General Terms of Service and Conditions of Sale for Auctions of AssetOrb GmbH
AssetOrb.com is a website of AssetOrb GmbH, Werdauer Weg 23, Berlin (“AssetOrb”). We provide you with the opportunity to use our services through our website and its mobile versions. This includes in particular posting advertisements for the sale of industrial goods and investment goods (“Marketplace”, Part A. of these Terms and Conditions) as well as their sale by commercial auctions and online auctions held by us (“Auctions”, Part B. of these Terms and Conditions). These Terms of Service and Conditions of Sale for Auctions shall govern the contractual relationship(s) between AssetOrb and the clients who use the services provided by AssetOrb.
Part A. – AssetOrb Marketplace
Section 1 – Scope of application
(1) We would firstly like to expressly point out to you that the services provided by AssetOrb are only intended for trade professionals, i.e. entrepreneurs. Consumers are prohibited from using the services provided by AssetOrb. By logging in or registering, the user declares that he/she is not a consumer as defined by Section 13 BGB [German Civil Code].
(2) These General Terms of Service and Conditions of Sale for Auctions (General Terms and Conditions, GTC) shall govern our business relations with entrepreneurs as defined by Section 14 BGB and merchants as defined by the German Commercial Code (Handelsgesetzbuch, HGB). These GTC shall also be applicable to our business relations with legal entities under public law or public sector funds.
(3) Our GTC shall apply exclusively. Any general terms and conditions which differ from, are contrary to, or supplement our General Terms and Conditions shall become components of the contract only if and to the extent that we have expressly agreed to their validity. This consent requirement shall apply in any case, for example, even if we perform contractual services without reservations, in the awareness of the client’s general terms and conditions.
(4) Individual agreements with the client (also including side agreements, additions and amendments) have priority over these GTC. The contents of any such agreements shall be governed by a written contract or our written confirmation.
(5) Notifications and declarations to be made to us by the client after the conclusion of contract must be in writing to be valid (Section 126b BGB).
(6) Any references regarding the validity of statutory regulations are for the purpose of clarification only. Statutory regulations shall apply even without such clarification, unless directly modified or expressly excluded in these GTC.
Section 2 – Website use, registration and user account
(1) Registration is not required for viewing our website, in particular also sales advertisements. (Free) Registration is, however, required if the client would like to place a - paid, where necessary - advertisement – or would like to contact other clients for the purpose of initiating a contract, in particular a purchase contract.
(2) Users need to agree to these General Terms and Conditions as well as the data privacy statement of AssetOrb to register.
(3) As part of the registration process, the client is required to provide truthful information to AssetOrb in order to ensure the smooth initiation, implementation and performance of contracts concluded between the client and third parties. It is prohibited to give a value-added service telephone number and/or a post office box address.
(4) Client-related information and data must be kept up-to-date by the client if necessary due to a change of address, change of registered office, etc.
(5) A message will be emailed to the email address entered by the client to confirm successful registration. Upon receiving this confirmation message (email), a user agreement shall enter into force between AssetOrb and the client for the features offered by AssetOrb on its website; however, this user agreement shall not include the features offered by AssetOrb which are subject to payment, in particular the placing of advertisements. The right to conclude a user agreement does not exist.
(6) The user account set up by the user cannot be transferred to third parties.
Section 3 – Range of services offered by the Marketplace
(1) Asset Orb provides the client with the opportunity, via the website assetorb.com and its mobile versions, to offer investment and industrial goods (“Assets”) for purchase or sale, to view advertisements for such goods and to make contact with interested parties, potential buyers and sellers (sellers and potential buyers). AssetOrb reserves the right to amend, expand or limit the services described below.
(2) Users who are interested in selling investment and industrial goods shall be given the opportunity to
a. post and administer assets,
b. sell assets to third parties by creating an advertisement,
c. get price proposals from potential buyers,
d. communicate directly with potential buyers,
e. present assets to an existing clientèle,
f. create their own profile page to present their own company, via the website and the user account set up by them.
(3) Users who are interested in buying investment and industrial goods shall be given the opportunity to
a. search assets offered by other users,
b. communicate directly with sellers,
c. track the website-related activities (including the posting of offers) by sellers,
d. track the assets posted by sellers,
e. save searches (for assets),
f. send price proposals to sellers via the website and the user account set up by them.
(4) AssetOrb guarantees that the assetorb.com website, and thus the above-mentioned services, will be available for 90 percent of each month. This does not include periods during which AssetOrb has to temporarily limit the services offered on assetorb.com due to maintenance work, i.e. in particular in order to ensure the security and the integrity of the servers, or if required due to technical measures. In such cases, AssetOrb shall inform users in advance if possible.
Section 4 – User’s rights and obligations
(1) The user shall provide an accurate, complete and truthful description of the assets offered by him/her, i.e.
a. essential qualities and characteristics which are relevant for a purchase decision,
b. flaws and deficiencies which reduce the value of the asset,
The user must ensure that the asset is put in the appropriate category and subcategory. The user must ensure that payment and delivery terms are listed for the asset offered by him/her.
(2) Price quotes or suggestions for an intended purchase price must be quoted as net prices, i.e. without value-added tax, unless otherwise agreed between the users.
(3) The user must ensure that the assets posted by him/her, along with the images and other contents used, do not infringe against the rights of third parties.
(4) The user is prohibited from offering assets on assetorb.com and/or advertise items as assets if offering, selling or purchasing such items transgresses statutory provisions, standards of public decency, or the rights of third parties.
(5) The assets posted by the user and the associated description by word and image must refer exclusively to the respective asset. The user is prohibited from using the Marketplace for advertising relating to chattels and real estate not offered as assets on assetorb.com.
(6) AssetOrb makes the data (addresses, email addresses, other contact information) of other users available to its users via the Marketplace, for the purpose in particular of the initiation, conclusion and execution of contracts. The user may use these data only for the purposes specified above. The user is prohibited from selling or sharing these data unless the respective other user has consented that different use is made of his/her data.
(7) If the user includes a company profile in his/her user account, he/she shall also post legal information in accordance with current legal requirements (“Impressumpflicht” - obligation under German law to provide company information on commercial websites).
(8) The user shall keep his/her password - which allows him to access the user account - confidential and shall also carefully safeguard access to the user account. The user shall promptly inform AssetOrb if he/she comes to learn of any indication of misuse of the user account by third parties.
(9) The user is prohibited from requesting the payment of commissions or other fees not associated with the sale of the asset itself, in addition to the intended selling price.
Section 5 – Rights and obligations of AssetOrb
(1) If there are specific indications to suggest that a user infringes against statutory provisions, the rights of third parties, or the contractual arrangements existing between AssetOrb and the user, AssetOrb shall be entitled – in due consideration of the interests of AssetOrb and the users of the Marketplace –
a. to delay or prohibit the publication of the assets or other
contents posted on the Marketplace by the user,
b. to delete the assets or other contents posted on the Marketplace by the user,
c. to issue a warning to the user,
d. to temporarily block the user or his/her user account,
e. to permanently block the user or his/her user account.
(2) AssetOrb may permanently, i.e. indefinitely, block a user from using the Marketplace if the user
a. has entered incorrect contact information,
b. has provided fraudulent or misleading information on assets or other characteristics which describe assets,
c. has harmed other users, or is foreseeably going to harm other users,
e. transfers his/her user account,
f. gives a third party access to his/her user account.
Section 6 – Chargeable services
(1) By entering into the user agreement, the user is given the opportunity through AssetOrb to place advertisements or non-binding notices with regard to the intended sale of assets to third parties on the assetorb.com website. Posting advertisements on the assetorb.com website may be subject to a charge. Please see the current updated price list for fees to be paid to AssetOrb by the user for posting advertisements (“Pricing”).
(2) By posting an advertisement, the user declares his/her intention to accept the offer of AssetOrb to pay a fee, where applicable, - according to the latest price list - for posting an advertisement on the assetorb.com website.
(3) The fees listed by AssetOrb in its price list are net prices, i.e. they do not include value-added tax.
(4) The fees indicated by AssetOrb are due for payment at once using the payment methods accepted by us.
(5) If agreed with the user, AssetOrb shall invoice the user for the chargeable services offered on assetorb.com. Unless otherwise agreed between AssetOrb and the user in the case of invoicing, the fee shown on the invoice must be paid to AssetOrb within 14 days of invoicing.
Section 7 – Conclusion of contract between users
(1) The Marketplace created by AssetOrb provides a communication platform for users. The possibility for directly concluding contracts (e.g. a purchase contract) via the functions of the Marketplace, i.e. via a “Buy” or “Sell” button, is not envisaged. The communication channels offered via asssetorb.com (sending messages to other users, chat function) are intended in particular to allow offerer and consumer or seller and buyer, respectively, to negotiate the price of one or several assets themselves.
(2) AssetOrb shall record and store the communication on the initiation, the conclusion and the execution of contract between the users in order to ascertain, in case of disputes, whether a contract for assets was concluded between the offerer and the consumer.
(3) If a contract is concluded for an asset offered by a user, the seller shall ensure that possession of and ownership in the sold asset is transferred to the buyer promptly upon the conclusion of contract. However, seller and buyer are of course entitled to negotiate and agree the respective terms and conditions themselves.
(4) Should an asset advertised by a user be deleted by AssetOrb, for whatever reason, whether justified or unjustified, a valid contract for this asset can no longer be concluded using the Marketplace.
Section 8 – Liability
(1) The user shall not be entitled to claims for compensation, except in the case of claims for compensation of the user which arise from an injury to life, body or health, or from a breach of essential contractual obligations (cardinal duties) as well as liability for other damages caused by an intentional or grossly negligent breach of obligation on the part of AssetOrb, its legal representatives or agents. Essential contractual obligations are obligations which are necessary in order to achieve the objective of the contract.
(2) If a breach of contractual obligations has occurred, AssetOrb shall be liable only for the predictable loss as per standard contract provisions if it was caused by slight negligence, unless the client’s claim for compensation arises from an injury to life, body or health.
(3) The restrictions of paragraphs 1 and 2 shall also apply in favour of the legal representatives and agents of AssetOrb if claims are being made directly against them.
(4) AssetOrb cannot be held liable for damages incurred by the user as part of a contractual relationship with third parties which arose on the basis of the services offered by AssetOrb.
Section 9 – Indemnification
(1) The user shall indemnify AssetOrb against claims asserted against AssetOrb by other users or third parties for an infringement of their rights by the assets and other contents posted by the user on the assetorb.com website. The right to indemnification includes the necessary and required costs for the legal defence of AssetOrb, i.e. court fees and legal fees at the statutory rate. If the user is not responsible for the infringement, AssetOrb shall not have such a right to indemnification.
(2) If a claim is filed by third parties, the user shall promptly provide AssetOrb with all the correct and truthful information necessary to allow AssetOrb to examine and defend itself against the enforcement of the claim.
Section 10 – Duration and termination
(1) The duration of the user agreement between AssetOrb and the client shall be for an indefinite period of time.
(2) The contractual relationship may be terminated at any time and without a period of notice by the client, and with a one-week period of notice by AssetOrb.
(3) Services for which a fixed term has been agreed (e.g. advertisements) shall end with the expiry of the agreed contractual term without the requirement for a separate declaration. If and when a contractual term has been stipulated for services provided by AssetOrb, these services can furthermore be cancelled by either party subject to a notice period of one week to the end of the minimum term.
(4) This does not affect the right to terminate the contract without notice for good cause. Good cause shall be deemed to exist in particular if the client has violated legal prohibitions within the framework of the user contract or repeatedly fails to meet his/her payment obligations towards AssetOrb.
(5) In the event that the user contract between AssetOrb and the client is terminated, the relevant user account shall be blocked by AssetOrb. At the same time, all data provided by the client shall be deleted, unless this would adversely affect the legitimate interests of AssetOrb and third parties in the proper execution of the user contract and any other contracts. The blocking of the user account also includes any advertisements posted on the website by the client.
Section 11 – Data privacy
(1) The user consents to the data collected from this contract and/or its execution being processed and used by AssetOrb and communicated to the respective interested parties and/or authorised public bodies to the extent required.
(2) Moreover, we refer to our privacy statement which can be downloaded and printed from the AssetOrb website at any time by clicking “Data Privacy”.
Section 12 – Final provisions
(1) If the provisions of these GTC conflict with provisions in the individual or framework contracts concluded between the parties, the following hierarchy applies: Provisions in individual contracts take precedence over possible arrangements made in framework contracts. Possible framework contracts take precedence over the GTC of the parties.
(2) The place of fulfilment for claims arising from the user contracts concluded between AssetOrb and the users is Berlin.
(3) All legal relationships between AssetOrb and the user shall be governed by the law of the Federal Republic of Germany to the exclusion of all international and supranational legislation.
(4) The exclusive place of jurisdiction for all disputes arising from the contractual relationship between AssetOrb and the user is the place of business of AssetOrb in Berlin, except in case of exclusive statutory jurisdiction. AssetOrb shall, however, be entitled to file a suit at the user’s registered office.
(5) Subsequent modifications and amendments to these GTC must be made in writing to be valid. This also applies to the amendment of this written form requirement itself, except in the case of individual agreements between the parties which may waive all or part of these terms of service and conditions of sale for auctions.
(6) Should the German and the English version of these terms of service contradict each other or contain unclear regulations, the German version shall prevail and be binding.
(7) Should any provisions of these GTC be or become null or void, of should these provisions contain a loophole, such invalidity shall not affect the legal validity of the other provisions. The provision, all or part of which is null or void, shall be replaced by a provision which approximates the originally intended legal and economic spirit and purpose as far as possible.
Part B. – Auctions
Section 1 – Live auctions
AssetOrb provides its clients and interested parties with the opportunity to purchase investment and industrial goods from third parties within the framework of live auctions. By way of derogation from the terms of service outlined in Part A of these GTC, the terms of such transactions are determined by the General Conditions of Sale for Live Auctions of AssetOrb; these terms are on display at the respective location of the live auction and are available for inspection.
Section 2 – Online auctions
AssetOrb provides the users of the assetorb.com website with the opportunity to purchase investment and industrial goods from third parties within the framework of online auctions. By way of derogation from the terms of service outlined in Part A of these GTC, the terms of such transactions are determined by the sales-specific terms and conditions (General Terms and Conditions for Online Auctions) described and included within the scope of the online auction.