1 State: Jan. 29, 2015
Online Auction Terms and Conditions of INDUSTRIERAT GmbH
1. Legal Relationships .......................................................................................................................... 1
2. Personal Scope of Application, Registration, Login and Exclusion .................................................. 2
3. Bidding Procedure, Contract Conclusion and Rights of Third Parties ............................................. 3
4. Transfer of Risks and Pickup ............................................................................................................ 5
5. Payment of Purchase Price and Surcharge...................................................................................... 7
6. Particularities with Respect to Purchasers from EU-States and Non-EU-States ............................. 8
7. Setoff and Title Reservation ............................................................................................................ 8
8. Warranty Claims and Liability .......................................................................................................... 8
9. Choice of Law and Place of Jurisdiction .......................................................................................... 9
10. Changes to these Terms and Conditions ....................................................................................... 10
11. Final Provision ................................................................................................................................ 10
1. Legal Relationships
(1) Within the framework of public auctions organized by it as auctioneer via its In-
ternet platform, Industrierat GmbH (hereinafter: “IRAT”) is engaged in auction-
ing used items on behalf and for the account of the clients to the highest bidder
according to these Online Auction Terms and Conditions (hereinafter: “Terms
and Conditions”).
(2) IRAT shall only act as an intermediary rather than as the seller of the items. As
a consequence, the legal relationship with respect to the acquisition of items
shall exclusively come into being between the client and the purchaser.
(3) The following Terms and Conditions shall govern the legal relationship between
IRAT or the client respectively and the persons placing bids for the items of-
fered during online auctions (hereinafter: “Bidder” or, after having received the
“virtual” award: “Purchaser”).
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2. Personal Scope of Application, Registration, Login and Exclu-
sion
(1) Exclusively entrepreneurs within the meaning of Section 14 of the German Civil
Code (BGB), legal entities under public law and special funds under public law
within the meaning of Section 310 (1) of the German Civil Code (BGB) shall be
entitled to participate in online auctions by placing bids.
(2) In order to qualify as a Bidder during the online auctions, the Bidder must regis-
ter with IRAT. For this purpose, the Bidder shall submit the data requested by
IRAT completely and correctly. The registration must be made by a natural per-
son holding a power of representation in this respect and to be indicated by
name.
(3) Among other data, a password, the company name, a serviceable invoice ad-
dress (not a post office box) as well as a valid email address must be submitted
when registering for the first time. The Bidder shall be given notice of his, her or
its successful registration, followed by a system-generated assignment of an
unchangeable bidder number by email.
(4) In the first instance, the correct VAT registration number shall be decisive for
acceptance. IRAT, however, reserves the right to request the Bidder to submit a
proof of legitimacy by transmitting a copy of an extract from a commercial regis-
ter or of an official trade licence.
(5) By means of his, her or its registration, the Bidder is deemed to have authorised
IRAT to collect, store and process personal data and to use them for its own
purposes.
(6) In this connection, IRAT shall especially comply with the regulations provided
for in the Federal Data Protection Act (see data protection declaration).
(7) In the event of a change of the data indicated at the time of registration, the par-
ticipating person shall be obliged to update the above-mentioned data without
any delay. The Bidder shall assume liability for errors caused by a failure to
have such information updated.
(8) The bidder number and the password shall be requested each time the Bidder
logs in.
(9) The Bidder undertakes to ensure that his, her or its bidder number and pass-
word are not communicated to unauthorised third parties. If such data are nev-
ertheless disclosed or if the Bidder becomes aware of corresponding indications
IRAT must be given immediate notice in this respect. The Bidder shall be liable
for all acts concerning his, her or its account when granting third parties access
or use.
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(10) In the event that the Bidder infringes material provisions of these Terms and
Conditions, - inclusive of a violation of the Bidder’s duties of care when handling
the login data – IRAT shall be entitled to exclude the Bidder from any further
use of the Internet portal.
(11) Apart from that, reference is made to the special conditions for exclusion in
case of non-payment and non-acceptance of auctioned items [clauses 4 (14)
and 5 (8)].
(12) The persons concerned shall be notified of exclusions, if any, by email. After the
access of a Bidder has been blocked due to an infringement of material provi-
sions of these Terms and Conditions, a new registration by the Bidder shall be
subject to the prior written consent of IRAT.
3. Bidding Procedure, Contract Conclusion and Rights of Third
Parties
(1) The items presented in the online auction catalogue of IRAT represent the re-
spective client’s unbinding invitation to place bids. Each item included in the
catalogue shall be offered “as is”, i.e. in its actual condition. IRAT reserves the
right to change the numerical order indicated in the online auction catalogue, to
pool items or to withdraw them.
(2) The specifications in the online auction catalogue, especially technical data,
dimensions, makes, years of construction or quantities shall be unbinding and
must not be construed as a statement relating to the quality of the items; in par-
ticular, the information given in the online auction catalogue shall not imply a
granting of a quality warranty. For this reason, IRAT recommends to have a
close look at the items at their respective locations, something which will be
made possible at any time during the visiting hours indicated by IRAT.
(3) Bids may only be placed by registered persons. A placing of bids via automated
data processing systems which have not been authorised by IRAT (e.g. so-
called “sniper” programmes) shall be inadmissible. The use of mechanisms,
software or other routines during online auctions, which could in any way lead to
an impairment or destruction of functionality, shall not be permitted. Any in-
fringements in this respect shall be prosecuted and claims for damages shall be
asserted.
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(4) The online auctioning of each item shall commence with the opening bid. When
placing higher bids, the standing high bid must at least be raised by the bid in-
crement depending upon the minimum bid. The next bid increment shall be au-
tomatically displayed. Irrespective of that, however, bid increments may be ex-
ceeded. A bidding agent made available will, within the specified limits, auto-
matically and gradually raise the bid of the person represented by such bidding
agent until said person is the highest bidder again. The Bidder shall be bound to
a given bid until being outbid.
(5) Bids must be placed within the term of the respective online auction. Exclusively
the system clock shall be decisive for the determination of the cut-off time ter-
minating the respective term. In the event that a bid exceeding the prior ones is
placed within less than 5 minutes prior to the expiry of the cut-off time of the
online auction, the exact cut-off time shall be postponed in a way that the period
between the placing of this highest bid and the end of the online auction is 2
minutes. This procedure shall be repeated until no further higher bid is placed
within said period of 2 minutes.
(6) IRAT shall be entitled to reject bids and to refuse the acceptance of bids at its
own discretion and without being obliged to state the reasons therefore. IRAT
may exclude persons or their agents from the online auction without stating the
reasons.
(7) The Bidder who, in the end, has placed the highest bid shall receive the award.
Said award shall be granted by means of an award confirmation (“virtual
award”).
(8) In the event that the highest bid falls below the minimum price specified by
IRAT at its own discretion, the conclusion of the purchase contract shall in any
case be subject to a written statement issued by IRAT according to which IRAT
is willing to sell the items at the standing high bid. If IRAT fails to issue said
statement within 3 working days after the end of the online auction the standing
high bid shall be deemed to have been refused.
(9) The Bidder shall be bound to his, her or its bid while IRAT shall be entitled to
accept the bid subject to reservation only. In such a case, the Bidder shall be
bound to his, her or its bid for the term specified by IRAT. The acceptance of
the bid shall become effective upon dispatch of the written notice sent by IRAT
to the contact address indicated by the Bidder.
(10) IRAT reserves the right to terminate the online auction prior to the cut-off time
without having accepted any bid.
(11) In the event that excluded persons or their agents participate in breach of
clause 2 (1), they shall not be permitted to plead that the online auction is inef-
fective towards them. IRAT, however, shall reserve such right.
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(12) It cannot be ruled out that, irrespective of a release of items by the client, it may
turn out at a later time that third parties hold rights in such items or that the con-
sent of the meeting of creditors has not yet been given respectively. In the event
that IRAT becomes aware of third party rights or rights of approval reserved to
meetings of creditors as late as after an auction and in spite of having accepted
a bid, IRAT shall be entitled to refuse the surrender of the respective items as
long as they have not yet been delivered. In such cases, the Bidder shall only
be entitled to assert claims according to the principles of the unjust enrichment
law.
4. Transfer of Risks and Pickup
(1) Upon receipt of the award confirmation by the Purchaser, the items shall be
deemed to have been handed over to the Purchaser. Liability and risk of acci-
dental destruction and loss or damage to the items shall pass over to the Pur-
chaser as soon as from this moment. If, however, the bid is accepted subject to
reservation this shall not apply but after the reservation ceases to exist. IRAT
recommends every Purchaser to take out insurance for the items.
(2) The actual transfer of the items to the person whose bid has been accepted
shall take place after complete payment of the amounts mentioned in clause
5 (1) only.
(3) The received award shall oblige the Purchaser to accept the items without any
delay. In the event that the Purchaser fails to accept the handover offered by
IRAT after having received the award, the actual custody, if any, of the items by
the client or IRAT or third persons respectively shall not imply or result in the
conclusion of a custody agreement.
(4) The disassembly and removal of the items shall be made at the expense and
risk of the Purchaser by complying with the valid occupational safety guidelines
and the effective industry-specific regulations and company rules.
(5) The Purchaser shall assume liability for any damage to the property of the cli-
ent, of IRAT or third parties occurring during the pickup, disassembly or removal
of items. Pursuant to Section 278 of the German Civil Code (BGB), the Pur-
chaser shall be liable for all companies acting on his, her or its behalf.
6 State: Jan. 29, 2015
(6) The Purchaser shall be obliged to collect any and all items belonging to the
scope of the transaction. If a (broom-clean) vacation has been agreed upon with
the Purchaser as a so-called fixed transaction the Purchaser shall be obliged to
leave the rooms/premises forming the subject matter of the vacation in a proper
and clean condition. The decisions pronounced in this respect by the highest
court shall serve as a benchmark for assessing whether the premises have
been left in a broom-clean state.
(7) If the site where the items to be auctioned are located is entered for inspection
purposes or in order to take part in an online auction such access shall be at
one’s own risk. Every interested party shall be liable for any damage caused by
him or her.
(8) Upon their pickup or removal, the items shall be deemed to have been handed
over to their full extent. Subsequent complaints due to missing parts shall be
excluded.
(9) Unless otherwise agreed upon, the collection, disassembly and removal of the
items must be carried out on working days during the specified office hours
within the indicated collection period after the award has been made.
(10) Upon pickup or disassembly of the items, the Purchaser or an agent of the Pur-
chaser shall be obliged to submit corresponding proofs of legitimacy (e.g. per-
sonal identity card) and a printout of the invoice or any other evidence agreed
upon in advance.
(11) In the event of a culpable delay in the pickup or, as the case may be, disas-
sembly or removal, the client or IRAT respectively shall be entitled to give the
items into custody at the expense and risk of the Purchaser.
(12) In the event that the Purchaser is in default of acceptance, the client or IRAT
shall be entitled to claim compensation of the additional expenses incurred for
this reason. In the event of a delay in the pickup, disassembly or removal, the
client or IRAT may claim a reimbursement of expenses of not less than EUR
350.—net per day or the reimbursement of the actual expenses incurred due to
the failure to collect, disassemble, remove and store the items concerned.
(13) If the items are not collected, disassembled or removed within the collection
period agreed upon the client or IRAT respectively shall be entitled to withdraw
from the contract and claim damages for non-performance after having granted
an appropriate period of grace which has been expired without result; in such
an event, the client or IRAT respectively shall, at their own discretion, particular-
ly be entitled to sell the items again or to offer them during another auction,
whereby a shortfall of proceeds, if any, and any additional costs incurred in this
respect must be borne by the Purchaser.
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(14) IRAT reserves the right to exclude defaulting purchasers from future participa-
tions.
5. Payment of Purchase Price and Surcharge
(1) The surcharge to be paid by the Purchaser in addition to the purchase price
currently amounts to 18 % of the highest bid, unless another auction surcharge
has been agreed upon. The total price shall be subject to the addition of value
added tax (VAT) at the rate valid at the time being.
(2) Purchase price, surcharge and VAT shall become due for payment immediately
at the time of the award upon receipt of the award confirmation and the elec-
tronic invoice, and, if the award is made subject to reservation, as soon as the
reservation ceases to exist, unless otherwise agreed upon. The invoice shall be
transmitted in an electronic format only. A deduction of a cash discount shall not
be admissible.
(3) The award confirmations/invoices forwarded to the Purchaser after the end of
the online auction shall be handed over subject to another review.
(4) IRAT shall be entitled to collect purchase prices and ancillary costs for the ac-
count of the client.
(5) The Purchaser shall be informed about the payment terms by email.
(6) With respect to the consequences of a delay in payment, the statutory provi-
sions shall apply. A defaulting Purchaser shall be obliged to pay interest for de-
lay at a rate of 9 percentage points p.a. above the basic interest rate valid at the
time being. The assertion of higher claims for delay shall remain reserved. Apart
from that, IRAT shall be entitled to claim a lump sum amounting to EUR 40.—
from the Purchaser according to Section 228 (5) of the German Civil Code
(BGB).
(7) In the event that the purchase price fails to be paid in due time, the client or
IRAT shall be entitled to withdraw from the contract and claim damages for non-
performance after having granted an appropriate period of grace which has
been expired without result; in such an event, the client or IRAT shall, at their
own discretion, particularly be entitled to sell the items again or to offer them
during another auction, whereby a shortfall of proceeds, if any, and any addi-
tional costs incurred in this respect must be borne by the Purchaser.
(8) IRAT reserves the right to exclude defaulting purchasers from future participa-
tions.
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6. Particularities with Respect to Purchasers from EU-States
and Non-EU-States
(1) Sales of items during online auctions to Purchasers from EU-states may be
made without imposing sales tax only if an officially certified VAT identification
number and a confirmation of arrival have been submitted and forwarded to
IRAT no later than 10 days after the end of the online auction.
(2) Purchasers from non-EU-states shall pay the value added tax to IRAT as secu-
rity deposit, which shall be refunded after the duly stamped original export doc-
uments have been submitted.
7. Setoff and Title Reservation
(1) A setoff against IRAT’s claim for payment of a surcharge and the proportionate
VAT shall only and exclusively be admissible if and when the claims asserted
against IRAT are undisputed or have been finally determined with legal effect.
(2) Legal title to the items shall not pass over to the Purchaser but after complete
payment of the purchase price together with the surcharge and VAT. In addi-
tion, IRAT shall be entitled to refuse the transfer of title until any and all claims
arisen from the business relationship with the Purchaser have been settled
completely.
8. Warranty Claims and Liability
(1) Each item shall be auctioned “as is” and warranties in this respect shall be ex-
cluded. A prior inspection at the respective location of an item shall be made
possible at any time during the visiting hours specified by IRAT.
(2) Within the framework of the duties assumed by it, IRAT shall be liable towards
the Purchaser for its own breaches of duty in the event of intent and gross neg-
ligence.
(3) IRAT shall be liable for any damage caused by slight negligence if said negli-
gence relates to an infringement of contractual duties the fulfilment of which is
of material importance for the achievement of the purpose of the contract. A lia-
bility, however, shall be assumed only if the damage is predictable and typically
related to the contract.
(4) A liability due to slight negligence, as provided for in clause 8 (3), shall be ex-
cluded if the Purchaser failed to use the opportunity of a prior inspection of the
items during which he, she or it would have had been able to detect the failure.
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(5) Irrespective of the preceding provisions and the following limitations of liability,
IRAT shall be liable without any restriction for damages to life, body and health
due to its own negligent or intentional violation of duties or a negligent or inten-
tional violation of duties by its legal representatives or agents.
(6) Irrespective of the preceding provisions and the following limitations of liability,
IRAT shall be liable without any restriction for any damage resulting from fraud-
ulent intent. The same shall apply to its legal representatives or agents.
(7) Regardless of the legal nature of the asserted claim, a more far-reaching liability
shall be excluded. The limitation of liability provided for in clause 8 (3) sentence
2 or, as the case may be, the exclusion mentioned in clause 8 (4) shall equally
apply to its legal representatives and its agents.
(8) IRAT shall not warrant the permanent availability of its website
www.industrierat.de and shall not be liable for potential uncertainties in connec-
tion with the Internet medium. In particular, IRAT shall not assume any respon-
sibility for a temporary system-related lack of availability or inaccessibility or for
technical defects in the event that, as a consequence, bids fail to be taken into
consideration.
(9) The regulations set forth in clause 8 (3) – (7) shall apply mutatis mutandis to the
client and his, her or its disclaimer of warranty agreed upon with the Purchaser
in clause 8 (1).
9. Choice of Law and Place of Jurisdiction
(1) This contract and all legal relationships between the parties involved, as provid-
ed for in clause 1 of these Terms and Conditions, shall be governed by the law
of the Federal Republic of Germany, excluding the UN sales law (CISG).
(2) With respect to the handover of the items, the place of performance shall be the
respective location of the auctioned items, and with respect to payments, the
place of business of IRAT.
(3) If the Bidder is a trader within the meaning of Sections 1 et seqq. of the German
Commercial Code, a legal entity under public law or a special fund under public
law Hamburg shall be the place of jurisdiction agreed upon.
(4) Conditions of the Bidder which deviate from or conflict with these Terms and
Conditions shall be accepted only if they have been explicitly confirmed in writ-
ing.
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(5) These Terms and Conditions shall also apply to any and all future transactions
with the Bidder as far as said transactions constitute legal transactions of a
similar nature.
10. Changes to these Terms and Conditions
IRAT shall be entitled to change its Terms and Conditions at any time without
stating the reasons therefore. Amended Terms and Conditions shall be an-
nounced prior to their coming into effect on its website www.industrierat.de.
11. Final Provision
The German version of the General Terms and Conditions shall be legally bind-
ing.
