TERMS AND CONDITIONS OF AUCTION OF THE ZAP
(1) The Zentrale Arbeitsgemeinschaft österreichischer Pferdezüchter (hereinafter referred to as ZAP) conducts auctions of horses of the Exhibitors (who are the brokers) on the online auction plat-form pro-bit werbeagentur e.K., Volker Bialluch, Elbestraße 1, D - 26135 Oldenburg, Germa-ny, and the role of ZAP is to act as an intermediary by providing a horse trading platform.
(2) The auction takes place in the name of a third party and for the account of a third party via the Internet; ZAP does not become a contractual partner of buyers and sellers.
(3) Horses (including foals) of all breeds, as far as their sale is legally permitted, are published for auction. Horses which, according to the circumstances, give rise to the suspicion that they have been stolen, embezzled or smuggled will not be published. The vendor assures the right of disposal of the respective exhibited horse.
(4) The ZAP is entitled to refuse the acquisition of horses without giving reasons.
(5) The contract of sale of the horse is concluded directly between the exhibitor as seller and the bidder as buyer. ZAP does not itself become a contracting party to the contracts con-cluded within the framework of the auctions.
B. Application, registration and use of the online account
(1) Participation in an auction as a bidder requires registration as a user of the online auction platform. Registration shall take place exclusively via the registration form provided on the online auction platform (hereinafter referred to as "Platform"). The operator of the online auc-tion platform is pro-bit Werbeagentur e.K., Volker Bialluch, Elbestraße 1, D - 26135 Olden-burg. There is no claim to registration and use of the web applications. If the platform should be temporarily unavailable due to unforeseen circumstances such as a server failure or a program error, etc., there shall be no claims against ZAP. In particular, ZAP shall not be liable for the availability, accessibility or quality of the applications and services provided by ZAP.
(2) Sending the registration form simultaneously represents a binding offer to the operator of the online platform to conclude a usage contract.
(3) The data requested as part of the registration process must be provided completely and correctly in the case of mandatory fields. In particular, it is not permitted to use a cover identi-ty. When registering, the user must truthfully state whether he uses the online auction platform in the exercise of his commercial or self-employed professional activity. In this case, the user must provide his VAT identification number.
(4) Natural persons must be of legal age and have full legal capacity at the time of registrati-on. When registering natural persons, only individual persons may be specified as users.
(5) The registration of a legal entity or partnership may only be made by a natural person au-thorized to represent the entity or partnership, who must be named.
(6) If the data provided during registration changes after registration, the user is obliged to update the information in his user account without delay.
(7) Each natural person, each legal entity and each partnership may only register once with the online auction platform. The user account is not transferable and may only be used by the person who has registered. In particular, bids may only be placed by the person who has re-gistered as a user. Registered users receive a password. Each user is obliged to keep the password secret.
(8) It is prohibited to manipulate the auctions conducted on the online auction platform by u-sing several user accounts or in cooperation with other users.
(9) The User shall keep his access data, in particular his password, secret, protect them from third parties gaining knowledge and access and not pass them on to unauthorized persons.
2. course of the auction
(1) The respective Internet auction begins with an offer placed on the Internet by ZAP on the platform. This is a declaration of intent by the exhibitor aimed at the conclusion of a purchase contract. At the same time, the bidding time is determined in the offer by stating "end of auc-tion". This offer cannot be accepted by a simple "yes", but it is a pre-declared acceptance of the highest bid. Only that highest bid shall be accepted which is validly submitted by a bidder within the stated bidding period in accordance with the terms and conditions of these GTC.
(2) Bids may only be submitted via the mask for registered bidders installed on the platform and only online.
Translated with www.DeepL.com/Translator (free version) (2) Bids may only be submitted via the mask for registered bidders installed on the platform and only online. Bids submitted in any other way will not be considered, even if they are received by ZAP during the Bidding Period. Bids for which the bidder has not declared that he agrees to the validity of these GTC for his specific bid and has taken note of the instructions on revocation will also not be accep-ted.
(3) Before a bid is placed, the content of the bid together with the customer data is summa-rized on an overview page. The bidder can correct his bid there using the change fields provi-ded. By clicking the "Place Bid" button, the bidder submits a binding bid for the conclusion of a purchase contract. Each bid of each bidder shall be submitted subject to the condition pre-cedent of the submission of a higher bid. The respective bidder shall be bound by the bid submitted until the end of the bidding period. Bids that are below the minimum bid will not par-ticipate in the auction, even if no higher bid is received by the end of the auction. The purcha-se contract for the auctioned horse shall be concluded without a separate knockdown by the effectively submitted highest bid of the registered bidder (user or customer) at the end of the bidding period.
(4) An effective bid must correspond to the minimum bid and be at least one bidding step above the bid of the previous bidder. The bidding step varies between € 50.00 and € 1,000.00 for the horses entered in the auction. The bidding is exclusively in Euro (€). The mandatory bidding step for the respective offer is to be taken directly from the offer. The bidder will be informed by e-mail or other suitable means on the Internet platform that his bid is accepted and also if he has been outbid. All bids stated are exclusive of the applicable value added tax.
(5) By entering a maximum bid, the bidder is legally bound to it and must pay this amount and any taxes if he is awarded the contract.
(6) The bids received shall be prioritized according to their time of receipt. If an award price applies to several identical bids, the award shall be made to the first bid received in terms of time.
(7) It is the responsibility of the respective bidder to monitor the status of his own bids and the progress of the online auction and to decide whether and up to what amount he wishes to continue bidding. A bidder who has been outbid by another bidder with a higher secret maxi-mum bid must set a new, higher, maximum bid in order to be able to continue bidding for the respective horse. In this case, the new highest bid or bid replaces all previous bids made by this bidder for the horse. If the highest bid of a new bidder is exactly the same as that of a bidder who submitted his highest bid before, this previous bidder will be listed as the highest bidder and will be awarded the contract, provided that he is not outbid any more and the mi-nimum price has been reached.
(8) The start time of the final of the online auction (Bid Up), is indicated by a countdown over the entire auction time in the upper area of the website. If the time stops at 00 days 00:00:00, the so-called Bid Up will start automatically. The auction end of each lot is moved back by 3 or 5 minutes from the previous lot according to the auction conditions. Example: If the Bid Up starts with Lot 1 at 20:00, the start time for Lot 2 is at 20:03. In the last 3 minutes before the final end of the auction of a lot, each bidding activity extends the countdown timer by another 3 minutes. In other words, if a bid is placed when there are only 35 seconds left, the timer will be set to 3 minutes and 00 seconds. If no further bid comes in during this time, the auction ends and the hammer price is displayed on the Bid Board. An extension of the closing time for a previous lot, does not lead to an extension for the following lot.
(9) Notification of the conclusion of the contract: The bidder who has submitted the highest valid bid at the end of the auction shall be notified thereof in text form by e-mail or by other means on a durable data medium. The receipt of the notification is the confirmation of the already concluded purchase contract and not an additional condition for its conclusion. Bid-ders who have not submitted the highest bid will not receive any notification. The highest bid will only be named anonymously on the platform immediately after the end of the bidding pe-riod.
(10) If, at the end of the auction, the Buyer has become the highest bidder through his bid in accordance with the terms and conditions of the auction, a contract has been concluded between the Buyer and the Seller. The buyer is obliged to take over the horse and to pay the agreed purchase price. Reference is made to the other provisions on liability and obligations as well as on the right of withdrawal in the auction conditions.
(11) ZAP is entitled, at its discretion, to block registered bidders for individual auctions of indi-vidual objects or for a certain period of time or in general and thus to exclude them from the right to participate in auctions on a limited or unlimited basis. This is only permissible if there is an important reason which shows that the continuation of a legal relationship with the blocked person is no longer reasonable for ZAP.
(12) ZAP may terminate an auction at any time before the end of the bidding period if it deci-des to do so in its reasonable discretion for an objective reason. In the event of system failu-res due to technical circumstances, ZAP is also entitled to cancel the auction; in this respect, ZAP expressly reserves the right to revoke the respective offer placed on the Internet. The decision to cancel the auction will be communicated on the Internet platform with a keyword-like indication of the reason. The bids already submitted shall expire without replacement up-on such notification. This reservation to cancel the offer for sale to the highest bidder expires at the end of the auction in the case of an auction conducted in accordance with the an-nouncement and terminated at the end of the bidding period, without the need for a separate declaration by ZAP. Claims for damages by bidders in the event of technical problems in the handling of the Internet auction, in particular in the event of system failures, non-access of bids or their rejection for technical reasons are excluded.
(13) If doubts arise as to the validity of the acceptance of a bid, the bid may be resumed and continued. Notification of doubts about the validity of the knockdown must be made no later than the final knockdown of the last horse in the auction. Only bidders of the respective horse, ZAP can register doubts about the validity of the knockdown. In case of dispute, ZAP shall decide.
C. Auction Object
(1) Horses put up for auction on the platform are offered with the following information on pedigree, age, sex and color. The short information is taken from the exhibitors as well as from the breeding data. The successes refer to Austria, if not otherwise described. No gua-rantee for the breeding suitability, as well as the correctness of the data and explanations of the exhibitors, as well as the participants is taken over.
(2) The horses entered in the Internet Auction have been clinically examined in preparation for the Internet Auction. In addition, all two-year-old and older horses have been x-rayed. X-rays of the following standard projections have been taken:
- Toe front bilateral 90°, hoof front bilateral 90° and hoof front bilateral 0° according to Ox-spring.
- Toe rear 90° on both sides, hock joint 0° on both sides, approx. 45°, approx. 135°.
- Knee on both sides approx. 90° and 180°.
A veterinary examination report has been drawn up on the clinical examination carried out, which can be viewed by registered customers via a link at the horse entered in the auction. Point C. (2) does not apply to foals.
(3) The bidder is advised to have the veterinary examination protocol interpreted by his own veterinarian at his own expense. The latter may request the radiographs from the producing veterinarian at the bidder's expense. The bidder is strongly advised to make use of this possi-bility of being informed about the health condition of the respective horse in his own interest. He cannot place a bid as long as he has not declared that he has received notice of the possi-bility of inspecting the examination documents prepared for the clinical examination and the X-ray images. The result in the form of objective findings of the written examination protocol, which refers exclusively to the clinical examination and is available for inspection, as well as the
(3) The bidder is advised to have the veterinary examination report interpreted by his own veterinarian at his own expense. The latter may request the radiographs from the producing veterinarian at the bidder's expense. The bidder is strongly advised to make use of this possi-bility of being informed about the health condition of the respective horse in his own interest. He cannot place a bid as long as he has not declared that he has received notice of the possi-bility of inspecting the examination documents prepared for the clinical examination and the X-ray images. The result in the form of objective findings of the written examination protocol, which exclusively refers to the clinical examination and which can be inspected, as well as the condition visible on the X-ray pictures is a description of the health condition of the horse placed in the Internet auction, but does not represent an agreement or assurance regarding the condition of the horse.
(4) The location of the horse at the time after the end of the Internet auction is with the exhi-bitor.
D. Prices and Terms of Payment
(1) The hammer prices are net prices. All prices and bids quoted are therefore exclusive of the applicable value-added tax. This will be shown separately on the invoices. The sales tax shall be levied on the hammer price and shall amount to 0 % (private sale), 13 % (flat-rate farmer) or 20 % (farmer opting for commercial operation), depending on the assessment of the exhibitor. The corresponding sales tax rate is shown in the published data on the auction page for the respective horse after the name of the exhibitor. The sales tax will be indicated after notification by the exhibitor. ZAP does not assume any liability for the correctness of this information.
(2) ZAP charges an auction fee of 6.5% of the hammer price plus the applicable sales tax to both the bidder and the exhibitor.
(3) The exhibitor shall have a veterinary certificate prepared at his own expense, as required by Hagelversicherung. Copies of the certificate will be sent when the foal is registered for the online auction. The costs for the insurance (2% of the hammer price) will be paid by ZAP for the exhibitor.
(4) The settlement amount to the bidder will therefore be calculated as follows:
hammer price (net)
+ sales tax (depending on the seller's rate 0, 13% or 20%)
= gross amount (selling price) - subtotal
+ auction fee in the amount of 6.5% of the hammer price (net)
+ 0% sales tax (VAT-exempt according to §§ 2,12 UStG)
= settlement amount - final sum
(5) Upon confirmation of the conclusion of the purchase contract, the Bidder shall receive the invoice stating the price and the VAT. The deduction of cash discount is inadmissible.
(6) The purchase price is due immediately and without deduction upon confirmation of the conclusion of the purchase contract. The legal regulations concerning the consequences of default in payment shall apply. The delivery of the auctioned horse to the purchaser or to the carrier will only take place after payment of the purchase price. It is expressly pointed out that additional stall costs may be incurred even if payment is made in due time.
E. Place of Performance / Transfer of Risk / Transfer of Ownership
(1) The risk passes to the buyer at the end of the online auction, even if the horse initially remains in the custody of the organizer or exhibitor.
(2) The auctioned horses are ready for collection at the horse center Stadl-Paura. Separate agreements can also be made with the exhibitor that the horses can be collected directly from the exhibitor and that the handover takes place directly at the exhibitor's premises. An agree-ment to this effect requires the consent of ZAP.
(3) If a foal is to be sold, it will be ready for collection at the Stadl-Paura equestrian center as soon as weaning from the dam is permitted.
(4) If the collection does not take place on the agreed day of delivery, the horse/foal can be accommodated in the stables at the location in Stadl-Paura until collection at the expense and risk of the Buyer. In the absence of payment, the buyer shall be liable to pay damages to the exhibitor and ZAP for any damage resulting from the delay in payment. The equine passport is only due to the buyer after transfer of ownership.
(5) The Buyer shall be in default of payment if the settlement amount is not received in the account of ZAP within 7 working days (including Saturday) after the knockdown. The exhi-bitor is entitled to withdraw from the purchase contract and to sell the horse elsewhere if the buyer is in default of payment. In this case, ZAP is entitled to sell the horse elsewhere. In this case, the first buyer is liable for any shortfall in proceeds and is liable for damages to the ex-hibitor and also to ZAP.
(6) Ownership of the auctioned horses shall not pass to the purchaser until the purchase price plus auction fee and VAT have been paid in full. The transfer of ownership shall remain reser-ved until payment of all due claims arising from the business relationship. Before transfer of ownership, pledging, transfer by way of security, processing or transformation is not permitted without the consent of the organizer or seller.
F. Liability of the Seller
(1) The exhibitor is liable as seller for the following described and agreed condition of the hor-se at the time of transfer of risk:
- For the information given on the auction site regarding the pedigree and age, as well as sex and color
- the physical condition as documented:
- Toe front bilaterally 90°, hoof front bilaterally 90° and hoof front bilaterally 0° according to Oxspring.
- Toe rear on both sides 90°, hock on both sides 0°, approx. 45°, approx. 135°
- Knee on both sides approx. 90° and 180°
- for the description in the protocol of the clinical examination by the specialized veterinarians according to point C of these General Terms and Conditions. Any written or verbal statements by the veterinarian or other persons going beyond this protocol shall not result in liability on the part of the exhibitor.
(2) The Seller shall further be liable for ensuring that all information provided about the horse in the auction is correct and truthful and that the horse is not afflicted with hidden defects. The seller is further liable for being the legal owner of the horse and that no rights of third parties exist that restrict or prevent the sale. In all other respects, the statutory warranty provisions shall apply
(3) If the Buyer finds that there is a significant difference between the purchased horse and the Seller's description, the Buyer shall have the right to demand a reasonable discount from the price, or, in the case of significant defects or conditional qualities, the right to withdraw from the contract. Reference is made to the provisions of sections 922 ff ABGB. If the purch-ase contract is a business-related transaction for both parties, the purchaser shall immediately report the alleged defect.
(4) The price and performance risk shall pass from the Seller to the Buyer upon delivery of the horse.
G. Liability of ZAP
(1) In connection with the purchase of the horses offered, ZAP is not in any contractual relati-onship with the bidder. The contractual relationship between the bidder and ZAP only refers to the use of the auction platform in question. Purchase contracts are therefore concluded between the seller/exhibitor and the buyer. ZAP does not guarantee the correctness, authenti-city, completeness or legality of the offers; the contracting parties are responsible for this.
(2) ZAP does not provide any warranty for the horses sold via the auction platform. Any liabili-ty of ZAP and its representatives or vicarious agents for direct or indirect damages arising in connection with the use of the auction platform is rejected in its entirety, as ZAP does not become a contracting party to the sale. Any liability shall be limited to intent and gross negli-gence to the extent permitted by law. In any case ZAP is not liable for indirect damages, es-pecially not for loss of profit. The limitation of liability applies both to the organs and to the au-xiliary persons and vicarious agents, exhibitor and purchaser.
(3) The Exhibitor and the Purchaser undertake to indemnify and hold ZAP harmless from and against all claims of third parties asserted against ZAP by other users or other third parties due to infringement of their rights by the posted offers and contents, the auction procedure, the conclusion of the contract and the contents of the contract or due to any other use of the websites of ZAP.
(4) ZAP has no influence on the websites to which links are provided. ZAP does not assume any liability for the topicality, correctness, authenticity, completeness, security or quality of the information to be found there and expressly distances itself from all contents of such pages that contradict legal regulations. This also applies to all contents of the pages to which these links lead.
(5) In case of disputes between buyer and seller, the legal consequences shall be governed by Austrian law.
(1) ZAP reserves the right to make changes to the procedure of the online auctions. If chan-ges are made, they will be announced in due course. In case of non-feasibility of the online auction for whatever reason, for which ZAP is not responsible (official ban or similar), ZAP shall not be liable for any resulting damages of whatever kind. Services already rendered by ZAP are to be paid or will not be reimbursed.
(2) ZAP reserves the right to change or amend the online auction conditions for the future. Admitted bidders will be informed separately by e-mail of any amendments or supplements to these terms and conditions during ongoing auctions. The amended or supplemented terms and conditions shall only apply if the bidder submits a bid again after receiving the notice, thereby implicitly agreeing to the amendment.
I. Place of Jurisdiction / Severability Clause
(1) These General Terms and Conditions shall be governed by Austrian law, excluding the conflict of laws rules. The UN Convention on Contracts for the International Sale of Goods is excluded. The place of jurisdiction for all disputes shall be the Regional Court of Wels.
(2) Should individual provisions or parts of the terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions.
J. Data Protection
(1) ZAP collects and stores the data of the customers necessary for the business transaction. When processing the personal data of the customers, ZAP observes the legal regulations. Upon request, the customer will receive information about the data stored about his person at any time.
K. Revocation and Right of Withdrawal
(1) When concluding a contract with an entrepreneur in the sense of § 1 of the Consumer Protection Act (KSchG), consumers have the right to revoke the contract without stating reasons in accordance with §§ 3f KSchG. The revocation period is one week from the day of the conclusion of the contract. To exercise the right of withdrawal, the consumer must inform the entrepreneur and ZAP by means of a written statement (e.g. a letter sent by mail, fax or e-mail) about your decision to withdraw from this contract. To comply with the revocation period, it is sufficient for the consumer to send the notification of the exercise of the right of revocation before the expiry of the revocation period and the period begins at the earliest with the receipt of this notification.
(2) If you effectively revoke this contract, the seller has according to § 4 KSchG the buyer all received benefits including statutory interest from the date of receipt back, and the consumer for the horse made necessary and useful expenses. The consumer has to return the received services and to pay the entrepreneur an adequate compensation for the use, including a compensation for an associated reduction of the fair value of the service. If it is impossible or impracticable to return the services already provided by the entrepreneur, the consumer shall compensate the entrepreneur for their value, insofar as they are of clear and predominant advantage to him. Claims for damages shall remain unaffected.
(3) If the consumer has requested that the services, such as stabling of the horse, etc., should commence during the withdrawal period, the consumer shall also pay a reasonable amount for this.