General Terms and Conditions for participating in auctions on the website www.ab-auction.com
1) These General Terms and Conditions apply in connection with the participation in auctions on the website www.ab-auction.com. This applies both to the legal relationships of AGRAVIS Technik Center GmbH and of BayWa AG (hereinafter referred to in each case as 'the Companies' or, also individually, as 'the Company concerned') with the contractual partner (customer). External General Terms and Conditions do not apply, even if the Companies do not explicitly object to them.
1) Participation requires registration to take part in the auction. Only contractors, corporate bodies under public law or special funds under public law that acquire the objects of purchase for corporate purposes are entitled to participate. This must be warranted before participating in an auction with a mouse click on a corresponding button.
2) Registration takes place online via the website http://www.ab-auction.com. The information which is requested during the registration process must be provided where appropriate and kept up-to-date at all times. The Company shall reserve the right to check that the information is correct - also by utilising the services of credit reference agencies. The customer consents to this when their account (customer account) is opened.
3) During the registration process, a user name and a password are defined for the customer. The user name and password are used in order to uniquely identify the customer. The customer is responsible and liable for ensuring that the user name and password are kept secret and cannot be misused by third parties as a result of their behaviour, unless the customer demonstrates that they are not responsible for the misuse.
4) The Companies shall reserve the right, in individual cases, to exclude the customer from participating in auctions without specifying reasons at any time and permanently if necessary.
5) In addition, the Companies shall reserve the right to stop or restrict holding auctions and providing the possibility of participation in them in full or in part, also without announcing this beforehand. Claims on account of the exclusion or stopping or restriction of the service in relation to the auctions are excluded.
1) As part of the auction, the Companies sell second-hand or new agricultural machinery. The customer's contractual partner is always the Company which has placed the object for sale with the corresponding notices on the auction platform ('the Company concerned'). The purchase price which is displayed on the auction platform is a net price, excluding the respective statutory value added tax.
2) The details in relation to the object which is for sale, in particular the details about the previous history of the object of purchase, such as the fact it has not been involved in any accidents or sustained any damage and the number of kilometres travelled and number of hours in service, originate from the previous owner and cannot be verified by the Companies. These details are provided without guarantee and are therefore merely designed to provide the customer with initial information. The agreement of a contractual quality or an independent guarantee of the existence of characteristics cannot be inferred from this, unless this is explicitly agreed in writing.
3) The Companies shall specify the location of the site of the object of purchase so that the customer has the opportunity to visit and view the object of purchase after making arrangements with the operator of the site. It is a matter for customers to satisfy themselves about the condition of the object of purchase and that the details provided for the object of purchase are correct.
4) To acquire the object of purchase, the customer must log into the abovementioned website with their user name and their password to participate in the respective auction.
5) The purchase price for the object is set as follows: with each minute that passes from the start of the auction, the purchase price for the object of purchase displayed on the auction platform is reduced by a precisely defined amount which, just like the time period of change, may be different from one auction to the next.
6) If the specified minimum price is reached without a customer submitting a bid, the auction ends without any bid being accepted.
7) If a customer wants to purchase the object of purchase at the price which is currently displayed, they use their mouse to click on the arrow showing the price which is displayed on the auction platform. With this click, the customer accepts that they want to enter into a binding purchase contract with the Company that is displayed there ('the Company concerned') in respect of the object of purchase which is displayed at the price which is displayed when the button is pressed. After the first bid has been placed, all other registered customers have the possibility of submitting a higher bid for around 60 seconds. The arrow which is displayed on the auction platform is at the next-higher price level for this purpose. To outbid the first bidder, any other bidder can click on this arrow with their mouse in order to bid the higher price which is displayed. When one of the bidders submits a higher bid, this person can in turn be outbid in the same way. There is no upper limit on the purchase price.
8) The contract arises with the customer that has submitted the highest bid in this way within the bidding period. The purchase contract which is concluded in this way is confirmed to the bidding customer on the auction platform and also sent by e-mail. In the e-mail, the customer is also once again notified of the location of the site of the vehicle from which they must collect it.
1) The purchase price is due for payment seven days after the purchase contract has come into existence. The Company concerned shall issue the customer with an invoice which details the statutory value added tax separately and, following receipt of payment and credit to the account of the Company concerned, a confirmation of payment.
2) If the customer does not pay within the payment period of seven days from the end of the auction, the customer shall be in default even without any reminder being issued; from this point in time the customer must pay interest on the purchase price at a rate of 8% above the base interest rate. The Company concerned is not precluded from claiming further damage caused by a delay.
3) If the customer still fails to pay even after a reminder in text form has been issued and an appropriate deadline period for payment set with this reminder has elapsed, the Company concerned shall be entitled to withdraw from the purchase contract following notification - also in text for
4) For the reminder and the declaration of the intention to withdraw from the contract, it shall be sufficient if it is sent to the postal address or e-mail address specified by the customer in the process of registering for the auction.
5) If the Company concerned has withdrawn from the purchase contract, it shall be entitled to charge the customer a flat-rate contractual penalty amounting to 10% of the gross purchase price. The Company concerned shall not be precluded from demanding compensation from the customer for damages exceeding this. The customer shall be at liberty to demonstrate that a lower level of damage has been caused
6) The Company concerned shall reserve the right to refuse cheques and other non-cash methods of payment. Acceptance of them is always just for the sake of processing. Payments in a foreign currency shall be credited according to the bank statement. Bank charges must be paid by the customer.
1) The customer shall be obliged to collect the object of purchase no later than 20 working days after the end of the auction, presenting the confirmation of payment at the place where the object is located according to the specification given at the auction (obligation to collect). The customer must make arrangements for transportation of the object. This does not form part of the contract.
2) If the customer does not collect the object of purchase within the period of time set out above, the Company concerned shall be entitled to charge storage fees from this date onwards.
3) If another period of grace of 8 working days which is set in text form elapses without any result, the Company concerned shall be entitled to realise the object of purchase in the normal course of business. For the reminder with a period of grace, it shall be sufficient if it is sent to the postal address or e-mail address specified by the customer in the process of registering for the auction. Excess amounts remaining after the deduction of all costs and taxes as well as the contractual penalty shall be paid out to the customer.
1) Claims for defects are excluded when second-hand movable objects are sold to contractors, corporate bodies under public law or special funds under public law. If new movable objects are sold to contractors, corporate bodies under public law or special funds under public law, the claims for defects shall lapse one year from the transfer of risk, in the event of refusal by the customer to accept and approve from the time of provision. The abovementioned restrictions do not apply to claims for compensation arising from a warranty, the acceptance of a procurement risk, on account of injury to limb, life or health, deliberate or malicious actions or in the cases of Sections 438 (1) No. 2, 479 and 634 a (1) No. 2 of the German Civil Code. If the customer is a contractor, corporate body under public law or special fund under public law, the Company concerned shall be entitled, at its choice, to deliver supplementary performance through subsequent improvement or a subsequent delivery. If the subsequent improvement fails, the rights of the customer shall be determined by Section 437 No. 2 and 3 of the German Civil Code.
2) Defects are to be reported in text form (in writing or by e-mail). Obvious defects are to be notified immediately, but no later than eight working days following the handover of the goods. Discrepancies apparent from the delivery note between the quantity or type of goods delivered and the quantity or type of goods ordered are obvious defects. Goods with obvious defects must not be associated, combined or mixed with movable objects. Hidden defects are to be notified immediately, but no later than eight working days after they are discovered or become known about. Section 377 of the German Commercial Code remains unaffected.
3) The customer shall only be entitled to offset with a claim which is undisputed or has been declared final and absolute, unless the claim results from the same contractual relationship.
4) The place of performance for the customer's payment obligation is the registered place of business of the Company concerned. The place of performance for the obligation of the Company concerned is the location of the respective object of purchase.
Claims for compensation of the customer, on whatever legal grounds, in particular on account of a breach of obligations arising from the obligatory relationship and from prohibited actions are excluded. This shall not apply, if there is mandatory legal responsibility, in particular
in cases of malice, intent or gross negligence
in the event of death, physical injury or harm to health
in the event of default, if a fixed delivery date was agreed
on account of the acceptance of a guarantee for the material quality of the object delivered or a procurement risk within the meaning of Section 276 of the German Civil Code
under the German Product Liability Act or
in the event of some other breach of essential contractual obligations; in this case the entitlement to compensation for damage shall be limited to the level of damage that typically occurs.
Essential contractual obligations are those obligations which protect the customer's legal positions which are essential to the contract and which the contract must grant to the customer according to its content and purpose. Also essential are those contractual obligations which need to be met to make the correct and proper implementation of the contract possible in the first place and which the customer has regularly expected and can be entitled to expect to be complied with. A change to the onus of proof to the detriment of the customer is not associated with the regulations set out above.
1) Personal data is collected, stored and processed by the Company concerned in accordance with Section 28 of the German Data Protection Act. This also covers the transmission of this data to credit reference agencies for the purpose of credit checking and monitoring. The personal data of the customer (name, address and date of birth) are transferred for the purpose of a credit check to the companies SCHUFA AG, Kormoranweg 5, 65201 Wiesbaden and infoscore Consumer Data GmbH, Rheinstr. 99, 76532 Baden-Baden. The Company concerned shall procure the credit rating information on the basis of mathematical statistical methods using address data. The customer can obtain information about the personal data stored on them from these companies free of charge.
1) The Company concerned shall retain its title until the contract has been met in full, in transactions with contractors until all debt claims which have already arisen from the business relationship or secondary debt claims which arise in close connection with the goods supplied (interest payable for use, damage caused by delay etc.) have been settled. In the case of transactions on an open account, the retention of title shall also act as security for the current account balance of the Company concerned. The processing, assembly or other utilisation of goods subject to retention of title shall be deemed to have taken place on behalf of the Company concerned. If the goods subject to retention of title are mixed, associated or combined with other objects ('third-party goods'), the customer shall assign its property rights or joint property rights to the new object to the Company concerned accepting this and shall keep it safe without charge for the Company concerned with the due diligence of a prudent businessman.
2) If the customer sells goods subject to retention of title on their own or together with third-party goods, it shall at this stage assign the debt claims arising from the further sale amounting to the value of the goods subject to retention of title together with all secondary rights to the Company concerned that accepts the assignment. The value of the goods subject to retention of title is the invoice amount of the Company concerned plus a security surcharge of thirty-eight per cent. Assigned in the same way are all debt claims of the customer that it acquires from contracts in relation to the processing or installation of the goods subject to retention of title, as well as debt claims which accrue to the customer as a result of linking the goods subject to retention of title with the property of a third party. The assignment in advance also extends to any account balance claim.
3) The customer shall be entitled to resell, use or install the goods subject to retention of title only in the usual, ordinary course of business and only subject to the proviso that the debt claims within the meaning of the clauses above are actually transferred to the Company. The customer is not entitled to other dispositions in respect of the goods subject to the retention of title, in particular pledges or assignments as security. The customer may not agree any ban on assignment with its consumers.
4) The Company concerned authorises the customer in a revocable way to collect the debt claims which are assigned in accordance with the clauses above. The Company concerned shall not make any use of the authority to collect provided that the customer meets its payment obligations, also with respect to third parties. At the request of the Company concerned, the customer must name the debtor of the assigned debt claim and provide comprehensive information – with it not being sufficient to allow the Company concerned to inspect books and business papers – and to report the assignment to the debtor. The Company concerned shall be entitled also to report the assignment to the debtor itself. The rights of the customer to resell, use or install the goods subject to retention of title and the authority to collect the debts which are assigned shall lapse with the cessation of payment, the requesting or opening of insolvency proceedings or when an out-of-court settlement procedure is carried out with the creditors for the purpose of the settlement of debts.
5) The customer must notify the Company concerned immediately, handing over the documents which are required for objection in relation to compulsory enforcement measures of third parties in respect of the goods subject to retention of title or the debt claims assigned (in advance).
6) If the customer is in default of payment, the Company concerned shall be entitled to take back the goods subject to retention of title after issuing one warning and the customer shall be obliged to surrender the goods. The customer shall grant the Company concerned the right to access its premises, in order to label or remove the goods supplied. The customer shall pay the costs of recovery of the goods.
7) If the realisable value of the securities which are granted exceeds the debt claims which are to be secured by more than thirty-eight per cent, the Company concerned shall to this extent be obliged to reassign or release at the request of the customer.
German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction shall be deemed to be the registered place of business of the Company concerned (Munich for BayWa AG or Münster Westf. for AGRAVIS Technik Center GmbH).