General Terms and Conditions of Auction
KRUDO INDUSTRIAL
KRUDO Industrial BV is a limited liability company incorporated under the laws of The Netherlands, registered with the Chamber of Commerce in Amsterdam under registration number 66099811 and whose registered office is at Joop Geesinkweg 501, 1114 AB Amsterdam, The Netherlands (hereinafter referred to as “KRUDO”).
KRUDO operates the online platform www.krudoind.com (hereinafter referred to as the “Online Platform”) and intends to sell third parties´ used machinery and equipment by way of online auction (hereinafter referred to as “Online Auction”, third parties, owning the auctioned equipment hereinafter referred to as the “Sellers”) as well as by way of private treaty sale (hereinafter referred to as “Private Treaty Sale”). The sale of equipment shall be made on such third parties´ account, only.
The following General Terms and Conditions govern the legal relationships between KRUDO on the one hand and those persons, on the other, who participate by way of Online Auction, in order to bid over the Online Platform, or who wish to acquire equipment by way of a Private Treaty Sale (hereinafter also called “Bidder”, “Participant” or, if applicable, “Buyer”).
1. General Conditions
These General Terms and Conditions shall apply to the sales made via the Online Platform or a sale related to an online sale event. They shall govern the legal relationship between KRUDO as auctioneer on behalf of the Sellers and the Bidders/Participants/Buyers. KRUDO may amend these Terms and Conditions at any time with future effect. Such amendments become effective with receipt of a corresponding declaration by the respective Participant.
2. Participation in Online Auction, Registration
a) A participation in sales via Online Platform requires the Participant to register with the Online Platform. An admission will not be granted, if Participant is an individual and the conclusion of the purchase contract does not serve that individual’s commercial activity or his work as an independent contractor. An admission to the Online Platform takes place through the issuance of usernames and passwords. Registration is free of charge.
b) KRUDO assumes no liability for the availability at any time of the Online Platform and is not liable for any imponderables in connection with the internet as a medium. KRUDO shall in particular not be liable if, due to technical problems beyond its control, bids cannot be processed or stored. KRUDO is entitled to block its website without prior notice in the event of technical problems or for reason of maintenance work.
c) A right to demand admission to the Online Platform does not exist. The data transmitted during registration must be correct and complete. Admission will be granted to entities and persons with unrestricted legal capacity. Minors will not be admitted. KRUDO reserves the right to revoke admission in the event of incorrect or incomplete information.
d) Participants identify themselves by using their usernames and passwords provided by the Online Platform. They shall take adequate measures to ensure the confidentiality of their usernames and passwords, in order to prevent unauthorized persons to use such information to get access to the Online Platform without the Participants´ consent. Participants shall not disclose their usernames and passwords to third persons and shall be liable for bids made using its user name and password.
e) Participants authorise KRUDO to record, store and use their personal data transmitted with registration and to publish the username within the sales process and after its completion on the Online Platform. KRUDO will store and use Participants´ data in order to carry out legal transactions entered into via the Online Platform and for the purpose of operating the Online Platform.
3. Online Auction
a) Dates and deadlines for Online Auctions are stated in the auction pages of the Online Platform. KRUDO reserves the right to extend the term of an Online Auction, to end an Online Auction ahead of schedule or to recall particular equipment from the Online Auction and/or to sell it to third parties by way of Private Treaty Sale at its free discretion.
b) Bids have to be free of conditions. They are binding and may not be withdrawn. Bids do not include value added tax (VAT) and Buyers´ Premium. VAT and Buyers´ Premium will be added to Bidder´s Bid. KRUDO is entitled to reject bids at its own discretion and without statement of reason. This applies for example to bids which in KRUDO´s opinion offer a price which is too low.
c) KRUDO is entitled to participate in an Online Auction itself by bidding in its own name. KRUDO may refuse bids at its own free discretion and is entitled to consolidate lots, to separate them, to auction them out of sequence or to withdraw them.
e) KRUDO may determine a starting price as minimum bid. Should several Bidders issue bids in the same amount, the first of such bids received by KRUDO shall be accepted.
4. Purchase agreement
a) By way of Online Auction/Private Treaty Sale, Seller and Buyer enter into a purchase agreement. KRUDO is not party to any such purchase agreement, but rather moderates purchase agreements to be entered into between Sellers and Participants/Buyers. KRUDO provides and is responsible for the proper functioning of the Online Platform. As a consideration for these services, KRUDO is entitled to claim a commission of 16 % of the net purchase price from the Participant who was awarded the bid or who bought an item by way of Private Treaty Sale (hereinafter referred to as the “Buyers´ Premium”). KRUDO´s claim for Buyers´ Premium is independent from payment of the purchase price, legal assessment of the purchase price claim and continuation and performance of the purchase agreement.
b) With regard to an Online Auction, a purchase agreement comes into existence with the acceptance of a bid. The acceptance of a bid is determined by the Online Platform. The Online Platform will accept the highest bid that has been placed within the bidding period of the respective lot. During the Online Auction, the highest bidder receives an automated e-mail stating that he currently is the highest bidder. Each time such highest bidder becomes outbid (when another Participant places a higher bid), such bidder receives an automated e-mail stating that he has been outbid. The Participant who has placed the highest bid during an Online Auction, receives an automated e-mail stating that he won the lot and that his bid has been accepted. Should a new highest bid be placed within the last five minutes of the respective bidding period, the respective bidding period concerning this lot will be extended by five minutes. The same applies to extended bidding periods. The end of a bidding period shall be solely determined by the Online Platform.
c) With regard to Private Treaty Sales, a purchase agreement comes into existence by way of offer and acceptance.
d) As purchase contracts are exclusively entered into by Buyers and Sellers, KRUDO does not assume warranty for any equipment auctioned in an Online Auction ore bought by way of Private Treaty Sale (stipulations in section 9 below remaining unaffected). The items to be auctioned or sold by way of Private Treaty Sale are used and some of them show significant signs of wear. There is an opportunity to have items professionally inspected prior to the Online Auction/Private Treaty Sale. Details regarding such possible inspection will be published in the auction paper and on the Online Platform. The items will sold be in “as is – where is” condition, as they were or could have been inspected – including with the aid of professionals. Any warranty for the quality of the equipment – for sale by way of Online Auction as well as by way of Private Treaty Sale – is excluded. The preceding warranty exclusion shall not apply if a defect was maliciously concealed by KRUDO or KRUDO expressly assumed a guarantee in writing for the quality or properties of the object of purchase. The preceding warranty exclusion shall also not apply if the Buyer is an individual and the conclusion of the purchase contract does not serve that individual’s commercial activity or his work as an independent contractor.
e) 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 within the sense of Section 444 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), or an agreement on quality within the sense of Section 434 Subsection 1 Cipher 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The information given is based on Seller´s statements. KRUDO´s liability is restricted to the correct communication of the information, not for its correctness itself.
5. Duties of Sellers and Buyers
a) It is each Participant´s responsibility to inspect the equipment properly before bidding on such equipment in the Online Auction respectively before buying such equipment by way of Private Treaty Sale.
b) In the case a purchase Agreement is concluded between a Seller and a Buyer, then the Buyer is obliged to pay the purchase price, Buyers´ Premium and the statutory VAT (as far as applicable). Moreover, Buyer is obliged to acquire the auctioned/bought item and to dismantle and remove the auctioned/bought equipment on its own expenses and within the removal deadline stated by KRUDO in the respective auction catalogue. The Seller will assign the auctioned/bought item as soon as the purchase price has been paid completely.
c) Seller shall invoice the auctioned/bought item including Buyers´ Premium and VAT (as far as applicable). Payment shall be made to Seller by way of electronic transfer.
d) Should Buyer be in default with its payment obligation, such payment obligations shall be subject to the interest rates stipulated in the German Civil Code (Bürgerliches Gesetzbuch, BGB).
6. Transfer of ownership
a) The risk of accidental destruction, loss or damage to the auctioned/bought equipment is transferred to the Buyer upon acceptance of his bid/acceptance of his offer.
b) Ownership of auctioned/bought equipment does not transfer to the Buyer until the purchase price, Buyers´ Premium and statutory VAT have been paid in full, and KRUDO has issued a written release statement to the Buyer.
7. Dismantling and Collection of auctioned/bought items
a) Buyer will dismantle, collect and transport auctioned/bought items on its own risk and its own expenses. Buyer is liable for any damage incurred to Seller´s property during the dismantling and transportation of the auctioned/bought items and will release KRUDO and/or Seller upon first demand from any third-party claim in this context. Dismantling, collection and transport may not be initiated until the purchase price, Buyers´ Premium and statutory VAT have been paid in full.
b) Buyer will observe the dates determined by KRUDO to collect the auctioned/bought items. KRUDO may determine that a certain item may only be collected after removal of another item. A Buyer whose item prevents the collection of other items is obliged to immediately ensure, after a written request by KRUDO (email serves for this purpose) that these items are dismantled/collected/removed by Buyer. Should Buyer not follow such written request in due time, KRUDO is entitled to permit the pickup and possible storage by third parties at Buyer´s expense and risk.
c) In case, openings need to be made in a building or part of a building during the dismantling process, the Buyer is required to have such openings repaired in a professional manner at its own expense. KRUDO reserves the right to levy deposits on auctioned/bought items whose dismantling or collection/removal/transportation may cause damage to the buildings and/or to other property of third parties. Information regarding the equipment covered by this provision and the deposit amounts will be published on the Online Platform, or in further communication of KRUDO.
d) The Buyer is obliged to follow the instructions of the Seller, of KRUDO and or KRUDO´s representatives during dismantling/collection/removal of the auctioned/bought equipment.
e) The Buyer shall ensure that the approvals required for the dismantling/collection/removal/transport are on hand in due time and will be provided to KRUDO upon request immediately/in any case prior to start of dismantling works.
8. No offsets
An offset by the Participant shall be permitted only, where Participant´s claim is either undisputed or has been finally and bindingly established by court.
9. Liability
a) Unless, KRUDO is liable pursuant to the following provisions, Buyer will indemnify KRUDO upon first demand for all claims asserted by Sellers or by third parties against KRUDO arising from, or in connection with, the conclusion or performance of contracts.
b) Notwithstanding the Stipulations in lit. c) below, KRUDO´s liability is restricted to willful intent and gross negligence, or willful 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.
c) KRUDO 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, and which the contract must guarantee in view of its content and purpose (cardinal duties, Kardinalpflichten). Contractual obligations, whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place, and upon which the Participant regularly relies and may rely, are deemed to be essential contractual obligations as well.
d) Liability for breach of essential contractual obligations is limited to damages which are typical in business transactions of this nature, and which KRUDO 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.
e) Towards consumers (Section 13 of the German Civil Code, Bürgerliches Gesetzbuch, BGB) KRUDO is liable without limitation in cases of willful intent and gross negligence, as well as for willful intent and gross negligence of its legal representatives, executive employees and vicarious agents, for injury to life, limb and health, and for damages due to injury of essential contractual obligations.
10. Miscellaneous
a) The Online Auction and any purchase agreement entered into via the Online Platform shall be subject exclusively to the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. This shall apply to any Private Treaty Sale, as well.
b) Place of fulfilment for the delivery of the purchased item is the respective location of the auctioned/bought items; for payments it is the respective Seller´s registered office. If Buyer is a registered merchant within the meaning of sections 1 and following of the German Commercial Code (Handelsgesetzbuch, HGB), a legal entity under public law or a public-law special purpose vehicle, the exclusive jurisdiction of the courts of Hamburg, Germany, is deemed to be agreed upon.
c) Should individual provisions of these Terms and Conditions be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions of these Terms and Conditions shall remain unaffected thereby. In place of the invalid or unenforceable provision, the Parties shall agree on a valid and enforceable provision that comes as close as possible to the invalid or unenforceable provision from an economical perspective.
d) These Terms and Conditions shall be published in English and other languages as deemed necessary on case-to-case basis by KRUDO. In case of differences in content, the English version is decisive.
