General Terms and Conditions applicable to the use of Tunneltrade.com
§ 1 Scope
1. Tunneltrade.com is operating databases accessible via the internet that provide the possibility of posting construction equipment, machinery, materials, services and job offers and in which the above goods and services may be searched by means of the search function made available by Tunneltrade.com and which serve as a platform for advertisers.
2. These General Terms and Conditions shall apply to any business undertaken between Tunneltrade.com and the users of the databases operated by Tunneltrade.com and the advertisers, respectively. By using Tunneltrade.com the advertising or searching party acknowledges the current version of the General Terms and Conditions of Use. The latter shall apply notwithstanding any contrary terms and conditions of the users.
3. The databases operated by Tunneltrade.com are protected by sections 108 ff of the Copyright Act. In accordance with these provisions, any misuse of the databases may even be punished with imprisonment.
§ 2 Placement of advertisements
1. The placement of advertisements in Tunneltrade.com as well as a renewal of the placement period is free of charge up to 2 adverts per year and User at a maximum.
2. The commercial usage of Tunneltrade.com takes place by means of renting of a so called “Tunnelshop” with associated company presentation. The respective cost and conditions for such a “Tunnelshop” will be negotiated between Tunneltrade.com and the customer.
§ 3 Conclusion of contract
1. By transmitting the contents to be included into the databases and by separately transmitting the respective user data as well the user gives permission for the immediate execution of the respective service by Tunneltrade.com. Tunneltrade.com accepts this bid by activating the respective advertisement. The advertiser undertakes to make truthful statements.
§ 4 Amendments to the General Terms and Conditions
Amendments to the General Terms and Conditions shall be posted by making the latter available on the Tunneltrade.com website by indicating the respective amendment date. The new advertisement rates as well as the amended General Terms and Conditions shall apply to all advertisements placed in the database or renewed as of the respective date of change and/or amendment.
§ 5 Requirements regarding the contents and the format of the advertisements
1. Permission to place advertisements is exclusively restricted to advertisements that are of interest to the building industry.
2. The advertiser undertakes to make truthful statements regarding the contents of their advertisements. False statements made by mistake (e.g. typing errors, allocation to wrong categories) must be immediately corrected after being detected.
3. Advertisements may be illustrated via photos. In particular the use of proprietary or patented catalogue photos, graphic symbols, trademarks, logos, letters, numerals etc. shall not be admissible, unless they are used by theirespective rights owners.
4. The advertiser must actually have the material on offer or offered services at their disposal. They must not offer items/services yet to be ordered. At the date of ad placement, the material on offer must be physically located on the site of the advertiser and/or be located in a place named by them for physical inspection. During the ad placement period, the advertiser has to be able to immediately conclude a legally valid purchase agreement on the offered material or a legally valid service agreement on the offered service with a prospective buyer.
5. By placing their advertisements and entering photos into the Tunneltrade.com databases the advertiser confirms that they have the absolute right to use these photos and that the latter are not encumbered with any rights of third parties – in particular not with any copyright held by such a third party.
6. The formulation, contents optical layout and purpose of the advertisement must not be in violation of the applicable laws and regulations of the Federal Republic of Germany. Trades people have to pay particular attention to the respective price regulation. Inter alia, the advertiser must clearly state whether the quoted price is inclusive or exclusive of value-added tax.
7. Furthermore, it will not permitted to state so-called service numbers (value-added services) resulting in increased telephone charges in the event of a call. The dial-in numbers: 0190 and 0900 shall always be inadmissible.
§ 6 Legal consequences of disregarding these General Terms and Conditions when placing the advertisement
In the event of a violation of § 5 paragraphs 1 – 7 of these General Terms and Conditions, Tunneltrade.com shall be entitled to reject the respective advertisements, edit them without prior notification or reminder and delete all or part of them and to permanently exclude advertisers from participation. The same shall apply to other cases of misuse in connection with the placement of advertisements.
§ 7 Responsibility for the contents of the advertisements
1. As a provider of services in the sense of the Tele-Services Act (TDG), Tunneltrade.com will store third party information for users in databases accessible via the internet and merely provide the technical requirements for a transfer of information (advertisements) and shall not form part of the contractual relationship between the seller and the prospective party or buyer, neither as an intermediary nor as a contracting party or representative of any contracting party. The advertiser shall be solely responsible for the contents and layout of the advertisements. Tunneltrade.com will not be obliged to verify the lawfulness of the stored advertisements with regard to their contents and layout. As a rule, neither the accuracy of the contents of the advertisement nor the identity of the advertiser can be reviewed and/or verified by Tunneltrade.com.
2. Tunneltrade.com shall not be liable for any loss or damage arising from any inaccuracy or incompleteness of advertisements or the misuse of data by any third party.
3. Tunneltrade.com excludes any warranties or liability to the effect that the advertisements comply with the statutory requirements of the country in which the latter may be retrieved from the database or in which the selling party is headquartered.
4. Tunneltrade.com expressly excludes any warranties or liability that may arise from the fact that purchase agreements initiated or concluded on the basis of Tunneltrade.com advertisements are not enforceable under the national law of the respective country concerned or may in any other way cause any legal or economic detriment suffered by one or two of the parties to the purchase agreement.
5. The advertiser shall indemnify and hold Tunneltrade.com harmless from and against all claims asserted by any third party in connection with the publication of advertisements. Moreover, any expenses incurred in minimising a loss shall also be borne by the advertiser.
§ 8 Currentness of database, deletion of advertisements
To ensure that the search will be as interesting and successful as possible, Tunneltrade.com will make every effort to ensure the currentness of the database. For this reason, the advertiser is to delete an advertisement as soon as the respective material on offer has been sold or is no longer available for any other reason.
§ 9 Guarantee
1. Should an advertisement not be retrievable from the database within the agreed placement period due to any circumstances that are not beyond the control of Tunneltrade.com, Tunneltrade.com shall initially be entitled to extend the period or perform its obligations at a later point in time.
2. In the event of force majeure, Tunneltrade.com shall be exempt from its obligation to perform. Acts of God are defined as unforeseeable events such as events whose impact on the performance of a contract is beyond the control of any of the contracting parties. In particular, these events include legal industrial action, also in third-sector companies, government measures, failure of communications networks and gateways of other providers, interruptions and malfunctions in the responsibility of line providers, other technical failures or breakdowns, even if these circumstances fall under the responsibility of subcontractors, sub-suppliers or their subcontractors or the operators of sub-host computers authorised by the provider. The advertiser shall not be entitled to raise any claims in the event of failures and breakdowns beyond the control of Tunneltrade.com.
3. Claims for damages from Tunneltrade.com shall be excluded irrespective of the cause in law, unless Tunneltrade.com, its fulfilment agents or legal representatives have violated the contract intentionally or in a grossly negligent way. In either case, Tunneltrade.com’s liability shall not exceed the amount of the fee due for part of the delivery or service to be performed by Tunneltrade.com and from which the claim for damages results.
4. Absolute liability as well as any liability for damages incurred by the advertiser or third parties due to slight negligence shall be precluded. We make express mention of the fact that Tunneltrade.com shall not be liable for any damages incurred by the advertiser or third parties due to technical problems or other events beyond the control of Tunneltrade.com that entail that the offers are not displayed or not presented in the delivered design in a timely or permanent manner during the placement period of the advertisement. Moreover, any liability for loss of profit shall also be excluded.
§ 10 Violations of these General Terms and Conditions, other violations
Tunneltrade.com is entitled to exclude users of the Tunneltrade.com databases from using the latter in the event of
• any violation of these General Terms and Conditions
• false statements on the part of the advertiser
• infringement of the rights of third parties in connection with the use of Tunneltrade.com
• default of payment
• any other kind of misuse or any other important reason.
§ 11 Data protection
The user agrees to their data being electronically stored in accordance with the data protection laws applicable in the Federal Republic of Germany.
§ 12 Copyrights and rights of use
1. All data, information, logos, texts, programmes and pictures are subject to copyright law, with Tunneltrade.com holding the rights of use in its capacity as holder of all rights concerning the contents of the website and the database. Any alteration, further processing or use in any kind of media will be subject to the written approval of Tunneltrade.com. The rights of the advertiser will remain unaffected.
2. Advertisements, in particular, shall be subject to the exclusive right of use on the part of Tunneltrade.com. An advertisement or elements of advertisements, in whole or in part, may only be further processed, altered or published on other websites or other media or stored in databases by third parties with the written permission of Tunneltrade.com. This will not affect the advertisers’ rights to their advertisements. They may continue to freely dispose of their own data and information.
§ 13 Place of performance, validity of German law, jurisdiction
(1) The services of Tunneltrade.com consist in placing advertisements and making them accessible in Tunneltrade.com databases via the World Wide Web. Legally and technically speaking, these services are rendered in Voerde/Germany. Thus, in legal terms, Voerde / Germany shall constitute the place of performance. Any other place from which Tunneltrade.com may be accessed shall not be considered with regard to any contractual, liability or legal claims arising from and in connection with the place of performance. Tunneltrade.com shall not give any warranty for the advertisements being in compliance with the legal requirements of the country in which the offers and data may be retrieved.
(2) The use of the services offered by Tunneltrade.com as well as these General Terms and Conditions of Tunneltrade.com shall be exclusively governed by the laws of Germany as to their application and interpretation. The application of the UN Convention on Contracts for the International Sale of Goods dated 11 April 1998 shall be excluded.
(3) The place of performance shall be Voerde / Germany. Any claim or controversy arising out of or relating to the use of the Tunneltrade.com databases shall be subject to the jurisdiction of xxx, provided that the user is a businessman in the sense of the German Commercial Code. The same shall apply when the party changes its residence by moving to another country after the conclusion of the contract or is not subject to German jurisdiction.
(4) The above choice of law and agreement on jurisdiction shall not apply to consumer contracts whenever mandatory international or European consumer protection laws override these provisions by excluding the above choice of law or agreement on jurisdiction.
§ 14 Severability
The invalidity of any provision of these General Terms and Conditions shall not affect the validity of the remaining provisions of these Terms and Conditions. Primarily, these invalid provisions shall be replaced by valid provisions that come as close as possible to the respective invalid provisions and, secondarily, by statutory provisions.