Terms Of Use "Classic Trader"

Version: 13 June 2014

For the use of the online vehicle marketplace operated by Classic Trader GmbH, Jacobsenweg 51-59, 13509 Berlin, telephone: +49 30 437 75 19 20, ("Classic Trader") for classic vehicles with the name "Classic Trader" ("Online Marketplace"), the terms of use that are shown below and which can be accessed at any time via a link on the Online Marketplace apply.

1. GENERAL

   1. Classic Trader operates the Online Marketplace "Classic Trader", a database accessible via the Internet in which natural or legal persons or partnerships with unlimited capacity to enter into legal transactions ("Users") can advertise classic vehicles, particularly "youngtimers" and "oldtimers" and classic boats and aircraft (hereinafter referred to collectively as "Vehicles") for sale and where such Vehicles by means of the search function provided by Classic Trader may be searched.
   2. Classic Trader provides only the technical functions for the transmission of the ads placed by the Users. Classic Trader does not influence the content of the ads. The User bear sole responsibility for the content of their ads. Classic Trader verifies neither the correctness nor the completeness of the ads and assumes no warranty for their correctness or completeness.
   3. Classic Trader is not involved in the relationships between sellers and potential buyers as intermediary, party or representative of any party. In particular, Classic Trader itself is not the party offering the advertised Vehicles for sale. Contracts initiated as a consequence of an advertisement being placed on the Online Marketplace are thus concluded and performed without the involvement of Classic Trader.
   4. The following languages are available for the conclusion of contracts: German, English.

2. REGISTRATION AND USER ACCOUNT

   1. Certain functions of the Online Marketplace are available only after prior registration, which is free of charge. This includes making it possible for potential buyers to contact sellers, including the accessing of sellers' contact data (e.g. telephone numbers).
   2. To register, Users must fill out the mandatory fields in the online registration form for the Online Marketplace completely and correctly and agree to these terms of use. During the registration procedure, Classic Trader makes technical functions available to Users in the form of a customary check of completeness and plausibility (checking whether all mandatory fields are filled out and whether the entered symbols match the relevant mandatory fields) so that input errors can be recognised and corrected. To become valid, registrations must be con-firmed by Classic Trader. This confirmation causes a contract concerning the use of the Online Marketplace as registered User to come into existence, and a (non-transferable) User account for the respective User is set up.
   3. Classic Trader reserves the right to delete User accounts that have been inactive for a period of twelve months.
   4. Each User may register only once. Within the framework of the registration and the ongoing contractual relationship, Classic Trader is entitled to request that commercial register extracts and/or professional register extracts (if available) or other documents and information that appear necessary or appropriate for the registration or maintenance of the contractual relationship be presented by Users acting as entrepreneurs in terms of § 14 of the German Civil Code (Bürgerliches Gesetzbuch) ("Dealers").
   5. Registered Users must ensure that the data they provide are up-to-date. Personal access data are to be protected from being accessed by third parties. Should third parties nevertheless obtain knowledge of the access data, Users must report this to Classic Trader immediately and change their access data.

3. SERVICES PROVIDED BY CLASSIC TRADER

   1. Classic Trader provides an input mask for advertisements, activates the advertisements placed via the input mask and makes it possible for the advertisements to be accessed via the Online Marketplace; the display and scope of functions may vary depending on the type of access (desktop or mobile). Classic Trader also provides extra services as described individually on the Online Marketplace. Classic Trader always marks extra services subject to a charge as such. In addition, Classic Trader also arranges for certain services provided by third parties (which are marked as such on the Online Marketplace). For the avoidance of doubt, Classic Trader does not become party to a contract in such cases, and all services that are the subject matter of the contract are rendered exclusively by the respective third party (on the basis of the contract to be concluded between the User and the respective third party).
   2. Classic Trader advertises the Online Marketplace and/or the advertisements placed by the Users itself and via third parties, for example, by including the advertisements or excerpts from them on its own or thirdparty websites, in social media, in e-mails or advertising letters, at trade fairs or in print, radio and television marketing campaigns. For this purpose, Classic Trader may also make access to the data, information and content published on the Online Marketplace available to third parties. The Users agree that translations of their advertisements may be made for this purpose.
   3. The entitlement to use the Online Marketplace exists only within the limits of state-of-the-art technology. Classic Trader reserves the right to restrict access to the Online Marketplace temporarily if this is necessary due to capacity limits or the security or integrity of the server or to carry out technical measures serving the purpose of providing the services properly or with improvements (e.g. for maintenance work).

4. PLACING AND EXTENDING ADVERTISEMENTS

   1. Each User may place advertisements via the appropriate input mask. Before placing advertisements finally, Users are given an opportunity to check their information and to correct er-rors via the "back" button or the navigation within the input mask. Users make a binding offer to conclude a contract only when they click on the relevant button which is labelled with a notification that publishing the advertisement would be subject to costs. Classic Trader accepts such offers by activating the advertisement on the Online Marketplace and sending the Users e-mail confirmations. Contracts for the placement of advertisements come about when confirmations are received.
   2. Advertisements placed by consumers can be accessed for 60 days, advertisements placed by Dealers for (at least) 30 days, via the database on the Online Marketplace unless their publication is terminated before the end of these periods by the respective Users. The date on which an advertisement is published does not count in the calculation of the advertisement period. Periods of time during which an advertisement is "paused" (meaning periods of time in which the advertisement is not published at the request of the User) also do not count. The day on which the "paused period" commences still counts as "published", and the day on which the "paused period" ends still counts as "paused" (in each case the status at 12:01 a.m.). An advertisement can be "paused" for a maximum of 60 days altogether.
   3. After 60 days, consumers have the option of placing expired advertisements (which are still accessible via the User account) anew or of extending them. Advertisements placed by Dealers are extended automatically after the end of the 30-day period by 30 more days unless the Dealer has terminated the publication of the advertisement before the end of the first 30-day period or any extended term of 30 days.
   4. In the event of and/or after the termination of an advertisement, Users have the option of designating successfully sold Vehicles (or rather the underlying advertisements) as "sold". Advertisement marked in this way can still be accessed via the Online Marketplace and seen by the Users of the Online Marketplace and thus, in particular, serve as references for the sellers. They are marked clearly and visibly as "sold" and – unlike "active" advertisements – no longer provide the possibility for potential buyers to make contact via the intended con-tact channels (in particular: contact form).
   5. The Online Marketplace is a specialised marketplace for the classic vehicles that are present in its own database. These include, in particular, Vehicles that have reached the minimum age for classic vehicles (so-called "oldtimers" and "youngtimers" - classic vehicles), rare sports and racing vehicles, classic boats and aircraft, as well as classic vehicles in the future. No other Vehicles may be advertised via the Online Marketplace. Should a classic vehicle that is being offered for sale not yet be in the database, a request can be addressed to Classic Trader that the Vehicle be included. Classic Trader will process the request within a reasonable period and subse-quently approve the Vehicle – provided that it falls under the definition of a classic vehicle in the opinion of Classic Trader – for publication without delay.

5. REQUIREMENTS FOR ADVERTISING CONTENT

   1. The advertisements must be correct in form and content at all times. Deficiencies in a vehicle and other circumstances that reduce its value not only insignificantly, in particular, may not be concealed. Advertisements containing incorrect prices, such as prices without VAT for Vehicles subject to standard taxation or the specification of down-payments or instalments in the price field, where financing offers are made, are not permitted.
   2. Should an advertised "classic vehicle" be a replicate, this must be made clear, particularly by selecting the correct category in the input mask and through the content of the published text. The information provided by Users and the uploaded pictures of the replicate may also not violate the rights of any third party, particularly any existing trade mark and/or registered de-sign rights. Correctly categorised replicates will be marked as such by Classic Trader in the illustration.
   3. It is not permitted to advertise several Vehicles individually or as a package within one advertisement. It is not permitted to advertise the same vehicle more than once at the same time in one of the main categories offered in the Online Marketplace (automobiles, motorcycles, tractors, utility vehicles, trailers, airplanes, helicopters, other aircraft, motorboats, sailboats and other boats). Advertisements for purchasing, search requests and advertisements for other goods or services are also not permitted. It is also not permitted to provide service tel-ephone numbers indirectly or directly involving special charges for callers, particularly numbers with the dialing code "0900". Finally, it is not permitted to include links to external websites unless such links are required under mandatory law.
   4. Users undertake to upload only such photograph and video files to the database that they may use without any restriction (in scope and for purposes as provided for under these terms of use) and that are not encumbered by third-party rights – in particular, third-party copyrights. The photographs and videos used may not be misleading and must reflect the actual and current condition of the offered vehicle. Should a User upload photographs and vid-eos of other Vehicles, for example, to illustrate the emotional value of the offered vehicle, the User must make it clear that the vehicle shown in the photographs or videos is not the offered vehicle, but – for example – only the same model. If a User uses pictures or videos from a catalogue, they must be marked as such separately. It is not permitted to upload photograph and video files that do not show only the "classic vehicle" offered (or – if marked appro-priately – at least the relevant vehicle model). This includes, in particular, photograph files with integrated logos, text and the like.
   5. If a User places advertisements on the Online Marketplace via a data service provider commissioned by the User, the User is obligated to check the uploaded files for completeness and correctness. Users remain responsible for all of the advertisements placed via their User accounts, regardless of whether they were placed by the Users or by third parties commissioned/authorised by the Users.

6. ACTIONS IN THE EVENT OF VIOLATIONS; INDEMNIFICATION

   1. If there are concrete grounds for believing that a User is violating statutory regulations, third-party rights or these terms of use, Classic Trader is entitled to (i) delete placed advertisements or other contents, (ii) delay publication, (iii) otherwise restrict the use of the Online Marketplace and/or (iv) block a User temporarily or – if the User repeatedly violates these terms of use or violates these terms of use especially severely or there is another good reason – permanently. In selecting what action to take, Classic Trader will take into consideration the legitimate interests of the User in question, particularly whether there are indications that the User was not responsible for the violation.
   2. The User will indemnify Classic Trader from any and all claims asserted by third parties against Classic Trader because their rights are being violated by an advertisement or by any other use of the Online Marketplace by the User. In such case, the User will also assume the necessary costs incurred by Classic Trader for its necessary legal defence, including court costs and lawyers' fees. This does not apply if and to the extent the User is not responsible for the violation of rights.

7. REMUNERATION

   1. The registration is free of charge. The lumpsum remuneration specified in the price list that is valid at the time the advertisement is placed or extended or the extra services are requested will be charged for placing and extending an advertisement and for the extra services subject to charge that are available via the Online Marketplace (and are designated as such). There are different price lists for consumers and for Dealers.
   2. For consumers, the remuneration becomes due and payable when the contract for the publication of the respective advertisement or the respective extra service is concluded. For Dealers, the remuneration becomes due and payable after the receipt of an invoice issued by Classic Trader for the remuneration charged in the respective month.
   3. The Users may pay by credit card, PayPal or SEPA direct debit. Payments by credit card and SEPA direct debit are executed by the Paymill GmbH, the payment service provider of Classic Trader. If the collection of debts is not successful, the User must reimburse Classic Trader for any extra costs incurred unless the User was not responsible for the unsuccessful collection of debts or can prove that no loss at all or a significantly lower loss was incurred. Invoices are sent only by e-mail. For sending an invoice in paper form at a User's request, Classic Trader charges a fixed price per invoice in accordance with the price list that is valid at the time.
   4. Classic Trader is entitled, in the event of default, to withhold its own service and to block the advertisement of the User in question.

8. USERS' GENERAL OBLIGATION; COPYRIGHTS AND RIGHTS OF USE

   1. Search requests may be made only via the search mask offered on the Online Marketplace. Bypassing the search masks to search for Vehicles, particularly by using search software that accesses the Website or the databases, is not permitted. The User also undertakes to refrain from making any electronic attacks on the Online Marketplace. Electronic attacks include, but are not limited to, attempting to overcome or circumvent the security mechanisms of the Online Marketplace or to otherwise render them inoperative, or using computer software for automatic data readouts, using and/or circulating viruses, worms, Trojans, brute force attacks or spam.
   2. The User acknowledges that Classic Trader and/or third-party licensors of Classic Trader are entitled exclusively and without restriction to any and all existing rights to the Online Mar-ketplace, including any and all intellectual property rights such as copyrights, trade mark rights, patents and any other protective rights. Users are not permitted to reproduce, modify, decompile, edit, reverse engineer, disassemble or translate the Online Marketplace or to attempt in any other way to convert it to source code. This applies, however, only to the ex-tent that such an act is not explicitly permitted under §§ 69 d and 69 e of the German Copyright Act (UrhG).

9. TERM

   1. Users may delete their User accounts at any time and in doing so terminate their underlying User contracts. Ongoing (published or paused) advertisements of a User's are to be brought to an end without delay in the event of a termination by the User himself (in accordance with Section 4.2 of these terms of use). Paid remuneration for placing or extending the advertisement will not be refunded in the event of a termination by the User.
   2. Classic Trader may terminate the User contract concluded with a User by way of registration at any time without cause with a notice period of fourteen days. Existing (published or paused) advertisements of the User's will remain as they are in the event of a termination by Classic Trader until they expire and can be edited by the User – like during the term of the contract – via the User account. Only an extension of the duration of the advertisement (in accordance with Section 4.2 of these terms of use) is excluded. Otherwise, however, the provisions in these terms of use that apply to ongoing advertisements continue to apply.
   3. When a User contract is terminated, the advertisements marked as "sold" will be anonymised by Classic Trader in such a way that all references to the identity of the respective seller are removed from the advertisements. The advertisements will remain available to the public via the Online Marketplace.
   4. Classic Trader's right to terminate a contract for good cause and to block a User, to delete content, to delay publication and to implement other restrictions under Section 6.1 of these terms of use remain unaffected by the above provisions in this Section 9.

10. WARRANTY AND LIABILITY

    1. Classic Trader does not assume any warranty for the secure, uninterrupted or faultless operation of the Online Marketplace. In cases of force majeure, Classic Trader is released from its obligation to perform. All unforeseen events and events having impact on the performance of the contract for which neither of the parties is responsible are deemed force majeure. Such events include without limitation lawful means of industrial action, also in third-party companies, official measures taken by authorities, the failure of communication networks and gateways of other operators, disruptions in the area of network providers, other tech-nical malfunctions, including when such circumstances occur in the area of subcontractors, sub-suppliers or their subcontractors, or operators of subnodal data processors (Subknoten-rechner) authorised by the User. No entitlements shall result for Users from any failures for which Classic Trader is not responsible.
    2. Classic Trader is liable under statutory law for intent and gross negligence of Classic Trader, its legal representatives, executive employees or other vicarious agents. The same applies in the event of an assumption of warranties or any other no-fault liability and in the event of claims under the German Product Liability Act (Produkthaftungsgesetz) or in the event of a culpable act resulting in death, injury or damage to health. Classic Trader is liable on the merits for breaches of material contractual duties, thus such duties the performance of which the User usually relies on and may rely on for the proper performance of the contract, caused by the simple negligence of Classic Trader, its representatives, executive employees and simple vicarious agents, but in this case limited in terms of amount to the typical, foreseeable damage.
    3. Any further liability of Classic Trader is excluded.
    4. Where the liability of Classic Trader is excluded or limited, this applies to the benefit of the personal liability of its legal representatives, executive employees and simple vicarious agents as well.

11. DATA PRIVACY

    Personal data relating to the Users are collected and processed by Classic Trader when the Online Marketplace is used. The data processing is carried out in accordance with the Classic Trader privacy policy.

12. FINAL PROVISIONS

    1. Classic Trader reserves the right to amend these terms of use at any time without giving rea-sons for doing so. The amended terms will be sent to the Users by e-mail at least two months before they come into effect. If a User does not object to the validity of the new terms of use within two months after receipt of the e-mail, the amended terms of use will be deemed accepted. In the e-mail that contains the amended terms of use, Classic Trader will call the Users' attention separately to the possibility of objecting to the new terms of use and the significance of the two-month period.
    2. The legal relations between Classic Trader and the Users are governed by the law of the Federal Republic of Germany, excluding the applicability of the United Nations Convention on Contracts for the International Sale of Goods. If the User is a businessperson as defined in the German Commercial Code (Handelsgesetzbuch), Berlin is agreed on as having exclusive jurisdiction for all disputes arising from and based on the use of the Online Marketplace.
    3. Classic Trader may make use of other companies affiliated with it for the purpose of perform-ing the contract and exercising the rights arising under the contract. Classic Trader has the right to transfer its rights and duties under this contractual relationship in whole or in part to third parties with a notification period of four weeks.
    4. Any amendments and additions to the User contract must be in written form to be valid. This also applies to any amendment to this written form clause. No oral or written side agreements have been concluded.
    5. If individual provisions of these terms of use are or become void or invalid in whole or in part, this shall not affect the validity of the other provisions. Statutory law shall be applicable in place of any non-included or non-valid provisions in these terms of use. If such statutory law is not available in an individual case (lacuna) or would lead to an intolerable result, the parties will enter into negotiations to agree on a valid arrangement that comes as close as possible, in economic terms, to the provision that was left out or is invalid to replace it.