Auction Terms and Conditions 2nd Holsteiner Winter Chance Conducted Online on 12 and 13 December 2020

 

A. General
The Holsteiner Verband Vermarktungs- und Auktions GmbH, Elmshorn (in the following also called “organizer“), conducts the auction sale of horses owned by the exhibitors (in the following also called “exhibitor” or “seller”) on the internet (here also called internet auction, internet auction sale, or online auction sale) on behalf and for the account of the exhibitor. Exhibitor assures to be the owner and authorised to dispose of the horse. 

The purchase contract on the horse is concluded directly between the exhibitor as seller and the successful bidder as buyer. It is a purchase contract according to sections 433 and following of the Civil Code (BGB), not concluded though public auction sale according to section 383 sub-section 3 BGB.

The purchase contract between exhibitor and buyer and the legal relationship between organizer and exhibitor on the one hand and organizer and bidder on the other hand are based on these online auction sale terms and conditions. 

The exhibitor accepts the online auction terms and conditions upon the horse’s registration for this internet auction. The bidder accepts the online auction terms and conditions at the latest upon participating in the bidding process. In the event of a successful bid, the purchase contract is concluded solely between exhibitor and buyer. 

The online auction terms and conditions apply exclusively. Terms opposing or different from these online auction conditions are not accepted. 

The online auction terms and conditions do also apply in the event of unconditional delivery on the part of the organizer or exhibitor, aware of the purchaser’s opposing or different terms.

All arrangements between organizer and purchaser and exhibitor and purchaser for the purpose of fulfilment of the concluded contract are stipulated by this online auction terms and conditions. 

Organizer reserves ownership and copy rights for images, videos, drawings, descriptions and other records used by organizer for the auction. Prior to a third party transfer, purchaser, bidder, and any other third party require the organizer’s explicit consent in writing.

Generally, the online auction terms and condition apply in the same way to traders (section 14 BGB) and consumers (section 13 BGB), if their effect has not been explicitly restricted with regard to individual stipulations. 

For agency services, organizer charges a commission fee from the exhibitor at a rate in the range between 8% and 14 %, depending on the amount of the highest bid (=so-called knock-down price).

 


B. Organisation and Execution of the Online Auction 

I. Registration and User Account  
1. Only natural or legal persons who have registered with the organizer may participate in the internet auction sale. When applying for registration, all details required on organizer’s registration form must be submitted correctly and duly and possibly required copies must be attached. A registration can be cancelled any time without giving reasons on our internet platform under the heading “cancel my registration”; in this case, all registered data are deleted for good unless they are still necessary for an ongoing bidding process or the settlement of a prior purchase. In this case the data will only be deleted when definitely no longer required. We would also like to refer to point J. of these online auction terms and conditions.

2. Representation and Contractual Capability
(a) Natural persons must be of age and have full contractual capability to register.
(b) Natural persons acting as authorized representative of a legal person must be named.
(c) Registered users receive a password. Every user is bound to keep the password secret.  

II. Online Auction Practice 
1. Each internet auction sale starts with an offer placed on the internet platform by the organizer. This offer constitutes a declaration of intent by the exhibitor aimed at concluding a purchase contract. At the same time, the offer determines the time for bidding by stating the “end of auction”. This offer cannot be accepted by a simple “yes”, it rather states in advance that the highest bid will be accepted. Only the highest bid effectively placed by a bidder within the stated bidding time in accordance with the conditions of this online auction terms is accepted on behalf of the exhibitor. 

2. Bids can solely be placed online and only through the mask installed for registered bidders on the platform. No bids placed in any other way are considered, even if they reach the organizer during the time of bidding. Bids are not considered, either, unless the bidder states consent to the validity of these online auction terms and conditions for the specific bid and aware-ness of the right of withdrawal. Bids placed by a registered user under “bid” in accordance with these online auction terms and conditions until the end of the auction only take part in the auction if organizer has received the bid by the end of the auction. Transmission is at the bidder’s risk.

3. Prior to placing a bid, the content of the bid including the client information is displayed on an overview page where the bidder may revise and adjust the bid by using the designated fields. By clicking the “place bid” button, the bidder submits a binding bid aimed at concluding a purchase contract to the organizer. After submitting the bid, the bidder receives an automati-cally generated email from the organizer or a push notification confirming the receipt and the details of the bid (confirmation of receipt). This confirmation of receipt does not constitute the acceptance of a contract, but only confirms participation in the auction with the placed bid. Each bid placed by any bidder is dissolved upon a higher bid being placed. Each bidder is bound to the placed bid until the end of the bidding time. 

Bids that do not meet the reserve price do not take part in the auction, also if the organizer has not received a higher bid by the end of the auction. The purchase contract for the sold horse is effected without special awarding through the effectively placed highest bid (in the following called “knock-down price”) of the registered bidder (user or client) at the end of the bidding time. 

4. To be effective, a bid must meet the reserve or minimum bidding price and exceed the last bidder’s bid by one increment, at least. Bids for the horses listed for auction are raised in 500.00 euro steps. The bidder is notified by email or in another suitable way on the internet platform that the bid has been accepted or else that the bid has been outdone. The applicable VAT rate (0%, 10.7% or 16%) is raised on all bids. With regard to settlement, compare the information stated under D. 

In the first phase of bidding, maximum bids can be placed, that is you can place your maximum bid for the horse in question. The price is raised by 500 euros each time. Incoming bids are prioritised strictly on a first in-basis. With the knock-down price met by two or more identical bids, the bidding is won by the bid which has come in first.

If a bid is placed which is a full or fractional increment above the current bid, the current bid is raised in relation to the new bid and all previous bids placed by other bidders. In other words, if the current bid stands at 5,000 euros and a maximum bid of 7,500 euros comes in, the current bid is raised to 5,500 euros (that is by one increment above 5,000 euros). If another bid-der has placed a maximum bid at 6,000 euros, the current bid is raised to 6,000 euros, that is by one increment above 5,500 euros. In case you have placed a maximum bid, you receive an email confirming your bid and telling you the price of your current highest bid. As soon as your highest bid has been exceeded, you receive another email right away, telling you you have been outdone. Along with this email you receive a link allowing you to place further bids. 

Throughout the auction, the starting time of the online auction final (bid up), is counted down in the upper area of the website. When the count is down to 00 days 00:00:00, the so-called bid up starts automatically. For each lot, the end of the auction is delayed by 5 minutes in relation to the previous lot. With the bid up for lot 1 starting at 20:00 hrs, the starting time for lot 2 is 20:05 hrs.

During the last 5 minutes before the auction sale of each lot comes to a definite end, each bidding activity extends the countdown timer by another 2 minutes. In other words: if a bid is placed with only 35 seconds left, the timer is set to 2 minutes and 35 seconds. If no other bid is received during that time, the auction ends with the knock-down price displayed on the bid board. An extension of the end of auction for a previous lot does not involve an extension for the following lot.  

5. Notification on conclusion of contract: by the end of the bidding, the bidder with the highest effective bid is informed by email or else on a lasting data medium in text. Receipt of this information is the confirmation of the already concluded purchase contract, not an additional condition for the conclusion. Bidders who have not won the bidding are not informed. The highest bid is only listed anonymously on the platform immediately after the expiration of the bidding time. The buyer notification includes a confirmation of the contract in accordance with section 312f BGB detailing the subject matter of contract and contains necessary information under section 246 a of the Introductory Law of the Civil Code including the withdrawal instruction (compare H). Explicit mention of the buyer’s right to withdrawal is made to the exhibitor. 

6.  According to organizer’s best judgement, organizer is entitled to block registered bidders for certain auctions of certain lots or for a certain time or at all and thus exclude them to a limited or unlimited extend from participating in the auction. This is only acceptable upon good cause shown, making it unreasonable for us to continue a legal relationship with the blocked person. 

7. Organizer is free to break off an auction at equitable discretion any time before the end of the bidding time for objective reasons. 

In case of unexpected system failure due to technical reasons organizer is also entitled to break off the auction. In this respect, organizer explicitly reserves the right to withdraw each of the internet offers in accordance with C. The break-off decision is communicated on the internet platform with some explanatory words. Bids already placed will expire without replacement upon notification. With the auction carried out properly as announced, the reserved right to withdraw the offer for sale to the highest bidder expires with the end of the auction upon the end of the bidding time with no need for a special statement on the part of the organizer. Organizer is not liable to the bidder for technical problems in the course of the auction process, in particular system failure, non-delivery of bids, or rejection of bids for technical reasons, under the exclusion of wilful acting on the organizer’s side. 

8. During the running of the auctions organizer maintains a hotline which can be called during the time stated on the internet platform at specified charges payable by the caller. The sole purpose of this hotline is to solve transaction problems; it does not receive or place bids. No promises or legal agreements whatsoever shall be made through the hotline. 

 

C. Information on the Lots Put to Auction
I. The general information on the horses listed for auction sale on organizer’s platform includes details on pedigree and age as well as sex and colour as stated by the exhibitors or according to breed data specifications. The listed competition results refer to Germany, predominantly.   

Organizer assumes no responsibility for the accuracy of the information and declarations stated by the exhibitors and other participants in particular with regard to their person and their solvency and willingness to pay. Neither identity nor solvency checks are carried out. Neither is organizer under any legal obligation to assume liability for the horse sold at auction being free from defects or potentially missing qualities.  

The location of the hoses upon completion of the internet auction is at organizer’s facility. Ridden horses are up to viewing from 3 December, unbacked horses and brood mares from 10 December at organizer’s facility until the end of the auction sale. 

II. The horses put up for internet auction sale have undergone a clinical examination in preparation for the internet auction sale.  

 

In addition to that, all horses two-year-old and older have been x-rayed with pictures of the following standard projections taken:

-    front hooves left and right 90° centred on the coffin joint
-    front digits left and right (90°) centred on the fetlock joint
-    overview picture hind digits left and right (90°)
-     tarsal/hock joints left and right 0°, 45° and 135°
-    stifle joints left and right 90° and 180°
-    Oxspring left and right, viewing of the fetlock joint space
-    three-year-old and older horses: three pictures of the spine (thoracic spine and lumbar spine, viewing vertebrae as possible)

The veterinary examination record issued on the veterinary clinical examination which has been carried out is accessible for review by registered customers through a link on the page of the horse listed for auction sale. Bidders are advised to consult their own vet at their own expense about the veterinary examination record; the vet may also request the x-rays from the manufacturing vet at the bidder’s expense. It is strongly recommended and in the bidder’s best interest to use this opportunity to learn about the respective horse’s health status. Bids can only be placed after bidder has declared to have been notified of the possibility to review the veterinary clinical examination records and x-rays.

The result of the objective findings report referring only to the clinical examination and stated in the written veterinary examination report open for review as well as the status shown by the x-rays describe the health status of the horse listed for internet auction sale but do not consti-tute an agreement on the legal and factual nature in accordance with section 434 of the Civil Code (BGB).

III. The minimum bidding price for the horse listed for internet auction sale is stated in euros. During the auction and upon completion of the auction the horse is located at the organizer’s facility. 

 

D. Settlement, Payment, Passing of Title
I. Knock down prices are net prices. The purchaser owes the seller/exhibitor the knock-down price plus value added tax (sales price). VAT is raised on the knock-down price at a rate depending on the seller’s taxation status, either 0% (private sale), 10.7 % (flat-taxed farmer) or 16% (trader/ farmer opting for standard taxation). For each horse, the applicable tax rate is stated on the auction website after the exhibitor’s name. The VAT rate is stated as declared by the exhibitor. The H.V. Vermarktungs- und Auktions GmbH does not assume liability for this statement.

II. A commission/buyer’s premium at a rate of 6 % of the knock-down price (net) plus 16% VAT is payable by the purchaser to the H.V. Vermarktungs- und Auktions GmbH for agency services.

III. The H. V. Vermarktungs- und Auktions GmbH has arranged obligatory insurance for the horse put to sale with the Vereinigte Tierversicherung at a rate of 1.5 % of the gross price plus insurance tax, payable by the purchaser. 

IV. To all stated prices and bids, the applicable VAT (currently 16 %) is added and will be shown separately on the invoice.  Against this background the total amount payable by the purchaser is computed as follows:

“knock-down price“ (net) 
+ VAT (depending on seller’s taxation status, 0 %, 10.7 % or 16 %)  
= subtotal 1 (= selling price)

+ buyer’s premium at a rate of 6 % of the knock-down price (net)
+ VAT (16 %) on the buyer’s premium (according to sections 12, 2 UStG) 
= subtotal 2 

subtotal 1 and 2 (selling price + buyer’s premium) = gross price 
+ 1.5 % insurance premium on gross price
+ insurance tax (19 %) 
= TOTAL INVOICE AMOUNT

Upon confirmation of the conclusion of the purchase contract the bidder receives the invoice stating price and VAT. Fast payment discount deduction is not accepted.

V. The total invoice amount is payable immediately after the end of the online auction sale and must be transferred to the H. V. Vermarktungs- und Auktions GmbH’s UniCredit account. When paying in foreign currency, the amount credited to the account of the H. V. Vermarktungs- und Auktions GmbH must equal the total invoice amount in euros.

VI. The horse in question remains the property of the exhibitor in agreement with section 449 BGB until the total invoice amount has been paid to the H. V. Vermarktungs- und Auktions GmbH; in the event of payment by cheque or money transfer, passage of title is effected by the unconditional crediting of the total invoice amount to the H.V. Vermarktungs- und Auktions GmbH, Elmshorn, account with the UniCredit Bank. 

VII. The risk of loss is passed to the buyer with end of the online auction. The horse is ready to be collected at organizer’s facility. If the horse is not collected on the day of the online auction, the H. V. Vermarktungs- und Auktions GmbH is prepared to stable the horse at organizer’s Elmshorn stable at the buyer’s risk and expense until it is collected. In default of payment, the purchaser is liable to the exhibitor and the H.V. Vermarktungs- und Auktions GmbH. The purchaser is entitled to the Certificate of Ownership only after passage of title has been effected. 

VIII. In the event that the purchaser does not pay the total invoice amount within seven working days (including Saturday) after the day of the auction, the exhibitor as seller can withdraw from the purchase contract and sell the horse elsewhere. The first purchaser is liable for any possible loss and also liable to pay damages to the organizer. 

IX. The exhibitor transfers the claim against the purchaser for payment of the selling price (knock-down price + VAT) to the H.V. Vermarktungs- und Auktions GmbH, Elmshorn, as organizer, for collection and settlement. In the event of delayed payment by the purchaser, organizer does not advance funds to the exhibitor. In the event of delayed payment, organizer is authorized to take action for payment of the selling price and the ancillary claims against the purchaser on behalf of the exhibitor without requiring the exhibitor’s special order. The costs for the judicial assertion of the claim are born by the exhibitor.

X. Organizer of the auction sale draws attention to the reserved right to pay a commission from the agency fee to third parties causally involved in the conclusion of the purchase contract.
 

 

E. Agreement on the Legal and Factual Nature
The exhibitor as seller warrants the quality of the horse at transfer of risk as described and stipulated below:

1)  the information stated on the auction website regarding pedigree and age, as well as sex and colour

2) the physical condition as documented  

•    by radiographs
-    front hooves left and right 90° centred on the coffin joint
-    front digits left and right (90°) centred on the fetlock joint
-    overview picture hind digits left and right (90°)
-    tarsal/hock joints left and right 0°, 45° and 135°
-    stifle joints left and right 90° and 180°
-    Oxspring left and right, viewing of the fetlock joint space
-    three pictures of the spine (thoracic spine and lumbar spine, viewing vertebrae as possible)

•    by the equine practitioners‘ Clinical Examination Certificate (compare point C. II.).
 

Beyond that, no written or verbal statements by the veterinarian or organizer’s agent shall incur warranty.

 

F. Warranty, Liability and Limitation Period
I. The limitation period for warranty and liability claims of the successful bidder/ buyer towards the exhibitor/ seller is one year from the passing of risk. 

II. The aforementioned liability limitations do no extend to liability claims as to damages of life, body or health resulting from at least negligent breach of duty by the seller or the H.V. Vermarktungs- und Auktions GmbH, Elmshorn, or wilful or negligent breach of duty by a legal representative or vicarious agent of the seller or the H.V. Vermarktungs- und Auktions GmbH, Elmshorn; 

Liability limitations do not extend to liability claims as to other damages resulting from at least gross negligent breach of duty by the seller or the H.V. Vermarktungs- und Auktions GmbH, Elmshorn, or wilful or gross negligent breach of duty by a legal representative or vicarious agent of the seller or the H.V. Vermarktungs- und Auktions GmbH, Elmshorn.

 

H. Information on the Right of Withdrawal
1.  Right of withdrawal
According to section 312 g of the Civil Code (BGB) and in the event the buyer is a consumer, and the seller an entrepreneur, the buyer has the right of withdrawal under section 355 BGB, giving the buyer the right to cancel the contract within 14 days without giving reasons for doing so. The period of cancellation starts with the day the buyer or a third party who is not the carrier has taken possession of the horse.

In order to exercise the right of withdrawal, the buyer has to notify either  
the seller 
or 
der Holsteiner Verband Vermarktungs- und Auktions GmbH, Westerstraße 93-95, 25336 Elmshorn,        
fax: +49 (0)4121 93629, email: [email protected]

explicitly declaring (for example by sending a letter by mail, fax, or email) his decision to cancel the contract. For this purpose, the sample contract cancellation form below can be used (not mandatory). 

In this case, the Holsteiner Verband Vermarktungs- und Auktions GmbH acts as the seller’s authorized messenger.
To comply with the cancellation period, it is sufficient for the buyer to send notification of the contract cancelling before the cancellation period expires. 

2. Cancellation Consequences
Should the buyer cancel the contract, all payments organizer and seller have received including shipment costs (with the exception of additional charges resulting from the buyer having chosen another form of delivery than the most favourable standard delivery offered by us), must be paid back immediately and at the latest within 14 days from the day the seller or organizer has received notification of the cancellation of the contract. The buyer is to receive the refund in the same way the original transaction was paid, unless another solution has been explicitly agreed upon with the buyer; in no case the buyer is charged for this refunding. Organizer and seller can refuse refunding until the goods have been received back or until the buyer has provided proof  that the horse has been brought back, depending on which happens at an earlier date.  The buyer pays the immediate costs for returning the horse.

 

J. Changes, Applicable Law, Jurisdiction, Severability Clause, Precedence of the German Version 
I. Organizer reserves the right to change the way the online auction is carried out. Changes shall be announced in due course. In case the online auction cannot take place for reasons outside the organizers control and responsibility (for example official ban), organizer does not assume liability for any damages whatsoever. Services already performed by organizer must be paid and will not be refunded. 

II. Organizer reserves the right to future changes or amendments to this online auction terms and conditions. During the auction, licensed bidders are notified of possible changes or amendments by separate email. The changed or amended terms shall only apply after the bidder implies consent by placing a new bid after having received the notification. 

III. German Law shall apply under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (GISG).

IV. Place of jurisdiction for all conflicts arising out of the contract between purchaser and the H.V. Vermarktungs- und Auktions GmbH or else from claims assigned to the organizer by the exhibitor under the terms of D.IX, shall be organizer’s seat, provided that the purchaser is a merchant, a legal entity governed by public law or specialized agency subject to public law or the purchaser has no place of general jurisdiction in Germany. 

V. The European commission provides a platform for Online Dispute Resolution (so-called ODR platform) aiming for out-of-court dispute resolution of disputes arising from online contracts. To access the ODR platform, follow this link:    http:://ec.europa.eu/consumers/odr 
According to section 36 VSBG we state that we are neither willing nor obliged to participate in a dispute resolution before a consumer dispute resolution body.

VI. In any case of discrepancy between the German and the English version of the Auction Terms and Conditions, only the German version shall apply. For the interpretation the German version is relevant and shall take precedent also when interpreting the English version. 

VII. In the event that any of the conditions stated above should become partially or entirely void, this shall not affect any other conditions. 

 

K. Data Privacy
The organizer collects and stores customer data as necessary for the transaction of the business. We adhere to legal requirements when processing personal data of the customer. For more information read our data privacy statement available on our website. Upon request, customers will be given information on their stored personal data any time.