General Terms and Conditions of Auktion & Markt AG for the live auction of
used movable articles, valid as of 4:00 p.m. on 10th October 2008.

 

I. General matters and applicable law

1. User of these General Terms and Conditions of Business

The user of these General Terms and Conditions of Business is Auktion & Markt Aktien-
gesellschaft, a public limited company founded under German law with its head office
at Klarenthaler Strasse 83, 65197 Wiesbaden. The registered seat of the company is
Wiesbaden, where it is entered in the Commercial Register of the Magistrates’ Court of
Wiesbaden under the register number HRB 20968.

 

II. Object of these General Terms and Conditions of Business

The object of these General Terms and Conditions of Business is to regulate the auction
 of movable articles by the user as a company (hereinafter referred to as the ‘Auctio-
neer’) to parties who are also companies or businesspersons, rather than consumers
(hereinafter referred to as the ‘Bidder’).

 

III. General Terms and Conditions of Business of other parties

The following General Terms and Conditions of Business shall also apply for future trans-
actions with the Bidder, in so far as they shall not have been replaced with others by the
Auctioneer prior to the future transactions with the Bidder being notified thereof. Any other
General Terms and Conditions of Business of the Bidder shall not apply, even if not expli-
citly excluded.

 

IV. Applicable law

The law of the Federal Republic of Germany shall apply exclusively to the agreement
between the parties. The UN Convention of Contracts for the International Sale of Goods
(CISG) is hereby expressly excluded.

 

V. Registration and authorization as a Bidder

1. Registration

Bidders may only be companies or businesspersons within the sense of § 14 of the
German Civil Code (Bürgerliches Gesetzbuch - BGB), who acquire the used article with
a view to exercising their trade or profession, when the object of their trade or profession
is dealing in motor vehicles. Consumers within the sense of § 13 of the German Civil
Code (BGB) cannot be Bidders.

 

Prior to participating in the auctions, Bidders must first apply in writing and be registered.
Before being authorized to place bids, Bidders are required to declare and demonstrate
in explicit terms their character as a company or businessperson and as a dealer in mo-
tor vehicles. The nature of the demonstration required shall be determined by the Auctio-
neer. In the case of German Bidders, the following documents are required in all cases:
a copy of the business registration (Gewerbeanmeldung), for businesspersons and
companies entered in the Commercial Register, the relevant extract from the Commercial
Register, and a copy of the personal identity document of the proprietor of the business
(or of the CEO or Managing Director entered in the Commercial Register). In addition, the
Bidder shall also return the signed confirmation of registration, together with the agree-
ment on the responsible court of law and the acknowledgement of the General Terms
and Conditions of Business in accordance with section 2. In the case of foreign Bidders,
certified translations of the foreign language documents listed are required. Furthermore,
foreign Bidders with a head office in a state of the European Union and German bidders
are additionally required to provide a valid value added tax identification number and to
return the signed agreement on the choice of applicable law and responsible court of law.
Bidders are required to immediately notify the Auctioneer in the event of any changes to
their (company) information. Notification shall be provided in writing and with the enclo-
sure of the document stating the change of address of the business.

 

2. Authorization as a Bidder

If the Bidder has demonstrated that they are a company or businessperson in accor-
dance with the terms defined above, they shall receive a confirmation of registration from
the Auctioneer. This will be handed over to the Bidder at the auction centre or sent to the
Bidder by fax or e-mail, and will include the bidder number assigned by the Auctioneer.
With the allocated bidder number, the Bidder will be able to participate in auctions or-
ganized by the Auctioneer throughout Germany.

 

VI. Conclusion of contracts

1. Invitation to place bids

The Auctioneer advertises movable articles for auction in auction catalogues. Each mo-
vable article in the auction catalogue is given a starting price. In addition, the auction ca-
talogue also states for each movable article whether it is a new or a used article, and
whether, in exceptional cases, the auction is to be carried out as a ‘net auction’, that is
to say, the hammer price is to be understood as the highest bid with the addition of sta-
tutory value added tax.

 

2. Bidding deadline, bids, binding nature of bids

The bid is accepted if it is called out three times without any higher bids being placed.
The auctioneer is entitled to turn down a bid or to accept it under reserve. If more than
one Bidder places the same bid at the same time and no higher bids are placed after
it was called out three times, then a draw may be used to decide which bid is accepted.
If it is not possible to immediately agree on which bid is to be accepted, then the used
article shall continue to be auctioned. If a higher bid is placed on time and mistakenly
overlooked or other doubts exists with regard to acceptance, then the Auctioneer is en-
titled to withdraw acceptance and re-offer the used article for auction.

 

The acceptance of the bid obliges the Bidder to purchase the item and to pay the ham-
mer price.

 

If the bid is accepted under reserve, then the bidder shall remain bound to their bid for
up to 48 hours. If the Bidder does not receive acceptance without reserve within the spe-
cified period, then they are no longer bound. If the Auctioneer accepts the bid under re-
serve, then they may atany time and without consulting with the reserve Bidder, accept the
bid of a limit Bidder or sell on the open market. It is not possible to accept any more bids
after the acceptance of the highest bid.

It is also possible to place bids prior to the auction. These bids must be in writing and
must be submitted at least two days before the auction.

 

3. Acceptance of the bid

The Auctioneer shall be entitled to turn down bids of the Bidder that are lower than the
starting price (displayed as ‘under reservation’ (‘im Vorbehalt’). The Auctioneer may also
turn down bids above the starting price, and shall not be obliged to accept bids made by
the Bidder. The Auctioneer will accept the highest bid, in so far as they do not avail them-
self of the right to decline to accept bids. The Auctioneer shall decide, within the period of
48 hours, whether they will accept the bid of the Bidder. The highest bid is accepted when
the hammer is struck three times.

 

4. Hammer price

The hammer price corresponds to the highest bid of the Bidder and shall include the ap-
plicable VAT at the current statutory rate as defined in the Federal Republic of Germany,
in so far as the auction catalogue does not expressly advertise the movable article in
question as a ‘net auction’. The Auctioneer shall send German Bidders a properly made
out invoice, showing the net hammer price and the clearly indicated VAT amount at the
current statutory level. This shall not apply if the movable article in question is subject to
differential taxation (Differenzbesteuerung) in accordance with § 25a of the Value Added
Tax Act (Umsatzsteuergesetz - UStG).

5. Bidders from EU states other than the Federal Republic of Germany

Prior to placing any bids for articles subject to regular VAT (Regelbesteuerung) in accor-
dance with the Value Added Tax Act (Umsatzsteuergesetz - UStG), Bidders from EU states
other than the Federal Republic of Germany must notify the Auctioneer in writing of their
valid international VAT identification number. Furthermore, they shall guarantee in a written
communication to the Auctioneer that the sold article will be immediately conveyed to an-
other state of the EU outside the Federal Republic of Germany. If these conditions have
been fulfilled, no German VAT will be payable on the net hammer price and the hammer
price will consequently consist only of the net hammer price without VAT.

 

6. Bidders from third countries

Bidders from non-EU states (third countries) must pay the Auctioneer a security deposit in
addition to the hammer price of the movable article in question: The security deposit shall
be equal to the amount of the currently applicable VAT rate as defined in the Federal Re-
public of Germany. This security deposit will immediately be reimbursed to the Bidder, as
soon as it shall have been shown beyond doubt that theacquired movable article, which is
subject to regular VAT (Regelbesteuerung) in accordance with the Value Added Tax Act
(Umsatzsteuergesetz - UStG), has left the EU. For this purpose the Bidder shall promptly
submit an official export declaration from the EU border customs office to the Auctioneer.
Upon the receipt of confirmation, the security deposit will immediately be reimbursed to
the Bidder. The claim to repayment of the security deposit may only be assigned with the
consent of the Auctioneer.

 

VII. Auction fees

1. In addition to the hammer price, the Bidder shall also be charged a contract handling
fee. In the case of used articles that are subject to differential taxation (Differenzbesteue-
rung) as defined by § 25a of the Value Added Tax Act (Umsatzsteuergesetz - UStG) of the
Federal Republic of Germany, the contract handling fee shall be a one?time amount equal
to 2.618% of the hammer price, however a minimum fee of EUR 220.15 will be charged.

 

2. In the case of all deliveries within Germany that are subject to regular VAT (Regelbe-
steuerung) in accordance with the Value Added Tax Act (Umsatzsteuergesetz - UStG), and
where differential taxation (Differenzbesteuerung) as defined by § 25a of the Value Added
Tax Act (Umsatzsteuergesetz - UStG) of the Federal Republic of Germany does not apply,
the contract handling fee shall be a one-time amount equal to 2.2% of the gross hammer
price with the addition of VAT at the current statutory rate, however a minimum fee of EUR 
185.00 with the addition of VAT at the current statutory rate will be charged.

 

3. The handling fee for the contract is payable immediately with the hammer price.

 

VIII. Cost of the payment transaction and fulfilment

All foreign Bidders shall be liable for any bank charges that arise for the international
transfer of funds. The payment of the hammer price and the contract handling fee shall
occur as a cashless bank transfer. If in special cases the acceptance of cheques or bills
of exchange shall have been agreed, this shall only be for the sake of fulfilment and not
as a substitute for payment.

 

IX. Obligation of advance payment

After the conclusion of the contract, the Bidder shall be obliged to pay the hammer price
and the contract handling fee in advance. The Bidder shall only receive the acquired ar-
ticle after the complete fulfilment of their payment obligations.

 

X. Transfer of risk, collection and transfer of ownership

1. Transfer of risk

The risk of any accidental deterioration or accidental destruction of the used article
shall pass to the Bidder upon acceptance of the bid.

 

2. Collection

Immediately after the payment of the hammer price, the Bidder will receive a note autho-
rizing collection of the article or authorization by fax or phone. On presenting this note of
authorization the Bidder shall receive the acquired article at the auction centre. Acquired
articles are to be collected by the Bidder at their own cost from the location of the article
(auction centre).

 

XI. Right of retention of the Auctioneer

The Auctioneer shall be entitled to refuse to issue the collection authorization and to
hand over the acquired article, as well as the relevant documents, until such time as
the Bidder shall have fulfilled all of their obligations to the Auctioneer. This also applies
if these obligations have arisen from other auctions and/or other legal relations between
them.

 

XII. Withdrawal from the contract, rights in case of default of payment, offsetting
rights and rights of retention

1. Withdrawal

The Auctioneer shall be entitled to withdraw from the contract if the Bidder has made
incorrect statements about their creditworthiness or discontinued their payments, or
if insolvency proceedings have been filed or opened on their assets. The Auctioneer
shall also be entitled to withdraw from the contract if they are unable to fulfil it. If before
the transfer of risk to the Bidder, the acquired article shall be damaged or destroyed,
then the Auctioneer shall be entitled to withdraw from the contract, provided that the
Auctioneer immediately notifies the Bidder of the damage or destruction, and promptly
reimburses the paid hammer price to the Bidder.

 

After the withdrawal from the contract and the repayment of the hammer price, neither
party shall have any further claims to the other party.

 

2. Damages arising from default of payment

The first reminder establishing a situation of arrears in payment shall be free of charge.
The Bidder shall be charged EUR 15.00 for the second reminder, unless the Bidder
shall be able to demonstrate that the Auctioneer did not incur any expense or did not
incur any expense to this amount.

 

3. Interest on arrears

In case of arrears in payment, the Auctioneer shall be entitled to call for payment of in-
terest on arrears to the amount of eight percentage points higher than the basic inte-
rest rate that applies at the time. The Auctioneer reserves the right to charge higher
interest on other legal grounds. The Auctioneer’s right to assert further indemnification
claims remains unaffected.

 

4. Offsetting rights and rights of retention

The Bidder shall only be entitled to offsetting rights or rights of retention in cases
where their counterclaims have been established at law, are uncontested or have
been acknowledged by the Auctioneer.

 

XIII. Reservation of the right of modification

1. All articles that are to be auctioned may be viewed and inspected before the auction
during the specified times. The statements made about the features of the used arti-
cles that are to be auctioned and the information in the auction catalogues have been
compiled by the Auctioneer to the best of their knowledge and belief. Inessential devia-
tions in the supplied article shall be accepted by the Bidder. This applies, for example,
in the case of lesser specifications. Superior specifications are in all cases to be con-
sidered as an improvement in the supplied article.

 

2. The statements made in the auction catalogues do not represent an agreement that
the article contains certain properties, nor is any kind of guarantee given or assurance
made that the article is functionally effective for any specific purpose.

 

XIV. Rights and liability in respect of defects in quality and title

1. Defects of quality

In the case of second-hand articles, all claims based on defects in quality or title are
excluded. In the case of new articles, the Auctioneer hereby assigns any claims for de-
fects in quality to which they may be entitled against the manufacturer of the articles
(and against the Auctioneer’s supplier) to the Bidder. The Auctioneer will however ad-
mit liability in a subsidiary sense for defects in quality in accordance with the sales law
of the German Civil Code (Bürgerliches Gesetzbuch - BGB), if the manufacturer of the
articles (or the Auctioneer’s supplier) should fail to satisfy the Bidder’s claims in full
based on assigned rights.

 

2. Liability based on culpability in contractual negotiations and liability in tort

Any liability based on culpability in contractual negotiations or unauthorized actions is
hereby excluded. Any liability for gross negligence of vicarious agents is also excluded.

 

3. Limitation of all exclusions of liability

The aforementioned exclusions of liability do not apply for damages resulting from the
loss of life and limb or damage to physical health, which result from a negligent breach
of obligation on the part of the Auctioneer, or from a deliberate or negligent breach of
obligation on the part of the Auctioneer’s statutory representatives or vicarious agents;

other damages resulting from a gross negligent breach of obligation on the part of the
Auctioneer, or a negligent breach of obligation on the part of the Auctioneer’s statutory
representatives or vicarious agents; damages caused by vicarious agents, in so far as
these do not represent a breach of material contractual obligations.

 

4. Limitation of liability

In cases where liability cannot be excluded, liability is restricted to those damages that
typically arise in this nature of transaction.

 

XV. Demurrage Charges

The Auctioneer shall implement a demurrage charge of EUR 10.00 plus the applicable
statutory VAT as of the first day of delayed collection. As of the fourth day of delayed col-
lection, the demurrage charge will be EUR 50.00 plus the applicable statutory VAT.

 

XVI. Limitation

The period of limitation is one year from the statutory commencement of the limitation
period. The shortened limitation period does not apply for the claims stated under sec-
tion XIV. number 3.

 

XVII. Claims to indemnification by the Auctioneer

1. The right of the Auctioneer to lay claim to indemnification is based on statutory
stipulations, in so far as nothing to the contrary is specified in these General Terms
and Conditions of Business.

 

2. If the Auctioneer calls for indemnification in place of performance, and if the acquired
article has not yet been delivered or is taken back by them, they shall be entitled without
the need of special proofs to a one-time amount equal to 8% of the hammer price in the
way of indemnification. The Bidder retains the right to demonstrate that the damages in-
curred were less than those represented by the one-time amount referred to above. If
the Auctioneer can demonstrate that more extensive damages were incurred, then they
may call for indemnification of these as well.

 

XVIII. Retention of title

All used articles shall remain the property of the Auctioneer until such a time as the Bid-
der has satisfied all of the claims to which the Auctioneer is entitled. The Bidder is not
authorized to pledge or assign the movable article. The Bidder is entitled to sell the
used article to third parties in normal business transactions. The retention of title shall
then be assigned to the processed articles and, in the case of resale, to the claim for
the payment of the purchase price (extended retention of title).

 

XIX. Severability clause

If individual sections of these General Terms and Conditions of Business or parts there-
of become ineffective, this shall not affect the effectiveness of the remaining sections or
the validity of the contract between the Auctioneer and the Bidder.

 

XX. Prohibition of assignment

The rights of the Bidder derived from the contract that has been concluded may not be
assigned to third parties.

 

XXI. Place of fulfilment and jurisdiction

The place of fulfilment and responsible court of law, for both parties, shall be the registe-
red seat of the Auctioneer. This shall also apply for legal proceedings in connection with
transactions involving cheques and bills of exchange. The same shall apply for persons
that do not have a responsible court of law in Germany or persons who move their domi-
cile or usual place of residence outside Germany after the conclusion of the contract or
whose domicile or usual place of residence is unknown at the time that legal procee-
dings are filed for.

 

Amended on 10th October 2008

___________________________________________________________________

Terms of condition (01.04.2007)

The auction will be carried out pursuant to commercial law by order of the supplier.
For tax purposes, delivery will be made either on account of Auktion & Markt AG
(who ordered the goods itself) or on behalf and on account of its supplier.
If delivery is made on behalf and on account of its supplier, this will be mentioned
in the invoice separately and the supplier will also invoice the highest bidder direc-
tly; Auktion & Markt AG will then only invoice the highest bidder for its services
(commission). Making a bid will imply acceptance of the following conditions of the
auction, which will also apply correspondingly to the direct sale of goods offered for
auction.

1. The auction is conducted voluntarily on the basis of the sellers’ orders.