General Auction and Sales Terms and Conditions
General Auction and Sales Terms and Conditions
of the private limited company BVA Auctions B.V., with its registered office in Hoevelaken (Chamber of Commerce number 32118690) as well as the (legal) entities affiliated with it filed at the Chamber of Commerce
Section 1; Definitions
In these general sale and auction conditions, the following terms are defined as stated below:
a. Offer: a private offer from BVA, for itself or not, to sell one or more Objects;
b. BVA: BVA Auctions B.V., with its registered office in Hoevelaken and principal place of business at Bijenvlucht 32 in (3871JJ) Hoevelaken and/or the (legal) entity affiliated with it that declares that these Terms and Conditions apply;
c. (Prospective buyer: the natural person or legal entity that takes part in an Auction or has received an Offer
from BVA;
d. Bid: a sum of money, including Mark-up, surcharge, VAT and Premium offered by a (Prospective) Buyer for a Lot or a combination of Lots in writing or via the BVA website;
e. Consumer: a (Prospective) Buyer who is a natural person and who does not act in the practicing of a profession or the running of a business;
f. Liquidator: a receiver appointed by a district court, who has been given the management and possession of the assets that form part of a bankrupt estate;
g. Form: the form referred to in section 2.2 of these Conditions;
h. Lot: one or more Objects that are auctioned, whether or not under an auction number;
i. Combination Lot: a combination of lots, auctioned under an auction number;
j. Purchase Price: in the event of an Auction: the amount of the highest Bid (in the case of a buy with one or more Lots being allocated to the buyer, plus the amount of the buy) increased by the following amounts: the Mark-up, the turnover tax payable by the Purchaser and (if offered) the Premium. If there is no Auction: the purchase price offered by the Purchaser for one or more objects,
plus the VAT payable on that;
k. Purchase Agreement: a purchase agreement between the Seller and the (Prospective) Buyer, concluded via an Auction or otherwise;
l. Buy: a successful bid made by a (Prospective) Buyer for a Lot or a combination of Lots by Dutch auction;
m. Mark-up/Auction costs: 16% of the Bid (or so much more or less as BVA has announced prior to the auction) as mark-up for BVA (plus the VAT payable on this amount as mark-up);
n. Premium: the amount (the extent of which is stipulated by BVA prior to the auction and announced to those present at auction) that is at the expense of the buyer and due to the highest bidder in the event that a Lot or combination of Lots is auctioned by Dutch auction and the Lot or combination of Lots is allocated to the buyer;
o. Allocation: the explicit declaration from BVA to the (Prospective) Buyer containing the statement that the purchased object has been permanently allocated to him in return for payment of the Purchase Price at Auction;
p. Auction: the public sale of one or more Lots, online or otherwise and within the framework of a sale under execution or otherwise;
q. Seller: the natural person or legal entity that has instructed BVA to sell or auction one of more Objects, under execution or otherwise, on behalf and at the expense of the Seller. If any document (including advertisements, announcements, pro forma or draft invoices, invoices) states that the sale and/or Auction takes place on the instructions of a third party, BVA is deemed to conduct the sale and/or Auction on behalf of the Seller, unless explicitly otherwise stipulated in writing in the Purchase Agreement and/or the written notifications relating to an Auction;
r. Conditions: these general auction and sale Conditions;
s. Objects: one or more goods and/or services
Section 2; Applicability
2.1 These Conditions apply to any Auction held by BVA, any Offer, any registration made by a (Prospective) Buyer as outlined in section 2.2 of these conditions, and any (Purchase) agreement concluded with BVA, including any corresponding acts, both of a preparatory and executive nature, and form an integral part of that. The parties can only deviate from these Conditions in writing. BVA and the Seller explicitly dismiss the applicability of the general or special (purchase) conditions of the (Prospective) Buyer.
2.2 In the event of Auction, each (Prospective) Buyer indicates to be familiar with and agree to these Conditions by registration via the appropriate form on www.bva-auctions.com or www.bva-auctions.nl or by completing an appropriate form prior to the Auction.
2.3 In addition to these Conditions, BVA can declare special conditions applicable. In the event that special conditions of BVA conflict with these Conditions, the provisions in the special conditions prevail.
2.4 In the event that these Conditions are changed in the interim, the changed version thereof forms part of any Auction (to be) organised and/or agreement concluded after the change has taken effect.
Section 3; Conditions for participation in an Auction
3.1 The (Prospective) Buyer must be of age and must be authorised to perform legal acts. Prior to the start of the BVA auction, the (Prospective) Buyer must register by means of the Form and properly identify himself on demand, failing which he is not entitled to take part in the Auction. By completing the Form, the (Prospective) Buyer gives BVA express permission to use his or her personal details in agreement with the provisions contained in Section 4.
3.2 The (Prospective) Buyer is obliged to ensure that the Form is completed in full, correctly and truthfully and he guarantees that the details provided by him are correct and complete. The (Prospective) Buyer must immediately notify BVA in writing of any changes to the details provided.
3.3 (Prospective) Buyers must demonstrate that they are creditworthy on demand and to the satisfaction of BVA, failing which BVA can deny them participation in the Auction.
3.4 The user name and the password that is used by the (Prospective) Buyer with regard to an Auction are strictly personal and may not be transferred to third parties by the (Prospective) Buyer. If the (Prospective) Buyer should fear that someone else is aware of his or her password, the (Prospective) Buyer must inform BVA about this immediately. BVA shall, in this case, block further access to ensure that misuse in the name of the (Prospective) Buyer is avoided. The (Prospective) Buyer shall subsequently receive a new password at his or her request. The (Prospective) Buyer shall always remain liable even when his/her password and/or user name are misused with regard to all actions that take place at an Auction and the (Prospective) Buyer shall indemnify and compensate BVA with regard to all losses that arise from the misuse and/or use of his/her password and/or user name. BVA shall be entitled at all times to demand compliance from the (Prospective) Buyer with regard to bids that have taken place by using the password and the user name of the (Prospective) Buyer.
3.5 The (Prospective) Buyer shall have access to an Auction and shall be entitled to act as a bidder by registering using the method defined in paragraph 1 of Section 3. BVA retains the right to refuse and/or to unilaterally terminate registration and participation in an Auction.
Section 4; Privacy Declaration
4.1 The (Prospective) Buyer hereby grants permission to BVA to save the data in its administration that the (Prospective) Buyer issues when registering using the method described in paragraph 1 of Section 3 and to have BVA and its affiliated businesses to use the data for the following goals:
• For checking purposes;
• To supply its services;
• To process a bid placed by the (Prospective) Buyer (including sending invoices) and to inform the (Prospective) Buyer about the development thereof;
• To inform the (Prospective) Buyer about auctions that are being organised; if the (Prospective) Buyer should not wish to receive this information, the (Prospective) Buyer can indicate this by contacting BVA’s customer services. The contact details can be found by, for example, visiting http://bva-auctions.com/content/contact;
• To inform the (Prospective) Buyer about auctions of products and services that have been selected on the basis of the personal preferences of the (Prospective) Buyer; if the (Prospective) Buyer should not wish to receive this information, the (Prospective) Buyer can indicate this by completing and sending the Form and/or by contacting BVA’s customer services. The contact details can be found by, for example, visiting http://bva-auctions.com/content/contact;
• To inform the (Prospective) Buyer about changes in the functionality of the auction website;
• To provide data to third parties on the basis of a legal obligation;
• To make the details of the (Prospective) Buyer available to third parties within the framework of judicial proceedings;
• To contact the (Prospective) Buyer for marketing purposes; if the (Prospective) Buyer should not wish to receive this information, the (Prospective) Buyer can indicate this by contacting BVA’s customer services. The contact details can be found by, for example, visiting http://bva-auctions.com/content/contact;
• To make the details of the (Prospective) Buyer available to third parties (including the Seller) within the framework of processing an Auction;
4.2 BVA, furthermore, keeps information with a view to compiling user statistics as well as to ensure the auction website is secure;
4.3 In addition, BVA may gather and analyse information about the way in which the (Prospective) Buyer uses the auction website. A Cookie may be used by BVA in relation to the above. This is a short text file that is saved by a browser in the computer that is used by the (Prospective) Buyer. The (Prospective) Buyer can configure his or her browser in such a way that the (Prospective) Buyer shall not receive any Cookies while visiting the auction website. When this is the case, it may be possible that the (Prospective) Buyer cannot use the options offered by the auction website or that the (Prospective) Buyer has no access to parts of the auction website. Furthermore, information is saved in a Cookie to ensure that the next visit to the BVA auction website is made simpler.
4.4 It may be the case with regard to the further growth and development of BVA that one or more components or assets of the company of BVA shall be transferred to a third party. When this is the case, personal details from the (Prospective) Buyer that are kept and used by BVA in agreement with the provisions made in Section 3 and this Section 4 may be transferred to a third party by BVA. The (Prospective) Buyer grants his or her express permission for this now for when this should be the case by accepting these Terms and Conditions.
4.5 BVA may use the personal details of the (Prospective) Buyer for new objectives that have not yet been foreseen in the privacy provision contained in this Section. BVA may inform the (Prospective) Buyer about this via the auction website www.bva-auctions.com and the auction website www.bva-auctions.nl when the occasion arises before carrying this out. The (Prospective) Buyer comes to the agreement with BVA with regard to this issue that the (Prospective) Buyer shall always consult the Terms and Conditions as saved on www.bva-auctions.com and www.bva-auctions.nl before visiting an Auction/the auction website so that the (Prospective) Buyer is always fully aware of the latest changes. The provisions included in paragraph 4 of Section 2 shall apply accordingly.
4.6 The (Prospective) Buyer may view the data that BVA collects about him or her should he or she wish to dos so. He or she may also have the data corrected insofar as the information may be incorrect.
Section 5; Auction Procedure
The preparation and execution of the Auction are stipulated exclusively by BVA. This means among other things that BVA stipulates the course of events prior to and during the Auction, and that it has the authority to grant persons access to the Auction or not - without giving reasons - not to auction one or more Lots or to change (the composition of) Lots, not to acknowledge and nullify a Bid or Buy, to suspend, resume, extend or cancel the Auction and/or to take any other measures it deems necessary.
5.1 Every person is obliged to observe the instructions and directions given by or on behalf of BVA within the framework of an Auction.
5.2 The Auction shall be held in the sequence outlined in the auction catalogue. However, BVA is entitled to depart from this sequence.
5.3 BVA is entitled to make audio and visual video recordings prior to, during and after the Auction and to use and publish these video recordings as it sees fit.
5.4 This concerns sales by auction, unless BVA stipulates that the auction, or part thereof, shall be by Dutch auction. BVA is at all times entitled to change the auctioning method during the Auction. Both in the case of sales by auction and an Auction by Dutch auction, a(n) (public) invitation by BVA to make an offer is made on behalf and at the expense of the Seller.
a(n) (public) invitation by BVA to make an offer is made on behalf and at the expense of the Seller.
5.5 The Auction can relate to sales under execution or to sales that
are not under execution. In the event of a sale under execution, the sale shall be made in the presence of a civil-law notary.
Section 6; Conditions of the Objects
6.1 The (Prospective) Buyer buys the Object at his risk, in the condition it is in at the time of the sale, with all the benefits and burdens. Section 7:19 of the Netherlands Civil Code applies, also to sales that are not under execution. Any pipes, cables and other connections on the purchased objects only form part of the purchased object up to the first cut-off valve, fitting or mark, unless otherwise stipulated by law or BVA. Underground or bricked-in pipes, cables or other connections do not form part of the purchased object, unless explicitly stipulated otherwise by BVA.
Section 7; Conclusion of Purchase Agreement in the Event of an Auction
7.1 In the event of an Auction, BVA is entitled to reject Bids without stating the reason. Bids in writing must be made by means of the appropriate, completed form signed by the (Prospective) Buyer, which must at least state the (Prospective) Buyer’s full name and first name(s), date of birth, address and place of residence, the lot number that is the subject of the bid and the price offered (exclusive of VAT, surcharge, Mark-up and Premium). The (Prospective) Buyer is bound to a Bid, which is deemed irrevocable and unconditional. Neither BVA, its employees nor the Seller are in any way liable for losses caused during or in connection with a Bid, unless the loss is the result of intent or gross negligence on the part of BVA or the Seller, or their supervisors and/or subordinates, or any of the agents they have hired.
7.2 BVA and the Seller are entitled to participate in the Auction and to make Bids for the Lot(s) offered by the Seller at auction.
7.3 BVA is entitled to make Bids and Buys on behalf of third parties.
7.4 Each Bid and Buy is deemed unconditional and irrevocable. Each Person making a Bid or Buy is deemed to bid or buy on his own behalf and is personally liable for the obligations arising from his/her Bid/Buy. This also applies if the person who makes the Bid or Buy declares to act on behalf of a third party.
7.5 If more than one person declares to make or have made a joint Bid or Buy, they shall be severally liable for the obligations arising from that.
7.6 BVA decides whether, when a Bid or Buy is made, an error is made to such an extent that the Bidder/Buyer cannot be held to his Bid/Buy. (Prospective) Buyers cannot derive any rights from BVA’s decision in this respect.
7.7 The (Prospective) Buyer who makes the highest Bid or Buy shall be deemed buyer following Allocation. In the event of a difference of opinion between (Prospective) Buyers, BVA shall decide by way of a binding advice who is deemed to have made the highest Bid or Buy, without the (Prospective) Buyers being able to derive any right from that.
7.8 The second highest bidder is obliged to honour his Bid until the day on which the Object can be collected or delivered, in case the highest Bid is declared invalid or cannot be honoured, for instance because the highest bidder fails to fulfil his obligations or fails to do so in full, or because the agreement with the highest bidder fails to materialise for whatever reason.
7.9 In the event of an Auction, the Purchase Agreement is concluded at the time of Allocation.
7.10 The (Prospective) Buyer is aware of the fact that the Objects offered for sale by BVA are owned by the Seller mentioned in the Purchase Agreement. Insofar as a third party acts as Seller in the Purchase Agreement instead of BVA, BVA only acts as mediator within the meaning of section 7:425 of the Netherlands Civil Code. In that case, BVA acts on behalf and at the expense of the Seller and no purchase agreement is concluded between BVA and the (Prospective) Buyer. This is the case when the Auction announcement, auction catalogue and/or other notifications from BVA indicates that the Auction or Sale is held on the instruction of a third party, appointed or otherwise. These Conditions apply, regardless of who acts as Seller.
Section 8; Conclusion of Purchase Agreement Outside Auction
8.1 The quotations issued by BVA are free from obligation.
8.2 Unless stated otherwise, the prices quoted by BVA are exclusive of VAT, clearance charges, import and export duties and other levies, taxes, rights and expenses.
8.3 If no Auction is held, the Purchase Agreement is concluded when BVA accepts the Offer on behalf of the Seller.
8.4 The provisions included in paragraph 10 of Section 7 of these Terms and Conditions shall apply accordingly if a Purchase Agreement is concluded while an Auction is not involved.
Section 9; The (Prospective) Buyer’s obligation to inspect
9.1 The (Prospective) Buyer is given the opportunity to inspect the Goods to be purchased prior to concluding the Purchase Agreement.
9.2 Descriptions of the Objects and all information provided by or on behalf of BVA are provided to the best of their knowledge and are for indication purposes only, without BVA or the Seller guaranteeing the correctness thereof. When BVA shows or provides a sample, model or example, this is always done for indication purposes only. The qualities of the Goods to be delivered may deviate from the sample, model or example. (Prospective) Buyers cannot make any claims to or derive any rights from said descriptions, samples, models, examples and other information. BVA is entitled to correct inaccuracies in verbal and written statements and mistakes (whether or not at Auction) made by or on behalf of them, without (Prospective) Buyers being able to derive any right from that. BVA is not liable for any inaccurate or incomplete descriptions of the Objects. The (Prospective) Buyer is not entitled to revoke a Bid or to terminate the Purchase Agreement if it emerges that the Object does not comply with its description.
9.3 Upon delivery of the Objects, the (Prospective) Buyer is obliged to properly inspect the purchased Objects as further described in Section 11 of these Terms and Conditions. The (Prospective) Buyer must verify if the supplied goods comply with the agreement, i.e.: whether the correct Objects have been delivered, and whether the purchased Objects comply with the agreement as regards their quantity (e.g. numbers and volumes). Partly with a view to the fact that the purchased Objects are used, i.e. they are not new, they are sold in the condition they are in at the time of their delivery, as described in section 11 of the Conditions, and that any faults or shortcomings must be reported to BVA no later than at the time of delivery. Section 7:19 of the Netherlands Civil Code applies.
Section 10; Payment, Security Deposit, Terms
10.1 The (Prospective) Buyer must pay the Purchase Price into the appropriate BVA bank account within the delivery term set by BVA and further described in Section 11 of the Terms and Conditions. The (Prospective) Buyer is in default by operation of law when the aforementioned term has lapsed and no full payment has been made. In the event that the (Prospective) Buyer fails to fulfil any of his obligations, BVA is entitled to publically or privately resell the plots at its exclusive discretion, without any announcement or notice being required. At the request of BVA, the (Prospective) Buyer shall immediately pay any outstanding balance arising from the resale, 16% commission charges and all losses caused by his default, which losses are suffered both by the Seller and BVA. From the moment it is in default, the (Prospective) Buyer owes interest on the due and payable penalty, equal to the statutory interest + 2%, unless the Purchase Agreement qualifies as a trade agreement as referred to in section 6:119a of the Netherlands Civil Code. In the latter case, the (Prospective) Buyer owes BVA the statutory commercial interest referred to in section 6:199a of the Netherlands Civil Code.
10.2 Payment shall be made without discount or set-off, insofar as permitted by law.
10.3 BVA is entitled to demand immediate full or partial payment of the Purchase Price from the (Prospective) Buyer the moment that or after the Purchase Agreement is concluded and/or to demand surety for the fulfilment of his obligations towards BVA or the Seller. In the event that the (Prospective) Buyer fails to do so in the event of an Auction, BVA is entitled not to acknowledge the Bid/Buy, to declare it invalid and to auction the purchased object again or to allocate it to the second highest bidder. In the event that the (Prospective) Buyer fails to comply when no Auction is held, BVA has the right to terminate the Purchase Agreement on behalf of the Seller. In that case, the (Prospective) Buyer is in default by operation of law, and is obliged to compensate BVA for any losses as a result of that, suffered by both the Seller and BVA, without prejudice to BVA’s other rights.
10.4 All terms to be observed by the (Prospective) Buyer shall be regarded as deadlines, so that the (Prospective) Buyer shall be in default without any notice being required when it exceeds such deadlines.
10.5 Any payments made by the (Prospective) Buyer shall first be applied to settle all interest and costs payable and, secondly, to settle outstanding invoices that have been payable longest, even though the (Prospective) Buyer has stated that the payment relates to a later invoice.
10.6 In the event that BVA takes collection measures against the defaulting (Prospective) Buyer, the costs relating to that collection shall be at the expense of the (Prospective) Buyer, subject to a minimum of 10% of the outstanding amount.
Section 11; Taking Delivery
11.1 The (Prospective) Buyer is obliged to take delivery of the purchased Objects at the location and date stipulated by BVA, failing which he shall do so within the appropriate term stipulated on www.bva-auctions.com on submission of valid proof of ID. Transfer of title of the purchased Goods takes place by way of taking delivery. The (Prospective) Buyer takes delivery by collecting the purchased Objects. The risk of the purchased Objects lies with the (Prospective) Buyer from the moment of delivery. Taking delivery or transfer of title takes place under the suspensive condition that the full Purchase Price and any other monies owed by the (Prospective) Buyer are paid and - when one or more Objects are sold on the instruction of a Curator - on the resolutive condition that the delegated judge has given his permission to conclude the Purchase Agreement. Should the (Prospective) Buyer refuse to take delivery or fail to provide information or instructions required for the delivery, BVA shall store the purchased Objects at the (Prospective) Buyer’s risk. In that case, the (Prospective) Buyer is obliged to pay BVA all additional costs, including in any case the storage costs, transportation costs and disassembly costs, in which case BVA shall only deliver the Objects if and as soon the aforementioned costs have been paid in full.
11.1 Upon delivery of the purchased Objects, the (Prospective) Buyer must exercise adequate caution and unconditionally follow the instructions given by or on behalf of BVA and do so in full. If the purchased Objects must be disassembled within the framework of the delivery, the (Prospective) Buyer must arrange for this to be done in a professional manner at his expense and risk. The (Prospective) Buyer is not entitled to disassemble objects not relating to the Objects purchased by the (Prospective) Buyer unless it has received the express written consent of BVA. The (Prospective) Buyer is liable for any damage that arises during or within the framework of the delivery of the purchased Objects, and he shall indemnify BVA and the Seller against any third-party claims in that respect. On demand of BVA, the (Prospective) Buyer is obliged to give BVA security in the event that the purchased Objects are damaged within the framework of the delivery. No interest is paid on any deposits paid by the (Prospective) Buyer.
11.3 In derogation from the provisions in paragraph 1 of Section 11, the purchased objects are delivered by BVA or a haulier hired for that purpose to the (Prospective) Buyer’s address, if agreed upon in writing in advance. In that case, the risk of the purchased objects transfers to the (Prospective) Buyer from the moment of delivery. Also, in that case, the purchased Objects are transported at the expense of the (Prospective) Buyer, who must pay BVA the relevant costs within 14 days, unless stipulated otherwise, of receiving the relevant invoice.
11.4 An agreed period of delivery is not considered a deadline, unless expressly agreed otherwise in writing.
11.5 An agreed period of delivery commences only after the (Prospective) Buyer has provided BVA with all information with regard to which BVA indicates that it is required and/or with regard to which the (Prospective) Buyer can reasonably understand that it is required for the execution of the Purchase Agreement.
11.6 BVA is entitled to deliver the sold Objects in stages. If the Objects are delivered in stages, BVA shall be authorised to invoice each individual stage. This does not apply if the partial delivery has no independent value.
Section 12; Transfer of Title
12.1 The title of the purchased Objects is transferred (assuming that all conditions for a legal transfer of title have been met) to the (Prospective) Buyer at the moment of delivery as outlined in section 11.1 or 11.3 of these Conditions, yet (i) not before the (Prospective) Buyer has paid BVA the full Purchase Price and any other monies owed by the (Prospective) Buyer, including those relating to any work (to be) carried out for the benefit of the (Prospective) Buyer and/or on account of claims for failing to fulfil the (Purchase) Agreement, and, (ii) if the Lot(s) is/are sold on the instruction of a Liquidator, after the delegated judge has given his/her permission for conclusion of the Purchase Agreement. The risk of the purchased objects transfers to the (Prospective) Buyer, no matter what, at the time of delivery and/or the moment the (Prospective) Buyer fails to cooperate in the delivery.
12.2 In the event that purchased Objects owned by the (Prospective) Buyer are still in the possession of the (Prospective) Buyer, the Seller reserves the rights of pledge referred to in Section 3:237 of the Netherlands Civil Code, as additional security for claims which the Seller may have against the (Prospective) Buyer for whatever reason. The authority contained in this paragraph also applies to purchased Objects that have been treated or processed by the (Prospective) Buyer, as a result of which the Seller has lost his/her retention of title.
12.3 Should the (Prospective) Buyer fail to fulfil his obligations or if there is a reasonable fear that he shall fail to do so, BVA shall be entitled to (instruct others to) remove delivered Objects that are subject to the retention of title referred to in paragraph 1 from the (Prospective) Buyer or third parties keeping the Object on behalf of the (Prospective) Buyer and/or Seller. The (Prospective) Buyer is obliged to assist in this on penalty of payment of 10% per day of all amounts owed.
12.4 Should third parties wish to attach or exercise any rights with regard to the objects delivered under retention of title, the (Prospective) Buyer shall be obliged to notify BVA of that immediately.
12.5 The (Prospective) Buyer is obliged to adequately insure the Objects from the moment of delivery and to keep these insured against damage caused by fire, explosion and water as well as theft, and to submit the insurance policy and proof of premium payment for inspection by BVA on their demand. On demand of BVA, the (Prospective) Buyer undertakes (i) to pledge all claims of the (Prospective) Buyer against the insurers with regard to the objects delivered under retention of title to the Seller and/or BVA in the manner described in section 3:239 of the Netherlands Civil Code, (ii) to pledge the claims of the (Prospective) Buyer against his buyers when selling on the objects delivered under retention of title to the Seller and/or BVA in the manner described in section 3:329 of the Netherlands Civil Code, (iii) to mark the objects delivered under retention of title as the property of the Seller, (iv) to otherwise cooperate in all reasonable measures that the Seller and/or BVA may take to protect their right of ownership with regard to the objects and which shall not unreasonably obstruct the (Prospective) Buyer in the normal running of his business.
Section 13; Termination
13.1 When the (Prospective) Buyer fails to take delivery of the purchased objects within the appropriate term and/or the (Prospective) Buyer violates the provisions in sections 11.1, 11.2 and/or 11.3 of these Conditions, the (Prospective) Buyer is in default by operation of law, and the Seller is entitled to terminate the agreement with the (Prospective) Buyer by means of a written statement - without owing the (Prospective) Buyer any compensation - and/or to sell the purchased objects to one or more third parties without delay, without prejudice to BVA/s and/or the Seller’s right to (additional) compensation. The above also applies if after the Purchase Agreement has been concluded, BVA or the Seller learn of circumstances that give the Seller and/or BVA good reason to fear that the (Prospective) Buyer shall fail in fulfilling his obligations in the event of the (Prospective) Buyer’s bankruptcy or moratorium, if the security that BVA has requested from the (Prospective) Buyer for fulfilment is not given or is inadequate, or if the (Prospective) Buyer is otherwise in default and fails to fulfil his obligations arising from the Purchase Agreement. The (Prospective) Buyer is obliged to compensate BVA for any losses as a result of his failure to comply, suffered by both the Seller and BVA. In the event of a termination as referred to in this section 13.1, the (Prospective) Buyer has no claim on the Mark-up, insofar as already paid to BVA by the (Prospective) Buyer.
13.2 If circumstances arise regarding persons and/or materials used or tended to be used by BVA on execution of the Purchase Agreement, that are of such a nature that execution of the Purchase Agreement becomes impossible or hampered and/or disproportionally expensive that compliance with the Purchase Agreement can no longer be reasonably required, the Seller and/or BVA is entitled to dissolve the Purchase Agreement without having to pay the (Prospective) Buyer any compensation.
After the ownership of the purchased objects has transferred to the (Prospective) Buyer, the (Prospective) Buyer can no longer request that the Purchase Agreement is terminated or declared void. If a third party has an interest in the careful removal of the entire or partial Object and this removal would in the opinion of BVA jeopardise the building or cause permanent damage or otherwise, the Seller and BVA, on behalf of the Seller, have the right to terminate the Purchase Agreement - without having to pay any compensation - by virtue of a written statement to the (Prospective) Buyer. In that case, BVA and the Seller shall not have to refund the (Prospective) Buyer more than the Purchase Price received by BVA and - insofar as BVA has sent the (Prospective) Buyer a relevant invoice - the crediting thereof by sending a credit note.
13.3 If circumstances occur before delivery that mean that delivery of the Object is no longer possible as a result of force majeure on the side of the Seller or BVA, for example, due to fire, theft or damage due to natural events, the Seller and BVA are entitled to terminate the Purchase Agreement on behalf of the Seller without having to pay compensation through a written declaration to the (Prospective) Buyer. In that case, BVA and the Seller shall not have to refund the (Prospective) Buyer more than the Purchase Price received by BVA and - insofar as BVA has sent the (Prospective) Buyer a relevant invoice - the crediting thereof by sending a credit note.
Section 14; Liability
14.1 The liability of both BVA and the Seller, insofar as it is covered by their respective liability insurance contracts, is in all cases limited to the amount paid out by the insurer. If the insurer is not going to pay whatever the case, or if the loss is not covered by the insurance, the liability - only insofar as applicable - of both BVA and the Seller is limited to the net invoice value of the objects in question. This restriction does not apply in the event of intent and gross negligence on the part of BVA or the Seller or their supervisors and/or subordinates, or any agents hired by them.
14.2 BVA and the Seller are not liable for consequential losses, such as - without limitation - losses in the form of loss of profits.
14.3 Without prejudice to the provisions in section 6:89 of the Netherlands Civil Code, every right of action of the (Prospective) Buyer vis-à-vis BVA and/or the Seller extinguishes 12 months after the goods are delivered or made available to the (Prospective) Buyer in accordance with the agreement, unless the (Prospective) Buyer has instituted proceedings at the competent court within this period.
14.4 BVA and/or the Seller do not give the (Prospective) Buyer an indemnity for visible or hidden faults or a guarantee with regard to completeness, quantities, functioning, usability, marketability, the purpose for which the (Prospective) Buyer has purchased the objects, the existence of third-party rights and claims and/or the possibility to transfer objects to third parties. Faults, of whatever nature, the object failing to meet the (Prospective) Buyer’s and/or recipient third parties’ expectations confer the right to compensation and/or compliance from the (Prospective) Buyer or other third parties. In the event of non-conformity as referred to in section 7:12, paragraphs 2 and/or 3 of the Netherlands Civil Code, the exclusion of liability contained in this section 14.4 - insofar as it relates to the Seller - does not apply when a Purchase Agreement has been concluded with a Consumer, unless in the event of force majeure on the part of the Seller and/or in the event that the (Prospective Buyer) fails to lodge a complaint promptly, on the understanding that section 7:19 of the Netherlands Civil Code applies.
14.5 BVA and the Seller are not liable for damage and consequential damage - personal injury or damage to an object other than the purchased object (section 6:190 of the Netherlands Civil Code) - if the non-conformity relates to a fault within the meaning of the product liability regulations within the meaning of section 6:185 et seq of the Netherland Civil Code. When a Purchase Agreement has been concluded with a Consumer, the liability exclusion contained in this section 14.5 does not apply to the Seller who has produced the objects if (i) the Seller knew or should have known about the fault, (ii) he has promised there would be no fault or (iii) it concerns property damage with regard to which - pursuant to section 3, title 3, Book 3 - no right to compensation exists by virtue of the franchise regulated in that section, without prejudice to his defence pursuant to sections 9 and 10, title 1 of Book 6.
14.6 Notwithstanding the other provisions in this section 13, the following applies to the liability of BVA and the Seller:
(i) BVA and the Seller are not liable for personal or material injury or damage arisen or caused prior to the Purchase Agreement being concluded;
(ii) BVA and the Seller are not liable for damage to, caused by or in relation with the purchased objects, including the loss of the purchased object.
(iii) BVA and the Seller are not liable for visible and non-visible faults in the purchased objects. The (Prospective) Buyer shall have to examine this within the framework of the inspection referred to in sections 9.1 and 9.3 of these general auction and sale conditions, while the (Prospective) buyer is also obliged to notify BVA of any shortcomings, faults, deviations etc. with regard to the objects, and to do so in writing and immediately upon discovery thereof. If the (Prospective) Buyer fails to do so, the consequences are at his expense;
(iv) BVA and the Seller are not liable for the purchased object’s failure to meet European guidelines, statutory provisions or other legislation, including legislation in the field of the improvement of employee safety in the workplace;
(v) BVA and the Seller are not liable for damage caused by and/or arising from environmentally harmful or hazardous substances in or on the purchased object;
(vi) BVA and the Seller are not liable for damage caused within the framework of an Internet auction as a result of computer breakdowns, including faults and/or breakdowns of hardware and/or software. As such, BVA and the Seller are not liable for damage in the event that the (Prospective) Buyer is unable to make a Bid due to a computer breakdown.
(vii) BVA and the Seller are not liable for any losses within the framework of an Internet auction due to any viruses or other illegal software or files distributed through the auction website.
(viii) BVA and the Seller are not liable for damage caused by incorrect, out-of-date and/or incomplete information on the BVA website and/or websites that can be visited via links on the BVA website; and
BVA cannot guarantee that the Seller is indeed entitled to alienate the objects and that they are not encumbered with any restrictive rights, other restrictions or third-party intellectual property rights. BVA is not liable for any losses suffered by the (Prospective) Buyer, including any consequential losses, insofar as it concerns the Seller’s non-power of disposition, restricted rights, non-entitlement to alienation, other restrictions and/or third-party intellectual property rights with regard to the objects.
14.7 The restrictions outlined in these Conditions with regard to BVA’s or the Seller’s liability do not apply if the damage can be attributed to intent or gross negligence on the part of BVA of the Seller or their supervisors and/or subordinates, or any of the agents they have hired.
14.8 The (Prospective) Buyer hereby waives his rights arising from title 1 of Book 7 of the Netherlands Civil Code insofar as these provisions can be legally deviated from.
Section 15; Sale by Execution
15.1 In the event of a sale by execution or a sale by summary execution, the provisions of section 7:19 of the Netherlands Civil Code apply.
Section 16; Seller/Third Party Company Data
16.1 The Seller and the (Prospective) Buyer come to the agreement that personal details and/or company details of the Seller or of a third party that may be part of or is in a Lot are expressly not a part of the Purchase Agreement. The (Prospective) Buyer must immediately inform the Seller should there be and insofar as there are personal details and/or company details in a Lot after an Auction and must give his or her unconditional cooperation to give to the Seller these personal details and/or company details and/or to destroy these at the first request when the case may arise. Notwithstanding the aforementioned obligations, the (Prospective) Buyer shall maintain confidentiality with regard to these details and the (Prospective) Buyer shall not use or have used these details in any way whatsoever and/or shall not issue or have these details issued to third parties or allow third parties to view or have viewed these details. Should the provisions contained in this Section 16 be breached, the (Prospective) Buyer shall owe the Seller a fine that shall be immediately due and payable for an amount of EUR 1000 without prejudice to any other right that the Seller may be entitled to included but not limited to a right to receive compensation.
Section 17; Indemnity
17.1 In addition to that which has been agreed upon in writing, the (Prospective) Buyer explicitly indemnifies BVA and the Seller against all losses (to be) incurred and other claims of the (Prospective) Buyer and third parties, caused by and/or relating to visible or hidden faults, incompleteness, incorrect quantities, the failure to meet the expectations of third parties, poor functioning, uselessness, unmarketability of objects, failure to meet the purpose and/or expectations on the basis of which the (Prospective) Buyer or successive third parties have purchased the goods, the existence of third-party rights or liabilities and/or the impossibility of transferring goods to the (Prospective) Buyer and third parties, including all consequential losses.
17.2 The (Prospective) Buyer indemnifies BVA and the Seller against all claims brought by BVA, the Seller and third parties, including all losses, costs, expenses and penalties incurred or owed by third parties as a result of or in connection with any act or omission on the part of BVA or third parties hired by them, insofar as these losses are and/or shall be caused by the execution of the agreement and can be attributed to the intent or gross negligence on the part of the (Prospective) Buyer, its staff, and any third parties and/or suppliers hired by the (Prospective) Buyer.
17.3 The (Prospective) Buyer indemnifies BVA and the Seller against all claims brought by BVA, the Seller and third parties, including all losses, costs, expenses and penalties incurred or owed by third parties (i) that are not direct losses or (ii) that exceed the amount given in section 12. Furthermore, the (Prospective) Buyer indemnifies BVA and the Seller against all third-party claims as a consequence of an event which, on the basis of this agreement, could not constitute liability on the part of BVA and/or the Seller vis-à-vis the (Prospective) Buyer.
Section 18; Dispute Settlement; applicable law
18.1 Contrary to the legal rules governing the competence of the civil court, every dispute between the (Prospective) Buyer and BVA and between the (Prospective) Buyer and the Seller shall be decided by the district court of Arnhem,
in the event that the district court is competent. BVA and the Seller however remain entitled to submit the dispute to the court which has jurisdiction according to the law or the applicable international treaty.
18.2 These Conditions and each agreement between BVA and the (Prospective) Buyer and each agreement between the Seller and the (Prospective) Buyer are governed by the laws of the Netherlands.
Section 19; Translations
19.1 In the event of differences between these Conditions and the Dutch version of the conditions, the Dutch text shall prevail.
Section 20; Final Provisions
20.1 If and insofar as any provision in these Terms and Conditions is null and void or becomes null and void, the other provisions of these Terms and Conditions shall remain in full force. In that case, the null and void provision or the provision that has been declared null and void shall by operation of law be converted into a valid provision with the same purport, of which it must be assumed that this provision would have been included if the invalid provision would have been rejected on account of its effect, unless this would be unreasonable vis-à-vis an interested party who was not involved as a party.
20.2 If any provision in the agreement concluded between the Seller and (Prospective) Buyer and/or between BVA and the (Prospective) Buyer (including the provisions of these Terms and Conditions insofar as they form part of that) is invalid, unlawful or unenforceable, it shall not affect or reduce the validity, lawfulness and enforceability of the other provisions.
20.3 These Conditions entitle the Seller to invoke these Conditions vis-à-vis the (Prospective) Buyer. The Seller has accepted the third-party clauses contained in these Conditions. By registering as outlined in section 2.2 of these Conditions, the (Prospective) Buyer declares to accept the third-party clauses contained in these Conditions.
20.4 Headings and numbering of sections are for reference purposes only and shall not affect the interpretation of the sections in question.
