Terms and Conditions of Use for Dealers and Providers<
Officer: Joachim F. Schöer
Untere Allee 48
Phone: +49 (0) 68 41 – 7 58 39 17
— hereafter known as “Cranemarket24” —
Section 1 General, Definition of Terms
(1) Cranemarket24 is an online portal for the facilitation of contacts between crane dealers or dealers in hoisting technology and potential customers or between providers of other services related to construction equipment of this type (e.g. purchase financing, leasing, vehicle insurance, rental, appraisals etc.) and customers. Its objective is to enable, promote and realise the provision of the aforementioned services by dealers and other providers to customers as appropriately to the latter’s needs as possible.
Cranemarket24 supports dealers or providers and customers during their communication and interaction and supports customers during the search for and selection of the matching services.
(2) Cranemarket24 does not itself operate as a responsible provider of the services for cranes and hoisting technology displayed on the portal or of the offered services related to these types of construction equipment. The dealers or providers of the other solutions are themselves solely responsible for the content and specifications of these offers and the performance of the services. The party obligated to realise the specific services facilitated via Cranemarket24 is solely and exclusively the specific dealer or provider with whom the customer has concluded a contract in the specific case via Cranemarket24.
(3) Definition of terms:
a) “Customers” are companies that use the portal Cranemarket24 and that are interested in or receive the services facilitated by Cranemarket24.
b) “Dealers” are companies that are registered on the portal and that market cranes, hoisting technology or other accessories and offer them to customers for purchase, lease, hire or otherwise for acquisition or utilisation.
c) “Providers” are entrepreneurs who offer services related to cranes, hoisting technology and other accessories (such as the areas purchase financing, vehicle insurance, appraisals, UVV [accident prevention] inspections, wind tests, servicing etc.) to customers on the portal Cranemarket24, whereby said services do not concern offers for the actual acquisition or utilisation of construction equipment.
d) “Consumers” are any natural persons who would like to use or who use Cranemarket24 and the services offered on the portal for purposes that cannot be attributed primarily to their commercial or self-employed professional activities.
e) “Entrepreneurs” are any natural or legal persons or legally capable partnerships that would like to use or that use Cranemarket24 and the services offered on the portal in the exercise of their commercial or self-employed professional activities.
Section 2 Scope of Application
(1) These terms and conditions apply to dealers and providers for registration on the online platform of Cranemarket24, its utilisation and for any and all business activities undertaken by the contract parties related to the online portal of Cranemarket24.
(2) Terms and conditions of business of dealers or providers do not apply even if and when Cranemarket24 has not objected to their application in a specific case. Even if and when Cranemarket24 refers to a written document that contains the terms and conditions of business of a dealer or provider or that refers to such terms and conditions, this shall not be construed as acceptance of the application of said terms and conditions of business.
Section 3 Subject of the Contract
(1) Cranemarket24 operates the online portal described under Sec. 1 (1) with the objective of facilitating contact between customers and the participating dealers and providers whenever possible. In addition, Cranemarket24 performs in particular the following services: the hosting, operation and maintenance of the online portal; support during contract negotiations; and the facilitation of the conclusion of contracts between the parties. The scope of the services will be defined in detail between the parties during the registration process.
(2) Cranemarket24 acts solely as the facilitator of the services between dealers and customers or between providers and customers. The dealers or providers of the other solutions are themselves solely responsible for the content and specifications of the pertinent offers and the specific performance of the services. The party obligated to realise the specific services facilitated via Cranemarket24 is therefore solely and exclusively the specific dealer or specific provider with whom the customer has concluded a contract in the specific case via Cranemarket24.
Section 4 Exclusion of Consumers, Offer and Conclusion of the Contract
(1) Solely entrepreneurs as defined in Sec. 1 (3) e) are eligible to register as dealers or providers. Consumers as defined in Sec. 1 (3) d) are not eligible to register as contract parties. Cranemarket24 is entitled to request at any time conclusive verification from users that they are entrepreneurs; reference is made in this context to Sec. 5 (2) of these terms and conditions of use.
(2) No one has a legal claim to be accepted as a dealer or provider on the Cranemarket24 platform. Cranemarket24’s offer to register and to place an order for the forwarding of queries from customers by Cranemarket24 whenever possible and to contract the other services with Cranemarket24 in specific cases is subject to change and non-binding.
(3) If and when dealers or providers are interested in using the services facilitated via Cranemarket24, they must register on the online portal and enter truthfully the information required during the registration process.
(4) To submit a registration request, a dealer or provider must initiate the registration process by clicking on the button “Register”; every step will be explained and the required information will be requested during this process. The registration process has been concluded when the dealer or provider, after confirming its entries and accepting the application of these terms and conditions of use, clicks on the button concluding the registration process. This action represents the binding request to be accepted as a registered contract partner of Cranemarket24. Cranemarket24 can accept this request within seven workdays.
(5) If the dealer or provider is accepted, it will be notified by a separate message and/or by the provision of the login data to the portal, which enable the user to utilise the services of Cranemarket24. This action concludes a utilisation contract between the dealer or provider and Cranemarket24.
Section 5 Rights and Obligations of the Dealers and Providers
(1) Dealers and providers are obligated to provide completely and truthfully all of the data that must be, and has been, entered on Cranemarket24 — e.g. company name, address, VAT identification number, details about their services etc. — and to update the data whenever necessary.
(2) At the express request of Cranemarket24, dealers and providers are obligated to present verification of their identity, of the existence of the company in whose name they are acting or of the authorisation to represent the designated company.
(3) Dealers and providers are obligated to satisfy any and all applicable legal requirements within the framework of their presentation on the portal, in the description of the services they are offering and in their interaction with the customers to whom Cranemarket24 has established contact.
(4) In the event that an offer placed on the Cranemarket24 platform is unavailable, the relevant dealer or provider shall notify Cranemarket24 immediately, in text form as a minimum (e.g. by email or fax), stating the reasons for the unavailability.
(5) Dealers and providers are obligated to maintain secrecy about the login data to their administrative section assigned to them by Cranemarket24 and to safeguard the data in such a way that access by third parties is excluded as far as possible. Dealers and providers must notify Cranemarket24 immediately, in text form as a minimum (e.g. by email), if and when it must be assumed that a third party has obtained unauthorised access to their login data.
(6) Subsequent to the forwarding of a customer query, dealers and providers are obligated to provide the information requested by the customer within three workdays, to contact the customer and to seek to conclude a contract with the customer.
Section 6 Obligations of Cranemarket24/Availability
(1) As a general principle, Cranemarket24 does not review any content placed by the dealers or providers on the platform before it is published. Cranemarket24 does, however, expressly reserve the right to review quotations placed by dealers or providers on a random basis and, if changes are legally required or improvements are possible, to propose modified content to the users. If the dealer or provider does not agree to any such proposed changes, the content will be published neither in the form to which objection has been raised nor in the version recommended by Cranemarket24.
(2) If a government authority (especially, but not limited to, an investigative authority) in the performance of its duties and responsibilities orders the deletion of content published on Cranemarket24, Cranemarket24 is authorised to remove the content from the Cranemarket24 online portal until a final legal clarification of the matter has been determined. Cranemarket24 will, if necessary, notify the concerned dealer or provider of this step immediately upon learning of the order and give the dealer or provider the opportunity to submit a statement.
(3) The Cranemarket24 online portal is the subject of regular maintenance and is kept up to date. Data are entered on the Cranemarket24 portal using secure 256-bit SSL encryption. In all other respects, Cranemarket24 ensures the maintenance of an appropriate standard in conformity with modern technology and observes the principles of data protection and data security.
(4) The parties are aware that absolute and complete availability and freedom from error of an online portal that has been made available for on-demand access cannot be guaranteed. Technical malfunctions or maintenance work may occasionally lead to temporary loss of access and availability of the portal. As far as possible, Cranemarket24 will keep any such downtimes as short as possible and conduct any necessary maintenance work during off-peak hours.
(5) Cranemarket24 assures its users of 99% availability of the online portal over the course of a year.
Section 7 Prices and Terms and Conditions of Payment
(1) The current and announced prices of Cranemarket24 in effect at the point in time of the registration or of the contracting of a Cranemarket24 service subject to charge apply.
(2) Cranemarket24 accepts all of the means of payment indicated on the internet portal. At this time, payment may be made by bank transfer, PayPal and SOFORT Überweisung. PayPal can also be used to pay with debit or credit card without requiring a PayPal account.
(3) Cranemarket24 invoices, which may also be issued electronically, are due immediately upon being served and payable within 10 days after receipt.
(4) If a dealer or provider does not submit payment after billing and by the due date, interest in the amount of 9% above the basic interest rate will be charged on the outstanding amounts as of the date of default; this provision is without prejudice to the assertion of higher interest rates and compensation claims for greater loss or damage in the event of default.
Section 8 Term of Contract and Termination
(1) A Cranemarket24 account subject to charge has a contract term of three, six or twelve months, whereby the dealer or provider is granted the option to renew the contract once for one of the above-mentioned periods before the expiration of the contract.
(2) The parties have the right to extraordinary termination without notice of a contract subject to charge for good cause; the termination notification may be submitted in writing or by email.
Good cause for Cranemarket24 includes, but is not limited to, the following situations:
a) A dealer or provider is in default of payment of the costs for services subject to charge for more than two months after issue of the invoice and due date of the payment request;
b) A dealer or provider is in violation of the terms and conditions of use and does not cease and desist from the conduct to which objection has been raised, despite the issue of a relevant request from Cranemarket24 and the warning of extraordinary termination, within a reasonable period.
(3) In the event of termination, Cranemarket24 will, upon expiration of the contract, delete the profile of the dealer or provider and the content it has placed on the portal immediately and permanently.
Section 9 Intellectual Property Rights and Indemnification
(1) Dealers and providers must not violate any third-party trademark rights, copyrights or other (intellectual property) rights when using the Cranemarket24 portal and conducting related activities on the Cranemarket24 internet platform.
(2) If and when dealers or providers use their own content or works protected by copyright or trademark laws (e.g.: texts. photos, videos, music, logos, brands etc.), they simultaneously authorise Cranemarket24 to reproduce, to edit, to distribute, to publicly display or to make publicly accessible any such content or works on its own behalf on the internet or in print media for advertising and marketing purposes. If dealers or providers are themselves solely licensees, they must ensure that the licences issued to them permit the uses stipulated above by Cranemarket24.
(3) If and when third parties assert claims against Cranemarket24 alleging an infringement of rights caused by the use of illegal content that dealers or providers themselves have placed on the Cranemarket24 online portal, the dealers or providers are obligated, upon first request, to indemnify and hold harmless Cranemarket24 from and against any and all third-party claims and to assume any and all related costs, including any and all court and settlement costs and costs for legal counsel as required in the reasonable judgement of Cranemarket24.
(4) Dealers and providers are obligated to undertake any and all reasonable measures to protect Cranemarket24 from any and all loss or damage resulting from the assertion by third parties of claims based on the use of content that infringes on third-party rights and, if applicable, to eliminate the alleged infringement on rights immediately upon learning of the infringement. The infringing party will, as appropriate, proactively support Cranemarket24 during the out-of-court and/or in-court settlement of any such disputes with third parties, whereby Cranemarket24 retains the sole right to conduct the litigation and the right to conclude out-of-court or in-court settlements.
Section 10 Data Protection, Prohibition to Disclose Customer Queries and Contractual Penalty
(1) Each and every one of the parties will ensure that it is in compliance with the pertinent and applicable data protection provisions. This provision applies in particular, but is not limited, to the collection, processing (storage, editing, disclosure, blocking and deletion) and use of personal data.
(2) The disclosure or forwarding to third parties of customer queries (leads) facilitated by Cranemarket24 by the dealers and providers is prohibited. In particular, the sale of customer queries to third parties is prohibited. In the event of a violation of this prohibition, Cranemarket24 is entitled to request payment from the violating dealer or provider of a contractual penalty in the amount of €5,000.00 for each and every incident violating the prohibition.
Section 11 Liability
(1) Cranemarket24 is liable without limitation for wilful intent or gross negligence as well as for loss or damage resulting from injury to life, body or health and within the scope of any assumed warranties.
(2) Cranemarket24 is liable without limitation for slight negligence solely for violation of a major contractual obligation (cardinal obligation), i.e. an obligation which must be fulfilled if the orderly execution of the contract is to be possible at all and which the contract partner may normally expect to be fulfilled. In all other respects, Cranemarket24’s liability for slight negligence is limited in total to the amount of the foreseeable loss or damage that may typically be expected.
(3) Cranemarket24 owes the diligence usual in the industry during the creation and operation of the portal. In determining whether Cranemarket24 is at fault for a failure or for loss or damage, consideration must be given to the fact that it is technically not possible to create completely error-free software.
(4) The liability limitations above apply as well to the personal liability of employees, authorised representatives and the officers and directors of Cranemarket24.
(5) Customers are themselves liable for the correctness and legality of their information or content unless Cranemarket24 is verifiably aware of false or illegal information or content and Cranemarket24’s own culpability within the sense of the liability provisions above can be asserted.
Section 12 Amendment of the Terms and Conditions of Use
(1) Current terms and conditions of use as most recently revised apply; Cranemarket24 provides free access to the terms and conditions on the portal for registered dealers and providers. The revision status of the terms and conditions of use is shown at all times.
(2) Cranemarket24 has the right to amend the terms and conditions of use (e.g.: in the event of changes in laws, changes in decisions by the highest courts, changes in platform functions, expansion of the scope of services and/or changes in market conditions), provided that the amendment is reasonable for users. The amendment shall be deemed reasonable for users if and when there are good grounds within the sense of the above provision for the amendment and the grounds are expressly stated. Cranemarket24 will notify dealers or providers of the action well in advance of any intended amendment of the terms and conditions. If and when the dealer or provider does not object to the intended amendment of the terms and conditions within a period of four weeks after learning of the intended amendment, the amendment shall be deemed approved and accepted, provided that prior and express reference to the above consequences has been made to the dealer or provider.
(3) If the dealer or provider objects to the intended amendment of the terms and conditions and does not wish to continue the contract subject to the new terms and conditions, it is entitled to give extraordinary notice of termination of the contract.
Section 13 Venue, Proper Law
(1) Venue for any and all disputes related to the use of the portal and to contracts between a dealer or provider and Cranemarket24 is the site of the Cranemarket24 registered office.
(2) The parties are in agreement that any and all legal relationships pursuant to the use of the portal will be governed by the laws of Germany.
Section 14 Severability
If and when a provision of these terms and conditions of use is invalid, the validity of the remaining provisions will not be affected. The statutory regulation applies in lieu of the invalid clause. An exception is possible only if and when the continued application of the remaining terms and conditions of use would result in unreasonable hardship for one of the parties. In this case, the terms and conditions of use as a whole become invalid.
Last revised: 24/03/2016; © Jens Bräumer, MSB Rechtsanwälte (Saarbrücken)