles

TradeMachines shall provide the technical Platform on the Internet.  The use of the Platform made available by TradeMachines confers several service options to the Supplier.  These service options include, in particular but not limited to, the presentation of individual content, namely content referring to the offered products (i.e. images, texts, contact addresses) and the sending of messages to Users or Suppliers.  For additional details, please refer to Sect. 2 “Subject Matter of the Agreement and Formation of Contract”.

The Supplier is responsible to ensure that the product description pertaining to his offer portfolio is accurate and complete.  As a minimum requirement, the Supplier shall provide data corresponding to the mandatory data as defined by TradeMachines (title, description of the offered product, details of manufacturer, model, year of construction, e-mail address and web address).

The Supplier is obliged to ensure that the transmitted data is at any time up-to-date and accurate, i.e. the Supplier undertakes to immediately correct the transmitted data in the event of changes.

Each Supplier personally undertakes to verify the identity and integrity of his respective contractual partner (User/Buyer).  TradeMachines assumes no responsibility as to the accurateness of the contact details transmitted by Users.

The Supplier undertakes to use the Platform by observing these General Terms and Conditions as well as applicable law and in particular criminal law, competition law, trademark law, copyright law, privacy legislation dealing with personality rights, data protection and youth protection law and undertakes not to violate the rights of third parties.

To that effect, the Suppliers shall ensure that the uploaded content does not violate applicable law and regulations, public morals or the rights of third parties in particular.  The Supplier undertakes likewise to refrain from displaying any pornographic, violence-glorifying or hate-related content.  The same applies to the sending of e-mails and other electronic means of communication pertaining to the Platform.

Addresses, contact data and e-mail addresses obtained by the Suppliers through the use of the Platform may not be used by the Suppliers for any purposes other than for contractual communication.  It is especially forbidden to pass these data on to unauthorized persons or to use them for the sending of advertising, unless the person concerned has expressly agreed to it beforehand.

In the event that the content presented by the Supplier contains hyperlinks to third parties or to his own web presence, the Supplier assures that he is authorized to make use of the respective hyperlink and that the referred to website complies with applicable law and rights of third parties.

6.2.  Ban on fictitious Solicitations and Offers

TradeMachines is dependent on the fact that only credible offers are presented.  Suppliers are therefore prohibited from presenting fictitious offers, solicitations or quotations whose realization is not intended.

6.3. Rating Function

On its Platform, TradeMachines provides a rating system on the basis of which Users of the Platform are enabled to give their opinion about individual Suppliers.   The Users are obliged to give a truthful assessment that has to be as balanced and objectively as possible.  TradeMachines is entitled, but not obliged, to delete rating posts.  The ratings are not subject to a general review.

6.4.  Blocking and Deleting of Content

TradeMachines shall be entitled to invoke its virtual domestic authority should the Supplier violate these General Terms and Conditions.  TradeMachines shall be entitled to exclude the respective Supplier from using the service, delete Supplier’s content and take other necessary measures. In the event of a violation committed by the Supplier, TradeMachines shall also be entitled to refuse further inclusion of content and to immediately delete the relevant pages and the references directed to them.  In such case, the User shall not be entitled to demand reintegration of his multimedia content on the Platform or release of his deleted ads.

6.5. Ban of technical Interference

The Supplier undertakes to refrain from any activity that is likely to affect, interfere with, and/or unduly burden the operation of the Platform or the underlying technical infrastructure and its functions/accessibility through the use of software, viruses, robots, scripts or databases.  Suppliers are thus not entitled to block, overwrite or modify any content generated by TradeMachines or to interfere with the services offered by TradeMachines in any other way that is contrary to the purpose of the co-operation agreement. 

TradeMachines is entitled to set up and take appropriate measures necessary to ensure the system integrity of TradeMachines or third party systems.

6.6.  Notices, Communication and Declarations

TradeMachines' current contact information is available on the Platform and is mentioned in the preamble to these General Terms and Conditions.  The contact details posted by the Supplier on his offer page are considered to correspond to the Supplier’s contact data.  Any declaration submitted to these contact details by e-mail/fax shall be deemed received upon sending, any declaration submitted by post shall be deemed received on the third day after dispatch, unless a later date of receipt is evidenced.

The Supplier acknowledges the effectiveness of notifications transmitted by e-mail between him and TradeMachines or other suppliers, such notifications to be deemed transmitted as unrestrictedly effective declarations of intent.  Subject to proof to the contrary, an e-mail is deemed to originate from the owner of the sender address.

All declarations submitted within the framework of the co-operation agreement to be concluded with TradeMachines must be made in writing or by e-mail.  The postal address as well as the e-mail address of a Supplier shall correspond to those which were transmitted by the respective Supplier to TradeMachines as current contact details.

 

§ 7 Granting of Rights and Indemnification from Claims

7.1. Granting of Rights

The Supplier grants TradeMachines a non-exclusive, temporally and locally unrestricted right of use to the content placed by the Supplier.  The Supplier shall provide TradeMachines with logos, trademarks, product images, videos and other written or graphic representations which serve to identify the Supplier or its offer portfolio, in particular to graphically mark the links established by TradeMachines on the Supplier’s websites and shall grant to TradeMachines the right to their use and, in particular with regard to all existing industrial property rights, the right to their temporally and locally unrestricted use.

TradeMachines is at all times entitled to use and exploit the content in whole or in part within the framework of the fulfillment of the co-operation agreement.  The right of use vested in TradeMachines includes, in particular, the right to edit the multimedia content for the purposes of the Platform, to make it available to the public online, offline, in printed or electronic format, by means of wired applications or wirelessly in such a way as to allow members of the public to access them from a place and at a time individually chosen by them, including playback on any receiving devices which allow online access, in particular stationary and portable computers, and mobile devices such as smartphones, tablets, and similar devices.

The Supplier is not allowed to copy product descriptions or product data displayed on the Platform or on partner sites and to reproduce, to distribute or to make them available to the public on his own website or on websites of affiliated undertakings within the meaning of Sects. 15 et seq. German Stock Corporation Act [Aktiengesetz].

7.2.  Guarantees for the Ownership of Rights/Permission

The Supplier warrants that he is the proprietor of the rights necessary to place content on the online Platform and that he is fully entitled to effectively grant to TradeMachines the rights specified in Sect. 7.1.  The Supplier warrants furthermore that the content is free from the rights of third parties which could conflict with the contractually agreed grant of rights and use.  The Supplier warrants that the contractual use of the contents under this contract will not violate any rights, especially no personal rights of third parties, and that depicted persons, if any, agree to the contractual use of the contents.

7.3. Indemnification against Claims of Third Parties

The Supplier shall, upon frist demand, indemnify TradeMachines against any liability towards third parties arising from the use made by TradeMachines of the texts, product information, product images, logos, trademarks and other textual or graphic representations to be provided by the Supplier and in particular against any claims for copyright violation, violation of competition law, trademark violation, data protection and personal rights violation which are asserted against TradeMachines in connection with the use of the Platform by Suppliers or Users.  The Supplier shall notify TradeMachines of any third-party claim arising out of the use of the Platform, as soon as the Supplier becomes aware of such claim. TradeMachines is entitled to take appropriate measures to defend third party claims or to pursue its rights.  The Supplier's own measures must be agreed with TradeMachines beforehand.  The indemnity covers, in particular but not limited to, the costs for reasonable legal pursuit and legal defense.

7.4. Proprietary to the Platform

All rights to the Platform, in particular copyrights to the presented contents and the programming of the Platform, lie with TradeMachines.  The Supplier is obligated to take this into consideration and undertakes not to use privately or commercially any parts of the Platform or any other content of any kind beyond the scope of use provided for by the Platform.  This means, in particular, that Suppliers are not eligible to use data and content which they have become aware of through the Platform beyond communication within the scope of an existing project or payment processing for a completed project.  The Suppliers are specifically prohibited from using such information for own advertising, e-mails or other unauthorized purposes.

 

§ 8 Liability

8.1. General Principles

TradeMachines and the Suppliers operate their Websites independently of each other and each of them is solely responsible for his Website in terms of technology, content and legal aspects. TradeMachines shall, in particuar, not be liable for any illegal content or infringement which occurs on the Websites of the Suppliers.

TradeMachines assumes no responsibility as to the conduct of Users making use of the own Platform.  TradeMachines assumes in particular no liability for any damage caused by Users at the respective Suppliers.  TradeMachines does likewise not assume any warranty for specific sales or performances to be achieved by Users visiting the Platform of TradeMachines. 

TradeMachines is liable without limitation if the cause of the damage originates from an intentionally or grossly negligent committed breach of duty by TradeMachines or a legal representative or agent in performance of TradeMachines.  Apart from that, liability is not excluded for damages from injury to life, body or health.

TradeMachines shall also be liable for the slightly negligent breach of essential obligations. Essential obligations are those obligations the infringement of which would jeopardize the achievement of the purpose of the contract, or the performance of which would lead to the proper implementation of the contract (cardinal obligations) and the observance of which the Suppliers regularly rely upon.  In this case, the liability of TradeMachines is restricted to the foreseeable damage which is typical for this type of contract.  TradeMachines is not liable for the slightly negligent violation of obligations other than those specified in the preceding sentences.  Any liability of TradeMachines beyond this scope is excluded.  If and to the extent the liability of TradeMachines is excluded, this shall also apply to the personal liability of employees, representatives and agents in performance of TradeMachines.

8.2. Indemnification against Claims of Third Parties

The Supplier releases TradeMachines from all claims of third parties which are asserted in particular because of the graphic, content or technical design of the Supplier’s Websites and the products, services, information and other services offered on them.  The Supplier shall at all times indemnify TradeMachines against any liability for breach of a contractual obligation, guarantee or warranty which the Supplier has assumed against a third party within the scope of the execution of this contractual relationship (in particular within the scope of order processing).

TradeMachines acts only as intermediary between the Supplier and the User (potential buyer) and is not a party to the procured contractual relationship.  The execution of the contractual relationship, including possible disputes, for example with regard to the quality of the sold product or the fulfillment of alleged claims, is not part of the performance agreed under the co-operation agreement between the Supplier and TradingMachines.  Any dispute relating to the services is to be conducted between the Supplier and the User.

8.3. Liability for the Platform's Content

According to Sect. 7 para. 1 TMG [German Telemedia Act], TradeMachines, in its capacity as service provider, is responsible, according to the general laws, for its own content which is provided for use on its website.  TradeMachines is liable for third-party content as its own content only if it assumes in an externally visible manner responsibility for the third-party content.  This is usually not the case.

According to Sect. 8 TMG [German Telemedia Act], TradeMachines is in principle not liable for the mere transmission of third-party information, unless it has caused the transmission, selected the addressee of the transmitted information and modified the transmitted information.  TradeMachines is thus not responsible for any illegal content which is transmitted or accessed by Users or Suppliers via the servers provided by TradeMachines or which is retrieved from other servers via TradeMachines.  As a service provider, TradeMachines is not obliged to monitor or review any transmitted or stored third-party content or to investigate any circumstances which may indicate a possible unlawful activity.

TradeMachines is not responsible for any third-party content that it stores on behalf of a Supplier or User, provided that it has no knowledge of the unlawful act or content as set forth under Sect. 10 para. 1 TMG and that, in the case of claims for damages, it is also not aware of any facts or circumstances from which the unlawful act or the content becomes obvious or it has immediately taken action to remove the content or to block access to the content in question as soon as it has become aware of it, as set forth under Sect. 10 para. 2 TMG [German Telemedia Act].

Therefore, TradeMachines’ liability enters into effect only at the time when it obtains knowledge of the obvious illegality of a content.  As soon as TradeMachines becomes aware of an infringement, TradeMachines shall immediately remove the relevant content.

8.4. Liability for Hyperlinks and Thirs-Party Websites

TradeMachines’ offer portfolio extends to hyperlinks and links to websites on the Internet (hereinafter referred to as “Links”) which are maintained by third parties and whose contents are not known to TradeMachines.  This also applies to the Websites of the Suppliers which are displayed on the Platform within the scope of the offering and whose content is beyond the sphere of influence of TradeMachines.  It is, in principle, the responsibility of the respective Supplier to ensure that the design and content of his web presence are in compliance with applicable laws and regulations.  It is incumbent on the Supplier to examine and resolve any legal issues relating to competition, trademark or copyright or rights to a name.

TradeMachines merely provides access to these websites and does not assume any responsibility for their content.  The links to third-party websites are only intended to facilitate navigation on the Platform.

TradeMachines shall only be liable for links if it adopts the content of the website to which it refers as its own.  TradeMachines does not adopt any statement displayed on the linked websites as its own, unless TradeMachines discloses in a manner visible to outsiders that it assumes responsibility for the third-party content.

Links to third parties, thus also to websites of the Suppliers, shall be removed once it becomes apparent that the websites to which the links refer contain illegal content and TradeMachines is aware of the relevant content.  This shall apply only in the event that the unlawful character of the content is easily identifiable.  The content shall, as a rule, only be reviewed in terms of illegality if complaints are issued by a person concerned or by a third party or if the illegality of the relevant content becomes known by other means.  Permanent monitoring of the content of the linked websites is, however, not reasonable without concrete indication for an infringement.  As soon as we become aware of any infringement, we shall immediately remove the relevant links. 

For this reason, third-party content shall not be subject to any warranty.  The respective provider or operator of the websites is at all times responsible for the content of the linked sites.

8.5. Availability and Modification of the Platform

TradeMachines endeavors to ensure that the services offered on the Platform are available without interruption and that the information is transmitted error-free.  Neither the Supplier nor the User has a legal claim to the permanent use of the Platform.  TradeMachines is in particular not obliged to establish permanent accessibility to or availability of the Platform.  Access to the Platform may thus occasionally be interrupted or restricted in order to allow repairs, maintenance, or the introduction of new facilities or services.  TradeMachines endeavours to limit the frequency and duration of each of these temporary interruptions or restrictions.

 

§ 9 Data Protection

TradeMachines collects, processes and uses data from the Supplier in accordance with the applicable data protection law.

TradeMachines is entitled to collect, process and use personal data which is transmitted by the Supplier within the scope of the contract relationship, as far as this is necessary for the implementation of the contract or TradeMachines is obliged to do so.

The Supplier consents to the transmission of his contact data (e-mail address, telephone number) in the event of a request issued by a User, provided that the transmission is necessary for the procurement and execution of the contract between TradeMachines and the Supplier.

 

§ 10 Final Provisions

Unless otherwise agreed in individual agreements, any contract concluded between TradeMachines and the Suppliers is exclusively subject to German law, under exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG, “UN sales law”). 

TradeMachines reserves the right to update the General Terms and Conditions with effect for the future if economic or legal reasons require an adjustment.  Amendments to these General Terms and Conditions shall be communicated to the Suppliers by e-mail at the latest two months before the proposed date of their entry into force.  The consent of the Suppliers is deemed to have been granted if the Suppliers have not notified their refusal prior to the proposed date on which the amendments shall become effective.  In its communication, TradeMachines will particularly point out to the Suppliers this effect of deemed consent. Should the Supplier not agree to the amendments, he shall be entitled, up until the date the amendments take effect, to terminate the contract without notice.  In its communication, TradeMachines will particularly point out to the Suppliers this right of termination.