GENERAL TERMS AND CONDITIONS MACHINETRACK
Machinetrack is a web platform where registered users (hereinafter referred to as “the Advertisers”) have the possibility to place advertisements for the sale of their machines.
With regard to these services on www.machinetrack.nl or other domain name extensions (hereinafter referred to as “the Website”), Machinetrack plays a mere facilitating role. The Website does not offer a (technical) facility to actually conclude agreements.
These General Terms and Conditions apply at all times to the use of the Website and the placement of advertisements. Please read the General Terms and Conditions below carefully.
Clause 1. Definitions
- Machinetrack: the company Machinetrack, established in Zeeland (the Netherlands) and listed with the Chamber of Commerce under number 51549301. Machinetrack makes the Website available to the Advertiser.
- Advertiser: the natural person or legal entity acting in the course of a profession or business, which can place Advertisements on the Website.
- Advertisement: the message on the Website in which the Advertiser offers a product (machine).
- Party: each party to the Agreement.
- Website: www.machinetrack.nl or other domain name extensions.
- Agreement: the agreement concluded between Machinetrack and the Advertiser resulting from the Advertiser sending the registration form via the Website or by completion and signing of the paper registration form and in respect of which the Advertiser agreed to the General Terms and Conditions.
Clause 2. Applicability
- The present General Terms and Conditions apply to the Agreement between Machinetrack and the Advertiser.
- Any possible conditions or exceptions submitted by the Advertiser shall not form part of the Agreement.
Clause 3. Formation and content of the Agreement
- The Advertiser concludes the Agreement with Machinetrack by registering via the registration form on the Website, in which respect he agrees to the General Terms and Conditions, or by completing and signing the paper registration form, in which respect the General Terms and Conditions are handed to the Advertiser by Machinetrack.
- Machinetrack has the right to reject the Advertiser before, during or after registration, such without stating reasons.
- During the registration, the Advertiser chooses a username and a password – the log-in details – by means of which the Advertiser can access his account. Machinetrack gives the Advertiser the opportunity to place Advertisements during the validity of the Agreement by using his log-in details.
- If web hosting has been agreed, the Advertiser has the possibility of managing his website and the content thereof – not technically – by using his log-in details. The Advertiser himself is responsible for the content placed by him this way.
- The Advertiser undertakes to keep his username and the corresponding password strictly confidential. Machinetrack is not responsible for misuse of the log-in details and may assume that an Advertiser registering on the Website is indeed the Advertiser. Everything that takes place under the username of the Advertiser takes place under the responsibility and risk of the Advertiser.
- The Advertiser undertakes to inform Machinetrack if the Advertiser suspects that unauthorized parties have been able to access the password. In such case, Machinetrack is entitled to take effective measures.
Clause 4. Placement of Advertisements on the Website
- After registration, the Advertiser is allowed to place Advertisements on the Website, in compliance with these General Terms and Conditions.
- If the Advertiser wishes to place several Advertisements on the Website – the maximum number of Advertisements that can sit actively at the same time is communicated to the customer on the Website – he shall undertake to upgrade his account to one of the paid accounts as described on the Website.
- If no web hosting has been agreed and supposing Machinetrack and the Advertiser have agreed thereto, Machinetrack shall make a code available to the Advertiser through which the Advertisements placed by the Advertiser on the Website will also be displayed on the website of the Advertiser. The Advertiser himself is responsible for placing this code on his website. Machinetrack cannot guarantee a correct functioning of the code.
- The Advertiser hereby gives Machinetrack permission to display the Advertisements placed on the website of the Advertiser also on the Website, such by copying them one on one. The Advertiser indemnifies Machinetrack against any claims that could be made by third parties as a consequence.
- The way the placed Advertisements are arranged and presented is to be exclusively determined by Machinetrack.
Clause 5. Rules of play during the use of the Website and placement of Advertisements
- The Advertiser shall refrain from any unauthorized use of the Website and other information on it and shall have the attitude and behaviour in conformity with what may be expected of a conscientious Advertiser. This shall include in any event that the Advertiser:
- offers the product in full agreement with the truth;
- complies with all rules and instructions reflected on the Website or addressed to him;
- will not perform any acts or place any Advertisements that are contrary to legislation and regulations, public morals, public order and/or third party rights;
- will not place any Advertisements that are sexually oriented or pornographic, threatening, offensive and/or discriminating;
- will not place any Advertisements that invade the privacy of others;
- will not alter or delete Advertisements or information of Machinetrack or other Advertisers or make them unfit for use;
- will not perform any acts that cause a nuisance to other Advertisers.
- The Advertiser himself is responsible for the Advertisements he places on the Website. If the content of his Advertisement(s) is unlawful, the Advertiser may be held liable for it. Machinetrack cannot guarantee that the content of Advertisements of Advertisers on the Website is lawful and/or correct.
- The Advertiser acknowledges that Machinetrack is under no obligation to verify or edit Advertisements of Advertisers in any manner whatsoever of its own accord, not before the Advertisements are placed nor thereafter.
- If Machinetrack understands that certain Advertisements on the Website do not fulfil these General Terms and Conditions, it shall be entitled to remove or adjust such Advertisements at its own discretion.
- Machinetrack is entitled to carry out adjustments on Advertisements on the Website in order to enhance the general quality and/or readability of the Website. In this respect, Machinetrack will not affect the general impression and/or tenor of the Advertisements, or affect them as little as possible.
- The Advertiser declares that he does not infringe any copyright or any other intellectual property right belonging to someone else by placing texts, photos, videos and other content on the Website.
- The Advertiser indemnifies Machinetrack against all claims resulting from the infringement of third party rights committed by the Advertiser while using the Website, placing Advertisements and/or violating these General Terms and Conditions.
- Everyone can inform Machinetrack of conduct or Advertisements of Advertisers that are unlawful in respect of such person. See clause 8 in this respect.
Clause 6. Hosting and related services
- If the Advertiser and Machinetrack have agreed that the service provided by Machinetrack extends to services regarding the storage and/or transfer of material delivered to third parties by the Advertiser, such as in the case of web hosting or e-mail services, the stipulations included in this clause apply as well.
- The Advertiser shall refrain from storing and/or distributing material (or having it distributed) via the servers of Machinetrack contrary to any provisions of Netherlands law, including in any event though not exclusively any material which:
- is humiliating, defamatory, offensive, racist, discriminating or hatred inciting;
- is erotic or pornographic, unless explicitly permitted in the offer;
- infringes third party rights, including in any event though not exclusively any copyright, trademark rights and portrait right;
- results in an invasion of the privacy of third parties, including in any event though not exclusively the distribution of personal data of third parties without permission or necessity, or repeatedly harassing third parties with communications they do not want;
- contains hyperlinks, torrents or similar information of which the Advertiser is or should be aware that they refer to material that infringes third party rights;
- contains unsolicited commercial, charitable or non-commercial communication; or
- contains malicious content, such as viruses or spyware.
- The Advertiser shall refrain from obstructing other Advertisers or internet users or causing damage to the servers. The Advertiser is not allowed to start up processes or programmes, be it via the server or otherwise, of which he knows or should reasonably suspect that such hinders Machinetrack, other Advertisers or internet users or causes damage to them. Machinetrack will inform the Advertiser of any possible measures. The Advertiser shall be liable for any damage caused to third parties as a consequence.
- The Advertiser shall comply with the generally accepted rules of conduct on the internet as laid down in RFC1855 (ftp://ftp.ripe.net/rfc/rfc1855.txt) and future adjustments thereto.
- Apart from legal obligations, any damage caused by incompetence or failure to act in conformity with the above points shall be at the expense of the Advertiser.
- The Advertiser hereby grants Machinetrack an unrestricted licence to distribute, store, pass on or copy all material delivered to the systems of Machinetrack by the Advertiser in any manner considered suitable by Machinetrack, but exclusively in so far as this is reasonably necessary for the fulfilment of the Agreement by Machinetrack.
- Machinetrack shall not take note of details the Advertiser stores and/or distributes via the systems of Machinetrack, unless a proper execution of the Agreement requires it or if Machinetrack is obliged to it pursuant to a legal provision or court order. In that case, Machinetrack will make an effort to take as little note of the details as possible, in so far as this is within its control.
- Machinetrack can impose a maximum on the amount of storage space and data exchange (the data limit) an Advertiser is allowed to use within the scope of the service.
Clause 7. Management website Advertiser
- If the Advertiser and Machinetrack have agreed that the service provided by Machinetrack extends to services regarding the storage and/or transfer of material delivered to third parties by the Advertiser, such as in the case of web hosting or e-mail services, this shall include Machinetrack’s responsibility for the (technical) management of the website of the Advertiser.
- (Technical) management includes among other things, but is not limited to the performance of updates of the website and the implementation of adjustments of whatever nature to the website of the Advertiser.
- Machinetrack manages the website of the Advertiser to the full and will therefore not provide the Advertiser with log-in details for the management tool.
- By using his log-in details of the Website, the Advertiser can independently place texts and Advertisements on his website.
- If a correct conduct of the management requires such, the Advertiser will grant Machinetrack a right of use for the software of the website. By concluding the Agreement, the Advertiser also declares that he is entitled thereto and indemnifies Machinetrack against all third party claims.
- Machinetrack will make an effort to adjust the website of the Advertiser from time to time in order to improve the functionality and to correct mistakes. In case of new functionality or alterations that may essentially change the functioning of the website, Machinetrack will consult the Advertiser beforehand.
- Machinetrack will make an effort to keep the website up-to-date. However, Machinetrack depends in many cases on its supplier(s) and third parties in this respect. Machinetrack is entitled to not install certain updates or patches if it is of the opinion that such does not benefit a correct functioning of the website.
- Machinetrack will make an effort to add changes and new functionality to the website at the Advertiser’s request. Machinetrack is at all times entitled to refuse such a request if it is of the opinion that it is not feasible or that it may obstruct a proper functioning or availability of the website. Changes implemented by Machinetrack are considered accepted within 14 days from delivery.
Clause 8. Complaints Procedure
- As an intermediary, Machinetrack applies a complaints procedure through which third parties (“complainants”) can file a complaint if they feel there is a breach of clause 5.2 and/or 7.2 of these Terms and Conditions. If a complaint is justifiable in the opinion of Machinetrack, the latter shall be entitled to remove the material or render it inaccessible. Furthermore, Machinetrack shall in that case be entitled to provide the complainant or the competent authorities with personal data of the customer. Machinetrack will inform the Advertiser of the progress of the procedure.
- If it concerns possibly punishable information, Machinetrack shall be entitled to report things. In this respect, Machinetrack can hand over all relevant information about the Advertiser to the competent authorities and perform all other acts said authorities ask Machinetrack to perform within the scope of the investigation.
- In case of repeated complaints about the information offered by the Advertiser, Machinetrack shall be entitled to terminate the Agreement.
- The Advertiser indemnifies Machinetrack against all legal claims with regard to details, information, website(s) and so on stored by the Advertiser. Machinetrack is not liable for any damage suffered by the Advertiser due to interference by Machinetrack within the scope of the complaints procedure, not even when the complaint appears unjustified and the information is not contrary to Netherlands law.
Clause 9 Registration of domain name
- If the service (also) extends to Machinetrack acting as an intermediary for the Advertiser in obtaining a domain name, the stipulations included in this clause apply as well.
- Application, granting and possible use of a domain name depend on and are subject to the prevailing rules and procedures of the relevant registering authorities, including the Foundation for Internet Domain Registration in the Netherlands. The relevant authority will decide whether a domain name is granted. In respect of the application, Machinetrack acts as a mere intermediary and does not guarantee that an application will actually be honored.
- The Advertiser shall exclusively be informed of the fact of the registration by means of the confirmation letter from Machinetrack, which states that the domain name requested has been registered. An invoice for registration charges does not imply a conformation of a registration.
- The Advertiser indemnifies Machinetrack and shall compensate it for all damage related to (the use of) a domain name on behalf of or by the Advertiser.
- Machinetrack is not liable for the loss of any right to a domain name suffered by the Advertiser or for the fact that the domain name has been applied for and/or obtained by a third party in the meantime, except in case of intent or wilful recklessness by Machinetrack.
- If Machinetrack registers a domain name in its name for the benefit of the Advertiser, Machinetrack will render assistance to requests by the Advertiser to move, transfer or cancel such domain name.
- The Advertiser undertakes to conform to the rules established by registering authorities with regard to the application, granting or use of a domain name. Machinetrack will, in particular, ensure that the Advertiser accepts the applicable general terms and conditions of the registering authority.
- Machinetrack has the right to render the domain name inaccessible or make it unfit for use, or place it (or have it placed) in its own name if the Advertiser is demonstrably in default with regard to the compliance of the Agreement, but exclusively for the period the Advertiser is in default and exclusively after expiry of a reasonable term for compliance, established in a written notice of default.
- In case of dissolution of the Agreement due to attributable non-performance by the Advertiser, Machinetrack shall be entitled to cancel the domain name, such with due observance of a notice period of two months.
Clause 10. Maintenance and breakdowns
- Machinetrack will make an effort to provide the abovementioned services without interruptions, but does explicitly not give any guarantees with regard to a continuous availability.
- Machinetrack reserves the right to close down the services temporarily for maintenance, adjustments or improvements thereof. Machinetrack will try to have such closing down to take place outside office hours as much as possible and make an effort to inform the Advertiser in time of the intended closing down. Machinetrack will in no event be obliged to any (compensation for) damages in respect of the Advertiser due to such putting out of operation.
- Machinetrack has the right to adjust the services and the Website from time to time to improve the functionality and to correct mistakes. Machinetrack does not have to inform the Advertiser thereof. As the Website is made available to several Advertisers, it is not possible to refrain from a certain adjustment only in favour of the Advertiser. Machinetrack shall not be obliged to any compensation with regard to damage caused by adjusting the Website.
- Where the Website is not available due to breakdowns, maintenance or other causes, Machinetrack will make an effort to inform the Advertiser about the nature and expected duration of the interruption.
Clause 11. Prices / Fee
- The use of certain extra functionalities, as stated on the Website, requires payment of a fee.
- All prices stated on the Website and in communications by Machinetrack are exclusive of 19% Netherlands VAT, unless stated otherwise.
- All prices on the Website are subject to apparent type and calculation errors. Machinetrack does not assume liability for the consequences of type and calculation errors.
- The Advertiser’s payment obligation becomes effective from the moment the trial period has run out and the Advertiser has not terminated the Agreement.
- Machinetrack will send an invoice to the Advertiser in advance for the amount due by the Advertiser, unless agreed otherwise. The payment term for the invoice is 14 days of the invoice date, unless indicated otherwise in the invoice or agreed otherwise in the Agreement. The Advertiser agrees to electronic invoicing by Machinetrack.
- If the Advertiser fails to pay in time, he shall be in default by operation of law as from 14 days after the payment term without any notice of default being required. If an amount due is not paid within the payment term, statutory interest shall be due on the outstanding invoice amount without further notice of default by Machinetrack.
- In case of overdue payment, the Advertiser shall be obliged to pay both extrajudicial and judicial collection costs to the full, including the costs of any lawyers, bailiffs and debt-collection agencies, such apart from the amount due and the outstanding interest.
- The debt is payable on demand if the Advertiser is declared bankrupt, applies for a moratorium, if any of his assets are generally attached, the Advertiser dies and, furthermore, if he is wound up or dissolved.
- In the above cases Machinetrack furthermore has the right to terminate or suspend the execution of the Agreement or any part thereof that has not been executed yet, such without any notice of default or court intervention and without any compensation for damages to the Advertiser that might be caused by it.
Clause 12. Liability
- Machinetrack is in no event liable for any direct or indirect loss of the Advertiser or third parties, including consequential loss, loss of information (including the Advertisements), incorrect functioning of the website or loss due to the disclosure of certain information and intangible loss.
- Machinetrack’s liability in respect of the Advertiser, for whatever reason, is limited per event (in which respect a related series of events shall be considered to be one event) to the compensation paid by the Advertiser to Machinetrack, observing a maximum of 150 euros exclusive of Netherlands VAT.
- The Advertiser indemnifies Machinetrack against all third party claims, for whatever reason, with regard to the compensation of loss, costs or interest related to this Agreement. The Advertiser indemnifies Machinetrack in particular and compensates Machinetrack for any form of claim, charge or action by a third party related to an assignment or agreement concluded via the Website.
- The previous paragraphs of this clause do not apply if and in so far as the relevant loss has been caused by intent or wilful recklessness by Machinetrack.
Clause 13. Intellectual Property Rights
- All intellectual property rights to all works made available by Machinetrack pursuant to the Agreement, are exclusively vested in Machinetrack or its licensors. The Advertiser only acquires a right of use, which is neither exclusive nor transferable, and powers explicitly granted by these Terms and Conditions or otherwise.
- Every use, reproduction or disclosure of the works not falling within the scope of the Agreement or rights of use granted, shall be considered to be an infringement of the copyright. The Advertiser shall pay Machinetrack a penalty of 10,000 euros, immediately due and payable and not open to judicial mitigation, for each infringement and each day it continues, without prejudice to the right of Machinetrack to be compensated for its loss due to the infringement or to take other legal action to terminate the infringement.
- The Advertiser grants Machinetrack free of charge all rights and/or permissions necessary to place Advertisements of the Advertiser on the Website and otherwise, such as in a newsletter. The Advertiser grants in any event an unencumbered, perpetual, worldwide, sub-licensable non-exclusive licence to disclose the work.
- The Advertiser is not allowed to further distribute Advertisements placed on the Website by other Advertisers without Machinetrack’s permission.
Clause 14. Force Majeure
- In case of force majeure, taken to mean in any case breakdowns or failures of the internet or the telecommunications infrastructure, SYN flooding, network attacks, DoS or DDoS attacks, power failures, internal civil commotion, mobilization, war, congestions with regard to transport, strikes, lockouts, operational failures, delays in the supply, fire, floods, import and export barriers and the case where Machinetrack is not considered capable of delivery by its own suppliers, irrespective of the reasons, as a consequence of which compliance with the Agreement by Machinetrack cannot reasonably be required, the execution of the Agreement will be suspended or the Agreement will be terminated if the situation of force majeure has lasted for more than ninety days, all this without any obligation to pay compensation.
Clause 15. Duration and termination
- The Agreement is concluded for the duration of one month, unless agreed otherwise in writing. If the Agreement is not terminated by letter in time before the end of said period, with due observance of a one-month term of notice, it will be renewed tacitly every time by an equal period of one month.
- In case of dissolution or termination, the following clauses shall remain in force:
- Licence (clause 13.3);
- Liability (clause 12);
- After termination of this Agreement, any Advertisements placed by the Advertiser will be removed; the possible link between the Website and the website of the Advertiser will be cancelled, as well as all other obligations of Machinetrack pursuant to this Agreement.
Clause 16. Changes to the General Terms and Conditions
- Machinetrack reserves the right to change or supplement these General Terms and Conditions. Machinetrack will send the Advertiser an e-mail stating that the General Terms and Conditions are going to be changed, in which way and when. Furthermore, Machinetrack will publish the intended change on the Website. Changes of minor importance can be made at any time.
- If the Advertiser is not willing to accept a change to these General Terms and Conditions, the Advertiser may terminate the Agreement until the date the new Terms and Conditions enter into force. There will be no refund of payments already made.
Clause 17. Final Stipulations
- Netherlands law applies to the Agreement.
- Changes in management or legal form shall not affect the Agreement.
- In so far as rules of mandatory law do not prescribe otherwise, all disputes that may arise with regard to the Agreement will be submitted to the competent Netherlands court in the city of 's-Hertogenbosch.
- If a stipulation included in the Agreement and/or the General Terms and Conditions appears to be null and void, the validity of the entire Agreement/General Terms and Conditions shall not be affected by it. The parties will define new stipulations to replace it, which will reflect the purpose of the original Agreement/General Terms and Conditions as much as legally possible.
- In these Terms and Conditions, “in writing” includes e-mail, provided that the identity and integrity of the sender have been properly established.
- When the Advertiser contacts Machinetrack in writing, the version of the message received or stored by Machinetrack shall prevail as the authentic version, unless the Advertiser can demonstrate that such version is not authentic.
- The Advertiser guarantees that the details he provided with regard to the registration are correct. The Advertiser will always inform Machinetrack promptly of changes to any details that may be relevant to Machinetrack, such as, but not limited to, contact details of the Advertiser.
If you have any queries, complaints or comments with regard to these General Terms and Conditions after reading them or with regard to any other matter, please feel free to contact us.
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