General Terms and Conditions of DELCA Ltd
for using online Multi-Auction Platform www.exleasingcar.de
Hereinafter referred to as DELCA or “User”
Last status: 24-10-2013
The user of the present General Terms and Conditions is the company DELCA Ltd, address of working place Siemensring 41, 47877 Willich, registered in the Register of Legal Entities of Krefeld Area Court No. HRB 14431. It is a limited liability company under the law of Federal Republic of German, and its office is located in Willich. For operating the company uses the website exleasingcar.de.
- Activity of the Company
DELCA implements only a legal activity of selling the used cars (hereinafter, the abbreviation shall be used) on website exleasingcar.de in the following forms:
The user of the present General Terms and Conditions DELCA is also the seller and offers the used vehicles, however, it is not a mediator for direct sales among initial sellers, suppliers and customers.
- Sales at fixed price,
- Open sales events/auctions, and
- Closed events / auctions
exclusively for commercial Purchasers, not for final users (private persons, non-business persons, consumers).
Being a seller, it accepts a bid of customer and decides on conclusion of agreement. DELCA undertakes to organize the selling events on website exleasingcar.de and to issue invoices. Limitations of company activity:
DELCA does not provide any public services, required for vehicles, for example, repair, maintenance works, installation, upgrade, etc. DELCA services are limited to selling the used vehicles to commercial Purchasers.
DELCA does not offer any B2B platform for reverse auctions, as well as does not undertake, and does not offer any platform for power shopping and similar online auctions.
- Field of Application
- The subject of the present General Terms and Conditions is the coordination of sales of vehicles to entrepreneurs (§ 14 BGB – German Civil Code). The sales take place only on website exleasingcar.de, used by the seller. These conditions make a legal basis between the Parties of the Agreement (the Seller and the Purchaser). Legal purchase deals between parties of agreement (DELCA and the Purchaser) are implemented, following the procedure of proposing and accepting within the scope of §§ 145 – 151 BGB rather than by paying extra pursuant to § 156 BGB.
- In the later, the Cars, Vehicles, Trucks, mentioned in further statements of General Terms and Conditions, and other mobile property in sale are referred to.
- These General Terms and Conditions are valid exclusively to entrepreneurs, i.e., natural or legal persons, or suable associations of persons, which the business relationships will be concluded with, which are engaged in business or in individual professional activity (see Paragraph 1 of Article 310 §§ 14 BGB ), and legal entities of public law and of public legal property.
- The present edition of General Terms and Conditions is valid. General Terms and Conditions are valid to all current and future deals between the Seller and the Purchaser, unless DELCA decides to apply other conditions to purchase before concluding the deals in case of individual events.
- The conditions, deviating or conflicting with the General Terms and Conditions of deal shall not be considered as the integral part of the Agreement, unless their validity is confirmed in a written form.
- The Terms and Conditions are valid only for cars and other services, provided by DELCA on website exleasingcar.de, irrespective of whether the deal is concluded directly online, or not. The presented conditions are also valid when they are transferred by a telephone or fax.
- The present Terms and Conditions of deal are uploaded in printable form on website exleasingcar.de used by DELCA. They explain the activity field of DELCA. The legal validity of these Terms and Conditions shall be accepted by the Purchaser with its first registration on the website exleasingcar.de by familiarizing with the terms and conditions published on this website or by logging into the website, as well as by sending the confirmation, regarding the Terms and Conditions.
Registration and Login In/Withdrawal of the Purchaser
- The Purchaser may only use the services of DELCA after registering on the website exleasingcar.de, used by DELCA. Registration is free of charge and available by opening a user account and consenting to the present General Terms and Conditions. It is impossible to register in DELCA office.
- When registering, a Purchaser/user selects a user name and a password. A user name must not infringe the rights of Third Parties, in particular, the rights of name and trademark. A password must be kept in secret. The user account is not transferable. A Purchaser / user is responsible for all cases of improper usage of name and password.
- The requested registration data should be filled fully and correctly. Data changes that occur after initial registration by the Purchaser / User must be notified about immediately.
- A Purchaser / user is not allowed, in any other way, to copy, distribute or reproduce content which is on the website exleasingcar.de without permission. The same applies to usage or reproduction of website layout (exleasingcar.de), this requires a written consent.
- DELCA is entitled to block user account at any time, especially, if the Purchaser / User violates the present Terms and Conditions. A Purchaser / user may terminate their account without prior notice by sending the request in writing by post or by email to email@example.com.
- Access and Revocation of Purchaser Category
- Consumer/User, under § 13 BGB, cannot be a Purchaser.
- The access to DELCA sales is given exclusively to entrepreneurs, i.e., natural or legal persons, or suable associations of persons, which the business relationships will be concluded with, which are engaged in business or in individual professional activity (see Paragraph 1 of Article 310 §§ 14 BGB), and legal entities of public law and of public legal property.
- A Purchaser at registration and before the first admission to place a bid must present a valid identity card or passport, as well as a business license or a suitable proof of his independent professional activity and to demonstrate his entrepreneurial status. The entrepreneurs and companies, included into the Register of Legal Entities, must present the extract from the Register of Legal Entities and a copy of identity card of business owner/General Director/Chairman or other authorized person. Representation title requires a written Power of Attorney. DELCA is entitled to require the proof of business activity at any time.
- A Purchaser with a registered office within the territory of the Federal Republic of Germany has additionally specify the Tax Payer Code and/or VAT identification number during registration process, at the latest before placing a bid. By specifying the tax payer’s code and VAT identification number, a Purchaser confirms that the contractual relations with DELCA belong to its company, paying sales taxes.
- A Purchaser, established in EU countries, shall specify a valid VAT number at the moment of registration or before placing a bid.
- Purchasers with registered office in non-EU countries at their initial registration and each time, when DELCA requests, must submit the certificate issued by the competent financial authority, regarding their business status. The date of issue of this certificate may not be older than 12 months, therefore, after this period, an updated certificate is necessary. The information in this certificate must specify the full name, office and address of the company, details of the type of business activity of Purchaser, the address of the competent financial authority, and tax payer’s number, valid in the country, and compulsory payment of sales taxes.
- A Purchaser, located outside the territory of the Federal Republic of Germany, must also submit the certified translations of the aforementioned documents of foreign language in German language or English language.
- As part of the registration process at exleasingcar.de., every Purchaser confirms that the contractual relationships with the DELCA belong to its company, paying sale taxes.
- The above mentioned evidencing certificates and other documents are submitted
- and a Purchaser accepts the present Terms and Conditions and written consent is sent to DELCA, a Purchaser will be given the access. There are no requirements for giving access to Purchasers.
- DELCA reserves the right (next to the acceptance of the present Terms and Conditions) for conclusion of an individual agreement on the conditions of use of the trading website exleasingcar.de as a prerequisite for the use of the platform.
- Registration confirmation will be sent to Purchaser via email or by notice in writing, it is also given a customer number. By using a selected user name and password, a Purchaser can log into the portal exleasingcar.de
- Each Purchaser must immediately notify in writing about the changes in the data that it has entered.
- Cancelation and Termination of Purchaser Account
- Recognition of Purchaser status or the fact of granting the Purchaser status can be cancelled by DELCA without giving any reasons, in particular, if a Purchaser:
- fails to meet the requirements under § 14 BGB or is named as “consumer”
- false data are identified during registration or in evidencing documents
- conflicts with the present or amended Terms and Conditions of DELCA
- violated the present or amended Terms and Conditions of DELCA
- failed to implement the Purchase Agreement or fails to fulfil its obligations
- the basis is Purchaser’s insolvency (there are insolvency proceedings or rejected for lack of assets)
- DELCA services are abused
- a Purchaser affected or damaged the functioning of website exleasingcar.de
- In case of one or more of the above reasons DELCA is entitled to terminate the user account and Purchaser’s customer number.
- A Purchaser has the right to unsubscribe at any time by writing to DELCA. In addition, a Purchaser is entitled to cancel its registration in writing within 2 weeks, if it has not taken part in any sales events.
- DELCA is entitled to exclude the Purchasers without giving any reasons.
- The customer data are collected and protected by DELCA under the statutory provisions.
- DELCA is entitled to collect, store, process and use for its own purposes the personal data, related to the business relationship between the customer / user and DELCA, according to laws, in particular, data protection regulations.
- A Purchaser / user agrees that data to third parties should be disclosed in case it is necessary to use of services, preparation and execution of agreements, or seeking to preserve the interests of third parties.
- DELCA is also entitled to transfer these data to the companies DELCA cooperate with, taking into account the data protection regulations.
- After completion of the admission to the sales platform exleasingcar.de and after full implementation of all existing legal relationships in connection with the sales platform, a Purchaser / user is entitled to request to delete the stored data, according to statutory provisions.
Conclusion of Agreement
- Fixed Price Proposals
- For vehicles with fixed price a fixed price is provided to cars.
- A Purchaser is thereby invited to submit a binding offer to purchase by pressing the button “Buy now”.
- A Purchaser is bound by its offer for a period of three working days after submission of its purchase request.
- With the acceptance of the offer of Purchaser by DELCA, it shall be considered that a Purchase Agreement is implemented.
- Conclusion of Agreement during Open Sales Event (Auction)
- There are used cars and accessories shown together with specified initial price and number of submitted proposal in electronic sales catalogue on exleasingcar.de, used by the DELCA. By uploading the electronic catalogue on website exleasingcar.de, DELTA is looking for potential Purchasers, who would make an offer.
- The deadline to place a bid by Purchaser on exleasingcar.de shall be defined for each auction individually. It starts again with every new proposal. If no further bids are placed by Purchaser, the available period ends with the expiration of the deadline set by the system.
- DELCA reserves the right to terminate the deadline before expiration under special circumstances.
- In case of the so-called open ascending price auctions the highest bids of other Purchasers are visible at that moment. By entering a figure and pressing the button “Confirm a bid”, a Purchaser places its bid. Bids can be placed in a stepwise bidding manner in automatic bidding from € 100 (fixed increment value in binds), where the maximum bid is not visible for the other potential Purchasers. The placed bid cannot be withdrawn during open auctions. At the end of open auction, a Purchase Agreement is implemented, if the highest placed bid is accepted.
- A Purchaser will be notified of the acceptance of its bid by e-mail. No separate statement of acceptance is required on the part of Purchaser.
- With the notice of acceptance of bid, sent by email, the purchase agreement between Purchaser and DELCA shall be concluded (offer and acceptance under § § 145-151 BGB).
- The use of another user access for the submission of bids by the same Purchaser leads to its exclusion.
- In case of the so-called closed auction the bids are not visible for other potential Purchasers and a Purchaser offers only its price. At the end of “closed auction”, the highest bid is announced. If this offer is accepted, a Purchaser is informed about the highest bid price by DELCA. Until the deadline of closed auction, a Purchaser can change or cancel its bid.
A right of granting access to the closed sales event (auction) does not exist. Furthermore, the foregoing and following regulations apply.
- Additional Provisions
- Statements by third persons, independent experts, e.g., DEKRA, TÜV, etc., regarding the condition of vehicles or their accessories, are specified next to respective offer number. These are decisive in the case of deviations from the general descriptions of the vehicle in Terms and Conditions.
- Auctions for damaged cars will take place in the form of open and closed auctions. The technical condition of the vehicle is unknown and the residual value is not explicitly determined, but can be decided on from the enclosed images of the vehicle. However, the auction for damaged car requires all necessary registration documents. The same applies to vehicles with technical defects. Technical defects of the vehicles are documented in description of the vehicles.
- The information on the individual sales events on website exleasingcar.de gives no declaration of warranty, no promise of specific use, no combination characteristics of the goods to be purchased. Description of condition or installation features is prepared, following the best of our knowledge and belief. Additional equipment, given by Purchaser, shall always be deemed as improvements and minor deviations of a delivered vehicle or accessory.
- If a Purchaser is registered, the results of sales event shall appear under heading “Bids – results”.
For all sales events the Agreement concluded is subject to the correct and timely delivery by Supplier / leasing bank. This applies only to the case of failure to deliver, caused by obstacle out of our control, especially when a congruent hedging transaction with the supplier / leasing Bank is concluded. A Purchaser will be informed immediately of the unavailability of the service. If it was paid, the money shall be immediately refunded for the service.
Purchase Price, Agreement Implementation Costs, Payment Methods
- Purchase price and purchase card
In case of sales events with a fixed price, a fixed price shall be equal to the previously established price plus the agreement implementation costs, separately listed on exleasingcar.de
- In case of open and closed sales events the purchase price shall be equal to the highest bid of Purchaser, which was accepted by the Seller, plus the agreement implementation costs, separately listed on exleasingcar.de
- In case of all sales events the seller shall issue an appropriate invoice, specifying the net selling price and publicly reported sales tax, determined by laws, to Purchasers with proven office in the territory of the Federal Republic of Germany and German VAT identification number. If it is a sale, which is subject to differential taxation according to § 25a of the German VAT Law, the preceding sentence shall not apply.
- Delivery of goods to EU countries
A Purchaser without proven office in the territory of Federal Republic of Germany and without German VAT identification number, which has its office in another Member State of the European Union and has a valid and proven VAT identification numbers that was issued to it in its home country, also must confirm in writing to the DELCA that the car purchased will be immediately delivered to another EU member state outside the territory of the Federal Republic of Germany). A Purchaser will receive the invoice, including German VAT and agreement implementation costs. If a Purchaser can fully demonstrate that it meets the requirements of German Sales Tax Law, it will receive the invoice, including a purchase price and agreement implementation costs without taxes. The payment of the invoice shall be made from the bank account, opened in the name of Purchaser.
- Export to the so-called “third countries”.
A security deposit or a security deposit in the amount, corresponding to the sales tax rate in the Federal Republic of Germany, must be paid by Seller, if a Purchaser is not from Germany and not from EU. If the conditions of the German VAT Act request so, this deposit will be paid to Purchaser immediately. For this purpose, the original export declaration with the seal of EU customs office shall be submitted to Seller. This claim by Purchaser for payment of the deposit is possible only with the consent of Seller.
- Agreement implementation costs
The agreement implementation costs shall be paid by Purchaser in addition of Purchaser price. They are specified on website exleasingcar.de.
- Purchaser’s obligation to advance payment – payment methods
The purchase price and the agreement implementation costs shall be paid by the Purchaser. The goods shall be handed over only when a customer fulfils all payment-related obligations.
In all cases, the payment by the Purchaser shall be made via bank transfer to the account of the Seller. The Seller is not obliged to accept checks or bills. In case of the Seller accepting a bill, discount and collection charges shall be borne by the Purchaser.
- Electronic invoices
The Seller is entitled to submit electronic invoices. A Purchaser agrees to the sending of electronic invoices to its email address. The Purchaser is obliged to verify the signature of the electronic invoice.
- Transfer of risk – delivery
- A Purchaser has to pick up the purchased item at its own cost in Willich / Germany.
- The transport and shipping costs are included in invoice, while its risk is assumed by Purchaser. The risk of accidental loss and accidental deterioration of the motor vehicle, while transferring, ordering a delivery with delivery of goods to carrier, freight forwarder, or just transferring the motor vehicle for shipment to other person or institution, shall be assumed by Purchaser. If the motor vehicle is handed over to a transport company, a vehicle transfer note must be given for specifying the observed damage.
- After handing over the vehicle to Purchaser, it is obliged to immediately, within 24 hours, list the defects of vehicle or accessories or the missing accessory. Telephonic or oral objections will not be considered. If handed over to a transport company, the notice period is 48 hours, but not more than 24 hours after delivery of the vehicle or accessories by the transportation company. Subsequent notices of defects cannot be considered and do not exempt a Purchaser from its obligation to make the full payments.
- Ownership of the purchased vehicle and the accessories shall pass to Purchaser only after complete payment of purchase price to the Seller’s account, and only after vehicle documents are handed over to Purchaser or its authorized third person. If the vehicle documents or parts thereof cannot be handed over, the Seller shall send them by mail or, upon written request, by courier. The risk of loss of vehicle documents in these cases shall be borne by Purchaser.
- Title retention clause
The used vehicles shall remain the property of the Seller until a Purchaser meets all requirements, set by the Seller. The pledge or transfer of ownership of the vehicles of Purchaser is not allowed. If a Purchaser sells the purchased item, Seller’s title shall also extend to the claim of purchase price (extended title retention).
- Compensation of damage
A Purchaser has the right to the compensation of damage, only if its counterclaim is legally established or recognized by the Seller.
- Retention right by Purchaser
A Purchaser can exercise this right, only if its counterclaim is based on the same contractual relationships and is legally established.
- Retention right of the Seller
If a Purchaser fails to fulfil its payment obligations to Seller, DELCA may refuse to hand over the vehicle and the vehicle documents until these are met. The payment obligations thereby might also include those that have arisen from other sales and / or legal relationships.
- Payment and Payment Delay
A purchase price and agreement implementation costs shall be paid after receiving a preliminary statement. If a Purchaser has not paid the purchase price and agreement implementation costs in full, delay shall be started to be calculate after 5 days. The delay requires no advance warning (§ 286 BGB).
In case of delay in payment, the seller shall be entitled to cancel delivery, even it has already been confirmed, and the seller has a right of deduction.
In of delay in payment, the seller shall be entitled to charge the interest for default, i.e., 8 percent from base rate interest, when there are reasons to claim about higher damage to seller. A Purchaser is entitled to prove that the seller had no or only minor damage caused by delay.
- A Purchaser has the right to withdraw from the purchase agreement in accordance with statutory provisions, if DELCA as Seller or leasing bank is in breach of obligations as seller. A Purchaser must explain to DELCA, whether it withdraws from the purchase agreement because of the breach of duty by DELCA or leasing bank, or whether it is related with delivery.
- DELCA is entitled withdraw under purchase agreement, if the vehicle is damaged before passing the risk to Purchaser, and shall immediately inform a Purchaser, and reimburse the paid purchase price. Further reciprocal claims after withdrawal are not possible.
- DELCA is also entitled to withdraw from the purchase agreement, if the vehicle goes down or is damaged after passing the risk, but before transfer possession to Purchaser as a result of actions of leasing bank. In this case, DELCA shall immediately demonstrate the loss or damage to Purchaser and reimburse the paid purchase price. No claims are possible between Purchaser and Seller after this type of withdrawal.
- Liability arising from fault in agreement negotiations and tort liability. A liability, arising due to the fault of the seller in agreement negotiations, and illegal actions (negotiations), is excluded.
- Liability for legal drawbacks and defects
- Liability for legal and factual defects is excluded for used items.
The used cars and accessories are sold in the condition in which they were on the moment of concluding the purchase agreement with DELCA on exleasingcar.de. The mileage and the wear, corresponding the age of car, are visible.
- In case of new vehicles, the Seller, who received a claim from Purchaser, regarding the defects, shall refer its claims to the manufacturer of the goods and possible suppliers. According to the purchase regulations of the German Civil Code, the Seller is secondarily liable for legal and factual defects, provided that the manufacturer of the goods or the supplier of the Seller failed to undertake a full liability for legal and factual defects.
- Liability in case of delay provision of service
The seller shall not be liable for delay in provision of service.
- Liability in case of delay provision of service if provision is impossible.
The Seller shall not be liable for delay in provision of service, if its provision is impossible.
- Restriction of aforementioned liabilities. The restriction of disclaimer of aforementioned liabilities (regarding legal drawbacks and defects, tort liability, in case of fault during negotiation, as well as due to delayed delivery and for impossibility to provide a service) shall be applied to Seller in the following cases:
- damage resulting in threat to life, body or health injury, caused by an intentional or negligent breach of duty by Seller, his/her legal representative or agent
- intentions or malice
- warranty is explicitly stated by seller
- deliberate damage or damage through gross negligence
- damage arising in case of breaching the essential contractual obligations
- Liability for using the services provided by Seller
The Seller shall not be liable for damage to Purchaser or any third party, arising in connection with the use of services of DELCA, especially for technical defects beyond its control, which lead to failure to make a timely delivery or for failure to deliver.
- Manufacturer's warrantie
The warranty of the manufacturer does not concern the Seller.
- Claim for damages of the Salesperson.
A claim for damages is entitled to the salesperson according to the legal regulations, as far as these General Terms and Conditions does not indicate a differently.
If the Purchaser is responsible for the damage, to DELCA he has to pay 20% of the purchase price but not less than € 500.00.
- Statute of limitations.
The statute of limitations is one year from the statutory limitation period and begins for all claims of damages from the date of the purchase contract. This excludes the validity of claims that are under the foregoing provisions showed in the Annex G.V.
- The present general terms and conditions is a subject to the law of the Federal Republic of Germany.
- Place of fulfilment and Court of jurisdiction is Willich.
- If the buyer is merchant, legal entity of the public right or public special estate, exclusive area of jurisdiction for all disputes of the Agreement is our registered office in Willich.
- The rules of private international law of the Agreement of the United Nations for the international sales of goods (CSIG - CISG) do not apply and is specifically excluded.
- Language of the Agreement is German. Documents in other languages are for information only and wording and content of a certified German version only shall apply between the Contracting Parties.
- Changes or additions to these Terms and Conditions must be in writing. This also applies for termination of this written form requirement.
- If individual regulations of the Agreement with the Purchaser, including these General Terms and Conditions, should be totally or partly ineffective or they become such, then the validity of the remaining regulations are not affected by the changes. Fully or partially ineffective provision should be replaced by another provision, which, in its economic purpose, should be similar to the later as much as possible.
Office in the city of Willich
AG(AB) Krefeld, HRB 14431
VAT number: DE286162846
Last status: 24-10-2013