General Terms and Conditions of the online marketplaces of SMG Swiss Marketplace Group Ltd.
These General Terms and Conditions of SMG Swiss Marketplace Group Ltd., Industriestrasse 44, 3175 Flamatt (hereinafter "SMG"), govern the use of the online marketplaces of SMG Swiss Marketplace Group Ltd., namely AutoScout24, ImmoScout24, MotoScout24, FinanceScout24 and anibis.ch (hereinafter collectively or individually "Scout24") and the products and services offered via the marketplaces. In particular, the General Terms and Conditions also apply to all contractual agreements of SMG Swiss Marketplace Group Ltd. (hereinafter SMG) as operator of the online marketplaces of Scout24. In the following, persons who have concluded a contractual agreement with Scout24 are referred to as customers.
2. Entry into force, right of withdrawal, cancellation by Scout24
Scout24 shall have the right at any time to deactivate a customer's user account without stating reasons or to cancel a concluded agreement without stating reasons and without compensation within 14 days from the date the agreement was concluded.
If the customer uses the marketplaces and/or the products or services offered thereon in a manner that in breach of contract, unlawful or unconscionable, or if the customer has given cause for complaints to Scout24 because of the poor quality of the data the customer provided to Scout24, e.g., ad data, Scout24 may withdraw from the agreement immediately without compensation and discontinue its provision of services to the customer without notice and without compensation or deactivate the customer's user account, as applicable; in either case, any payment in advance for a certain period of time is forfeited, and the customer is not entitled to any refund. Scout24 reserves all rights.
3. Use of the marketplaces with or without registration
The marketplaces may be used with or without registration. However, the use of certain products and services requires registration. Only persons who are at least 16 years of age may register with Scout24. Scout24 reserves the right to limit registration to certain countries.
Scout24 recognizes as the customer the person who utilises the user ID and password, regardless of whether this person actually has access rights. The person who has registered with Scout24 is responsible for the proper handling of his/her user ID and password.
4. Prices and payment terms
Unless expressly agreed otherwise, the then-current price list shall apply for purposes of calculating the respective prices. Scout24 reserves the right to adjust its prices to market and/or price developments at any time. Unless expressly agreed otherwise, stated prices are net in Swiss francs, including VAT.
Depending on the product or service of Scout24, an advance payment may be required, which can be processed via the payment methods provided by Scout24, or made within 10 days from the invoice date, subject to any different payment terms specified in a separate agreement or on the invoice. If the customer fails to make payment on time, the customer is automatically in default. Scout24 may refuse to perform the services and terminate the agreement with immediate effect and without compensation or notice. Furthermore, where payments are not made in a timely manner during the term of the agreement, Scout24 shall also have the right to block the customer's access to his or her user account. Once all outstanding invoices have been paid in full, the account will be unblocked. In this case, the customer is not entitled to an extension of the agreed contract term by the length of time the account was blocked. Once the time limit for payment is exceeded, the customer must pay the applicable legal default interest. Dunning costs of CHF 50.00 per payment reminder must also be paid. Furthermore, the customer shall be liable for the damages caused to Scout24 as a result of the payment delay and/or the contract termination.
5. Prohibition on further use of information
The right to use information and content for commercial purposes is reserved to customers. Apart from that, customers acquire no rights to content or information made available on the marketplaces. Infringements are subject to civil and criminal prosecution.
Customers expressly undertake not to utilise the information and content made available on the marketplaces in any manner or form outside the marketplaces. In particular, customers shall refrain from copying, publishing or otherwise reproducing (e.g., on the Internet) in any form the data made available on the marketplaces or to link those data to other data.
6. Intellectual property rights
All rights to information, elements and content on the marketplaces, in particular, copyrights, trademarks and designations contained therein, are the property of SMG or third parties who have granted SMG the relevant rights of use.
Insofar as the contractual use of the marketplaces requires granting the customer rights of use to copyrights, trademarks and/or know-how of SMG, these rights shall be granted to the customer by SMG on a non-exclusive and non-transferrable basis, to the extent required, for the term of the corresponding contract. The rights of use granted to the customer are personal and non-transferrable. If the customer and SMG agree to the use of a service provided by a partner (see Section 14), the present paragraph shall apply analogously for such services.
Content, data, texts, videos, musical pieces, illustrations and other content that the customer transmits to Scout 24 for publication on a marketplace (hereinafter collectively "ad data") may not infringe any rights whatsoever, in particular, third-party rights, e.g., rights of privacy and intellectual property rights. The customer may only transmit to Scout24 ad data that the customer himself or herself has created or to the use of which the rights holder has consented.
No addresses (e-mail or postal address), telephone numbers or vehicle registration numbers may be visible in photos used in ads. Photos of persons whose faces are clearly recognisable in the photos may only be used with the consent of the respective persons.
All property-related documents, photos and templates created by Scout24 on behalf of the customer become the property of the customer, as soon as the customer has paid the corresponding invoice to Scout24 in full.
7. Management and development of the marketplaces
The operation and management of the marketplaces are executed by Scout24. Scout24 may engage third parties for purposes of fulfilling its performance obligations. Scout24 strives to operate its marketplaces as free from disruptions as possible and to minimize interruptions for correcting malfunctions, performing maintenance work, introducing new technologies and the like, but it cannot completely exclude the same. Technical developments are implemented at the sole discretion of Scout24.
Services provided by partners (see Section 14) are executed and managed by the relevant partners. Technical developments are implemented at their discretion.
8. Publication of ads
By transmitting ad data to Scout24 or a partner of Scout24 (see Section 14), the customer authorises Scout24 to integrate the relevant ad into the marketplaces and other online and offline channels of Scout24 (e.g., as part of trade fairs), as well as into online and offline channels of partners of Scout24. However, the customer does not have a right to the publication of his or her ads within these services.
Scout24 may interrupt, modify or completely cease the publication of ads at any time for any reason whatsoever and without compensation. Scout24 may also use the ad data for further purposes of its own and for those of its partners, e.g., for generating statistics, or otherwise publish the ad data and store and process them for this purpose.
The customer expressly consents to the direct or indirect transfer of the ad data necessary for using partners' services (see Section 14), to the storage of such data in the partners' database(s) and to the use of these ad data by the partners. Scout24 cannot guarantee the confidentiality, integrity or authenticity of the customer's ad data published by the partners.
9. Data protection
10. Customer rights and duties
The customer undertakes to use the marketplaces and the partners' services integrated therein (see Section 14) in accordance with the law and the contract. The customer represents and warrants, in particular, that:
- he/she will supply all ad data transferred to Scout24 or its partners in the form and quality specified by Scout24 in accordance with the advertising rules of the respective marketplaces;
- he/she is entitled to all ad data provided to Scout24 or its partners, directly or indirectly, and may use the same within the scope of the contractual agreements with Scout24;
- the ad data transferred to Scout24 or its partners are complete and truthful, not misleading or unfair and will continuously be kept current by the customer;
- the products or services offered for sale by the customer are described in an accurate and truthful manner, exhibit the specified qualities and do not infringe applicable laws or rights of third parties (in particular intellectual property rights and privacy rights);
- he/she accepts and will abide by these General Terms and Conditions at all times.
For legal or technical reasons, Scout24 is authorised but not obligated to modify or cease processing, in whole or in part, the ad data transferred by the customer.
The customer grants Scout24 the exclusive right to use the ad data provided. The ad data may not be used by third parties, taken over or copied, except as regards partners of Scout24. The customer is not entitled to have third parties be able to retrieve the ad data provided by the customer for publication on their platforms. Even if the customer grants the third party a consent to any such retrieval of data, Scout24 is not obligated to permit the retrieval of data.
If legal action is taken against Scout24 by a partner or third party in connection with the use of the marketplaces, an agreement with the customer, ad data provided by customers, or products or services offered for sale by customers, as applicable, the customer shall be responsible for fully indemnifying and holding Scout24 harmless, upon first request, against and from any claims and losses, including covering all court and out-of-court costs incurred by Scout24. Upon request by Scout24, the customer must also make available all documents deemed useful by Scout24 for defending against the action and must become a party to the proceedings.
The customer bears all risks that may arise from manipulations of its IT system, malfunctions in its IT system and/or improper use of access rights.
12. Liability and warranty
The marketplaces contain information and content owned by Scout24, as well as by Scout24's advertisers and partners. Scout24 strives to ensure the accuracy of this information and content but makes no express warranties or representations in this respect. This relates, in particular, to the truthfulness, accuracy, completeness and currency of the information and content. Scout24 rejects any liability for losses that may arise from the retrieval, access or use of this information and content. Such information and content are retrieved and used exclusively at the customer's own risk.
The customer is fully responsible for the products and services offered for sale by him or her via the marketplaces, as well as for the content transferred by him or her to Scout24 (in particular, for ad data, ads and print orders). Scout24 denies any liability for the customer's content. In particular, Scout24 makes no warranties or guarantees for the products and services offered for sale by the customer via the marketplaces, as well as for any contracts potentially resulting therefrom, e.g., sale contracts made among customers or with users and third parties.
Scout24 does not examine the content of websites linked to the marketplaces and is not liable for the content of such linked websites.
Scout24 is only liable in case of wilful intent or gross negligence. Under no circumstance is Scout24 liable for consequential damages or lost profits. If, despite all due diligence, Scout24 cannot fulfil its contractual obligations because of force majeure events, such as natural disasters, armed conflicts, strikes, unforeseen official restrictions, as well as technical faults that are the responsibility of third parties, the customer has no right to demand performance of the contract for the duration of the event.
Customers shall only have the right to correction by Scout24 for work assessed under the law of contracts for work. Rescission of contract and reduction of the purchase price are excluded. To the extent permitted by law, Scout24 excludes any liability for consequential damages.
Scout24 is not liable for any misuse of the Internet or for associated damages caused to the customer by third parties, for safety defects and interruptions of the telecommunications networks of third parties and the Internet, or for interruptions of operation and disruptions of the marketplaces and third-party offerings.
13. Legal status of Scout24 / SMG
Scout24 respectively SMG is not a party to contracts between customers, users or other third parties regarding products and services offered for sale by customers via the marketplaces. Scout24 respectively SMG is in no way responsible for the conclusion of the contract and for any associated risks.
The information and content reproduced on the marketplaces do not establish an offer, an invitation to make an offer or a recommendation concerning rental and/or purchase by Scout24.
Scout24 is authorised but not obligated to control users' and customers' behaviour and their content on the marketplaces or to verify their lawfulness.
14. Use of services of partners of Scout24
With each use of services of partners of Scout24 that are integrated into the marketplaces, the customer accepts the respective terms and conditions regarding the use of these services.
15. Prohibition on offsetting
The customer is not authorised to offset his or her claims against claims by Scout24 respectively SMG.
16. Prohibition on assignment
Without Scout24's written consent, the customer may not assign his or her contractual relationship with Scout24 to a legal successor, nor may claims arising from the contractual relationship with Scout24 be assigned to any third party without Scout24's written consent.
17. Confirmation and changes to these General Terms and Conditions
The customer confirms these General Terms and Conditions each time he or she pays for an ad and publishes it on one of Scout24's market platforms. In doing so, the most current version of the GTCs is available to the customer at all times.
Scout24 reserves the right to amend these General Terms and Conditions at any time. The current version will be published in an appropriate location on the marketplaces.
18. General provisions
If any provision of an agreement proves invalid or unenforceable, it shall cease to apply only to the extent to which it is invalid or unenforceable, and shall be replaced by a provision that is as consistent as possible with the economic intent of the invalid or unenforceable provision. Any omissions in the respective agreement must be filled with provisions that are as consistent as possible with that which the parties would have agreed upon, based on the spirit and purpose of the agreement, if they had considered the specific issue when they concluded the respective agreement.
19. Applicable law and jurisdiction
These General Terms and Conditions are exclusively subject to Swiss law, excluding its international conflict of laws rules [Swiss Act on International Private Law (IPLA)]. The exclusive place of jurisdiction and performance is at the headquarters of SMG. SMG is also authorised to take legal action against the customer at his or her registered office/domicile.
Version: 8 May 2018 – SMG Swiss Marketplace Group Ltd.