General Terms and Conditions of Purchase and Sale

Transcription

1 General Terms and Conditions of Purchase and Sale 1. Introduction 1.1 FleetSelect B.V. (hereinafter referred to as FleetSelect ) is part of the BCA Group and purchases and sells Vehicles and related items (hereinafter all referred to as Vehicle ), for example through its websites and auctions. 1.2 FleetSelect purchases Vehicles from Sellers and sells these independently to Buyers. If a Bid is made for a Vehicle through a website of FleetSelect, the Bid is presented to the Seller. If the Seller accepts the Bid, the Vehicle is purchased by FleetSelect. Subsequently FleetSelect sells the Vehicle to the Bidder, who then becomes the Buyer. 2. Definitions In these general terms and conditions of sale and auction (hereinafter referred to as GTC ), the following terms shall have the following meaning: Bidder: the party, registered by FleetSelect, making a Bid for a Vehicle. A party can only be registered if it has fulfilled the requirements set out by FleetSelect, including provision of an extract of the Chamber of Commerce (not older than 3 months) and RDW company number. Bid: amount in euros offered for a Vehicle, received by FleetSelect and confirmed to the Bidder by FleetSelect. Hammer Price: the highest bid of the Buyer at the auction, at which the auctioneer closes the auction by bringing down the hammer. It is listed at the auction if that amount is inclusive or exclusive of VAT. Purchase Price: the bid price for which the Vehicle is sold (the Hammer Price), plus purchase costs, storage and transhipment costs, (remaining) private vehicle purchase tax, VAT and (any agreed) shipping costs. Buyer: Bidder with whom a sale and purchase agreement is concluded. Transfer of the Registration: legal act required to transfer ownership of or entitlement to the Vehicle to the Buyer or FleetSelect. Garaging Location: any location in the Netherlands or within 25 kilometres of the Dutch border, where Vehicles owned by FleetSelect are garaged verifiably. Rates: the rates as set out on the website In the event of a rate change, the rate applicable on the day the Bid was made shall apply. Access Code: the user name and password the Bidder or Seller receives after registering with FleetSelect for access to the online auctions of FleetSelect. Sale by Auction: the private sale of a Vehicle by FleetSelect. Seller: the party, registered by FleetSelect, selling Vehicles to FleetSelect. Vehicle: the Vehicle to be purchased and to be offered for sale by FleetSelect, as shown and in the condition described on the website / or in its online systems. 3. Applicability of the General Terms and Conditions 3.1 These GTC apply to and form part of all auctions and other oral, written and electronic offers and communications, transactions or agreements from, to or with FleetSelect. FleetSelect reserves the right to supplement or amend these GTC without prior notice if it deems this necessary for its business operations. In doing so FleetSelect shall take the interests of its contract parties into account, to the extent possible and reasonable. 1 6

2 3.2 Access Codes are only provided to Sellers and Bidders meeting the criteria set by FleetSelect. Use of the Access Code is subject to acceptance of these GTC. FleetSelect is entitled to revoke or temporarily suspend use of the Access Code provided. The Access Code is not transferable and may only be used by the registered person to whom the Access Code has been issued. In the event of non-compliance the Seller or Bidder forfeits an immediately payable penalty, not subject to mitigation or set-off, in the amount of 12,000.- for each breach. To the extent FleetSelect suffers damage or losses as a result thereof, it shall be entitled to full compensation - in addition to the penalty. 3.3 Registered persons can request a new access code during office hours. 3.4 The consignor and Seller of a Vehicle warrants towards FleetSelect that he is the owner or has full power to dispose of the Vehicle, that the Vehicle is not encumbered with any thirdparty rights, that the Vehicle has not been declared total loss, that the Vehicle has not suffered severe water damage, that the Vehicle has not been used as a taxi, lease car or police car, that the registration and chassis number are correct, that the mileage of the Vehicle is correct (and unaltered it is prohibited to use the Vehicle any longer) and that the data filled in on the registration form - if applicable - are correct, unless explicitly stated otherwise by the Seller in writing. Furthermore the Seller warrants that all obligations under the Procedure & Consignment Conditions of FleetSelect have been complied with, and that Seller has correctly stated whether the Vehicle is a margin or VAT vehicle and whether the Vehicle is subject to private vehicle purchase tax (BPM) or not. The Seller fully indemnifies FleetSelect for any and all third-party claims with regard to these warranties. 4. Sale and Transfer of Ownership to FleetSelect 4.1 The Seller is entitled to offer Vehicles it owns for sale to FleetSelect. The Seller shall make the vehicle registration number available to FleetSelect upon registration of the Vehicle with FleetSelect or as soon as possible after registration. 4.2 Any offer to sell by Seller is unconditional, at a price equal to the price to be determined by FleetSelect in consultation with Seller. 4.3 Sale of Vehicles by Seller to FleetSelect and the sale and purchase agreement are definitely concluded by sending of the purchase confirmation by FleetSelect to the Seller, or confirmation of the purchase in any other manner by FleetSelect. With this purchase confirmation FleetSelect accepts the unconditional offer to buy the Vehicles referred to in the purchase confirmation from the Seller at the agreed price. This means the sale and purchase agreement is concluded. 4.4 The Seller shall deliver to FleetSelect the Vehicles for which it wishes to grant immediate possession to FleetSelect. The Vehicles shall be delivered at a Garaging Location to be designated by FleetSelect. Upon delivery of the Vehicles the Seller shall hand over the keys (and any car papers) of the Vehicles to FleetSelect. The delivery of the Vehicles is to be regarded as a delivery to FleetSelect subject to the suspensive condition that a sale and purchase agreement is concluded between the parties and subject to the suspensive condition of Transfer of the Registration of the Vehicle to the trading stock of FleetSelect. 4.5 With regard to Vehicles remaining under the actual control of the Seller after the offer to sell and registration referred to in paragraph 1 of this article, the Seller or manager of the Garaging Location shall keep these Vehicles for FleetSelect from the time of sending of the purchase confirmation by FleetSelect. The purchase confirmation and these GTC together are to be regarded as stipulation and mutual statement required for transfer of ownership to FleetSelect for the Vehicle garaged at the Seller or at a Garaging Location. 4.6 Sending of the purchase confirmation and Transfer of the Registration of the Vehicle to the trading stock of FleetSelect results in the suspensive condition for delivery being fulfilled and is to be regarded as confirmation and statement for the delivery constitutum possessorium referred to. From that time FleetSelect is the owner of the Vehicles. 2 6

3 4.7 The purchase confirmation shall state the Purchase Price to be paid for the Vehicles by FleetSelect, on the understanding that FleetSelect shall subsequently send a specification which includes any costs to be settled. The Seller is entitled to receipt of the amount set out in the specification and will send FleetSelect an invoice for that amount, immediately after receipt of the said specification. 4.8 Until the time of transfer of ownership of the Vehicle from the Seller to FleetSelect, all risks - including but not limited to the risk of theft, damage or loss - are for the Seller. After transfer of ownership of the Vehicle the Seller shall take proper care of the Vehicle for FleetSelect whilst in its custody. Any damage to the Vehicle occurred after said transfer of ownership is deemed to be caused by the Seller and Seller shall compensate FleetSelect for this damage. 4.9 FleetSelect is entitled to retain the Purchase Price if there are doubts about the power of disposal of the Seller, doubts about the correctness of the Vehicle data provided by the Seller or doubts about others matters concerning the Vehicle and the related transactions. FleetSelect does not compensate interest. 5. Sale and Transfer of Ownership to Buyer 5.1 A Bidder is entitled to make Bids for Vehicles through the website of FleetSelect. A Bid is unconditional and irrevocable for a period of two (2) business days after expiry of the bidding period. 5.2 FleetSelect reserves the right, also after Bids have been made, to withdraw Vehicles from the sale or auction and repair mistakes without the Bidder being entitled to invoke any rights hereunder. 5.3 The sale and purchase agreement for a Vehicle between FleetSelect and Bidder shall only be concluded after FleetSelect has accepted the Bid for the Vehicle by sending a confirmation of sale. Sending of this confirmation of sale is to be regarded as acceptance of the Bid of Bidder, which makes Bidder the Buyer of the Vehicle. 5.4 The confirmation of sale is accompanied by an invoice to Buyer for the amount of the Purchase Price plus any costs and surcharges known at that time. 5.5 Without prejudice to the suspensive conditions referred to in article 5.6 the following applies to the delivery of Vehicles. A Vehicle sold to the Buyer in the manner described above, is delivered to the Buyer by FleetSelect by actually delivering the Vehicle to the Buyer, with the keys and papers. If it has been agreed with the Buyer that Buyer will collect the Vehicle at FleetSelect or a Garaging Location himself, then the delivery of the Vehicle to Buyer is effected when Buyer takes possession of the Vehicle at that Garaging Location. 5.6 The ownership of a Vehicle shall only pass to the Buyer after Buyer has paid the Purchase Price referred to in paragraph 4 to FleetSelect in full, and upon Transfer of the Registration of the Vehicle to the Buyer and the concurrent issue of a certificate of indemnification approved by the RDW to FleetSelect. Until that time FleetSelect remains the owner of the Vehicle. 5.7 The Buyer is not entitled to set off the amount payable against any alleged claim on FleetSelect. 6. Payment of the Purchase Price and Costs 6.1 FleetSelect charges costs to the Seller and Buyer at the Rates applicable at that time or at rates specifically agreed with the Buyer or Seller. 6.2 FleetSelect charges the Seller an amount of as standard compensation for termination of the sale and purchase agreement if the offer to sell a Vehicle is withdrawn after the purchase confirmation has been sent. 6.3 Any shipping costs are for the account of the Buyer. 6.4 The Buyer is obliged to transfer the Purchase Price as stated on the invoice referred to in article 5.4 within one (1) business day to the bank account indicated on the invoice sent. 3 6

4 6.5 In the event of late payment the Buyer shall be in default by operation of law and FleetSelect shall be entitled to charge interest, without further notice of default, at a percentage equal to the statutory commercial interest increased by 3%, to be calculated from the date of the confirmation of sale until the time of payment. If the Buyer fails to pay the Purchase Price due to FleetSelect in full within three (3) business days of the invoice date, FleetSelect shall be entitled (but not obliged) to terminate the sale and purchase agreement, without further notice of default, and to claim compensation from the Buyer. 6.6 If the Buyer remains in default with regard to payment of the Purchase Price due, all judicial and extrajudicial costs (including the cost of legal assistance) shall be for the account of the defaulting Buyer, with a minimum of In the event of termination the defaulting Buyer shall also be liable for a lower proceeds amount when the Vehicle is sold again and for the costs of this sale, but shall not be entitled to a higher proceeds amount. FleetSelect shall also be entitled to claim fulfilment in and out of court, as well as compensation. 7. Transfer of Registration and Shipment 7.4 After FleetSelect has received the full Purchase Price for the Vehicle, the Buyer shall transfer the registration of the Vehicle as soon as possible. After the Transfer of the Registration FleetSelect shall release the Vehicle for shipment or collection by the Buyer. 7.2 If FleetSelect arranges the shipment of a Vehicle, it shall endeavour to deliver the Vehicle to the Buyer within five (5) business days. The Buyer must be available from 8:30 a.m. to 5:30 p.m. on business days to take receipt of the Vehicle. If the Vehicle cannot be delivered at the address indicated by the Buyer, Buyer shall be obliged to compensate FleetSelect for the costs of returning, storage and insurance. These costs are immediately due and payable. 7.3 The risk of damage, loss and theft shall be for the account of FleetSelect during storage and transhipment, as well as during shipment by FleetSelect to the Buyer. This risk shall pass to the Buyer at the time of delivery to the Buyer or at the time of collection by the Buyer. 7.4 If the Buyer collects the Vehicle himself, he is obliged to do so within three (3) business days. FleetSelect is entitled to also charge a fee for collection by the Buyer. If the Buyer fails to collect the Vehicle in time, FleetSelect shall deliver the Vehicle to the delivery address. The costs of storage and shipment shall be passed on to the Buyer. These costs are immediately due and payable. 8. Guarantee, Complaints and Liability 8.1 FleetSelect makes a professional effort to make complete and accurate information available. However, it is possible that mistakes are made and that a Vehicle offered does not meet the expectations of the Buyer. Except in the case of intent or recklessness bordering on intent on the part of FleetSelect, FleetSelect cannot be held liable for any direct or indirect damage or loss suffered or to be suffered by the Buyer. 8.2 The Buyer is required to inspect and check a bought Vehicle immediately upon delivery. Any right of claim the Buyer may have against FleetSelect shall lapse: a) two business days (48 hours) after delivery; or b) earlier as soon as more than 50 kilometres have been driven with the Vehicle. The start mileage shall be the number of kilometres as indicated on the FleetSelect website; or c) as soon as the Buyer has sold the Vehicle. Claims will only be handled if received in writing via to klachten@fleetselect.nl, within the stipulated two (2) business days. Damage to the bodywork must at all times be accompanied by digital photos. In the event of a complaint, FleetSelect shall be entitled to perform a countercheck. The Buyer shall keep the Vehicle available for this purpose. 8.3 If the Buyer discovers damage to the bodywork upon delivery, which damage is not specified in the inspection report of FleetSelect, Buyer shall immediately report this damage directly on the shipment document (including carbon copies). 4 6

5 8.4 In the event of a claim an excess of excl. VAT shall apply to technical defects and an excess of excl. VAT shall apply to bodywork damage. Claims are always handled on the basis of net amounts, excluding VAT, for which repair is possible. No claim against FleetSelect can arise in respect of wear and tear of parts, unless on account of comments in the inspection report. Complaints in respect of reported parts, damage or defects shall be rejected. In the event of a claim FleetSelect expressly reserves the right to take back or repair the Vehicle concerned, with due observance of the applicable excess. 8.5 FleetSelect guarantees its inspection up to an amount of excl. VAT for complaints. Complaints in excess of excl. VAT are always for the account and risk of the Seller. 8.6 If an inspection report has been drawn up for a Vehicle by FleetSelect, that is only a snapshot of the day and time of the inspection. The technical inspection performed on vehicles is very limited. Furthermore the roof of commercial vehicles is not inspected for damage. The inspection report states what the inspection employee of FleetSelect observed at the day and time of the inspection. Therefore the inspection report only provides an indication of the condition of the parts of the vehicle mentioned in the said report. The provisions and limitations of this article also apply to vehicles for which an inspection report has been drawn up. 8.7 The Seller is always entitled to cancel a sale if no agreement can be reached on a complaint. In that case all shipping costs are for the account of the Seller. 8.8 The Buyer indemnifies FleetSelect for any and all damage and costs resulting from the possession or use of the Vehicle by Buyer. 8.9 FleetSelect is not liable for incorrect information provided by third parties, including the RDW or NAP The Seller expressly indemnifies FleetSelect for any and all claims of the Buyer with regard to the Vehicle and the conformity thereof, unless agreed otherwise. 9. Government Vehicles 9.1 Government vehicles shall be taken to mean: Vehicles with recognisable striping, logos or other identity elements, solely intended and reserved for use by parties designated by the government and involved in law enforcement, disaster response services or other specific legal tasks. This mainly concerns vehicles with ambulance, fire brigade, police, Dutch rescue brigade and Dutch military striping and logos. The purpose of the striping and logos is to make the Dutch emergency vehicles easy to recognise. In view of the special tasks and powers of these emergency services it is of the utmost importance that the public recognises these emergency vehicles at a glance. 9.2 The creator of the striping and logo (or other identity elements) has assigned the copyright thereto to the Dutch government. The IFV (Institute for Safety) is responsible, on behalf of the Dutch government, for ensuring that unauthorised use of the striping, logos or other identity elements is prevented as much as possible. Persons or bodies not forming part of the emergency services designated by the Dutch government may only use the striping, logos or other identity elements with the express consent of the IFV (on behalf of the Dutch government). 9.3 It is in no way permitted to export, sell or ship vehicles with the above-mentioned striping, logos or other identity elements abroad. 9.4 FleetSelect and the IFV have made arrangements to enable the sale of vehicles with striping, logos or other identity elements, both within and outside the emergency services. 9.5 These arrangements entail, among other things, that the Buyer of a vehicle with said striping, logos or other identity elements declares in writing to form part of the above-mentioned emergency services and that the vehicle will be used solely to perform the tasks of the relevant emergency service. 9.6 If the Buyer is not part of the above-mentioned emergency services, Buyer must sign a statement to the effect that within two (2) weeks of the sale all striping, logos and other identity elements will be removed or altered in such a way that these do not infringe the 5 6

6 rights of the Dutch government. This is to be assessed by the IFV. The Buyer must also declare that the vehicle with striping, logos or other identity elements shall not be exported or shipped abroad. FleetSelect shall send this declaration directly after the sale of the vehicle to the IFV. For more information visit the IFV website: Termination of the Agreement 10.1 If a Vehicle purchased from the Seller by FleetSelect is not sold by auction within four (4) weeks, or so much earlier or later as agreed between the Seller and FleetSelect, after being purchased by FleetSelect, then FleetSelect shall be entitled to terminate the sale and purchase agreement with the Seller for the Vehicle concerned If FleetSelect wishes to terminate the sale and purchase agreement for a Vehicle pursuant to the provisions of paragraph 1, FleetSelect shall notify the Seller thereof in writing. This written notification is to be regarded as the notice of termination After termination of a sale and purchase agreement FleetSelect shall return the Vehicle to the Seller by making the Vehicle available (with the keys and papers) at the site of FleetSelect or a Garaging Location to be agreed, where the Seller can collect the Vehicle, and by transferring the registration of the Vehicle in the name of the Seller After termination of the sale and purchase agreement pursuant to the provisions of paragraph 1 and return of the Vehicle, parties shall not owe each other anything with regard to that Vehicle From five (5) days after the withdrawal of an offer to sell by the Seller - by termination of the auction and sale procedure - FleetSelect shall be entitled to charge the Seller of the Vehicle parking costs If FleetSelect accepts a Bid at a dated, delayed, incorrect and/or otherwise not applicable price or condition, then FleetSelect shall be entitled - within 24 hours of acceptance of this Bid and sending the purchase confirmation - to notify the Bidder of the fact that there has been an error, thereby cancelling the sale. Such notification is to be regarded as the notice of termination (if required). FleetSelect is also entitled to do so if the error or inadequacy is not evident to the Bidder. In the event of cancellation or termination pursuant to the provisions of this article FleetSelect shall not be liable or owe any compensation to the Bidder or Buyer. 11. Permission to Use Personal Data Bidders, Sellers and Buyers agree to FleetSelect collecting, using and transferring their personal data in the context of FleetSelect s commercial activities. The personal data are used, among other things, for marketing and sales activities of FleetSelect and for making Bidders, Sellers and Buyers specific offers. FleetSelect may engage the services of third parties for these activities involving the use of personal data, meaning that the data may also be made available to these third parties. Bidders, Sellers and Buyers expressly consent to this. Bidders, Sellers and Buyers can withdraw this consent at any time and notify FleetSelect that their personal data may no longer be processed or used by FleetSelect. 12. Applicable Law and Competent Court These GTC, all agreements for the purchase or sale of Vehicles by FleetSelect and all auctions of FleetSelect shall be governed by Dutch law. Disputes relating to the agreements, auctions or these terms and conditions shall in first instance be exclusively submitted to the competent court in the district where FleetSelect has its registered office. Only the Dutch version of these terms and conditions shall be binding. This also applies if foreign Sellers, Buyers and/or Vehicles are involved, also via online auctions. Version: 1 September