Standard terms and conditions governing the relationship between WhiskyAuction.com and bidders

 

I.                    Scope of validity

1.      These standard terms and conditions (hereinafter referred to as "STC") apply to all legal transactions between the auction house Whisky Auction.com, Krüger und Rosenfeld GbR (hereinafter referred to as "WhiskyAuction.com"), Timmerloh 8, D-24787 Fockbeck, Germany and both consumers and businesses.

2.      A consumer is any natural person who concludes a legal transaction for purposes that cannot be predominantly assigned either to their commercial or their professional self-employment.

A business is a natural or legal person or a partnership with legal capacity who/that, when concluding a legal transaction, is carrying out his/her/its commercial or professional self-employment.

 

II.                  Registration

1.      Only natural or legal persons of full legal capacity will be admitted as bidders. Sellers whose goods are auctioned may not engage in bid manipulation, whether directly or indirectly through an intermediary or an agent on behalf of a third party by placing bids with the intent of driving the price up.

2.      To place a bid, the bidder shall set up an account first. This account is non-transferable.

3.      In order to register, the bidder shall first enter a valid credit card issued in his or her name. Mandatory information includes the credit card company, card number, validity and card verification number.

4.      In the second step, the bidder shall provide his or her personal data. Mandatory information includes the given name, surname, delivery address, valid email address and a password of the bidder's choice.

5.      The bidder shall confirm that he or she has reached the age of 18 or 21 years, depending on the state law.

6.      Upon successful registration, WhiskyAuction.com shall send the bidder a BidderID generated by WhiskyAuction.com by email.

7.      A bidder only has to register once with his or her data. When logging in again, the bidder only has to enter the BidderID and password.

8.      WhiskyAuction.com is entitled to revoke the registration and block the bidder if the bidder breaches or has breached these terms and conditions, provided incorrect contact details, transfers or grants access to his or her bidder account to a third party or for another important reason.

9.      The information provided shall be accurate and complete. If the data provided during registration changes, the bidder shall update the information without any undue delay.

 

III.                Subject matter of the contract

1.      On its website www.whiskyauction.com, WhiskyAuction.com lists various types of whisky (hereinafter referred to as "items") offered by the sellers for sale at auction.

2.      Each listing shall include a photograph and a description, including information about any imperfections. Empty items shall be described as such.

3.      WhiskyAuction.com facilitates the contract for sale between the seller and the highest bidder and ships the item on behalf of the seller. The bidder automatically assigns a shipping order to DHL through his bid. By another email, he can cancel this order by picking up or reenter the item again into a new auction.

4.      WhiskyAuction.com does not charge any auction fees to bidders.

5.   If the photos shows no packaging (tube,boxes) or no accessoires (e.g. booklets) then the article is auctioneered and sent without packaging / accessoires, as shown by the photo.

6.   For the packaging (tube,boxes) and accessoires (e.g. booklets) we do not take over an authenticity warranty, concerning your "original" affiliation, to exactly this item.

 

IV.               Contractual partner; agency relationship

As an auctioneer, WhiskyAuction.com is merely an agent. The actual contract for sale is directly between the highest bidder and the seller.

 

V.                 Auction procedure; conclusion of a contract

1.      The auction ends through the expiry of the defined period. A purchase contract is concluded with the highest bidder and the seller when the period of time has expired. WhiskyAuction.com only acts as an agent.

2.      Auctions typically start on a Sunday and at least close 27 days later. The individual auction dates can be found in the auction calendar .

3.      The duration of an auction shall be set to a specific period determined exclusively by the system clock of WhiskyAuction.com. The end of the auction will be displayed. This can only be postponed if WhiskyAuction.com extends the auction.

4.      By placing the bid, a binding offer is made to conclude the contract in the event of being the highest bidder. The minimum bid amount is determined separately for each item and can be found in the respective bid. Bids can only be placed in full euro amounts. The auction currency is EUR.

5.      If a higher maxbid amount is placed, the automatic bidding agent is activated. This automatically places bids in predefined increments up to the maximum bid limit to allow the bidder to become or remain the highest bidder. The maximum bid limit can be increased.

6.      The highest bid of the bidder shall be accepted if no higher bid has been received at the end of the auction.

7.      After the end of the auction, a result list with the item no. and the highest bid shall be published.


As a seller you are not allowed to bid on your own items, also not by a third party: Shill bidding.
The seller agrees not to inform anyone about her/his posted items before the end of the auction. Bidding on your own posted items, intending to get higher bids, is not allowed. This also applies to assigned third party bidders. A violation automatically results in an exclusion from our auctions and a reversal of the contract.

(OLG Brandenburg, Urt. v. 17.6.2009 – Kart W 11/09. In the U.S.A., and in Great Brittain, shill-bidding is a criminal action:

https://en.wikipedia.org/wiki/Shill

Great Brittain: 2006 Fraud Act

Posted By: Matt: Shill bidding was included in the definition of criminal fraud in the 2006 Fraud Act.

Specifically: "The Fraud Act could be used to criminalise(sic) conduct which may previously only have amounted to a breach of contract or other civil law or moral obligation. Examples may include:

(SNIP) 'Shill bidding' on online auction sites. This is where sellers bid up the price of their own items using a second identity."

U.S.A.: US DOJ Prosecution Policy … Wire Fraud

“Serious consideration … should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct.”—http://1.usa.gov/10KnLPN

In german: BGH-Urteile zum Verkaufsportal eBay - Tricksereien können teuer werden:

http://www.tagesschau.de/inland/bgh-ebay-bidding-abbruchjaeger-101.html

- Third party is: including family, friends, roommates, employees, colleques or online connections.

- WhiskyAuction.com reserves the right to charge the bidder for the reversed transaction and for expenses. The right is reserved to keep 15% to 30% of the outpayment sum according to the case and the degree of fault. This amount will be completely donated to a non-profit-organisation. The seller will get a receipt about this.

- A violation automatically results in an exclusion of both from our auctions and a reversal of the contract.

- If the seller wants a higher minimum value by guarantee, he must not give this items into the auction.

VI.               Language of contract; contractual text

1.      The languages of contract are German and English.

2.      The text of the contract will not be stored by WhiskyAuction.com.

 

VII.             Early end of an auction; server failure

1.      WhiskyAuction.com is entitled to end an auction early for good cause without a contract for sale coming into effect between the highest bidder and the seller. A good cause is, for example, given if the listing information contains an elementary error. In these cases, the item will be relisted.

2.      If the server fails or does not work properly towards the end of an auction and no new bids can be placed, the contract will be concluded with the highest bidder at that time.

VIII.           Payment terms

1.      The highest bidder shall receive an invoice at the end of the auction. The highest bidder has no right to get an invoice with accounted sales tax.

2.      We currently accept the following payment methods:

 

Credit card

When you register, you are also required to provide us with your credit card data.

Once we have verified that you are the legitimate cardholder, we will ask your credit card company to initiate the payment transaction at the end of the auction. The payment transaction will be automatically charged to your card by the credit card company.

Advance payments

When you choose to pay in advance, we will provide you with our bank details in a separate email and deliver the goods once your payment has been credited to our account.

 

Next day past the auction, on Sunday we will charge the invoice amount from your credit card. (Please make possible the drawment in the hight of the invoice. Maybe it makes sense to inform your bank about the upcoming charge from germany.) In case that the credit card chargement is not possible for more than 5 days, we demand:

3% for an unpaid invoice 5 days after auction closing

6% for an unpaid invoice 12 days after auction closing

9% for an unpaid invoice 17 days after auction closing.

If we decide so, invoices of more than 2500€ (EURO) have to be paid by bank transfer. The invoice amount has to reach our bank account until thursday after auction closing.

If the buyer wishes to have the payment done by more as one credit card or more single successful parts of a payment even of the same card, so each further payment charge costs 25,- euro.

Charge-Backs by your bank or credit card company are not allowed. All claims, e.g. in case of a parcel has not been delivered, have to be addressed to us directly.

If the paid parcel should stay longer as one month at our warehouse, so we take an annual storage fee of 100,- euro for each parcel.

 

IX.                Terms of delivery

1.      The shipping and packaging costs are added to the invoice amount. For shipping costs details, please refer to the listing page.

2.      The goods are available for pickup 8 days after the end of the auction from Whisky Krüger, Hauptstraße 2, D-24361 Holzbunge, Germany. If the item is not picked up within 8 days, it will be shipped to the bidder at the bidder's expense.

3.      If an item that is ready for dispatch is left uncollected in a WhiskyAuction.com warehouse for more than one month, WhiskyAuction.com will be entitled to charge a storage fee of €100 per year.

 

X. Customs

1. Members outside the European Union are responsible for paying their respective country's customs and import fees.

2. US and Canadian citizens: WhiskyAuction.com is not responsible for the seizure and/or destruction of shipments by US or Canadian customs.

3. If the package is not picked up from customs within 7 days, the insurance policy which covers businesses against the loss or damage of the parcel will lapse.

 

XI. Transport damage

The delivery is carried out by WhiskyAuction.com on behalf of the seller.

1. If the buyer is a consumer: 
If goods are delivered with obvious transport damage, please raise these defects promptly with the carrier and contact WhiskyAuction.com without undue delay. Failure to make a claim or contact us does not have any effect on your statutory rights or their enforcement or the warranty on the product. However, it will help us assert our own claims against the carrier and/or transport insurance.

2. If the buyer is a business:  
The risk of accidental loss and accidental deterioration of the sold goods will pass to the customer when WhiskyAuction.com hands over the goods to the forwarding agent, freight carrier or the person or institution otherwise contracted to deliver the goods. Merchants are subject to the inspection and reporting obligations in accordance with Item 377 of the German Commercial Code (HGB). If the buyer fails to comply with these reporting obligations, the goods shall be deemed to have been accepted, unless the defect was not identifiable during the inspection. This does not apply if WhiskyAuction.com has maliciously concealed a defect.

3. By bidding the buyer accepts the costs for packing, shipping and transport insurance against lost.

4. The mail and leakage risk, evaporation risk and imponderable risks bears to the bidder only. Furthermore the risk of damage of the box or item due to leaking bottles bears to the bidder only. The risk that the content becomes cloudy during the transport bears to the bidder only. These risks are not covered by our transport insurance.

5. Especially the risk of wrong shipment due to wrong registering data bears to the bidder only.  These risks are not covered by our transport insurance.

6. The refund for lost or missing insured parcels will be paid at the earliest six month after sending out.

 

XII. Warranties and guarantees
Unless expressly stated otherwise below, the provisions of the statutory liability for defects shall apply. These claims can be raised against WhiskyAuction.com. For consumers, the limitation period for warranty claims for used items is one year from the date of delivery.
For businesses, the limitation period for warranty claims is one year from the transfer of risk; this is without prejudice to the statutory limitation period for the right of redress in accordance with Item 478 of the German Civil Code (BGB).
In relation to businesses, only our own specifications and product descriptions from the manufacturer included in the contract shall be deemed to constitute agreed characteristics; we do not accept any liability for public or other promotional statements made by the manufacturer.
The delivered items are unique pieces. A remedy or corrective action is, therefore, impossible. The above limitations and reductions in limitation periods do not apply to claims for damage caused by our actions or the actions of our legal representatives or vicarious agents

·         as a result of injury to life, body or health

·         that constitute an intentional or grossly negligent breach of contractual obligations

·         as a result of a breach of material contractual obligations, which are essential for the proper performance of the contract and the fulfilment of which the contractual partner may routinely rely upon, (cardinal duties)

·         based on guarantees, where applicable

·         that fall under the scope of the German Product Liability Act.

Information regarding any applicable additional guarantees and their exact terms can be found on the relevant product page and on the information pages of WhiskyAuction.com.

XIII. Liability

At all times, we are liable without restriction for claims due to damage that has been caused by us, our legal representatives or vicarious agents

          in the event of injury to life, body or health,

          in the event of wilful or grossly negligent breach of obligation,

          in the event of guarantee assurances, if agreed, or

          if the scope of application of product liability law applies.

In the event of an infringement of material contractual obligations, which are essential for the proper performance of the contract and the fulfilment of which the contractual partner may routinely rely upon, (cardinal duties) through slight negligence on our part or on the part of our legal representatives or vicarious agents, the amount of liability is limited to the damage that was foreseeable and typically to be expected when the contract was concluded. For the rest, claims for compensation are excluded.

 

XIV. Dispute resolution

The European Commission provides a platform for online dispute resolution (ODR) which you can find here https://ec.europa.eu/consumers/odr/.

We are not obliged or prepared to take part in a dispute resolution procedure before a consumer dispute resolution body.

 

XV. Final provisions

If you are a business, the contractual relationship will be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on the Sale of Goods (CISG).

If you are a merchant pursuant to the German Commercial Code (HGB), legal entity under public law or special assets under public law, the sole place of jurisdiction for all disputes arising from contractual relationships between yourself and us is the place of our registered office.