General Terms and Conditions for the Use of Online Services of the MSG Auctions GmbH
(1) The MSG Auctions GmbH (hereinafter "operator") operates various websites (this includes here and hereinafter related mobile applications), including Maschinensucher, Machineseeker and Werktuigen (hereinafter "platforms"). On these platforms, commercial suppliers (hereinafter "listers" ) can publish listings in order to sell machinery.
(2) In this context, "machinery" means new and used machinery, 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" will be used for this purpose in the following.
(3) The operator conducts business in the areas listings, online auctions and Buy-it-Now. Furthermore, additional services such as logo advertising, trust seal, first look and category inquiries are offered. The following regulations refer primarily to the listings business.
§ 1 General Terms and Conditions of Business
(1) The operator provides the above-mentioned platforms online.
(2) Users (this includes, but is not limited to, listers, interested parties, advertisers) can publish machinery offers via these platforms, search for such offers and place advertisements (operator's services).
(3) All users of the operator's services act as commercial parties or businesses.
(4) These General Terms and Conditions of Business (GTCB) govern the legal relationship between the operator, the listers and all other users of the services.
§ 2 Publication of listings
1. Object of services
(1) Listers can list machinery offers via the services of the operator. In addition, the services enable the exchange of electronic messages between listers and interested parties.
(2) The contents of entire listings or parts of listings are automatically translated into a variety of languages. The lister agrees to the automatic translation of his listing. Any liability of the operator for translation errors of any kind is explicitly excluded.
(3) The operator reserves the right to change, supplement or delete parts of listings or offers in their entirety without notice, or to discontinue publication temporarily or permanently.
(4) Contracts which are initiated as a result of a listing published via the services of the operator are concluded without the legal involvement of the operator.
2. Services provided by the operator
(1) The operator provides an input template for listings, then publishes listings that have been entered or imported via an interface and enables the listings to be retrieved via the Internet. Listers can independently enter, change and delete their listings in the operator's database, in each case subject to approval by the operator.
(2) In the case of subscription models, newly created or modified listings are activated daily on workdays. In the case of one-time sellers, newly created or modified listings are activated 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 listings of listers at its own reasonable judgement, in particular if there is a violation of the terms of these GTCB, the operator‘s marketplace rules or other regulations of the operator.
(4) Messages sent via online services of the operator are saved and can be inspected by the operator for the prevention of abuse or fraud.
3. Obligations of the listers
(1) Every lister who publishes a listing via a website of the operator is responsible for the contents of these listings and the correctness of the information given there and is liable for these contents and information. The lister indemnifies the operator against claims of third parties of any kind whatsoever, which are based on the illegality or untruthfulness of his listing or any other infringement of the rights of third parties. The obligation to indemnify also includes the assumption of legal defense costs of the operator, e.g., court and attorney fees. The operator is not obliged to review listings to determine whether they infringe the rights of third parties or violate statutory or other legal regulations.
(2) The lister is obliged to provide only relevant technical data on the listed objects. Copying of texts or parts of texts from listings of other listers is prohibited. In this context, it is irrelevant whether the listings were published via the services of the operator or other channels. The use of unspecific keywords or lists of keywords is prohibited. Word repetitions in the listing description (except for manufacturer names) are not permitted. Placeholders in the "technical data" field are also not permitted.
(3) The lister is obliged to exclusively use authentic machinery photos. The use of placeholder images such as "photo follows" or the use of company logos instead of machinery photos is not permitted. The use of catalog photos of machinery for which the copyrights or rights of use are held by a third party is also prohibited.
(4) Only the respective machinery may be described in the listings. Neither the "machine type" nor information in the "manufacturer" and "model" input boxes may contain promotional wording. The placement of references to other products such as commodities or similar expandable goods is prohibited.
(5) The lister is obliged to provide their contact information consisting of name, address and telephone number in the input template provided for this purpose. The operator reserves the right to not publish or to delete listings with incomplete information.
(6) The lister is obliged to provide a valid e-mail address and agrees to the use of this e-mail address by the operator for notification, in particular about purchase inquiries (requests for listed machinery of the lister), service information and marketing operations as well as for invoicing.
(7) Only one listing may be placed for each machine. The entry of one and the same offer in several (sub)categories is not permitted. In addition, the listing must be assigned to the correct category.
(8) The listings, pictures, videos and file attachments may not contain any telephone or fax number, domain name or e-mail address. Otherwise, the operator can delete the listing and also reserves the right not to subsequently publish any more listings of the lister. A price reduction or refund will not be given in this case.
(9) The lister obligates them to delete listed machinery from the platform immediately if the machinery is no longer offered.
(10) If a price is indicated, the lister commits to provide a price for the machinery at which there is an intention of selling it. Listings with unrealistic prices, which only serve to attract attention (e.g., 1€ prices), will not be published or deleted. A price reduction or refund will not be given in this case. The "price" box can remain empty if the lister does not wish to provide a price.
(11) Further details are regulated by the marketplace rules of the operator (Link).
4. Deletion and deactivation of listings
(1) The operator reserves the right to refuse, change or delete listings without giving reasons and at its own discretion, in particular if there is a violation of the provisions of these GTCB, marketplace rules or other regulations of the operator. Likewise, the operator reserves the right to permanently exclude individual listers from using its services.
(2) The lister must bear the expenses resulting from and in connection with the entry and maintenance of listings solely on their own. This also applies if the operator changes, deletes or rejects listings.
(3) The lister can delete their listings independently at any time, provided that their account has not been blocked for a reason specified in these GTCB.
5. Granting of usage rights
(1) By placing/uploading listings, listers grant the operator a non-exclusive right, unlimited in terms of time, space and content, to use and utilize the placed/uploaded listings (including the used photos, videos, file attachments and texts) 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 option of integrating and using the content within paid and free print products, online services and websites as well as within the Internet. In particular, the lister 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 without limitation, including any technical possibilities, in particular by means of digital integration within the framework of websites.
(b) The right to edit in compliance with the moral rights of the author, i.e., the right to redesign and edit the content as desired either by the operator or by third parties, in particular to add a watermark or code consisting of letters and/or numbers to the content, to translate the content or to adapt the format, all for the purpose of integrating it into the web pages.
(2) By entering content, the listers also grant the operator the right to modify the entered content and to publish it on other platforms.
(3) Listers grant the operator the right to pursue third party infringements of their listings placed/uploaded via the operator's services in their own name. Furthermore, the lister assigns all claims for damages that the lister incurs against third parties as a result of listings that have been posted/uploaded being demonstrably taken over and used elsewhere on the internet without the consent of the lister and/or the operator to the operator.
(4) The lister assures that they are the owner of the transferred rights and that it is possible for them to effectively grant the aforementioned rights. The lister also assures that the works are free of third-party rights that could conflict with the contractual granting of rights.
§ 3 User accounts
1. Subject of online services
(1) Registration and placement of listings is reserved for businesses and entrepreneurs. Consumers / private individuals may not place listings via the services of the operator.
(2) The registration of the lister and the selection of a price plan constitutes a binding offer, which the operator can accept by simply confirming the activation of the account via e-mail. A contract concluded in this manner authorizes the operator to invoice the associated plan price and to collect it from a bank account specified for this purpose. The operator may, at its reasonable discretion, refuse to accept the agreement, in particular if there is a suspicion of improper use.
2. Services of the operator
The services of the operator consist of providing input templates for dealer profiles and listings, processing entered data and enabling the retrieval of listings from the operator's databases for the period of time agreed with the lister. The service provision of the operator begins on the day of account activation and is not dependent on whether listings are actually published.
3. Obligations of the lister
(1) The lister is liable for damages caused by third parties gaining knowledge of their password due to their negligent or intentional behavior. If their password has been stolen or if they become aware that their password is being used illegally by third parties, the operator must be notified immediately.
(2) The lister also commits them to neither pass on account access data nor received purchase inquiries nor general inquiries to third parties. The lister further commits them to process received purchase inquiries exclusively by them. In case of violation, the operator reserves the right to block the user account of the lister. A price reduction or refund of payments made will not take place in this case. The operator expressly reserves the right to claim damages from the lister in the aforementioned cases. Forwarding an inquiry to third parties constitutes a violation. A minimum of € 500 plus VAT is to be paid to the operator for each violation. For the forwarding of access data and the use of these by third parties, a minimum of € 2,500 plus VAT is to be paid to the operator due to the severity of the violation.
(3) The lister may list machinery and other goods not owned by him only with a valid brokerage contract. The lister is obliged to disclose the state of ownership of machinery or other offers on demand of the operator. A brokerage contract must be presented immediately upon request by the operator. If a lister offers machinery 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 damages.
(4) The lister is not permitted to use the services of the operator to advertise offers competing with the operator.
4. Removal and deactivation of user accounts and listings
(1) The operator reserves the right to exclude individual listers from the use of its services for a short time or permanently. In particular, if listers are in a competitive relationship with the services of the operator or otherwise harm the operator through business practices, registrations will not be activated, or accounts will be deactivated. A price reduction or refund will not take place in this case.
(2) Customer billing data is retained for ten years in accordance with the law.
5. Contract duration and termination
(1) The contractually agreed minimum term applies. The contract term is extended by the same period at the rates valid at the time of contract extension if the contract is not terminated by the lister or the operator seven days prior to the expiration of the contract term at MSG Auctions GmbH, Kronprinzenstraße 9, 45128 Essen, Germany. If the registered office of the operator changes, the notice of termination shall be sent to this new address instead. For one-time seller plans, the contract term will only be extended for a further contract term if the account continues to have active listings after the original contract term has expired.
(2) The operator reserves the right to regularly adjust price plans with regard to price and services. These possible price plan adjustments only affect existing customers after a contract extension, but not during an ongoing contract term. If the scope of services for the customer is reduced as a result, the operator reserves the right to implement this adjustment at a later date, but no later than six weeks after the contract has been extended. Existing customers will be notified of upcoming price plan adjustments in their user account two weeks before they come into effect. Reference is made to the right of termination according to paragraph 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 agreed upon otherwise, the current prices apply, which can be found in the price list at any time. Individually agreed rates are excluded from this.
(2) The payment of the price is calculated in advance for the agreed contract period or a partial period and is due for payment by the lister within ten days after submission of the invoice. If an invoiced amount is not received by the operator on time, completely and without reservation, the operator is entitled to block or partially block the lister's listings and the lister's user account(s) so that all functions are no longer available without restriction until all outstanding invoices have been paid in full. There shall be no entitlement to a refund or waiver of charges for the period of the block. The assertion of further claims for damages and other claims by the operator against the lister remains unaffected by this.
(3) All prices are subject to the applicable statutory value added tax (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 submitted at registration.
§ 4 Liability
(1) The operator is liable without limitation if the cause of damage is based on intent or gross negligence on the part of the operator. In the case of a slightly negligent breach of material obligations, the breach of which compromises the fulfilment of the contract's purpose, or in the case of a breach of obligations, the fulfilment of which makes the proper execution of the contract possible in the first place and which the lister regularly relies on being complied with, the operator shall only be liable for the foreseeable damage typical for the contract. The operator is not liable for the slightly negligent breach of obligations other than those mentioned in the aforementioned provisions. The operator's liability towards commercial entities is completely excluded in the case of slightly negligent violation of insignificant contractual obligations. The above limitations of liability shall not apply in the event of injury to life, body, and 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 shall also apply to the personal liability of employees, representatives and vicarious agents of the operator.
(2) The operator is neither an intermediary, broker nor dealer, but solely provides a database of listings.
(3) The operator takes no responsibility that the information provided is up to date, correct, complete or of a certain quality. The operator does not inspect the information published by listers for its (for example, technical) content. Liability of the operator for the content of the information provided by the listers is excluded.
(4) Any liability of the operator for damages resulting from the fact that listings are not published or are published in a shortened or altered form is excluded.
(5) All information offers are subject to change and non-binding. The operator is not liable for errors or omissions and reserves the right to change the services without notice. The operator assumes no liability for the appropriateness of the services for sales or other purposes.
(6) The operator is not liable for errors in the transmission of purchase inquiries.
(7) The operator is not liable for technical malfunctions in the operation of the services. In particular, the operator is not liable for the fact that information is not available without interruption or 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 listings of the operator in media of all kinds by third parties requires the prior written consent of the operator.
(3) The operator reserves the copyright for published and self-created graphics, image documents, sound documents, video sequences, texts and other objects. Any reproduction of such objects in other electronic or printed publications requires the prior written consent of the operator.
(4) All brands and trademarks mentioned within the services of the operator and, if applicable, protected by third parties, are subject without restriction to the provisions of the respectively valid trademark law and the rights of the respective registered rights holders. The mere mention of a trademark does not imply that no rights of third parties are affected.
§ 6 Place of performance
(1) The services of the Operator are technically and legally performed in Essen, North Rhine-Westphalia, Germany. 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 remain out of consideration for contractual, liability and legal claims tied to the place of performance.
(2) The operator does not guarantee that the contents of the services comply with the legal requirements of the country in which the data can be accessed.
§ 7 Changes to these GTCB
(1) These GTCB may be amended to the extent that this is necessary to adapt to developments that were unforeseeable at the time of conclusion of the contract and which the operator did not cause or cannot influence and whose non-consideration would disturb the stability of the contractual relationship to a not insignificant extent and insofar as significant provisions of the contractual relationship are not affected thereby. Significant provisions are those relating to the type and scope of the contractually agreed services and the term, including the provisions on termination. Furthermore, the GTCB may be amended to the extent that this is necessary to eliminate not insignificant difficulties in the performance of the contract due to regulatory gaps that have arisen after the conclusion of the contract. This may be the case, in particular, if case law on the validity of provisions of these GTCB changes, if one or more provisions of these GTCB are declared invalid by case law or if a change in the law leads to the invalidity of one or more provisions of these GTCB.
(2) The customer shall be notified of any amendments to the GTCB pursuant to section 1 via e-mail at least six weeks before they are scheduled to apply. In the event of changes 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 termination period as of the date on which the changes take effect. The customer shall be specifically informed of this in the notification of change.
§ 8 Final provisions
(1) These GTCB as well as the legal relationship between the operator and the users as a collective are exclusively governed by the laws of the Federal Republic of Germany.
(2) For all disputes arising from and in connection with legal relationships between the operator and users and their settlement, and in particular arising from and in connection with these GTCB, the exclusive place of jurisdiction is the registered office of the operator.
(3) Verbal side-agreements do not exist. Amendments and supplements to these GTCB as well as to legal relationships between the operator and the user must be made in writing. This also applies to any amendment, supplement or cancellation of this written form clause itself.
(4) If individual provisions of these GTCB should be, or become, invalid, the validity of the remaining provisions of the GTCB shall remain unaffected. 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 GTCB.
(5) To the extent that provisions of these GTCB do not relate to specific business processes or services of the listings business, they shall also apply to the other business areas specified in the preamble. In addition, the Commercial Terms and Conditions for Sellers and the General Terms and Conditions for Auctions shall apply to the Auctions segment. For Buy-it-Now, the Commercial Terms and Conditions shall apply as well as the General Terms and Conditions of Sale. If individual contents of these GTCB contrast with regulations of the aforementioned provisions, the specific regulations shall take precedence over the GTCB in case of doubt.