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Berlinkauf.com Terms of Use Agreement
PLEASE
READ THESE TERMS AND CONDITIONS CAREFULLY!
This Agreement explains our obligations to you, and explains your obligations to
us for various Berlinkauf.com services. By using our service(s) you agree to establish an account with us for such
services. You understand that Berlinkauf.com is a global B2B network. This Agreement will become effective after you / we have setup your
Berlinkauf.com account.
1. Application of and Acceptance of Terms and Conditions.
| 1.1 |
For purposes
of this Agreement, a “User” is any person
who accesses the Site for whatever purpose, regardless of whether such
User has registered with Berlinkauf as a registered user or whether such
User is a paying customer for a specific service provided by Berlinkauf.
A User includes the person using this Site and any legal entity which
may be represented by such person under actual or apparent authority. |
| 1.2 |
By accessing or using the
Site, you hereby agree to accept the terms and conditions set forth
in this Agreement as a User. You shall be bound by the terms and conditions
of this Agreement with respect to your access or use of this Site and
any further upgrade, modification, addition or change to this Site.
If you do not accept all of the terms and conditions of this Agreement,
please do not use this Site. |
| 1.3
|
This Agreement applies to
each Paid Service (as defined below) in addition to any terms and conditions
that may be applicable to such specific Paid Service. |
| 1.4
|
Berlinkauf may amend this Agreement
at any time by posting the amended and restated Agreement on the Site.
The amended and restated Agreement shall be effective immediately upon
posting. This Agreement was last amended on April 10, 2003. Posting
by Berlinkauf of the amended and restated Agreement and your continued
use of the Site shall be deemed to be acceptance of the amended terms.
This Agreement may not otherwise be modified, except in writing by an
authorized officer of Berlinkauf. |
2. Charges
and Fees.
| 2.1 |
Access to the
Site and certain of its features are provided to all Users free of charge.
However, Berlinkauf reserves the right, without prior notice, to charge
each User fees for the use of or access to the Site or its features.
Free Membership
Instantly get access to a large number of buyers and suppliers
Members are entitled to receive access to powerful integrated systems
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| 2.2 |
The following
features of the Site, among other things, are part of Paid Services |
| a) |
Submit more
Products information than freely given credits. |
| b) |
Placing Ads at featured products. |
| c) |
Placing multiple ads of the same type. |
| d) |
Business name, address and
contact person as authenticated and verified by a credit agency and
displayed in a Trust Profile |
| e) |
Access to Berlinkauf’s
Global Buyer Database |
| 2.3
|
Berlinkauf reserves
the right to deny Paid Services to any User for whatever reason in order
to protect Berlinkauf’s interests. |
3. Users
Generally.
| 3.1 |
Users may use
this Site solely for their own personal or internal purposes. Each User
agrees that it shall not copy, reproduce or download any information,
text, images, video clips, directories, files, databases or listings
available on or through the Site (the “Berlinkauf Content”)
for the purpose of re-selling or re-distributing the Berlinkauf Content,
mass mailing (via emails, wireless text messages, physical mail or otherwise),
operating a business that competes with Berlinkauf, or otherwise commercially
exploiting the Berlinkauf Content. |
| 3.2 |
Some of the Berlinkauf Content
displayed on this Site is provided or posted by third parties (“Third
Party Content”). Neither Berlinkauf nor any of our affiliates,
directors, officers or employees has entered into any sales agency relationship
with such third party by virtue of Berlinkauf’s display of the Third
Party Content on the Site. Any Third Party Content is the sole responsibility
of the party who provided the content. Berlinkauf is not responsible for
the accuracy, propriety, lawfulness or truthfulness of any Third Party
Content, and shall not be liable to any User in connection with such
User’s reliance of such Third Party Content. In addition, Berlinkauf
is not responsible for the conduct of any User’s activities on
the Site, and shall not be liable to any person in connection with any
damage suffered by any person as a result of such User’s conduct.
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| 3.3
|
Berlinkauf may allow Users
access to content, products or services offered by third parties through
hyperlinks (in the form of word link, banners, channels or otherwise)
to such third party’s web site. User acknowledges that Berlinkauf
has no control over such third party's web site and Berlinkauf shall not
be responsible or liable to anyone for such web site, or any content,
products or services made available on such web site. |
| 3.4 |
Messages or information
sent by a User through communication systems provided by the Site, or
through emails, fax or letters to addressees obtained from the Site,
shall not contain any of the materials described in the provisions of
Section 5.5 below. |
| 3.5 |
Berlinkauf reserves the right
to limit, deny or create different access to the Site and its features
with respect to different Users, or to change any of the features or
introduce new features without prior notice. Each User acknowledges
that inability to use the Site wholly or partially for whatever reason
may have adverse effects on its business. Each User hereby agrees that
in no event shall Berlinkauf be liable to the User or any third parties
for any inability to use the Site (whether due to disruption, limited
access, changes to or termination of any features on the Site or otherwise),
any delays, errors or omissions with respect to any communications or
transmission, or any damage (direct, indirect, consequential or otherwise)
arising from the use of or inability to use the Site or any of its features.
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| 3.6
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No User shall undertake
any scheme to undermine the integrity of the computer systems or networks
used by Berlinkauf and/or any other User and no User shall attempt to gain
unauthorized access to such computer systems or networks. |
4. Registered
Users
| 4.1 |
Each User who
has filled out an on-line registration form on the Site by giving its
information (such as name, address, telephone and fax number, email
address, details of its business, etc.) is a registered user of Berlinkauf
(a “Registered User”). Berlinkauf will establish
an account (“Account”) for each Registered
User and each Registered User is assigned a user alias (“User
ID”) and password (“Password”)
for log-in access to its own Account. |
| 4.2
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Registered Users shall not
access or enjoy the benefits of any Paid Services without payment for
such services; provided, however,
that Berlinkauf may permit such free access or enjoyment of Paid Services
by a Registered User on a case-by-case basis; provided,
further, that Berlinkauf reserves the right at any time to deny
access to any Paid Service (including but not limited to termination
of the Account of such Registered User) if the Registered User has not
paid Berlinkauf the relevant charges and fees under the terms of such Paid
Service. |
| 4.3 |
Berlinkauf may suspend or terminate
a Registered User’s Account at any time by giving no less than
24-hour notice to the Registered User; provided,
however, that notice is not required for such termination if,
in Berlinkauf’s determination, there is any breach of the provisions
of this Agreement by the Registered User. |
| 4.4
|
Notwithstanding Section
4.1 above, Berlinkauf may refuse registration and deny the issuance of
an Account and associated User ID and Password to any User for whatever
reason. |
5. Users
Who Post Information on Berlinkauf
| 5.1 |
You must be
a Registered User in order to post information on the Site using the
self-help submit and edit tools provided through the Site. Your status
as a Registered User is governed by the provisions of Section 4 above. |
| 5.2 |
No sales agency
relationship is created between any User and Berlinkauf, our affiliates,
directors, officers or employees by virtue of Berlinkauf’s display
of any of the User’s information on the Site. |
| 5.3 |
Each User hereby
represents, warrants and agrees to (a) provide Berlinkauf with true, accurate,
current and complete information to be displayed on the Site and (b)
maintain and promptly amend all information to keep it true, accurate,
current and complete. Each User hereby grants an irrevocable, perpetual,
worldwide and royalty-free license to Berlinkauf to display and use all
information provided by such User in accordance with the purposes set
forth in this Agreement. Each User further agrees that by posting any
material or information anywhere on the Site it surrenders its copyright
and any other proprietary right in the posted material or information.
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| 5.4
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Each User hereby
represents, warrants and agrees that it has obtained all necessary third
party copyright or trademark licenses and permissions and shall be solely
responsible for ensuring that any material or information it posts on
the Site or provides to Berlinkauf or authorizes Berlinkauf to display does
not violate the copyright, trademark, trade secret or any other personal
or proprietary rights of any third party or is posted with the permission
of the owner(s) of such rights. |
| 5.5
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Each User hereby
represents, warrants and agrees that information submitted to Berlinkauf
for display on the Site shall not: |
| (a) |
contain fraudulent
information or make fraudulent offers of items or involve the sale or
attempted sale of counterfeit or stolen items or items whose sales and/or
marketing is prohibited by applicable law, or otherwise promote other
illegal activities; |
| (b) |
be part of a scheme to defraud
other Users of the Site or for any other unlawful purpose; |
| (c) |
relate to sale of products
or services that infringe or otherwise abet or encourage the infringement
or violation of any third party's copyright, patent, trademarks, trade
secret or other proprietary right or rights; |
| (d) |
violate any applicable law,
statute, ordinance or regulation (including without limitation those
governing export control, consumer protection, unfair competition, anti-discrimination
or false advertising); |
| (e) |
be defamatory, libelous,
unlawfully threatening or unlawfully harassing; |
| (f) |
be obscene or contain or
infer any pornography or sex-related merchandising or any other content
or otherwise promotes sexually explicit materials or is otherwise harmful
to minors; |
| (g) |
promote discrimination based
on race, sex, religion, nationality, disability, sexual orientation
or age; |
| (h) |
contain any material that
constitutes unauthorized advertising or harassment (including but not
limited to spamming), invades anyone's privacy or encourages conduct
that would constitute a criminal offence, give rise to civil liability,
or otherwise violate any law or regulation; |
| (i) |
solicit business from any
Users in connection with a commercial activity that competes with Berlinkauf;
or |
| (j) |
contain any computer viruses
or other destructive devices and codes that have the effect of damaging,
interfering with, intercepting or expropriating any software or hardware
system, data or personal information. |
| 5.6 |
Berlinkauf reserves
the right in it sole discretion to remove any material displayed on
the Site which it reasonably believes is unlawful, could subject Berlinkauf
to liability, violates this Agreement or is otherwise found inappropriate
in Berlinkauf’s opinion. Berlinkauf reserves the right to cooperate
fully with governmental authorities, private investigators and/or injured
third parties in the investigation of any suspected criminal or civil
wrongdoing. Berlinkauf will terminate the Accounts of Users who are repeat infringers of the copyrights, or other intellectual property rights, of others. In addition, Berlinkauf reserves the right to terminate the Account of a User upon any single infringement of the rights of others in conjunction with use of the Berlinkauf service, or if Berlinkauf believes that User conduct is harmful to the interests of Berlinkauf, its affiliates, or other Users, or for any other reason in Berlinkauf's sole discretion, with or without cause. |
6. Transactions
between Buyers and Suppliers
| 6.1 |
Through the
Site, Berlinkauf provides an electronic web-based platform for exchanging
information between buyers and suppliers of products and services. Berlinkauf
does not represent the seller nor the buyer in specific transactions
and does not charge any commissions from completing any transactions.
As a result, Berlinkauf does not control and is not liable to or responsible
for the quality, safety, lawfulness or availability of the products
or services offered for sale on the Site or the ability of the suppliers
to complete a sale or the ability of buyers to complete a purchase. |
| 6.2
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Each User acknowledges that
it is fully assuming the risks of purchase and sale transactions when
using the Site to conduct transactions, such risks shall include, but
not limited to, mis-representation of products and services, fraudulent
schemes, unsatisfactory quality, failure to meet specifications, defective
products, delay or default in delivery or payment, cost mis-calculations,
breach of warranty, breach of contract and transportation accidents
(“Transaction Risks”). Each User agrees
that Berlinkauf shall not be liable or responsible for any damages that
may arise a result of or in connection with any Transaction Risks. |
| 6.3
|
Users are solely responsible
for all of the terms and conditions of the transactions conducted on,
through or as a result of use of the Site, including, without limitation,
terms regarding payment, returns, warranties, shipping, insurance, fees,
taxes, title, licenses, fines, permits, handling, transportation and
storage. |
| 6.4
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In the event that any User
has a dispute with any party to a transaction, such User agrees to release
and indemnify Berlinkauf (and our agents, affiliates, directors, officers
and employees) from all claims, demands, actions, proceedings, costs,
expenses and damages (including without limitation any actual, special,
incidental or consequential damages) arising out of or in connection
with such transaction. |
7. Limitation
of Liability
| 7.1 |
THE FEATURES
AND SERVICES ON THE Berlinkauf SITE IS PROVIDED ON AN "AS IS"
AND "AS AVAILABLE" BASIS, AND Berlinkauf HEREBY EXPRESSLY DISCLAIMS
ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY,
RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL
SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS
ARE HEREBY EXCLUDED. |
| 7.2 |
Berlinkauf MAKES
NO REPRESENTATIONS OR WARRANTIES ABOUT THE VALIDITY, ACCURACY, CORRECTNESS,
RELIABILITY, QUALITY, STABILITY, COMPLETENESS OR CURRENTNESS OF ANY
INFORMATION PROVIDED ON OR THROUGH THE SITE. |
| 7.3 |
Any material
downloaded or otherwise obtained through the Site is done at each User's
sole discretion and risk and each User is solely responsible for any
damage to its computer system or loss of data that may result from the
download of any such material. No advice or information, whether oral
or written, obtained by any User from Berlinkauf or through or from the
Site shall create any warranty not expressly stated herein. |
| 7.4 |
Under no circumstances
shall Berlinkauf be held liable for an delay or failure or disruption of
the content or services delivered through the Site resulting directly
or indirectly from acts of nature, forces or causes beyond its reasonable
control, including without limitation, Internet failures, computer,
telecommunications or any other equipment failures, electrical power
failures, strikes, labor disputes, riots, insurrections, civil disturbances,
shortages of labor or materials, fires, flood, storms, explosions, Acts
of God, war, governmental actions, orders of domestic or foreign courts
or tribunals or non-performance of third parties. |
| 7.5
|
Each User hereby
agrees to indemnify and save Berlinkauf, its affiliates, directors, officers
and employees harmless, from any and all losses, claims, liabilities
(including legal costs on a full indemnity basis) which may arise from
such User's use of the Site (including but not limited to the display
of such User's information on the Site) or from its breach of any of
the terms and conditions of this Agreement. Each User further agrees
that Berlinkauf is not responsible and shall have no liability to it, for
any material posted by others, including defamatory, offensive or illicit
material and that the risk of damages from such material rests entirely
with each User. |
| 7.6
|
Berlinkauf shall
not be liable for any special, direct, indirect, punitive, incidental
or consequential damages or any damages whatsoever (including but not
limited to damages for loss of profits or savings, business interruption,
loss of information), whether in contract, negligence, tort or otherwise
or any other damages resulting from any of the following: |
| (a) |
the use or the
inability to use the Site; |
| (b) |
any defect in goods, samples,
data, information or services purchased or obtained from a User or a
third-party service provider through the Site; |
| (c) |
unauthorized access by third
parties to data or private information of any User; |
| (d) |
statements or conduct of
any User of the Site; or |
| (e) |
any matters relating to
Paid Services however arising, including negligence. |
8. Intellectual
Property Rights
| 8.1 |
Berlinkauf is the
sole owner or lawful licensee of all the rights to the Site and the
Berlinkauf Content. The Site and Berlinkauf Content embody trade secrets and
intellectual property rights protected under worldwide copyright and
other laws. All title, ownership and intellectual property rights in
the Site and Berlinkauf Content shall remain with Berlinkauf, its affiliates
or licensors of the Berlinkauf Content, as the case may be. All rights
not otherwise claimed under this Agreement or by Berlinkauf are hereby
reserved. |
| 8.2 |
“Berlinkauf”, “Berlinkauf.com”
and related icons and logos are registered trademarks or trademarks
or service marks of Berlinkauf.com Corporation in various jurisdictions
and are protected under applicable copyright, trademark and other proprietary
rights laws. The unauthorized copying, modification, use or publication
of these marks is strictly prohibited. |
9. Notices
| 9.1 |
All notices
or demands to or upon Berlinkauf shall be effective if in writing and shall
be duly made when sent to Berlinkauf in the following manner. |
| 9.2 |
All notices or demands to
or upon a User shall be effective if either delivered personally, sent
by courier, certified mail, by facsimile or email to the last-known
correspondence, fax or email address provided by the User to Berlinkauf.
Notice to a User shall be deemed to be received by such User if and
when (a) Berlinkauf is able to demonstrate that communication, whether
in physical or electronic form, has been sent to such User, or (b) immediately
upon Berlinkauf’s posting such notice on an area of the Site that
is publicly accessible without charge. |
10. General
| 10.1 |
Subject to any
additional agreements relating to Paid Services, this Agreement and
the Privacy Policy constitute the entire agreement between the User
and Berlinkauf with respect to access to and use of the Site, superseding
any prior written or oral agreements in relation to the same subject
matter herein. |
| 10.2 |
If any provision herein
is held to be invalid or unenforceable, such provision shall be struck
and the remaining provisions shall be enforced. |
| 10.3 |
Headings are for reference
purposes only and in no way define, limit, construe or describe the
scope or extent of such section. |
| 10.4 |
Berlinkauf's failure to enforce
any right or failure to act with respect to any breach by a User under
these terms and conditions will not waive that right nor waives Berlinkauf's
right to act with respect with subsequent or similar breaches. |
| 10.5 |
Berlinkauf shall have the right
to assign its obligations and duties in this Agreement and in any agreement
relating to Paid Services to any person or entity. |
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