General Terms and Conditions of Business of Auktion & Markt AG for live auctions of used movable articles, valid from 15.04.2011, Time: 4.00 p.m.
The following sections have been amended:
Section II
Section V. no. 1. and no.2
Section VI. no. 1 – no. 6
Section VII. no. 1
Section VII.no. 3 now Section VII.no. 2
Section X. no. 1 and no. 2
Section XV
I. General matters and applicable law
1. User of these General Terms and Conditions of Business
The user of these General Terms and Conditions of Business is Auktion & Markt Aktien-
gesellschaft, a public limited company founded under German law with its head office at
Klarenthaler Strasse 83, 65197 Wiesbaden. The registered seat of the company is
Wiesbaden, where it is entered in the Commercial Register of the Magistrates’ Court of
Wiesbaden under the register number HRB 20968.
II. Object of these General Terms and Conditions of Business
The object of these General Terms and Conditions of Business is the auctioning
of movable articles by the user as a company (hereinafter referred to as the ‘Auctioneer’)
to parties who are also companies or business persons, rather than consumers (herein-
after referred to as the ‘Bidder’).
III. General Terms and Conditions of Business of other parties
The following General Terms and Conditions of Business shall also apply for future trans-
actions with the Bidder, in so far as they shall not have been replaced with others by the
Auctioneer prior to the future transactions with the Bidder being notified thereof. Any other
General Terms and Conditions of Business of the Bidder shall not apply, even if not ex-
plicitly excluded.
IV. Applicable law
The law of the Federal Republic of Germany shall apply exclusively to the agreement be-
tween the parties. The UN Convention of Contracts for the International Sale of Goods
(CISG) is hereby expressly excluded.
V. Registration and authorization as a Bidder
1. Registration
Bidders may only be companies or businesspersons within the sense of § 14 of the
German Civil Code (Bürgerliches Gesetzbuch - BGB), who acquire the used article with
a view to exercising their trade or profession, when the object of their trade or profession
is dealing in motor vehicles. Consumers within the sense of § 13 of the German Civil
Code (BGB) cannot be Bidders.
Prior to participating in the auctions, Bidders must first apply in writing and be registered.
Before being authorized to place bids, Bidders are required to declare and demonstrate
in explicit terms their character as a company or businessperson and as a dealer in
motor vehicles. The nature of the demonstration required shall be determined by the Auc-
tioneer. In the case of Bidders with their head office within the territory of the Federal Republic of Germany, the following documents are required as evidence in all cases: a copy
of the business registration (Gewerbeanmeldung), for business persons and companies
entered in the Commercial Register, the relevant extract from the Commercial Register,
and a copy of the personal identity document of the proprietor of the business (or of the
CEO or Managing Director entered in the Commercial Register). In the case of purchasers with a head office outside of the territory of the Federal Republic of Germany additionally certified translations of the above documents in the foreign language into the German language have to be supplied, foreign purchasers with a head office in a state of the European Union are also required to give notice of the valid VAT ID that has been allotted to them.
All purchasers are required to return the above documents together with the signed registration confirmation and the agreement on the choice of applicable law and responsible court of law as well as the acknowledgement of the General Terms and Conditions to the Seller.
Every bidder is required to inform the Auctioneer immediately of any changes in its (business) coordinates.
2. Authorization as a Bidder
If the Bidder has demonstrated that they are a company or businessperson in accor-
dance with the terms defined above, they shall receive a confirmation of registration from
the Auctioneer. This will be handed over to the Bidder at the auction centre or sent to the
Bidder by telefax or e-mail, and will include the bidder number assigned by the Auctioneer.
With the allocated bidder number, the Bidder will be able to participate in auctions orga-
nized by the Auctioneer throughout Germany.
VI. Conclusion of contracts
1. Invitation to place bids
The Auctioneer advertises movable articles for auction in auction catalogues. Each
movable article in the auction catalogue is given a starting price. In addition, the auction
catalogue also states for each movable article whether it is a new or a used article, and
whether, in exceptional cases, the auction is to be carried out as a ‘net auction’, that is
to say, the hammer price is to be understood as the highest bid exclusive of sta-
tutory value added tax.
2. Bid acceptance, bidding deadline, bids, binding nature of bids
The bid is accepted if it is called out three times without any higher bids being placed. The Auctioneer reserves its right to accept a bid and may turn down a bid. If several bidders place the same bid at the same time and no higher bids are placed after
it was called out three times, then a draw may be used to decide which bid is accepted.
If it is not possible to immediately agree on which bid is to be accepted, then the used
article shall continue to be auctioned. If a higher bid is placed on time and mistakenly
overlooked or other doubts exists with regard to acceptance, then the Auctioneer is en-
titled to withdraw acceptance and reoffer the used article for auction. The acceptance
of the bid obliges the Bidder to purchase the item and to pay the hammer price.
If the bid is accepted under reserve, then the bidder shall remain bound to their bid for
up to 72 hours. If the Bidder does not receive acceptance without reserve within the spe-
cified period, then they are no longer bound. If the Auctioneer accepts the bid under re-
serve, then they may at any time and without consulting with the reserve Bidder, accept
the bid of a limit Bidder or sell on the open market. It is not possible to accept any more
bids after the acceptance of the highest bid. It is also possible to place bids prior to the
auction. These bids must be in writing and must be submitted at least two days before
the auction.
3. Acceptance of the bid
The Auctioneer shall be entitled to turn down bids of the Bidder that are lower than the
starting price (displayed as ‘under reservation’ (‘im Vorbehalt’). The Auctioneer may
also turn down bids above the starting price, and shall not be obliged to accept bids
made by the Bidder. The Auctioneer will accept the highest bid, in so far as they do not
avail themselves of the right to decline to accept bids. The Auctioneer shall decide, within
the period of 48 hours, whether they will accept the bid of the Bidder. The highest bid is
accepted when the hammer is struck three times.
4. Hammer price
The hammer price corresponds to the highest bid of the Bidder and shall include the
applicable VAT at the current statutory rate as defined in the Federal Republic of Ger-
many, in so far as the auction catalogue does not expressly advertise the movable
article in question as a ‘net auction’. The Auctioneer shall send German Bidders a
properly made out invoice, showing the net hammer price and the clearly indicated
VAT amount at the current statutory level. This shall not apply if the movable article in
question is subject to differential taxation (Differenzbesteuerung) in accordance with
§ 25a of the Value Added Tax Act (Umsatzsteuergesetz - UStG).
5. Prior to placing any bids for articles subject to regular VAT (Regelbesteuerung) in ac-
cordance with the Value Added Tax Act (Umsatzsteuergesetz - UStG), Bidders from
EU states other than the Federal Republic of Germany must notify the Auctioneer in
writing of their valid international VAT identification number. Furthermore, they shall
guarantee in a written communication to the Auctioneer that the sold article will be im-
mediately conveyed to another state of the EU outside the Federal Republic of Ger-
many. The purchaser will first be issued a gross invoice on the purchase price and the costs of the contract handling. After examining and existence of the preconditions stipulated in the German VAT Act the purchaser is then issued a net invoice on the purchase price and the costs of contract handling.
6. Bidders from third countries
Bidders from non-EU states (third countries) must pay the Auctioneer a security depo-
sit in addition to the hammer price of the movable article in question:
The security deposit shall be equal to the amount of the currently applicable VAT rate
as defined in the Federal Republic of Germany. This security deposit will immediately
be reimbursed to the Bidder, as soon as it shall have been shown beyond doubt that
the acquired movable article, which is subject to regular VAT (Regelbesteuerung) in
accordance with the Value Added Tax Act (Umsatzsteuergesetz - UStG), has left the EU.
For this purpose the Bidder shall promptly submit the original of the completed
official export declaration featuring the seal of the
EU border customs office to the Auctioneer. Upon the receipt of confirmation, the secu-
rity deposit will immediately be reimbursed to the Bidder. The claim to repayment of the
security deposit may only be assigned with the consent of the Auctioneer.
VII. Auction fees
1. Besides the purchase price, the cost of handling the contract shall be borne by the purchaser. The cost of handling the contract (fees) depend on the seller’s respective valid price list, to be viewed under Price list .
2. The handling fee for the contract is payable immediately together with the hammer price.
VIII. Cost of the payment transaction and fulfillment
All foreign Bidders shall be liable for any bank charges that arise for the international
transfer of funds. The payment of the hammer price and the contract handling fee
shall occur as a cashless bank transfer. If in special cases the acceptance of cheques
or bills of exchange shall have been agreed, this shall only be for the sake of fulfilment
and not as a substitute for payment.
IX. Obligation of advance payment
After the conclusion of the contract, the Bidder shall be obliged to pay the hammer price
and the contract handling fee in advance. The Bidder shall only receive the acquired ar-
ticle after the complete fulfilment of their payment obligations.
X. Transfer of risk, collection and transfer of ownership
1. Transfer of risk
The risk of any accidental deterioration or accidental destruction of the used article
shall pass to the Bidder upon payment of the purchase price.
2. Collection
Immediately after the payment of the hammer price, the Bidder will receive a note autho-
rizing collection of the article or authorization by fax or phone. On presenting this note of
authorization the Bidder shall receive the acquired article at location of the article. Acquired
articles are to be collected by the Bidder at their own cost from the location of the article
(auction centre).
XI. Right of retention of the Auctioneer
The Auctioneer shall be entitled to refuse to issue the collection authorization and to hand
over the acquired article, as well as the relevant documents, until such time as the Bidder
shall have fulfilled all of their obligations to the Auctioneer. This also applies if these obli-
gations have arisen from other auctions and/or other legal relations between them.
XII. Withdrawal from the contract, rights in case of default of payment, offsetting
rights and rights of retention
1. Withdrawal
The Auctioneer shall be entitled to withdraw from the contract if the Bidder has made in-
correct statements about their creditworthiness or discontinued their payments, or if in-
solvency proceedings have been filed or opened on their assets. The Auctioneer shall
also be entitled to withdraw from the contract if they are unable to fulfil it. If before the
transfer of risk to the Bidder, the acquired article shall be damaged or destroyed, then the
Auctioneer shall be entitled to withdraw from the contract, provided that the Auctioneer im-
mediately notifies the Bidder of the damage or destruction, and promptly reimburses the
paid hammer price to the Bidder. After the withdrawal from the contract and the repayment
of the hammer price, neither party shall have any further claims to the other party.
2. Damages arising from default of payment
The first reminder establishing a situation of arrears in payment shall be free of charge.
The Bidder shall be charged EUR 15.00 for the second reminder, unless the Bidder shall
be able to demonstrate that the Auctioneer did not incur any expense or did not incur any
expense to this amount.
3. Interest on arrears
In case of arrears in payment, the Auctioneer shall be entitled to call for payment of interest
on arrears to the amount of eight percentage points higher than the basic interest rate that
applies at the time. The Auctioneer reserves the right to charge higher interest on other le-
gal grounds. The Auctioneer’s right to assert further indemnification claims remains unef-
fected.
4. Offsetting rights and rights of retention
The Bidder shall only be entitled to offsetting rights or rights of retention in cases where
their counterclaims have been established at law, are uncontested or have been ack-
nowledged by the Auctioneer.
XIII. Reservation of the right of modification
1. All articles that are to be auctioned may be viewed and inspected before the auction
during the specified times. The statements made about the features of the used articles
that are to be auctioned and the information in the auction catalogues have been compi-
led by the Auctioneer to the best of their knowledge and belief. Inessential deviations in
the supplied article shall be accepted by the Bidder. This applies, for example, in the
case of lesser specifications. Superior specifications are in all cases to be considered
as an improvement in the supplied article.
2. The statements made in the auction catalogues do not represent an agreement that
the article contains certain properties, nor is any kind of guarantee given or assurance
made that the article is functionally effective for any specific purpose.
XIV. Rights and liability in respect of defects in quality and title
1. Defects of quality
In the case of
second-hand articles, all claims based on defects in quality or title are ex-
cluded. In the case of new articles, the Auctioneer hereby assigns any claims
for defects
in quality to which they may be entitled against the manufacturer of the
articles (and
against the Auctioneer’s supplier) to the Bidder. The Auctioneer will however
admit liabi-
lity in a subsidiary sense for defects in quality in accordance with the sales
law of the
German Civil Code (Bürgerliches Gesetzbuch - BGB), if the manufacturer
of the articles
(or the Auctioneer’s supplier) should fail to satisfy the Bidder’s claims in
full based on
assigned rights.
2. Liability based on culpability in contractual negotiations and liability in tort
Any liability based on culpability in contractual negotiations or unauthorized actions is
hereby excluded. Any liability for gross negligence of vicarious agents is also excluded.
3. Limitation of all exclusions of liability
The aforementioned exclusions of liability do not apply for;
damages resulting from the loss of life and limb or damage to physical health, which re-
sult from a negligent breach of obligation on the part of the Auctioneer, or from a delibe-
rate or negligent breach of obligation on the part of the Auctioneer’s statutory represen-
tatives or vicarious agents; other damages resulting from a gross negligent breach of obligation on the part of the
Auctioneer, or a negligent breach of obligation on the part of the Auctioneer’s statutory
representatives or vicarious agents;
damages caused by vicarious agents, in so far as
these do not represent a breach of material contractual obligations.
4. Limitation of liability
In cases where liability cannot be excluded, liability is restricted to those damages that
typically arise in this nature of transaction.
XV. Demurrage Charges
The Auctioneer shall implement a demurrage charge plus the applicable
statutory VAT as of the first day of delayed collection. The amount of the respective due demurrage charge is listed in the respective auction catalogue.
XVI. Limitation
The period of limitation is one year from the statutory commencement of the limitation
period. The shortened limitation period does not apply for the claims stated under
section XIV. number 3.
XVII. Claims to indemnification by the Auctioneer
1. The right of the Auctioneer to lay claim to indemnification is based on statutory stipula-
tions, in so far as nothing to the contrary is specified in these General Terms and Condi-
tions of Business.
2. If the Auctioneer calls for indemnification in place of performance, and if the acquired
article has not yet been delivered or is taken back by them, they shall be entitled without
the need of special proofs to a one-time amount equal to 8% of the hammer price in the
way of indemnification. The Bidder retains the right to demonstrate that the damages in-
curred were less than those represented by the one-time amount referred to above. If the
Auctioneer can demonstrate that more extensive damages were incurred, then they may
call for indemnification of these as well.
XVIII. Retention of title
All used articles shall remain the property of the Auctioneer until such a time as the Bid-
der has satisfied all of the claims to which the Auctioneer is entitled. The Bidder is not
authorized to pledge or assign the movable article. The Bidder is entitled to sell the
used article to third parties in normal business transactions. The retention of title shall
then be assigned to the processed articles and, in the case of resale, to the claim for
the payment of the purchase price (extended retention of title).
XIX. Severability clause
If individual sections of these General Terms and Conditions of Business or parts there-
of become ineffective, this shall not affect the effectiveness of the remaining sections or
the validity of the contract between the Auctioneer and the Bidder.
XX. Prohibition of assignment
The rights of the Bidder derived from the contract that has been concluded may not be
assigned to third parties.
XXI. Place of fulfilment and jurisdiction
The place of fulfilment and responsible court of law, for both parties, shall be the registe-
red seat of the Auctioneer. This shall also apply for legal proceedings in connection with
transactions involving cheques and bills of exchange. The same shall apply for persons
that do not have a responsible court of law in Germany or persons who move their domi-
cile or usual place of residence outside Germany after the conclusion of the contract or
whose domicile or usual place of residence is unknown at the time that legal proceedings
are filed for.
Modified on the 15.04.2011
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