General Terms and Conditions for Use of the item Online Platform
Dated: November 2024
Preamble
1. item Industrietechnik GmbH, Friedenstraße 107-109, 42699 Solingen, Germany ("item" or "we") is the pioneer and a global market leader in modular systems for industrial applications. item has been developing and selling solutions for the construction of machines, operating equipment and systems since 1976. The product portfolio comprises more than 4500 high-quality components for the construction of machine frames, workstations, automation solutions and lean production, which are offered as prefabricated products ("item Products") or individually designed customer solutions ("item Solutions").
2. Within the framework of the item Online Platform ("item Online Platform"), item wishes to offer its subsidiaries, sales partners and users as consumers (Clause 13 BGB) and/or entrepreneurs (Clause 14 BGB) (collectively referred to as "Users") various services in connection with the item product portfolio.
3. The services offered on the item Online Platform are the item Marketplace, the item Online Tools and the item Academy, use of which is governed by the following General Terms and Conditions for Use of the item Online Platform ("Platform T&Cs").
Against this background, item and the User (individually also referred to as the "Party" and jointly as "Parties") conclude the following contract:
Part I
Introductory general provisions
1. Scope of the Platform T&Cs
1.1 These Platform T&Cs, together with all documents referred to in them, constitute the entire agreement between the Parties on
1.1.1 the item marketplace;
1.1.2 the item Online Tools and
1.1.3 the item Academy.
Clauss 1.1.1 to 1.1.3 of this Part I together describe the "item Services".
1.2 These Platform T&Cs replace all previous drafts, agreements, assurances and warranties of any kind, whether written or verbal, with regard to the item services. This also applies to general terms and conditions and other terms of use, even if these are referred to elsewhere, e.g. in terms and conditions of purchase by users.
2. Applicability of Parts I-V of these Platform T&Cs
2.1 The provisions of this Part I and Part V of these Platform T&Cs apply to all item services.
2.2 The provisions of Part II apply to the item Marketplace.
2.3 The provisions of Part III apply to the item Online Tools.
2.4 The provisions of Part IV apply to the item Academy.
3. Provision of the item Online Platform and User environment
3.1 item makes the item Online Platform available to the User via the internet for the duration of these Platform T&Cs. The functional scope of the item Online Platform is set out in these Platform T&Cs and the associated functional descriptions, which can be accessed on the item Online Platform.
3.2 To use the item Online Platform, the User requires access to the internet, for which the User is responsible.
3.3 If the installation of software, plug-ins or browser extensions is required for the use of individual item Services, the User must install, maintain and update these at their own expense. If additional standard programs are required for the readability of the information, the User must also install, maintain and update these at their own expense.
4. Registration as a prerequisite for access to the item Online Platform
4.1 In order to make full use of the item Online Platform, the User must register successfully. Both consumers (Clause 13 BGB) and entrepreneurs (Clause 14 BGB) can register on the item Online Platform. However, if consumers appear as Users on the item Online Platform, they are not permitted to use the item Marketplace, which is set out in more detail in Part II of these Platform T&Cs. Without registration, Users can only use the item Online Platform to a limited extent.
4.2 The User must provide certain mandatory information as part of the registration process in order to successfully complete registration. The User is responsible for ensuring that the information they provide to item and other Users, in particular during registration, is true and complete. They undertake to inform item immediately of any future changes to the information provided.
4.3 Once a registration request has been duly submitted, item checks the potential User's registration request. item checks whether a User who has duly completed the registration process will be authorised as a User of the item Online Platform. A User who has duly completed the registration process has no right to admission to and use of the item Online Platform. item uses the double opt-in procedure for registration, i.e. registration is not complete until the User confirms the registration by clicking on the link contained in a confirmation email sent to them for this purpose within 24 hours of receiving the confirmation email.
4.4 Successful registration creates a contract between item and the respective User in accordance with these Platform T&Cs.
5. General obligations of Users of the item Online Platform
5.1 The User is obliged,
5.1.1 to set up and maintain the necessary data security measures throughout the term of the contract. This essentially refers to the careful and conscientious handling of logins and passwords; all logins are individualised and may only be used by authorised Users. The User is obliged to keep the login and password secret and to protect them from unauthorised access by third parties. In the event of suspected misuse by a third Party, the User shall inform item of this immediately. As soon as item becomes aware of the unauthorised use, item will block the unauthorised User's access. item reserves the right to change a User's login and password; in such a case, item will inform the User immediately;
5.1.2 to notify item immediately of any technical changes occurring within their area if they are likely to impair the provision of services or the security of the item Marketplace;
5.1.3 to cooperate in the investigation of attacks by third parties on the Marketplace, insofar as this cooperation by the User is required;
5.1.4 properly log out as a User on the item Online Platform after using the item Services.
5.1.5 to use the item Services of the item Online Platform in accordance with these Platform T&Cs and the applicable statutory provisions. The User is solely responsible for complying with these Platform T&Cs and the statutory provisions in relation to use of the item Online Platform.
5.2 The User undertakes to refrain from any action that jeopardises or disrupts the functioning of the item Online Platform (in particular, from placing an unreasonable load on item's systems) and from accessing data that they are not authorised to access. Furthermore, they must ensure that the information and data they transmit via the item Online Platform is not infected with viruses, worms or Trojan horses. The User undertakes to compensate item for all losses arising from the User's failure to comply with these obligations and, in addition, to indemnify item against all third-party claims, including legal fees and court costs, asserted against item as a result of the User's failure to comply with these obligations.
6. Third-Party content
6.1 Users are prohibited from posting content (e.g. through links or frames) on the item Online Platform that violates statutory provisions, official orders or offends common decency. Furthermore, they are prohibited from posting content that infringes the rights of third parties, in particular copyrights or trademark rights. The User shall indemnify item against claims asserted by third parties due to a breach of this clause upon first request.
6.2 item does not adopt third-party content as its own under any circumstances.
6.3 item reserves the right to block third-party content if it is punishable under the applicable laws or is recognisably used to prepare criminal acts, or otherwise violates these Platform T&Cs.
6.4 The User shall indemnify item against all claims asserted by third parties against item on account of the infringement of their rights or on account of legal violations due to the offers and/or content posted by the User, insofar as the User is responsible for these. In this respect, the User also bears the costs of item's legal defence, including all court and legal fees.
7. Account deletion / account blocking / checking and deletion of content
7.1 It is not possible to delete access to the item Services offered on the item Online Platform in isolation. The User can only delete their entire item account in their registered User profile. They may also request irrevocable deletion of their account by means of a clear declaration in text or written form to item. To do so, the User must contact item using the contact details set out in Clause 32.8 of these Platform T&Cs and notify item of their wish to delete their User account, stating their User name, password and personal registration details. item will then delete the User account immediately, irrevocably and completely.
7.2 Deletion of the User account with item will result in access to all item Services on the item Online Platform being blocked.
7.3 All data and/or content stored by the User will be deleted when the account is deleted. Data that must be saved for legal grounds remains unaffected by this.
7.4 item is authorised to withdraw a User's access to their item account (account deletion) or at least temporarily block it if the User has violated these Platform T&Cs or applicable law. When deciding whether to block or delete access, the legitimate interests of the User will be given due consideration by item. Banned Users will be barred virtually. The User is prohibited from reregistering for the item Online Platform after an account has been deleted and/or permanently blocked. Item reserves the right to assert further claims.
8. Right to make changes to the item Online Platform and the item Services provided
item has the right, at any time and without restriction, to change or expand the content and structure of the item Online Platform and the associated User interfaces, and to permanently or temporarily discontinue and/or remove and/or change the content and existing functions of the item Services (including the data on which the item Services are based), individual functions in whole or in part.
Part II
Provisions for the item Marketplace
9. Scope of the provisions for the item Marketplace
item exclusively offers entrepreneurs within the meaning of Clause 14 of the German Civil Code (BGB) (hereinafter: "Marketplace Users") the opportunity to use the B2B trading system on the Online Marketplace operated by item (hereinafter: "item Marketplace") in accordance with the provisions of Part II of these Platform T&Cs. The item Marketplace enables Marketplace Users to offer item Products and item Solutions of all kinds for sale ("Offers") (in this capacity "Seller") and to purchase them (in this capacity "Buyer") in sales offers.
10. Services provided by item as the operator of the item Marketplace
10.1 The item Marketplace primarily offers Marketplace Users the opportunity to sell and purchase item Products and item Solutions and to obtain information about item Products, item Solutions and item Services.
10.2 The services provided by item as the operator of the item Marketplace consist of the following elements:
10.2.1 Enabling enquiries for the purpose of initiating contracts and concluding contracts on the item Marketplace with buyers through non-binding quotations initiated by the Seller;
10.2.2 Creation of information and communication options to simplify communication between Marketplace Users;
10.2.3 Functions for managing and monitoring all current business transactions;
10.2.4 Provision of sales data to Sellers to evaluate and further develop the sales situation on the item Marketplace; however, item is not obliged to provide this data. The scope and frequency of this provision are also at the sole discretion of item.
10.3 Further services such as consulting and support services for Marketplace Users that are not specified in Part II of these Platform T&Cs are not to be provided by item.
11. Registration as an entrepreneur as a prerequisite for access to the item Marketplace
11.1 The prerequisite for using the item Marketplace is successful registration on the item Marketplace through authorisation by item. The item Marketplace is only available to entrepreneurs within the meaning of § 14 BGB.
11.2 In order to register for the item Marketplace, Marketplace Users must provide their company details, tax number (VAT No.) and a contact. By registering, Marketplace Users confirm that they are authorised to register in the name and on behalf of the company for which they are registering. Successful registration is confirmed by email, which item may issue at its own discretion. There is no entitlement to admission to the item Marketplace.
12. Conclusion of contracts on the item Marketplace
12.1 Sellers have the opportunity to post offers for item Products and item Solutions defined and approved by item on the item Marketplace. Sellers are authorised to freely determine the prices for these item Products and item Solutions defined and approved by item. Buyers can either place a binding order for these item Products or item Solutions via the item Marketplace (only available in selected regions) or make a non-binding enquiry. In the latter case, the Seller is requested to submit a binding offer to the potential Buyer. In both cases, the Seller is obliged to check the prices requested for the item Products or item Solutions for correctness and to respond to the offer or non-binding enquiry from a Buyer within a reasonable period of time. item is not responsible for pricing.
12.2 Sellers are Sellers in relation to their offer of the item Solution or item Product on offer. The Seller's terms and conditions for the sale of item Products and item Solutions apply. Sellers are obliged to provide item with their terms and conditions that are to apply to the sale of item Products and item Solutions on the item Marketplace so that item can make them available to Buyers on the item Marketplace.
12.3 Unless the Seller and Buyer agree otherwise, a contract is concluded when a Buyer accepts a Seller's offer by sending a binding order or, in cases where the Seller is only requested to submit a binding offer by the Seller, by the Buyer's acceptance of the Seller's binding offer. If the Buyer merely submits an enquiry to the Seller for the submission of a binding offer, the Seller is free to choose whether and how they wish to accept the enquiry received.
12.4 Actions using the respective login of a Marketplace User are attributable to the Marketplace User. Marketplace Users are responsible for all declarations of intent made on the item Online Platform. They are liable to a foreseeable extent for declarations made by third parties under the User's account in accordance with the principles of a contract with protective effect for third parties.
13. Obligations of Marketplace Users
13.1 Offers may not be opened if
13.1.1 the information is so incomplete that the item Solution or item Product offered and the associated price cannot be determined;
13.1.2 the Seller does not or cannot fulfil their general obligations in e-commerce (§ 312i BGB);
13.1.3 the opening of the offer would violate statutory regulations, official orders or would be immoral under the legal system applicable to the intended contract between the Buyer and Seller.
13.2 Transactions on the item Marketplace may only be conducted between Buyers and Sellers for commercial purposes within the scope of commercial business operations. Unfair resale of item Products and item Solutions purchased via the item Marketplace to third parties is not permitted. Any redistribution to the detriment of item (e.g. in connection with plagiarism, etc.) will be deemed unfair within the meaning of this regulation.
13.3 The Marketplace User guarantees item and the other users of the item Marketplace that the item Products and item Solutions offered by the Marketplace User do not infringe any copyrights, trademarks, patents, other industrial property rights or trade secrets.
13.4 The Seller guarantees item confidentiality with regard to the prices it sets for the item Products and item Solutions sold via the item Marketplace.
14. Processing of contracts concluded on the item Marketplace
14.1 The processing of contracts concluded on the item Marketplace is the sole responsibility of the respective Marketplace Users. item does not guarantee the performance of contracts concluded between Marketplace Users on the item Marketplace, nor does it accept any liability for material defects or defects of title in the item Products and item Solutions traded on the Marketplace. item is under no obligation to ensure the performance of contracts concluded between Marketplace Users.
14.2 item cannot guarantee the true identity and authorisation to dispose of the Marketplace Users. In case of doubt, both buyer and seller are obliged to inform themselves in an appropriate manner about the true identity and the power of disposal of the other contractual partner.
Part III
Provisions for the item Online Tools
15. Scope of the provisions for the item Online Tools
15.1 The Online Tools of item are offered to both consumers (§ 13 BGB) and entrepreneurs (§ 14 BGB). The following Online Tools are offered by item with the following functions ("item Online Tools"):
15.1.1 Engineering Tool:
The Engineering Tool enables so-called "digital engineering", which offers rule-based 3D designs directly in the browser without additional programs. Users receive sketches, assembly instructions or CAD data (in the required format) as project documentation at the touch of a button. Users can also simply convert their project into a shopping basket and order via the item Marketplace.
15.1.2 Machining tool:
The Machining Tool enables the definition of profile machining operations and the creation of production drawings. It is an interactive and intuitive 3D technology that allows Users to attach connectors. The connectors provide the necessary connection machining directly. Users can also generate complete 2D project documentation.
15.1.3 Project Viewer:
The Project Viewer is used to display projects and articles. As a central data hub, Users can download all information about their project here, open the project for editing or add it directly to the shopping basket.
15.1.4 Work Bench Configurator:
With the Work Bench Configurator, Users can put together their individual work bench online using drag-and-drop. The benches can be customised with a wide range of accessories - including ESD-safe ones.
15.1.5 CAD data:
Users can download the item CAD data for all item Products and use it for their application-related purposes.
15.1.6 MotionDesigner:
MotionDesigner is the digital selection and design tool for linear technology. The software can calculate the ideal combination of linear unit, motor and controller.
16. Services provided by item in relation to the item Online Tools
16.1 With the item Online Tools, Users can use the item Online Tools functions described in Claus 15 and, depending on the Online Tool, can also create their own Designs or configurations (together "Designs").
16.2 A Design is the result of digital Product Data compiled by Users and, if necessary, configurable by the User. This "Product Data", which comprises all content and information for the development of a design (including CAD data, which can also be provided separately) and is provided by item, forms the basis of every Design. The Designs and product data created are intended to be used by item and/or an item sales partner to produce physical Designs from item Products for the User on the basis of the product data (and insofar as an item Solution is available) and/or the User uses the item product data in their offers to their customers in order to sell the item Products and/or the User uses the item product data internally in their company for documentation purposes.
16.3 Further utilisation options and any rights of use to the design or the product data on which it is based are set out in Clauses 20 and 28 ("Rights of use to the design" and "Rights to data").
16.4 item also undertakes to provide the User with further relevant and User-specific information for tracking use of the item Online Tools by individual email (e.g. after downloading a specific CAD file or creating specific designs). This enables item Users to improve the use of item Online Tools and customise them to their individual needs.
17. Use without registration and with registration
17.1 Users can use the item Online Tools with or without registration. Non-registered users can only create designs with the item Online Tools. Registered users can also save and download the designs, make enquiries about the production of the design or place orders via the item Marketplace.
17.2 In order to be able to use one of the item Online Tools as a registered User, the User must successfully complete the registration process and log in via their item account. The User can then use the item Online Tools with their full range of functions.
18. Obligations of the User when using the item Online Tools
18.1 The User is prohibited from using the work results, content, data, designs and devices of third parties, in particular from distributing, reproducing and/or publicly reproducing them, unless expressly authorised to do so by the respective author and/or rights holder and/or unless they are made available to the User as a function in one of the item Online Tools.
18.2 The User is responsible for ensuring that the designs created and product data used in the item Online Tools are technically feasible for the User's respective project, that they can be used safely and that they do not pose any risks. If necessary, the User must obtain expert advice at their own expense. item is not obliged to check the User's designs with regard to the above aspects. item is not liable for any damage resulting from a lack of technical feasibility of the User's designs.
19. Enquiry or order for the production of a design
19.1 The registered and logged-in User can submit a design created with an item Online Tool to a seller in some countries to create an offer and in some countries also place an order directly via the item Marketplace.
19.2 The item Online Tools include a shopping basket function. Registered Users can place designs they have created in this shopping basket. By clicking on the corresponding button, the User is redirected to the shopping basket on the item Platform and can either send an enquiry about production to a Seller or place an order directly via the item Marketplace. These functions are not available to Users who are not registered and/or not logged in. For all further steps involved in sending an enquiry via the item Marketplace, please refer to the descriptions on the item Online Platform. The details regarding an order placed with item via the item Marketplace can be found in the General Terms and Conditions of Sale of the respective Seller on the item Marketplace.
20. Rights of use to the designs
20.1 Any IP rights created during the development of a design or its components are the exclusive property of the User developing them.
20.2 The User is obliged to grant item simple, geographically and temporally unlimited, sub-licensable, irrevocable and non-cancellable rights to exploit and use the IP rights to a Design to the extent necessary to enable item to use the Designs in conjunction with machine learning, data analysis or other techniques to improve and further develop the item Online Platform, item Services, item Products or item Solutions, as well as to address users in a more targeted manner and to be able to offer them more accurate information on item Products and item Solutions. Furthermore, item is not authorised to market Users' designs unless the User has explicitly consented to this.
20.3 The User unconditionally and irrevocably waives their moral rights to the Designs to the extent that they are used by item in accordance with Clause 20.2. Users also agree that item is not obliged to identify the User as the author of the design. The User is not entitled to remuneration for the use of designs protected by IP rights.
20.4 IP protection rights are in particular (i) all inventions and all technical and operational know-how, (ii) all industrial property rights (in particular patents, utility models, design patents, trademarks, including logos and company names, and domain names), (iii) naming rights and database producer rights and (iv) all copyrightable works (in particular software).
21. Provisions regarding the use of content, data and designs
21.1 The User may only use the item Online Tools with the product data contained therein and the designs created with the item Online Tools for this purpose,
21.1.1 to test the functions of the item Online Tools;
21.1.2 to take a look at item Products and item Solutions;
21.1.3 to view the design options for item Products and use them in the item Online Tools;
21.1.4 to submit an enquiry to item;
21.1.5 to place an order with item for goods and/or services;
21.1.6 to document item's product data in-house within their company;
21.1.7 to sell item Products and item Solutions in their own product ranges. If the User resells item Products or item Solutions in its own offers (irrespective of whether the item O´Product or item Solution is resold independently or integrated into other products), the User is obliged to identify item as the source of the item Product or item Solution.
21.2 The User is prohibited from using the item Online Tools, the available product data and the Designs created with them beyond the use granted in Clause 21.1.
Part IV
Provisions for the item Academy
22. Scope of the provisions for the item Academy
item offers registered users the online learning platform "item Academy". item offers the item Academy to both consumers (Clause 13 BGB) and entrepreneurs (Clause 14 BGB). To improve the training progress of individual Users, item analyses the progress made by individual Users of the item Academy by default and adapts the item Academy to individual User needs. The User can deselect these item Academy Services customised to the User's needs at any time. In this case, the User is only entitled to a basic version of the item Academy, which does not provide any customised Services.
23. Services provided by item as operator of the item Academy
23.1 item offers Users comprehensive and free online training as part of the item Academy, which includes online training, step-by-step instructions and instructional videos on all aspects of mechanical engineering and the item Product world ("Learning Content", including data, information, illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents from the item Academy). The content and nature of the Learning Content on offer are set out in the relevant information provided by item in connection with the presentation of the item Academy, which can be accessed on the item Online Platform.
23.2 item undertakes to provide User-specific training by default, in which the training progress of individual users of the item Academy is continuously improved. To this end, the Users' learning progress data is evaluated. item analyses the Users' training activities for these purposes (e.g. which training courses the User has started, which they have not started, which they have completed and which they have not completed). In order to continuously improve the learning and training progress of individual Users and thus its own offer for Users, item undertakes to send the User customised Learning Content free of charge to the User's email address provided during registration on the basis of the learning progress data determined. Through these individualised measures, item aims to improve the learning and training progress of individual Users. If the User does not wish to receive any further documents by email, they can deselect this option in their account and/or inform item accordingly using the contact information specified in Clause 32.8. item will then be released from its contractual obligation and will not send the User any documents by email or otherwise contact them by email.
23.3 If the User provides their telephone number as part of the registration data, item undertakes, if necessary, to contact the User by telephone in order to discuss what further individual measures or Learning Content item can make available to the User in order to improve their learning and training progress. This also applies to requests for information about the courses and other content of the item Academy. item wants to use this personal contact to find out from Users and ensure that the item Academy meets the wishes of individual Users and which adjustments to the item Academy or the individual training content can increase learning progress in the item Academy. The User can also object to this at any time, which releases item from its obligations in this respect.
23.4 item is not obliged to achieve a specific learning and/or training outcome for the User.
23.5 The German Distance Learning Protection Act (FernUSG) does not apply to the free provision of the item Academy.
24. Rights and obligations of item Academy Users
24.1 Upload of User content
24.1.1 The item Academy User has the option of "uploading" content (data, information, illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents; "User Content") to the item Academy for exchange with item and other Users. User Content "uploaded" to the item Academy by the User is expressly not the property of item. The User is not authorised to submit offers and enquiries to item via the item Academy. No business transactions are concluded via the item Academy.
24.1.2 The User guarantees item that they are authorised and have all the necessary requirements and rights to upload User Content to the item Academy.
24.2 Use of the Chat function
24.2.1 Users are authorised to use the Chat function and a chatbot with the option of making personal contact with the item Academy (hereinafter collectively referred to as "Chat"). If the User uses the Chat function and does not deselect the availability display in the profile, other Users can recognise when the User is logged in to the item Academy (availability display). This lets other Users know when they can write to the User via the Chat function.
24.2.2 The item Academy Chat is intended to be a place for objective dialogue. Technical questions should be asked and answered within the Chat. Content that is illegal, infringes the rights of others and/or, in the opinion of item , does not fit thematically into the Chat can be deleted by item.
24.2.3 The User is solely responsible for their User content in the Chat. item does not check the content for completeness, accuracy, legality, topicality, quality and suitability for a specific purpose.
24.2.4 The Chat may not be used commercially or for advertising. However, the advertising of item Products and Services is permitted.
24.3 User responsibility for their ratings and comments
24.3.1 Every User has the opportunity to rate the Learning Content of the item Academy. Users can mark Learning Content with stars and thus rate it. The rating scale ranges from one star to five stars. A rating of one star is the worst possible rating. A five-star rating is the best possible rating. Other Users cannot see the ratings of the assessing User. Only item can see the ratings in order to check and improve its own Learning Content.
24.3.2 Users can leave comments on some of the item Academy's Learning Content. The comments are published in the item Academy and can be accessed and viewed by other Users. The responsibility for the comments lies exclusively with the User who posts the comment. They undertake not to violate applicable legal regulations when submitting comments and in particular to ensure that their comments do not violate the rights of third parties (in particular personal rights). Furthermore, the User undertakes to fully comply with the code of conduct set out in these Platform T&Cs when making comments. The code of conduct for entries in the forum and Chat also applies in particular to comments.
24.3.3 Comments may only be made entirely in the language selected by the User in the system settings. If item becomes aware of a breach of these Platform T&Cs in connection with a comment, or if it suspects such a breach or considers it to be imminent, item reserves the right to remove the comments concerned.
25. Rights of use for Users of the item Academy
25.1 item transfers to the User the non-transferable, non-exclusive and limited right to use the Learning Content of the item Academy in accordance with these Platform T&Cs exclusively for the User's own internal use. The aforementioned right of use also includes the right to make changes, translations, adaptations or other alterations and to use them for our own internal purposes, including storage and reproduction.
25.2 item reserves all rights, in particular copyrights, licence rights and property rights, to all Learning Content made available within the scope of use of the item Academy. In particular, it is prohibited to pass on the Learning Content provided in the item Academy to third parties unless this is exclusively beneficial to item. Users are also only permitted to use and exploit this Learning Content for their own professional and/or commercial purposes within the scope of their collaboration with item.
Part V
Final general provisions
26. Liability of item as the operator of the item Online Platform
26.1 item is liable without limitation for intent and gross negligence, but is only liable for slight negligence in the event of a breach of material contractual obligations. Essential contractual obligations are obligations whose fulfilment is essential for proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely. Liability in the event of a breach of such an essential contractual obligation is limited to the damage typical of the contract, the occurrence of which item had to expect at the time of conclusion of the contract on the basis of the circumstances known at that time.
26.2 The item Services are offered free of charge. The User is therefore subject to a higher standard of care when using the item Services. Users themselves are responsible for ensuring that the information, content and data of any kind obtained via the item Online Platform is correct, complete and up-to-date and can be used by Users for their own purposes. item is not be liable for any damage suffered by the User as a result of their use of or trust in the completeness, accuracy and currency of such information, content and data of any kind. If necessary, the User must obtain expert advice in this regard at their own expense.
26.3 Liability does not extend to impairments of the contractual use of the Services provided by item on the item Online Platform caused by improper or incorrect use by the User.
26.4 In accordance with the above paragraphs, item is only liable for the loss of data if such a loss could not have been avoided by appropriate data backup measures on the part of the User.
26.5 item accepts no liability for faults within the power system which item is not responsible.
26.6 The above limitations of liability also apply accordingly in favour of item's vicarious agents.
26.7 Our liability for damage resulting from injury to life, limb or health and under the Product Liability Act remains unaffected by the above limitations and exclusions of liability.
26.8 Insofar as the item Online Platform offers the possibility of forwarding to databases, websites, services, etc. of third parties, e.g. by setting links or hyperlinks, item is not liable for the accessibility, existence or security of these databases or services, nor for their content. In particular, item is not liable for the legality, accuracy, completeness, up-to-dateness, etc. of such content.
27. Exemption
27.1 item ensures that the item Online Platform does not infringe any third-party rights. item will indemnify Users on first demand against all third-party claims arising from infringements of property rights for which item is responsible in connection with the contractual use of the item Online Platform and will reimburse the costs of reasonable legal action. The User shall inform item without delay of any claims asserted against them by third parties as a result of their contractual use of the item Online Platform and shall grant item all necessary powers of attorney and authorisations to defend the claims.
28. Rights to the data
28.1 The User holds all ownership rights, titles and authorisations to the User's data. Such "User Data" is all data, regardless of whether it is part of the item Online Platform Data (as defined below) or not, that is provided by the User to item and/or for processing by the item Online Platform, regardless of whether it is personal data or not (e.g. price data, quality data, design data). User Data may include data of the User, the User's customers, suppliers or other Parties with whom the User does business.
28.2 However, item is free to use the User Data that forms part of the item Online Platform Data in conjunction with machine learning, data analysis or other techniques aimed at improving and developing the item Online Platform, item Services, item Products or item Solutions, as well as addressing users in a more targeted manner and offering them more customised information on item Products and item Solutions. The rights and obligations of item in connection with the provision of item Services remain unaffected by this.
28.3 item holds all ownership rights, titles and authorisations to the item Online Platform Data with the exception of User Data. However, the User is free to use this item Online Platform Data insofar as this is done within the scope of their lawful use of the item Online Platform in accordance with these Platform T&Cs. "item Online Platform Data" means all data (such as quality data, product data, raw material data, manufacturing information and price data, complaint information, test data and metadata) processed or generated by or stored on the item Online Platform, regardless of whether or not it is personal data. item Online Platform Data may include, but is not limited to, data of the User, data provided by item or other Parties, general usage data of the item Online Platform or data created or generated by the item Online Platform itself.
28.4 If and to the extent that the relevant item Online Platform Data or User Data is subject to any proprietary, intellectual property or other legal rights under applicable law and such rights are owned or otherwise held by the Party (or any of its affiliates, employees, employees of affiliates or any other Party it has engaged in connection with these Platform T&Cs) which is not authorised to do so in the relationship between the Parties under the aforementioned clauses ("Non-Authorised Party"), the Non-Authorised Party hereby assigns to the other Party all ownership rights, titles and entitlements to such data and undertakes to ensure that the employees concerned and the relevant Parties appointed by it assign them. If and to the extent that these rights are not transferable under applicable law, the assignment will be deemed to be an exclusive, irrevocable, worldwide, freely transferable (i.e. without further consent of the User, employees or other Users) and sub-licensable right, unlimited in time and otherwise, to use, modify and exploit the data concerned.
29. Data protection
29.1 The Parties shall comply with the applicable data protection provisions applicable to them.
29.2 With regard to the processing of personal data by item as the operator of the item Online Platform, please refer to item's privacy policy at [Link].
30. Confidentiality
The Parties undertake to maintain secrecy about all confidential information (including business secrets) that they learn in connection with these Platform T&Cs and their implementation and not to disclose, pass on to third parties or otherwise use such information. Confidential information is information that is labelled as confidential or whose confidentiality arises from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or oral form. The confidentiality obligation does not apply if the Parties are obliged to disclose the confidential information by law or on the basis of an official or court decision that has is final and cannot be relitigated. The Parties undertake to agree an arrangement with all employees and subcontractors with the same content as the preceding paragraph.
31. Contract term and cancellation
31.1 The contract on which these Platform T&Cs are based is concluded for an indefinite period. It begins with successful registration for the item Online Platform by item in accordance with Clause 4.
31.2 The contract can be cancelled by either Party with three months' notice to the end of the month.
31.3 Each Party has the right to terminate the Platform T&Cs for good cause without observing a notice period. Good cause for item is in particular
31.3.1 a User's breach of the provisions of these Platform T&Cs which is not remedied even after a deadline has been set;
31.3.2 the criminal offence of a User or the attempt to commit such an offence, e.g. fraud;
31.3.3 ongoing operational disruptions due to force majeure beyond item's control, e.g. natural disasters, fire, breakdown of power networks through no fault of item.
31.4 Any cancellation of these Platform T&Cs must be made in writing. Cancellations by fax or email uphold the written form.
31.5 In addition to the aforementioned provisions, the contract on which these Platform T&Cs are based ends automatically for Sellers at the point in time at which the dealer agreement between the Seller and item is terminated.
32. Miscellaneous
32.1 Changes
These Platform T&Cs conclusively contain the terms and conditions applicable between item and the User for the Services offered by item within the scope of these Platform T&Cs. Any provisions deviating from these Platform T&Cs only apply if they have been confirmed in writing by item. By registering in accordance with Clause 4, the User recognises these terms of use as binding.
Changes to these Platform T&Cs will be communicated to the User by item by email. If the User does not object to such changes within six weeks of receipt of the notification, the changes will be deemed to have been agreed. The User will be informed separately of the right to object and the legal consequences of remaining silent in the event of a change to these Platform T&Cs.
32.2 Continued validity
If individual provisions of these Platform T&Cs are or become invalid, this will not affect the validity of the remaining provisions.
The commissioning of subcontractors does not require the consent of the User.
32.4 Assignment and transfer
Partial or complete transfer of the User's rights under the Platform T&Cs to third parties is excluded.
32.5 Offsetting
The User is only be entitled to offset counterclaims against item if they are undisputed or legally binding.
32.6 Payment services
If item integrates payment service functions in such a way that it is a payment initiation service within the meaning of Clause 1 (1) sentence 2 no. 7, (33) of the German Payment Services Supervision Act (Zahlungsdiensteaufsichtsgesetz - ZAG) or an account information service within the meaning of Clause 1 (1) sentence 2 no. 7 of the German Payment Services Supervision Act (Zahlungsdiensteaufsichtsgesetz - ZAG) § Clause 1 (1) sentence 2 no. 8, (34) ZAG, the provisions of the ZAG remain unaffected.
32.7 Applicable law and place of jurisdiction
32.7.1 (10) Any disputes arising from or based on this agreement will be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. This choice of law applies to consumers only if there are no conflicting mandatory consumer protection provisions of the state in which the consumer is habitually resident at the time the contract is concluded.
32.7.2 If the Customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all claims arising from or on the basis of these Platform T&Cs between the User and item is the registered office of item in Solingen. The same applies to persons who have no legal domicile in Germany or persons who according to the agreement of these Platform T&Cs are domiciled or habitually resident outside of Germany or whose domicile or habitual place of residence is not known at the time of an action being brought.
32.7.3 Platform of the European Commission for online dispute resolution (ODR) for consumers: https://ec.europa.eu/consumers/odr. item is not willing and not obliged to participate in a dispute resolution procedure before a consumer arbitration board.
32.8 Contact information
item Industrietechnik GmbH
Friedenstraße 107-109
42699 Solingen, Germany
Phone: +49 / 212 / 65 80 -300
Email: info(at)item24.com
Register court: Wuppertal, HRB 14912
VAT number according to § 27a UstG: DE 120 959 471
Managing Directors: S. Buchmann, Dr H. Giese, W. Kurtz, T. Neller
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