General Business Terms and Conditions (GBTaC)
These General Business Terms and Conditions (hereinafter referred to as the “GBTaC”) include the basic rules of using the services of the company APE Ptacek Engineering GmbH, Bayerwaldstraße 9, D-81737 München (hereinafter referred to as the “APE”), as well as the principles of contractual relation between the company APE on one side and the users of the services provided by APE on the other side.
APE operates an international trade platform “car.tv”. car.tv is used to determine the residual value in connection with damage covered vehicles by the compulsory liability insurance and accident insurance, and it involves motor vehicles in particular. On its website, APE also publishes information about used vehicles, prevailingly crashed vehicles, provided by third parties. Based on such information the authorised buyers can file binding bids for the inserted objects.
If an owner wants to sell an inserted object based on the received bids, APE will accomplish the purchase/ sale of the object through its car.tv i.h.s. service centre. For further information please go to: www.cartv.eu.
These GBTaC shall apply without any exemptions to all offering parties and bidders at the platform provided by the company APE and they define all the performances and legal relations of the company APE in relation to offering parties and bidders. They shall apply to all the current and future business relations.
The company APE hereby expressly rejects any GBTaC of their business partners. Different wording of the GBTaC of the company APE shall not be binding even if they have not been expressly rejected in the moment of concluding a contract, or if the business partner uses a different form of objecting. Any different GBTaC of contracting partners and any secondary arrangements shall only apply to the company APE if acknowledged in writing by the company APE.
The company APE reserves its right to change these GBTaC, processes and procedures of the trade platform provided by APE, while the interests of the users shall be taken into account and cost-effectiveness shall be preserved. The company APE shall publish any changes of these GBTaC on Internet and, at the same time, APE shall inform the contractual partners about the changed GBTaC. The changed GBTaC shall come to effect four weeks after the notice of the change and after informing the contracting partners about such change.
§ 1 Registration and Participation
A person shall register and receive a user ID to be able to use the services provided by the company APE. Any natural persons with unrestricted legal capacity or legal entities can be the users.
1. Insurers and their experts, motor vehicle court experts or their organisations, leasing companies, forwarding companies or traders with a trade licence from the field that relates to the car.tv system can be the parties offering motor vehicles. Also private persons can use the car.tv system. The offering parties holding a trade licence will be granted a permit to use the services and the service provided by Global, as well as online data or software needed in order to use the system.
2. Crashed vehicle traders holding a trade licence, vehicle shops, workshops, and other entities holding trade licence from the field related to motor vehicles, and certified recycling companies can be the bidders.
3. If a bidder wants to use the car.tv, he shall obtain the business system/ access to the car.tv and he shall execute the contract through the i.h.s. The buyer shall also provide a digital telecommunication channel (e.g. ISDN or DSL) to interconnect the buyer with the car.tv.
4. If a user wants to use the car.tv system, he shall register and enter complete and correct user’s data, he shall prove that he holds a trade licence from the field of motor vehicles, and SEPA direct debit mandate. Another precondition is that the user must agree with these GBTaC. The contracting partners from the EU countries, except for the Federal Republic of Germany, shall also notify their international VAT ID number.
5. Registration shall be accomplished after the company APE provides the user’s ID and the sign-in data by fax or e-mail.
6. There is no entitlement for registration in car.tv.
7. The bidder shall be obliged to immediately inform the company APE of an expiry of any preconditions for registration in car.tv system, for example if the bidder does not have the trade licence anymore.
8. The bidder shall pay a monthly lump sum according to the pricelist currently in force for using the car.tv system.
§ 2 Processes of the Exchange of Residual Values and the Performance through i.h.s
1. Only used and crashed vehicles, used appurtenances and other used objects shall be offered through car.tv.
2. Buyers can place their bids for the offered objects during the respective bidding period. The bids shall be binding, however there is no entitlement for the bid goods.
3. After the bidding period expires, the company APE mediates the received bids to the respective offering party. Based on the received information, the offering party or the owner of the offered product can decide to accept any bid. Acceptance of such bid gives arise to an effective purchase contract between the offering party and the bidder. All the bids include final prices and the applicable value added tax, if such tax can be reported separately.
4. The company APE is neither the offering party, nor the purchaser of the offered objects, APE is only a broker between the offering party and the purchaser. Thus, the purchase contract arises exclusively between the owner and the bidder, unless agreed otherwise in the contract.
5. The purchase contracts shall be executed only through the i.h.s. system provided by the company APE. This system is free for the sellers and the purchasers undertake to pay the agreed fees to APE according to the current pricelist of the company APE.
§ 3 Obligations and Liabilities of the Offering Party
1. The offering party shall be liable for the fact that the input data provided by him, in particular the ones in photographs, drawings, descriptions and documentation, are free from any third party’s rights, and no trade licence protection rights of third parties are breached. In case the offering party provided data from a third party to the company APE, the offering party shall be liable for the fact that the respective declarations on approval of publishing such data in the car.tv system will be available to the company APE.
2. The offering party shall hold the company APE harmless against any claims arisen due to any legal reasons resulting from any negligent or deliberate breach of any third party’s rights.
3. The offering party shall be liable towards the company APE and towards any acquirer for accuracy of data submitted to the company APE. This applies in particular to the data concerning the condition of individual vehicles and goods, data concerning equipment, appurtenances or any equipment above the standard, for example.
If any third party files a claim against the company APE due to any incorrect or incomplete data, the offering party shall hold the company APE harmless against all such claims.
4. The offering party agrees that the company APE will inform the bidder about the offering party’s name, unless the bidder files any guarantee claims regarding the sold vehicles and goods that are obviously groundless, unless the parties agreed otherwise.
§ 4 Obligations and Liability of the Bidders
1. Bids placed through the car.tv system shall be binding. The bidders shall be bound by the binding period of a bid determined by the offering party. The binding period of a bid shall start lapsing on the day of submitting it. If the last day of the binding period of a bid falls on Saturday, Sunday or any public holiday generally acknowledged in the place of announcement or in the place of performance, the binding period of a bid shall be automatically extended and it shall end on the following business day.
2. Bidders shall be obliged to carefully inspect the placed bids, in particular the accuracy of the offered purchase price. The systems (online application or software) make the bidder confirm the bid several times before sending it to the company APE; at first when placing the bid, then when confirming the bid by ticking the appropriate box and last but not least before sending it, while all the bids will be shown once again to be confirmed.
3. Bids present the final prices and include any possible legal value added tax, if such tax can be reported separately according to the offering party’s data.
4. If a seller’s offer is accepted during the binding period it shall give rise to an effective purchase contract with the offering party. After accepting a bid, the bidder shall pay the bid price to take the vehicle over. The place and the date of taking the vehicle over shall be agreed through the i.h.s service centre or directly with the seller.
5. The purchaser must take over the vehicle purchased through an auction or have such vehicle be taken over in five business days after the submission of complete contractual documentation on the agreed place, at his own expense and by his own transportation vehicle. If the purchaser cannot take the vehicle in such period, he shall bear the costs of letting the vehicle stand from the 6th day after the submission of complete contractual documentation.
6. A written declaration proving the acceptance of a bid shall be binding for the bidder, as long as the company APE or third parties authorised to take the vehicle over were informed in time. This applies in particular if the company APE or any third party was informed about the bid acceptance on the last day of the binding period of a bid; however the offering party could only be informed on the following day.
7. The purchaser or any person authorised to take the vehicle over shall inspect the vehicle at the site and check any visible deviations from the description provided. If the actual condition of the vehicle substantially differs from the description or from the data specified in the vehicle takeover order, the purchaser shall be obligated to immediately inform the company APE. In any case, any possible reasons for filing a complaint shall be recorded in detail in the hand-over protocol, and they shall be documented by attaching a signature and photos, if possible. The forms are to be obtained through the company APE.
8. Complaints shall be filed immediately, i.e. either directly when taking the vehicle over or, if a third party is taking the vehicle over, immediately after such person delivers the vehicle to the purchaser. The other contracting party shall be entitled to inspect the vehicle additionally.
5. A complaint shall be excluded if it is only possible to perform the additional inspection under more difficult conditions (e.g. the vehicle has been sold further meanwhile) or if the costs of such inspection are too high. This shall not apply if the other contracting party provably waived its right for such additional inspection. The complaint shall be excluded if the purchaser or a third party made changes to the vehicle after taking the vehicle over, unless the type and the scope of such changes is negligible.
9. Additional negotiations about the purchase price are prohibited and can be considered as a material breach of the contract. If any claim for the purchase price reduction is filed, it shall be announced to the company APE through the i.h.s service centre.
10. If the purchaser cannot take the vehicle over in five business days after the acceptance of the bid, he shall be obliged to inform the company APE prior to the expiry of such period. Any possible costs of letting the vehicle stand that have arisen due to a late vehicle takeover shall be borne by the purchaser.
11. If a vehicle fails to be taken over in 10 days, APE shall be entitled - regardless of any possible contractual fine - to put the vehicle back to the car.tv system at the purchaser’s expense or to offer it otherwise in order to reduce the damage, after a vain expiry of additional period for the vehicle takeover. Further claims of APE or the seller or third parties for indemnification shall remain unaffected.
12. The purchaser shall be obligated to de-register or re-register the acquired vehicle in five business days after taking the vehicle over, if it had not been done prior to the takeover. In such case the costs of de-registration or re-registration shall be borne by the purchaser, and he shall send the respective confirmation or declaration of de-registration or re-registration immediately to the seller.
13. The purchaser shall be obliged to pay the price of the vehicle without any deductions. If the value added tax can be reported separately, in particular in case of exporting the vehicle within the European Union (EU), the VAT specified in the invoice will be deducted if VAT ID number was specified in the confirmation of delivery within the Community. The purchaser undertakes towards the seller – within such confirmation of delivery within the community - to transport the subject of the delivery/ service to the destination EU country and to tax it there. If this fails to be done, the purchaser commits to immediately inform the seller. Further, in such case the purchaser is bound to send to the seller an acknowledgement of paying the tax in other EU member country or to provide a document on export from the EU. In case of a sale outside the EU, the value added tax shall be invoiced to the purchaser, unless the purchaser provided evidence on import from the EU. If the payment is made by means of an i.h.s service account, in case of exporting a vehicle outside the EU, the paid value added tax shall be retained as a security and it will only be credited to the account and paid after submission of complete export documentation.
14. Any possible bank fees shall be borne by the purchaser.
15. When choosing the payment method, it is necessary to take into consideration the seller’s requests. In principle, the payment can be made in cash at the seller, through the i.h.s. service account or through the financing bank or the producer’s bank.
16. The purchaser shall be available the whole year round during usual opening hours, Monday to Friday, from 09:00 a.m. to 05:00 p.m. In case the purchaser is not available, he shall inform the company APE about his proxy.
17. The bidder is aware of the fact that the placed bids determine the residual value, in particular. To such extent, APE relies on the fact that the accepted bids will be realized for the bid prices. If the bidder breaches his contractual obligations by failing to take the vehicle and/ or to pay the agreed purchase price, the company APE shall be entitled to offer the vehicle again or to cover the difference arisen to the offering party or the owner of such vehicle through another sale, and to claim such difference from the bidder as indemnification. In particular, APE shall be entitled to pay the agreed purchase price to the seller and to let him assign his claim for indemnification to the company APE. This shall also apply to compensation of the costs of letting a vehicle stand arisen by the fault of the bidder.
§ 5 Obligations and Liability of the company APE
1. APE shall be obligated to publish the data provided by the offering party in the exchange of residual values. Such obligation shall not apply if APE is aware of the fact that the data that to be published is not free from the third party’s rights or is in conflict with other legal regu-lations and official provisions.
2. APE shall be obligated to keep the published data in the system until the bid period expires.
3. APE shall hand over the received bids of residual value to the offering party after the publishing period expires, while taking into account the rules of such publishing.
4. The liability by the company APE shall be limited to bad intention and gross negligence, except for the case involving damage to life or to health. In case of a light negligence resulting in a breach of obligations that are not substantial for the contract, and such breach does not threaten the performance of the contract, the liability of the company APE shall be excluded. This shall not apply to a breach of an obligation substantial for the contract, while in such case the liability shall be limited to expectable, direct, average damage typical for the contract.
5. The liability of the company APE shall be excluded in case of complete or partial failure of the transfer capacity or in case Internet provider limits the transfer capacity.
6. APE shall not be liable for accuracy of data provided by third parties or for the fact that such data are free from third party’s rights. This shall not apply if APE learns about inaccuracy of the published data or about the fact that they breach any third party’s rights.
§ 6 Duration of the Contract, Notice of Termination and Temporary Suspension
1. The contractual relation with the company APE shall be concluded for an indefinite time period. It can be terminated either by APE or by the contracting partner even without any reason with a 6-week notice period as to the end of a quarter. A notice of termination shall be in writing. The right for immediate termination due to a serious reason shall not be affected.
2. APE shall be entitled to suspend any user from the car.tv system or to terminate the contractual relation immediately at his own discretion in case of a material breach of the contract. A material breach of the contract includes the following in particular:
a) The user gets into delay with settlement of the due invoices and he fails to settle them also in additional period defined in a reminder.
b) The user does not want to take a vehicle over and/ or to pay for a vehicle and requests additional negotiations about the purchase price without being entitled for any price reduction, or he refuses to take the vehicle over.
c) The user fails to take a vehicle he has acquired in the agreed deadline even in additional period defined in a reminder.
d) Bankruptcy petition for the user’s assets was filed and such petition was not withdrawn in one month after filed.
e) The user stated incorrect registration data.
3. If the user submitted a bid with a binding period that ends after the expiry of the contractual relation, the user shall fulfil the obligations resulting from it.
4. Any possible claim for indemnification shall remain unaffected by the previous provision.
§ 7 Access Variants and Performances by APE
1. car.tv-Web SKY
a. a) APE shall provide all data and objects through WEB Sky. The user connects by access data sent to him for free by e-mail.
b. b) The user starts WEB Sky at his own risk. The user shall be responsible for having a sufficient Internet connection.
c. c) It is prohibited to disclose or to sell the access data to any third parties without an explicit approval by APE.
2. car.tv-Online SKY
a. Alternatively, the user can download the current version of Sky online software. Free service-hotline is available to help the user with installation. The access data to car.tv online Sky will be delivered to the user by e-mail on request.
b. a) Software updates are free for users.
c. b) Installation and commissioning is made at the user’s risk. The user shall be responsible for having a sufficient Internet connection.
d. c) It is prohibited to disclose or to sell the software to third parties without an explicit approval by APE.
§ 8 Payment
1. Invoices by the company APE shall be payable immediately after receipt and no discounts apply to them. If the contracting partner uses SEPA direct debit, APE will withdraw the due sums according to their maturity.
2. If the direct debit fails due to insufficient balance of the specified account or due to other reasons outside the APE’s liability, the related costs (cancelation of the direct debit order) shall be borne by the contracting partner. The participation in the process of placing bids shall be excluded until the due claim is paid.
3. The blockade will be cancelled after the purchaser fulfils his obligations, or as soon as he confirms doing so by appropriate documents (account statement, payment receipt), etc. If such situation repeats or in other serious cases, the right to join the system again shall be excluded.
4. If the contracting partner delays with payment, the contracting partner shall be obliged to pay a late-payment interest amounting to 8 % beyond the basic interest rate currently in force annually (section 247 of the Civil Code). If the interest in accordance with the previous sentence exceeds 8 % beyond the basic interest rate, the contracting partner can prove that the damage caused by such delay has not arisen or have not arisen in such amount. Claiming higher late-payment indemnification is not excluded.
5. 5. If the contracting partner delays with payment, all his payables shall become due immediately.
6. 6. If the financial situation of the contracting partner impairs in a way that threatens the claims of the company APE, APE shall be entitled to claim a payment in advance or an adequate security. This also applies if APE additionally learns about any circumstances that have already existed before the conclusion of the contract. If the contracting partner fails to provide the advance payment or the security in spite of a reminder and reasonable additional period, APE shall be entitled to withdraw from the contract or to claim indemnification for a failure to fulfil the obligations.
§ 9 Import, Export and Use of Software
The contracting partner shall be liable for securing that the respective acts and other provisions regarding his rights to import, export and use the software, are complied with.
§ 10 Refusal to Perform; Set-off; Reservation of the Possibility to Withdraw from the Contract
Any serious impairment of the financial situation of the contracting partner that occurs after the establishment of the business relation or about which the company APE learns after the establishment of the business relation, shall entitle the company APE to refuse providing its performance, in particular to exclude the contracting partner from the car.tv. The contracting partner can prevent such exclusion and such threatening the purpose of the contract by submitting a sufficient security. The same shall apply in case the contracting partner fails to fulfil his obligations towards third parties, e.g. his obligation to make a payment and to take over the acquired vehicles or chattels in time. If the contracting partner fails to provide a security at request and in a reasonable time, APE shall be entitled to withdraw from the contract or to request indemnification. Any set-off by the contracting partner against counterclaims shall be excluded, unless such counterclaims were found beyond any unreasonable doubt and valid. Enforcement of the right of retention by the contracting partner shall be excluded, unless it applies to the same contractual relation or unless such counterclaims were found to be beyond any unreasonable doubt and valid.
§ 11 Storage of Data
APE gathers, processes and uses personal data in accordance with provisions of legal regulations on data protection. The personal data are gathered in order to establish, perform or terminate a contractual relation, if necessary. Depending on the purpose of their use, the data shall be of following types, in particular: offer, contractual, communication and payment data. Due to the technical reasons it may be necessary to store the data at a server of other company belonging to the car.tv Group. The personal data gathered in order to establish, perform or terminate a contractual relation can be submitted to third parties that are the contractual partners of the company APE (e.g. banks), if necessary.
§ 12 Local Jurisdiction of a Court
The place of performance and the place of jurisdiction shall be Munich (Federal Republic of Germany), if the contracting partner is a trader, a public law legal entity or special public funds. However, APE shall be entitled to file an action also in the place of jurisdiction of a general court of the contracting partner.
§ 13 Applicable Law
The contracting relationship between the company APE and the respective contracting partner shall be governed by the law and order of the Federal Republic of Germany, exclusive of the bilateral and/ or multilateral contracts for the purchase of movable chattels, and in particular exclusive of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
§ 14 Final Provisions
If any of these provisions becomes ineffective or invalid, it shall not influence the validity of other provisions. In case any of the provisions of these GBTaC or the contract become ineffective based on a coercive foreign law, at request the contracting partner undertakes to agree on such amendments to the contract and to provide such declarations to third parties that would secure that the impacted provision would remain effective, or to agree with the company APE on new provisions (effective under the foreign law) the economic purpose of which would be as close to the original ineffective provision as possible.
These GBTaC shall come to effect on 01 April 2014