1. Preamble
Date: 11.7.2024
- Elferspot Media GmbH, Hauptstraße 6, 3rd floor, 4040 Linz, Austria, FN 512713s, is the operator (hereinafter referred to as “OPERATOR” or the “OPERATOR”) of the platform “Elferspot” (hereinafter referred to as “PLATFORM”).
- The PLATFORM serves to enable persons who wish to sell goods (hereinafter referred to as “SELLER”) to place advertisements on the PLATFORM for a limited period of time. Persons who purchase goods from the SELLER or contact the SELLER are referred to as BUYERS.
- BUYERS and SELLERS are hereinafter referred to collectively as USERS.
- For reasons of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination. All genders are addressed equally.
- It is expressly pointed out that the OPERATOR acts exclusively as an intermediary between the USERS. It is not a party to any legal transaction concluded between the USERS. Accordingly, the OPERATOR shall not be liable for any service disruptions in the course of this legal transaction.
2. Scope of application
2.1 These TERMS OF USE define and govern the procurement, use and exploitation of the PLATFORM as well as the associated business and administrative activities if the USER uses the PLATFORM free of charge.
2.2 However, if the USER wishes to use the PLATFORM for commercial advertising purposes, the General Terms and Conditions to be concluded separately shall apply.
2.3 The TERMS OF USE shall apply upon use of the PLATFORM.
3. Conditions of use
3.1 The USER is obliged to provide truthful, comprehensive and correct information within the scope of the business relationship and to keep his specific information up to date at all times. The USER must treat all data confidentially (this applies in particular to log-in data and passwords). If the USER suspects misuse of the PLATFORM by third parties, he must inform the OPERATOR immediately.
3.2 The USER must refrain from all actions that could jeopardize or impair the technical functionality of the PLATFORM (including cyber attacks). Such behavior will be prosecuted under criminal law.
3.3 The USER is responsible for setting up the necessary infrastructure to ensure the proper operation of the PLATFORM. The OPERATOR is not obliged to provide any further advice or recommendations in this regard.
3.4 An evaluation of the USER is only permissible if there has actually been business contact with the USER.
4. Rules of conduct and prohibition of text and data mining
4.1 The USER undertakes not to post any content on the PLATFORM that violates applicable law or morality due to its content, form or design or in any other way. In particular, the USER undertakes to comply with applicable law (e.g. criminal law, competition law and youth protection law) when uploading content and not to violate any third-party rights (e.g. name, trademark, copyright, image and data protection rights) or confidentiality obligations.
4.2 In particular, but not exclusively, the USER is not permitted to publish or support content that
- promote racism
- promote terrorism, xenophobia and incitement to hatred
- glorification of violence and extremism of any kind
- incitement and incitement to commit criminal offenses and administrative offenses, threats to life, limb or property
- Incitement against persons or companies
- statements that violate personality rights, insults, slander and defamation to the detriment of users and third parties
- Violations of the law of fair dealing
- content that violates copyright law or infringes other intellectual property rights
- promotes sexual harassment of users and third parties
- contains offensive, sexist, obscene, vulgar, abhorrent or disgusting material or language
- depicts, relates to or contains pornography.
4.3 It is also a violation of personal rights and therefore not permitted to remove the anonymity of other USERS or to publish information of other USERS from private messages, e-mails or chats that are not intended for the public. USERS may not disclose any information in their posts or in any other way that could reveal the identity of another user or that the USER has received from other users exclusively in private messages, e-mails or chats.
4.4 Scraping (web scraping, crawling) of information published on the PLATFORM is prohibited and requires the express consent of the OPERATOR. The OPERATOR therefore expressly declares within the meaning of Section 42h (6) UrhG that reproduction of the content on the website via text and data mining is prohibited.
5. Specification for advertisements
5.1 The SELLER is obliged to provide the information required for the purpose of advertising on the PLATFORM.
5.2 The SELLER shall ensure that the service offered by him can be accepted and claimed by the BUYER in good time.
5.3 Published photos must be directly related to the advertised product or service and may not be used in a misleading manner.
5.4 If a posted vehicle 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 posted text. Furthermore, the information provided by the USER and the images of the replica must not infringe the rights of third parties, in particular any existing trademark and/or design rights. Correctly categorized replicas shall be marked as such by the OPERATOR when they are displayed.
5.5 It is not permitted to offer several vehicles individually or as a package within one advertisement. It is also not permitted to advertise the same vehicle several times at the same time in one of the upper categories offered on the PLATFORM. In addition, purchase advertisements or search orders as well as advertisements that aim to advertise another product or service are not permitted. The indication of service telephone numbers whose dialing is directly or indirectly associated with special charges for the caller, in particular numbers with the area code “0900”, is also prohibited. Finally, it is not permitted to provide links to external websites unless these are required by law.
6. Exploitation rights
6.1 The OPERATOR grants the USER the non-exclusive license to use the PLATFORM for the purpose of selling and purchasing goods or services, limited in terms of time, content and location. The exclusive right to use and exploit the PLATFORM shall in any case remain with the OPERATOR.
6.2 The USER is permitted to use the PLATFORM exclusively for the purposes intended by the OPERATOR.
6.3 Markings on the PLATFORM, in particular copyright notices, trademarks, serial numbers or similar, may not be removed, altered or made unrecognizable.
7. Right to publish information
7.1 The OPERATOR shall be entitled to utilize the information published on the PLATFORM (in particular ratings) in any conceivable manner without, however, infringing the USER’s confidentiality interests.
7.2 The USER grants the OPERATOR an irrevocable, non-exclusive right to use the posted content free of charge, unlimited in terms of space, time and content and transferable to third parties. The OPERATOR is entitled to use, edit and exploit the published content at any time. This includes in particular the right of reproduction, the right of distribution and the right of public reproduction, in particular the right of making available to the public. The USER waives the right to be named as the author.
8. Right to discontinuation
8.1 Since no paid version is owed, the OPERATOR is in no way obliged to make the PLATFORM available. The OPERATOR reserves the right to discontinue the PLATFORM without prior notice. The publication of the source code, user manuals or support is expressly not owed.
9. Limitation of liability and warranty
9.1 Since no paid version is owed, all warranty and liability claims against the OPERATOR are excluded in full. This shall not apply in the event of intentional damage.
9.2 Liability on the part of the OPERATOR for damage caused by slight negligence is excluded. The OPERATOR shall not be liable for loss of profit.
9.3 It is expressly pointed out that the OPERATOR acts exclusively as an intermediary between the USERS. It is not a party to any legal transaction concluded between the USERS. Accordingly, the OPERATOR shall not be liable for any defaults in performance in the course of this legal transaction.
10. Indemnification
10.1 In the event that claims are asserted against the OPERATOR by a third party due to the unlawful use of the PLATFORM by the USER, the USER shall be obliged to indemnify and hold the OPERATOR harmless.
11. Amendment of the Terms of Use
11.1 The OPERATOR is entitled to amend these TERMS OF USE at any time. The OPERATOR shall inform the USER of such changes by sending the amended TERMS OF USE to the contact details last provided by the USER. The USER has the right to object to the changes. If the USER does not object within 21 days of notification of the changes, tacit consent to the amended TERMS OF USE shall be assumed. The OPERATOR shall point out the legal consequences of a failure to object. With regard to consumers, a deterioration of the legal situation is only possible if the consumer expressly agrees.
12. Data protection and protection of business and trade secrets
12.1 The disclosure of data and information to a specific business partner is only permitted to the extent that this is necessary to fulfill contractual obligations, legal obligations and to safeguard legitimate interests (see Art. 6 (1) lit b, c and lit f GDPR).
12.2 The OPERATOR points out that USER data may be processed for advertising purposes on the basis of legitimate interests (Art. 6 (1) (f) GDPR). The USER may object to this form of data processing at any time (Art 21 (2) GDPR).
12.3 The OPERATOR draws attention to the fact that there may be legal obligations to provide information to USERS or authorities.
13. Ranking
13.1 The placement of SELLERS on the PLATFORM is based on the following criteria: According to the topicality of the advertisement and the preferences of the USER.
14. Refusal of access to the PLATFORM
14.1 If the OPERATOR has reasonable grounds to suspect that the USER is using the PLATFORM in an unlawful or inappropriate manner, the OPERATOR shall be entitled to block access to the PLATFORM immediately and without prior notice. The possibility of further legal action remains unaffected by such blocking.
15. Notification of unlawful content (notification and redress procedure)
15.1 All persons using the PLATFORM have the opportunity to report illegal content to the OPERATOR. Such a report requires a sufficiently reasoned explanation as to why the person in question believes the content to be illegal; where the questionable content is located; the name and e-mail address of the person making the report; and a declaration that the report is made in good faith and that the information is complete and correct.
15.2 The OPERATOR shall immediately send an acknowledgement of receipt and a decision regarding the reported information, indicating the possible legal remedies. It shall also give reasons for its decision.
15.3 The OPERATOR draws attention to the fact that attention is paid to human verification when checking the reports.
16. Applicable law and place of jurisdiction
16.1 The contractual relationship is subject to Austrian law and Austrian law is agreed. However, this choice of law may not result in the USER being deprived of the protection afforded to him by the mandatory provisions of his country of residence (Art 6 (2) Rome I Regulation). The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of conflict of law rules is excluded.
16.2 The exclusive place of jurisdiction is the competent court in Linz. If the USER is a private customer and has his domicile or habitual residence in Austria or is employed in Austria, the USER may only be sued before the courts in whose district his domicile, habitual residence or place of employment is located.
16.3 The place of performance shall be the registered office of the OPERATOR.
16.4 Reference is made to the possibility of dispute resolution via an online dispute resolution platform (Art 14 Para. 1 S 1 ODR-VO) (https://ec.europa.eu/consumers/odr/main/?event=main.home2.show) and national consumer arbitration boards. The OPERATOR is prepared to participate in a dispute resolution procedure before a consumer arbitration board.
