Welcome to the mobile.de GmbH (hereinafter referred to as "mobile.de"), Albert-Einstein-Ring 2-6, D-14532 Kleinmachnow-Dreilinden, mailing address: Marktplatz 1, D-14532 Europarc Dreilinden.
These GTC-PrD regulate the contractual relationship between mobile.de and the users (hereinafter referred to as "participants") of the so-called Professional Domain (PrD) of the mobile.de web presence and local and mobile applications and services (the “mobile.de Service”). Use of the mobile.de Service is also subject to the Online vehicle trading code, the validity of which all participants explicitly accept when they agree to these GTC.
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. These General Terms and Conditions for the Professional Domain (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.
3. The General Terms and Conditions for the Public Domain (GTC-PuD) shall apply exclusively to the use of the Public Domain.
4. 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.
5. 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.
6. 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. mobile.de New Cars further offers the participants the option to receive requests in respect of new cars from the users. For this, the participant must register with the offered car brands with mobile.de New Cars. Additional to these Terms, the use of mobile.de New Cars is subject to the New Cars Policy.
2. All participants can put as many ads as they wish into mobile.de's databases. mobile.de provides the participants the selection from different service packages and other additional services. The use of the service packages and additional 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. mobile.de promotes the mobile.de Service and advertisements placed by the participants on its own and through third parties in particular by including the advertisements or parts thereof on other websites, in software applications, emails or print media, radio or television broadcasting campaigns. mobile.de also enables third parties to advertise their goods and services on the mobile.de Service. To this end mobile.de can also provide these third parties access to the data, information and content posted on the mobile.de Service.
The participant grants mobile.de the non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to use the content of the participant which he posts on the mobile.de Service online and offline in particular the rights of exhibition, reproduction and adaption as set out below.
The aforementioned license includes in particular
- The right to reproduce the content on any analog and digital media (e.g. CD, CD-ROM, DVD, memory cards, hard drives, video cassettes, etc.) and in any print media (e.g. periodicals, newspapers, specialized press, posters, flyers, brochures, newsletters)
- The right to combine the content with other content (text, pictures, hyperlinks, trademarks, logos, etc.) and other advertising material and to use these combinations in accordance with this agreement;
- The right to adapt the content or have the content adapted, especially to have the content reduced in size, increased in size, split up, shortened or, modified and to use these adaptations in accordance with this agreement (mobile.de will hereby not change the content of the statements made and details given by the participant in respect of the advertisement);
- The right to use and present the content for presentations e.g. Power Point presentations, both internal and during public events (e.g. exhibitions, seminars, training courses)
- The right to feed the content into databases and store it there
The participant herewith consents to having his advertisements translated for the above mentioned purposes of with regard to foreign websites or software applications.
Where the participant transmits the vehicle identification number (VIN) of advertised or administrated vehicles to mobile.de in the course of the use of the mobile.de Service (e.g. during the insertion or the automatic transmittal of an advertisement), the participant thereby grants mobile.de the right to permanently store the VINs and to use them for analysis purposes as well as for the purposes of product improvement (improvement of the quality of the advertisements, transparency, prevention of fraud) and to transmit these to third parties for the aforementioned purposes. The participant is obliged to exclusively transmit valid VINs, i.e. only in a valid format and such VINs that are allocated to the advertised or administrated vehicle. If the participant violates the above provision, mobile.de is entitled to deny any possible agreed reimbursement of costs for VIN-enquiries. mobile.de reserves all further rights.
The participant represents and warrants that he is the author and/or exclusive licensee and/or has otherwise the right and authority to grant to mobile.de the license rights as defined above.
4. The entitlement to use the mobile.de Service and its functions only exists within the scope of the current state of the technology.
5. mobile.de can link the use of the mobile.de Service or particular features of the mobile.de Service 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 fulfillment of certain security precautions.
6. 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.
7. 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 or through interfaces.
8. 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).
9. Articles 14 and 15 of these 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 authorized 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 is obligated to verify the information provided at the time of registration and after every change.
8. 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. This also applies in respect of access data of individual users of a participant in the event that the participant provides of more than one access.
9. 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.
10. The participant is strictly liable for all activities carried out using their access details, particularly for any and all activities of his individual users in the event where the participant has more than one access. If the participant is not responsible for the misuse of the 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 Service
- 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 or other content 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 violate the rights of third parties.
4. mobile.de may temporarily block a participant from using the mobile.de Service. Such a block shall entail that the participant is no longer able to log into the mobile.de Service, and that its ads on the mobile.de Service 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 Service, 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.de GmbH, Marktplatz 1 in D-14532 Europarc Dreilinden or by email to: firstname.lastname@example.org
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. The total sum shown in the invoice shall be due for payment immediately after receipt of the invoice.
2. The monthly participation fee shall be calculated in line with the scaled price model and the selected service model as set out in the current valid price list. A price scale package consists of the insertion fee and the tier price. The level of the 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. Any additional ad exceeding the maximum number of ads included in the largest scaled price model will be charged separately as set out in the current valid price list. The service models offered by mobile.de include additional service quotas to be used by the participants in the account period.
3. The participant has to pay mobile.de additional fees for any additional services. These services may also be subscribed through mobile.de’s service partners (i.e. tool providers, data service providers); the fees will be invoices by mobile.de. Scope of service, specific conditions and the level of each fee shall be based on the current valid price list.
4. In case an advertisement is deleted according to Article 4 of these GTC-PrD due to a circumstance that the participant is responsible for, a reimbursement of the insertion fee or a credit towards the service quota does not take place, unless the participant can provide evidence that no damage or a significantly lower damage has occurred. The deleted advertisement will count into the monthly participation fee according to Article 5 para. 2.
5. The settlement of the fees that a participant is to pay is generally done via SEPA direct debit. For this purpose the participant gives mobile.de a respective SEPA direct debit mandate during registration. A different settlement method requires a separate agreement between mobile.de and the participant.
6. For the settlement via SEPA direct debit the total stated in the invoice shall be charged from the participant’s bank account once it is due. The total amount due and settlement date will be pre-notified at a minimum of five (5) days prior the settlement date; the SEPA pre-notification period is therefore reduced to five days. The participant must ensure that his bank account has a sufficient balance at all times.
7. The participant must bear all costs that incur if the collection via direct debit fails due to a reason that the participant is responsible for. The participant has the right to claim that these costs did not incur at all or not in the specified amount..
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 may offer changes to these GTC with two weeks’ notice. The changed terms shall be sent in writing or by email at the latest two weeks before they come into effect. The change offer shall be deemed to have been accepted unless the offer has 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 change offer is 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 for motor vehicles
- 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. mobile.de may tie the insertion of vehicle listings (particularly new vehicles) to additional requirements.
3. The participant undertakes to provide complete and correct information with regard to the vehicle (especially concerning the registration date and mileage), the price, 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.
4. When placing the ad, the participant must disclose the vehicle’s condition, especially if the vehicle is significantly damaged and these damages have not been repaired. The participant shall do this by flagging the vehicle by selecting the appropriate options 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. This especially encompasses vehicles meant to be exploited (“Bastlerfahrzeuge”). 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. Such listed vehicles may only be found if the respective search option is selected in the search screen.
5. Vehicles which are solely offered to domestic or foreign business buyers must be designated accordingly by using the functionality “For business, Ex-/Import”,
6. It is not permitted to advertise more than one vehicle, either separately or as a package, per ad.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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).
12. 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.
13. It is generally not permitted to include links to external websites, other services 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.).
14. Specifying service telephone numbers, particularly (0)900 and (0)180 numbers, which, when dialed, result in higher telephone charges for callers, is not permitted.
Article 8 Privacy
Article 9 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 an interface or other means intended by mobile.de for the automatic transmittal to put their entire vehicle inventory or individual ads onto the mobile.de Service, 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. The participant is further obliged to effect such transmittal – also where this is done by a service provider of the participant – only in such a format as currently published by mobile.de for such a transmittal. mobile.de is not obliged to publish and show ads that are not compliant with the current format; they will however count as placed ads in the sense of Article 5 para. 2.
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 10 Database Updates, Vehicle Search, 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. For a more convenient searchability of vehicles with specific equipment features, mobile.de may display the vehicle equipment specified in text in the field “Description” by the participants as a selectable equipment feature in the detailed search.
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".
4. Each participant is responsible to archive information publically available through the mobile.de Service needed for the purposes of keeping proof, accounting or other purposes, on independent storage media.
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 Service. Bypassing the search screens to search for vehicles, in particular by using search tool which are not authorised by mobile.de and access 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 compromising the mobile.de Service 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 Service.
3. The search in the mobile.de Service is provided to the users for a targeted and quick discovery of offered vehicles. In order to provide the desired results to the users through suitable search words, the text contents of an ad must clearly refer back to the offered vehicle. Participants shall therefore not be permitted to falsify or manipulate the results of the vehicle search on the mobile.de Service by making or using incorrect or misleading inputs or terms, by placing ads in an incorrect category, by technical activities or by any other misuse of the functionalities of the mobile.de Service. Particularly prohibited is the keyword-spamming. Keyword-spamming means the use of terms that do not or only partly describe the actual vehicle but are intended to attract users to the ad. The same applies for hidden HTML-texts and the illegal use of brand names or trademarks.
Article 12 Dealer Rating System
1. mobile.de provides a dealer rating system. The rating system enables users of mobile.de to rate the participants. Participants also have the option to reply to ratings of users of mobile.de. The rating system is an integral part of the mobile.de Service. The ratings of the participant are displayed in connection with the ads and the web presence of the respective seller in the scope of the mobile.de Service; an option for deactivation does not exist. Subject to the selected service model, mobile.de may offer the participant the integration of the received ratings in the participant's online presence. The use of the rating system is subject to the following provisions as well as the Dealer Rating Policy.
2. The participant must not misuse the rating system. Inappropriate uses include where
- the participant positively influences his rating results or those of other participants by way of own ratings or ratings on order, distribution of false information, the granting of special conditions or other incentives or the threatening or comparable disturbance of users of mobile.de,
- the participant negatively influences the rating results of other participants by way of own ratings or ratings on order, distribution of false information, the granting of special conditions or other incentives or the threatening or comparable disturbance of users of mobile.de,
- the participant takes part in a violation of the provisions laid down in the Dealer Rating Policy.
3. With the rating system mobile.de only provides the technical surroundings for a transmittal of information (ratings and replies). mobile.de does not influence the content of the ratings.
4. If a participant and/or a user is of the opinion that a rating violates provisions laid down in the statutory law, these GTC-PrD or the Dealer Rating Policy, the participant or the user has the right to inform mobile.de about this. mobile.de will then review the complaint and, in case of a violation, delete the affected contents of the rating. The same shall apply where the reply of a participant violates provisions in the statutory law, these GTC-PrD or the Dealer Rating Policy. Where the violation affects only part of a rating or reply, only the respective affected part shall be deleted and marked accordingly; the rest of the rating or the answer shall remain.
5. In the case of a complaint against the content of a rating the participant is obliged to cooperate in respect of a clarification of the facts to the best of his ability. For this purpose the participant shall answer enquiries from mobile.de in respect of the facts of the case with in five working days via email or in writing (as requested by mobile.de).
6. When a participant wishes to request a rating from a customer by way of a rating request sent by email through mobile.de, this is only permitted subject to an express consent of the customer to the receipt of such rating request from mobile.de and to the transfer of the email address of the customer to mobile.de for the purpose of sending the rating request, in compliance with the statutory provisions and obtained by the participant from the respective customer in advance. Where mobile.de is held responsible by a third party due to a lack of consent, the participant is obliged to indemnify mobile.de in this respect in accordance with Article 13.
7. mobile.de has the right to advertise the rating system as part of the mobile.de Service itself and through third parties in accordance with the provisions in Article 2 para. 3. The participant is not entitled to include the contents of the rating system (e.g. the rating results) outside of the mobile.de Service, unless mobile.de has expressly consented to such an inclusion in writing or by other means (e.g. subject to a selected service model). Without the respective consent by mobile.de the participant is in particular not entitled to include the contents into other websites (e.g. his homepage) or into other advertising material, or to include references to the rating system or its content for example for the purpose of increasing the trust in his offers. In case of a given consent the participant shall comply with any additional provisions provided as well as with applicable law.
Article 13 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 Service 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 14 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 15 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. Essential contractual obligations are such obligations the fulfillment of which makes the due performance of the contract possible in the first place, on the compliance with which the participant may normally rely and the breach of which jeopardizes the achievement of the contractual purpose.
2. Vis-à-vis consumers, mobile.de shall be held liable only for intentional and grossly negligent conduct. In case of essential contractual obligations (as defined in the previous paragraph) 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 16 Copyright and Usage Rights
Any and all data, information, company logos, texts, programs and images of advertisements and other contents (e.g. ratings and replies in the scope of the rating system) placed on the mobile.de Service can be subject to copyright laws. The modification, further processing and usage by third parties in media of any kind is not permitted. The rights of the respective author and of the participant shall remain unaffected hereby. The participant may continue to freely dispose of its own data and information.
Article 17 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 in connection with the user agreement including those GTC-PrD, 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 18 Exercise of rights by third party, transfer of contract
1. mobile.de may make use of other eBay companies when performing the rights and obligations under this user agreement.
2. mobile.de has the right to fully or partially transfer the contract to a third party with a notification period of four weeks. In this case a participant may terminate the contract.
Article 19 Severability Clause
The invalidity or ineffectiveness of individual provisions of the present GTC-PrD in whole or in part shall not affect the validity of the remaining provisions. Such invalid or ineffective provisions of these GTC-PrD shall be replaced by the statutory law. Where such statutory law for the individual case does not apply (regulatory gap) or leads to an unacceptable result, the parties shall enter into negotiations in order to agree legally effective provisions which come as close as possible in economic terms to said invalid or ineffective provisions.