10. Warranty; condition
The terms for warranty and condition are separated into Special Terms of Guarantee and Liability Associated with the Sale of Motor Vehicles (10.1.x) and General Terms of Guarantee and Liability for other goods than Motor Vehicles (10.2.x).
10.1 Special Terms of Guarantee and Liability Associated with the Sale of Motor Vehicles
10.1.1 Motor vehicles are sold in the condition in which they find themselves at the time of the acceptance of the bid and as they were before the auction when they could be visited and examined by the buyer, in keeping with point 3.1 of these Terms and Conditions. The condition of a motor vehicle is supplemented by the details in the auction catalogue relating to e. g. the type of motor vehicle (make, type, motorization), year of construction, history of the vehicle, distance travelled, equipment and – in as much as such details are contained in the auction catalogue – its described optical and/or technical condition. The details contained in the auction catalogue are made to the best of one's knowledge and belief and are based on the information available to Auctionata up to the point in time of the auction, particularly the details available to Auctionata from the motor-vehicle documents, from any details obtained from an expert assessor (TÜV, DEKRA, etc.) and from the disclosures of the relevant deliverer. Any farther-reaching condition is, on principle, not agreed on. A guarantee (section § 443 of BGB [German Civil Code]) for the condition of the motor vehicles is on principle not taken over. The "Auctionata" guarantee (point 11) does not apply to the sale of motor vehicles.
10.1.2 If the purchased motor vehicle proves to have a material defect (section § 434 of BGB [German Civil Code]) or a legal shortcoming (section § 435 of BGB), the rights and claims of the buyer arising in cases of defects from section § 437 of BGB are excluded, unless the following, or point 10.1.4, stipulates some alternative. If there is a material defect because details in the auction catalogue are incorrect and this is due to the fact that Auctionata has taken over in the auction catalogue details provided by the deliverer, although objective reasons existed, or must have existed, to doubt the correctness and/or completeness of these details, Auctionata will assign to the buyer all of its existing claims against the deliverer. Auctionata is free, against reassignment by the buyer of the above-mentioned type of assignment, to compensate the buyer for all claims against the deliverer. If the motor vehicle has a legal shortcoming, the buyer can withdraw from the purchase contract or can reduce the purchase price.
No farther-reaching liability for material defects and/or legal shortcomings exists on the part of Auctionata.
10.1.3 Claims due to material defects or legal shortcomings are subject to a limitation period of a year after delivery.
10.1.4 The restrictions of liability under the above points 10.1.2 and 10.1.3 are not applicable if Auctionata deceitfully withholds information on a material defect or on legal shortcoming of the motor vehicle, or if it has taken on a guarantee for the condition of the motor vehicle. Moreover, the above-mentioned restrictions of liability for a defect of the sold motor vehicle find no application to the liability of Auctionata for compensation – regardless of the legal grounds – in cases of malintent or gross negligence. In cases of slight negligence Auctionata will only be liable for damage for injury to life, to limb or to health, and for damage arising from violation of a non-insignificant contractual obligation (an obligation on the fulfilment of which the proper and orderly implementation of the contract is dependent and on compliance with which the contract partner regularly trusts and is entitled to trust); in the latter case, however, Auctionata's liability is limited to restitution of the foreseeable, typical level of damage occurring. An intentional or negligent breach of duty on the part of Auctionata is equivalent to such breach of duty on the part of its legal representatives or agents
10.2 General Terms for other goods than Motor Vehicles
10.2.1 The warranty period for consumers will be two years from the date of delivery of the item. For business owners and for purchasers of a used item, the warranty period will be one year from the date of delivery of the item.
10.2.2 An item’s auction catalogue description will define the characteristics contractually agreed for that item insofar as the catalogue description relates to the item’s authorship, manufacturer, date of manufacture/creation, technique of fabrication or affixed signature. The information provided on the item’s provenance, by contrast, will be expressly excluded from the contractually agreed characteristics. If an announcement made in connection with an auction contains representations regarding an item’s authorship, manufacturer, date of manufacture/creation, technique of fabrication and/or affixed signature and these representations deviate from the corresponding catalogue description, then the announcement will prevail in this regard. If, during an auction, the auctioneer makes oral representations regarding an item’s authorship, manufacturer, date of manufacture/creation, technique of fabrication and/or affixed signature and said representations deviate from the corresponding catalogue description, then the auction catalogue will invariably prevail. If, during an auction, an expert not employed by Auctionata makes oral representations regarding a given item, then these are to be regarded as personal opinions/appraisals of the expert for which Auctionata assumes no liability.
10.2.3 Since items offered at auction are generally used items, their individual condition will specifically include signs of prior usage and other traces of age. Thus, a given item’s actual and individual state of conservation – as shown and described in the auction catalogue – will be deemed to form part of its contractually agreed characteristics. Insofar as the auction catalogue describes an item as exhibiting blemishes, damage and/or defects which no longer correspond to the normal condition of a used item and which are likely to fundamentally reduce the value of the item, then this information will also be deemed part of the contractually agreed characteristics, so that no warranty will be assumed in this regard. The prospective purchaser will have the option to view items before an auction in accordance with Clause 3.1.
10.2.4 Deviations between an item’s actual shade of color and the one shown in the auction catalogue, insofar as they result from the photographic techniques used (e.g. lighting and/or sharpness of the image) or from the manner in which the item is pictured in the auction catalogue, will be deemed immaterial and will not represent a defect. This will not apply, however, if the deviation in color is due to negligence on the part of Auctionata.
10.2.5 If an item’s catalogue description explicitly includes a caveat or restriction regarding the reliability of the information provided, then said information will not form part of the agreed characteristics. In this case, the purchaser will purchase the item at his own risk as far as the information in question is concerned. If a catalogue description explicitly refers to an item as a “copy” (e.g. as a “museum copy”), then the item in question will be deemed purchased as a copy and not as an original, thereby precluding any warranty for defects in this regard. If the catalogue description explicitly describes or designates an item as being "of doubtful authenticity", then said item will be deemed purchased not as an original but as an “item of doubtful authenticity”, thereby precluding any warranty in this regard. Inasmuch, neither the starting auction price nor the final hammer price of an item can be used to draw inferences about the actual characteristics or authenticity of that item.
10.2.6 The transaction will be unwound in accordance with the relevant statutory regulations. Accordingly, each Party must first of all return any benefits it has received under the contract. In other words, Auctionata must reimburse the purchaser for the purchase price paid, while the purchaser must return the purchased item(s) to Auctionata. A different procedure will be followed in the event that an item returned by the purchaser has deteriorated or perished in the meantime, whereby deterioration resulting from the item’s proper use will be disregarded. In this case, the debtor must,as a rule, pay compensation for the item’s value in lieu of returning it (cf. Section 346 Paragraph 2 Number 3 German Civil Code (BGB)). The item’s purchase price will be used as the basis for calculating its replacement value. The relevant statutory warranty regulations will also apply in this context; this means, for example, that the purchaser may also demand abatement of the purchase price.
10.2.7 If, based on the foregoing provisions, a situation arises in which the purchaser is not entitled to any warranty claim, whereas Auctionata is entitled to claims against the consignor, then Auctionata will be obligated to assert its claims against the consignor. If such claims are asserted successfully, the purchaser will be entitled to receive disbursement of the sums recouped up to the amount of the purchase price.