MOTUS ONLINE SERVICE GMBH, KUMPFMUEHLER STRASSE 30, 93051 REGENSBURG
GENERAL TERMS AND CONDITIONS FOR THE ONLINE PLATFORMS FORKLIFT-INTERNATIONAL.COM AND WILDMACHINERY.COM
The following General Terms and Conditions (“T&Cs”) are designed to regulate use of the online platforms www.forklift-international.com and wildmachinery.com (the “Online Platform”). The Online Platform and the accompanying app for use on mobile terminal devices is provided by Motus Online Service GmbH, Kumpfmühler Straße 30, 93051 Regensburg, Germany, registered in the commercial register of the Amtsgericht Regensburg under number HRB 7400, ( “Motus”).
Motus permits access to and use of the Online Platform solely on the basis of these T&Cs.
1. SCOPE; AUTHORISED USERS
(1) These T&Cs regulate the usage arrangements between Motus and the authorised Users of the Online Platform (“Users”).
(2) The usage arrangement encompasses all content, functions, tools and other services (“Services”) of the Online Platform.
(3) These T&Cs explicitly do not apply to the contractual relationships between the owner of the adverts place in the Vehicle Market, on the Black Board or on the Job Market for the various products and services on offer, and the various potential customers. As an online platform provider, Motus is not party to the contract or a mediator of these types of contractual arrangements, but instead merely provides the Services for using the Online Platform.
(4) Authorised Users shall be exclusively entrepreneurs (commercial entities) within the definition of Section 14 German Civil Code (Bürgerliches Gesetzbuch, "BGB").
2. THE OBJECT AND SCOPE OF THE USER AGREEMENT
(1) The Online Platform enables dealers, manufacturers, importers and other entrepreneurs within the definition of Section 14 BGB to use the Vehicle Market, the Black Board and the Job Market to search for products and services, to place their own adverts and to obtain information.
(2) The information available on the Online Platform is provided free of charge. The simple search functions in the public area can also be used free of charge. The use of the advertising function and the accompanying Services, and the use of the enhanced search function in the restricted dealer and log-in area is chargeable.
(3) As the provider, Motus is merely providing the Online Platform, which is a technical facility that enables Users to communicate on the products advertised in the Vehicle Market. Motus shall not be party to the contracts concluded via the Online Platform, and therefore accepts no liability for the contracts concluded via the Online Platform or for the content placed there by Users.
3. CHANGES TO THE OBJECT OF USE
(1) Motus reserves the right, at its own discretion, at any time and without prior notice, to modify the Online Platform, the app and the Services thereby made available, and to amend these GTCs, including the prices and the conditions.
(2) In the event of any amendment to these GTCs, the new version of the GTCs will be displayed on the Online Platform and the app at least one month prior to coming into effect, and, at least one month prior to the amendments taking effect, Motus shall notify the registered Users in “text form” regarding the amendments, and inform them of their right to object. If the registered User does not raise any objection within one month of receiving notification of the amendments, this shall be deemed to constitute agreement to the amendments.
(3) In the event of price changes to service packages already booked, the User shall have a special right of termination, entitling it to terminate the contractual arrangement with a notice period of two weeks to the amendment date. Motus will inform the contractual partner of this possibility at the time notification of the price change. In the event that the special right of termination is not exercised, the price change shall take effect on the first day of the month following the notification of the price change.
(4) These GTCs shall replace all previous versions and conditions regulating the usage arrangements for the Online Platform.
4. REGISTRATION; PERSONAL ACCOUNT
(1) Registration is not necessary in order to use the information provided on the Online Platform, or the search function in the public area. The use of the advertising function and the accompanying Services, as well as the use of the enhanced search function in the restricted dealer and log-in area, is only possible following registration.
(3) Motus will confirm the registration in an email sent to the address provided by the User. The registration is successfully completed once the User activates the link in the confirmation email, and is guided to the “Successful registration” page.
(4) Once the registration process has been successfully completed, the User selects the service package they want. At this point, they can choose between a free-of-charge basic profile and chargeable service with varying functions and service content.
(5) Once they have entered the data necessary to complete the payment process, the advert functions of the User’s chosen package will be available to them.
(6) A separate registration must be performed for each branch establishment or office, point of sale or location. Each registration will be billed individually.
(7) Each User is only permitted one registration. The User must always use their own User ID on the Online Platform. The User’s administrator may create various roles within one registration, and assign rights to these.
(8) It is prohibited to pass on the User ID to unauthorised persons. The User must keep their User ID secret, and must ensure that it is adequately protected from becoming known to any unauthorised persons. If the User becomes aware that unauthorised persons have accessed their User ID, or that it is being misused, they must notify Motus without delay. If the User has, at the least, acted negligently, they shall be legally liable for all activities performed through the misuse of their User ID.
(9) By going to their personal account, the User will be able, at any time, to administer the details they entered during the registration process. Within their personal account, the registered User can also administer and manage all the functions and tools available in their chosen service package.
5. USE OF THE ADVERTISING FUNCTION
5. 1 PLACING ADVERTS
(1) Within its selected service package, the User can place advertisements by using the Vehicle Market, the Black Board or the Job Market.
(2) The Vehicle Market may only be used for the placement of adverts for products in the categories displayed there. All products offers must be entered into their proper category. It is not permitted to simultaneously advertise an offer multiple times in different adverts. The adverts may not contain advertising for products/services outside of the product/service contained in the advert.
(3) In the “registered users only area”, registered Users can use the Black Board to pin all information or requests relating to content outside of the categories provided in the Vehicle Market.
(4) The Job Market can be used for the placement of situations-wanted notices as well as job offers.
(5) The registered User is responsible for ensuring that the adverts it places do not breach statutory regulations. It is prohibited to place adverts which violate applicable laws, GTCs, third-party rights – especially trademarks and copyright – of which offend public decency, or to place adverts for products/services the sale of which is restricted or prohibited under statutory regulations (including safety regulations, export control regulations, competition law etc.).
(6) Registered Users may only offer products if they are the sole owner, or if they have the appropriate consent of the relevant owner. All adverts must contain accurate and full descriptions and be accompanied with words and images. All the significant characteristics and aspects relevant to the decision of the potential customer, including the price and any defects reducing the value of the products on offer, must be stated truthfully. Motus accepts no liability for the up-to-datedness, completeness or quality of the information provided by Users.
(7) Products may only be advertised if they meet the applicable statutory and regulatory requirements, are in a technically sound condition, their maintenance and the inspections and checks recommended by the manufacturer have been carried out with no outstanding shortcomings, and their safety equipment is in a flawless condition to the best knowledge of the seller. This applies particularly, but not exclusively, to the technical flawless condition of the chassis, brakes, steering and lifting gear. Furthermore, all safety elements and items of equipment mandatory at the potential customer’ location, must be present.
(8) If products do not satisfy the requirements described in para. 7, this must be explicitly and separately indicated in the applicable advert.
(9) When placing advertisements containing images, the User shall ensure that it uses only those images of which it is the sole rights holder, or to the use of which the rights holder has issued its consent. It is prohibited to upload misleading images.
(10) It is prohibited to manipulate the search function of the Online Platform, especially through the improper insertion of non-Item related brand names and/or other such search terms.
(11) All prices displayed in adverts shall be in EURO or another permissible national currency. Listed prices are net prices, and therefore do not include the relevant value-added tax where applicable. Prices will be displayed to the potential customer, accurate to the day in the currency pre-set by it. The price at the time of the conclusion of contract shall be determined solely between the contractual parties; this is likewise the case for any costs incurred in relation to customs duties, packaging or shipping etc.
(12) Motus expressly states that commercial Users may be subject to wide-ranging statutory regulations in connection with the placement of advertisements. The registered User is personally responsible for fulfilling the requirements imposed on commercial suppliers.
(13) The commercial supplier is obliged, in particular, to include in its advertisement(s) the “supplier identification” as defined by Section 5 of the German Telemedia Act (TMG) (contained in the website legal notice). This information must be readily identifiable, directly accessible and continuously available, so that you can insert your website legal notice information directly into your advertisements. Motus shall not be liable to the User for the consequences of any omission of the website legal notice.
(14) For the duration of the advert, the User must be capable of immediately concluding a legally binding contract concerning the advertised product or advertised service, and to transfer possession and ownership of the advertised product at the specified time of availability or delivery, or to render the advertised service at the specified point in time. Subject to prior sale.
(15) When providing contact details, it is prohibited to provide telephone numbers exposing callers to excessive telephone charges. Numbers with the following prefixes are never permitted: 0190, 0900, etc.
5.2 CONCLUSION OF CONTRACT BASED ON AN ADVERT
(1) The conclusion of contract performed between the supplier and the potential customer on the basis of an advert, takes place directly between these two parties without any involvement on the part of Motus. Motus shall not be party to the legal transactions concluded via the Online Platform. Motus accepts no liability for impairments of performance in the execution of the contract between the contractual parties.
(2) The placement of an advert by a registered User constitutes an invitation to tender. The supplier undertakes to refrain from the sale/lease of the article in question, or the performance of the advertised service. Until the time that a conclusion of contract has taken place, the supplier may, at any time, deleted the displayed advert, or dispose of the product or service otherwise.
(3) Any advert concerning a product or service no longer available, must be promptly deleted by the supplier.
6. DELETING ADVERTS, BLOCKING OF USERS
(1) Motus reserves the right to implement measures against those advertisements that breach the rules set out in No. 5.1. Motus is not obliged, however, to examine the displayed advertisements without grounds, and it accepts no liability for the legality, substantive accuracy and completeness of the displayed adverts.
(2) In the event of any violation of statutory regulations, third-party rights or these GTCs, Motus shall be entitled, in particular to
• delete advertisements,
• issue warnings,
• block Users temporarily or permanently,
• terminate the usage arrangement.
(3) Motus may also implement the measures described in 6 (2), if this is in its legitimate interests. In particular, this will be so in the case of a delayed payment or the failure to heed warnings.
(4) In the event that an advert is deleted, the User will remain obliged to pay for the service package in question.
(5) In the case of a delayed payment, the cancellation of a direct debit authorisation or a returned direct debit, Motus shall be entitled to refuse to render its own performance and to block the adverts of the User in question.
(6) Motus may permanently delete the User, if the criteria set out in 6 (1) are fulfilled, or if another such important reason exists.
7. DURATION AND CANCELLATION OF THE SERVICE PACKAGE
(1) The contractual arrangement commences on the day the selected service package is activated.
(2) If reserved service packages are modified during an existing contractual arrangement, the day of the modification of the contractual service will apply in the calculation of the end of the contract (see 7 para. 3). This does not apply to changes merely made to options for individual advertisements, rather than the entire contractual basis itself.
(3) The relevant contractually agreed term shall end on midnight of that last day of the last week or the last month, corresponding by its number to the day on which the contract commenced.
(4) The contractual arrangement existing between Motus and the User in relation to the relevant reserved service package, shall be automatically renewed by the applicable contractually agreed term, unless it has been duly terminated following a request from one of the contractual parties with a notice period of four weeks to the end of the relevant contractual term.
(5) The notice of termination must be issued in “text form”.
8. PRICES AND CONDITIONS OF PAYMENT
(1) The prices for using the Services contained in the relevant reserved service package are set out in the respective current Dealer Services. Listed prices do not include the relevant value-added tax where applicable.
(2) The applicable payments for flat-rate Services (not usage-based) shall be billed in advance for the applicable selected billing cycle (monthly/quarterly/half-yearly/annually).
(3) Usage-based costs will be determined in the subsequent month for the respective preceding month. The usage-based components will be listed and payment shall be due immediately.
(4) Invoices will be issued electronically. Electronic invoices will be issued to the post box of the User's personal account (menu item, “My invoices”). Usage-based and non-usage-based costs will be combined in one invoice.
(5) The User will enter its preferred means of payment at the time of registration (SEPA direct debit; credit card or invoice).
(6) Use of the SEPA direct debit procedure is only available to those Users with a registered address within the Single Euro Payments Area (SEPA countries). Motus will collect the relevant invoiced amount by direct debit. The User authorises Motus to collect the due invoiced sums from the account specified in its direct debit authority.
9. AVAILABILITY OF THE PLATFORM
(1) Motus reserves the right to temporarily restrict access to the Online Platform. This applies in particular if this is necessary for technical reasons, or when service works are performed on the server(s). Motus also reserves the right to restrict access if this is necessary for security reasons or in view of the capacity limits of the technical equipment.
(2) Technical reasons (system failures), in particular, can mean that use of the Online Platform is temporarily restricted or impossible.
(1) As an operator, Motus merely provides an Online Platform constituting a technical facility which enables Users to communicate with one another. The relevant supplier is solely responsible for the contents of its advertisements.
(2) Motus therefore accepts no liability for impairments of performance in relation to the contractual arrangements between Users or for any damage caused to the contractual articles. Motus likewise accepts no liability for the insolvency of the respective contractual partners. Motus does not verify their identity or their entitlement to operate fork lifts and attachments.
(3) Nor is any liability accepted for the consequences of any restricted availability of the Online Platform, and any effects this has for the conclusion of the contract.
(4) Motus accepts no liability for the content, accuracy and completeness of the adverts displayed on the Online Platform. Motus does not in any way warrant that the advertisements on the Online Platform satisfy the relevant applicable statutory regulations, nor does it accept any liability in this connection.
(5) Motus, moreover, excludes any guarantee or liability that may result from sales agreements not being enforceable under the national law of a given affected country, or that those sales agreements otherwise result in one or both of the contractual parties sustaining legally or economically detrimental effects.
(6) Users of the Online Platform have no entitlement to the receipt and processing of complaints concerning other Users, nor to any mediation, arbitration or consultation between them in the case of disputes or fraud.
(7) Motus shall otherwise be unreservedly liable in the case of deliberate acts or gross negligence, for all damage caused by it or by its statutory representatives or vicarious agents.
(8) In the case of slight negligence, Motus shall be unreservedly liable in cases of death or personal injury, deceitfulness or if it has assumed a warranty in this respect.
(9) Motus shall otherwise only be liable if it has breached a material contractual obligation. In such cases, its liability shall be restricted to compensating the foreseeable damage typical for this type of contract.
(10) Liability pursuant to Product Liability Law remains unaffected.
(11) Liability is otherwise excluded, except as provided for above.
11. VIOLATION OF THIRD-PARTY RIGHTS, INDEMNIFICATION
(1) The User shall indemnify Motus in respect of all claims asserted against Motus by other Users or third parties on the grounds of the infringement of their rights through adverts and content placed by the supplier. In such a case, the supplier will be required to assume all costs of the necessary legal defence of Motus, including all legal costs.
(2) In the event that a third party raises a claim against Motus, the supplier undertakes to promptly provide Motus with all accurate and complete information needed in order to examine the claim and a legal defence thereof.
12. OBLIGATIONS OF THE USER
(1) In using the Online Platform, Users are obliged to respect the applicable law and standards of common decency, as well as the rules issued by Motus concerning the proper use of the Online Platform. This Online Platform is in principle available throughout the world; the statutory regulations of other jurisdictions should likewise be observed, where applicable.
(2) It is prohibited to undertake any activities designed to render Motus’ Online Platform inoperable, including the access to it, or which are otherwise intended to hinder its use.
(3) The User is responsible for using appropriate security systems and virus scanning software in order to adequately protect its own IT infrastructure from viruses, Trojan horses and other malware. Even though Motus deploys appropriate measures in the operation of the platform, it cannot guarantee the total absence of malicious elements when using the Online Platform.
(4) The User shall ensure that the details provided in its personal account are kept continuously up to date, and in particular it shall amend its contact and master data as and when required (company name, address VAT ID), and add new aspects and amendments to its stock of advertisements.
(5) Other than for the performance of contracts, it is prohibited for Users to use any contact data that becomes known to them in the course of the initiation or conclusion of contracts, for any other purpose.
(6) Users are prohibited from using malicious technologies which could cause damage or a disturbance to the Online Platform, or to Users or to other third parties , and from exerting excessive strains on the Online Platform, and from publishing content, which could or does interfere with the integrity, stability or availability of the Online Platform.
(7) Infringements of these obligations shall entitle Motus to initiate the measures described in No. 6. Such measures shall not affect the other statutory entitlements of Motus, particularly those provided for by civil and criminal law.
13. COPYRIGHT AND RIGHTS OF USE
All data, information, logos, texts, programmes and images on the Online Platform are protected by copyright. The User may freely use their own data and the information contained in their adverts.
14. GRANT OF RIGHTS OF USE
(1) The advertisers vacate Motus Online Service GmbH as the operator of the online platform www.forklift-international.com with the posting / uploading of advertisements
on the form a non-exclusive, temporally, spatially and substantively unlimited right, the uploaded / uploaded advertisements (including the photos and texts used) in the frame
the current and future offerings of the online platform comprehensively, also with the aim of a commercial marketing, to use and to exploit. The granting of rights includes in particular the possibility
to integrate and use the content within paid and free online services and websites as well as within the freely accessible internet. In particular, the advertiser grants the following non-exclusive, temporally and territorially unlimited rights of use:
(a) The right to reproduce, make publicly available and distributed, ie the right to freely reproduce and publicly display or publicly reproduce the Content, including any technical facilities, in particular digitally linked to the Site;
(b) the right to edit, ie the right to revise and edit content while preserving the moral rights, even or through third parties, in particular for the purpose of inclusion in the website with a watermark to translate the content or format to the website adapt.
(2) By entering content, the advertisers also grant Motus Online Service GmbH the right to prepare the entered content and to publish it on other platforms, for example in product comparison databases.
(3) The advertisers grant Motus Online Service GmbH the right to pursue infringements by third parties on the advertisements posted / uploaded on the Online Platform in their own name. The advertiser also assigns to Motus Online Service GmbH all claims for damages, which arise to the advertiser against third parties, that posted / uploaded ads verifiably taken directly from www.forklift-international.com or wildmachinery.com and placed them elsewhere on the Internet without the consent of the advertiser and / or the Motus Online Service GmbH be used.
(4) The Advertiser warrants that he holds the transferred rights and that he is able to effectively grant the above rights. The advertiser further assures that the works are free of third party rights, which could be contrary to the contractual right granting.
15. WRITTEN FORM, SEVERABILITY CLAUSE, LEGAL VENUE, PLACE OF PERFORMANCE, CHOICE OF LAW
(1) No additional oral agreements have been made to this agreement. Amendments or additions to the agreement shall only be effective if made in writing.
(2) If any of the provisions of this agreement is unenforceable, this shall not affect the legal validity of the remainder of the agreement.
(3) The legal venue for commercial contractual partners is Regensburg. However, we shall be entitled to pursue legal actions before that court with jurisdiction for the customer’s registered address.
(4) Unless stated otherwise in our order confirmation, the place of performance shall be Regensburg.
(5) German law shall apply to the exclusion of the rules on the conflict of law, and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).