GTC Brabender Marketplace
Sec. 1 General Provisions
- (1) Brabender GmbH & Co. KG, Kulturstraße 49 - 55, 47055 Duisburg, Germany HRA 1667, (hereinafter referred to as Brabender) offers its Internet visitors the opportunity to use their laboratory equipment exchange for second-hand equipment (hereinafter "Marketplace" or "Brabender Marketplace") pursuant to the rules set out in these Terms and Conditions of Use.
- (2) The website is exclusively intended for entrepreneurs within the meaning of the German Civil Code (BGB), legal entities of public law and public law funds.
- (3) These Terms and Conditions of Use contain the entirety of the terms applicable between Brabender and the User in respect of the services being offered by Brabender under this service agreement. Terms departing from these Terms and Conditions of Use shall only apply if confirmed in writing by Brabender. With effect as from the date of the User’s admission pursuant to sec. 3 hereof, the User is deemed to acknowledge these Terms and Conditions of Use as governing.
- (4) As far as the scope of the General Terms and Conditions of Brabender GmbH & Co. KG of Sale takes effect, they shall apply in addition.
- (5) The latest version of these Terms and Conditions of Use shall be authoritative for any use or visit to the Market Place. Users will be informed of any amendments to these Terms and Conditions of Use at their next visit after logging in. The acknowledgement of the changed Terms and Conditions of Use must be confirmed by the User, so that the latter can continue to use the marketplace.
Sec. 2 Services rendered by Brabender
- (1) Brabender operates the market place as a telemedia provider.
- (2) Via the market place of this web site Brabender and other registered Users (collectively referred to as Sellers) will offer laboratory equipment for sale. The sales offers are publicly available for everyone.
- (3) The marketplace allows Users of the website (hereinafter referred to as "Prospective Buyers") to contact the Sellers via a web form. The web form can be used by the Prospective Buyer without prior registration or online-logon. The Marketplace does not include any purchase or order function. Contracts between sellers and buyers are concluded directly between the respective parties outside the marketplace.
- (4) All data transmissions from Users' devices to the telemedia service will be SSL encrypted.
Sec. 3 Obtaining membership as Seller
- (1) Participation in the market place (“membership”) as a seller requires the User to complete the registration process. The User can only start offering goods after the activation of his User account (hereinafter also authorization).
- (2) No party holds an entitlement to admission or use of the Marketplace.
- (3) Only natural persons can be registered as Sellers. In addition to their first and last name, they must also provide the company name or business name and their address, as well as other communication data (collectively "contact data"). The admission is confirmed by e-mail.
- (4) Brabender does not verify the true identity of the User. The User warrants that the details furnished by him to Brabender and to other Users, in particular in connection with his application for admission under sub-para. 3 hereof, are true and complete. The User undertakes that he shall notify Brabender promptly of all future changes to the details given.
- (5) Brabender is authorized to cancel a User’s admission or to block its access to the Marketplace where there are grounds to suspect that the User has breached these Terms and Conditions of Use. Brabender’s right for extraordinary termination for important reason remains unaffected.
- (6) All logins are individualized and may only be used by the authorized User in question. The User must keep his login and password secret and protect them against unauthorized access by third parties. In the event of any suspicion of misuse by a third party, the User shall promptly notify Brabender thereof. As soon as Brabender learns of such unauthorized use, Brabender shall block access by the User. Brabender reserves the right to change the login and password of any User; in such case, Brabender shall promptly inform the User thereof.
Sec. 4 Conclusion of contracts between Sellers and Buyers
- (1) Users are not allowed to enter into contracts directly by making use of the marketplace (see Para. 2). The Seller and the Prospective Buyer are obliged to initiate and conclude contractual relations by means of individual communication by using the contact data provided by Brabender.
- (2) Sellers have the possibility to place sales offers in the marketplace. Such submissions do not constitute a legally binding offer within the meaning of § 145 German Civil Code (BGB), but merely an invitation to submit offers ("invitatio ad offerendum"). Brabender does not verify whether the Seller has power of disposition with regard to the sales offer.
- (3) Prospective Buyers can view the currently available offers. After selecting an offer, Prospective Buyers can contact the Seller directly. By using the button "Contact now" the Prospective Buyer can send a message to the Seller. Brabender will forward the message to the Seller by e-mail. The Seller will receive the contact details of the Prospective Buyer with this step.
- (4) Actions of a logged-on User are in principle attributable to the User. Users are accountable for all declarations of intent made by them on the platform. For activities of a third person under their members' account, they shall bear liability in accordance with general legislation.
- (5) Brabender reserves the right to modify or extend the content and structure of the platform and the related User interfaces. Brabender shall inform the User of the Marketplace of any changes accordingly.
Sec. 5 Duties of Sellers
Sellers may not open any invitations to offers if
- (a) the details given are so inaccurate or incomplete that the subject-matter and price cannot be determined; the Seller is obliged to provide information on all pricing factors such as age, equipment characteristics and condition;
- (b) the opening or performance of the invitation to the sales under the legal system governing the intended contract would violate provisions of law, regulatory directives or good manners. In particular, no items may be offered where their offer or sale would infringe on third party rights; the same shall apply with respect to pornographic articles or articles posing a risk to young people, weapons, drugs, propaganda materials of anti-constitutional organizations and parties, live animals. Brabender is entitled to promptly remove any such invitation to offer from the Marketplace;
- (c) the offer, the distribution or the advertisement for an article presupposes a legally mandatory information or a proof and the legally mandatory information or the proof is not provided in a lawful manner. Where appropriate, the goods may only be given away on the basis of the legally prescribed proof.
Sec. 6 Performance of Contracts Concluded on the Marketplace
- (1) The performance of contracts concluded by the Users on the Marketplace is a matter lying within the sole responsibility of the respective Users. The obligation to ensure the fulfillment of contracts concluded between Users is the sole responsibility of the contracting parties.
- (2) In the event of any doubts, both contracting parties are bound to take appropriate steps to inform themselves of the other contracting party’s true identity and authority to dispose over the item in question.
Sec. 7 Warranty and Liability
- (1) Brabender is neither responsible for the fulfillment of the contracts between the Users entered into on the marketplace, nor does Brabender assume any liability for material or legal deficiencies in the goods and services traded.
- (2) Brabender assumes no liability for any faults or disruptions within its network for which it does not bear fault.
- (3) Brabender shall only bear liability for losses of data where such a loss would have been unavoidable even if appropriate backup measures had been taken by the User.
- (4) To the extent that there is any possibility that Users may be redirected to databases, websites, services etc. of third parties via the Marketplace, e.g. as a result of the inclusion of links or hyperlinks, pursuant to §§ 7 ff. Telemedia Act (TMG) Brabender shall not be liable either for the accessibility, existence or security of such databases or services or for the contents thereof. In particular, Brabender shall bear no liability for the legal propriety, substantive correctness, completeness, timeliness, etc. thereof.
- (5) In addition, the warranty and liability of Brabender, if any, shall be governed by the provisions of an individual contract, as stipulated in the General Terms and Conditions of Brabender GmbH & Co. KG of Sale. Furthermore, legal provisions shall apply.
Sec. 8 Third Party Content
- (1) Users are prohibited from placing content (e.g. links or frames) onto the Marketplace that violates provisions of law, regulatory requirements or good manners. Furthermore, Users are prohibited from uploading any content that infringes on third party rights, in particular any copyrights or trademark rights of third parties.
- (2) Brabender shall not be deemed to endorse or adopt any third party content as its own under any circumstances. The User hereby guarantees to Brabender and to other Users of the platform that the goods and services offered by it in the context of invitations to offer do not infringe on any copyrights, trademarks, patents or other intellectual property rights or trade secrets.
- (3) Brabender reserves the right to block third party content where such content is deemed an offense under applicable law or is discernably intended to assist in preparation for criminal acts.
- (4) The User shall indemnify and hold Brabender harmless against all claims made by third parties against Brabender based on infringements of their rights or based on violations of law arising due to offers and/or content uploaded by Users insofar the User is responsible for. The User shall also bear the incurred costs of Brabenders's legal defense in this respect, including all court fees and lawyers' fees.
Sec. 9 Futher duties of Registered Users
- (1) The User has a duty
(a) to set up and maintain the necessary data security measures throughout the entire term of the contract. The foregoing refers primarily to careful and conscientious handling of logins and passwords;
(b) to immediately notify Brabender of any technical changes occurring within his sphere where such changes are apt to adversely impact Brabender’s provision of its services or the security of its Marketplace;
(c) to assist in investigating attacks by third parties on the Marketplace, to the extent such assistance by the User is required;
(d) only to carry out transactions on the Marketplace in connection with their business operations for commercial purposes.
- (2) The User hereby undertakes that he shall refrain from any acts which would put the functionality of the Marketplace at risk or disrupt its functionality, and that he shall not access any data he is not authorized to access. In addition, the User must ensure that the information he communicates via the Marketplace and the data it uploads to the Marketplace do not contain any viruses, worms or Trojan horses. The User hereby undertakes to compensate Brabender for all losses arising out of any non-compliance with these duties, insofar he is responsible for and, in addition, to hold Brabender harmless against all claims of third parties, including the costs of legal counsel and court costs, incurred by Brabender due to the User’s failure to comply with these duties.
Sec. 10 Data Security and Declaration of Consent
- (1) Brabender’s servers are secured in line with the current technological state of the art, in particular, they are secured by firewalls; however, the User is aware that there is a risk to all Users that data transmitted through public networks may be intercepted. The foregoing applies not only to the exchange of information by email leaving the system, but also for integrated information systems and all other transmission of data. Brabender is thus unable to warrant the confidentiality of the data transmitted in connection with the User’s use of the Marketplace.
- (2) The User hereby consents to Brabender’s storage of information and data on the course of invitations to offer in anonymized format, and that Brabender is permitted to use such data exclusively in such anonymized format for its marketing purposes, e.g. to prepare statistics and presentations.
- (3) Brabender is authorized throughout the term of this Agreement to process and store the data received from the User in connection with this business relationship, taking account of the rules under the applicable copyright and data protection laws. Specifically, the User hereby grants consent as follows:
(a) Brabender may store and process the Company data, offers and User contacts provided in the course of the application for admission and relevant updates communicated by the User in respect thereof;
(b) Brabender may store the data uploaded by the User to the Marketplace and make available the data for other registered and non-registered Users in the public area of the Marketplace;
(c) Brabender may store personal data given by the User, forward these data to other Users and make them available for other registered and non-registered Users in the public area of the Marketplace;
(d) Brabender may store non-personal data concerning the contents of the offer given by the User, forward these data to other Users and make them available for other registered and non-registered Users in the public area of the Marketplace;
- (4) Any further use of personal data going beyond the use referenced above shall require the separate consent of the User. The User is entitled to revoke his consent granted in line with sub-para. 3 hereof at any time to the extent the User has consented to the use of his personal data.
- (5) At the time of admission under sec. 3 the User is deemed to warrant to Brabender and all other Users that, with respect to the data transmitted by him, he has complied with the requirements of data protection law, and he shall indemnify Brabender and hold it harmless against all claims, including claims of a public administrative law nature. In particular, the User shall itself ensure that any consent of employees which may be necessary has been obtained before the personal data of employees are uploaded to the platform in connection with setting up employee logins or in any other way.
Sec. 11 Assignment
An assignment, whether in whole or in part, to third parties of a User’s rights in connection with his membership is not permitted.
Sec. 12 Term of Membership
- (1) The membership based on these Terms and Conditions of Use is made for an unlimited term. It shall begin to run from the date of the admission by Brabender pursuant to sec. 3.
- (2) This membership may be terminated by either party upon two weeks's notice to the end of any month.
- (3) Each party shall have the right to terminate this contract for good cause without the need to adhere to a notice period.
- (4) All notices of termination must be given in writing. Termination notice by facsimile or email is deemed to meet the written form requirement.
Sec. 13 Final Provisions
- (1) The parties' relations shall be governed by the law of the Federal Republic of Germany, but excluding application of the UN Convention on Contracts for the International Sale of Goods. Exclusive legal domicile for all lawsuits is the location of the registered office of Brabender. In addition, Brabender shall be entitled to file a suit at the User's place of general jurisdiction.
- (2) In the event that individual terms of these Terms and Conditions of Use should be or become invalid or should be in conflict with requirements of law, the effectiveness of the remaining Terms and Conditions of Use shall not be affected thereby. The parties shall by mutual agreement replace the invalid term by such valid term as comes the closest in a legally valid manner to the economic intend of the invalid term. The foregoing provision shall apply mutatis mutandis in the case of contractual gaps.