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Terms and Conditions |
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For
questions regarding our terms and conditions,
please contact our customer support:
Surplex Customer Support
Tel.: +49 (0)211 42 27 37 - 0
Fax: +49 (0)211 42 27 37 - 17
e-mail: info@surplex.com
Click here to download the general terms as PDF-Document ...
General Terms
Brokerage Agreements:
General Conditions for Brokerage Agreements
(Online and Offline)
Online Brokerage
Commission Agreements
Sales Commission Agreement
Purchase Commission Agreement
Sales Contracts
Surplex as Seller
Surplex as Buyer
A. General Terms
1. Surplex:
Surplex. Surplex ("Surplex") offers an
Internet marketplace ("online") consisting
primarily of a database, a website and
various data processing systems (hereinafter
referred to as the "Surplex Platform")
through which used machinery, equipment and
other surplus assets and remaining stock (hereinafter
referred to as "Objects") can be marketed.
Furthermore, Surplex offers its customers
support in marketing Objects by traditional
auction and other brokerage and procurement
services outside the Surplex Platform
("offline").
2. Scope:
These Surplex-Conditions shall apply for the
supply of all products and services of any
kind provided by Surplex to its customers ("Customers")
online (summarily referred to as "Online
Services") and offline (summarily referred
to as "Offline Services"; Online Services
and Offline Services summarily also referred
to as "Surplex Services"). If Surplex and
the Customer have entered into one or
several contracts (hereafter referred to as
"Contract"), these Surplex-Conditions shall
be an integral part of such Contract and
apply except if and to the extent that the
Contract provides otherwise. With respect to
offline auctions and certain
services (counseling services, evaluations,
inspections, delivery services), separate
conditions further apply which may refer to
these Surplex-Conditions.
3. These Surplex-Conditions shall
only apply for businesses within the meaning
of § 14 of the German Civil Code and for
legal entities and special funds established
under administrative law (hereinafter
referred to as "Customers"). Other customers
shall require Surplex' explicit consent in
order to claim the services offered by
Surplex.
4. Dual Brokerage:
Surplex will usually render Surplex-Services
simultaneously for both contractual partners
of a transaction. The Surplex-Services are
usually to be remunerated by both
contractual partners of a transaction.
5. Surplex-Compensation, Surplex
Pricelist, Reimbursement of Expenses:
Surplex shall be entitled to compensation ("Surplex-Compensation")
for the Surplex-Services in accordance with
the Contract. For certain Online Services
the
pricelist published on the Surplex
Platform at the time the Contract is made ("Surplex
Pricelist") shall apply. Surplex shall
retain the right to change the
Surplex
Pricelist at any time. Existing Contracts
(in as far as these are binding) shall
remain unaffected. The relevant
Surplex
Pricelist shall be an integral part of these
Surplex-Conditions. Surplex shall have a
right to reimbursement of its expenses if
the Customer terminates a Contract
prematurely or withdraws Objects from a
Contract. Clause 9 and further claims of
Surplex to reimbursement of expenses shall
remain unaffected.
6. Terms of Payments:
All invoices shall be paid by the Customer
immediately upon receipt without any
deduction. In the event that the Customer
fails to make the payment within thirty days
from the date of receipt of the invoice, it
shall be deemed to be in default whether or
not Surplex has reminded the Customer of its
payment obligation.
7. Value Added Tax shall not be
deemed included in the prices quoted by
Surplex. If applicable, it will be shown
separately in the invoice at the rate
prevailing on the date of the invoice.
8. The Customer shall not be entitled
to set off any of its claims against claims
of Surplex, or to avail itself of a right of
retention under civil or commercial law,
except where the Customer's claims are
undisputed or have been confirmed by a
non-appealable court judgement.
9. Term, Termination:
Both parties shall be entitled to terminate
the Contract observing a notice period of
six months, unless a minimum term or longer
notice period has been agreed in the
individual case. Declarations of intent made
as well as existing claims to
Surplex-Compensation shall remain unaffected.
A notice of termination shall only be valid
if it is in writing.
10. Confidentiality:
The Customer shall keep strictly
confidential all business and technical
information it receives from Surplex, in
particular other customer's personal data
and all information regarding Objects
insofar and as long as these are not
generally known (without the Customer having
been responsible for their becoming known),
also beyond the term of the Contract, and
shall refrain from using such information,
copying it or making it accessible to third
parties for any purpose other than under the
Contract. This shall apply also with respect
to information received by the Customer
during on-site visits, as well as all
technical documentation, cost estimates,
drawings and calculations given to the
Customer within the bounds of negotiations
and the fulfillment of the Contract. All
property, ownership, copyright and other
rights to such documentation are reserved.
In the event that the Customer uses such
documentation without authorization, Surplex
shall (in its own name or, as the case may
be, in the name of the owner) be entitled to
demand that the documentation concerned be
delivered to it immediately.
11. Customer’s Warranties,
Indemnification:
The Customer represents, warrants and
guarantees that it will fully comply with
all laws and regulations which may apply to
its business, in particular with the terms
of all regulatory, competition and data
protection laws, and that the offers for
sales and purchases submitted by it will not
violate any laws or third party rights, in
particular title, pledge or other property
rights or patents, trademarks, copyrights or
other intellectual property rights. In
particular, the Customer shall refrain from
offering any Objects which violate the
criminal laws of Germany or other countries,
which are not permitted to be sold or which
require official approval, especially
weapons of any kind. The Customer shall hold
Surplex harmless from any third party claims
which may be based on a violation of this
Clause.
12. Liability:
Surplex shall be liable in damages only to
the extent that the damage was caused by
gross negligence or willful misconduct
imputable to Surplex. In the event of bodily
injury or damage to the health of a person,
Surplex shall be liable also for slight
negligence. In the event of a violation of a
fundamental duty under the Contract, Surplex
shall be liable also for slight negligence
but its liability shall be limited to such
damage as Surplex could have reasonably
foreseen at the time of signing of the
Contract.
13. No Party:
Declarations of intent and other legally
relevant statements or acts which Surplex
publishes at the Customer’s request or which
are delivered to another customer or are
received from another customer shall deemed
to be declarations, statements or acts of
the Customer (or other customer) concerned
itself, which are delivered by Surplex as
messenger. Surplex itself shall be neither
entitled nor obliged by such declarations,
statements or acts and shall also not be
representative in another’s name. Surplex
shall assume no responsibility for
deliveries or acceptance of Objects or other
articles or for payment of considerations.
14. No liability for misuse or
creditworthiness:
Surplex cannot ensure that the person which
may be named as Seller or Buyer in a
declaration of intent received or delivered
by Surplex actually exists. The Customer
submitting or accepting an offer therefore
acts at its own risk with regard to the
existence of the contract partner and with
regard to the creditworthiness of the
respective other party. In addition, Surplex
will not be able to prevent that a
Membership Number, a password or a URL is
obtained by a person not entitled to submit
declarations of intent. This risk shall also
be borne by the Customer. Any statutory
liability which Surplex might otherwise
incur as a messenger without messenger
authorization shall be excluded. Clause 12
shall remain unaffected.
15. No Hire:
The Customer shall refrain from actively
hiring away Surplex employees and/or other
customers.
16. No Other Conditions:
Surplex hereby objects to the Customer’s
general conditions except if and to the
extent that they have been explicitly
accepted in writing. Any such acceptance
shall apply only to the transaction at issue,
and in particular not to any past or future
Online or Offline Services.
17. Amendments of these
Surplex-Conditions:
Surplex shall be entitled to amend these
Surplex-Conditions with proactive effect
observing a notice period of one month.
18. Changes to Services:
Surplex shall be entitled to change the
Online or Offline Services offered by it at
any time. Claims due under existing
Contracts shall remain unaffected.
19. Reference:
Surplex shall be entitled to refer to the
cooperation with the Customer for marketing
purposes, as long as the individual
materials naming the Customer are first
presented to the Customer for review.
20. Subcontractors:
Surplex shall be entitled to employ
subcontractors for all Online or Offline
Services; Surplex’ liability vis-à-vis the
Customer pursuant to clause 12 shall remain
unaffected. If and to the extent that the
choice of the subcontractor is relevant for
the Customer under regulatory or data
protection law, its prior approval shall be
required, but may be denied for cause only.
21. Declarations:
All declarations and notifications pursuant
to these Surplex-Conditions shall be valid
only if they are in writing. This written
form requirement shall also be deemed
fulfilled if the declaration is given on the
Surplex platform using the masks offered or
by email.
22. Assignment:
The Customer shall only be entitled to
assign rights out of or in connection with
the Contract – except for payment claims -
with Surplex’ prior approval.
23. Severability:
Should any individual provision of the
Contract be or become wholly or partially
invalid, or should there prove to be an
omission, this shall not affect the validity
of the remaining provisions of the Contract.
In the place of the invalid provision, a
valid provision shall be deemed agreed which
corresponds to the purpose and meaning of
the invalid one. In the event of an omission,
a provision shall be deemed agreed which
corresponds, on the basis of the purpose and
meaning of the Contract, to what the parties
would have agreed, had the parties
considered the matter at the outset. This
shall also apply if the invalidity of the
provision results from a measure of
performance or time set as a standard in the
Contract; in such cases, a legally valid
measure of performance or time which comes
as close as possible to that originally
agreed shall be deemed agreed instead.
24. Governing Law:
The contractual relations between Surplex
and the Customer shall be governed
exclusively by the laws of the Federal
Republic of Germany to the exclusion of the
rules on conflicts of law and to the
exclusion of the United Nations Convention
on the International Sale of Goods .
25. Jurisdiction:
All disputes arising under or in connection
with the Contract or these
Surplex-Conditions shall be submitted
exclusively to the courts of Duesseldorf.
Surplex shall also be entitled, at its
discretion, to take legal action against the
Customer in the courts having jurisdiction
over the Customer.
B. The following conditions shall be
valid for Brokerage Agreements. In addition,
they shall be supplemented by the terms of
Part A:
B.1 General Conditions for Brokerage
Agreements (Online and Offline)
26. Surplex-Compensation, Successive
Transactions:
In consideration for procuring the sale of
an Object, Surplex shall have a claim to
Surplex-Compensation as agreed in the
Contract, in the case of Online Services
mentioned in the
Surplex Pricelist as per the
Surplex Pricelist. Surplex shall have a
corresponding claim to Surplex-Compensation
also for every further sale that the
Customer concludes with the contractual
partner whose contact data were given to the
Customer by Surplex (successive transactions).
Clause 10 shall remain unaffected. Surplex
shall have a right to reimbursement of its
expenses if the Customer terminates a
Contract prematurely or withdraws Objects
from a Contract. Clause 9 and further claims
of Surplex to reimbursement of expenses
shall remain unaffected.
27. Exclusivity:
The Customer shall sell or buy the Objects
which are subject to the Brokerage Agreement
with Surplex exclusively through Surplex and
refrain from commissioning third parties
with the brokerage of such Object; it shall
prohibit any such action of third parties
except when using the " Treaty Sale "
business model described below. Should an
interested party contact the Customer
directly with the intention of negotiating
the purchase or sale of an Object, the
Customer shall inform such party that it (as
Seller) has commissioned the sale through
Surplex or that it (as Buyer) became aware
of the Object through Surplex. The Customer
shall inform Surplex of any such contact.
28. No liability, descriptions,
inspection:
The Objects are, in most cases, used or not
newly produced. Descriptions in a catalogue
or on the Surplex Platform, in particular
details regarding source, condition, age and
authenticity of an individual Object, shall
be provided according to best knowledge.
However, no liability for their correctness
shall be assumed. The descriptions shall in
particular not be deemed to constitute
specifications or guaranteed characteristics.
Pictures may deviate from the original.
Additional information not contained in the
catalogue or the Surplex Platform may be
available at the location of the Object.
Every Customer shall be required to inspect
the Objects, to the extent possible.
Appointments for inspections shall be
arranged with Surplex. Surplex shall be
entitled to exclude an Object at any time,
if in Surplex' discretion the Seller's
declarations appear incorrect, in particular
if they do not correspond to the actual
condition of the Object; Surplex shall,
however, not be obliged to examine the
Object.
29. Transfer of risk:
Upon the conclusion of a contract of sale,
all risks, in particular with regard to the
accidental destruction and the accidental
deterioration of the Object, shall pass to
the Buyer. The Buyer shall, from this moment,
also bear all public charges of the Object.
30. Payment of Surplex-Compensation:
The Surplex-Compensation shall be paid to
Surplex immediately after the conclusion of
a contract of sale. The Surplex-Compensation
shall be also paid if a contract of sale is
concluded with a third party to whom the
Customer has passed on the information.
Clause 10 shall remain unaffected. The
Surplex-Compensation shall be subject to
interest at the rate of 8 % above the
relevant base rate (Basiszinssatz) from the
time of default (§ 288 (2) of the German
Civil Code).
31. Guarantee:
A business within the meaning of § 14 of the
German Civil Code bidding for or purchasing
an Object on behalf and on account of a
principal shall be liable as absolute
guarantor for the obligations of its
principal.
32. Payment of purchase price:
The purchase price shall be paid immediately
after the conclusion of contract of sale.
Should a Buyer be in default of the purchase
price, the amount due shall be subject to
interest at the rate of 8 % above the
relevant base rate (Basiszinssatz) from the
time of default (§ 288 (2) of the German
Civil Code). Furthermore, the Seller shall
be entitled to set the Buyer a reasonable
grace period for performance. Should this
grace period expire without payment having
been made, the Seller may withdraw from the
contract of sale and/or demand damages in
lieu of payment. The Seller may then market
the Object anew. The Buyer shall not be
entitled to bid in the second marketing. If
the Seller demands damages, the Buyer shall
be liable for the cost of a renewed sales
effort of the Object as well as any
resulting loss. The Buyer shall not be
entitled to share in any resulting profit.
Surplex' claims to Surplex-Commission
against the Buyer and/or against the Seller
shall remain unaffected by any withdrawal
and/or demand of damages by the Seller.
33. Delivery/Pick up of Objects, Costs,
Risk, Transfer of Title:
33.1 Unless pick up times have been
set, the Buyer shall pick up the purchased
objects immediately after the conclusion of
the contract of sale, at the latest by the
end of one week after the conclusion of the
contract of sale, at the location of the
Object. Objects shall be delivered upon
complete payment only. The Buyer shall bear
any export customs and taxes. Shipping shall
be at the expense and the risk of the Buyer.
In particular, the Buyer shall bear all
transport, insurance, packaging and
dispatching costs. Title to the purchased
objects shall not pass to the Buyer until
receipt of full payment.
33.2 If the pick up deadline is not
respected, the Buyer shall be liable for any
costs incurred, in particular for storing
and preserving the Object. Any storage and
shipping shall be performed at the Buyer's
expense and risk. If the pick up deadline is
not respected, the Seller may set the Buyer
a reasonable grace period for picking up the
Object. Should this grace period expire
without the Object having been picked up,
the Seller may, at its choice, either store,
market or scrap the Object, in each case at
the Buyer's expense.
34. No Seller's liability for material
defects of used or not newly produced
Objects:
The Objects are, in most cases, used or not
newly produced. The Seller shall not be
liable for any material defect of such
Objects, unless individually agreed
otherwise or required by mandatory law.
35. Seller's liability vis-à-vis the
Buyer.
35.1 For Objects used or not newly
produced: The Seller shall be deemed to
have guaranteed to the Buyer that the Seller
is entitled to sell the Object and that the
Object is not subject to any third party
rights (Rechtsmängel). The Seller shall not
be deemed to have assumed any other
liability vis-à-vis the Buyer, except as
otherwise agreed individually or provided by
mandatory law.
35.2 For newly produced Objects: The
Customers statutory remedies ("warranty
claims") for defects of an Object, including
material defects and/or any violation of
rights of third parties (collectively "Defects")
shall be limited as set forth herein after.
Whether or not the contract is a commercial
transaction, the Customer shall be
responsible to inspect the Objects and to
notify the Seller of any Defects thereof
without delay, as provided under commercial
law, failing which the Defect concerned
shall be deemed accepted. The warranty
claims for Defects shall be limited to
performance (Nacherfüllung). However, the
Buyer's right to request a reduction of the
purchase price or to withdraw from the
contract of sale in the case of failure of
performance shall remain unaffected. The
Seller shall retain its right to choose the
type of performance; such right shall pass
to the Buyer only if the Seller is in
default of performance. The Seller shall not
be deemed to have guaranteed certain
specifications or other properties of the
Objects except if it has expressly confirmed
such guarantee. A manufacturer's warranty
issued with any Object shall not be deemed a
guarantee of certain specifications or
properties unless expressly agreed otherwise.
35.3 Any warranty claim shall be
excluded if (a) the Object deviates from the
agreed specifications or the Defect in
question limits the suitability of the
Object for the agreed purpose to a
negligible degree only or (b) the Defect in
question is due (i) to use of the Object for
any purpose other than the contractual
purpose or in violation of the relevant
statutory requirements and/or any guidelines
issued by the manufacturer or (ii) to
modification of the Object without the prior
written approval of the Seller or to use of
the Object in conjunction with other product
not specifically approved by the Seller in
writing. Any warranty claims for violation
of third party rights shall be excluded
unless such third party rights are valid
within the European Union or Switzerland and
the Customer enables the Seller to conduct
the defense alone without any restriction
and grants the Seller the necessary powers.
If the Customer resells Objects, any right
to take recourse shall be excluded except if
and to the extent the Customer proves that
the Object delivered by the Seller for
retail and giving rise to such recourse
shall have been shipped to the Customers
clients in the order in which they shall
have been received by the Customer (FIFO).
B.2 Online Brokerage
The following additional conditions shall
apply to online brokerage:
36. Registration: Customers wanting
to take advantage of Surplex' Online
Brokerage Services must register in order to
do so. For registration, the Customer shall
completely fill out, date and, if
appropriate, sign the forms provided online
or offline with the following information:
(a) the Customer's name, postal address,
telephone number, email address, a password
having 5 to 16 digits, bank account and
credit card information and (b) other data
which Surplex may request in its discretion.
Official identification shall be provided
upon Surplex' request. The Customer
represents that the information provided by
it will be complete and correct. It shall
immediately notify Surplex of any changes in
the data provided. The Customer shall not
have a claim to registration. The provisions
of the first sentence no. 1, no. 2 (together
with the Civil Code Regulation on
Information Duties - BGB
Informationspflichten-Verordnung) and no. 3
and of the second sentence of § 312e (1) of
the German Civil Code (BGB) (in particular
the provisions on information about the
individual steps leading to a Contract,
about storage of and access to the text of a
Contract, about the recognition and
correction of input errors, about the
languages in which a Contract may be made
and about relevant codes of conduct and as
well as the provisions dealing with
immediate electronic confirmation of receipt
of an order and deemed receipt of an order
and/or confirmation of receipt shall not
apply (as per the second sentence of § 312e
(2) of the German Civil Code).
37. Agent: Should the Customer be
registered by an agent, Surplex shall be
entitled to demand proof of authorization.
The details of such proof of authorization
shall be determined by Surplex.
38. Upon registering the Customer
chooses a Username and Password. The
Username shall not contain an email- or
internet adresses, shall not violate third
party rights, especially no name- and brand
rights, and shall not violate morality. The
user shall keep his Password confidential.
Surplex shall not give the Password to any
third parties. Should the Customer become
aware, or have reason to believe, that third
parties have obtained knowledge of
confidential information stored on the
Surplex Platform or otherwise, such as its
access data or payment information, it shall
notify Surplex immediately.
39. Framework Contract: Surplex'
acceptance of the registration shall bring
about a Framework Contract between Surplex
and the Customer on the conclusion and
performance of Contracts regarding Online
Brokerage Services according to these
Surplex-Conditions.
40. Contract: For each order, the
Customer has to state the Object, the
product group, any minimum price. Surplex'
acceptance of the order shall bring about a
contract ("Contract") between Surplex and
the Customer regarding Online Brokerage
Services pursuant to the conditions of the
accepted order and these Surplex-Conditions,
unless otherwise agreed in individual cases.
The Customer shall not have a claim to
acceptance of an order.
41. Surplex-Compensation; no
Customer's claim to the placing of Objects:
For placing an Object on the Surplex
Platform and admitting potential buyers to
the Surplex Platform, Surplex shall be
entitled to Surplex-Compensation and
reimbursement of expenses as per these
Surplex-Conditions and the
Surplex
Pricelist. Surplex retains the right to
object to the placing of an Object on the
Surplex Platform. The Customer shall not
have a claim to the placing of Objects.
42. The Management of the Surplex
Platform shall be the sole responsibility of
Surplex. In particular:
42.1 The Customer shall observe the
instructions given online for describing the
Object and implementing the transaction
concerned.
42.2 The Customer’s right to use the
Surplex Platform shall be limited to the
Customer’s internal business purposes and
shall be determined solely by the Contract
including these Surplex-Conditions. All
other rights regarding the Surplex Platform
are reserved.
42.3 Surplex reserves its right to
deny the brokerage of a given Object, a
purchase request, an offer or an acceptance
without providing reasons or to allocate an
Object to another product group than that
requested by the Seller. Surplex shall be
entitled to change the user surface of the
Surplex Platform. The time on the Surplex
system clock shall control any deadlines
specifying date and time.
42.4 Only the price given by the
Customer in the currency specified by the
Customer shall be effective. The
calculations of the prices in other
currencies provided on the Surplex Platform
shall be for the Customers' non-binding
information only.
42.5 The Customer’s identification
data shall be hidden to other users in all
declarations made by the Customer. Surplex
shall only be entitled to disclose Customer
contact data to other customers where a
contract has been made and for on-site
inspection of Objects only. The Customer’s
identification data as well as the data
supplied to Surplex in connection with the
conclusion of a Contract shall be stored by
Surplex in machine-readable form. Such data
shall be used by Surplex solely for the
operation of the Surplex Platform and
performance of Surplex Services; Surplex
shall be entitled to store customer data
regarding a past transaction rather than
having to delete such data immediately; the
Customer shall be deemed to have consented
thereto by submitting its registration. The
Customer may revoke such consent at any
time.
43. Customer Obligations:
If not otherwise agreed, the Customer shall
be responsible for creating the environment
necessary for using the Surplex Platform and
providing Surplex with all the information
necessary for carrying out a transaction.
The Customer shall furthermore immediately
inform Surplex of any visible or threatening
disturbances to the Surplex services and
support Surplex in determining their cause
as well as in their removal.
44. Sales Models:
The Customer may choose between the
following business models (Online auctions
and Treaty Sale). An online auction can only
be listed after consulting Surplex.
45. Online Auction:
45.1 The Seller shall indicate online
a starting price and a minimum price
(optional) which it hopes to achieve for the
Object and specify a date and time for
expiry of the tender period (duration of the
online-auction). These declarations shall
constitute the Seller’s binding offer to
sell the Object. The Offer is directed at
the bidder who submits the highest bid
during the duration of the online-auction
and who possibly exceeds the stated minimum
price.
45.2 The Buyer shall make a binding
offer for the acceptance of the offer
online, by submitting a bid. The acceptance
must quote a purchase price which is higher
than the present bid by one or more of the
bid steps determined in the online mask. The
bid expires if another bidder submits a
higher bid during the duration of the
online-auction. The official Surplex Time is
applicable for the measuring of the duration
of the online-auction. With respect to such
acceptance Surplex shall be deemed to act as
messenger (Erklärungsbote) for the Buyer and
as receiver (Empfangsbote) for the Seller.
The Seller shall refrain from making offers
for its own Objects or causing offers to be
made by agents or representatives.
45.3 A Contract of Sale regarding the
Object shall be deemed made between the
Seller and that Buyer who submitted the
highest bid at the end of the duration of
the online-auction and has at least reached a
possible minimum price. Surplex shall notify
the Seller of the Buyer’s contact data.
Surplex shall also inform the Buyer and
provide it with the Seller’s contact data.
46. Fixed Price Sale: - cancelled -
47. Treaty Sale:
47.1 The Seller shall indicate its
starting price. The Seller’s indication
shall be deemed an invitation for offers.
Upon listing the Object the Seller states
the duration of the listing of the Object on
the Surplex-Platform. The Seller shall have
the possibility to rescind its invitation at
any time without liability.
47.2 The offer (bid) declared online
by the Buyer shall be binding. With the bid,
the Buyer shall indicate a date and time
until which it intends to be bound to its
offer. Especially if the bid is below the
starting price. Is the Buyers bid below the
starting price, the Buyer will be notified
about the starting price. If price
expectations between Buyer and Seller differ,
a Surplex-Employee may try to negotiate a
sales contract via contacting Buyer and
Seller. In that case Surplex shall be
entitled to demand an additional commission
(buyer's commission) from the buyer. With
respect to such offer Surplex shall be
deemed to act as messenger for the Buyer and
receiver for the Seller.
47.3 The Contract of Sale shall be
deemed made if the Seller accepts the offer
of a Buyer online within the acceptance
period. With respect to such acceptance
Surplex shall be deemed to act as messenger
for the Seller and receiver for the Buyer.
The Seller shall decide at its own
discretion which offer it shall accept; the
offer chosen must not necessarily be the
highest. If the Seller has declared its
acceptance, Surplex shall provide the
Buyer’s contact data. Surplex shall inform
such Buyer of the delivery of its contact
data. Surplex shall notify the Buyer of the
Seller's contact data. Upon the Seller’s
acceptance, the commitment of other users
having made offers shall lapse. Surplex
shall inform such other users of the lapse
of their commitment.
48. Want Ads: - cancelled -
C. The following special conditions
shall apply to Commission Agreements. In
addition, the terms of Parts B and A shall
apply as supplementary provisions:
C.1 Sales Commission Agreement
49. Sales Commission Agreement:
Upon acceptance of the order of a Customer
wanting to commission Surplex to sell (also
by way of an auction) an Object in its own
name but on the Customer’s account, a sales
commission agreement shall be deemed made
between the Customer as the Principal and
Surplex as Commission Agent subject to the
following conditions.
50. Property, Insurance, Confidentiality:
Until its sale, the Object shall remain the
property of the Customer. The Customer shall
insure the Object against fire, other damage
and theft. If specifically agreed, Surplex
shall keep the Customer’s identity
confidential vis-à-vis interested Buyers.
51. Inspection.
The Customer shall permit the inspection of
the Object by Surplex and by interested
Buyers named by Surplex. Interested Buyers
shall agree with the Customer on the time
and the modalities of the inspection and, if
applicable, on the disassembly of the Object
and observe any security regulations which
may prevail on the Customer’s premises. This
shall apply also to inspections by Surplex
employees.
52. Additional Offers:
The Customer shall refrain from offering the
Object for sale elsewhere for the duration
of the Contract..
53. Right to Purchase:
Surplex shall be entitled to purchase the
Object itself (see § 400 of the German
Commercial Code), even if the Object has no
stock exchange or market value, provided
Surplex proves the justification of the
purchase price paid by it, unless the Seller
waives such proof.
54. Delivery:
Surplex will agree with the Buyer that the
Buyer shall pick up and disassemble the
Object at its own expense and risk.
55. Defects:
Surplex will not grant the Buyer any rights
regarding possible Defects which go beyond
the Buyer’s statutory rights, unless the
Customer has specifically agreed so. The
Customer shall hold Surplex harmless upon
its first demand from all claims of the
Buyer which are based on alleged Defects.
56. Purchase Price:
Surplex shall be entitled to agree to
payment terms of up to three months. Surplex
shall not be permitted to agree on a
purchase price below the minimum price, if
any, without the Customer’s approval.
Surplex shall assume no liability for the
creditworthiness of the Buyer (no delcredere).
57. Collection, Set-off:
Surplex shall be entitled to collect the
claim to the purchase price and set it off
against its commission claim.
58. Commission:
Surplex shall receive a commission at the
percentage rate set out in the Contract. The
basis for calculation of the commission
shall be the net purchase price, i.e. the
purchase price excluding disassembly,
transport, insurance and other costs and
value added tax. The commission shall be
subject to the statutory value added tax.
Surplex' claims to reimbursement of expenses
shall be determined by the statutory rules
(sec. 670, 675 of the German Civil Code and
sec. 393 subsec. 2 of the German Commercial
Code).
59. Invoicing:
Surplex shall account to the Customer within
one month of receipt of the purchase price
and shall pay the purchase price less the
commission to the Customer.
C.2 Purchase Commission Agreement
60. Purchase Commission Agreement:
Upon acceptance of the order of a Customer (Principal)
wanting to commission Surplex (commission
agent) to purchase an Object in its own name,
but on the Customer’s account, a Purchase
Commission Agreement shall be deemed made
which is subject to the following conditions.
In addition, Parts B and A of these
Surplex-Conditions shall apply.
61. Performance:
61.1 Surplex shall attempt to locate
an Object for purchase corresponding to the
specifications contained in the Commission
Agreement and shall buy such Object in its
own name, but on the Customer’s account. If
a maximum price has been specifically agreed,
Surplex shall not be permitted to purchase
the Object for a higher price without the
Customer’s authorization.
61.2 Surplex shall inspect the Object
for purchase and shall, if requested,
arrange for the disassembly and transport of
the Object to the Customer at the Customer's
costs. The assembly of the Object on the
Customer's premises as well as the assertion
of claims based on Defects shall be the
Customer’s responsibility.
61.3 For the duration of the Contract,
the Customer shall refrain from making it
known elsewhere that it desires to buy the
Object concerned.
61.4 Surplex shall be entitled to
supply the Object for purchase from its own
inventory (see § 400 of the German
Commercial Code) even if it has no stock
exchange or market price, provided Surplex
proves the justification of the purchase
price for the Object delivered by it to the
Customer unless the Customer waives such
proof.
61.5 Surplex shall receive a
commission at the percentage rate set in the
Contract. The basis for calculation of the
commission is the net purchase price, i.e.
the purchase price not including disassembly,
transport, insurance and other costs and
without value added tax. The commission
shall be subject to the statutory value
added tax. Surplex' claims to reimbursement
of expenses shall be determined by the
statutory rules (sec. 670, 675 of the German
Civil Code and sec. 393 subsec. 2 of the
German Commercial Code).
D. The following special conditions shall
be valid for Purchase Agreements.
In addition, the terms of Parts C, B and A
shall apply as supplementary provisions.
D.1 Surplex as Seller
62. Purchase Agreement:
When Surplex accepts the order of a
Customer who wants to purchase an Object
from Surplex, a Purchase Agreement is
concluded between the Customer and Surplex
pursuant to these Surplex-Conditions.
Surplex shall reserve itself a period of two
weeks for acceptance of the order.
63. Cost Estimates shall be
non-binding and shall contain only requests
for orders by the Customer.
64. Delivery Terms:
All deliveries of Objects shall be made ex
works from the relevant location. The prices
quoted by Surplex shall be understood
accordingly.
65. Delivery dates shall only be
binding if they are confirmed in writing.
Their observance shall require the
fulfillment of all delivery terms by the
Customer. Fixed date transactions shall
require explicit confirmation.
66. Partial deliveries shall be
permitted.
67. Every delivery shall be made
subject to correct and timely self-supply of
Surplex by its suppliers. If the Customer
knows or if it is apparent to the Customer
from the circumstances that Surplex, in
order to deliver the Object to the Customer,
has to purchase such Object itself, Surplex
shall have a right to withdraw from the
Purchase Agreement if Surplex does not, not
timely or not correctly receive the Object
from its supplier.
68. Defects:
68.1 Surplex shall assume no
liability for material defects (Sachmängel)
of Objects which are used or not newly
produced.
68.2 The Customer's statutory remedies ("Warranty
Claims") for defects of an Object, including
material defects and/or any violation of
rights of third parties (collectively "Defects")
shall be limited as set forth hereinafter:
Whether or not the Contract is a commercial
transaction, the Customer shall be
responsible to inspect the Objects and to
notify Surplex of any defects thereof
without delay, as provided under commercial
law, failing which the Defect concerned
shall be deemed accepted. Warranty Claims
shall be limited to performance
(Nacherfüllung). However, the Customer
reserves the right to request a reduction of
the purchase price or to withdraw from the
purchase agreement if the performance fails.
Surplex reserves the right to choose the
type of performance; such right shall pass
to the Customer only if Surplex is in
default of performance. Surplex shall not be
deemed to have guaranteed certain
specifications or other properties of the
Objects except if it has expressly confirmed
such guarantee. A manufactured warranty
issued with any Object shall not be deemed a
guarantee of certain properties unless
expressly stated otherwise.
68.3 Any Warranty Claims shall be
excluded if (a) the Object deviates from the
agreed specifications or the Defect in
question limits the suitability of the
Object for the agreed purpose to a
negligible degree only or (b) the Defect in
question is due (i) to use of the Object for
any purpose other than the contractual
purpose or in violation of the relevant
statutory requirements and/or any guidelines
issued by the manufacturer or (ii) to
modification of the Object without the prior
approval of Surplex or to use of the Object
in conjunction with other product not
specifically approved by Surplex. Any
Warranty Claims for violation of third-party
rights shall be excluded unless such
third-party rights are valid within the
European Union or Switzerland and the
Customer enables Surplex to conduct the
defense alone without any restriction and
grants to Surplex the necessary powers. If
the Customer resells the Objects, any rights
to take recourse shall be excluded except if
and to the extent that the Customer proves
that the Objects supplied by Surplex for
resale and giving rise to such recourse
shall have been shipped to the Customer's
clients in the order in which they shall
have been received by the Customer (FIFO).
69. Limitation Period:
Any claims based on Defects shall be subject
to a limitation period of twelve months for
newly produced Objects. Any claims based on
a violation of rights of third parties
(Rechtsmängel) shall be subject to a
limitation period of six months for used or
not newly produced Objects. Any claims which
are based either on gross negligence or
willful misconduct or on bodily injury or
damage to the health of a person caused by
negligence or willful misconduct shall be
subject to the applicable statutory
limitation periods. The limitation periods
shall begin on the date specified by the
statute.
70. Retention of Title:
Until payment in full of all outstanding
amounts by the Customer, Surplex shall
retain title to the Objects. The Customer
shall advise Surplex without any delay of
any attachments of any such Objects, in
particular of any judicial execution
measures or any other seizures, as well as
of any damage suffered by such Objects. In
the event that any Object is located in or
shipped to a country where this Retention of
Title Clause is not fully valid and
enforceable, the Customer shall provide
Surplex with equivalent security.
71. Export: The Customer shall
refrain from exporting any Object and
technical information received from Surplex
to the extent this is prohibited by the
relevant laws or regulations of its country
of residence and/or of the United States of
America, and shall impose such obligation
also on its customers, without prejudice to
the other provisions of the Contract or
these Surplex-Conditions.
72. The terms of this section D.1
shall apply mutatis mutandis to Contract of
Sales between a Seller named by Surplex and
the Customer.
D.2 Surplex as Buyer
73. Sales Agreement: When Surplex
accepts the order of a Customer intending to
sell an Object to Surplex, a Sales Agreement
shall be deemed made between the Customer
and Surplex pursuant to these
Surplex-Conditions. Surplex reserves two
weeks for acceptance of the order.
74. The payment of the purchase price by
Surplex shall be subject to the condition of
full and timely payment of the resale price
to Surplex from its resale purchaser. If the
Customer knows or if it is apparent to the
Customer that the Object is to be resold by
Surplex to a resale purchaser, Surplex shall
have a right to withdraw from the Purchase
Agreement if Surplex does not, not timely or
not fully receive the purchase price from
the resale purchaser.
75. The liability of the Seller shall
be subject to the statutory regulations.
76. Surplex shall be entitled to deal
with the Object as it sees fit in its
discretion, in particular it shall be
entitled to resell the Object.
77. The deadline for a notice of
defects which may be required under
commercial law shall be two weeks from
discovery of the defect. In the case of an
apparent defect, the deadline for the notice
of defect shall be two weeks from delivery.
Duesseldorf, Februar 2006.
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