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2019/2020 Terms and Conditions of the Premium Auction of the Verband Deutscher Brieftaubenzüchter e.V. (Association of German Carrier Pigeon Breeders) (Terms of Auction)

 

Commencement clause

Verband Deutscher Brieftaubenzüchter e.V. (hereinafter referred to as the “Association”) provides sellers and buyers with platforms for the auction sale of high-quality carrier pigeons in December 2019 and January 2020 initially in a pre-auction on its homepage www.brieftaube.de (bidding phase I) and subsequently at the Deutsche Brieftaubenausstellung (German Carrier pigeon Exhibition) (hereinafter referred to as the “DBA”) in Dortmund (bidding phase II).
These Terms of Auction govern the legal relationship between buyers and sellers of carrier pigeons, on the one hand, and the Association, on the other hand, as well as the legal relationship between the buyer and the seller amongst each other, the use of the platforms by the bidders and, finally, the conduct of the auction.
The rights and duties of the Association as well as of the sellers and the buyers are governed exclusively by the following provisions, including the preamble.
The Terms and Conditions of Auction are published in the electronic auction catalogue, on the pre-auction platform on the Internet and on a clearly visible notice board at the show in Dortmund.
The sellers have acknowledged the Terms and Conditions of Auction as binding by entering into a carrier pigeon auction contract which includes these Terms and Conditions of Auction. The bidders accept these Terms and Conditions of Auction as binding when submitting a bid.
The terms “auction” and “auction sale” are used synonymously in these Terms and Conditions of Auction.
The Terms and Conditions of Auction exclusively apply to the premium auction conducted in December 2019 and January 2020. Therefore, they are not deemed general terms and conditions of business within the meaning of Section 305 of the German Civil Code (BGB).

 

Section 1 Form of auction

The auction shall comprise
- bidding phase I - pre-auction from 15 December 2019 to 29 December 2019 -
- bidding phase II - DBA auction on 5 January 2020 -.

 

Section 2 Registration and admission to the platforms

(1) The use of the www.brieftaube.de platform shall require free registration. A claim to register with, and use, the websites of the Association shall not exist.
(2) Any legal entity or natural person with unlimited legal capacity may register. The data to be provided during the registration process, in particular the name, address, telephone number and e-mail address, shall be up-to-date and complete. In case of violations against this obligation, the Association reserves the right to exclude the bidder with immediate effect and without any compensation, even when the auction is running.
(3) Participation in the auction in the “Goldsaal” of the Westfalenhallen in Dortmund on 5.1.2020 January XNUMX shall not be subject to registration. All DBA visitors shall have access to the auction hall. Admission to the auction hall shall be free of charge. Hence, no entrance fee shall be charged in excess of the entrance fee for the DBA. The Association reserves the right to deny visitors access if this is necessary for safety reasons upon consultation with the lessor of the event venue, Kongress Dortmund GmbH.

 

Section 3 Intermediation

(1) The Association shall only serve as the intermediary between the seller and the buyer. It shall not be a party of the purchase contract but shall only make available the platforms mentioned for the sellers and the buyers.
(2) Hence, the Association shall not assume any guarantee that a formally valid auction process will lead to payment of the pigeon made by the buyer. In this respect, the buyer shall bear sole responsibility. However, the Association shall make efforts to ensure that the buyer conducts the transaction properly.

 

Section 4 Auction catalogue

Prior to the auction, an auction catalogue shall be published on the website of the Association www.brieftaube.de. For general reference, it contains the pictures of the carrier pigeons to be sold by the auction and describes them together with their respective pedigrees. The Association shall compile the catalogue to the best of its knowledge and belief and with utmost care. It shall be based on the information provided by the seller. The Association shall not verify the accuracy of the information provided by the seller. Therefore, the Association shall not assume any liability for the accuracy of the seller's information, in particular with regard to his or her information on the sex of the pigeon. The Association shall be entitled to correct or supplement catalogue details by posting notices at the place of the auction and orally by the auctioneer immediately before the auction of the carrier pigeon concerned.

 

Section 5 Bidding phase I - pre-auction -

(1) During bidding phase I, potential buyers may submit binding purchase offers via the homepage of the Association www.brieftaube.de. Hence, no offer is made by the seller during bidding phase I; therefore, no purchase contract is accepted by the declaration of intent of the person submitting the highest bid during the term of the pre-auction. The binding purchase offer shall remain effective for the entire duration of the auction (i.e. also during bidding phase II).
(2) The submission of bids via the Internet shall only be permitted if the bidder has been approved by the Association for submitting bids via the Internet by using a user name and a password and has acknowledged the Terms and Conditions of Auction as binding. The approval shall be granted exclusively for the approved person and, hence, is personal.
(3) The bidding participant shall remain bound to his or her bid until it is outbid. Therefore, each bid shall lapse as soon as another bidder submits a higher bid during the bidding period. Any bid shall also lapse if it is rejected by the Association. If several bidders submit bids of the same amount, only that bid shall apply that has come to the knowledge of the Association first.
(4) For each carrier pigeon, the auction shall start with a starting price. The starting price and the minimum bid shall amount to EUR 50.00.
(5) If bids are submitted during the last 2 minutes before the official end of the auction, the auction shall be extended by 2 minutes each exactly as of this point of time. This shall apply until no further bid is received.
(6) The minimum amounts by which a new bid must exceed previous bids (rate of increase) shall be EUR 10.00. Notwithstanding the above, also a higher bid may be submitted. In this case, a bidding agent shall become active such that the bid of the bidder is gradually increased automatically within the framework set by the bidder until this bidder becomes the highest bidder again.
The Association may change the rate of increase during the auction.
(7) The closing time of the pre-auction (29 December 2019, from 13.00 hrs.) shall be governed exclusively by the system time of the Association.
(8) The user shall be obliged not to make his or her user name and password accessible to any third parties. In case of culpable violation, he or she shall be liable towards the Association for any damage arising therefrom.
(9) Bids submitted via the Internet shall only be legally valid if they are sufficiently specified and can be unequivocally assigned to the bidder by means of a user name and password. Bids transmitted via the Internet shall be recorded electronically. The bidder shall accept the accuracy of the records, however shall be free to prove their inaccuracy.
(10) In legal terms, the Association shall treat bids submitted via the Internet during bidding phase I in the same way as written bids within the meaning of Section 6 (7).
(11) The www.brieftaube.de website and the services of the Association shall be provided without any representation as to availability and quality.
(12) The Association reserves to change the website at any time and without giving reasons to this end.
(13) At the end of bidding phase I, the Association shall determine the highest bids per pigeon (based on the value in euros) and inform the respective highest bidders.

 

Section 6 Bidding phase II- DBA auction -.

(1) Bidding phase II shall take place in an auction of the DBA at the Dortmund show on 5.1.2020 January XNUMX.
(2) All carrier pigeons to be auctioned on 5.1.2020 January XNUMX shall be exhibited for preview and can be viewed there.
(3) The auction of the individual carrier pigeon shall begin with its call by the auctioneer. When calling the pigeons, he shall be entitled to deviate from the order specified in the catalogue.
(4) Unless provided otherwise by the auctioneer, bids shall be submitted in increments of EUR 50.
(5) The purchase contract shall be deemed concluded by acceptance of the bid by the auctioneer on the fall of his hammer.
(6) If a bidder wishes to submit bids on behalf of a third party, he or she shall notify this at least 24 hours before the beginning of the auction by submitting a power of attorney from such third party. Otherwise, the contract shall be deemed concluded with this bidder himself upon acceptance of the bid.
(7) Subject to the consent of the Association, bids may still be submitted in bidding phase II in writing on a form provided to this end. They shall be signed by the bidder and indicate the hammer price offered for the pigeon together with the number of the auctioned pigeon. The bidder shall acknowledge the Terms and Conditions of Auction as binding. With the written bid, the bidder instructs the Association to submit its bid. The written bid shall only be used by the Association to the amount necessary to outbid another bid. A contract on the basis of a written bid shall be deemed concluded between the seller and the bidder according to item XNUMX, i.e. on the fall of the auctioneer’s hammer. If several written bids of the same value are received for the same carrier pigeon, the bid received first shall be accepted if no higher bid has been received or submitted.
must be signed by the tenderer and, quoting the number of the auction dove, mention the hammer price offered to the pigeon. The bidder must accept the auction conditions as binding. With the written bid, the bidder commissions the association to submit his bid. The written bid will only be used by the Association for the amount required to beat another bid. A contract on the basis of a written bid is concluded between the seller and the bidder in accordance with paragraph 5, and thus by the auctioneer's bid. If several equally high written bids are received for the same carrier pigeon, the bid received first will be awarded if no higher bid exists or is given.
(8) A bid shall be accepted if no higher bid has been submitted. Upon the fall of the hammer, the bidder shall be obliged to accept the carrier pigeon and to pay the purchase price.
(9) The auctioneer shall be entitled to reject a bid or refuse acceptance without giving reasons to this end. If a bid is rejected or acceptance is refused, the previous bid shall remain effective.
(10) The auctioneer may withdraw his acceptance of the bid and reoffer the carrier pigeon in question during the auction on 5.1.2020 January XNUMX if
- he has mistakenly overlooked a higher bid submitted in due time and the
overlooked bidder has objected to it immediately,
- the highest bidder does not want his bid to stand, or
- there are other doubts as to the acceptance.
If the auctioneer exercises this right, the previous fall of the hammer shall become invalid.

 

Section 7 Purchase price, payment, delay

(1) The purchase price consists of the hammer price. The seller shall be liable for any VAT.
(2) The purchase price shall fall due upon acceptance of a bid.
(3) The purchase price shall be paid in euros to the Association as the trustee. Payments by EC cash and credit cards (Visa card and Mastercard) shall only be accepted on account of performance. Other non-cash payments shall be made into the following trust account of the Association, indicating the purpose of the payment “Premium Auction”:
Postbank Essen IBAN: DE46 3601 0043 0000 0244 31 BIC: PBNKDEFF.
(4) If the full amount of the hammer price has been paid, the seller may demand settlement and payment of the hammer price from the Association less the commission for success within the meaning of item 2 and the statutory VAT within the meaning of item 3. As long as the hammer price has not been paid in full, the Association shall not be obliged for settlement and payment.
(5) Ownership shall not be passed to the buyer
until after the purchase price has been paid in full. The seller's and the purchaser's declarations of intent required for this transfer of ownership shall be deemed made hereby.

 

Section 8 Post-auction sale

(1) During a period of one month following the auction, non-auctioned carrier pigeons may be purchased by way of a post-auction sale. Such post-auction sale shall be deemed part of the auction.
(2) The interested party shall submit a relevant bid of a certain amount in person, by telephone, in writing or via the Internet and acknowledge the Terms and Conditions of Auction as binding.
(3) The contract shall be deemed concluded if the Association accepts the bid in writing within three weeks upon receipt.
(4) The provisions regarding the purchase price, payment and liability for carrier pigeons purchased at the auction shall apply mutatis mutandis.

 

Section 9 Receipt, custody and dispatch of the auctioned carrier pigeon / default of acceptance / other sale

(1) The buyer shall be obliged to collect the auctioned carrier pigeon from the auction hall immediately after his or her bid has been accepted.
(2) Buyers who are not personally present in the auction hall and were not validly represented by third parties during the auction shall be informed by the Association about the conclusion of the purchase contract in writing immediately after the end of the auction. They shall be obliged to collect the auctioned carrier pigeon from the registered office of the Association not later than two weeks after the bid has been accepted.
(3) Prior to the full payment of the hammer price, the auctioned carrier pigeon shall only be handed over if the seller has given his consent to the Association in writing.
(4) Until collection, the Association shall keep in custody the auctioned carrier pigeon for a period of two weeks, calculated from the fall of the hammer, at the expense of the seller and take out a relevant insurance at the expense of the seller in the amount of the purchase price. Thereafter, the Association shall be entitled to send the carrier pigeon to the seller at the seller’s expense.
(5) If the buyer instructs the Association in writing to carry out the transport of the auctioned carrier pigeon and provided that the purchase price has been paid in full or the seller has given his or her consent to the Association in writing for the dispatch of the pigeon, the Association shall ensure the proper transport of the pigeon to the buyer or to the recipient named by the buyer and take out an appropriate transport insurance. The buyer shall bear the costs of packing, dispatch and insurance.
(6) The provisions of item 5 shall only apply to transports within the European Union.
(7) If the buyer does not collect the auctioned carrier pigeon within two weeks (refer to item 2) and does not issue an instruction to dispatch the pigeon within this period (refer to item 5), the buyer shall be in default of acceptance.

 

Section 10 Liability

(1) The pigeon auctioned shall be sold in the condition it is at the time of the fall of the hammer and it could be viewed prior to the auction. This condition shall not be deemed supplemented by details given in the catalogue, or by any written or verbal information from the seller or the Association, or by the illustrations in the catalogue. A guarantee for the condition of the pigeon shall not be assumed.
(2) The buyer shall not be entitled to any warranty rights within the meaning of Sections 434 et seq. of the German Civil Code (BGB) regarding both any defect of title and any defect of quality of the auctioned carrier pigeon. Hence, any rights of the buyer regarding withdrawal from the contract, purchase price reduction, subsequent performance, damage claims or compensation for futile expenses shall be excluded. This exclusion of liability shall not apply if the seller has fraudulently concealed the defect.
(3) The Association shall not be held liable for any damage in connection with the submission of verbal, written, telephone or Internet bids, unless it has caused such damage wilfully or by gross negligence. This shall apply, in particular, to the establishment or existence of telephone, fax or data lines as well as to any transmission, communication or translation errors within the scope of the means of communication used or on the part of the employees entrusted with the receipt and forwarding of messages. No liability shall be assumed for any misuse by unauthorised third parties. The limitation of liability shall not apply to any damage from injury of life, body or health.
(4) If, due to an error in the program, a server failure or any other unforeseeable circumstances, the websites of www.brieftaube.de are temporarily not available or data is lost as a result, this shall not give rise to any claims against the Association. In particular, the Association shall not be responsible if and to the extent offers or bids are not processed or stored due to technical problems.
(5) The Association shall not be held liable for any damage in connection with the custody of the pigeons before and after the auction, if appropriate, unless it has caused such damage wilfully or by gross negligence.

 

Section 11 Data protection

(1) The Association shall be entitled to collect, process and store data of participants and use it for its own purposes. Data of participants shall be treated confidentially and shall not be transmitted to any third parties.
(2) In addition, the Privacy Policy of the Association (http://web.brieftaube.de/datenschutzerklärung.html) shall apply.

 

Section 12 Final provisions

(1) Any changes to these Terms and Conditions of Auction on a case-to-case basis or side agreements shall be made in writing to become effective.
(2) To the extent these Terms and Conditions of Auction are available in any other than the German language, the German wording shall always be decisive.
(3) The law of the Federal Republic of Germany shall apply exclusively.
(4) The place of performance and jurisdiction shall be Essen to the extent such agreement is permitted by law.
(5) If one or several provisions of these Terms and Conditions of Auction are or become ineffective, this shall not affect the validity of the other provisions. Instead of the ineffective provision, the relevant statutory provisions shall apply.

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