Executive Board NetBid Industrie-Auktionen AG Management Angermann Machinery & Equipment GmbH & Co.KG
NetBid Industrie-Auktionen AG
Angermann Machinery & Equipment GmbH & Co. KG
General Terms and Conditions
I. General provisions
1.1 Angermann Machinery & Equipment GmbH & Co. KG (hereafter "AME") organises physical auctions for used machines and mechanical equipment.
1.2 NetBid Industrie-Auktionen AG operates a platform (hereafter "Online Platform") for the interactive online sale of used machines and mechanical equipment on the website www.netbid.com. On the Online Platform, items to be sold are offered either via online auction or trading. Sales on the Online Platform are either organised by NetBid Industrie-Auktionen AG themselves, or by a subsidiary (hereafter both "NetBid").
1.3 These General Terms and Conditions (hereafter "T&Cs") contain the general provisions for both the physical auctions organised by A&L, and also the sales via the Online Platform organised by NetBid. They govern the legal relationships between A&L/NetBid (hereafter "Auctioneer"), the depositors (hereafter "Depositor(s)" or "Seller(s)") of the goods to be sold (hereafter "Items Deposited" or "Items") as well as the people who submit bids for the Items Deposited (hereafter "Participant(s)" or "Purchaser(s)").
1.4 With regard to individual auctions or sales, special additional terms and conditions (hereafter "Special Terms") may apply. These contain supplements to and/or deviations from the T&Cs. In case of doubt the Special Terms have priority.
1.5 The Auctioneer may amend these T&Cs at any time with future effect. Amendments are effective with receipt of the corresponding communication by the Participant(s).
2. Participation in online sales (online auctions and trading)
2.1 Participation in sales via the Online Platform (online auctions and trading) requires the Participant to register for the Online Platform. Registration is free of charge and admission to the Online Platform occurs through the issuance of user names and passwords.
2.2 A right to admission to participate does not exist. The data entered during registration must be complete and correct. Registration is only permitted for legal persons, partnerships and natural persons with unrestricted legal capacity. Minors, in particular, are not permitted to register. The Auctioneer reserves the right to revoke registration in the event of false information or misuse. The registration may be revoked by the Participant at any time.
2.3 The Participant identifies themselves and proves their entitlement to use the Online Platform by means of their user name and password. They shall take adequate measures to ensure the confidentiality of this information, so that no unauthorised person can use this information to access the Online Platform without their consent.
2.4 With successful registration the Participant authorises the Auctioneer to record, store and use their personal data, and to publish the user name as part of sales on the Online Platform. The Participant’s data will be stored and used solely in order to carry out legal transactions via the Online Platform and for the purpose of operating the Online Platform.
2.5 Anyone who is registered on the Online Platform and has accepted these T&Cs may make a bid (online auction) or offer (trading). With submission of the bid or offer, the Participant confirms that they have noted any Special Terms which apply to the individual case, which are available on the Online Platform, and have accepted their validity.
2.6 The Depositor may choose between the sales types of online auction or trading. The Auctioneer is responsible for including technical data and digital photographs taken on site, assessment of the Items Deposited and evaluation of its market values, as well as specific advertising in specialist journals. If the Depositor offers the Items themselves then the aforementioned services do not apply.
2.7 With setting up of an online auction, the individual Depositor assigns their exclusive marketing rights to the Auctioneer for the time period of the auction plus the respective reservation period. This exclusivity does not apply to Trading. The Depositor may switch between the types of sale with prior consent of the Auctioneer. A switch is not possible while valid bids or offers appropriate to the chosen form of sale exist or may be submitted for the Item. If the Auctioneer receives a general utilization order from the Depositor then the selection of suitable sales type is the exclusive right of the Auctioneer.
3. Participation in physical auctions
With physical auctions, participation in the auction as a bidder is authorized with issuance of a bid card.
4. Deposit/bank confirmation
4.1 The Auctioneer reserves the right to only admit Participants after payment of a deposit or with other surety. As part of a physical auction the Auctioneer may, instead of a deposit, require the Participant to deposit identity papers (e.g. identity card, passport, driving licence etc.) as surety. The Auctioneer is entitled to withhold the deposit or surety/pledged items at the end of the auction or trading should they or the Seller be entitled to receivables from the Participant as a result of, or in connection, with the auction or trading, and will credit the deposit to the purchase price. Should the Auctioneer and/or the Seller not be entitled to any receivables from the Bidder as a result of, or in connection with, the auction or trading, they shall refund the deposit to the Participant or return the surety or article(s) pledged.
4.2 If the minimum bid (starting price) is at least €5,000 then participation in the online auction or trading requires presentation of a bank confirmation regarding the creditworthiness of the Participant.
II. Special terms for auctions (online and physical auctions)
5.1 An auction takes place in the name of and for the account of the Depositor. The Auctioneer is not party to the purchase contract, which is concluded with a surcharge, but rather only mediates the purchase contract between the Depositor and the Participant. The Auctioneer is responsible for the organisation and carrying out of the auction. For these services, the Auctioneer receives a commission of 18% of the net purchase price from the Participant who was awarded the bid. In individual cases the Special Terms may include differing levels of commission. After acceptance of the bid and receipt of invoice the Purchaser has the right to be informed of the name and address of the Depositor by the Auctioneer.
5.2 Dates and deadlines (start and end of an auction, acquisition, collection) for online auctions can be found on the auction pages of the Online Platform. The Auctioneer reserves the right to end an auction ahead of schedule or to extend it.
5.3 With a physical auction the dates and deadlines (start and end of an auction, acquisition, and collection) can be gathered from announcements of the Auctioneer, the auction catalogue and the Online Platform. The Auctioneer has the right to alter the order determined in the auction catalogue, or to separate, combine or withdraw numbers.
5.4 Bids are only possible if they are free of conditions and reservations. Bids are binding, withdrawal is not possible. The bids do not include value-added tax (VAT) or commission. The Auctioneer is authorized to reject bids without statement of reasons.
5.5 The Auctioneer may set a minimum bid (starting price). In the event of several bids for the same amount, the first of these bids received by the Auctioneer shall be accepted. The Auctioneer is entitled to reject the bids of one or more Participants should they regard them as too low.
6. Items deposited
6.1 In an online auction the Auctioneer may auction individual Items Deposited or packages (combination of various Items under one auction number). For packages the auction takes place in two steps:
a) First the individual Items are put up for auction. Acceptance of the bid occurs with the reservation (condition precedent in accordance with Item 158, part 1 of the German Civil Code "BGB") that the Item is not awarded as part of a package. Once bids on the individual Items have been accepted, the package is put up for auction. If there are no bids made on the package or no bid is accepted for the package, then acceptance of bids for the individual Items is definitively issued - assuming the minimum price has been achieved.
b) If bids are made on packages, then the following applies: For bids on packages the bid is accepted if the highest bid is at least 10% higher than the sum of the bids or minimum price for the individual Items Deposited. The bids for individual Item(s) are then not accepted in accordance with the conditions. In individual cases the Special Terms may include a different percentage.
6.2 The Auctioneer is authorized, until the end of the auction, to combine individual Items into packages, to separate existing packages and/or to withdraw individual Items Deposited or packages from the auction.
7. Acceptance of bid and purchase contract
7.1 A purchase contract comes into existence with acceptance of the bid.
7.2 With an online auction the acceptance of a bid is determined by the system. The Participant whose bid was accepted is automatically informed by the Auctioneer via email that their bid was successful. In general the bid of the Participant who made the highest bid within the bidding period is accepted. If no higher bid is made within 10 minutes of the end of the auction then the auction ends at the stated closing time. 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 elapses between submission of the highest bid and the closing time. The same shall apply should this bid itself be exceeded during the extension period. The auction ends with submission of the highest bid which is not outbid within ten minutes. Determination of the closing time shall be determined solely and finally by the system clock within the Online Platform.
7.3 With a physical auction the highest bid will be accepted if no higher offers have been received after being called for on three occasions. Should two or more persons make one and the same offer simultaneously and the call for further offers is not heeded, the highest bidder shall be chosen by lot.
7.4 The Auctioneer is authorized, with adequate notice for the Participants, to reject bids from certain Participants in general or with good cause, to exclude Participants from an auction, and to correct errors of the Auctioneer regarding bids and/or acceptance of bids.
7.5 The Auctioneer is also authorized, at their own discretion, to not accept a bid or to accept a bid with reservation.
7.6 If the bid is accepted under reservation then the purchase contract is not concluded immediately. Furthermore, the Participant remains bound by his offer for a period of seven calendar days (online auction) or 48 hours (physical auction), known as the "Commitment Period". The Special Terms may provide for differing Commitment Periods. Further bids may be submitted during the Commitment Period. During the Commitment Period the Auctioneer remains authorized to reject the Participant's bid. If the Auctioneer does not declare lifting of the reservation within the Commitment Period, then the bid is not definitively accepted.
7.7 Should doubts or disagreements occur between the Participants regarding validity of a bid, for example if a Participant does not want their bid to be valid, the Auctioneer’s decision alone about conclusion of a purchase contract shall be binding regarding the conditions of the relevant highest bid. The Participants agree to be bound by the decision of the Auctioneer. Should the Auctioneer decide that a purchase contract has not into come existence subject to the conditions of the highest offer concerned, they are entitled to put the relevant Item(s) Deposited up for auction again.
8. Responsibilities of Seller and Purchaser
8.1 If a purchase contract is concluded between the Depositor and the Participant, then the Purchaser is obliged to pay the purchase price and the commission plus the statutory VAT, and to acquire the Item(s). The Seller is obliged to surrender the Item(s) Deposited.
8.2 The Auctioneer shall invoice the Participant for the purchase price and agreed commission. Payment in accordance with paragraph 8.1 is to be made to the Auctioneer in cash, with a certified cheque or with a credit transfer.
8.3 The certified cheque must not be subject to standard banking reservations. The decision as to whether or not the certified cheque complies with these requirements is at the absolute discretion of the Auctioneer. In the event of payment by cheque, the Auctioneer may require that the Item successfully bid for may not be dismantled and taken away until the full amount of the cheque has cleared in the Auctioneer’s bank account. The Auctioneer may approve the immediate transport of the Item purchased should the Purchaser pay by certified cheque.
8.4 Should Purchasers from abroad be unable to pay the whole amount in accordance with the aforementioned regulations, the Auctioneer may at their absolute discretion demand a payment equal to at least 20% of the amount listed in paragraph 8.1. In such a case the rest of the payment shall be made immediately by credit transfer. Transfer and other fees are to be paid by the Purchaser. Cheques will be accepted on account of payment. Purchasers from countries outside the EU are required to pay the VAT to the Auctioneer as a deposit. The VAT will be refunded after presentation of properly stamped original export documentation. Sales to Participants from countries within the EU may only be relieved of VAT on presentation of the officially authenticated VAT identification number.
8.5 Invoices issued on the day of the auction and after the sale will be issued subject to subsequent examination and possible correction. Errors excepted.
8.6 With delayed payment the payment obligation shall be subject to interest at the rate of 8% above the base rate of the European Central bank p.a. (if the Participant is an entrepreneur in the sense of Item 14 of the German Civil Code "BGB"), or 5% (if the Participant is a consumer in the sense of Item 13 of the German Civil Code "BGB"), even if cheques have been issued or accepted. In the case of delayed payment or delayed collection of the auctioned Item(s) by the Purchaser, the Depositor may, upon unsuccessful expiration of an adequate deadline for performance, at their discretion, dismantle and store the auctioned Item(s) at the expense and risk of the Purchaser, or withdraw from the purchase contract and demand damages for non-performance. In the latter case the Auctioneer may re-auction the Item(s). The Purchaser is not permitted to participate in the renewed auction. The Purchaser shall remain liable for any reduction in the price realised but shall have no claim to a higher price.
8.7 The obligation of the Purchaser to pay the commission exists independent of purchase price payment, the legal assessment of purchase price claim and continuation of the purchase contract.
9. Transfer of risk / transfer of ownership
9.1 The Items Deposited are transferred to the Purchaser upon acceptance of the bid. The risk of accidental destruction, loss or damage to the Item(s) is transferred to the Purchaser at this time.
9.2 Ownership of the Item(s) does not transfer to the Purchaser until the purchase price, commission and statutory VAT have been paid in full, and the Auctioneer has issued a written release statement to the Purchaser.
10. Acquisition of auctioned Items
10.1 Transportation and dismantling of the auctioned Items occurs at the expense and risk of the Purchaser. The Purchaser is liable for damage incurred to the Seller’s property during dismantling or transportation of the goods. They release the Auctioneer and Seller from third party claims upon first demand.
10.2 The Purchaser is only authorized and obliged to pick up the items at the dates named by the Auctioneer. The Auctioneer may determine that a certain item may only be acquired after removal of another Item. A Purchaser whose Item prevents the acquisition of other Items is obliged to immediately ensure, after a written request by the Auctioneer (email is adequate) that these Items are picked up. If this does not occur then the Auctioneer is authorized to permit the pickup and possible storage by third parties at the expense and risk of the Purchaser.
10.3 Should exits need 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 their own expense. The Auctioneer reserves the right to levy deposits on auctioned Items whose dismantling or transportation may cause damage to the buildings and/or to other property of third parties. Information about the items covered by this provision and the deposit amounts are given on the Online Platform for online auctions, or in announcements of the Auctioneer, the auction catalogue and on the Online Platform for physical auctions.
10.4 The Purchaser is obliged to follow the instructions of the Seller, the Auctioneer, or the Auctioneer's representative during dismantling and pick up of their Items
10.5 The Purchaser shall ensure that the approvals required for the dismantling and/or collection/transport are available in time.
III. Special conditions for trading
With the sales type "trading", the Auctioneer simply provides the Depositor with offers, and mediates the conclusion of purchase contracts regarding Items Deposited between the Depositor and the Participants. For this the Auctioneer receives a commission from the Purchaser. This commission is 18% of the net purchase price. In individual cases the Special Terms may include differing levels of commission. The obligation to pay the commission exists independent of purchase price payment, the legal assessment of purchase price claim and continuation of the purchase contract.
12. Acceptance of offers and purchase contract
12.1 The Auctioneer publishes the price expectations of the Seller or a minimum price for the Item(s) on the Online Platform. This publication is not an offer by the Seller in the legal sense of the term. The information supplied shall be understood as an invitation to Participants to submit legally-binding offers for the Item(s). The Seller may revoke their invitation at any time. They are not obliged to accept offers from Participants.
12.2 The offer is legally binding and has the aim of concluding a purchase contract with the Seller. Any minimum price statements by the Seller are to be taken into account. The offer can be made within a period of time for acceptance (date, time).
12.3 A purchase contract for the Items comes into existence directly between the Seller and the Participant when the Seller accepts the Participant’s offer, which was submitted within the period of time for acceptance established by the Seller through the Online Platform. It is at the Seller's absolute discretion which offer they accept. The Auctioneer exercises no influence in this process and serves merely as a messenger with respect to statements made by the Seller and the Participant. The commitment of the other Participants who have submitted offers ends with the Seller’s acceptance of a Participant’s offer.
12.4 The Depositor is obliged to supply the Auctioneer with unsolicited and binding information, through the immediate submission of a written contract, as to whether a purchase contract has come into existence with the Purchaser via the Online Platform, and which conditions were included. If the Depositor does not fulfil this obligation, the Auctioneer is authorized to exclude them from further usage of the Online Platform. Furthermore, in such a case the Auctioneer is also authorized to impose a penalty payment of €5,000 per Item sold on the Depositor. The Depositor must pay this promptly. The Auctioneer's assertion of resulting damages remains expressly reserved.
IV. Further general provisions
13. Offsets, agent liability
13.1 A Participant who submits a bid or offer for an Item on behalf of a client is liable as principle debtor in addition to
his client. 13.2 The Participant is only permitted to offset if the claims are undisputed or have been established in law.
14.1 As the purchase contract is concluded exclusively between the Seller and the Purchaser, the Auctioneer assumes no warranty for the Items Deposited. Item 15 remains unaffected.
14.2 All Items offered for sale are used, and in some cases show considerable signs of wear. The opportunity exists to have the Items examined by an expert. The Items will be sold in the condition in which they are examined or could have been examined, also using the services of an expert. The Seller is not obliged to provide the Items free of defects of quality; no particular quality is agreed upon, nor does the Seller assume any warranty for the quality of the Items. The Seller does not assume any warranty.
14.3 Information given on the Online Platform, in sales catalogues or in other forms, in particular technical data, measurements, manufacturing date or quantities are not binding, and do not represent a warranty in the sense of Item 444 of the German Civil Code "BGB", or an agreement on quality in the sense of Item 434 part 1 p. 1 of the German Civil Code "BGB". The information given is based on statements from the Seller. The Auctioneer is only liable for the correct communication of the information, not for its correctness.
15.1 The Contractual Parties alone are responsible for compliance with the provisions of the law relating to the conclusion and the performance of contracts. Unless the Auctioneer is liable in accordance with the following provisions, the Contractual Parties will indemnify the Auctioneer on the first occasion of being asked to do so for all claims asserted by the other Contractual Party or by third parties against the Auctioneer arising from, or in connection with, the conclusion or performance of contracts.
15.2 The Auctioneer is only liable for wilful intent and gross negligence, or wilful intent and gross negligence by its legal representatives, executive employees and vicarious agents. Liability for indirect damages and consequential damages, especially loss of profit, is excluded.
15.3 In deviation from paragraph 2, the Auctioneer is liable for simple negligence and for simple negligence by its legal representatives, executive employees and vicarious agents with injury to life, limb and health, and for damages which impact essential contractual obligations. Essential contractual obligations are obligations which protect the contractual legal position of the Participant or the Depositor, and which the contract must guarantee in view of its content and purpose (cardinal duties). Also essential are contractual obligations whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place, and upon which the Participant or Depositor regularly relies and may rely.
15.4 Liability for breach of essential contractual obligations is limited to damages which are typical in business transactions of this nature, and which the Auctioneer could or should have foreseen as a possible consequence of the breach of contract considering all circumstances which were known or should have been known to them.
15.5 For consumers (Item 13 of the German Civil Code "BGB") the Auctioneer has unlimited liability for cases of wilful intent and gross negligence, as well as for wilful intent and gross negligence of its legal representatives, executive employees and vicarious agents, for injury to life, limb and health, and for damages which impact essential contractual obligations.
15.6 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.
16. Final provisions
16.1 The Auctioneer assumes no guarantee that its website www.netbid.com is available at all times, and is also not liable for possible internet difficulties. The Auctioneer is especially not responsible should it not be possible to process or to store bids for technical reasons which lie outside its control.
16.2 Should the Purchaser be a businessman, a legal entity under public law or a special fund under public law, then the agreed place of fulfilment and exclusive venue for legal disputes between the Auctioneer and the Participant is the Free and Hanseatic City of Hamburg.
16.3 These T&Cs and the legal relationships between the Auctioneer, the Depositor and the Participants shall be governed exclusively by German law; the UN Convention on the International Sale of Goods shall be excluded.