Auction Terms and Conditions - Maas J. Hell GmbH
held from September 16 to 29, 2019
Maas J. Hell GmbH (hereinafter also referred to as the “organizer”) is offering foals for sale, via an online platform, i.e. an “Online Auction”, during the above-stated time period on behalf and at the expense of the exhibitors. The exhibitor guarantees that he is the legitimate owner of the foal.
The sale of the foal is concluded directly between the exhibitor as seller and the successful bidder as buyer. It is therefore a contract of sale as is laid down in §§ 433 BGB (German Civil Code), which is not a public auction in the sense of § 383 (3) BGB (German Civil Code).
By registering, the exhibitor accepts these terms and conditions of the “Online Auction”. By participating in the bidding process, the bidder, hereinafter also referred to as the participant, accepts the terms and conditions of the “Online Auction”. In the case of a successful bidding process, a contract of sale will be concluded exclusively between the exhibitor and the buyer.
B. Participation, bids, conclusion of contract
I. Offers for the foals are made in Euro. A valid bid has to correspond to the minimum bid and must be at least one bidding step higher than the bid of the previous bidder. Minimum bid increment for the online auction shall be €250. Once the amount bid exceeds €10,000, the minimum bid increment shall be €500.
II. Final prices are net prices. The applicable VAT varies according to the tax assessment of the seller. In addition to the final price, extra costs as indicated in item C will apply such as sales tax, insurance, transport costs etc.
III. Participation in the “Online Auction” is only permitted for legal entities and natural persons who have unlimited capacity to conduct business. Minors are not permitted to participate.
Each participant has to apply for registration with the organizer. A participation contract shall be concluded with the organizer.. Each participant shall only be permitted to hold one account. There is no automatic or fixed right to participation.
The participant has to provide his official name and correct address upon registration and has to specify whether he is a consumer as is laid down in § 13 BGB (German Civil Code) or an entrepreneur as is laid down in § 14 BGB (German Civil Code). Incorrect information can lead to cancellation of the participation contract by the organizer without notice. The organizer and third parties commissioned by the organizer to assist with the execution of the Online Auction shall also be entitled to store the IP address of the participant.
The participant shall be entitled to terminate the participation contract any time without having to provide a reason. The organizer will then immediately deactivate access with the corresponding password. Non-concluded auctions where the participant has placed a bid will nevertheless be concluded according to the proper process.
The organizer shall be entitled to cancel the participation contract without notice for justified reasons This applies in particular if the participant refuses to fulfil the contract established through the auction process without good reason or never had the intention of fulfilling it.
The organizer shall be entitled to exclude the participant from future events.
Upon registration, the participant will be given the opportunity to create a password which will allow him access to the online platform and participation in the Online Auction by submitting bids.
The participant has to treat his password confidentially and protect it against unauthorised access by third parties. This also applies to family members. He may only pass his password onto parties authorised to bid in his name and at his expense.
3. The participant shall be held liable for any culpable loss of login details and damages caused by the misuse of his account by third parties. He releases the organizer from any resulting damages.
4. Provided the participant loses his access details or becomes aware of any misuse of his account, he has to report this information to the organizer immediately. He shall then be granted new login details.
The organizer guarantees a 95%-rate of technical accessibility to the auction site .
In the case of an extended outage/downtime of the server during acceptance of bid, the auction period for the relevant auction may be extended by the organizer. The organizer shall determine the exact length of the time extension at their discretion with due consideration of the interests of sellers and bidders.
1. At the start of the Online Auction, the foal will be presented on the Online Platform with a starting bid (=starting price). The exhibitor has the right, irrespective of this, to apply for a minimum bid (=reserve price). Exhibitor’s offer shall then be subject to reserve price being met within the context of the bidding process.
2. Irrespective of any reserve bid being determined, the organizer will not at any time be obliged to extend the duration of the auction or cancel the auction. This applies if the highest bid achieved at the end of an auction does not reach the value of the foal being put up for auction. The organizer shall not be held liable for any losss caused by a highest bid that does not meet the objective value of the goods being put up for auction.
1. The organizer will not be part of the contract of salebetween seller and bidder , concluded by submitting the highest bid,.
2. The organizer accepts no liability for the accuracy of the data submitted and declarations made by the participant, especially with respect to their personality or financial solvency/willingness to pay. No identity or credit checks are carried out. The organizer neither accepts any responsibility for the foal put up for auction, for possible defects or missing characteristics.
1. A bid expires with the submission of a higher bid. The participant shall be bound by his bid until that time.
2. The contract of purchase between exhibitor and highest bidder shall be concluded after expiration of the auction period (also referred to as “acceptance”). The organizer accepts no responsibility for any delays caused by technical issues, including overloading of the transmission channel.
3. If the highest bid should be deemed invalid at the end of the auction, the next highest bidder shall not be awarded the contract. In this case the organizer shall be entitled to resume the “Auction” and determine a new end time. In this case, the starting price will be determined by the previous highest valid bid.
4., It is permitted to submit maximum/highest bidsin the first bidding phase . The price increases by increments of €250, and from a price of €10,000 by increments of €500 (referred to hereinafter as “increment”). Submitted bids will be prioritised strictly according to the time of their submission. Where two or more identical highest bids have been submitted at the end of an auction, the bidder who submitted the highest bid first will win the auction. All timing data shall be determined by the system time of the server.
5. If a bid is submitted that includes a total or partial increase over the current bid, the current bid will change with respect to the newly-submitted bid and any previously submitted competing bids. In other words, if the current bid is €5,000 and a maximum bid of €7,500 is submitted, the current bid increases to €5,250 (i.e. an increment higher than €5,000). If there is already a maximum bid of €6,000, the current bid increases to €6,250 (i.e. an increment above €6,000).
6. If a maximum bid is submitted, the participant shall receive an email to confirm his bid, and he shall be informed about the currently highest bid. As soon as the highest bid is exceeded, the participant will receive another email, informing him that he has been outbid.
7. A countdown timer will be displayed in the upper part of the screen during all the auction time, displaying the time remaining until conclusion of the auction for that particular lot (the horse currently being offered for sale). In the final five minutes prior to the final end of the auction of a lot, each bidding action shall extend the countdown by five minutes, so that after a bid the countdown to the definitive auction end is set once again at five minutes. If during this time there are no further bids, the auction ends. An extension of the end time for a previous lot shall not lead to an extension to the following lot.
1. The contract text will be stored by the organizer after the conclusion of the contract and shall be made available to the buyer in his customer account. The organizer shall only collect and process user data in order to carry out the auctions.
2. Bids shall be displayed anonymously during the individual auctions. Only the details of the highest bidder will be passed onto the exhibitor at the end of the auction.
3. The exhibitor reserves the right of resale on the final day of the Online Auction. In this case, Maas J. Hell GmbH shall act as agent for the buyer. The amount at which the foal was sold shall also apply for the resale. If sale and resale price differ, they shall be set off against each other.
C. Billing, payment, transfer of ownership
I. Final prices are net prices. The buyer shall be liable to pay the seller/exhibitor the submitted bid (=final price) as well as the applicable VAT. VAT is calculated on the basis of the final price and the amount will correspond to the assessment of the seller; 0% (private sale), 10.7% (flat-rate farmers) or 19% (businesses etc.). The corresponding VAT rate is shown on the auction page behind the name of the exhibitor of the respective foal. The value added tax will be shown as was specified by the exhibitor. Maas J. Hell GmbH accepts no liability for this information.
II. Maas J. Hell GmbH, D-Klein Offenseth charges the buyer a sales fee of 4% of the final price (net) plus 19% VAT for its services.
III. Maas J. Hell GmbH, D-Klein Offenseth has taken out a compulsory insurance with the insurance company R+V for the foal put up for auction and charges the buyer an amount of 1% of the gross price plus insurance tax.
IV. The settlement amount to be paid by the buyer is made up as follows:
final price (net) + VAT (depending on seller’s VAT rate 0%, 10.7% or 19%) = subtotal 1 (= sales price) + 4% sales fee, based on the final price (net) + VAT (19%) on this amount (as is laid down in §§ 12, 2 German VAT Act) = subtotal 2
subtotal 1 + 2 (sales price + sales fee gross) = gross price
+ 1% insurance on this amount + insurance tax (19%) = settlement amount
V. The exhibitor has irrevocably assigned the invoice amount to Maas J. Hell GmbH, D- Offenseth for collection.
VI. The invoice amount is due for payment immediately after the end of the auction. Payment must be made either by cheque or by bank transfer to the account of Maas J. Hell GmbH, D-Klein Offenseth at the indicated bank.
VII. The exhibitor retains title to the respective foal as is laid down in § 449 BGB (German Civil Code) until Maas J. Hell GmbH, D-Klein Offenseth has received the invoice amount in full. In case of payment by cheque or bank transfer, transfer of ownership shall become effective at the time of unconditional crediting of the settlement amount to the account of Maas J. Hell GmbH, D-Klein Offenseth at the indicated bank.
VIII. Provided the buyer does not pay the settlement amount within 5 working days (including Saturday) after the auction day, the seller shall be entitled to withdraw from the purchase contract and sell the foal elsewhere. The first buyer shall be held liable for any loss of proceeds and shall also be liable to pay damages to the organizer.
IX. The exhibitor irrevocably assigns the right to institute legal proceedings to Maas J. Hell GmbH, D-Klein Offenseth, to claim the sales price. The exhibitor alone bears the risk of a legal dispute.
D. Acceptance and transfer of risk
I. The buyer has to collect the foal at exhibitor's place of residence no later than six months after birth. The exhibitor shall bear all boarding and feeding costs including veterinary and farrier until the foal will be picked up. Exhibitor and buyer shall be entitled to bindingly agree on a later collection. The buyer has to accept charges of €5 per day in this case. Exhibitor and buyer have to agree on a collection date.
II. Prerequisite for collection is that seller asks a veterinarian specialized on horses to examine the foal and to confirm that the foal is free from defects. The buyer should attend the examination if possible; if he is unable to attend, a written certificate has to be forwarded to him immediately, informing him about the result of the examination.
III. The risk shall pass on to the buyer upon confirmation of transportability of the foal.
IV. Provided the buyer does not collect the transportable foal at the seller, he has to pay daily boarding and feeding costs of €5 to the seller. The buyer has to be informed in advance about these costs.
V. Provided several persons on buyer’s side have purchased the foal at the auction, they shall jointly and severally be liable to the seller/exhibitor for any claims arising from the auction purchase (purchase price, collection etc.). Apart from that, the buyers are entitled to their own claims from the auction transaction as joint creditors, so that the seller/exhibitor shall be entitled to hand over the foal to each of the buyers.
Maas J. Hell GmbH, D-Klein Offenseth has taken out an obligatory insurance with the insurance company R+V for all foals put up for auction. These are the insurance conditions:
1. Insurance cover for the respective foal starts with the end of the Online Auction.
2. Insurance cover ends after eight weeks (earliest, however, if the foals will be six months old). The insurance amount corresponds to the settlement amount plus auction fee and taxes as insurance premium, max. €25,000 per foal.
3. During this period, insurance also covers the transport of the horse to the first buyer’s stable.
4. Indemnity to be paid is 80% of the insured sum (up to max. €25,000) less any proceeds from realisation or transfer price. Claims have to be immediately reported to Maas J. Hell GmbH, D-Klein Offenseth and the insurance company.
5. The detailed insurance conditions can be taken from the information of the insurance company R+V, released on the online platform.
F. Revocation instructions
1. Right of revocation
The buyer, provided he is a consumer, shall be entitled to withdraw from the contract as is laid down in § 355 BGB (German Civil Code) if the seller is an entrepreneur as is laid down in § 312 g BGB (German Civil Code). In this case, the buyer has the right to revoke the contract within fourteen days without giving reasons.
Revocation period begins on the day on which the buyer or any third person named by him and other than the carrier has taken over the foal.
The buyer has to forward a clear declaration to either
the seller or
Maas J. Hell GmbH, Horster Landstraße 42, D-25365 Klein Offenseth, telefax: ++49 (0)4126/38274, email: [email protected],
informing the organizer or the seller about his decision to withdraw from the contract. The attached sample revocation form may be used for this purpose, but is not mandatory.
Maas J. Hell GmbH acts as the seller's receiving agent.
In order to comply with the revocation period, it is sufficient for the buyer to send this declaration before expiry of the revocation period.
2. Revocation consequences
Provided the buyer withdraws from this contract, organizer and seller have to refund all payments received from the buyer, including delivery charges (other than additional charges resulting from the fact that the buyer chose a method of delivery other than the cheapest standard delivery offered by us) immediately and no later than fourteen days after the date on which seller and organizer have received the notice of cancellation of the contract. Repayment shall be effected by the same means of payment used by the buyer in the original transaction, unless expressly agreed otherwise between buyer and seller; in no event shall the buyer be charged for such repayment. Organizer and seller shall be entitled to refuse repayment until the foal was returned or until the buyer has provided proof that he has returned the foal, whichever is earlier. The buyer shall bear all direct costs for the return of the foal.
1 Sample revocation declaration, annex 2 to article 246a § 1 II 1 no. 1 and § 2 II no. 2 Introductory Act BGB (German Civil Code)
(If you want to cancel this contract, please complete this form and return it to us.)
Addressee [contractor has to insert name, address and, where appropriate, fax number and email address of the contractor]:
I/We (*) herewith revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the following service (+)
order placed on (*)/received on (*) - name of the consumer(s) – address(es) of the consumer(s) – signature of the consumer(s) (only for paper communication) – date
(*) delate as applicable.
G. Quality agreement
Buyer and exhibitor agree on the following characteristics as contractual qualities of the foal:
1. The information published on the auction page regarding ancestry and age as well as sex and colour.
2. The physical condition as is defined in the report of the specialist vet examination. This protocol represents the physical condition at the time of the auction. All other written or oral statements by the veterinarian or by agents of the organizer are not part of the quality agreement.
The veterinary report is available for inspection on the auction page.
H. Debt assumption, liability, statute of limitations
I. Buyer shall address all warranty claims to Maas J. Hell GmbH, Horster Landstraße 42, D-25365 Klein Offenseth. The seller agrees on a debt assumption as is laid down in § 415 BGB (German Civil Code) with Maas J. Hell GmbH, D-Klein Offenseth which discharges the debt in respect of the buyer's warranty claims. The buyer agrees with his bid with this assumption of debt.
Maas J. Hell GmbH has to inform the exhibitor immediately of any notification of defects.
II. Claims due to defects or other claims for damages become time-barred as of transfer of risk - if the seller is an entrepreneur (as is laid down in § 14 BGB – German Civil Code) and the buyer is a consumer (as is laid down in § 13 BGB – German Civil Code) after two years and - in all other cases - after one year.
III. The above limitations of liability shall not apply to claims for damages arising from injury to life, body or health which are based on at least a negligent breach of duty by the seller or Maas J. Hell GmbH, D-Klein Offenseth, or an intentional or negligent breach of duty by a legal representative or vicarious agent of the seller.
Other damages based on at least a grossly negligent breach of duty by the seller or Maas J. Hell GmbH, D-Klein Offenseth, or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the seller or Maas J. Hell GmbH, D-Klein Offenseth, are also excluded from all limitations of liability.
H. Applicable law, place of jurisdiction and severability clause
I. German law applies with exclusion of UN Sales Law.
II. The place of jurisdiction for all disputes arising from the contractual relationship between the purchaser and the organizer, Maas J. Hell GmbH, is the registered office of the organizer, provided that the purchaser is a merchant, a legal entity under public law or a special fund under public law or the purchaser does not have a general place of jurisdiction in Germany.
III. Should individual provisions or parts thereof be or become invalid, this shall not affect the validity of the remaining provisions.