GENERAL TERMS AND CONDITIONS (T&C) FOR DEALERS ON THE MANHEIM EXPRESS PLATFORM 

 


These General Terms and Conditions (hereinafter: Modix T&C) govern the use of the used car auction website Manheim Express and apply to the legal relationship between the user (hereinafter referred to as the Dealer) and Modix GmbH, Jakob-Hasslacher-Straße 4, 56070 Koblenz, Germany (Modix).

Modix's offer is aimed at commercial used car dealers domiciled in Germany (Dealers). 

 

1) SCOPE OF APPLICATION/CONTRACTUAL RELATIONSHIPS

a)

These T&C have to be accepted during the initial registration and apply to the legal relationship between the Dealer and Modix, governing (together with subordinate data protection regulations) the contractual relationship as well as the use of the platform. 

Modix may propose an amendment of this T&Cs to the Dealer at any time. The amendment is to be proposed to the Dealer in writing no later than 1 month before the proposed effective date. Consent is deemed given if the Dealer does not indicate his rejection in writing (for example by e-mail) to Modix before the proposed effective date of the amendments. If the Dealer does not agree to the amendments, each party has the right to terminate the contract without notice until the proposed effective date of the amendments. The notice proposing the amendments will also point out the right of rejection and the deadline for this as well as the termination option. If the Dealer rejects the amendment, Modix will generally terminate the contract with the Dealer. 

b)

With its platform, Modix provides a marketplace for Dealers' offers to sell used cars and acts as an intermediary for other related services. 

Modix itself does not offer used cars and only provides a few of the services itself.  Modix will not become a contracting party in relation to used cars. In relation to services, Modix will only become a contracting party where Modix or no other provider is specified until the service contract is concluded. If Modix becomes a service partner, the separate conditions possibly published for the respective service and, in a sub-ordinate manner, the T&C for the service will apply.

 

2) CONCLUSION OF THE CONTRACT FOR THE USE OF THE PLATFORM

a)

Only Dealers who have concluded a framework contract for the use of the platform (License Agreement) under application of these T&C are allowed to use the platform. By submitting the registration form, the Dealer makes an offer to conclude this License Agreement (registration). Modix is free to accept this offer or reject it without giving reasons while complying with the legal requirements. 

b)

Only commercial car Dealers who have reached the legal age, have unlimited legal capacity, and are domiciled in Germany are allowed to act as an entrepreneur in terms of § 14 of the German Civil Code (BGB). The Dealer has the to prove his capacity as an entrepreneur and declare and prove his capacity as a car Dealer. To provide these proofs, the Dealer shall particularly submit the following with his registration: 

  • a copy of his business registration, 
  • for businessmen and companies registered in the commercial register, an excerpt from the commercial register, 
  • a copy of the ID card of the business owner (or the number of directors or executives required according to the commercial register) 
  • when registering on behalf of a legal person, the proof of the power of representation showing the name of the representative. 

Value-added service numbers and PO boxes will not be accepted as a telephone number/address. 

c)

The data required for registration must be provided completely and correctly and, if there are any changes of any type, updated immediately until accepted by Modix as well as during the term of the contract. Updates are done in the Dealer account.

The Dealer completely indemnifies Modix from any damages and claims due to any breach of this obligation.

d)

The contract is subject to the suspensive condition of the Dealer fulfilling the aforementioned requirements. Modix will check the submitted documents at least for plausibility and send the Dealer a confirmation of registration, provided that Modix is convinced of the registration requirements being met and that Modix has received the membership fee. The confirmation registration also confirms the fulfillment of the condition. The Dealer will only be activated once the condition is fulfilled.

The registration of the Dealer does not state anything about whether the registration requirements were actually met or whether they continue to be met during the term of the contract.  Modix may, but does not have to, perform a verification and, in justified cases, suspend the Dealer until the Dealer has resolved the concern.

3) USER RELATIONSHIP DURING THE TERM OF THE CONTRACT

a)

Passwords that enable access to a Dealer account must be kept secret and carefully secured. The Dealer is obliged to inform Modix immediately when there are any indications that an account might have been compromised by third parties. The Dealer will then change his password immediately. The Dealer is responsible for any actions under his Dealer account occurring with the use of his credentials.


b)

The Dealer account is not transferable. The Dealer may not assign his rights to third parties or transfer his obligations to third parties (in discharge of his obligations).

c)

The use of the platform is subject to sufficient capacities and limited to the scope of the current state of the art. 

When the platform is used via apps for iOS/iPadOS or Android, the provision of the apps as well as their updates are subject to the provision by the app store provider (Apple or Google) and technically subject to the circumstance that only the current and the directly preceding operating  system generation are supported (e.g. when iOS 13 is released, then iOS 12.x and 13.x, but no longer iOS 11.x), to the extent still permitted by the app store providers. 

Modix only owes the full functionality when browsers are used that have a market share of at least 20% in Germany based on the current state of the art of browser technology under the Windows operating system and only 4 weeks after the release of a new browser version at the earliest. In particular, the functionality of apps may be limited. Each individual act of use must be carried out personally by natural persons insofar as Modix does not explicitly provide an application programming interface (API) or an automatic function. Any type of automatic use through screen reader programs is particularly prohibited.

To the extent required with regard to force majeure, capacity limits, server security or to carry out necessary technical measures, for instances within the context of maintenance work, Modix may temporarily limit services and particularly terminate offers. 

Force majeure is an event caused externally by elementary forces of nature or actions of third parties that was unforeseeable by human insight and experience, that cannot be prevented or rendered harmless with economically reasonable means, not even with extreme care, and that cannot be expected due to its frequency either. 

In this case, notwithstanding the limitations of liability, Modix takes the legitimate interests of the Dealers into account according to clause 6. If offers end during the corresponding maintenance activities or during failures, these are terminated without triggering any sales or purchase obligations for Dealers. The selling Dealer will have the possibility to relaunch the offer. Credits will not be made. 

Modix reserves the right to change the content or the technical specifications of any aspect of the website at Modix's own discretion at any time for (in particular, but not limited to) the following purposes:

  • software upgrades,
  • website content upgrades,
  • elimination of malicious content or software,
  • adjustments against attacks by third parties,
  • improvement of the website's technical specifications, or
    reasonable changes to the website.

d)

The offering Dealer has to ensure under his own responsibility that his contents or his actions on the platform are lawful, that they do not breach any third party rights, and that they observe the applicable competition laws, the information and mandatory disclosure requirements as well as all other provisions. 

The Dealer may use contents for his offer that are protected by trademark or copyright law, in particular logos, texts, or photos, where he is in possession of the required rights of use. All rights are required for Modix to be able to present the contents on the Manheim Express Platform, in particular reproduction rights, distribution rights, editing rights, as well the rights to make the contents accessible to the public, including the rights to issue the corresponding sublicenses to Modix. Insofar as the Dealer does not include any identification of the originator in the content itself, he must ensure that the author has waived such credits. By transferring the contents to the Manheim Express Platform, the Dealer guarantees that he is in possession of such a waiver and of the corresponding rights, while granting the necessary rights to Modix. Modix accepts this by issuing the success message when the download is completed.

e) 

The Dealer covenants that the description of the listed goods describes these goods accurately and completely. In addition, the Dealer indemnifies Modix from any claims, losses, and damages in relation to the description of the goods.

The Dealer is prohibited from manipulating any search functions on the platform, for example by improperly inserting trademark names or other search terms in item names, offers, or descriptions.

f)

The selling Dealer is only able to modify the vehicle description for as long as the vehicle is not offered in the live auction. 

g)

Uness otherwise specified by the Dealer, vehicle prices are only valid for the vehicle along with the accessories described, i.e. without any additional price components. The delivery costs are not included.

h)

The Dealer is responsible for the archiving of the information that is viewable and saved on the platform and that he need for his own purposes, for example for the preservation of evidence, on a storage medium independent of Modix. 

i)

Modix may, as soon as there are any indications of a violation of legal provisions, third party rights, these T&C, or primary or ancillary obligations arising from the License Agreement relationship, take the following measures (by way of example, non-exhaustive), in particular to protect the Dealers against fraudulent activities:

  • delete contents
  • warn Dealers
  • delay or suspend the publication of contents
  • restrict use
  • provisional or temporary suspension
  • definitive suspension

In particular, temporary suspensions can already be issued for any first violation of the provisions in 4) d) to 4) f). The definitive suspension may proceed in case of recurrence if the Dealer does not otherwise provide Modix with a convincing explanation about how he will ensure compliance with these most important sales principles of the Manheim Express Platform.

In addition, the corresponding suspension is particularly made when the Dealer has provided incorrect contact details, transferred his Dealer account, or provided third parties with access to his Dealer account, caused substantial damage to other Dealers or consumers, or repeately fails to make payments for auctioned/purchased vehicles.

Notwithstanding the preceding provision as well as the possibility to claim damages, the Dealer is obliged to pay Modix a contractual penalty of €120 for each case of culpable violation of any of the provisions of clauses 4) d) to 4) f). 


4) IMMEDIATE PURCHASE, BIDDING PROCEDURE, CONTENTS OF SALES CONTRACTS, PAYMENT AND DELIVERY

a)

Modix shall provide an electronic bidding agent on the auction platform. This bidding agent acts as an automated function so that the Dealer interested in buying is able to enter the maximum price he wishes to bid. After the Dealer has entered the maximum bid, the bidding agent first only bids the minimum price set by the selling Dealer or the price required to outbid the highest bidder until then in the smallest possible interval, while also taking into account if the highest bidder until then has also entered a higher price through the bidding agent than the one shown on the offer page until then. The bidding agent then monitors the auction and keeps bidding on behalf of the Dealer. When another Dealer makes a higher bid, the bidding agent automatically keeps bidding in the smallest possible intervals. In no event will the bidding agent bid more than the maximum bid set by the Dealer. 

It is prohibited for Dealers to manipulate the prices of a vehicle or the bids by using multiple accounts or in collaboration with other Dealers.

b)

The willingness to buy a vehicle for the immediate purchase price or any given bid for a vehicle cannot be withdrawn once given, unless such a withdrawal possibility is mandatory legal requirement. Modix does not check any offers, images, texts, contractual clauses, and similar elements for their correspondence to reality or their legal validity. This also applies to the vehicle data specified by Modix that consist of pure database information, which Modix generally obtains from Deutsche Automobil Treuhand GmbH (Hellmuth-Hirth-Str.1, 73760 Ostfildern, Germany, registered at the District Court of Stuttgart under HRB 124549) and other comparable information portals and presents without modifications and without verifying them or comparing them to reality.

c)

For a bid to win an auction, it has  to be the highest of the auction when the auction ends and fulfill all auction terms, including the ones in the vehicle description. Modix's performance obligations in relation to a vehicle sale will end when it sends the e-mail notification with the result of the offer. 

Modix will not be a party of the sales contract and shall particularly not assume any duty to effect the compliance with the provisions e) to g) or to mediate between the Dealers in case of any dispute. 

d)

The selling Dealer is obliged to offer a sales contract for the purchase of the vehicle in accordance with the conditions of the auction, complemented by the following transaction terms, to whoever is willing to pay the immediate purchase price or to the highest bidder of an action that has reached the minimum price immediately and within a maximum of 24 hours (this deadline is suspended on Sundays and national holidays). The buying Dealer is obliged to accept this offer and may only assign his claims to third parties with the consent of the seller. The above duties as well as the resulting following duties do not apply when mandatory contrary rights are granted by law.

The seller shall confirm the sale to the buyer by e-mail or telephone and provide the buyer with further specifications and scheduling suggestions for the pick-up of the vehicle along with the corresponding payment terms. In addition, Modix will send information both to the seller as well a the buyer who won the auction.

At the request of the respective other party, each party is obliged to sign a written sales contract about this in accordance with these conditions. The sales contract has to be provided by the party requesting the written sales contract. 

The seller may determine the legal details, such as the warranty, settlement, payment, transport, and any damage claims, e.g. due to non-acceptance within 72 hours, in his own terms and conditions if these terms and conditions were part of the offer description or if the offer description included a reference to these terms and conditions as well as a possibility to take note of these. The terms and conditions may not contradict the provisions f) and g).

e)

The successful buyer shall pay the purchase price to the seller within 72 hours after the contract is concluded in accordance with e).  The seller shall issue a proper invoice to the buyer. 

If the purchase price is not received within 72 hours, the seller will have the right to withdraw from the sales contract, consider the bid as void, and market the vehicle in other ways. 

If the seller demands compensation for damages instead of performance and if the purchased item has not been delivered yet or if the seller takes the purchased item back, he will be entitled to a flat-rate compensation of 8% of the purchase price. The buyer reserves the right to prove lower damages than the aforementioned flat-rate damages. If the seller provides proof of more extensive damages, he shall be entitld to claim these as well.  

f)

The buyer is always entitled to chose the transport solution mediated by Modix. Modix will also inform the buyer and the seller of this by e-mail or telephone after the auction has been completed. 

 
Vehicles that are not roadworthy must be marked accordingly by the seller in the description on the auction platform. In addition, the pick-up address must be provided correctly from the start of the auction until it ends. 

 
If the vehicle is not delivered using Modix's affiliated transport partner, the buyer may pick up the vehicle at the seller's premises once the purchase price has been paid.


If it is agreed that the buyer will pick up the vehicle, the buyer is obliged to do so no later than 5 work days after the complete purchase price has been paid and received by the seller. If the vehicle is not picked up on time, the seller may charge the buyer EUR 15.00 per day, unless the buyer proves that he is not at fault or that the seller incurs lower costs. 

 
g)

If nobody won the auction, the Modix Trade Desk team can contact the highest bidder and the other  bidders who have not reached the minimum price in the bidding phase as well the seller in order to negotiate the bids for the vehicle. If this results in a willingness to conclude a sales contract, the above provisions d) to g) will apply accordingly.


5) REMUNERATION

a)

If the Dealer wishes to participate in the Manheim Express Platform as fast as possible, he should select the payment via Ingenico e-Commerce Solutions SPRL/BVBA, Da Vincilaan 3, 1930 Zaventem, Belgium, during registration, in particular if Ingenico allows him to do so and if the Dealer works with one of the payment methods offered by Ingenico. Ingenico provides all offered payment methods except for payment by bank transfer. Modix may check registration requests with Ingenico payment on a priority basis. Ingenico will automatically process any subsequent payments as long as the Dealer does not change the payment method. 

If the Dealer has to use payment by bank transfer, the Dealer will receive an invoice once his registration request has been checked. He wil have to pay this invoice within 14 days by bank transfer. 

If the registration is rejected after payment, Modix will reimburse the payment within 14 days. In case of a payment by bank transfer, the reimbursement term will begin as soon as the Dealer has provided Modix with his bank details.

b)

The Dealer shall pay Modix a monthly membership fee of €29.00. 

c)

If an immediate purchase is executed or if the buyer has successfully won the auction or after the successful mediation of the Modix Trade Desk team, the seller and buyer shall each pay Modix a buyer and seller fee of €69.00 net per mediated vehicle. 


d)

For services provided by Modix, the Dealer shall pay the price specified when making use of the services.

e)

Al prices are subject to the statutory value-added tax applicable at the time the service is provided.

f)

Price changes effective after the expiration of a Dealer's billing period will be announced by Modix in good time so that the Dealer will be able to terminate the contractual relationship in compliance with the contractually agreed notice period before the new prices become effective. If the Dealer does not exercise this right and proceeds to make use of the services of Modix GmbH for another billing period, the price change will become binding for bother contractual parties. 


6) LIABILITY

a)

Modix is liable for intent and gross negligence by Modix, its legal representatives, officers, and other agents in accordance with the legal provisions. The same applies to the assumption of guarantees and any other strict liability as well as claims under the Product Liability Act or any culpable injury to life, limb, or health. Modix is liable on the merits for any simple negligent breaches of material contractual obligations caused by Modix, its representatives, officers and simple agents, i.e. obligations, the fulfillment of which the Dealer regularly relies on and should regularly be able to rely on for the proper performance of the contract and the fulfillment of which is indispensable for the achievement of the contractual purpose. In this case, however, the amount is limited to the typically arising and foreseeable damage.

Any further liability of Modix is excluded. To the extent that Modix's liability is excluded or limited, this also applies for the benefit of the personal liability of its legal representatives, officers, and simple agents.

The Dealer indemnified Modix from any claims that other Dealers or other third parties assert against Modix because of a violation of their rights by offers made or other contents provided by the Dealer or any other use of the Manheim Express Platform by the Dealer. This includes any necessary costs for legal defense along with any court and lawyer fees according to the statutory rates. This does not apply to legal violations the Dealer is not responsible for. In case of any third party claim, the Dealer is obliged to immediately provide Modix with the complete and true information required for the review of and defense against the claims.


b)

The Dealer recognizes that neither Modix nor its employees or representatives have made any representations or guarantees with regard to the vehicles, unless these were confirmed in writing by the director's of Modix prior to the action. 


7) INTELLECTUAL PROPERTY

The website or parts of the website, including (but not limited to) its text, content, software, graphics, photos, illustrations, artistic designs, names, logos, trademarks, and other material and contents may be be protected by copyright law, ancillary copyright law, trademark law, and/or other similar industrial property rights for the benefit of Modix. The Dealer shall not receive any rights or licenses unless this is absolutely necessary for the intended use of the platform.

It is not allowed to copy, reproduce, decompile, download, alter, publish, duplicate or analyze or use parts of the website or their content in any way in terms of industrial property rights. 


8) NOTICES

Each statement must be sent by e-mail to the e-mail address specified in the imprint of the Manheim  Express Platform or an e-mail address provided to the Dealer by Modix. 

If an e-mail is not delivered or if there is any other justified need for written communication, notices can also be sent in writing to the specified or last known postal address.


9) TERMINATION

a)

Both the Dealer as well as Modix may terminate the contract within 14 days to the end of the end of the month. The termination must be made in writing. The right to suspend a user account remains unaffected by this.

A Dealer terminated or suspended by Modix is not allowed to register again or use other user accounts.

b)

The Dealer shall download any required data and contents available in his customer account before  the contract expires. Modix is entitled to delete all data of the Dealer immediately after the termination (end of the contract) becomes effective, unless there are any legal retention obligations.


10) CHOICE OF LAW AND PLACE OF JURISDICTION

 a)

The License Agreement, including these Modix T&C are governed by German law. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.

b)

The agreed place of jurisdiction is Koblenz, Germany. 


11) SEVERABILITY CLAUSE

If individual parts of the Terms and Conditions are in breach of any legal provisions or ineffective due to any other reasons, the buyer is not released from the obligation to accept the purchased goods and comply with the other agreements. If any of the provisions is or becomes ineffective, this will not affect the effectiveness of the remaining provisions. 


In case of an ineffective provision, the parties are obliged to negotiate an effective and reasonable substitute provision that comes as close as possible to the economic purpose pursued by the ineffective provision. 

The above also applies to any loopholes.

  

Status: May 2020