General Terms & Conditions - Professional Domain

General Terms and Conditions for Using the Professional Domain of the mobile.de Website (GTC-PrD)

Article 1 General

1. mobile.de operates databases, accessible via the Internet, in which, in the so-called Professional Domain, motor vehicles may be advertised for sale against payment of a fee (advertisement function), and in which motor vehicles can be searched for using the search function provided by mobile.de.

2. mobile.de promotes the ads placed by the participants in various ways, in particular by including them in other websites and promoting advertisements by referring to them in emails. The participant herewith consents to having its advertisements translated for this purpose for foreign websites.

3. These General Terms and Conditions for Use (GTC-PrD) apply exclusively to the relationship between mobile.de and the participants using the Professional Domain of the databases operated by mobile.de (markets for passenger cars, freight/commercial vehicles, motorhomes and motorcycles). Any terms and conditions of a participant that contradict the present General Terms and Conditions shall not be valid.

4. The General Terms and Conditions for the Public Domain (GTC-PuD) shall apply exclusively to the use of the Public Domain.

5. mobile.de shall merely provide the technical requirements, in the form of databases, by which information (ads) is conveyed. mobile.de shall not influence the content of the ads. In particular, mobile.de is not itself the party offering the advertised vehicles for sale.

6. mobile.de is not involved in the relationship between the seller and the party interested in the purchase, or the buyer, neither in the capacity of an intermediary nor as a representative of any party. Agreements that were initiated as a consequence of an advertisement being placed on mobile.de shall be concluded and implemented without mobile.de participating.

Article 2 Subject Matter of the Agreement and Scope of Services

1. mobile.de's obligation is to provide an input mask for ads, to activate the advertisements placed via the input mask, and to enable the advertisements in the mobile.de databases to be retrieved via the Internet for the period of time agreed upon with the participant.

2. All participants can put as many ads as they wish into mobile.de's databases. The use of the services provided is based on the mobile.de price list  that applies to the use of the Professional Domain in an ongoing contractual relationship.

3. The entitlement to use the mobile.de website and its functions only exists within the scope of the current state of the technology.

4. mobile.de can link the use of the mobile.de website or particular features of the mobile.de website or the extent to which certain features and services can be used, to particular requirements, such as checking the login data, the length of the contractual relationship, the manner and scope of usage, and make them dependent on the fulfilment of certain security precautions.

5. mobile.de reserves the right to temporarily restrict the possibilities of placing and retrieving ads if this is required due to capacity limits, to server security or integrity, or in order to implement technical measures and if this serves to provide for a due and proper, or improved, performance of the services (maintenance work). In so doing, mobile.de shall take into consideration the legitimate interests of all participants, in particular by informing them prior to taking the above measures.

6. mobile.de reserves the right to limit the number of data records imported daily by one and the same participant, should this be required for technical reasons, in particular for capacity reasons. This shall apply both to data transfer in the Professional Domain (http), and to data transfer by means of an FTP program.

7. In particular, technical reasons may mean that it is not possible, or possible only to a limited extent, to retrieve activated advertisements (unexpected system failures).

8. Articles 12 and 13 of the present GTC-PrD shall remain unaffected.
 
Article 3 Registering and Concluding the Contract

1. By registering and transferring the participant's data, an offer is made to conclude a contract for the use of the Professional Domain in accordance with the present GTC-PrD. The participants, in the sense of the present GTC-PrD, shall be deemed to include the principle business plus individual subsidiaries, sales outlets and other sites. Each of such sites is required to register separately and mobile.de shall invoice separately for each of the sites specified. A participant account is non-transferable and may not be used by different subsidiaries or sites.

2. After receiving the offer, mobile.de shall decide at its own discretion whether to accept it or not. The offer shall be accepted by either a confirmation of the order being sent or by transferring the access data (username and password) for the Professional Domain.

3. Only legal entities and natural persons capable of unrestrictedly entering into legal transactions may register. Minors, in particular, may not register. The person registering must be authorised to conclude such agreements on behalf of the participant.

4. The person registering is obliged to provide information that is complete and correct.

5. As part of the registration and the ongoing contractual relationship, mobile.de is entitled to demand submission of an excerpt from the Commercial Register and/or Trade Register (Gewerberegister) as well as other documentation and information which seem necessary or expedient for registering the participant or for maintaining the contractual relationship.
6. If the data provided alter after registering, the participant is obliged to inform mobile.de of the fact as soon as possible. The information must be provided in writing, by fax or by email.
7. The participant must keep their password secret and keep their access details safe. The participant is also obliged to notify mobile.de immediately if there is evidence that their access details have been misused by some third party.
8. mobile.de will not give a participant's password to any third party and will never ask the participant for the password by email or telephone.
9. The participant is strictly liable for all activities carried out using their access details. If the participant is not responsible for the misuse of their access details because they have not contravened the existing obligations to be careful, they shall not be liable.

Article 4 Deletion of Offers, Blocking, Termination and other Measures

1. mobile.de may take the following measures if there is sufficient indication that a participant has contravened statutory provisions, the rights of third parties or the present GTC-PrD, or if mobile.de has any other legitimate interest (in particular in case of default in payment):

•    Delete ads or other contents placed with mobile.de
•    Delay the publication of content that has been placed with mobile.de
•    Issue warnings to participants
•    Limit or restrict the use of the mobile.de website
•    Impose temporary blocks on participants
•    Impose definitive blocks on participants

2. In selecting the measure, mobile.de shall take into consideration the legitimate interests of the affected participant, in particular whether there are indications that the participant is not responsible for the contravention.

3. mobile.de may delete ads if, in terms of their content or layout, the ads contravene the present GTC-PrD (in particular the provisions set out under Article 7) or statutory provisions, or if they contravene the rights of third parties.

4. mobile.de may temporarily block a participant from using the mobile.de website. Such a block shall entail that the participant is no longer able to log into the mobile.de website, and that its ads on the mobile.de website can no longer be retrieved.

5. In case of default in payment, or should an authorization for direct debit be revoked or a debit note be returned, mobile.de shall be entitled to withhold its services and block the vehicle ads of the participant concerned, so that the latter's ads can no longer be retrieved from the databases.

6. mobile.de may definitively suspend a participant from using the mobile.de website, if the latter has repeatedly contravened the present GTC-PrD, or has done so particularly seriously, or if there is any other important reason.

7. The contractual relationship between mobile.de and the participant may be properly terminated by either party to the contract within a period of two weeks to the end of the month. Notice of termination is to be provided in writing to mobile.international GmbH, Marktplatz 1 in D-14532 Europarc Dreilinden or by email to: service@team.mobile.de

8. Should the contractual relationships be resumed and a participant be reinstated following termination or a definitive block by mobile.de due to a contravention of the GTC, default in payment or any other important reason, mobile.de shall be entitled to request a reinstatement fee in accordance with the currently valid price list for the Professional Domain.
 
Article 5 Rendering of Accounts, Due Date for the Remuneration and its Amount, Payment

1. The monthly participation fee shall be calculated and charged by mobile.de for the month just gone. Billing shall be only by electronic means, by sending an invoice by email. For sending an invoice on paper at the request of the participant, mobile.de shall charge for the work involved, for each invoice, a fixed fee in line with the current valid price list. The total sum shown in the invoice shall be due for payment immediately.

2. The monthly participation fee shall be calculated in line with the scaled price model as set out in the current valid price list. The fee is based on the insertion fees and the monthly scale fee. Mobile.de charges an insertion fee for every new inserted ad. The level of the scale fee shall be based on the monthly average number of ads placed per day in the database. In order to determine the monthly average, mobile.de will record the inventory of ads for each participant each day and save the number of ads thus determined. On the first working day of the following month, the total number of ads recorded daily will be calculated and divided by the number of days in the relevant calendar month. This average value, unless it is a whole number, shall be rounded down to the next smallest whole number, and an invoice based on the price scales shall be issued for this number.

3. The participant has to pay mobile.de additional fees for any additional services. The level of each fee shall be based on the current valid price list.

4. If an ad is deleted by mobile.de according to Sec. 4 of these GTC-PrD due to circumstances for which the participant is responsible, the insertion fee will not be reimbursed, unless the participant can prove that no damage or damages to a much smaller extent were caused. The deleted ad will be taken into account for the calculation of the monthly fee as described in number 2 above.

5. The settlement of the fees that a participant is to pay shall only be done using the payment methods that mobile.de accept. mobile.de reserves the right to add further payment methods at any time.

6. For participants based in the Federal Republic of Germany and for participants in other countries who have a bank account in the Federal Republic of Germany, the fees that are to be paid shall be collected exclusively via direct debit. The total stated in the invoice shall be collected on the 15th day of each month via direct debit.

7. If the collection of the debt fails (e.g. if a direct debit is rejected), the participant must reimburse mobile.de the additional costs resulting from this where they are responsible for the failed collection.

8. For participants based outside the Federal Republic of Germany who do not hold a bank account in the Federal Republic of Germany, accounts shall be rendered via an invoice for payment in advance. The advance payment made to mobile.de shall be credited to the payer's account and will then be set off against the accruing participation fee each month. Any transaction costs incurred outside Germany by the payment and order transactions shall be at the expense of the respective participant.

9. Within an agreed trial period, mobile.de shall provide its services free of charge.
 
Article 6 Price Modifications/ Changes or Amendments to the GTC-PrD

1. mobile.de shall announce any changes to its prices in due time such that the participant may end the contractual relationship, while observing the period of notice as stipulated in the contract, with effect from a date prior to that on which the modified prices take effect. Should the participant fail to exercise said right and continue to use the services of mobile.de after the date on which the changed prices take effect, the price modification shall become binding for both contractual partners. Accounts shall be rendered on the basis of the modified prices.

2. mobile.de reserves the right to change these GTC at any time and without providing reasons. The changed terms shall be sent in writing or by email at the latest two weeks before they come into effect. The modifications shall be deemed to have been accepted unless they have been objected to in writing within two weeks after their having been announced. The participant's attention will particularly be drawn to this outcome when the changes are announced.

Article 7 Requirements as to the Contents and Layout of Ads

1. The participant undertakes to only place a vehicle in the section provided for that type of vehicle (markets for passenger cars, freight / commercial vehicles, motorhomes and motorcycles). Only those advertisements are permitted which serve to sell motor vehicles and motor vehicle trailers as well as self-propelled and non-self-propelled motor-driven machines.

In detail this shall refer to the following:

•    Passenger car market: passenger cars
•    Freight/commercial vehicle market: trucks, truck trailers, passenger car trailers, semi-trailers, chassis, platforms for trucks or trailers, construction vehicles and devices, fork lifts, agricultural vehicles
•    Motorhome market: motorhomes
•    Motorcycle market: Motorcycles, motorcycle combinations, sidecars, trikes, and other motor-driven bicycles


The following ads in particular shall not be permitted that serve to advertise:

•    the concluding of leasing, rental or hire purchase contracts or any other form of financing or cession of the right to use
•    the transfer of agreements to sell or lease motor vehicles
•    the purchase of motor vehicles or other objects of any kind
•    the sale of spare parts and accessories for motor vehicles
•    the sale or promotion of software
•    the promotion of services

2. The participant undertakes to provide complete and correct information with regard to the vehicle (especially concerning the registration date and mileage), the legal relationships concerning the vehicle as well as with regard to the remaining content of the ad. Vehicles equipped with a replacement engine must be identified as such. In this case the actual mileage of the vehicle must be disclosed. Incorrect information provided by mistake (such as, for example, typing errors, placement in incorrect categories) are to be corrected without undue delay upon being discovered using the "Revise” function.

3. When placing the ad, the participant must disclose if the vehicle is significantly damaged and these damages have not been repaired. The participant shall do this by flagging the vehicle by selecting "Yes" or "No" for the function "Is there a significant non-repaired damage?" when placing the ad. Significant damage that has not been repaired refers to damage to the engine and transmission, and damage caused by road traffic accidents, fire, hail or water which is impossible to repair or can only be repaired by spending a substantial amount of money. Minor damage is excluded from this and should be specified in text in the field “Description”. The obligation to disclose known and repaired previous significant damage shall remain unaffected hereby. Vehicles designated as having significant unrepaired damage will only be found if the search option "Damaged Vehicles" "Also show ..." or "Only show ..." is selected in the search screen.

4. It is not permitted to advertise more than one vehicle, either separately or as a package, per ad.

5. It is not permitted to concurrently advertise the same vehicle more than once in any of the categories. This shall also apply if the same vehicle is being placed in the database at the same time by different participants. An exception is made for vehicles that are not immediately deliverable.

6. The participant must be able, during the period the ad runs, to immediately conclude with a potential buyer a legally valid purchase contract for the advertised vehicle and to hand over and transfer ownership of the vehicle at the availability time (used cars) or the delivery time (new vehicles) specified.

7. The ads can be illustrated with photos. The participant undertakes to only upload photos to mobile.de's database that they are permitted to use without restrictions and that are not encumbered by any third party rights and in particular third party copyrights. The photos used may not be misleading and must reflect the actual condition of the advertised vehicle. If the participant uses catalogue images, they must make this clear.

8. Where mobile.de provides certain seals of quality, guarantee marks or other symbols of trustworthiness, a participant is obliged to take care that they are only displayed in ads for vehicles that qualify for them. Other symbols of trustworthiness may only be used if so authorised by mobile.de.

9. In its wording, content, visual layout and intended purposes, the ad may not violate statutory provisions or public decency. Persons engaged in business must in particular comply with the regulations of the Copyright Act and the Trademark Act, the German Telecommunications Services Act (Telemediengesetz) (obligation to provide the publisher's information), and of the German Ordinance on Fuel Consumption Labelling for Cars (Pkw-Energieverbrauchs-Kennzeichnungsverordnung = Pkw-EnVKV ).

10. The participant is obliged to provide correct and truthful prices. In so doing, the participant should particularly comply with the regulations of the German Pricing Ordinance (Preisangabenverordnung – PangV). Under Article 1 Paragraph 1 of the German Pricing Ordinance, retail prices are to be stated which must in particular include value added tax and other pricing components (e.g. destination charges). Ads with prices that are clearly incorrect or misleading are not permitted.

11. It is generally not permitted to include links to external websites and external sources of information in an ad unless they are strictly required for legal reasons. Links in this sense also refer to email addresses and non-activated web addresses (URLs) and parts thereof. Exempted are links, inserted into the free text of the ad, to the participant's own, externally hosted pictures of the vehicle, PDF files and multimedia presentations, if these contain additional information about the advertised vehicle (e.g. vehicle reports, user manuals, etc.).

12. Specifying premium service telephone numbers, particularly (0)190 and (0)900 numbers, which, when dialled, result in higher telephone charges for callers, is not permitted.
 
Article 8 Responsibility for the Contents of Ads; Uploading Vehicles

1. The participant alone shall be responsible for the contents of the ads. mobile.de shall review the ads neither for correctness nor completeness. mobile.de shall not be liable for the correctness and completeness of ads.

2. When a participant uses the interface to put their entire vehicle inventory or individual ads, onto the mobile.de website, they are obliged to verify that the data sent is complete and correct. Given the differing technical specifications of different file formats, mobile.de accepts no liability for the data being complete and free of errors.

3. mobile.de provides no guarantee that the ads comply with statutory provisions and accepts no liability for the ads complying with statutory provisions.

4. mobile.de in particular excludes any and all warranty and liability arising from the fact that sale agreements initiated or concluded on the basis of mobile.de ads are unenforceable according to the national law of an affected state, or in any other way result in legal or economic disadvantages for one or both parties to the sale agreement.

Article 9 Indemnification

The participant shall release mobile.de from any and all claims asserted by third parties against mobile.de because their rights are being violated by the participant's ad or by any other use of the mobile.de website by the participant. The participant shall also hereby assume the necessary costs incurred by defending the rights of mobile.de, including any and all legal and court fees. This shall not apply if and to the extent that the participant is not responsible for the violation of rights.
 
Article 10 Database Updates, Deletion of Advertisements, Administration, Backup

1. In order to make the vehicle search as fruitful and successful as possible, mobile.de strives to keep its data current. Therefore participants should delete vehicle ads as soon as the vehicle on offer has been sold or is no longer available for other reasons.

2. Every participant is obliged to keep the vehicles advertised on mobile.de updated and to regularly administer its ads in the Professional Domain within a period of 2 weeks. Should a participant fail to perform such administration within said period of time, mobile.de reserves the right to deactivate the participant's ads due to lack of updating, so that the ads can no longer be retrieved from the database and can no longer be viewed using the search mask in the Public Domain. The ads shall automatically be reactivated when the participant administers them.

3. Each participant shall be obliged to create backups of its data inventory including the vehicle photographs in order to be able to quickly restore the ads in case of data loss. Data backups are made in the Professional Domain using the menu item "Inventory" and the sub-item "Data Backup".
 
Article 11 Manipulating the Vehicle Search and Destroying System Integrity

1. Participants may only use the search screens provided by mobile.de to search for vehicles in the mobile.de databases. Bypassing the search screens to search for vehicles, in particular by using searchware that accesses the mobile.de databases, is not permitted. Non-compliance will be prosecuted, for instance, under civil law under the aspect of interference with an established and operating business, and will have consequences under criminal law under the aspect of illegal interference with affiliated industrial property rights as provided for in Section 108 et seq. of the Copyright Law.

2. Activities aimed at rendering the mobile.de website dysfunctional or complicating its use are prohibited. The participant may not take any actions that may result in an unreasonable or excessive strain being placed on the mobile.de infrastructure. Participants shall not be permitted to block, overwrite or modify contents generated by mobile.de, or in any other way to create a disturbance by interfering with the mobile.de website.

3. Participants shall not be permitted to manipulate the results of the vehicle search on the mobile.de website by making incorrect or misleading inputs, by placing ads in an incorrect category, by technical activities or by any other misuse of the functionalities of the mobile.de website.

Article 12 Warranty

1. The contractual obligations of mobile.de shall have been performed if the ads can be placed in the databases on a yearly average of 95 % and can be retrieved from said databases in the same percentage.

2. In cases of force majeure, mobile.de shall be released from its obligation to perform. Force majeure shall be deemed to refer to all unforeseeable events, and to such events for the effects of which on the fulfilment of the agreement neither of the parties is responsible. Such events shall include in particular legitimate labour disputes, also in third-party companies, official measures taken by authorities, the failure of communication networks and gateways of other providers, disturbances in the area of network operators (Leitungsgeber), other technical malfunctions, including when such circumstances occur in the area of subcontractors, sub-suppliers or their subcontractors, or operators of subnodal data processors (Subknotenrechner) authorised by the supplier. No entitlements shall result for participants for any failures for which mobile.de is not responsible.
 
Article 13 Limitation of Liability

1. Except if essential contractual obligations are violated, mobile.de shall only be liable for damages vis-à-vis companies if and to the extent that mobile.de, its legal representatives, senior managers or other persons employed by mobile.de in the performance of its obligations are culpable of having acted intentionally or with gross negligence Should essential contractual obligations be violated, mobile.de shall be liable for any culpable conduct of its legal representatives, senior managers or other persons employed by mobile.de in the performance of its obligations.

2. Vis-à-vis consumers, mobile.de shall be held liable only for intentional and grossly negligent conduct. In case of essential contractual obligations being violated, of a debtor defaulting or of mobile.de being responsible for it being impossible to perform contractual obligations, however, mobile.de shall be liable for any culpable conduct of its legal representatives, senior managers or other persons employed by mobile.de in the performance of its obligations.

3. With the exception of intentional or grossly negligent conduct of legal representatives, senior managers or other persons employed by mobile.de in the performance of its obligations, the liability of mobile.de shall be limited in its amount to damages typically foreseeable at the time the agreement is concluded.

4. There shall only be a liability for the compensation of indirect damage, in particular for lost profits, in the case of intentional or grossly negligent conduct of legal representatives, senior managers or other persons employed by mobile.de in the performance of its obligations.

5. The exclusions and limitations of liability referred to above vis-à-vis entrepreneurs or consumers shall not apply in the case of specific guarantees having been made by mobile.de, nor in case of damages resulting from injury to life, limb or health or the violation of mandatory statutory provisions.
 
Article 14 Copyright and Usage Rights

Any and all data, information, company logos, texts, programs and images of advertisements placed on the mobile.de website shall be subject to copyright laws. The modification, further processing and usage by third parties in media of any kind is not permitted. The participant's rights shall remain unaffected hereby. It may continue to freely dispose of its own data and information.
 
Article 15 Place of Performance, Applicability of German Law, Jurisdiction

1. This usage agreement, including these GTC-PrD, shall, in its application and interpretation, be subject exclusively to the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11th, 1998 shall be excluded.

2. The place of performance shall be 14532 Kleinmachnow. Potsdam shall be agreed upon as place of jurisdiction for any and all claims arising from or due to the use of the databases of mobile.de, to the extent this concerns a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch).  The same shall apply if the participant has transferred their residence abroad following the conclusion of the agreement, or does not have any general place of jurisdiction in Germany.

Article 16 Severability Clause

The ineffectiveness of individual provisions of the present GTC-PrD shall not affect the validity of the remaining provisions. Such ineffective provisions shall be replaced primarily by legally effective provisions which come as close as possible in economic terms to said ineffective provisions. The same shall apply for any omissions in the provisions set out in these General Terms and Conditions.