General terms of business - NetBid Industrie Auktionen AG
General Terms and Conditions of NetBid Industrieaukionen AG
NetBid Industrieauktionen AG (hereafter “NetBid”) operates an online platform for the
interactive sales through the internet of used machinery and equipment (hereafter the
“Online Platform”). The following general terms and conditions govern the legal
relationships between NetBid, the Depositors (hereafter the “Depositor(s)” or
“Seller(s)”) of the items put up for sale (hereafter the “Items Deposited” or
as the case may the “Items Sold”) and persons who submit bids for the items put up for
sale through NetBid’s Internet Platform (hereafter the “Participant(s)” or
“Purchaser(s)”).
I. General
1. By his registration the Participant authorises NetBid to record, store and use his personal
data and to publish the user name as part of auction and trading platforms. Registration is free
of charge and the admission to the Online Platform occurs through the issue of user names and
password. All the Participant’s data will be stored and used solely in order to carry out legal
transactions and for the purpose of operating the Online Platform.
2. The Participant identifies himself and proves his entitlement to use the Online Platform by
means of his user name and password. He shall take adequate measures in order to ensure the
confidentiality of this information, so that no unauthorised person may bid or trade with this
information without his consent. NetBid issues the user name and password to the Participants
after registration. A right to admission to participate does not exist. NetBid reserves the right
to revoke admission in the event of false information or misuse. The Participant may revoke his
registration.
3. Anyone wishing to sell items through the Online Platform may choose the type of sale
(“auction” or “trading”) he wishes to use for the sale of the items. He may choose from the
following types of sale:
(a) "Premium Auction"
An auction with a wide range of additional NetBid services: inclusion of technical data and
digital photographs taken on site, assessment of the item and evaluation of its market values
as well as specific advertising in specialist journals.
(b) "Standard Auction"
Auction without additional NetBid services: NetBid simply makes its Online Platform available.
(c) "Premium Trading"
Trading with a wide range of additional NetBid services: inclusion of technical data and digital
photographs taken on site, assessment of the item and evaluation of its market value as well as
specific advertising in specialist journals.
(d) "Standard Trading“
Trading without additional NetBid services: NetBid simply makes its Online Platform available.
The Seller may with NetBid’s prior consent switch between the types of sale. A switch is not
possible so long as valid bids or offers appropriate the chosen form of sale exist or may be
submitted for the item.
The choice of a type of sale from the options (a) to (c) is the exclusive right of NetBid in
order to dispose of the item to be sold within the agreed period of time to market the article
plus one week.
II. Special rules applicable to the "auction" type of sale
1. NetBid provides its services in accordance with the chosen type of sale
(see section I. 3. a, b). The sale of an Item Deposited by the “Premium Auction” and
“Standard Auction” types of sale is carried out by NetBid in the name of and for the account
of the Depositor. After the sale of an Item Deposited /Sold, the Purchaser has the right to
learn the name and address of the Depositor from NetBid on receiving the invoice.
2. A purchase contract shall come into existence between the Depositor and the Participant who
at the end of the period in which it is possible to submit bids (hereafter the “Bidding Period”)
has submitted the highest bid (hereafter referred to as the “Highest Bid”) submitted
by the highest bidder (hereafter the “Highest Bidder”). NetBid shall lay down any
minimum bids. In the event of several bids of the same amount, the first of these bids received
by NetBid shall be accepted. The determination of the time the Bidding Period closes
(hereafter the “Closing Time”) shall be determined solely and finally by the system
clock within the Online Platform. Should a bid exceeding previous bids be made less than ten
minutes before the end of the Bidding Period, the Closing Time will be extended such that a
period of ten minutes (hereafter the “Extension Period”) elapses between the submission of this
Highest Bid and the Closing Time. The same shall apply should this bid itself be exceeded during
the Extension Period.
3. Should doubt or disagreement arise between the Participants on the validity of the Highest
Bid of a Participant, for instance because the Highest Bidder will not allow his bid to stand,
NetBid alone shall make the binding decision on whether a purchase contract has come into
existence in accordance with the conditions of the relevant bid. The Participants therefore
subject themselves to a decision made by NetBid. Should NetBid decide that a purchase contract
has not into come existence subject to the conditions of the Highest Offer concerned, it is
entitled to put the relevant Item Deposited up for auction again.
4. NetBid has the right to separate or to combine Items Deposited or to withdraw them up to the
Closing Time. NetBid is entitled to reject the bids of one or more Participants should it regard
a bid as too low. NetBid is also entitled at its own absolute discretion to place the conclusion
of a purchase contract at Closing Time on hold. The Highest Bidder shall not be entitled to
demand that title to the relevant item auctioned be transferred to him should NetBid have placed
the conclusion of a purchase contract on hold. The Highest Bidder shall remain bound to the
Depositor and NetBid by his offer to conclude the purchase contract for a period of seven
calendar days from the Closing Time (hereafter also referred to as the “Commitment Period”).
NetBid is entitled during the Commitment Period to reject the bid submitted by the Highest Bidder
for a material cause. Should NetBid remain silent during the Commitment Period, a purchase
contract shall not come into force at the expiry of this period.
5. The Items Sold shall be deemed to have been transferred to the Purchaser on NetBid notifying
the Purchaser by e-mail that a purchase contract has been concluded. The liability and risk of
accidental destruction and loss and damage to the Item Sold shall pass to the Purchaser at this
time.
6. Title to the Item Sold shall however not pass until the purchase price, mark-up and VAT
(referred to collectively hereafter as the “Payment Obligation”) have been paid in full and
NetBid has issued an appropriate clearance statement to the Purchaser.
7. In the event that the purchase price amounts as defined in section IV. 1 are not paid on time
or the Item Sold is not picked up by the Purchaser on time, the Depositor is entitled, following
the expiry without the desired result of a reasonable grace period issued to the Purchaser, to
demand compensation for non-fulfilment of the contract or to rescind the contract. He may also
dismantle and store the Item Sold at the Purchaser’s expense and risk. The Purchaser is obliged
to accept all Items Sold purchased by him.
8. The period within which Items Sold must be picked up is shown in the descriptions of the
relevant items. The provisions of section 7 shall apply should the Purchaser not comply with
these times.
9. The transportation and dismantling of the Items Sold occur at the Purchaser’s expense and
risk. The Purchaser is liable for damage incurred to the Depositor’s or to third parties’
property during dismantling or transport. Should exits have to be made in a building or part of
a building during the dismantling process, the Purchaser is required to have these repaired by a
specialist firm at his own expense. NetBid reserves the right to impose deposits on items the
dismantling or transportation of which may cause damage to the buildings and/or to other property
of third parties. Information on the items covered by this provision and the size of deposits are
given on NetBid’s website (www.netbid.com).
10. Since each purchase contract is concluded between the Depositor and the Purchaser, NetBid
assumes no warranty whatsoever for the Items Sold. Participants may inspect the Items Deposited
before the auction. The information provided on NetBid’s website, especially technical data,
dimensions or information on quantities, do not constitute warranted qualities. Used objects
sold by the Depositor to the Purchaser through the Online Platform are sold in the actual state
of these items, to the exclusion of all warranties.
11. Access to the site on which the Items Deposited are located for the purpose of examining or
transporting these items occurs at one’s own risk. Liability on the part of NetBid or the
Depositor is excluded
12. The conditions applicable to the Online Platform also apply to a possible sale by private
treaty.
III. Special rules applicable to the "trading" type of sale
1. NetBid performs the services in accordance with the particular type of sale chosen (see
section I. 3. c. d). NetBid simply provides the Depositor with offers in the “Premium Trading”
and “Standard Trading“ types of sale and may possibly provide the additional services agreed in
the relevant participation alternative.
2. The Depositor gives NetBid his price expectations or a minimum price. The Depositor himself
makes no offer in the legal sense of the term. All the information he supplies shall be
understood as an invitation to the Participants themselves to submit legally-binding offers. The
Depositor may revoke his invitation at any time. He is not bound by it, such that claims by
possible Participants submitting offers cannot arise solely as a result of information supplied
by the Depositor.
3. The interested Participant submits a legally-binding offer to conclude a purchase contract
with the Depositor via NetBid’s Online Platform, taking account of any information of the
Depositor on minimum prices and stating a period of time for acceptance (date, time). A purchase
contract comes into existence directly between the Depositor and the Purchaser when the Depositor
accepts the Purchaser’s offer submitted within the period of time for acceptance established by
the Depositor through the Online Platform. It is at the Depositor’s absolute discretion which
offer he accepts. NetBid exercises no influence in this process and only serves as a messenger
with respect to statements made by the Depositor and the Participant. NetBid also assumes no
warranty obligations with regard to the Items Sold. Possible warranty obligations exist solely
between the seller and the Purchaser on the basis of the contract concluded between the two.
4. The commitment of the other Participants who have submitted offers ends with the Depositor’s
acceptance of a Participant’s offer.
IV. Additional rules for auction and trading transactions
1. In the event of the successful procurement of a purchase contract via the Online Platform, the
Purchaser shall pay NetBid the following commission:
- Purchase price up to and including € 25,000: 10 % of the purchase price, minimum however of Euro 50,-.
- Purchase price up to and including € 50,000: 9 % of the purchase price
- Purchase price up to and including € 100,000: 8 % of the purchase price
- Purchase price above € 100,000: 7 % of the purchase price
Special commissions, for example for presence auctions, are not included in this provision. The
above amounts relate to the net purchase price (without VAT).
2. In the event of a successful sale through the Online Platform using either the
"Premium Auction" or "Premium Trading" type of sale, the Seller or Depositor shall pay NetBid on
a case-by-case basis a commission to be agreed in advance with NetBid. A sale by means of the
other alternatives is free of commission for the Seller or Depositor.
3. In the event of a sale via the Online Platform by way of either the “Standard Auction” or
“Premium Auction” type of sale NetBid will submit an invoice for the purchase price and the
commission due from the Purchaser or Depositor. The applicable VAT will be added to the amounts
payable. The full purchase price is payable by clearance cheque irrevocably confirmed by a bank
or credit transfer to NetBid after the invoice has been submitted either by e-mail or by letter
post. The costs of the transfer and other charges shall be borne by the Purchaser. Cheques will
be accepted on account of payment. Commission is payable on the receipt of the invoice,
irrespective of the payment of the purchase price or the legal evaluation of the claim to the
purchase price. In the event of payment arrears interest will be charged at the rate of 5% above
the current base rate of the European Central Bank in accordance with § 247 section 1 page 3 of
the German Civil Code. Purchasers from countries which do not belong to the EU are required to
pay the VAT initially to NetBid as a deposit. The VAT will be refunded after presentation of
properly stamped original documents documenting that the export has taken place. Sales to
Participants from countries within the EU may only be relieved of VAT on presentation of the
officially authenticated VAT Identification Number.
4. NetBid mediates the conclusion of contracts between the Depositors and the Participants.
Contracts come into existence solely between the Depositors and the Participants (hereafter
referred to singly as the “Contractual Party” and both collectively as the
“Contractual Parties”). These Contractual Parties alone are responsible for compliance
with the provisions of the law relating to the conclusion and the performance of contracts.
Unless NetBid is liable in accordance with section IV.6, the Contractual Parties will indemnify
NetBid on the first occasion of being asked to do so for all claims asserted by the other
Contractual Party against NetBid arising from and in connection with auctions, trading or the
conclusion or performance of contracts.
5. In the event of a sale via the Online Platform by way of either the “Standard Trading” or
“Premium Trading” type of sale, the Depositor is obliged to supply NetBid through the immediate
submission of a written contract with unsolicited and binding information as to whether and
subject to which conditions a contract has come into existence with the Purchaser – mediated by
the Online Platform.
Should the Depositor fail to fulfil this obligation, NetBid is entitled to exclude him from
continued participation in the Online Platform. In this case NetBid is also entitled to impose
payment of a contractual penalty of Euro 5,000.00 per item sold. The Depositor is required to pay
this immediately. NetBid expressly reserves the right to pursue additional damages incurred.
6. NetBid is only liable to the Depositors and the Participants in cases of intent and gross
negligence for the infringement of contractual and extra-contractual obligations, in particular
on account of impossibility of performance, delay, positive contractual infringement, negligence
in the conclusion of the contract and unauthorised acts, also by its senior employees and agents.
This exclusion of liability shall not apply in cases of culpable infringement of those
contractual obligations the fulfilment of which makes possible the proper performance of the
contract and on whose compliance the contractual partner regularly relies and may rely (essential
obligations). This exclusion of liability shall also not apply should damages resulting from
injury to life, limb and health be involved. Liability in the case infringements of obligations
committed as a result of gross negligence and the infringement through negligence of essential
contractual obligations shall be limited to typical and foreseeable damage. The above shall also
apply to the Participant’s or the Depositor’s claims to the reimbursement of costs incurred in
vain.
7. NetBid assumes no warranty that its website http://www.netbid.de [correct address?] is
available at all times and is also not liable for possible difficulties in connection with the
medium internet. NetBid is especially not responsible should it not be possible to process or to
store bids for technical reasons which lie outside its control.
8. The place of fulfilment for the delivery of the Item Deposited is the relevant location of the
item, and for payments the Free and Hanseatic City of Hamburg. Should the Depositor or Purchaser
be a businessman, a legal entity or a public law special asset, the exclusive legal venue for
legal disputes between NetBid and the Depositor or the Purchaser is the Free and Hanseatic City
of Hamburg.
9. NetBid shall notify Depositors and Participants of amendments to these General Terms and
Conditions by e-mail sent to the last e-mail address reported (hereafter “Notification of
Amendments“). Should these amendments not be rejected by a written statement (for example, by
e-mail) from the Depositors and Participants to NetBid within six weeks of their having received
the Notification of Amendments, the amended General Terms and Conditions shall be deemed to have
been accepted by the Depositors and Participants. In the event of an objection by a Depositor or
a Participant, transactions with this Depositor or Participant in process at the time of the
objection will be handled in accordance with the valid General Terms and Conditions. After these
pending transactions have been completed, however, the business relationship between NetBid and
the objector shall be deemed to have been ended by mutual consent.