General Trading Conditions

GTC Labstribute GmbH Status 2/2019

 

General terms and conditions

1. General provisions

 

General remarks

 

Labstribute GmbH arranges online auctions of second-hand chemical, clinical etc. facilities and equipment.

On the website www.labstribute.com Labstribute GmbH runs an interactive internet sales platform for second-hand chemical, clinical etc. facilities and equipment. Objects that are on sale will be offered in the online platforms’ “online auctions” section. Sales via the online platform are organised by Labstribute GmbH.

These general terms and conditions (hereinafter: GTC) include the general regulations of the online platform for live auctions and sales arranged and organised by Labstribute GmbH. They regulate the legal relationship between Labstribute GmbH or Labstribute (hereinafter: auctioneer), the supplier (hereinafter: supplier or seller), the objects for sale (hereinafter: items), as well as the people that make their bids or offers for certain items (hereinafter: participants or buyers).

Additional special business terms (hereinafter: special terms) might apply for some auctions or sales. Those contain supplements to and/or deviations from the GTC. In case of doubt, the special terms will have the precedence.

The auctioneer assumes no warranty of texts, photographs or possibly declared original prices for the respective auction items.

The auctioneer can change these GTC at any time with effect for the future. Changes will take effect with the arrival of a corresponding message to the participants.

 

Participating in online sales (online auction)

Participating in sales on the online platform (online auction or trading) requires an online registration. The registration is free of charge, the admission to the online platform follows via a user name and a password.

There is no legal claim for registration. The entered data during the registration process must be complete and correct. The registration is only open for corporate bodies, business partnerships and natural individuals of unlimited legal capacities. Especially minors are not allowed to register. The auctioneer reserves the right to revoke the registration in the case of incorrect information or the abuse of an account. The participant can cancel his or her registration process at any time.

The participant identifies or proves his identity in order to use of that platform with his or her user name and password. He or she ensures the confidentiality of that information through appropriate measures, so that no unauthorized person can take that information to use the online platform without given consent.

With the successful registration, the participant authorises the auctioneer to collect, store and use his or her data and to publish the user name on the online platform in the context of sales. All 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.

Anyone who registers on the online platform and accepts the GTC can make a bid (online auction) or an offer (trading). By placing a bid or an offer, the participant confirms that he or she has noticed and accepted any special terms, as stated on the online platform, for that individual case.

Unless otherwise agreed, the auctioneer takes care of the technical data acquisition, the taking of digital photographs on site, the evaluation of the items, the assessment of the market price as well as the specific advertisements in trade magazines. If the supplier does the whole set up for the items himself or herself, the above-mentioned services are cancelled.

By setting up an online auction, the supplier grants the exclusive marketing rights to the auctioneer for the set auction duration plus the respective reservation period. A change of that is impossible as long as there is still time for or there are still valid bids or offers for the respective item(s). If the auctioneer received a general sale assignment from the supplier, the exclusive right to choose the appropriate sales approach is obtained by the auctioneer.

 

Deposit/ bank certificate

The auctioneer reserves the right to admit participants only against the payment of a deposit or another form of guarantee. The auctioneer is entitled to keep the deposit, other form of guarantee or pawned object following the auction or the trading, if he and/or the seller has claims against the participant regarding the auction or wants to settle part of the purchase price with the deposit. If the auctioneer and/or the seller have no claims against the participant regarding the auction, the auctioneer will refund the participant’s deposit or other form of guarantee or pass the pawned object back.

If the minimum bid (starting bid) starts at EUR 5,000.00, the participation in the online auction requires the submission of a bank certificate that shows the participant’s financial standing.

1. Special terms for auctions

 

Auction

An auction takes place on behalf and on the account of a supplier. The auctioneer is not a party to the purchase contract that comes into effect through the acceptance of a bid, but only puts the supplier and the participant in contact. The auctioneer is responsible for organising and carrying out the auction. For this, the auctioneer will receive a 18 percent premium of the net purchase price from the participant who won the bid. In some individual cases the special terms intend for a different premium.

Dates and deadlines (beginning, end of an auction, takeover, collection) concerning the online auctions can be retrieved from the auction pages on the online platform. The auctioneer reserves the right to cancel any auction ahead of time or prolong it.

Dates and deadlines for live auctions (beginning, end of an auction, takeover, collection) will be announced by the auctioneer, mentioned in the auction catalogue or can be found on the online platform. The auctioneer reserves the right to change the set order in the auction catalogue and to separate, combine or withdraw the numbers.

Bids are only possible when free of conditions and reservations. Bids are binding, withdrawing your bid is impossible. The bids do not include the VAT and the premium. The auctioneer is authorised to reject entered bids without giving a reason.

The auctioneer determines any eventual minimum bids (starting bids). In the case of multiple identical bids, the bid that the auctioneer receives first counts. If the auctioneer considers a bid to low, he or she is authorised to reject the bid of one or more participants.

Items

At an online auction the auctioneer puts single items or block items (the combination of multiple items under one auction number) up for auction. There are two steps for a block item’s auction:

First, the single items will be put up for auction. The acceptance of a bid takes place, provided that (suspensive condition according to the German Civil Code § 158 para. 1) the item is not sold as part of a block. After the acceptance of bids for single items, the block items will be put up for auction. If there are no bids for the block items or no acceptable bids, acceptance of the bids for the single items will ultimately take place.

If bids were made for block items, the following applies: bids for block items are accepted if the highest bid is at least 10 percent higher than the sum of all the bids for the single items. In that case, single bids are rejected based on the entry conditions. In some cases, the special terms can contain a different percentage.

The auctioneer is authorised to combine single items into block items, separate block items and/or withdraw single or block items from the auction until the auction ends.

 

Acceptance and purchase contract

A purchase contract is achieved immediately after the acceptance of a bid.

The acceptance of online bids is determined by a system. The auctioneer will automatically notify the bidder who wins the bid via email about his or her successful bidding. That is usually the participant who made the highest bid within the bidding period.

The auctioneer can generally or for an important reason not accept the bids of particular bidders, exclude bidders from an auction and/or correct errors the auctioneer made with offers or accepted bids by giving the participant the respective notice.

Furthermore, the auctioneer is allowed to not accept a bid or to only accept it under certain reservations, at his own discretion.

No purchase contract is achieved for the item, if the bid is accepted with any reservations. Moreover, the participant who won the bid under reservation is bound to his or her bid (period of commitment) for the time of 7 calendar days (online auctions). Special terms can change the period of commitment. During the period of commitment further bids can be made. The auctioneer is able to reject the participant’s bid during the period of commitment. If the auctioneer does not remove the reservations during the period of commitment, the bid is finally rejected.

In the case of doubt or ambiguity regarding the validity of a participant’s bid, for example if the participant does not want his or her bid to be effective, the auctioneer decides if a purchase contract is achieved based on the respective terms of the highest bid. In this respect, the participants submit to the auctioneer’s decision. If the auctioneer decides that no purchase contract was achieved on the respective terms of the highest bid, he can open the bidding for those particular items again.

 

Seller and buyer obligations

If a purchase contract is achieved between the supplier and the participant, the buyer is obligated to pay the purchase price and the premium plus VAT and take over the item(s). The seller is obligated to surrender the item(s).  

The auctioneer will invoice the participant for the purchase price and the accrued premium. According to para.1, the invoice needs to be settled immediately upon receiving the invoice, either in cash, by a certified cheque or via bank transfer.

The certified cheque may not include unusual bank reservations. It is for the auctioneer to decide if a certified cheque meets the requirements. If the invoice is settled by a cheque, the auctioneer may demand that the disassembling as well as the transportation of the auctioned item(s) takes place after the auctioneer’s bank account has been fully credited with the amount of the cheque. If the buyer makes the payment by certified cheque, the auctioneer might release the items for collection immediately.

If buyers from abroad cannot fully settle the invoice in accordance with the aforementioned provisions, the auctioneer may at his own discretion demand a minimum 20 percent down payment of the outstanding balance according to para. 1. In such a case, the outstanding payment needs to be made immediately by bank transfer. Transfer and other costs are borne by the buyer. Cheques are accepted on account of payment. Buyers from outside the EU must pay the VAT in as a deposit. They will be reimbursed upon presentation of a duly stamped copy of the certificate of export with an official stamp. VAT-exempt sales to participants from within the EU can only be made upon presentation of the legally attested VAT ID number.

All invoices issued shall be subject to the reservation of special verifications and possible corrections. Errors remain reserved.

In the event of a delay in payment, interests in the amount of 8 percentage points (if the participant is a corporation within the meaning of §14 of the German Civil Code) or 5 percentage points (if the participant is a consumer within the meaning of § 13 of the German Civil Code) above the relevant base interest rate of the European Central Bank will be calculated. This also applies for the payment made by cheques. In the event of a delay in payment or a late collection of the auctioned item(s), the supplier can disassemble and store the auctioned item(s) at buyer’s risk and costs or resign from the purchase contract and claim damages for breach of contract upon unsuccessful expiry of an appropriate grace period. In the latter case, the auctioneer can put the auctioned item(s) up for auction once more. The respective buyer is forbidden to bid in the new auction. The buyer shall be liable for any loss in proceeds without having claims to any additional proceeds.

The buyer’s obligation to pay the premium remains in place regardless of the purchase price payment, the legal evaluation of the purchase price claim or the further existence of the purchase contract.

 

Passage of risk / passage of ownership

The items are passed on to the buyer with the acceptance of a bid. The risk of accidental disappearing, loss or damage of the item(s) is passed on to the buyer with the successful bid.

The right of ownership concerning the item(s) passes on to the buyer only after he or she has fully payed the purchase price, the premium and the legal VAT and has received a written clearance certificate from the auctioneer.

 

Takeover of auctioned items

The takeover of auctioned items including the disassembling and transportation takes place at buyer’s costs and risks. The buyer is liable for any damages to other people’s property occurring during the disassembling or transportation process. He or she shall release the auctioneer and the seller upon the first request from possible claims by third parties.

The buyer is only authorised and obligated to collect the items on the collection dates stated by the auctioneer. The auctioneer can decide that a certain item can only be taken over after the transportation of other items. A buyer whose item(s) obstruct(s) the takeover of other items, is obligated to arrange the collection of this/those item(s), upon receiving the auctioneer’s written request (email is sufficient). If that does not happen, the auctioneer is entitled to let third parties carry out a collection and possible storage at buyer’s costs and risks.

Any building or part of the building openings occurring during the disassembling process, are supposed to be closed by a specialist company at buyer’s costs. The auctioneer reserves the right to take a deposit for items whose disassembling process might cause damages to other people’s properties and/or objects. The announcement of the possible items and the amount of deposit will be made on the online platform for online auctions.

The buyer is obligated to follow the instructions of the seller and/or the auctioneer or the person commissioned by the auctioneer when it comes to disassembling and collecting the item(s).

The buyer has to ensure that any necessary permits regarding the disassembling and/or collection/transportation are at hand.

 

Acceptance of offers and purchase contract

The auctioneer publishes the seller’s asking price for the item(s) on the online platform. With that publication, the seller does not submit an offer in the legal sense. The participants shall consider this publication to be an invitation to make a binding offer for (an) item(s). The seller can withdraw this invitation at any time. He is not obligated to accept the participants’ offers.

Any bid is legally binding and aims for the conclusion of a purchase contract with the seller. A bid can be made with a term of acceptance (date, time).

A purchase contract for the item(s) can only be directly accomplished between the seller and the participant, whose bid is to be accepted by the seller on the online platform during the term specified by the participant. It is the at the seller’s discretion which bid he or she accepts. The auctioneer cannot influence this decision and serves only as their messenger with regards to the declarations between seller and participant. When a seller accepts a participant’s bid, the other bidding participants’ commitments expire.

The supplier is obligated to immediately provide the auctioneer with binding information concerning the terms of the purchase contract between the buyer and the seller and the written contract that was achieved via the online platform. If the supplier does not fulfil this obligation, the auctioneer is entitled to exclude him or her from any further use of the online platform. In that case, the auctioneer is further entitled to inflict a contractual penalty of EUR 5,000.00 per item sold by the supplier. This penalty is to be paid by immediately. The auctioneer’s right to assert further damages is expressly reserved.

 

1. Further general conditions

 

Set-off, liability of representatives

A participant who makes offers or bids for (an) item(s) on behalf of a client is liable as principle debtor in addition to his client.

Any set-off will only be permissible for claims that are uncontested or legally recognised.

 

Warranty

Since a purchase contract is only accomplished between the seller and the buyer, the auctioneer assumes no warranty for the items. § 15 remains unaffected.

All items offered for sale are second-hand and may in some cases show considerable signs of use. It is possible to examine the items professionally. The items will be sold in the condition in which they were examined or could have been examined, including with the services of an expert. The seller is not obligated to provide the items free of any latent defects; a certain condition is neither stipulated nor does the seller offer a guarantee for the condition of his or her items. The seller’s warranty is excluded.

Details given on the online platform, the sales catalogues or anywhere else, especially technical data, measurements, years of construction or quantity information are not binding and do not represent a guarantee in the sense of the § 444 German Civil Code or the agreement on the legal and factual nature § 434 para. 1 S. 1 German Civil Code.  The details are based on the seller’s information. The auctioneer is only liable for the correct transmission but not for the objective correctness of that information.

 

Liability

The compliance with the legal provisions when entering and performing the contract is solely the responsibility of the parties of the purchase contract. Upon the first request, the contracting parties release the auctioneer from all claims of third or other contracting parties, or any other claims against the auctioneer related to the entering and performing of the contract, as far as the auctioneer is not liable under the following terms.

The auctioneer is only liable for intent or gross negligence as well as the intent or gross negligence of his legal representatives, executive employees and vicarious agents. The liability for direct damages and consequential damages, especially for the loss of profit is excluded.

Deviating from para. 2, the auctioneer is liable for ordinary negligence as well as the ordinary negligence of his legal representatives, executive employees and vicarious agents in cases of damage to life, limb or health as well as for damages due to the breach of fundamental contractual obligations. Fundamental contractual obligations are the ones that protect the participant’s or supplier’s essential contractual legal positions, which the contract is meant to grant according to its content and purpose (cardinal duties). Further, fundamental obligations include those contractual obligations that enable the proper performance of the contract in the first place and the observance of which the participant or supplier relies on and may rely on regularly.

The liability for the violation of fundamental contractual obligations is limited to damages that could typically happen in this type of business and that the auctioneer might have foreseen and recognised as a possible consequence in case of a violation of that contract, or should have been able to foresee considering the circumstances he had known of or could have known of.

The auctioneer is fully liable towards consumers (§ 13 German Civil Code) for intent or gross negligence as well as the intent or gross negligence of his legal representatives, executive employees and vicarious agents and in cases of damage to life, limb or health as well as for damages due to the breach of fundamental contractual obligations.

Access to the site where the items are located for inspection or collection is at one’s own risk.

 

Final provisions

The auctioneer assumes no liability for the availability of his website www.labstribute.com at any time and is not liable for potential uncertainties arising with the medium internet. The auctioneer is particularly not responsible for offers or bids that could not be processed or saved due to technical difficulties that are beyond his sphere of influence.

If the buyer is a businessperson or a legal entity of the public law or is a public separate estate, then Munich is the understood place of performance and the sole place of jurisdiction for legal disputes between the auctioneer and the participant.

These general terms and conditions and any legal relationships between the auctioneer, the supplier and the participant are exclusively subject to German law excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The European Commission provides a platform for online dispute resolutions (OS). You will find the platform at https://webgate.ec.europa.eu/odr/

 

Labstribute GmbH Labor-Auktionen

Wartburgplatz 6

80804 Munich

info@labstribute.com

 

 

                                                                                                                                 Status 2/2019