Classic Driver (Schweiz) AG, Schaffhauserstrasse 210, 8057 Zurich, Switzerland (“Classic Driver”) operates a virtual marketplace for various products and services (“products”) joining sellers and buyers on the Internet under the address www.classicdriver.com (incl. sub-domains, the “website”). Classic Drivers offers to auction houses (“subscribers”) web space on their website for their product advertisements (“ads”, “advertisements”) to sell products to their interested third parties (“users”).
These General Terms and Conditions (“GTCs”), as well as the documents referenced herein, such as the price list, apply to the contractual relationship between Classic Driver and its subscriber as well as to the use of the website by the subscriber and to all services that Classic Driver provides for the subscriber in association with the website.
GTCs issued by the subscriber do not apply to the contractual relationship between Classic Driver and the subscriber.
c. Position of Classic Driver
The Website is merely a virtual market place operated by Classic Driver for its subscribers to place advertisements of Products. The Website does not provide means for the conclusion of contracts between the subscribers and the users. Classic Driver is bound neither as broker nor agent nor party nor representative of a party in the relationship between the subscriber and the user. Contracts that are initiated as a result of an advertisement placed on the website and will be concluded and fulfilled without any involvement of or by Classic Driver.
a. Conclusion of the Contract
The contract between Classic Driver and the subscriber for the use of the subscriber area enters into force as soon as (i) the subscriber has submitted to Classic Driver either a signed contract or, to the extent that Classic Driver offers this option on its website, has submitted a corresponding electronic registration form offering to conclude a contract and (ii) Classic Driver has accepted this offer by providing access to the website.
Classic Driver will exercise its own discretion in accepting or rejecting an offer.
b. Creation of the Subscriber Profile
Classic Driver provides a web template for the subscriber to create a subscriber profile. The subscriber profile contains general information (e.g., name, contact details and a short description of the subscriber) and will be published on the website and made generally accessible to all users.
The information submitted by the subscriber will be prepared by Classic Driver for release on the website and the layout will be adapted to the requirements of the Internet as well to the “look and feel” of the website.
c. Accuracy of the Subscriber Profile
The subscriber must ensure that all information used in creating the subscriber profile (e.g., texts, logos, images) is accurate and stays up-to-date over time.
3. Use of the Website
a. The Subscriber’s Area
Subscribers are granted access to a restricted area on the website. The restricted area (“subscriber’s area”) is only accessible by exclusive means of authentication. In the subscriber area, special functions are available to upload and edit ads.
b. Legitimation and access data
The subscriber will receive a password and user name as means of authentication for access to the subscriber’s area in order to place, modify or delete advertisements (“access data”).
Subscriber accounts may not be transferred to third parties either; however they may be used by multiple employees. Access data have to be kept confidential at any time. In case of a disclosure of access data to third parties the subscriber has to change his password immediately. Whenever a certain set of access data is used on the website, Classic Driver may assume, and the access is deemed to have originated from, such subscriber. The subscriber is personally wholly responsible for the use of his/her subscriber account by third parties.
An advertisement contains a presentation of an offer, for which the subscriber is solely responsible, and by which the subscriber is looking for interested parties for the product or service mentioned in such ad.
After the subscriber has uploaded and published an advertisement, it will be accessible for the external users of the website and for queries through the search forms (and possibly the websites of Classic Driver’s cooperation partners).
If a user is interested in a product of a subscriber, such user must contact the subscriber autonomously either via the contact data which is published on the website or the contact function of the website. The terms and conditions are negotiated, and the contract is concluded directly between the subscriber and the user, without participation of, and outside the scope of Classic Driver.
An advertisement is published on the website and can be viewed by the users for the agreed publication period and any agreed extension period. Upon expiration of the publication period the advertisements are automatically de-activated and moved to the archive.
The subscriber may place up to 500 listings per auction on the website. No credit or refund of payment is allowed if the subscriber does not place the maximum number of advertisements per auction.
d. Content of Advertisements
Any information communicated to Classic Driver and/or uploaded and published on the website must be true and accurate and kept up-to-date over time. In particular, as soon as a product has been sold or is no longer available for any other reasons, the subscriber must update immediately the respective advertisement or delete it.
The subscriber is obligated to adhere to good faith, in particular, to make correct, honest statements about the product being offered. Properties that are essential to users, e.g., known or suspected defects in a product, must be stated in the advertisement. However, the ad does not have to contain detailed terms and conditions of the contract. It is not an offer, but rather a non-binding invitation by the subscriber to receive an offer by the user. As such, the advertisement serves primarily to establish a contact between the subscriber and the user.
The subscriber may only advertise for products, of which he/she is legally entitled to dispose of, i.e. products, of which he/she is the sole owner without encumbrance and which he/she is entitled to transfer.
The subscriber is obligated to comply with all applicable legal regulations in formulating the content of the advertisements he/she places on the website.
The subscriber may only advertise products, for which there is a product category provided on the website. Offering several different products (individually or as a package) in a single advertisement is prohibited. The subscriber is obligated to publish product advertisements in the applicable product category. The subscriber is not permitted to include links to external websites or contact information (web or e-mail addresses, telephone numbers, etc.) in his/her advertisements or to advertise for products or services that do not correspond to the category in which the advertisement is published.
e. Practices Prohibited for Technical Reasons
Any actions by the subscriber (e.g., use of software, scripts or other mechanisms), that have or could have a negative effect on the regular and proper operation of the website are prohibited. The subscriber must refrain from any actions that could excessively burden the website’s technical infrastructure.
The use of robots, crawlers and the like to copy the content of the website is prohibited. Classic Driver may order the subscriber to delete all data which is collected by such means. Claims by Classic Driver for damage compensation are reserved.
f. Intellectual Property
The subscriber must ensure that all necessary information for creating his subscriber profile (e.g., texts, logos, images) do not infringe third-party rights. In particular, it is prohibited to neither use copyrighted third party material (e.g., pictures or product descriptions) from the Internet which the subscriber did not create on his own or has not been granted a license for.
The subscriber herewith grants Classic Driver a non-exclusive, perpetual, irrevocable, royalty-free right to publish, reproduce, edit, disseminate, create derivate works of and sublicense the content (solely text, image, audio and video content) in relation to each auction and all respective listings of the auction lots, which is transferred to Classic Driver both online and offline (e.g. in print or online media). This license includes especially the right to use the content for internal advertisement and marketing purposes. Classic Driver will mention the copyright of the subscriber for all the above content.
All rights to intellectual property (copyrights, trademarks, and other protected rights) with respect to layout, information, elements, and content on the website, with the exception of content provided by the subscriber, are owned by Classic Driver or are subject to license agreements. All rights remain with Classic Driver and/or the original rights holder. The publication, reproduction, transmission, editing and/or linking of the layout, information, elements and contents of the website for any public and/or commercial purpose of any form requires the prior written consent of Classic Driver.
The publication of the subscriber’s own advertisements in social networks (e.g., Facebook) or on websites which are operated by the subscriber himself (such as blogs) is permitted. In such cases, a link to the original advertisement on the Classic Driver website has to be set.
g. Blocking or Removal of Advertisements by Classic Driver
For legitimate reasons, in particular if provisions of this Number 3 are violated, Classic Driver may block or delete the subscriber’s advertisements wholly or partially without consulting the subscriber and without stating any reasons.
No subscription fees will be credited or refunded if Classic Driver blocks or deletes an advertisement. Classic Driver shall not be held liable for any blocking or deletion.
4. Duration and Completion of the Contractual Relationship
a. Contract Term
The Contract is concluded for the time indicated (“contract period”).
b. Termination for Cause
Notwithstanding Clause 4a, Classic Driver may terminate the agreement if subscriber materially breaches the agreement, such as, but not limited to, violations of these GTCs by the subscriber (including the terms of payment or wrong or incomplete declarations in the subscriber’s profile), violation of rights of other subscribers or users, or third parties, actions that harm the image of Classic Driver, or a change in the legal or technical standards in the Internet that make it unreasonable for Classic Driver to continue to provide Services either wholly or in part.
c. Results of a Termination for Cause
The subscriber cannot derive any claims against Classic Driver in connection with a termination for cause by Classic Driver; the fees are non-refundable.
The subscriber is prohibited from re-subscribing to the platform without written consent by Classic Driver. In case of a violation of this provision, the subscriber owes Classic Driver a penalty of EUR 250.-.
5. Liability, Warranty and Indemnification
a. In General
Classic Driver is only liable for direct damages that are caused by a malicious or grossly negligent act by Classic Driver. To the extent permitted by applicable law, liability on the part of Classic Driver as well as its employees, organs, representatives, subsidiaries, auxiliary persons (including third parties who perform services for Classic Driver) for damages, especially for indirect or subsequent damages (e.g., lost profits or the consequences of data loss) – regardless of the legal reason – is excluded.
b. Technical Defects, Maintenance, and Capacity Limitations
Classic Driver endeavors to make the website as consistently available as possible. However, a 100% availability of the website is technologically not possible. Disruptions in the services or temporary suspension of the operation of the website or availability of advertisements that have been placed can occur for reasons of maintenance, security or limitations in capacity, or due to events that lie outside of Classic Driver’s range of influence (such as disruptions or interruptions of public communications systems or power failures). Classic Driver reserves the right to temporarily restrict the uploading, editing and access to the advertisements if this is necessary for reasons of limited capacity, security or integrity of the service, or to carry out technical measures (e.g. maintenance).
Classic Driver excludes any liability for interference and/or interruptions of services, as well as damages caused by software, hacker attacks or other problems caused by the Internet is excluded regardless of the cause. The fees are non-refundable.
c. No Responsibility for Third Parties
As the operator of the website, Classic Driver is not responsible for the fulfillment of contracts which are concluded between subscribers and users. In matching subscribers and users, Classic Driver uses the information given to Classic Driver “as is”. Classic Driver excludes any liability for the accuracy of such information.
Classic Driver excludes any liability for the acts of its subscribers or users, in particular in connection with the inaccuracy of the information provided by them.
d. No Liability for Website Content
Classic Driver assumes no liability for the currentness, accuracy, legality, completeness, or quality of the content of the website, of websites that can be reached through links on the website or in which the subscriber’s advertisements are integrated, regardless whether this content was published by other subscribers or by Classic Driver itself.
Declarations published by Classic Driver on the Website are deemed to be preliminary and non-binding and never constitute binding offers.
e. Liability of the Subscriber for Breach of Contract; Indemnification
The subscriber is liable towards Classic Driver for any damage caused by breach of contract.
The subscriber shall hold Classic Driver harmless and indemnify Classic Driver against all claims brought by third parties that arise from infringement of third party rights by content communicated and/or placed by the subscriber on the website. The subscriber will compensate Classic Driver for all possible damages incurred including, but not limited to, subsequent damages, expenses such as costs for defense against such claims in and out of court (including any court costs and reasonable attorney’s fees).
6. Prices and Payment Terms
The prices for the services provided by Classic Driver (“fee”) are determined by the prices in effect at the beginning of the contract period, unless credit terms have been approved in writing by Classic Driver prior to the date.
Unless otherwise declared, the fee is net and excluding VAT and any bank or money transfer charges.
Billing is in advance for the current contract period, unless credit terms have been approved in writing by Classic Driver prior to the date.
If the subscriber requests a bigger service during the contract period, he/she will owe the difference between the original subscription fee for the current service and that for the newly selected service for the remainder of the contract period and any extensions plus the originally agreed-upon amount.
b. Means of Payment
Payments are made via bank transfer to the account indicated by Classic Driver.
Billing statements, if applicable, will be sent via e-mail to the address that the subscriber noted in the contractual partner details and/or communicated to Classic Driver thereafter. The subscriber must inform Classic Driver of any objections to the billing statement within 10 days; otherwise, the fee stated in the billing statement will be deemed accepted. The fee is due and payable within 10 days of the billing statement date without any discount.
c. Default of Payment
Should the payment of the fee not be credited before the payment deadline, default of payment will automatically apply without notice by Classic Driver that the account is in default. Classic Driver is entitled to charge default interest at a rate of 8% per annum without any further notice. Additionally, dunning costs of EUR 30.00 per reminder must be paid. Classic Driver is also entitled to block the subscriber’s account temporarily or permanently without any further notice to such subscriber and/or to cancel the contract without notice. The subscriber has no claim to compensation for damages against Classic Driver in such a case. The fees are non-refundable.
7. Data Protection and Data Security
a. Transfer of the Contractual Relationship, Rights and Obligations to Third Parties
Classic Driver is entitled to transfer or pledge the contractual relationship with the subscriber or individual rights and obligations deriving from the contractual relationship wholly or partially to a third party. The subscriber may only transfer or pledge the contractual relationship with Classic Driver or individual rights or obligations deriving from it to a third party with the prior written consent of Classic Driver.
b. Prohibition to Set-Off
Subscribers are not entitled to offset their due claims with claims from Classic Driver.
c. Delegation to Third Parties
Classic Driver may wholly or partially delegate the performance of services to third parties.
d. Written Form
Deviating or supplementary provisions, side agreements or changes to these GTCs only apply if Classic Driver has consented to them in writing.
The nullity or unenforceability of individual provisions of these GTCs does not affect the unenforceability of the remaining provisions. Any invalid or unenforceable provisions will be replaced by those that most closely approximate the goal and purpose of the invalid or unenforceable provision. This will be carried out commercially in a legally enforceable manner. The same applies to any loopholes.
f. Change of GTCs, Prices, and Website
By using the services offered by Classic Driver the subscriber recognizes the currently valid prices and GTCs.
Classic Driver reserves the right to change these GTCs at any time without stating any reasons and to publish the currently valid version on the website. The changed GTCs will be sent to the subscribers via e-mail. The changes are deemed accepted insofar as the subscriber does not state any objections in writing within 10 days of the announcement or if the subscriber continues to use services from Classic Driver after the expiration of the deadline for filing objections. In case of an objection the contract terminates without further notice.
Classic Driver reserves the right to adapt supplemental fees during the contract period to market or price developments.
Classic Driver reserves the right to change the services of the website and its structure (in particular the individual product categories) for just reasons during the contract period, or to offer differing services.
g. Applicable Law, Court of Jurisdiction
The contractual relationship between the subscriber and Classic Driver (including these GTCs) is exclusively subject to the law of Switzerland excluding agreements under state treaties and especially the United Nations Convention on the International Sale of Goods from April 11, 1998.
All disputes or claims deriving from or associated with the contractual relationship between the subscriber and Classic Driver, including its validity, violation, or dissolution will be decided upon by the competent courts. The exclusive court of jurisdiction is Zurich, Switzerland. However, Classic Driver reserves the right to bring claims against the subscriber at any other responsible court.