General
Terms and Conditions of Trade f
or 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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