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Terms of use

 

§ 1 General regulations


 
(1) The company EBITUMEN GmbH [Beethovenstr. 24, 69221 Dossenheim HRB 731212] (hereinafter "Platform Operator"), represented by Christian Landes, offers merchants within the meaning of the German Commercial Code and legal entities under public law (hereinafter "Users") the opportunity within the scope of a service contract to permanently use our business-to-business trading system on the online marketplace operated by us (hereinafter "Marketplace") in accordance with the provisions of these Terms of Use.
 
(2) These General Terms and Conditions conclusively contain the terms and conditions applicable between the platform operator and the user for the services offered by EBITUMEN GmbH within the framework of this service contract on the website www.ebitumen.pro. Regulations deviating from these Terms of Use shall only apply if they are confirmed in writing by A. With the admission according to § 3 of these general terms and conditions, the user acknowledges these terms of use as authoritative.
 
(3) Should it become necessary as a result of changes to the legal framework or changes to our services, the platform operator can adapt these general terms and conditions of business and use or any additional conditions at any time in a reasonable manner. Users are therefore requested to review these Terms of Use periodically.
 
The platform operator will inform the user in writing, by fax or by e-mail of any changes to these terms of use. If the user does not object to such changes within six weeks of receipt of the notification, the changes shall be deemed agreed. The user will be informed separately of the right of objection and the legal consequences of silence in the event of a change to the terms of use.


§ 2 Services of the Platform Operator / Contractual Partner


 
(1) The platform provides a virtual marketplace for the sale and purchase of standardized bitumen. A contract between buyer and seller is always based on 70/100 bitumen. Deviations from this standard are additionally determined by a surcharge price list by the seller. The marketplace has extensive functionalities for the administration and monitoring of all current business transactions.
 
(2) The user contract for this platform is concluded:
 
EBITUMEN GmbH [Beethovenstr. 24, 69221 Dossenheim, HRB 731212]
 
(3) The platform operator shall provide the users with the technical means to initiate, conclude and process sales contracts for goods offered by third parties by means of the platform services.
 
The services of the platform operator consist among other things in:
a.    Provision of the personnel and technical equipment required to maintain the platform as a virtual marketplace and means of communication between users;
b.    Provision of the possibilities of use of the marketplace after the user has been admitted in accordance with § 3;
c.    Enabling contracts to be concluded on the marketplace 
d.    Creation of information and communication facilities between users and contracting parties;
e.    Consulting and support services for users according to a separate agreement with the platform operator
f.    The platform operator itself does not offer any goods for sale, does not purchase any offered goods and does not become a contractual partner of the contracts concluded exclusively between the users of the platform. The respective users are solely responsible for the posted offers and all contract contents agreed between them. The buyer of the goods bears the risk that the delivery may fail. The platform operator is in no case liable for breaches of contract between the users of the platform.


§ 3 Admission and Access to the Marketplace


 
(1) The prerequisite for using the marketplace is approval by the platform operator. The marketplace is only available to merchants within the meaning of the German Commercial Code (HGB) and legal entities under public law who acquire or sell goods in accordance with § 2 paragraph 1 of these terms and conditions. There is no entitlement to admission or use of the marketplace.
 
(2) If the registration takes place online, the user must state his company data, invoice data and contact details in the application for admission. The online application for admission is accepted by confirmation of admission by e-mail. The buyer has to pay a payment in the form of a transaction fee to the platform operator, which is due upon conclusion of a contract.
 
(3) Unless otherwise agreed, the remuneration due in each case shall be
a. 1% of the transaction volume of a concluded contract between buyer and seller. 
b. is due for payment at the applicable tax rate in the case of transaction-related invoicing and immediately after invoicing without deduction, but plus value-added tax. With the spoke

(3) Unless otherwise agreed, the remuneration due in each case - shall be
a. 1% of the transaction volume of a concluded contract between buyer and seller. 
b. is due for payment at the applicable tax rate in the case of transaction-related invoicing and immediately after invoicing without deduction, but plus value-added tax. The user agrees to the storage of the accounting data for the purpose of proof and/or within the scope of the statutory storage obligations.
(4) Via the master login transmitted in the confirmation of admission, the user has the possibility to grant the employees in his company their own access authorisation and to configure it according to his wishes in order to enable them to work optimally on the marketplace.
 
(5) The user is responsible for ensuring that the information provided by him to the portal operator and other users is objectively true and complete, in particular within the scope of his application for admission pursuant to Para. 2. He undertakes to inform the portal operator immediately of any future changes to the information provided. The same applies to all information provided by the user when setting up employee logins.
 
(6) The portal operator is entitled to withdraw a user's admission or to block access to the marketplace if there is sufficient suspicion that he has violated these terms of use. The user can avert these measures if he removes the suspicion by presenting suitable evidence at his own expense.
 
(7) The user is obliged to keep login and password secret and to protect them from unauthorized access by third parties. The user is also responsible for the secrecy of any employee logins and will instruct his employees accordingly. In case of suspicion of misuse by a third party, the user will inform the portal operator immediately.

 

§ 4 Conclusion of Contracts on the Marketplace

 


(1) Purchasers have the opportunity to open inquiries and do not contain a legally binding offer within the meaning of § 145 BGB (German Civil Code), but represent only an invitation to submit offers ("invitatio ad offerendum") by a seller. If the seller subsequently prepares a corresponding offer, the purchaser can accept this after examination, whereby the contract is concluded directly, cf. also § 4 (3). An inquiry is valid for 3 working days during which sellers have the opportunity to respond to the inquiry by submitting a price. If no offers are made by the seller, the inquiry expires after 3 days. An offer from the seller is valid until 12:00 noon on the following working day. If the buyer does not respond to the offer within this period, the offer expires. The purchaser determines in his inquiry a quantity, a desired price and a period within which this can be queried. The total quantity can be allocated to individual months. The desired price represents the purchaser's price idea and serves as orientation for the seller. The purchaser selects regions from which these offers would like to receive his inquiry. This process applies to both delivery modes ex works and carriage paid. To release a quantity, a release order manager is provided by on the marketplace so that partial quantities of the total quantity can be released within the specified period. The minimum purchase quantity of a call-off is 25 tons.

EBITUMEN guarantees maximum anonymity between buyer and seller until the contract is concluded. By registering as a buyer, the buyer transfers the power of attorney to EBITUMEN GmbH to forward the request to the seller. When a contract is concluded, EBITUMEN GmbH does not become part of the contract, but acts as an intermediary and provides the technical infrastructure. By accepting the general terms and conditions, purchasers and sellers agree to the processes that follow upon registration:

In the case of an inquiry in the delivery mode "ex works", sellers in the previously selected regions receive the inquiry of the purchaser. The seller does not receive any information about the purchaser's identity at this time. The purchaser does not receive any information about the exact location of the sellers in the previously defined regions. Only when a contract is concluded will the complete addresses of the contracting parties be published and documented in writing in a contract. In the case of an inquiry in the " carriage paid " delivery mode, sellers in the previously selected regions receive the inquiry from the purchaser. The seller receives the first three digits of the buyer's zip code in the inquiry so that the buyer can calculate the logistics costs. Only when a contract is concluded will the full addresses of the contracting parties be published.

 

 (2) Sellers have the option of selecting buyers according to individual criteria and submitting binding offers for their tenders and inquiries. The offers of a seller are binding and irrevocable declarations for the conclusion of the contract tendered or requested by the buyer.

 

(3) Where several offers have been obtained, the buyer shall be free to choose whether and which of the offers received he wishes to accept. Unless the Buyer and the Seller agree otherwise, a contract shall be concluded when the Buyer confirms the "Confirm Conditions" button on the Seller's offer, which either already exists from the outset or has been submitted on request. The conclusion of an effective purchase contract between buyer and seller is confirmed by an automatically generated e-mail from the platform operator.

 

(4) Actions using the respective login of a user are generally attributable to the user. Users are responsible for all declarations of intent made on the platform themselves. For declarations made by third parties under the User's member account, they shall be liable to a foreseeable extent in accordance with the principles of a contract with protective effect for third parties.

 

(5) For all transactions on the marketplace, the system clock time applicable on the platform of the respective marketplace shall apply exclusively.

 

§ 5 Obligations of Users

 

1. Submission of an offer shall not take place if:

a. the information is so incomplete that the subject matter, delivery period and price cannot be determined;

b. the opening of the offer in accordance with the legal system applicable to the intended contract would violate statutory provisions, official orders or morality. In particular, no items may be offered whose offer or sale violates the rights of third parties. The portal operator is entitled to remove such an offer from the marketplace immediately. It is the user's responsibility to ensure that his offers, including the images used and other content, are legal and do not violate the rights of third parties.

 

(2) The description of the offer as well as any pictures used may only refer to the goods offered. Advertising for goods not offered on the platform is not permitted. Within the scope of using the platform services, only such quality seals, guarantee marks or similar symbols of third parties may be used which the user is entitled to use.

 

(3) By submitting a legally effective offer, the seller guarantees that he has unlimited access to the goods offered and can deliver them in accordance with the agreement made.

 

§ 6 Processing of contracts concluded on the marketplace

 

(1) The handling of contracts concluded on the marketplace is the sole responsibility of the respective user. The portal operator does not assume any guarantee for the fulfilment of the contracts concluded on the marketplaces between the users for the contracts concluded on the marketplaces nor any liability for material defects or defects in title of the traded goods and services. The Portal Operator is under no obligation to ensure the fulfilment of the contracts concluded between the Users.

 

(2) Despite careful examination during registration, the portal operator does not assume any liability for the true identity and the right of disposal of the users. In case of doubt, both contracting parties are obliged to inform themselves in a suitable manner about the true identity and the power of disposal of the other contracting party.

 

§ 7 Liability of the Platform Operator

 

(1) The user is aware that all information posted on the platform is based on statements made by the respective user, for which the platform operator has no responsibility whatsoever and which the platform operator neither checks for content nor completeness. This also applies to any assurances and agreements of the individual users with regard to all information necessary for delivery.

 

(2) The platform operator does not guarantee the technical availability of the platform and the corresponding platform services at all times. He endeavours to keep the platform usable to the greatest possible extent within the framework of the state of the art. The platform operator is entitled to temporarily shut down the platform as far as this is necessary for technically usual and/or necessary maintenance, improvement and security measures. In these cases, the platform operator takes the interests of the users into account, for example by providing advance information on the platform as far as practicable, and endeavours to keep impairments to a minimum.

 

(3) The portal operator is liable in accordance with the statutory provisions for intent and gross negligence, for slight negligence, however, only in the event of breach of essential contractual obligations.

The liability in case of violation of such an essential contractual obligation is limited to the damage typical for the contract, the occurrence of which the portal operator had to reckon with when concluding the contract due to the circumstances known at that time.

 

(4) The portal operator assumes no liability for disturbances within the line network for which the portal operator is not responsible.

 

(5) The portal operator is only liable for the loss of data in accordance with the above paragraphs if such a loss could not have been avoided by appropriate data backup measures on the part of the user.

 

(6) Liability does not extend to impairments of the contractual use of the services provided by EBITUMEN GmbH on the marketplace caused by improper or incorrect use by the user.

 

(7) The above limitations of liability shall also apply mutatis mutandis to the vicarious agents of EBITUMEN GmbH.

 

(8) Insofar as the marketplace provides a means of forwarding to databases, websites, services, etc., EBITUMEN GmbH shall not be liable for any damages incurred as a result of such forwarding. The portal operator shall not be liable for the accessibility, existence or security of these databases or services, nor for their content, to third parties, e.g. through the inclusion of links or hyperlinks. In particular, EBITUMEN GmbH is not liable for the legality, accuracy, completeness, up-to-dateness, etc. of these databases or services.


 
§ 8 Foreign contents


 
(1) Users are prohibited from posting content (e.g. links or frames) on the marketplace that violates legal regulations, official orders or morality. Furthermore, they are prohibited from posting content that infringes the rights of third parties, in particular copyrights or trademark rights.
 
(2) The portal operator does not under any circumstances adopt third-party content as his own. The user guarantees the platform operator and the other users of the platform that the goods offered by him in tenders do not infringe any copyrights, trademarks, patents or other protective rights or trade secrets.
 
(3) The User shall indemnify the Portal Operator against all claims asserted by third parties against the Portal Operator due to the violation of their rights or due to violations of the law due to the offers and/or content posted by the User, insofar as the User is responsible for these. In this regard, the user also assumes the costs of the legal defense of the portal operator including all court and attorney fees.


§ 9 Other obligations of the user


 
(1) The user is obligated,
a. establish and maintain the necessary data protection arrangements throughout the term of the contract. This essentially refers to the careful and conscientious handling of logins and passwords;
b. inform the portal operator immediately of any technical changes occurring in his area if they are likely to impair the provision of services or the security of the portal operator's marketplace;
c. to participate in the clarification of attacks by third parties on the marketplace, insofar as this participation by the user is necessary;
d.    to conduct business on the marketplace exclusively within the scope of commercial business operations for commercial purposes.
 
(2) The user undertakes to refrain from all measures which endanger or disrupt the functioning of the marketplace and not to access data to which he is not entitled. Furthermore, he must ensure that his information and data transmitted via the marketplace are not afflicted with viruses, worms or Trojan horses. The User undertakes to compensate the Portal Operator for all damages arising from the failure to comply with these obligations for which the Portal Operator is responsible and, in addition, to indemnify the Portal Operator against all claims by third parties, including attorneys' fees and court costs, which they assert against the Portal Operator due to the User's failure to comply with these obligations.

 

 § 10 Data security and data protection declaration


(1) The portal operator's servers are secured according to the state of the art, in particular by firewalls. However, the user is aware that there is a risk for all participants that transmitted data can be read out in the transmission path. This applies not only to the exchange of information via e-mail leaving the system, but also to the integrated messaging system and to all other transmissions of data. The confidentiality of the data transmitted during the use of the marketplace cannot therefore be guaranteed.
 
(2) The user agrees that the portal operator may store information and data about the course of contract initiations and conclusions as well as the behaviour of buyers or sellers during the execution of these transactions in an anonymised form and use them exclusively in this anonymised form for marketing purposes, e.g. for the compilation of statistics and presentations.
 
(3) A is entitled, during the term of the user contract, to process and store the data received from the user in connection with the business relationship in compliance with the provisions of the applicable data protection provisions. In detail, the user agrees that the portal operator:
a. stores and processes the information provided by the user within the scope of the application for admission regarding company data, invoice data and contact persons of the user as well as corresponding updates communicated by the user;
b. stores the data independently entered into the marketplace by the user in connection with the desired company presentation in the trading area under administration and makes it available to other registered users for retrieval in the public and closed areas of the marketplace;
c. stores non-personal data on the content of the transactions and forwards it to other users and - if the affected user so wishes by selecting a public transaction - makes it available to other registered and non-registered users for retrieval in the public area of the marketplace.
 
(4) The further use of personal data beyond the aforementioned use requires the separate consent of the user. The user is entitled to revoke his consent granted pursuant to Para. 3 at any time, provided that he has hereby consented to the use of personal data.
 
(5) The portal operator will otherwise treat as confidential all data concerning the user which are marked as confidential by the user and will only use them in accordance with these terms of use. The portal operator reserves the right to deviate from this if he has to disclose data of the user due to legal or official orders.
 
(6) With the admission according to § 3 the user takes over the guarantee towards the portal operator and all other users that the data protection requirements have been observed by the user with regard to the data transmitted by him and exempts the portal operator from any claims, also of a public law nature. In particular, the user himself must ensure that any necessary consent is obtained from employees before personal data of employees is entered into the platform within the framework of setting up employee logins or in any other way.

 

§ 11 Assignment and set-off


 
(1) A partial or complete transfer of the user's rights from the contract with the portal operator to third parties is excluded.
 
(2) The user is only entitled to offset against A with undisputed or legally binding counterclaims.
 
§ 12 Duration of contract
 
(1) The contract on which these terms of use are based is concluded for an indefinite period of time. It begins with the admission by the portal operator according to § 3.
 
(2) The contract can be terminated by both parties with a notice period of three months to the end of the month.
 
(3) Each party has the right to terminate the contract for good cause without notice. An important reason is in particular for the portal operator:
a. the violation by a user of the provisions of these Terms of Use, which is not remedied even after setting a deadline;
b. the tortious act of a user or the attempt of such, e.g. fraud;
c. the delay of the user with the payment obligation according to the payment to be made by the user according to § 3 Abs. 2 and 3 by more than six weeks.
d. ongoing operational disruptions as a result of force majeure beyond the control of EBITUMEN GmbH, such as natural disasters, fire, the collapse of pipeline networks through no fault of EBITUMEN GmbH.
 
(4) Any termination must be made in writing. Notices of termination by fax or e-mail must be made in writing.

 

§ 12 Duration of contract

 

(1) The contract on which these terms of use are based is concluded for an indefinite period of time. It begins with the admission by the portal operator according to § 3.

 

(2) The contract can be terminated by both parties with a notice period of three months to the end of the month.

 

(3) Each party has the right to terminate the contract for good cause without notice. An important reason is in particular for the portal operator:

a. the violation by a user of the provisions of these Terms of Use, which is not remedied even after setting a deadline;

b. the tortious act of a user or the attempt of such, e.g. fraud;

c. the delay of the user with the payment obligation according to the payment to be made by the user according to § 3 Abs. 2 and 3 by more than six weeks.

d. ongoing operational disruptions as a result of force majeure beyond the control of EBITUMEN GmbH, such as natural disasters, fire, the collapse of pipeline networks through no fault of EBITUMEN GmbH.

 

(4) Any termination must be made in writing. Notices of termination by fax or e-mail must be made in writing.

 

§ 13 Final provisions

 

(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
 
(2) The place of jurisdiction for all legal disputes is Heidelberg. The portal operator is also entitled to sue at the general place of jurisdiction of the user.
 
(3) Should individual provisions of these Terms of Use be or become invalid and/or contradict the statutory provisions, this shall not affect the validity of the remaining Terms of Use. The ineffective provision shall be replaced by mutual agreement between the parties by a provision which comes closest to the economic purpose of the ineffective provision in a legally effective manner. The foregoing provision shall apply mutatis mutandis in the event of loopholes.