Part 1: General provisions

 

Section 1 - Preamble

 

1. The following Terms and Conditions ("T & C") set out the basic principles of the business relationships between AUTOonline LLC ("AUTOonline") and the users of the online platform provided by AUTOonline for marketing accident vehicles ("salvage exchange") as well as the users involved in the sale of fleet vehicles ("fleet sales platform"). Both "salvage exchange" and "fleet marketing platform" shall subsequently be jointly referred to as "platforms".
2. In addition to the rules of participation agreed between AUTOonline and the users of the platforms, these T&Cs contain further provision which shall also apply to any contracts of sale arising from the use of the salvage exchange or the fleet marketing platform and concluded between the relevant buyer and vendor ("used car sales contract").
3. Diverging, contrary or supplementary Terms & Conditions shall not form part of the contract, unless AUTOonline has explicitly agreed to them in writing. AUTOonline hereby explicitly objects to any counter-acknowledgments of contractual partners referring to their own Terms & Conditions.
4. The platform users and any other potential contracting parties acknowledge that they have read and will accept these Terms & Conditions when registering for the platforms.

 

 

Section 2 - Legal position of AUTOonline with regard to the marketed goods

 

1. The contracting parties take note of the fact that the vehicles, accessories and other goods offered for sale on the platforms are not property of AUTOonline.
2. In none of the procedures described in detail in these Terms & Conditions does AUTOonline become a partner in the sales contracts for vehicles, accessories or other goods offered on the platforms. Unless AUTOonline has explicitly agreed this with the vendor or buyer, AUTOonline does not issue statements on the sale or purchase of vehicles in its own name. However, AUTOonline may be authorised to conclude contracts of sale on behalf of the relevant vehicle owner. AUTOonline may also be authorised to collect the purchase price in its own name or, where applicable, to bring an action in its own name for recovery of the purchase price of a vehicle sold through use of the platforms, or to reverse the vendor's sales contract with the buyer on behalf of the vendor. Where AUTOonline has been given authority to do so by the relevant vendor, AUTOonline will notify the affected buyer accordingly.
3. As AUTOonline is at no time the owner of the vehicles or items for auction, AUTOonline accepts no responsibility for the state and condition of these vehicles or items. AUTOonline does not subject these vehicles or items to any technical and/or visual inspection. The description of the vehicle's/item's condition is based entirely on information provided by the owner.

 

 

Section 3 Admission to the marketing platform, revocation and cancellation

 

 

1.

Only commercial buyers that have been authorised in writing by AUTOonline will be admitted to the platforms.

 

1. Participation in the salvage exchange in the capacity of a buyer is reserved exclusively to certified automobile recyclers, garages, car dealerships as well as the automotive trades.
2. Participation in the fleet marketing platform in the capacity of a vendor is open to fleet operators of any type (e.g. banks, car manufacturer and importers, leasing companies, authorities, owned fleets etc.) as well as official receivers. Automobile recyclers, garages, car dealerships and the automotive trades may also participate as buyers.

2.

Admission to the platforms is upon application and approval by AUTOonline. AUTOonline reserves the right to review information at a later stage and to reject an application for admission without giving any reason or to revoke an admission granted earlier. Admission may be revoked in particular for the following reasons:

 

• Violation of the provisions of these Terms & Conditions (e.g. participants of the salvage exchange circumventing the provisions of section 3 ( 1a) through buyers using a vendor to advertise accident vehicles or vendors advertising accident cars on behalf of buyers),
• Deliberate or grossly negligent inducement to advertise incorrect data on the part of offerors using the salvage exchange or vendors using the fleet marketing platform,
• Delay of more than 2 weeks in the payment of the participation fee,
• Repeated delays in the processing, especially delivery, payment and collection of the vehicles and items sold through the platforms,
• Non-existence or lapse of admission requirements,
• Misuse of user ID and/or password,
• Violation of applicable laws or rights of a third party, where this affects the interests of AUTOonline, in particular with regard to the integrity and reliability of the trade on the platforms,
• Initiation of insolvency proceedings or refusal to initiate such proceedings due to insufficient assets, and cessation of business,
• Use of the marketing platform outside the parameters of its intended purpose,
• Establishment and operation of a marketing platform in direct or indirect competition with AUTOonline.

 

AUTOonline explicitly reserves the right to claim damages in case of any violation of these Terms & Conditions.

 

3.

Users wishing to avail themselves of the AUTOonline platforms as an offeror or vendor just for once may revoke their consent to these T&Cs and the resulting usage agreement with AUTOonline in writing within two weeks after their declaration of consent. This requires a notice in writing, addressed to AUTOonline LLC, 9909 Mira Mesa Blvd, Suite #155, San Diego, CA  92131 or an e-mail to info.USA@AUTOonline.com. Punctual dispatch suffices to comply with the time limit for this revocation. Provided the revocation was declared in a timely manner, the user is not bound by the usage agreement or his declaration of consent to these Terms & Conditions.However, this right of revocation lapses as soon as a vehicle is advertised on the AUTOonline platform.

 

4.

The user may cancel his usage agreement at any time. Such cancellation requires a notice in writing, addressed to AUTOonline LLC, 9909 Mira Mesa Blvd, Suite #155, San Diego, CA  92131 or an e-mail to info.USA@AUTOonline.com.

 

5.

AUTOonline is entitled to cancel this usage agreement at any time and in writing, with a notice of fourteen days effective at the end of the month. However, this does not affect the right of suspension.

 

 

 

Section 4 - Users'rights of use

 

1. Upon admission to the salvage exchange or the fleet marketing platform the user is issued with the required software or access to the relevant website for the area he is authorized for. Upon admission to the salvage exchange or the fleet marketing platform the user is issued with the required software or access to the relevant website for the area he is authorized for.
2. It is strictly prohibited to pass on the AUTOonline user ID and access information to any third party without written permission from AUTOonline; any contravention will result in immediate exclusion from the user group. AUTOonline also reserves the right to claim damages in such cases. Each user is responsible for ensuring the non-disclosure of his access information. In this respect he is fully liable to AUTOonline for any loss or theft of this information.
3. The rights of the user are limited to the use of the services provided by AUTOonline in accordance with their intended use.
4. AUTOonline does not grant rights to copyright or other proprietary rights. This includes in particular all present and future offers, the software and the relevant documentation and instructions.
5. The AUTOonline logo and the associated claim "Every car's a winner" may only be used with prior written agreement by AUTOonline and within the limits specified.
6. AUTOonline endeavours to ensure maximum possible system security. However, the users' entitlement to utilization of the platforms is restricted to the present state of technology.In addition there my be delays or system failures, especially during maintenance on the server of the software used by AUTOonline. AUTOonline therefore limits its services at times, where this is necessary in order to ensure the security of the server or to carry out maintenance work. In such cases AUTOonline will endeavour to take into account the legitimate interests of the platform users, e.g. by carrying out maintenance work outside the usual core business hours or by AUTOonline notifying the users in advance and in a suitable fashion. In case of an unforeseen system failure, the Principles for the handling of AUTOonline system failures also apply. However, the above provision does not affect AUTOonline's limitation of liability as set out in section 15.

 

 

Section 5 - Prices

 

 

Usage of the salvage exchange and/or the fleet marketing platform is subject to the payment of usage fees set out in a separate price list. The user will be charged the prices valid on the day of use plus the relevant statutory VAT/sales tax applicable at the time.

 

 

Section 6 - Payment

 

1. Unless otherwise agreed all invoices issued by AUTOonline are payable with fourteen (14) days from date of invoice, without any deductions. In case of late payment the statutory provisions for such cases apply.
2. In case of objections against an invoice from AUTOonline such objections must be lodged in writing, addressed to AUTOonline.
3. Users are only entitled to offset counter-claims against AUTOonline if such claims have been finally and non-appealably established and are undisputed.

 

 

Part 2: Procedures used by the salvage exchange and the fleet marketing platform

 

Section 7 - General rules of procedure

 

1. The offeror or vendor offers the vehicle(s), parts, accessories or other items for disposal on the platform as per contractual agreement with AUTOonline and decides, in accordance with the subsequent provisions, on the marketing procedure to be used (bid system, auction system, fixed price system). AUTOonline, in its capacity as authorised receiving agent of the buyer - cf. section 164 (3) German Civil Code (BGB)- , shall receive the statements issued by the offeror or vendor as part of the procedures used on the fleet marketing platform.
2. The offeror or vendor guarantees the timely submission of complete and correct details for the vehicles or other goods for sale; all such details shall be sent to AUTOonline before the item is marketed.The details provided must also include all traffic engineering-related features as well as any existing defects (technical and optical). AUTOonline accepts no responsibility for the details provided by the offeror or vendor.
3. Where a third party makes claims against AUTOonline in connection with an inappropriate vehicle description or other non-observance of an incidental obligation by the offeror or vendor in connection with the offering or sale of a vehicle, the offeror or vendor agrees from the outset to fully indemnify AUTOonline against such claims.
4. Registered bidders can view the bid rounds and/or auction dates by logging onto the marketing platform. The bidder agrees in advance to any further, additional announcements in a suitable format (e.g. e-mail, post, telephone) issued by AUTOonline or an authorized third party.
5. If the highest bidder claims his bid was not valid - the burden of proof is on him - the vendor is entitled, but not obliged, to accept this statement as an annulment offer and to offer the vehicle or item for sale to the next highest bidder or to offer the vehicle anew. In case of disagreements regarding the timeliness of a new highest bid, the highest bid already accepted remains valid.
6. Accident damaged cars shall be marked separately. In order to achieve the maximum sales price AUTOonline further advises the vendor to arrange for a description of the vehicle's condition by an independent expert.

 

 

Section 8 - Possible procedure used by AUTOonline

 

 

In principle the offeror or vendor can choose between the three procedures outlined in the Term & Conditions - bid system, auction system and fixed price system -, provided the subsequent provisions do not stipulate otherwise. The contract of sale is never concluded through the acceptance of an offer as set out in section 156 BGB but through a declaration of intent. The bid system is the default system used for both the salvage exchange and the fleet marketing platform, unless explicitly stated otherwise.

 

 

 

Section 8 a - Normal case: The bid system

 

1. When using the bid system the offeror or vendor or, upon their request, AUTOonline set the bid deadline for the vehicle on offer. Any interested party calls up the offers available and, if interested, submits a bid. By submitting an offer the interested party makes a binding purchase offer.
2. After expiry of the bid deadline the offeror or vendor can call up the highest bids for the vehicles offered by him. The offeror or vendor simply takes note of these. The used car sales contract is not concluded until the offer has been reviewed and expressly accepted, provided the offeror or vendor decided accordingly. The vendor is not under any obligation to accept the purchase offer at the amount bid.

 

 

Section 8 b - The auction system

 

1. When using the auction system the vendor advertises the vehicle on the relevant platform and sets a bid or bidding deadline as well as a reserve price where desired. Just by advertising the vehicle the vendor agrees to accept the highest bid submitted by the end of the bidding deadline, provided this bid was issued in accordance with the regulations, has reached or exceeded the reserve price the vendor may have stipulated and the bidder has met any additional conditions the vendor may have set.
2. In contrast with the bid system the interested party can follow the bids of competing bidders and outbid them if interested. Each bid submitted is binding. The bid expires if another bidder submits a higher bid before expiry of the bid and bidding deadline.
3. As soon as the auction is over, either upon expiry of the deadline set by the vendor or after premature termination by the vendor, a sales contract for the vehicle offered is concluded between the vendor and the highest bidding buyer who meets the requirements set out in section 2.

 

 

Section 8 c - The fixed price system

 

1. When using the fixed price system the vendor determines a binding sale price as well as stipulating optional additional requirements which the potential buyer must meet (sales offer). The vendor thereby submits a binding offer to sell to this item at the fixed price determined by him to the interested party who has, where stipulated, also met the additional criteria included in the offer.
2. With this system the buyer effectively accepts the vendor's offer provided the latter meets the additional criteria that may be part of the offer and activates the right button.

 

 

Section 9 - Special rules for the salvage exchange

 

1. When using the salvage exchange the offeror can only choose between the bid system and the auction system. The auction system is only available to those offerors authorised to dispose of the vehicles items. This procedure may not be used for vehicles advertised by buyers (so-called commercial goods). In cases where the offeror is not authorized to dispose of the vehicle advertised, he many only use the bid system.
2. When using the bid system the buyer is bound by the offer submitted for three weeks from the date the vehicle was advertised on the salvage exchange.
3. Vehicles advertised by buyers will be advertised on the salvage exchange for a maximum period of four weeks. These vehicles are forwarded to other buyers, marked as trade vehicles.

 

 

Section 10 - Special rules for the fleet marketing platform

 

1. When using the fleet marketing platform the vendor may choose between the bid system, the auction system or the fixed price system. Unless explicitly indicated otherwise the bid system is the default system here.
2. With the bid system the buyer is bound by the bid he submitted for three working days from the end of the bid or bidding deadline, unless a longer deadline was agreed upon as an exception.When calculating that time limit, Saturdays are not counted as working days.
3. In his profile the vendor determines himself whether he wants to offer the vehicle(s) etc. for sale to all buyers using the fleet marketing platform or only a select group of buyers.
4. The vendor shall provide AUTOonline with at least 2 digital photographs (in case of accident vehicles at least four, one of which must show the inside to clarify whether or not the airbag was released) accompanied by a detailed current description of the vehicle's condition and all relevant vehicle details (e.g. date of first registration etc.), to be provided in a digital format (e.g. Excel or Word file).
5. The vendor assures both AUTOonline and the buyer that the vehicle is not encumbered with third-party rights. Furthermore the vendor pledges that he is authorised to freely dispose of the item on offer, be it because he is the authorised owner or because he has authority to dispose of the item for other reasons.
6. Upon conclusion of the contract the buyer undertakes to take delivery and make a cashless payment for the vehicle within 5 working days. If AUTOonline informs the buyer that AUTOonline has been authorised by the vendor to collect the purchase price, said purchase price must be paid to AUTOonline as the vendor's authorized collecting agent.

 

 

Section 11 - Collection of the purchased vehicles/settlement of sales contract via AUTOonline

 

 

Provided a contract of sale was concluded in line with the above-mentioned provisions, the buyer is obliged to collect the vehicle at his expense and without delay, but no later than one week after conclusion of the sales contract. Since the participating vendors are always very keen on having the vehicle collected from their premises within that same time span, AUTOonline is entitled to collect the vehicle for the buyer and to settle the payment of the purchase price on behalf of the buyer. However, in this case the buyer is under obligation to AUTOonline to collect the vehicle at his expense and without delay and to reimburse AUTOonline the purchase price and any expenses that may have been incurred.

 

 

 

Part 3: Provisions for used car sales contracts

 

Section 12 - Non-warranty clause

 

 

The vehicles offered on the platforms are exclusively used cars, offered for sale to commercial buyers. Unless the relevant offeror / vendor does not stipulate otherwise for individual vehicles, all vehicles offered for sale on the platforms are sold without any warranty.However, this does not apply to claims for compensation under liability for material defects caused by a grossly negligent or intentional violation of the vendor's obligations, or for claims resulting from injuries to life, limb or health.

 

 

 

Section 13 - Deregistration and removal of adhesive films

 

 

The buyer is obliged to deregister the vehicle at his expense within three working days of concluding the sales contract. If necessary the buyer will also remove any lettering on the vehicle, such as adhesive films, within this time limit and at his expense. Upon request by the vendor the buyer must furnish appropriate proof upon.

 

 

 

Part 4: Final provisions

 

Section 14 - Data protection

 

 

The procedures used for the marketing platform and the administration of data are executed in accordance with the data protection regulations. The users know and agree that any data entered by them as well as bids submitted may be disseminated, used, transferred and stored for commercial purposes, provided such handling falls within the scope of general data administration and is handled properly and professionally.Both, users of the platform and AUTOonline, will treat all data with the greatest degree of confidence objectively possible.

 

 

 

Section 15 - Liability

 

1. AUTOonline assumes no liability for the correctness and completeness or the usability of the data entered by the the users. Neither will AUTOonline assume liability for a loss of quality for pictures that the offerors submitted via fax.
2. Furthermore AUTOonline is not responsible for the detailed contents of the sales contracts concluded between the platform users, since the latter are free to determine the contents of the sales contracts themselves by adding appropriate comments on the input screen.AUTOonline shall therefore accept no responsibility for the legal validity of the non-warranty clause ("caveat emptor") in individual cases, as set out in section 12.
3. AUTOonline' contractual and statutory liability for compensation is limited to damages caused intentionally and by gross negligence.In cases of a fundamental negligent breach of contract, AUTOonline's liability shall be limited to predictable, typical damage.
4. The above-mentioned exclusions of liability and restrictions do not apply where AUTOonline has explicitly assumed liability or where damage results from injuries to life, limb or health or where mandatory statutory regulations apply.

 

 

Section 16 - Place of performance and jurisdiction

 

1. These Terms & Conditions and the entire legal relations between AUTOonline GmbH Informationssysteme and the platform users shall be governed by German law.Any application of the UN Convention on Contracts for the International Sale of Goods (CISG) is precluded.
2. The place of performance for services owed by AUTOonline is San Diego (California), shall also be the exclusive place of jurisdiction for any present and future claims resulting from business relations with merchants entered in the commercial register; this includes claims based on cheques or a bill of exchange.The same place of jurisdiction applies if the customer has no general, domestic place of jurisdiction, has moved his place of residence or his habitual abode abroad or if his place of residence or habitual abode is unknown at the time of bringing an action.

 

 

Section 17 - Final provisions, severability clause

 

 

In the event that any individual provisions contained in these Terms & Conditions shall be deemed invalid or unenforceable or incomplete, this shall have no bearing upon the validity of the remaining provisions. Any invalid or unenforceable provisions shall be superseded by such legally valid or enforceable provision which most closely approximate to the economic objective which was pursued by such a legally invalid or unenforceable provision.