General Trading Conditions
§ 1 - Supplier, inclusion of the terms and conditions
(1) The provider of the platform "spirit-of-wine.com" is Michael Winter, Hansastr. 19, 40764 Langenfeld, Germany, e-mail firstname.lastname@example.org, telephone +49 (0)2173 849 62 10 (hereinafter referred to as "Spirit-of-Wine" or "Platform"). Spirit-of-Wine is an online marketplace where registered users can offer and purchase goods and services, provided that their offer, purchase or publication does not violate legal provisions or the following regulations.
§ 2 - Access to the platform, registration as a user
(1) Anyone may visit the platform and search for offered items free of charge without prior registration.
(2) The offering of articles requires prior registration as a user of the platform. A registration form is available on the website for registration. The data entered is transmitted to the platform via the "Send registration" button. This transmission constitutes a binding offer to the platform to conclude a contract of use. Before the data is transmitted to the platform, the user can check it for input errors and, if necessary, correct or supplement it; alternatively, the entire registration process can be cancelled.
(3) The platform is free to accept the offer or to reject it without giving reasons; there is no right to set up a user account. If the platform accepts the offer, the user shall receive an activation link by e-mail. Only if the user calls up the Internet address contained in this link within 48 hours will the user account be set up. Otherwise, the platform deletes the entries made via the registration form and no user contract is concluded.
(4) A user obtains access to his user account by entering his e-mail address and his self-selected password ("access data"). The user is obliged to keep this access data secret and not to make it available to any third party.
(5) Registration is only permitted to users of full age and legal capacity.
(6) User accounts are not transferable.
(7) A user is obliged to notify any change in his name, address, contact details or other personal data relevant to the contractual relationship without delay or, as far as possible, to make such changes in the user account itself.
§ 3 - Services of Spirit-of-Wine
(1) The platform stores and publishes the sales offers of registered users, presents, advertises and mediates further services and provides functions that enable the conclusion of purchase contracts with the content of the published offers. The platform itself shall not become a party to such a sales contract, but shall only act as an electronic marketplace.
(2) Offers, conclusion of contracts and fulfilment of contractual services of the platform shall be made in German.
(3) To use the platform, the provider provides the user with access to its website and suitable software, which remains on the provider's server. The provider does not owe the user the establishment and maintenance of the data connection between the user's end devices and the provider's server.
(4) The provider grants the user a simple right, limited to the duration of the user contract, to use the platform and the software contained therein within the scope of these General Terms and Conditions. Without the written consent of the provider, the user is not permitted to make the content made available to him accessible to third parties. The software of the platform is updated by the provider at irregular intervals. Accordingly, the user only receives a right to use the software in the respective current version. In contrast, the user has no right to demand that the software be brought to a certain state.
(5) Spirit-of-Wine exclusively grants the user the right to use the online search masks provided for retrieving and visualising individual data records on his end device and for permanent visualisation in the form of a printout. Automated queries by scripts, bots, crawlers, etc., by bypassing the search mask, by search software or comparable measures (esp. data mining, data extraction) are not permitted.
(6) Spirit-of-Wine reserves the right to link the use of individual services or functions of the platform or the extent to which individual functions can be used to preconditions set by Spirit-of-Wine in advance, such as the status of the rating profile (including detailed seller ratings), payment behaviour or the presentation of certain proofs (e.g. proof of identity, purchase, payment or ownership).
§ 4 - Publication of offers by a seller
(1) In order to publish an offer for sale (hereinafter "offer"), the user (hereinafter also "seller") assigns his offer to a suitable category on the platform.
(2) The platform reserves the right to assign an offer that a seller has assigned to an unsuitable category to a suitable category or, if this is not possible, to delete it from the platform.
(3) The Seller undertakes to describe its offer truthfully and to offer only those services whose fulfilment is guaranteed.
(4) As soon as the Seller has entered all the data required to describe his offer, the Seller can add his offer to the Platform via the button "Activate item (subject to charge)". Before the offer data is transmitted to the platform, the seller receives a summary of the entered data (item preview) and can check it for input errors and, if necessary, correct or add to it; alternatively, he can cancel the entire process.
(5) By placing an order for the publication of his offer, the seller grants the platform the right to publish, reproduce, distribute and make publicly available the contents of the offer, in particular the item photos contained therein. This includes the right to display this content on websites and in apps of the platform to promote the offer and the platform as well as on websites and in apps of third parties (e.g. as part of advertising on websites of third parties) and to grant further exploitation rights to the extent required for this. The Seller waives its right to be named as the author. The Seller guarantees to hold all rights required for the aforementioned use without restriction. The granting of rights is geographically unrestricted, but limited in time to the term of the offer.
(6) Offers are published automatically by the platform; there is no prior manual review on the part of the platform.
(7) The platform may make the publication of a seller's offers conditional on the seller proving his status as an entrepreneur and providing a certificate of tax registration pursuant to Section 22f (1) sentence 2 UStG.
§ 5 - Excluded offers of a seller
(1) The following may not be offered on the platform - without prejudice to other legal restrictions:
(a) live animals, animal carcasses and parts thereof, human body parts or remains,
- b) Weapons within the meaning of the Weapons Act, as well as parts thereof, and ammunition as well as fireworks and explosives,
- c) articles the sale, possession or transfer of which is prohibited by law or only permitted to certain persons (e.g. stolen goods, stolen goods, counterfeit products, articles subject to prescription, narcotics, non-marketable goods, media harmful to minors, articles of anti-constitutional organisations), as well as
- d) articles that infringe patent law, utility model law, trademark law, design law, design patent law, copyright or the right to a third party's own image.
(2) The resale of Spirit-of-Wine services is not permitted.
(3) By publishing his offer, the seller assures the platform that the offer does not fall under the exclusions pursuant to paragraph 1 and also complies with all other legal requirements. The seller shall indemnify the platform against all costs incurred by the platform as a result of an objection to an offer by a third party or an authority, including reasonable expenses for the examination and legal defence; this shall not apply insofar as the seller is not responsible for the objection to his offer.
(4) The platform publishes offers according to the seller's entries in an automated manner without checking them for correctness or admissibility beforehand. The responsibility for the correctness and admissibility of an offer lies solely with the respective offering seller.
(5) Spirit-of-Wine points out that entrepreneurially active sellers are subject to various legal obligations of permission and information (e.g. provider identification, terms and conditions, revocation and data protection information, labelling, information on alcohol content and allergens), which they must fulfil on their own responsibility. The platform does not undertake any examination or legal advice in this context.
(6) If a user violates the obligations listed in §§ 4, 5 within the framework of an offer, Spirit-of-Wine is entitled to immediately deactivate the offer in question. In the case of a repeated breach of duty Spirit-of-Wine is also entitled to delete the respective offer, to terminate the contract with the respective user without notice for good cause and to block access to the portal immediately. The user shall be informed of this in advance by e-mail, stating the reasons. The user's obligation to pay the respective contractually agreed fee remains unaffected by the measures mentioned here.
§ 6 - Offer formats and conclusion of contract
(1) The platform provides the users with a variety of offer formats and functions to initiate or conclude contracts by means of the services offered by Spirit-of-Wine.
(2) If a seller posts an item in the auction or fixed price format, he makes a binding offer to conclude a contract for this item. In doing so, he determines a starting and/or fixed price and a period within which the offer can be accepted (offer period). If the seller sets a minimum price in the auction format, the offer is subject to the condition precedent that the minimum price is reached.
(3) The seller can provide his offers exclusively or in the auction format additionally with a buy-it-now function. This can be exercised by a buyer as long as no bid has been placed on the item or a minimum price has not yet been reached.
(4) In the case of the buy-it-now offer, the Buyer accepts the offer by selecting the buy-it-now option and finally pressing the "Buy now" button.
(5) In the case of auctions or a fixed-price offer, the buyer accepts the offer by submitting a bid ("binding bid of ... EUR"). Acceptance shall be subject to the condition precedent that the Buyer is the highest bidder after expiry of the offer period. A bid expires if another buyer submits a higher bid during the offer period. Only the system clock of the platform shall be decisive for determining the end of the offer period.
(6) In the event of early termination of the offer by the seller, a contract shall be concluded between the seller and the highest bidder, unless the seller was entitled to withdraw the offer and cancel the bids on hand. The cancellation of bids is only possible
- a) if this is done by mutual agreement with the bidding buyer,
(b) the seller reasonably fears the bidding of a fraudulent buyer; or
(c) there is a legitimate reason for the early termination of an offer.
(7) Buyers may only withdraw bids if there is a justified reason for doing so. After a justified bid withdrawal, no contract is concluded between the user, who is again the highest bidder after the auction has expired due to the bid withdrawal, and the seller.
(8) If an offer is deleted from the platform before the expiry of the offer period, no effective contract shall be concluded between the Buyer and the Seller.
(9) Sellers may, if necessary, restrict the group of buyers in advance according to certain criteria, e.g. by selecting where they send their items, which payment methods they accept and whether buyers with a poor rating score may also bid on the items. Likewise, sellers can create their own list of unacceptable buyers who should be excluded from contracting with the seller.
§ 7 - Fees, payment methods
(1) For a buyer and for use without prior registration, the services of the platform are free of charge.
(2) The platform charges the seller fees for the management of the user account, for the publication of the seller's offers and for the conclusion of a purchase contract; the details of these fees are set out in the respective price model under Prices. Sales commission shall accrue for each purchase contract concluded via the portal on a percentage basis depending on the respective purchase price (without taking into account any additionally charged shipping costs). The claim to commission shall remain in force even if the contract subsequently ceases to exist due to the exercise of a statutory right of revocation or due to a statutory or contractual right of withdrawal.
(3) The individual fees and the sales commission are due for payment immediately and can be settled via the payment methods accepted by Spirit-of-Wine. Fees for ongoing services (e.g. management of the user account, publication of offers, advertising measures), will be invoiced in advance.
(4) If the seller has booked special services for which a fee is charged, the fees shall become payable and due again after the expiry and re-setting of the publication of offers. When the publication of offers is restarted automatically or manually, fees for all selected special services are payable and due again. Bookings of special services are not performance-based and are payable and due immediately after the publication of offers. A refund of fees for special services in the event of an unsuccessful run or premature termination of a presentation for which Spirit-of-Wine is not responsible is excluded. An overview of the special services booked by the seller and the respective fees can be viewed at any time under My Account/Account Settings/Account Overview.
(5) All prices quoted by Spirit-of-Wine are total prices in euros plus VAT.
(6) Invoicing of the fees shall take place in each case by e-mail to the Seller's e-mail address or shall be made available online in the user account.
(7) Payments to the platform are possible by bank transfer and PayPal. Payments by bank transfer must be made in euros and free of charges for the recipient. In the case of payments via PayPal, the fees owed by the seller for a sale can be directly deducted from the customer's PayPal payment by way of the so-called "Adaptive Payments" by PayPal to the platform.
(8) The Seller may grant Spirit-of-Wine a direct debit mandate. All invoices due from the time the direct debit mandate is granted will be automatically collected by the platform by SEPA core direct debit. The direct debit mandate shall automatically expire three years after the last drawdown by the platform. Irrespective of this, the seller may terminate the direct debit mandate at any time by sending the platform a corresponding message in text form (e-mail, letter or fax). The platform also reserves the right to no longer make use of the direct debit mandate and to ask the seller to make payment elsewhere as soon as the seller's bank has refused to honour a direct debit.
(9) Relevant for Paypal Payment & Direct Debit: Insofar as the Seller has given the Platform a direct debit authorisation for recurring payments from his PayPal account ("Reference Transactions"), the Seller may terminate this PayPal direct debit authorisation at any time by sending the Platform a corresponding message in text form (e-mail, letter or fax). In addition, PayPal may give the Seller the option to terminate the direct debit authorisation online in his PayPal account. In any case, the authorisation to collect recurring payment from the seller's PayPal account automatically expires two years after the last use by the platform.
(10) In the event of default in payment, Spirit-of-Wine reserves the right to withhold its own contractual performance until the default has ended. The user's obligation to pay the fee during the retention remains unaffected.
(11) Payments between the parties to a contract concluded via the platform shall be settled directly between the respective parties. The platform does not accept funds on behalf of sellers or buyers.
(12) Sellers are prohibited from circumventing the fees of the platform. Violations of this prohibition may lead to the deletion of offers. Circumvention of fees is considered to be, for example:
- a) Proposals for purchases or sales outside the platform.
- b) Linking to or promoting websites, items or catalogues that can be used to purchase items outside the platform.
- c) requirements for buyers to make additional purchases or accept conditions not described in the offer.
- d) Cancellation of bids or premature termination of a bid because the desired price was not achieved.
- e) Charging excessive shipping costs and additional fees that are not already included in the item price, or passing on seller fees to the buyer.
- f) Changing the information in an offer to sell another item instead of posting a new item.
§ 8 - Right of set-off and retention
A user may only offset claims of Spirit-of-Wine with undisputed or legally established claims. A user can only assert a right of retention from rights based on the same contractual relationship.
§ 9 - Availability, warranty (liability for defects) and limitation of liability
(1) Spirit-of-Wine provides the portal with an average availability of 98.5%. The availability is calculated on the basis of the time allotted to the respective calendar month in the contractual period, less the following contractual maintenance times: Spirit-of-Wine is entitled to carry out maintenance work on Tuesdays and Fridays from 10 p.m. until 6 a.m. of the following day for a total of 8 hours per calendar month, during which the portal may be completely or partially inaccessible. Spirit-of-Wine will announce maintenance work to the Provider by e-mail at least 48 hours before it begins. The above times refer to the time zone of Spirit-of-Wine's registered office (Langenfeld, Germany).
(2) The performance of Spirit-of-Wine in the transmission of data is limited to the communication between the server on which the portal is operated and a suitable connection point to the Internet to be chosen by Spirit-of-Wine. Spirit-of-Wine has no influence on the availability and reliability of Internet data paths outside its own network. A successful forwarding of data from the connection point to servers of third parties is therefore not owed.
(3) Warranty claims - also referred to as defect liability rights - of a user against Spirit-of-Wine exist in accordance with the statutory provisions.
(4) Spirit-of-Wine accepts no responsibility for the correctness and completeness of the information provided by users, content posted, declarations made or for the identity and integrity of the users. The content or offers posted by users on the portal are third-party content for Spirit-of-Wine, for which the person who posted the content on the portal bears sole responsibility.
(5) Spirit-of-Wine is not liable for financial losses unless Spirit-of-Wine or a vicarious agent has acted with intent or gross negligence. This does not affect liability for the breach of obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the user may regularly rely (cardinal obligations). Liability for damages arising from injury to life, limb or health shall remain unaffected.
(6) It is incumbent on the user to transmit only copies of documents or files to Spirit-of-Wine, as unintentional losses can never be completely ruled out during the transmission and processing of data. The user assures to keep the originals in order to avoid irretrievable loss of data.
§ 10 - Consumer Right of Withdrawal
(1) A user who makes use of chargeable services of Immozonas as a consumer is entitled to a right of withdrawal in accordance with the statutory conditions. A consumer is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his/her commercial nor to his/her independent professional activity.
(2) A consumer with permanent residence outside Germany shall be granted a consumer right of withdrawal by the supplier in accordance with the German requirements and legal consequences even if the consumer's national law does not provide for a right of withdrawal or links withdrawal to a shorter period or to a stricter form than under German law.
§ 11 - Contract text storage
(1) The platform stores the content of a contract concluded with a user electronically and sends the user a confirmation with the content of the contract by e-mail in parallel. The user has no access to the text of the contract stored by the platform. The platform therefore recommends that the user print out the email with the content of the contract or keep it in any other way.
(2) Insofar as contracts are concluded between a seller and a buyer with the help of the platform, the content of a concluded contract is stored in the user account of the seller and, if available, also in the user account of the buyer. Upon conclusion of the contract, the platform also transmits the content of the concluded contract to the respective contracting parties by e-mail.
§ 12 - Term of contract, termination
(1) Unless a term is specified upon conclusion of the contract, a contract concluded between the platform and the user shall run for an indefinite period of time and either party may terminate the contractual relationship properly with effect from the end of the current day.
(2) A contract against payment shall have the term agreed upon conclusion of the contract. Insofar as it concerns a contract for the establishment and operation of a shop for a seller, the contractual relationship shall subsequently be extended by the original term in each case as long as neither party terminates. The ordinary period of notice is four weeks.
(3) If the termination has been declared, the seller may still maintain his already published offers and fulfil already concluded purchase contracts in the last four weeks of the contract term, but may not publish any further offers.
(4) The right to extraordinary termination for good cause remains unaffected.
(5) Any notice of termination must be in text form as an email, fax or in writing as a letter.
§ 13 - Parameters for ranking and sorting search results
(1) If a user initiates a search for offers on the platform by specifying certain parameters, all offers that meet these parameters will be displayed to him in a so-called standard sorting. In the standard sorting, the offers are displayed in the list of results depending on which type of listing the respective user has booked for his offer. The user can influence the ranking in the results list by booking certain special services/listings with Spirit-of-Wine.
(2) The user also has the option of sorting the list of results by setting one of the following sorting criteria: a) status (ending soon) b) topicality (last set), c) price (descending or ascending).
(3) In case of a sorting chosen by the user, the results are exclusively arranged according to this sorting criterion. Spirit-of-Wine is entitled to change the sorting criteria and the display of the results list at any time.
§ 14 - Evaluation system
(1) Spirit-of-Wine maintains a rating system within the platform, structured according to member names, in which the respective contracting parties have the opportunity to make a comment and rating on various aspects relating to the respective transaction.
(2) Users are obliged to provide only truthful information in the reviews they submit and to comply with the statutory provisions. Reviews must be factual and may not contain abusive criticism.
(3) Spirit-of-Wine accepts no liability for the accuracy of the content of reviews. These are not checked by Spirit-of-Wine and may be inaccurate or misleading.
(4) Any use of the rating system that does not exclusively serve the purpose of an honest and objective rating is prohibited. In particular, it is prohibited
- a) to give inapplicable assessments,
- b) make assessments about themselves or cause third parties to do so,
- c) to include in valuations circumstances that are not related to the performance of the underlying contract,
(5) Spirit-of-Wine reserves the right to delete unobjective or thematically inappropriate contributions at any time. Furthermore, the platform only deletes published contributions at the request of the respective author.
(6) When users write a comment or a rating, Spirit-of-Wine publishes the post at the appropriate place on the platform together with the user's username, for which a pseudonym can also be provided. In order to prevent abuse of this offer, the platform stores the IP address of the end device from which the user writes for a period of twelve months (Article 6(1)(f) DSGVO).
§ 15 - Data access
(1) For the personal data of the provider and other users provided during the registration and use of the platform and services of Spirit-of-Wine or generated in the course of the provision of these services as well as its access thereto in accordance with Art. 9 of Regulation (EU) 2019/1150, the regulations of our data protection declaration, which is available under data protection, apply.
(2) During the term of a user contract, the user can view the data provided by other users in the context of a request for an offer of the user as well as his posted offer, contact and company data in his user account on the platform.
§ 16 - Future adjustments to the terms and conditions
(1) From time to time it may become necessary to update the terms and conditions of the platform. For this purpose, the Spirit-of-Wine reserves the right to change them at any time, subject to a reasonable notice period of at least fifteen days. The announcement shall be made by communicating the nature and scope of the planned changes and their consequences for the affected user on a durable medium (e.g. e-mail), stating the date on which the changes will take effect. In all other respects, the requirements under Art. 3(2) and (4) of Regulation (EU) 2019/1150 shall apply.
(2) The user is entitled to terminate the contract in writing within the period specified in paragraph 1 with effect from the expiry of fifteen days after receipt of the notice, unless a shorter period applies to the contract. If the user fails to give notice of termination, the amended terms and conditions shall be deemed accepted. The right of termination and the significance of the period of notice shall be pointed out separately in the announcement of the amendment. In the event of termination, the user shall remain obliged to pay for the services provided under the respective contract up to the time the termination becomes effective.
(3) The user may waive the time limit pursuant to paragraph 2 sentence 1 at any time after receipt of the announcement. The posting of new offers on the platform before the expiry of this period shall be deemed to be a clear confirming act to such a waiver, provided that the period does not exceed fifteen days.
§ 17 - Assumption of contract by third parties
The platform is entitled to transfer its rights and obligations under the user contract in whole or in part to a third party. The platform will notify the user of this in text form in good time, but no later than four weeks before the transfer of the contract. If the user does not wish to continue the contractual relationship with the third party, he may terminate the contract within three weeks after receipt of the notification by the platform with a notice period of seven days.
§ 18 - Consumer dispute resolution
(1) For the out-of-court settlement of disputes between consumers and the Provider, the Federal Universal Arbitration Board at the Zentrum für Schlichtung e. V., Strassburger Str. 8, 77694 Kehl am Rhein (www.verbraucher-schlichter.de / email@example.com) is responsible.
(2. Independently of the dispute resolution service referred to in paragraph 1, consumers may also submit complaints to the European Union's online dispute resolution platform, which can be accessed at ec.europa.eu.
(3) However, the platform points out that it is neither obliged to participate in an out-of-court dispute resolution procedure nor is it willing to do so on a voluntary basis. The indication of the arbitration board in the above paragraphs is merely made in fulfilment of a legal duty to inform about this.
§ 19 - Final provisions
(1) Several persons who are joint users shall be joint and several debtors and creditors of the total benefits.
(2) The legal relationships between the platform and its users shall be governed by the laws of the Federal Republic of Germany, excluding the German conflict of laws rules of private international law. In relation to consumers, this choice of law shall only apply to the extent that the consumer is not thereby deprived of the protection afforded by mandatory provisions of the law of the state in which the consumer has his habitual residence.
(3) If the user acts as a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract of use is the provider's registered office. If the user has his registered office outside the territory of the Federal Republic of Germany, the provider's registered office shall be the exclusive place of jurisdiction for all disputes arising from this contract of use if the contract or claims arising from the contract can be attributed to the user's professional or commercial activity. In the aforementioned cases, however, the provider is in any case entitled to appeal to the court at the user's registered office.