General Terms and Conditions Elferspot Media GmbH
Elferspot Media GmbH, Peter-Behrens-Platz 9/Stiege B/2. Stock, Linz, Austria in the following “Contractor”, has specialized in the trade of products of the brand “Porsche”. It also offers its customers goods online.
The customers are usually consumers within the meaning of § 1 para. 1 no. 2 KSchG, but also entrepreneurs within the meaning of § 1 para. 1 no. 1 KSchG.
For the purpose of better readability, no gender-specific differentiation is made. This is done without the intention of discrimination.
2. Scope of Application
All business relations between the contractor and the customer are subject to these terms and conditions in the version valid at the time of the conclusion of the business transaction.
The contractor ships products to customers worldwide. This contract is concluded in German language.
3. Conditions of Use
In order to be able to purchase services and goods from the contractor electronically, customers may have to register in the online store. The customer is obliged to provide true and complete information in the course of the business relationship and to keep his data up to date at all times. He must treat his data confidentially and protect it from unauthorized access. Should the customer suspect misuse by third parties, he must inform the contractor immediately.
The customer has to refrain from all measures which could endanger or impair the technical provision of the online store (including cyber attacks). Such behavior will be legally prosecuted.
4. Offer and Contract conclusion
By clicking on the button “Order subject to payment” the customer submits a binding offer to conclude a contract with the contractor. The contractor is not obliged to accept this offer. Before finally sending an order, the customer has the opportunity to check it for possible errors and to correct them if necessary.
Contractor shall confirm the receipt of an offer to Customer by e-mail to the address provided by Customer (“Order Confirmation”). This e-mail does not constitute an acceptance of the offer from the Contractor. Contractor may accept offers by confirming the purchase of the offer in another e-mail (“Order Confirmation”) or by sending the ordered goods or services.
The products will be sent within the European Economic Area (“EEA”) within three to four working days. The forwarding into countries outside of the EWR takes place within ten days. If the contractor is prevented due to higher force (e.g. natural disasters or epidemic) or supply bottlenecks of third suppliers from the adherence to the delivery period, the contractor will inform the customer as soon as possible about it. In these cases, the delivery period shall be extended by the duration of the continuation of the events.
5. Terms of Payment, Delivery and shipping conditions
The prices quoted in the store are in EUR.
All prices in the online store include the legal taxes. Our deliveries to third countries are tax-free export deliveries according to the value added tax law. If the delivery is made to a non-EU country, further duties, taxes or fees may have to be paid by the customer, but not to the supplier, but to the responsible customs or tax authorities. It is recommended that the customer inquire about the details with the customs or tax authorities before ordering.
In case of doubt, the sales tax is not yet included. The amounts stated at the time of ordering shall apply in each case. The Contractor shall inform the Customer again about the prices, taxes and shipping costs in the order summary before the order is completed.
The payment methods accepted by the contractor are listed in the web store.
Payment is made by bank transfer to the account indicated by the Contractor. Whether the payment is made monthly (continuing obligation) or once (target obligation) depends on the agreement between the contractor and the customer.
The contractor’s claims become due upon presentation of the invoice. If the claims are not paid within seven days, the contractor will demand 4% per year of statutory default interest from the due date. In the event of default, the customer undertakes to reimburse the contractor for the reminder and collection expenses incurred by the contractor, insofar as they are necessary for appropriate legal prosecution. If the customer is an entrepreneur, the amount of the default interest is based on § 456 UGB.
Goods are shipped to the delivery address provided by the customer, unless otherwise agreed. When processing the transaction, the delivery address specified in the seller’s order processing is decisive.
If the delivery of the goods fails for reasons for which the customer is responsible, the customer shall bear the reasonable costs incurred by the seller as a result. This does not apply with regard to the costs for the return if the customer effectively exercises his right of withdrawal. In the event that the customer effectively exercises its right of revocation, the provision made in the seller’s revocation instructions shall apply to the costs of returning the goods.
6. Right of Withdrawal according to FAGG
This right of withdrawal applies only to consumers.
The customer has the right to revoke his contractual declaration or an already concluded contract within fourteen days without giving reasons if the contract was concluded electronically. The revocation period is fourteen days from the day on which the consumer or a third party named by the consumer and not acting as carrier acquires possession of the goods.
In order to exercise the right of withdrawal, the customer must inform contractors by means of a clear statement (e.g. a letter or e-mail sent by post) of the decision to withdraw from this contract. Customer may use the model revocation form for this purpose, which is set out in Annex I B of the Distance and Away Transactions Act (https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20008847) and can also be downloaded from Contractor’s website.
Notice of revocation shall be sent to the following address:
Elferspot Media GmbH
Peter-Behrens-Platz 9, staircase B, 2nd floor
e-mail address: email@example.com
In order to comply with the cancellation period, it is sufficient for the customer to send the notification of the exercise of the right of cancellation before the end of the cancellation period. If this option is exercised, the customer will be sent a confirmation of receipt of such revocation. If Customer revokes the agreement or an agreement that has already been concluded, Contractor shall immediately and at the latest within fourteen days of the date on which Contractor receives the notice of revocation of this Agreement, reimburse all payments already received from Customer, including delivery costs (with the exception of additional costs resulting from the fact that Customer has chosen a different method of delivery from the cheap standard delivery offered by Contractor). For the repayment, Contractor shall use the same means of payment that Customer used for the original transaction. The direct costs of the return shipment shall be borne by Customer. If a loss in value of a product is due to the fact that the product has been used in a way that is not necessary to check its quality, Customer shall be liable for this loss in value.
Elferspot Media GmbH
4113 St. Martin
7. Breaches of Performance
The contractor is not responsible if he cannot fulfil his obligations from the contractual relationship due to circumstances for which he or a vicarious agent is not responsible. This applies, among other things, to the lack of availability of energy or telecommunication services as well as force majeure.
8. Retention of Title
All goods delivered by the contractor remain his property until full payment has been made. A sale of the goods from the customer to a third party before they have been paid for in full requires the prior consent of the contractor.
9. Disclaimer of Liability for external Contents
The contractor is not liable for external information that is opened by means of an electronic reference (link). As soon as the contractor becomes aware or aware that illegal information is being linked, the contractor will immediately delete this link.
10. Liability for Damages and Warranty
The liability of the contractor for slight negligence is excluded. The liability is limited to the amount of damages typically foreseeable at the time of conclusion of the contract.
This limitation of liability shall not apply with regard to personal injury or for damages under the Product Liability Act.
The contractor is not liable to companies for loss of profit.
Warranty claims can be reduced to one year, provided this is negotiated in detail (§ 9 para. 1 KSchG). Otherwise, the statutory warranty period of two years shall apply.
11. Data Protection and Protection of Business and Trade Secrets
The passing on of data and information to the respective required business partners is permitted to the extent necessary for the fulfilment of the contractual relationship. Otherwise, the contracting parties are obliged to maintain secrecy about the circumstances and data in connection with the other party, which they become aware of as a result of the present business relationship, and in particular to observe data secrecy. These obligations to data and business secrecy also apply beyond the contractual relationship.
12. Involvement of Subcontractors
The contractor may use subcontractors for the performance of his obligations under this contract.
13. Place of Jurisdiction and applicable Law
This contractual relationship is based on Austrian law. However, this choice of law must not lead to the consumer being deprived of the protection afforded to him by the mandatory rules of his country of residence (cf. Art. 6 para. 2 Rome I Regulation). The application of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention) as well as of referral norms is excluded. Exclusive place of jurisdiction is Linz. If the customer is a consumer and has his residence or his usual place of abode or is employed in Austria, the customer may only be sued in the courts in whose district his residence, his usual place of abode or his place of employment is located.
Reference is made to the possibility of a dispute resolution through an online dispute resolution platform (Art 14 para. 1 S 1 ODR-VO) (https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=DE) and national consumer arbitration boards.
14. Duration of the contractual Relationship
The contractual relationship with the customer begins with the conclusion of the contract. If a one-time service is owed (target obligation), the contractual relationship ends with the complete provision of the mutually owed services. If a continuing obligation is owed, it can be deleted without giving reasons by giving a fortnight’s notice to the last day of a month. The right to extraordinary termination at any time remains unaffected.
15. General Information
- Elferspot Media GmbH operates databases accessible via the Internet, in particular the online marketplace “Elferspot”, which offers for sale or advertises motor vehicles of the brand “Porsche” or corresponding replicas by any natural or legal person or partnership (“User”) with unlimited legal capacity (“User”). The advertisements can be searched using the search criteria provided by Elferspot Media GmbH.
- Elferspot Media GmbH exclusively provides the technical requirements for the transmission of the advertisements placed by the users. Elferspot Media GmbH has no influence on the content of the advertisements.
- Each user is solely responsible for the content of his advertisements. Elferspot Media GmbH neither checks the correctness nor the completeness of the contents and does not assume any liability for their correctness and completeness. Elferspot Media GmbH excludes any warranty and liability that the advertisements comply with the legal requirements. Furthermore, Elferspot Media GmbH excludes any warranty and liability which may result from the fact that purchase contracts initiated or concluded on the basis of the “Elferspot” online marketplace advertisements are not enforceable under the national law of a state affected or which may otherwise lead to legal or economic disadvantages for one or both parties to the purchase contract.
- Elferspot Media GmbH is not involved in the relationship between the offerer and the prospective buyer, neither as an intermediary nor as a party to the contract nor as a representative of either party to the contract. In particular Elferspot Media GmbH is not itself the provider or seller of the advertised vehicles. Contracts initiated as a result of an advertisement placed via the online marketplace will be concluded by Elferspot Media GmbH without participation. Elferspot Media GmbH is also not involved in the fulfillment of the contracts.
- The following languages are available for the conclusion of contracts: German, English.
16. Registration and User Account
- Certain functionalities of the online marketplace are only available after prior registration. The registration is free of charge. Upon registration a contract for the use of the online marketplace “Elferspot” is concluded between Elferspot Media GmbH and the respective user. There is no right to the conclusion of a contract of use.
- Registration is only permitted to legal entities, partnerships and natural persons who have unlimited legal capacity. In particular minors as defined by the law of the Federal Republic of Germany may not register with “Elferspot”.
- Each user may only register once. Within the scope of the registration and the current contractual relationship Elferspot Media GmbH is entitled to demand from users who act as entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) (“Dealers” or “Entrepreneurs”) the submission of an extract from the commercial register and/or trade register (if available) or other documents and information that appear necessary or appropriate for the registration or maintenance of the contractual relationship.
- Registered users must ensure that the data they provide is up to date. Personal access data must be kept protected from access by third parties and treated confidentially. Should third parties nevertheless gain knowledge of the access data, the user shall immediately notify Elferspot Media GmbH and change his access data.
- Elferspot Media GmbH provides an input mask for advertisements, activates the advertisements placed on it and enables the retrieval of the advertisements via the online marketplace www.elferspot.com. The display and the range of functions can differ depending on the type of access (desktop or cell phone application – “App” -).
- Elferspot Media GmbH also provides additional services, the respective service content of which is described on the online marketplace. Additional services subject to a fee will always be marked as such by Elferspot Media GmbH. In addition Elferspot Media GmbH arranges certain third party services (marked as such on the online marketplace). Elferspot Media GmbH does not itself become a contractual partner and does not provide any services.
- Elferspot Media GmbH advertises the online marketplace “www.elferspot.com” and/or the advertisements placed by the users itself and by third parties, for example by integrating the advertisements or excerpts thereof on its own or third-party websites, in social media (social media such as Facebook, Pinterest or Instagram), in e-mails, at trade fairs or through print, radio and television marketing campaigns.
- Elferspot Media GmbH is entitled to provide third parties with access to the data, information and content published via the Elferspot online marketplace.
- The right to use the online marketplace Elfersport exists only within the scope of the state of the art.
- Elferspot Media GmbH reserves the right to temporarily restrict access to the online marketplace Elferspot for important or technical reasons. An important reason is, for example, if a restriction is necessary with regard to capacity limits, the security or integrity of the servers or for the implementation of technical measures, in particular for the proper provision of services. A technical reason is, for example, unforeseen system failures.
18. Posting and Renewal of Advertisements
- Every user can place advertisements via the corresponding input mask. Before the binding submission of an advertisement, the user has the opportunity to check his data and correct input errors via the “Back” button or the navigation within the input mask. Only after selecting (clicking) the correspondingly labeled button (e.g. “advertise” or “pay to advertise”) does the User submit a binding offer to conclude the corresponding contract. Elferspot Media GmbH accepts such an offer by activating the advertisement on the online marketplace and sending the user a confirmation by e-mail. With this confirmation the contract for the placement of the advertisement is concluded.
- Advertisements placed by consumers are available for 90 days, advertisements placed by dealers (at least) for 30 days via the database on the online marketplace, as long as the publication of the advertisement is not terminated by the respective user. The day on which the advertisement is published shall not be included in the calculation of the period.
- During and/or after the termination of an advertisement, users have the opportunity to mark successfully sold vehicles (or the underlying advertisements) as “sold”. The advertisements marked accordingly can still be accessed via the online marketplace and viewed by the users of the online marketplace and thus serve in particular as a reference for the seller.
- The online marketplace is a specialized marketplace for the vehicles of the “Porsche” brand or corresponding replicas preset in its own database. Other vehicles cannot be advertised via the online marketplace. If a vehicle for sale has not yet been created in the database, the inclusion of the vehicle can be requested from Elferspot Media GmbH. Elferspot Media GmbH will process the request within a reasonable period of time and – provided that in the opinion of Elferspot Media GmbH the vehicle falls under the vehicles defined for the marketplace – will then immediately release the vehicle for publication.
19. Requirements for the Content of the Advertisements
- The advertisements must be correct in form and content at all times. In particular, defects of the vehicle (hidden and/or overt) and other circumstances that reduce the value not only insignificantly may not be concealed. Also, advertisements with incorrect price information, e.g. price information without sales tax or value added tax (VAT) for vehicles subject to regular taxation or the mention of down payments or instalments in the price field for financing offers are not permitted.
- If a vehicle posted is a replica, this must be clearly indicated, in particular by selecting the appropriate category in the input mask and by the content of the text posted. Furthermore, the user’s details as well as the uploaded pictures of the replica may not infringe the rights of third parties, in particular any existing trademark and/or design rights. Correctly categorized replicas are marked as such by Elferspot Media GmbH when displayed.
- It is not permitted to offer several vehicles individually or as a package within an advertisement. It is also not permitted to advertise the same vehicle several times at the same time in one of the offered upper categories of the online marketplace. In addition, purchase advertisements or search orders as well as advertisements which aim to advertise another product or service are not permitted. The indication of service telephone numbers whose dialing is directly or indirectly connected with special charges for the caller, in particular numbers with the area code “0900″” is also inadmissible. Finally, it is not permitted to provide links to external websites, unless this is mandatory by law.
- If a user places advertisements on the online marketplace via a data service provider commissioned by him, the user is obliged to check the transmitted data for completeness and correctness. The user shall remain responsible for all advertisements placed via his user account, regardless of whether they were placed by a third party commissioned/authorized by him.
21. Release and Limitation of Liability
- The user indemnifies Elferspot Media GmbH from all claims that third parties may assert against Elferspot Media GmbH due to the violation of their rights by his advertisement or due to the user’s other use of the online marketplace Elferspot. In this context the user also assumes the costs of the necessary legal defense by Elferspot Media GmbH including all court costs and legal and/or patent attorney fees. This does not apply if and insofar as the user is not responsible for the infringement.
- Elferspot Media GmbH shall be liable for damages vis-à-vis entrepreneurs, except in case of violation of essential contractual obligations, only if and to the extent that Elferspot Media GmbH, its legal representatives, executives or other vicarious agents are guilty of intent or gross negligence. In case of violation of essential contractual obligations Elferspot Media GmbH is liable for any culpable conduct of its legal representatives, executives or other vicarious agents.
- With respect to consumers Elferspot Media GmbH is only liable for intent and gross negligence. However, in case of breach of essential contractual obligations, debtor’s delay or impossibility of performance for which Elferspot Media GmbH is responsible Elferspot Media GmbH is liable for any culpable conduct of its legal representatives, executives or other vicarious agents.
- Except in cases of intent or gross negligence of legal representatives, executives or other vicarious agents, the liability of Elferspot Media GmbH is limited to the amount of damages typically foreseeable at the time of conclusion of the contract.
- Liability for compensation for indirect damages, in particular for loss of profit, shall only exist in case of intent or gross negligence of legal representatives, executives or other vicarious agents of Elferspot Media GmbH.
- The aforementioned exclusions and limitations of liability towards entrepreneurs or consumers do not apply in the case of the assumption of explicit guarantees by Elferspot Media GmbH and for damages resulting from injury to life, body or health as well as in the case of mandatory legal regulations.
- The registration is free of charge. For the placement and renewal of an advertisement as well as for the additional services available via the online marketplace (and marked as such) which are subject to a charge, the flat fee specified in the price list applicable at the time of placement or renewal of the advertisement or the commissioning of the additional service shall apply. Different prices apply for consumers and dealers.
- For consumers, the remuneration shall become due for payment upon conclusion of the contract for the publication of the respective advertisement or the respective additional service. For entrepreneurs or entrepreneurial traders the remuneration becomes due for payment after receipt of an invoice from Elferspot Media GmbH for the remuneration accrued in the respective month.
- The payment methods available to users are credit card direct debit, PayPal or SEPA direct debit. If the collection fails the user has to reimburse Elferspot Media GmbH for any additional costs incurred, unless the user is not responsible for the failure or can prove that no damage at all or a considerably lower amount of damage has occurred. The invoice will be sent exclusively by e-mail.
- In case of default of payment Elferspot Media GmbH is entitled to withhold its own service and to block the advertisement of the user concerned.
23 General obligations of the Users / intellectual Property
- Search requests may only be made via the search mask offered on the online marketplace. It is not permitted to search by bypassing the search masks, in particular by using search software that accesses the website or the databases. The user also undertakes to refrain from electronic attacks of any kind on the online marketplace. Electronic attacks include, in particular, attempts to overcome, circumvent or otherwise override the security mechanisms of the online marketplace or the use of computer programs for the automatic reading of data, the application and/or distribution of viruses, worms, Trojan horses, brute force attacks, spam.
- The user acknowledges that all rights existing on the online marketplace, including all intellectual property rights such as copyrights, trademarks, patents and all other property rights, are exclusively and unrestrictedly owned by Elferspot Media GmbH or third party licensors of Elferspot Media GmbH.
- The user may not reproduce, modify, decompile, create derivative works, reverse engineer, disassemble, translate or in any other way attempt to convert the online marketplace into source code. However, this shall only apply to the extent that such action is not expressly permitted under Sections 69d and 69e of the German Copyright Act.
- Users can delete their user account at any time and thereby terminate the underlying user contract. Current (published) advertisements of the User shall be terminated immediately in the event of termination by the User himself. There will be no refund of the remuneration paid for the placement or renewal of the advertisement if the User himself terminates the contract.
- Upon termination of the contract of use the advertisements marked as “sold” will be anonymized by Elferspot Media GmbH by removing all references to the identity of the respective provider in the advertisements. The advertisements will remain publicly accessible via the online marketplace.
If any part of these terms and conditions should be invalid, the validity of the remaining terms and conditions shall not be affected thereby. The invalid provision shall be replaced by such valid provision which comes as close as possible to the economic intent of both parties to the agreement.
Amendments to these terms and conditions as well as supplements to these terms and conditions are only valid if they are agreed and signed in writing.
The contractor recommends that the customer saves these terms and conditions permanently.
Imprint according to § 5 ECG, § 25 MedienG and § 14 UGB:
Elferspot Media GmbH
Managing Director: Markus Klimesch Peter-Behrens-Platz 9, Staircase B, 2nd floor 4020 Linz, Austria firstname.lastname@example.org
Regional Court Linz UID ATU74427756
Member of the Austrian Federal Economic Chamber
Leaf line according to § 25 Abs 5 MedienG: Reporting on topics for fans of the “Porsche” brand.
Author: Lawyer Dr. Tobias Tretzmüller, LL.M., www.digital-recht.at.
A copy of these terms and conditions, or even parts thereof, requires the consent of the author