“Holstein's Treasury” Frozen Semen Online Auction Terms and Conditions from 29 May to 3 June 2024

 

A. General

The Holsteiner Verband Vermarktungs- und Auktions GmbH, Elmshorn (in the following also called “organizer“), conducts the auction sale of frozen semen owned by the exhibitors (in the following also called “seller”) on the internet (here also called internet auction, internet auction sale, or online auction sale) on behalf and for the account of the exhibitor. The exhibitor assures to be the owner and authorised to dispose of the frozen semen. Organizer does not become a contractual party in the contract concluded solely between sellers and buyers.

 

The purchase contract on the frozen semen is concluded directly between the exhibitor as seller and the successful bidder as buyer. It is a purchase contract in accordance with sections 433 and following of the Civil Code (BGB), and not concluded though public auction sale in accordance with section 383 subsection 3 BGB.

 

The purchase contract between exhibitor and buyer and the legal relationship between organizer and exhibitor on the one hand and organizer and bidder on the other hand are based on these online auction sale terms and conditions.

 

The online auction terms and conditions apply exclusively. Contradicting terms or terms different from these online auction conditions are not accepted.

 

The online auction terms and conditions do also apply in the event of unconditional delivery on the part of the organizer or exhibitor, aware of the buyer’s contradicting or different terms.

 

Any arrangements between organizer and buyer and exhibitor and buyer for the purpose of fulfilment of the concluded contract are stipulated by this online auction terms and conditions

 

Organizer reserves ownership and copy rights for images, videos, drawings, descriptions and other records used by organizer for the auction. Prior to a third party transfer, buyer, bidder, and any other third party require organizer’s explicit consent in writing.

 

In principle, the online auction terms and condition apply in the same way to business owners/traders (section 14 BGB) and consumers (section 13 BGB), if their effect has not been explicitly restricted with regard to individual stipulations.

 

For agency services, organizer charges the exhibitor a commission fee ranging between 8% and 15 %, depending on the amount of the highest bid (=so-called knock-down price).

 

B. Organisation and Execution of the Online Auction

I. Registration and User Account

1. Only natural or legal persons who have registered with the organizer may participate in the internet auction sale. When applying for registration, all details required on organizer’s registration form must be submitted correctly and duly and possibly required copies must be attached.

 

2. Representation and Contractual Capability

(a) Natural persons must be of age and have full contractual capability to register.

(b) Natural persons acting as authorized representative of a legal person must be named.

(c) Registered users receive a password. Every user is bound to keep the password secret. 


II. Online Auction Procedure

 

1. Each internet auction sale starts with an offer placed on the internet platform by the organizer. This offer constitutes a declaration of intent by the exhibitor aimed at concluding a purchase contract. At the same time, the offer determines the time for bidding by stating the “end of auction”. This offer cannot be accepted by a simple “yes”, it rather states in advance that the highest bid will be accepted.   Only the highest bid effectively placed by a bidder within the stated bidding time in accordance with the conditions of this online auction terms is accepted on behalf of the exhibitor.

 

2. Bids can solely be placed online and only through the mask installed for registered bidders on the platform. No bids placed in any other way will be considered, even if they reach organizer during the time of bidding. Bids will not be considered, either, unless the bidder states consent to the validity of these online auction terms and conditions for the specific bid and awareness of the right of withdrawal. Bids placed by a registered user under “bid” in accordance with these online auction terms and conditions until the end of the auction shall only take part in the auction if organizer has received the bid by the end of the auction. Transmission is at the bidder’s risk.

 

3. Prior to placing a bid, the content of the bid including the client information is displayed on an overview page where the bidder may revise and adjust the bid by using the designated fields. By clicking the “place bid” button, the bidder submits a binding bid aimed at concluding a purchase contract to organizer. After submitting the bid, the bidder receives an automatically generated email from the organizer or a push notification confirming the receipt and the details of the bid (confirmation of receipt). This confirmation of receipt does not constitute the acceptance of a contract, but only confirms participation in the auction with the placed bid. Any bid placed by any bidder is dissolved upon a higher bid being placed. Each bidder is bound to the placed bid until the end of the bidding time. Bids that do not meet the reserve price do not take part in the auction, also if organizer has not received a higher bid by the end of the auction. The purchase contract for the frozen semen sold is effected without special awarding through the effectively placed highest bid (in the following called “knock-down price”) of the registered bidder (user or client) at the end of the bidding time.

 

4. To be effective, a bid must meet the reserve or minimum bidding price and exceed the last bidder’s bid by one increment, at least. Bids for the frozen semen listed for auction are raised by 50 euro increments. The bidder is notified by email or in another suitable way on the internet platform that the bid has been accepted or else that the bid has been outdone. The applicable VAT rate (Germany 7%) is raised on all bids. With regard to settlement, compare the information stated under D.

 

Throughout the entire auction time, the starting time of the online auction’s final (bid up), is counted down in the overview list as well as on each lot’s detail page. The lots run out at 5 minute intervals. So when the first lot runs out at 15:00 hrs, the second lot runs out at 15:05 hrs, the third at 15:10 hrs and so on.

During the last 2 minutes before the auction sale of each lot comes to a definite end, each bidding activity extends the countdown timer by another 2 minutes. In other words: if a bid is placed with only 35 seconds left, the timer is set to 2 minutes. If no other bid is received during that time, the auction ends with the knock-down price displayed on the bid board. The extension of the end of auction for a lot does not lead to an extension for the following lot. 

 

5. Notification on conclusion of contract: by the end of the bidding, the bidder with the highest effective bid is informed by email or else on a lasting data medium in text. Receipt of this information is the confirmation of the already concluded purchase contract, not an additional condition for the conclusion. Bidders who have not won the bidding are not informed. The highest bid is only listed anonymously on the platform immediately after the expiration of the bidding time. The buyer notification includes a confirmation of the contract in accordance with section 312f BGB detailing the subject matter of contract and contains necessary information under section 246 a of the Introductory Law of the Civil Code including the withdrawal instruction (compare F). Explicit mention of the buyer’s right to withdrawal is made to the exhibitor.

 

6.  According to organizer’s best judgement, organizer is entitled to block registered bidders for certain auctions of certain lots or for a certain time or at all and thus exclude them to a limited or unlimited extend from participating in the auction. This is only acceptable upon good cause shown, making it unreasonable for us to continue a legal relationship with the blocked person.

 

7. Organizer is free to break off an auction at equitable discretion  at any time before the end of the bidding time for objective reasons. In this case no purchase contract is concluded.

 

In case of unexpected system failure due to technical reasons, organizer is also entitled to break off the auction. In this respect, organizer explicitly reserves the right to withdraw each of the internet offers in accordance with C. The break-off decision is communicated on the internet platform with some explanatory words. Bids already placed will expire without replacement upon notification. With the auction carried out properly as announced, the reserved right to withdraw the offer for sale to the highest bidder expires with the end of the auction upon the end of the bidding time with no need for a special statement on the part of the organizer. Organizer is not liable to the bidder for technical problems in the course of the auction procedure, in particular system failure, non-delivery of bids, or rejection of bids for technical reasons, under the exclusion of wilful acting on organizer’s side.

8. Throughout the time the auctions are running, organizer maintains a hotline which can be called during the time stated on the internet platform at specified charges payable by the caller. The sole purpose of this hotline is to solve transaction problems; it shall not receive or place bids. No promises or legal agreements whatsoever shall be made through the hotline.  

 

C. Information on the Lots Put to Auction

 

I. The frozen semen put up for auction on organizer’s platform is offered with details on parentage and the date of collection. The brief information has been provided by the exhibitors or taken from the stud book data.

 

The frozen semen offered for sale has the status of used goods. After having a so called freezing extender added to the sperm, the semen has been frozen in a standardized protocol using liquid nitrogen (cryoconservation). In addition to this, the semen straws have been re-stored several times after the semen has been frozen.

Organizer assumes no responsibility for the accuracy of the information and declarations stated by the exhibitors and other participants, in particular with regard to their person and their solvency and willingness to pay. Neither identity nor solvency checks are carried out. Neither is organizer under any legal obligation to assume liability for the frozen semen sold at auction being free from defects or potentially missing qualities. 

II. The minimum bid in EUR for the frozen semen offered for sale in the online auction is also stated.

III. Shipping of the frozen semen (straw)

The frozen semen (straw) purchased at auction must shipped to a veterinarian with appropriate storage facilities or a stallion station no later than 14 days after the end of the auction by the seller. The buyer shall provide the shipping information to Holsteiner Verband Vermarktungs- und Auktions GmbH. The buyer will be charged for the shipping costs which amount to approx. 60 euros + VAT within Germany. The costs for shipping abroad are higher.

Please note: Straws only certified for national use may only be sent to veterinarians or stallion stations within Germany!

 

 

D. Settlement, Payment, Passing of Title

 

I. Knock down prices are net prices. The buyer owes the seller/exhibitor the knock-down price plus value added tax (= sales price). VAT is raised on the knock-down price at a rate depending on the country of origin’s tax key for frozen semen (Germany 7 %). The H.V. Vermarktungs- und Auktions GmbH (organizer) does not assume liability for this statement.

II. The buyer is charged a commission/buyer’s premium amounting to 10 % of the knock-down price (net) plus 19 % VAT by the H.V. Vermarktungs- und Auktions GmbH for agency services.

IV. To all stated prices and bids, the applicable VAT (currently 7 % in Germany) is added and will be shown separately on the invoice.  Against this background the total amount payable by the purchaser is computed as follows:

 

“knock-down price“ (net)

+ VAT (depending on country’s tax rate; DE 7 %)

= subtotal 1 (= selling price)

+ buyer’s premium/auction fee at a rate of 10 % of the knock-down price (net)

+ VAT (19 %) on the buyer’s premium (according to sections 12, 2 UStG/VAT Act)

= subtotal 2

subtotal 1 and 2 (selling price + buyer’s premium) = gross price

= TOTAL INVOICE AMOUNT

 

Upon confirmation of the conclusion of the purchase contract the bidder receives the invoice stating price and VAT. Fast payment discount deduction is not permitted.

V. The total invoice amount is payable immediately after the end of the online auction sale and must be transferred to the H. V. Vermarktungs- und Auktions GmbH’s UniCredit account. When paying in foreign currency, the amount credited to the account of the H. V. Vermarktungs- und Auktions GmbH must equal the total invoice amount in euros.

VI. The straw in question remains the property of the exhibitor in agreement with section 449 BGB until the total invoice amount has been paid to the H. V. Vermarktungs- und Auktions GmbH; in the event of payment by money transfer, passage of title is effected by the unconditional crediting of the total invoice amount to the H.V. Vermarktungs- und Auktions GmbH, Elmshorn, account with the UniCredit Bank.

VII. In the event that the buyer does not pay the total invoice amount within five working days (including Saturday) after the day of the auction, the exhibitor as seller can withdraw from the purchase contract and sell the frozen semen elsewhere. The first buyer is liable for any possible loss and also liable to pay damages to organizer.

VIII. Exhibitor transfers their claim against the buyer for payment of the selling price (knock-down price + VAT) to the H.V. Vermarktungs- und Auktions GmbH, Elmshorn, as organizer, for collection and settlement. In the event of delayed payment by the buyer, organizer does not advance funds to exhibitor. In the event of delayed payment, organizer is authorized to take action for payment of the selling price and the ancillary claims against the buyer on behalf of the exhibitor without requiring the exhibitor’s special order. The costs for the judicial assertion of the claim are born by the exhibitor.

IX. Organizer of the auction sale draws attention to the reserved right to pay a commission from the agency fee to third parties causally involved in the conclusion of the purchase contract.

X. The risk of loss for the purchased frozen semen is passed to the buyer upon the seller’s acceptance of the winning bid.

 

E. Agreement on Quality

 

The quality of the frozen semen agreed upon is the information provided on the auction platform regarding the stallion the frozen semen is question is from.

 

Any additional pictures of the stallions and/or short statements shown on the auction platform do not form part of the quality agreement. They are not declarations of intent but declarations of knowledge in the sense of subjective expression of opinion. This also applies to information on a stallion’s ability or possible future use of his offspring. This information does not constitute a guarantee of specific abilities in the offspring bred using the frozen semen. The seller explicitly assumes no liability for the accuracy of this information.

 

The Holsteiner Verband Vermarktungs- und Auktions GmbH assumes no liability for the correctness of the information on the accompanying documents. In each case, one straw of frozen semen will be offered. This will be specified by the seller when registering for auction and published on the auction platform accordingly. The seller is not obliged to provide further straws. Neither can any prediction for successful fertilization be derived from this. In principle, using the frozen semen for the ICSI procedure is permitted, unless this is clearly excluded in the auction catalogue. In principle, the insemination with frozen semen is offered within the area of the Federal Republic of Germany. Any option for sale to other European countries or defined non-EU countries will be explicitly stated in the description of the individual straws. There is no guarantee for shipment to countries outside of the Federal Republic of Germany. If a stallion’s WFFS status is known, this will be stated in the description. If no information is available, no mention is made.  

 

 

2. Defect Notification Period

In order to protect his warranty claims, the buyer must notify the seller of defects in text form within a preclusive period of four weeks after transfer of risk. If the buyer is a business owner, the notification of defects in the suitability for shipment of the semen of licensed stallions must include a specialist veterinary opinion stating that this was not present at the time of transfer of risk to observe the aforementioned notification period. Decisive for compliance with the notification period is the receipt of the notice of defects by the seller.

 

3. Subsequent Performance

In the event of warranty claims asserted by the buyer after the notification of defects, the seller is entitled to subsequent performance. For this purpose the buyer has to ask the seller to provide subsequent performance (request for subsequent performance).The seller shall be granted a reasonable period for subsequent performance from the date the defective frozen semen has been returned. This shall be four weeks. In any other respects, claims for damages by the buyer shall be excluded in the event of a successful subsequent performance. This does not extend to liability claims as to damages of life, body or health resulting from at least negligent breach of duty by the seller or the seller’s legal representative or vicarious agent or other damages resulting from at least gross negligent breach of duty by the seller or the seller’s legal representative or vicarious agent.

.

 

4. Further Warranty for Defects

If subsequent performance fails or is impossible, in the event of withdrawal the seller is obliged to rescind the contract by repaying the invoice amount and compensating for necessary storage costs. This provision does explicitly not affect the seller’s claims for compensation due to deterioration of the frozen semen. Under no circumstances does the seller owe the buyer compensation for veterinary costs incurred for a planned or performed insemination. In any other respects, claims for damages by the buyer shall be excluded in the event of unsuccessful subsequent performance if the contractual relationship is rescinded. This does not extend to liability claims as to damages of life, body or health resulting from at least negligent breach of duty by the seller or the seller’s legal representative or vicarious agent or other damages resulting from at least gross negligent breach of duty by the seller or the seller’s legal representative or vicarious agent.

 

 

 

F. Information on the Right of Withdrawal

1. Right of Withdrawal

According to section 312 g of the Civil Code (BGB) and in the event the buyer is a consumer, and the seller a business owner, the buyer has the right of withdrawal under section 355 BGB, giving the buyer the right to cancel the contract within 14 days without giving reasons for doing so. The period of cancellation starts with the day the buyer or a third party authorized by the buyer other than the carrier has taken possession of the frozen semen.

 

In order to exercise the right of withdrawal, the buyer has to notify either 

the seller

or the

Holsteiner Verband Vermarktungs- und Auktions GmbH, Westerstraße 93-95, 25336 Elmshorn,       

fax: +49 (0)4121 93629, email: [email protected]

 

explicitly declaring (for example by sending a letter by mail, fax, or email) the decision to cancel the contract. For this purpose, the sample contract cancellation form below may be used (not mandatory).

In this case, the Holsteiner Verband Vermarktungs- und Auktions GmbH acts as the seller’s authorized messenger.

To comply with the cancellation period, it is sufficient for the buyer to send notification of the contract cancelling before the cancellation period expires.

 

2. Cancellation Consequences

Should the buyer cancel the contract, all payments organizer and seller have received including shipment costs (with the exception of additional charges resulting from the buyer having chosen another form of delivery than the most favourable standard delivery offered by us), must be paid back immediately and at the latest within 14 days from the day the seller or organizer has received notification of the cancellation of the contract. The buyer is to receive the refund in the same way the original transaction was paid, unless another solution has been explicitly agreed upon with the buyer; in no case the buyer is charged for this refunding. Organizer and seller can refuse refunding until the goods have been received back or until the buyer has provided proof that the frozen semen has been brought back, depending on which happens at an earlier date. The buyer pays the immediate costs for returning the frozen semen.

 

If the consumer has requested that the service should commence during the cancellation period, the consumer must pay the organizer a reasonable amount corresponding to the proportion of the service provided up to the time of cancellation compared to the total scope of the service provided for the contract.

 

 

 

G. Changes, Applicable Law, Jurisdiction, Severability Clause, Precedence of the German Version

 

I. Organizer reserves the right to change the way the online auction is carried out. Changes shall be announced in due course. In case the online auction cannot take place for reasons outside organizer’s control and responsibility (for example official ban), organizer does not assume liability for any damages whatsoever. Services already performed by organizer must be paid and will not be refunded.

II. Organizer reserves the right to future changes or amendments to this online auction terms and conditions. During the auction, licensed bidders are notified of possible changes or amendments by separate email. The changed or amended terms shall only apply after the bidder implies consent by placing a new bid after having received the notification.

III. German Law shall apply under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (GISG).

 

IV. Place of jurisdiction for all conflicts arising out of the contract between purchaser and the H.V. Vermarktungs- und Auktions GmbH or else from claims assigned to organizer by exhibitor under the terms of D.VIII, shall be organizer’s seat, provided that the buyer is a merchant, a legal entity governed by public law or specialized agency subject to public law or the buyer has no place of general jurisdiction in Germany.

 

V. The European commission provides a platform for Online Dispute Resolution (so-called ODR platform) aiming for out-of-court dispute resolution of disputes arising from online contracts. To access the ODR platform, follow this link:    http://ec.europa.eu/consumers/odr

In accordance with section 36 VSBG, we state that we are neither willing nor obliged to participate in a dispute resolution before a consumer dispute resolution body.

 

VI. In any case of discrepancy between the German and the English version of the Auction Terms and Conditions, only the German version shall apply. For the interpretation the German version is relevant and shall take precedent also when interpreting the English version.

 

VII. In the event that any of the conditions stated above should become partially or entirely void, this shall not affect any other conditions.

 

 

H. Data Privacy

 

The organizer collects and stores customer data as necessary for the transaction of the business. We adhere to legal requirements when processing personal data of the customer. For more information read our data privacy statement available on our website. Upon request, customers will be given information on their stored personal data any time.

 

Sample Contract Cancellation Form

attachment 2 on Art 246a section 1 II 1 Nr 1 and section 2 II Nr 2 EGBGB

(If you want to cancel the contract, fill in and return this form.)

to [insert trader’s name, address, possible fax no and email address]:

 

alternatively to

 

Holsteiner Verband Vermarktungs- und Auktions GmbH

Westerstraße 93-95

25336 Elmshorn,

Fax: 04121/93629,

Email: [email protected]

 

I/we (*) herewith cancel the contract for the sale of the following goods (*) /the supply of the following services (*)

Ordered on (*)/received on (*)

Name of consumer(s)

Address of consumer(s)

Signature of consumer(s) (only in case of notification on paper)

Date

 (*) Delete where inapplicable.