General Auction Terms and Marketing Conditions of the Höchsmann GmbH
as of March 2014
1. Section: General Auction Terms and Conditions
Preliminary note: These General Auction Terms and Conditions (GATC) are supplemental to our General Terms and Conditions (GTC), which form the basis of the contracts and agreements concluded with us. Every user accepts besides these General Auction Terms also the validity of our GTC’s with the registration on the virtual Internet-based trading platform called “the marketplace”.
§ 1 General Rules
The auctions on the marketplace are not legal auctions in the sense of the German Industrial Code or within the meaning of §156 of the BGB.
(2) [Functions of the Marketplace] The following businesses are executed through auctions on the marketplace (compare section 1, clause § 4):
* Sales of own goods from the Hoechsmann GmbH (for details please refer to section 2),
* Mediation of goods of a third party by the Hoechsmann GmbH as a purchase and sale broker (for details please refer to section 3),
* Sales of goods of a third party in the commission business by Hoechsmann GmbH as a general commission agent (for details please refer to section 4).
(3) [Services] The services of the Hoechsmann GmbH, the operator of the marketplace, include amongst other things:
1. Availability of opportunities to use the marketplace after the registration of the user according to § 2 to the purchase of goods as well as the sale through negotiating by the Hoechsmann GmbH;
2. To enable negotiations and contracts conclusion on the marketplace through auctions according to §§ 4 et. seq. of these Auction Terms and through handling of businesses as a general commission agent as well as sale agent according to a separate agreementung;
3. Creation of information and communication opportunities among users or contract parties;
4. Consultancy and support services for users in accordance with a separate agreement.
(4) [Gender-neutral formulation] Unless otherwise specified, terms such as “user”, “bidder” etc. used in the following text serve merely to simplify the formulation. Discrimination against women/men is expressively unintentional. In all cases, we refer to and address both men and women.
§ 2 Registration and Authentication
(1) [Only for use of entrepreneurs] Only entrepreneurs with unlimited legal competence as defined in §14 of the BGB and legal persons are authorized as users. Consumers within the meaning of §13 of the BGB are excluded from using the marketplace. Upon registration for the participation on the marketplace, the user expressly assures to act exclusively as an entrepreneur or legal entity under public law.
(2)[Registration/User name] The information of a freely selectable user name and other particulars in the input mask are required for the registration. The chosen user name must not infringe upon the rights of third parties, especially the rights to use a name or trademark rights, and must not be offensive towards common decency or lead to confusion.
(3) [Current, truthful personal data] The information needs to be complete and correspond to the truth. If there are any changes to the provided data in the registration, the user is obliged to update the data immediately.
(4) [Personal password] The user chooses a personal password at the registration. This password must be kept secret and should not be disclosed to a third party. If there is evidence that the password has become known to a third party or misuse has occurred, the user is obliged to notify Hoechsmann GmbH by email (firstname.lastname@example.org) immediately.
(5) [Authentication/Activation] After sending the registration electronically, the user receives an email with a link, which needs to be confirmed again for the registration. The completeness and correctness of the data are verified in the following authentication. The user will be informed of the result via email. Only after this is the user activated on the marketplace and able to transact a deal in the login area after registration.
(6) [Legal Force] All declarations of intent submitted through use of the respective login shall count in favour of or against the user, unless the recipient of the declaration is aware of the lack of representative authority on the part of the declarant.
(7) [Exclusion of the marketplace] There is no entitlement to the registration and the participation in auctions. Hoechsmann GmbH reserves the right to revoke the registration and to block the user or individual offers if there is or if there has been an infringement to the General Auction Terms in the past.
(8) [Cancellation] The user can demand the cancellation at any time of his/her registration and the deletion of his/her user account.
§ 3 Obligations of Users
(1) [No warranty of assured quality/Inspection obligation] The offered goods on the marketplace are generally second-hand. Descriptions are made to the best of our knowledge; however, a detailed inspection or examination and test of the offered goods are not always possible beforehand. In most cases, especially in commission business and brokerage, the description of the good (such as: origin, age, condition, technical features etc.) is exclusively based on the information of the provider. Therefore, a liability of the correctness of such information cannot be assumed on the part of Hoechsmann GmbH. Particularly standard characteristics are not represented in such information. Every user is obliged, if possible, to examine the offered good himself/herself or to make enquiries before the purchase. In addition, the regulations of section 2.4 of our GTC’s shall apply.
(2) [Duty of monitoring email correspondence] Every user is obliged to check regularly incoming messages at his/her registered email address, in particular at the end of the auction.
(3) [Data access/Security] The user is obliged to abstain from any measures which jeopardize or disturb the services of the marketplace and from accessing information to which he/she is not entitled. Furthermore, the user must ensure that his information and posted data transmitted via the marketplace is not infected with malware.
(4) [Liability for damages] The user is obliged to reimburse Hoechsmann GmbH for all loss and damages in connection with the non-compliance of these obligations and to indemnify us against all claims which third parties, including legal expenses and court fees, assert against us as a result of the user’s non-compliance with these obligations.
§ 4 Procedure of Auctions
(1) The marketplace offers two kinds of auctions, which can either be held consecutively or separately from one another. Important information for the auction can be viewed in every article offered. This enables the user to consider the offered goods; if required an appointment for the inspection should be agreed on or carried out as soon as possible.
(2) [Current price auction] (Reverse auction) The price of the article is reduced beforehand at set times and set price levels and is always visible in a diagram. The user has the opportunity to buy immediately, to reserve a current price binding or to reserve with proviso if the offered one is lower than the current reserve price. Only one reservation is possible per current price. A purchase agreement comes into effect with the user who has made a binding reservation for the highest price level at the current time (above the reserve price). Then the current price auction ends for this article.
(3) [Auction] (Classical auction) The bidder has the opportunity to make bids in predefined price levels, which need to be confirmed per mouse click. The bid expires as soon as another bidder submits a higher bid. The auction ends at the time fixed in advance provided that the 3-minutes rule under section (5) does not intervene. A purchase agreement (above the reserve price) comes into effect readily with the highest bidder at that time.
[Reserve price/Conclusion of a contract with proviso] The offered goods at the auction can be fixed with a reserve price. In this case it is possible (if indicated) to make a bid below the reserve price. If the highest bid is lower than the reserve price at the time when the auction ends, then a purchase agreement only comes into effect under the suspensory condition that the seller accepts the current highest bid or the seller and the bidder agree to a comparative price after a period of 6 working days after the scheduled end of the auction; and provided that another bidder did not submit a higher bid. The auction continues during the agreement and decision period (completion of 6 working days after the scheduled end of the auction) and higher bids can be submitted at any time. If the seller accepts the quotation below the reserve price of the current highest bidder, this shall result in a purchase agreement. A purchase agreement comes into effect if the seller accepts the quotation below the reserve price of the current highest bidder. If the seller refuses the quotation, no purchase agreement comes into effect.
(5) [3-minute rule] The end of the forward auction is delayed by 3 minutes if a higher bid has been submitted for an article in the last 3 minutes.
(6) [Cancellation of the auction] We are entitled to cancel a current auction if no user has made a valid bid. The auction will be cancelled if access to the marketplace is not possible for technical reasons and if this risks affecting the procedure of the auction. In this case, an incorrectly communicated contract conclusion by the system is ineffective. Hoechsmann GmbH shall inform the highest bidder at this time of the cancellation without delay via email. The item is auctioned off again in a new auction. There is no right for the execution of a new auction.
(7) [Reservation of the cancellation] If an important reason requires it, we shall reserve the right to cancel an auction before it is due to close and to turn down incoming bids. Such a case could occur especially if the article that is to be auctioned or substantial parts of it are lost, deteriorate, have substantial deficiencies or rights of a third party become known, which preclude a future fulfilment of a contract.
(8) [Authoritativeness of the system time] The system time on the marketplace is exclusively authoritative for the duration of the auction, the individual stages as well as for the end of the auction. The time of the incoming signal reception confirmed on our server is decisive for the effectiveness of contractual agreements.
(9) [Automatic offering agent] If a higher amount than the opening bid or the minimum increase level is made in a forward auction (see section (3)), the electronic offering agent is activated automatically. Within the range of the defined minimum increase level up to the highest entered amount, this agent automatically offers the amount that is necessary to become or to stay the highest bidder.
(10) [Confirmation/Invoice] Immediately after the end of an auction, the highest bidder (above the reserve price) will receive notification of the conclusion of the purchase agreement. After clarification of any necessary details regarding dismantling, access, collection etc. the invoice will be sent to the email address of the buyer within six working days.
§ 5 Duties of the buyer, in particular the payment/collection
(1) [Period of payment/Default] After we have informed the buyer about the conclusion of the purchase agreement, he/she is obliged to pay the purchase price within three days after the written demand for payment. If payment is not effected after receipt of the demand for payment, default in payment occurs even without a reminder.
(2) [Net prices/Sales tax] All prices are exclusive of the legal sales tax. The sales tax will be stated separately on the invoice in the current amount.
(3) [Duty of collection and collection period] All auctioned purchases are to be collected at the indicated place of collection/storage location, unless otherwise agreed, and if necessary, to be dismantled beforehand. If no special collection periods have been set in advance, the buyer shall take receipt of the purchased goods immediately at the storage location, at the very latest within 10 days after notification of the conclusion of the purchase agreement. The delivery and the transfer of ownership only take place after complete payment of the purchase price.
(4) [Exceeding the collection period/Reimbursement of expenses] The claim for damage and compensation of expenses due to a delay in collecting purchased goods is based on section 4.5. and 4.6. of our GTC’s. The seller shall be furthermore entitled to the disposal or scrapping of the object in case the collection date or a further period of grace is not observed. The costs and expenses arising from this are borne by the buyer.
(5) [Import/Export risk] The buyer shall bear all export duties and taxes. The necessary dismantling and transport of the objects from the storage location shall be made at the expenses and risk of the buyer. The buyer shall also bear the risk of any export and import restrictions.
(6) [Contractual exclusion of set-off] A set-off or assertion of rights of retention by the buyer is only permissible if the underlying counterclaims have been legally assessed or are undisputed.
§ 6 Costs/Expenses
(1) [Surcharge] As the operator of the auction platform, we are entitled to charge the buyer a remuneration in the form of a surcharge. The surcharge will be added to the purchase price. The legal value added tax is charged additionally. The amount of the surcharge is always stated in the item description.
(2) [Commission] We charge the owner or the seller a commission based on an individual commission marketing agreement for our business activity as a broker and general commission agent.
§ 7 Settlement of concluded contracts at the marketplace
(1) [Fulfilment of the contracting partner] The settlement of concluded contracts at the marketplace is the sole responsibility of the respective contracting partner. With respect to the contracts concluded at the marketplace, Hoechsmann GmbH shall neither assume a guarantee of fulfilment of contracts nor liability for physical or legal defects of the goods that are traded, provided that Hoechsmann GmbH itself does not act as a buyer or seller and unless otherwise agreed.
(2) [Identity/Power of disposition] Hoechsmann GmbH cannot offer a guarantee for the true identity or power of disposition of the user. In case of doubt, both contracting partners are obliged to inform themselves appropriately as to the true identity as well as the power of disposition of the other party.
§ 8 Liability
(1) [Exclusion of liability] As an operator of the marketplace, Hoechsmann GmbH accepts unrestricted liability for intent and gross negligence, but for slight negligence only when major contractual obligations have been infringed. In case of infringement, Hoechsmann GmbH is only liable for a breach of typical contractual obligations; the liability is limited to damage which Hoechsmann GmbH could typically expect due to the circumstances known upon conclusion of the contract. The liability regulations under section 8 of our GTC’s apply additionally.
(2) [No liability for statements of a third party] In view of the fact that particularly the description of the article is exclusively based on the information provided by the supplier in the brokerage and commission business, we do not accept any liability for the correctness of such information. Furthermore, Hoechsmann GmbH is not obliged to verify such information.
(3) [Technical problems] We will not assume any liability for technical problems with the supply network or the software and hardware used, unless the problems have been demonstrably caused by us.
(4) [Fault of the user] The liability does not extend to the impairment of the contractual use of services rendered by Hoechsmann GmbH at the marketplace, which have been caused by improper or incorrect use of the user.
(5) [Vicarious agents] The aforementioned limitations of liability also apply mutatis mutandis for the benefit of the vicarious agents of Hoechsmann GmbH.
(6) [Foreign contents] Should the marketplace offer a possibility to redirect to databases, websites, services, etc. of third parties, for example through the creation of links or hyperlinks, Hoechsmann GmbH shall not be liable for accessibility, state or security of these databases or services, nor for the contents thereof. Hoechsmann GmbH is especially not liable for the legality, accuracy, completeness, currentness etc.
2. Section: Proprietary transactions of Hoechsmann GmbH
§ 1 In general
(1) In addition to the General Auction Terms and Marketing Conditions, the following shall apply for proprietary transactions of Hoechsmann GmbH:
(2) [Proprietary transactions] Hoechsmann GmbH shall be entitled to appear itself as a seller of own goods on the marketplace.
(3) [Commitment to the GTC] As with any other user, Hoechsmann GmbH is bound as a supplier or bidder to the aforementioned General Auction Terms and Marketing Conditions and will gain no unjustified advantages due to its capacity as an operator of the marketplace.
§ 2 Exclusion of Warranty
(1) [No Warranty of Assured Quality] Hoechsmann GmbH offers almost exclusively secondhand goods on the marketplace which could not always be viewed or inspected before the sale. The descriptions, particularly with respect to age, condition and technical characteristics of the individual object are still made to the best of our knowledge and conscience. However, we do not incur liability for its accuracy. The descriptions do not represent any assurances of specific characteristics. The warranty from purchase agreements and settlements shall apply additionally to the regulations under subsection 7 of our GTC’s. The liability under § 8 of the first section of these Auction Terms and Marketing Conditions remains unaffected in conjunction with section 8 of our GTC’s.
3. Section: Activity of Hoechsmann GmbH as a broker
§ 1 In general
(1) [Mediation activity] With its available specialist knowledge and the technical possibilities of the marketplace, Hoechsmann GmbH acts as an agent on behalf of users, particularly in the sale of woodworking technology.
(2) [Description of the goods] The participants of the auction are dependent on the correct and exact description of the article, especially with regard to technical specifications, which cannot be ascertained in a visual depiction. The supplier therefore commits himself to offer bidders a true and as precise a description as possible.
(3) [Infringements/Compensation for damages] Goods may not be offered for sale if the opening or conduct of the auction or the sale violates statutory regulations, orders of the authorities or common decency. Items which infringe on the right of third parties should particularly be excluded from offers or sales; this applies especially to copyrights and trademark rights and to foreign property rights. Hoechsmann GmbH is entitled to remove such auction or such an offer without delay from the marketplace. The supplier shall indemnify Hoechsmann GmbH against all claims of third parties based on a breach of this clause.
§ 2 Settlement of the brokerage business
(1) [Price agreement] Hoechsmann GmbH determines with the supplier a binding reserve price in a separate agreement before the intended sale.
(2) [Exclusiveness] The supplier may only sell goods that are subject to a brokerage agreement with Hoechsmann GmbH according to these GATC’s. The supplier is not allowed to sell the goods elsewhere or to ask a third party to do the sale or the negotiating of the goods in the time span between the conclusion of the brokerage agreement and the conclusion of the auction; any related activity of third parties is prohibited. The supplier shall notify us of any approach of third parties with the aim to purchase the goods directly from the supplier. Additionally, the supplier has to point out that he offers the goods for sale through mediation of Hoechsmann GmbH.
(3) [Contracting partner/fulfilment] § 5 of the first section shall apply accordingly for the legal relationship between the parties in the arranged purchase agreement.
§ 3 Remuneration
(1) [Accrued commission] The supplier is obliged to pay the listing fee and, in the case of a conclusion of contract, he/she is also obliged to pay commission according to the separately concluded brokerage agreement before the auction.
(2) [Follow-up deals] If the supplier concludes further purchase agreements with one of the imparted contracting partners of Hoechsmann GmbH, a right to remuneration shall also exist in our favour in accordance with the separately concluded brokerage agreement.
4. Section: Commission businesses
§ 1 In general
We offer users a further service to sell goods on behalf of Hoechsmann GmbH (as a commission agent) but on the account of the user (as a principal). A sale consignment agreement is concluded with that user, who uses this service to the following conditions, which apply additionally to the above-mentioned General Auction Terms and Marketing Conditions.
§ 2 Sales commission
(1) [Duty of care/Safety obligation] The purchased item remains as an item on commission in the property of the principal until its sale and delivery to the buyer. It follows his/her obligation to prevent a deterioration of the item and to insure the item, within reasonable bounds, against damages of any kind. Hoechsmann GmbH needs to be informed immediately by the principal of any changes in condition.
(2) [Inspection] If desired, the principal enables the inspection of the item on commission during normal business hours by Hoechsmann GmbH as well as for potential buyers provided by us.
(3) [Exclusiveness/Reimbursement of expenses] The principal is not permitted to sell the item on commission to a third party during the agreed contract period. If the principal thwarts a sale by Hoechsmann GmbH and violates this rule, he shall be liable for damages towards the buyer. Furthermore, we are entitled to claim a reimbursement of expenses.
(4) [Processing/Indemnity of Warranty Claims] The buyer is subject to the regulations of these General Auction Terms and Marketing Conditions as a whole. The sale by auction takes place with the exclusion of any warranty and with the obligation for collection as well as the acceptance for the transport risk by the buyer. Irrespective of this, the principal shall release Hoechsmann GmbH at first request from any claims of the buyer which are based on defects in material or title.
(5) [No del credere] Hoechsmann GmbH shall incur no liability for the creditworthiness of the buyer.
(6) [Right to enter into contract with oneself] As a general commission agent, Hoechsmann GmbH is also entitled to acquire (self-dealing) when the item on commission has no exchange or market price. In the event of exercising the right to enter into contract with oneself, we will prove the justifiability of the purchase price, unless the principal waives.
5. Section: Final Provisions
(1) [Choice of law and place of jurisdiction] Solely the laws of the Federal Republic of Germany shall apply for these Terms and Conditions and all legal relationships between Hoechsmann GmbH and their contracting partners, excluding the UN Purchase Law (CSIG). The place of jurisdiction is Dresden, insofar as there are no other exclusive responsibilities prescribed. Hoechsmann GmbH is, however, entitled to file a lawsuit at the headquarters of the buyer.
(2) [Supplementary clause] Should individual regulations from the General Auction Terms and Marketing Conditions be or become inoperative and/or oppose the statutory regulations, the effectiveness of the remaining terms and conditions are not affected. In so far as the contract of these General Auctions Terms and Conditions contain any escape clauses, the regulations that would have been agreed upon with respect to the economic goals of the contract and the scope of the General Auctions Terms and Conditions, if the escape clauses had been recognized in advance, shall apply and be legally binding.
Translator′s note: GmbH is an abbreviation meaning “private limited company”
Höchsmann GmbH, Schwabacher Str. 4
Tel: +49 (0) 35204 651 - 0
Fax: +49 (0) 35204 651 - 90
Trade register: Dresden HRB 15157
Managing director: Stefan Höchsmann