General
Terms and Conditions of Trade for Online Auction Procedures
* * *
More and more often internet platforms are operated for online
business-to-business auctions and sales for all kind of goods through a
website. Companies allow participants to trade directly with each other as
tenderer or seller and bidder or buyer.
It is advisable to apply General Terms and Conditions of Trade to all
(potential) tenderers/sellers in Online auctions.
Under German law it is possible to agree Online upon General Terms and
Conditions of Trade which apply to all (potential) bidders/buyers and
tenderers/sellers in auctions (regardless of the physical location of the
individual accessing user) if the party which uses general terms and
conditions explicitly refers to those general terms and conditions and the
other party has the opportunity to gain knowledge of these terms in an
acceptable way.
Even extensive terms and conditions become part of the contract if the other
party has the possibiltiy to copy them for no charge.
Differing from auctions in the common sense, Online auctions are held by way
of the tenderer posting a binding sales offer at an open purchase price,
thereby inviting competitive bids.
The following is a statement of terms and conditions of trade for
tenderers/sellers relating to the use of a platform of a company acting as an
auction house for online (business to business) auctions and sales. The
Company is hereinafter referred to as Auction House.
Such terms should include a provision relating to
(1) the auction procedure itself, to the so-called
reservation price and to the so-called instant clearance price,
such as:
In auctions, the tenderer posts a binding sales offer at an
open purchase price which may be accepted by the bidder as it submits bids on
a particluar posting. The tenderer can, but is not required to indicate:
·a
reservation price, meaning a price below which it is not prepared to sell
and/or
·an instant clearance
price, meaning a price at which the tenderer agrees the auction being closed
and the contract being awarded.
(2) what a binding sales offer by the tenderer shall contain,
such as
To post an offer, the tenderer shall indicate:
a)product(s) and quantity(ies) to be
sold,
b)specific date of the beginning of
the offer and the end of auction,
c)the amount of the instant clearance
price and/or the reservation price, where applicable as well as,
d)an opening price at which the
auction will begin. In the event that a reservation price has been set, the
opening price cannot reflect a discount of more than 20 % of the reservation
price.
(3)the
currency and Inco terms, such as
The tenderer/seller specifies the settlement currency and
selects the exact Inco terms that apply to given posting. All prices are
stated exclusive of any taxes.
(4)
the irrevocable and binding nature of an offer, such as
When posting an offer on the database of Auction House, the
offer is deemed to be an irrevocable and binding sales offer until the end of
auction from the point in time when the reservation price has been reached for
the first time by a bidder or when the instant clearance price has been
accepted by a bidder.
(5)
the obligation of tenderer to transfer ownership, such as
In an auction without reservation price or instant
clearance price, the tenderer is obligated to transfer ownership in the
offered product to the relevant bidder at the price corresponding to the
highest bid at the end of auction. If an instant clearance price or a
reservation price have been set, the tenderer is only obligated to transfer
ownership if the bid corresponds at least to the reservation price or the
instant clearance price has been bid.
(6)
the binding nature of the bid, such as
Upon submitting a bid to the database of Auction House,
this bid is deemed to be irrevocably submitted until the end of auction,
meaning that the bidder may increase but not reduce or take back its bid. All
bids are binding unless they do not reach the reservation price, where a
reservation price has been set.
Only bids which are submitted in compliance with these
General Terms and Conditions of Trade take part in the auction.
(7)
the end of auction and payment of purchase price, such as
The auction for a specific product ends:
a)in case ofan auction with instant
clearance price, when the instant clearance price is bid,
b)in case of an auction with no
instant clearance price or in which the instant clearance price has not been
bid, with the end of the auction determined by the tenderer of this product,
c)upon withdrawal of a sales offer
before it becomes binding and irrevocable (see no. 4).
(8)
the information of tenderer and bidder and obligation of winning bidder to pay
the purchase price, such as
Immediately after the end of auction, the tenderer and the
winning bidder will be informed about the outcome of the auction.
The winning bidder undertakes to pay the offered purchase
price and related taxes to the tenderer pursuant to the terms and conditions
of sale referred to by the tenderer ( and in absence of any such provision
within 14 working days after Auction House releases the identity of the
tenderer to the bidder.
(9)
the award of the contract and the conclusion of the purchase contract,
such as
The bidder with the highest bid at the end of the auction
shall be awarded the contract if that bid is at or above the reservation
price, where a reservation price has been set.
When the contract is awarded, a purchase contract is
validly concluded between the tenderer and the bidder being awarded the
contract. The purchase contract is governed by the contractual conditions
indicated by the tenderer in its offer or in the absence of such specific
conditions by the relevant statutory provisions of the jurisdiction chosen by
the tenderer or in the absence of a choice of law by the relevant provisions
of the German Civil Code.
(10)
possible negotiations between buyer and seller outside the auction procedure
If the tenderer and a bidder negotiate outside the auction
procedure for any product listed in on thedatabase of Auction House, the
tenderer and the bidder agree to return to the auction procedure once
negotiations are completed where the bidder shall submit a bid, and the
parties shall follow the procedures outlined in these General Terms and
Conditions, including the payment of the service commission/fee.
(11)
the exclusion of tenderers/sellers; the rejection or amendment of offers,
such as
Auction House may exclude any participant from any auction
if the participant has violated these General Terms and Conditions of Trade.
Auction House furthermore reserves the right to exclude
products from offers, to refuse or pull-back acceptances, bids or offers as
well as to discontinue single auctions or its services all together.
(12)
the limitation of liability, such as
Auction House shall not be liable for declarations or
ommissions from the participants.
Auction House shall not be liable for the credit-worthiness
of the bidder/buyer.
Auction House hereby expressly disclaims all responsibilty
and liabilty which may arise from the payment processes between bidder/buyer
and tenderer/seller.
Auction House hereby expressly disclaims all responsibility
and liability with regard to
-the
publication of the posted auctions
-the
posting/acceptance of offers/products
-the
consideration of submitted offers
-the
functioning of the Auction House system
-the
indisturbed execution of auctions
Auction House shall not be liable for damages occurred when
accessing the site of Auction House which the tenderer/seller could have
prevented with reasonable means, in particular program and data protection as
well as security or back-up features.
(13)
liabilty of tenderer/seller, such as
The tenderer/seller is liable to Auction House for all
damages that Auction House incurs due to a violation on the side of the
tenderer/seller of the laws of these General Terms and Conditions of Trade and
is obligated to exempt Auction House from any and all possible claims of third
parties. In particular, the tenderer/seller is liable to Auction House for
damages which Auction House or third parties incur due to negligent
transmitting of defective/viral data.
(14)
posting fee and service commission, such as
Upon posting a product listing, the tenderer/seller is
obligated to pay the applicable posting fee which is due and payable
immediately upon receipt of a respective invoice.
The tenderer/seller is obligated to pay to Auction house a
service commission in the amount of a certain percentage of the offered
purchase price agreed upon plus relevant statutory taxes and duties (in
particular statutory value added tax). The service commission is due and
payable upon receipt of the respective invoice from Auction House.
The (further) development of the legal relations between
the tenderer/seller and the bidder/buyer is irrelevant for Auction House´s
commission claim. In particular a rescission of the purchase contract or a
non-payment or reduction of the purchase price do not result in the commission
claim to be dropped or reduced.
(15)
data protection, such as
Auction house shall transmit all information in connection
with the registration, the posting of offers and the listing of offers solely
to the other participants in the form and to the extent suitable for the
execution of the auction.
(16)
choice of law, such as
All legal relations between the tenderer/seller shall be
exclusively governed by and in accordance with German Law.
(17)
Non-assignment of rights, such as
The tenderers/sellers are not entitled to fully or
partially assign to third parties rights following from the contractual
relationship with Auction House without the prior written consent of Auction
house.
(18)
Amendment
Auction House may amend these General Terms and Conditions
of Trade at any time. Such amended terms will be posted to the web-site of
Auction House and will become effective 14 days after they are posted.
(19)
invalidity of provisions, such as
Should single provisions of these General Terms and
Conditions of Trade be or become fully or partially invalid or unenforceable,
the remainder of these General Terms and Conditions of Trade or independent
parts of such provisions shall continue in full force and effect.
In such case the parties are obligated to find an agreement
which comes closest to the economic aim intended by the invalid or
unenforceable provision. The same applies in case of an omission.
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14. Jahrgang