General Terms and Conditions of TroostwijkAuctions.com for Buyers
General Terms and Conditions of TroostwijkAuctions.com for Buyers
The General Terms and Conditions apply to the legal relationship between the Buyer / User on the one hand and TBAuctions Netherlands B.V., trading under the name "Troostwijk Auctions", "Troostwijk" or "Troostwijk Veilingen", having its registered office in Amsterdam and its principal place of business at Overschiestraat 59 in 1062 XD Amsterdam (KvK 34373620) on the other hand, when using the Website, participating in an Auction and placing a Bid on a Lot. These General Terms and Conditions also apply to the legal relationship between the Buyer and a Seller in the event a purchase agreement is concluded via the Website.
Article 1. Definitions
Account: The combination of a username and password that allows a User, by logging on to the Website, to access and participate in the Auction;
Take over: The actual delivery of a Lot to the Buyer or his agent in a period of time determined by Troostwijk, whereby the Buyer collects the purchased from the location specified by Troostwijk. If delivery takes place via shipment of the Lot by the Seller, the actual delivery is the moment the Buyer receives the purchased item;
Terms and conditions: These terms and conditions;
Auto bid: A Bid in which the User indicates the maximum price he is willing to pay for a Lot. After an overbid by a third party, the Website's auction system then automatically places the minimum possible higher bid in the User's name, as long as the maximum indicated by the User has not been reached. This systematic action can only be disabled by the User in the interim by placing a Static bid which is the highest bid at that time;
Bid: Any amount bid by User in an Auction for a Lot, to be increased by, inter alia, the Call Up Fee and VAT, being an irrevocable offer by User to purchase a Lot for the amount bid;
Trustee: A liquidator appointed by a court, who has obtained management and disposal of assets belonging to a bankruptcy estate;
Transfer of Ownership: The transfer of ownership of the Goods and thus the transfer of risk of a Lot takes place at the time of Purchase;
User: The one who by means of Registration has created the Account for the use of the Website, in order to be able to participate in the Auction, among other things;
Agreement for the User: The agreement to be concluded between Troostwijk and the User upon the creation of the Account containing the Terms and Conditions for the User;
Goods: one or more goods within the meaning of Article 3:1 of the Dutch Civil Code.
Subscription: Subscribing to a Lot, with which the User informs Troostwijk of his intention to place a Bid on a Lot, whether or not in combination with the payment of a subscription amount determined on the Website, after which Troostwijk can give the User the opportunity to place a Bid on a Lot;
Lot: one or more Goods which will be auctioned individually or jointly, under one lot number at an Auction;
Viewing Day: A period of time determined by Troostwijk during which the User is given the opportunity to view and examine the Goods offered for Auction prior to the conclusion of the Sales Agreement;
Sales Agreement: The agreement between the Seller or the Client on the one hand and the Buyer on the other hand concerning the sale and purchase of one or more Lots;
Purchase Price: The amount of the highest allotted Bid plus the Stamp Duty on this Bid and the VAT due;
Buyer: The User whose Bid has been accepted and to whom a Lot has been allocated by Allotment; Principal: The natural person or legal entity that has commissioned Troostwijk to mediate in the sale of one or more Goods, in its own name and for its own account (as Seller) or in the name of and for the account of a third party, e.g. Seller or executor;
Public Auction: An auction conducted by an auctioneer and supervised by a notary or bailiff, at which the Buyer may attend the Auction in person or has the opportunity to do so within the
meaning of Article 6:230g(1)(j) of the Dutch Civil Code, at which the User with the Bid on the basis of which the Purchase Agreement comes into being through Allotment undertakes to purchase the Lots; Fees: (Auction) costs charged to the Buyer in the amount of a percentage over the Bid, plus turnover tax;
Personal data: The data provided by User that can be traced back to his or her person, including name/address/residence details, and email address;
Registration: The registration of User on the Website to create an Account;
Specific Auction Terms and Conditions: The besides, in addition to or in deviation from, the General Terms and Conditions, applicable to participation in an Auction, as stated on the Website for the relevant Auction;
Static Bid: In a static bid, the User makes a Bid in the form of a fixed amount for a Lot;
Allocation: The explicit statement by Troostwijk (on behalf of the Seller) to the User that the Lot or a combination of Lots on which the User has placed a Bid has been allocated to the User, thus establishing the Sales Agreement. This declaration consists of the sending of a notice by Troostwijk to the effect that the User must pay the Purchase Price and counts as an acceptance on behalf of the Seller within the meaning of Article 6:217 of the Dutch Civil Code;
Troostwijk: TBAuctions Netherlands B.V., trading under the names "Troostwijk", "Troostwijk Auctions" and "Troostwijk Veilingen", registered in the Trade Register of the Chamber of Commerce under number 34373620, registered office in Amsterdam, and/or its subsidiary or sister company/companies;
Auction: The online auction via the Website for the sale of a Lot, including a Public Auction;
Seller: The one who offers one or more Lots for Auction for sale;
Website: the website www.TroostwijkAuctions.com; the online auction platform, the Troostwijk app and the underlying systems.
Use of the Website
Article 2. General
2.1 Troostwijk is an intermediary, operating an online platform to sell Lots, either through bidding or privately, in the name and for the account and risk of the Principal. Troostwijk concludes a Mediation Agreement with the Principal, whereby the Principal commissions Troostwijk (i) to mediate in the realization of one or more Sales Agreements between the Seller and Buyer(s) by means of an Auction,
(ii) to mediate in complaints of the User(s)/Buyer(s) and (iii) to carry out other activities in the interest of the Principal in the sale of a Lot by means of an Auction.
2.2 Troostwijk at no time becomes the owner of a Lot to be sold and is not a party to the Sales Agreement, as a result of which Troostwijk's liability is limited to the occurring cases as described in Article 20.
2.3 In addition to the General Terms and Conditions, Troostwijk can declare Specific Auction Terms and Conditions applicable. These are accepted by the User when placing a Bid. In case of mutual contradiction, the provisions in the Specific Terms and Conditions of the Auction prevail over the provisions in the General Terms and Conditions.
2.4 The (general) terms and conditions used by a User do not apply.
Article 3. Privacy
Troostwijk will use your (Personal) Data in accordance with the provisions in the Privacy Statement on the Website. The User should always consult the latest amendments to the Privacy Policy when visiting the Website.
Article 4. User agreement
4.1 The User Agreement comes about through Registration on the Website, after which Troostwijk confirms the Registration by email to the User at the email address supplied by the User at- . The User Agreement enables the User among other things to follow the progress of Auctions via the Website and to place a Bid on an Auction. The User Agreement is non-transferable for a User.
4.2 When using the Website, the User must behave properly and not cause damage to the Website, to Troostwijk, to the Seller or to other users thereof. The User is liable for all actions that take place on the Website after access has been gained (by the User) by means of the password and/or the user name of the User.
4.3 The User's username and password are strictly personal and may not be transferred by the User to third parties. The User/Buyer is liable for and bound to all actions that take place at an Auction and that arise from the use of the password and/or user name, also in case of misuse by a third party. If the User fears that another person knows his password, the User must immediately inform Troostwijk of this and the User will enable Troostwijk to block his Account. The User indemnifies Troostwijk and holds it harmless for all damage arising from misuse and/or use of the Account of the User.
4.3 The User guarantees the accuracy and completeness of the Personal Details supplied with the Registration. Should the Personal Details change at any time, the User is obliged to inform Troostwijk of such change(s) by return of post.
4.4 Troostwijk reserves the right to refuse Registration at any time for reasons of its own and/or to terminate the User Agreement unilaterally and/or to attach further conditions to the Registration.
4.5 Troostwijk records the Personal Details obtained by it in an administration kept for that purpose. By Registration on the Website, the User gives permission for the use and storage of the Personal Details registered.
4.6 The User is forbidden to duplicate the Website or any part thereof or to make it available (by deeplinking or otherwise) without prior written permission from Troostwijk.
4.7 All intellectual property rights concerning the Account and the Website, including the further development thereof, and the database of Lots, belong exclusively to Troostwijk. The User/Buyer only has a limited, non-exclusive, non-(sub-)licensable and non-transferable right to use the Account and the Website. The right to use the Account and the Website by the User/Buyer can be terminated by Troostwijk at any time. Troostwijk can also set further conditions to the right of use of the User/Buyer.
4.8 The Website and the Account and all applicable functionalities are offered 'as is'. Troostwijk offers no guarantee as to the preservation or unchanged nature of certain functionalities of the Website or the Account. Troostwijk will resolve any defects concerning the Website and the Account as soon as possible. Troostwijk has at all times the right, without prior notice, to put the access to the
Account and the Website (temporarily) out of use or to limit the use thereof, insofar as this is necessary for maintenance, or to be able to carry out updates, releases, adjustments or improvements. This never entails a right to compensation (for damages) for Troostwijk and/or the Client towards the User/Buyer.
Article 5. Security
5.1 Troostwijk makes reasonable efforts to secure its systems against loss of data and/or against any form of unlawful use and takes appropriate technical and organisational measures to that end.
5.2 Troostwijk is not liable for loss of data, damage to files, unlawful access to computers or files, viruses or other unlawful programmes or files spread via the Website, or any other consequence of the use made of the Website.
5.3 The Website may contain (hyper)links to other websites. Troostwijk has no control over such sites and is not liable for the content of those sites.
The Auction
Article 6. Conditions for participation in Auction
6.1 User must be of age and authorised to perform legal acts. Participation in an Auction is not permitted if the User is not authorised to perform legal acts or if the User is incapacitated.
6.2 In order to be able to participate in an Auction, conditions can be set on the Website, such as the condition that a Subscription by the User must first take place, whether or not with payment of a subscription amount mentioned on the Website. Troostwijk can, but is not obliged to, give the User the opportunity after a Subscription to place a Bid on the Lot.
6.3 Upon first request and to the satisfaction of Troostwijk, the User must demonstrate that the User is creditworthy, in default of which Troostwijk can deny a User participation in an Auction.
6.4 The User and the Buyer are obliged to cooperate with any investigation by Troostwijk in the context of its obligations under the Money Laundering and Terrorist Financing (Prevention) Act (Wwft) and/or obligations under any other legislation.
Article 7. Description Plots
7.1 The description of a Lot has been made to the best of knowledge, without Troostwijk and/or the Seller guaranteeing its accuracy or completeness. In the description of a Lot on the Website, Troostwijk is dependent on the information about a Lot supplied by the Seller or third parties. Troostwijk has no knowledge of a Lot that is being auctioned nor of any (limited) rights (of third parties), charges or attachments attached to the Lot. It is not possible for Troostwijk to verify whether the information supplied to Troostwijk by the Principal/Seller about a Lot for the purpose of an Auction is correct and/or complete. The Principal/Seller is responsible for a description of a Lot, on the understanding that it is not always possible for a Principal/Seller to provide complete information for the purpose of the description of a Lot and any possible particularities.
7.2 If Troostwijk shows or provides a sample, model or example, this is always by way of indication only. The qualities of a Lot to be delivered can deviate from the sample, model or example. The Users and Buyers cannot derive any claims or rights from the said descriptions, samples, models, examples and other information.
7.3 Troostwijk and the Seller strive for the greatest possible accuracy and clarity of the description of a Lot on the Website, the Specific Terms and Conditions of Auction in auction catalogues, other auction brochures, advertisements and the like, without accepting any liability for damage arising from incorrect or incomplete descriptions or other damage.
7.4 Troostwijk has the right to correct inaccuracies in verbal and written statements made by it or on its behalf and errors made (whether or not during an Auction), without the User or the Buyer being able to derive any right therefrom. Troostwijk is not liable for any inaccuracies or incompleteness in the description of a Lot. The User and/or Buyer does not have the right to withdraw or revoke a Bid or to dissolve the Sales Agreement if it appears that a Lot does not meet its description.
7.5 Pipes, cables and/or other connections for energy, control or production, which are located on/in a Lot will, unless explicitly stated otherwise in the Specific Terms and Conditions of the Auction, only be sold up to the first valve, fitting or applied mark. Underground or masonry connections never belong to a Lot, unless explicitly stated otherwise in the Specific Terms and Conditions of the Auction.
Article 8. Personal/company data Seller/third party
8.1 The Seller and the Buyer agree that personal and/or business data of the Seller or a third party that may be on or in a Lot are explicitly not part of the Sales Agreement. The Buyer is obliged, if and insofar as, after an auction, personal and/or business details are found to be in a Lot, to inform Troostwijk immediately and, if necessary, to cooperate unconditionally at the first request to surrender these personal and/or business details to the Seller or to destroy them. Notwithstanding the aforementioned obligations, the Buyer will observe secrecy regarding these details and the Buyer will not be permitted to use these details in any way whatsoever or to supply them or have them supplied to third parties or to allow them to be viewed.
Article 9 Duty of investigation User/Buyer
9.1 If a Viewing Day has been determined, this is stated on the Website and in the Specific Auction Terms and Conditions. User then has the opportunity to examine a Lot prior to placing a Bid on the Viewing Day of the relevant Auction.
9.2 The User/Buyer is obliged to properly examine the (purchased) Lots. In doing so, the User/Buyer must check whether a Lot complies with the Purchase Agreement. Also in view of the fact that the (purchased) Lots are used Goods and not new Goods, these are purchased in the condition they are in at the time of Acceptance, as described in articles 17 and 18 of the General Terms and Conditions, and defects or shortages must be reported to Troostwijk or the Seller no later than at the time of Acceptance.
9.3 The User who enters buildings and grounds on a viewing day does so entirely at his/her own risk. The User is obliged to follow the instructions of Troostwijk, the Principal, the Seller and/or third parties engaged by Troostwijk or the Seller. Troostwijk, the Principal and the Seller are not liable for damage suffered by the User by entering buildings and grounds on a Showing Day.
Article 10. The Auction
10.1 The duration of an Auction is indicated on the Website. Troostwijk reserves the right to cancel an Auction, terminate it earlier, or extend it. In case of a technical malfunction of the Website, due to which it is not fully accessible and/or not accessible to all Users, Troostwijk has the right (but not the obligation) to extend the Auction.
10.2 The User is obliged to follow instructions and directions given by or on behalf of Troostwijk in the context of an Auction.
10.3 By his Registration, the User declares himself familiar with and in agreement with the special circumstances of an (online) auction and with the technical imperfections that can arise. Troostwijk hereby excludes all liability for any damage whatsoever, direct and/or indirect, arising in any way, including but not limited to damage arising from the use of the Website, unless there has been deliberate or conscious recklessness on the part of Troostwijk. More specifically, Troostwijk accepts no liability for any damage whatsoever arising in any way from and/or resulting from:
· actions taken by User allegedly prompted by information posted on the Website;
· inability to use (fully) the Website and/or any other malfunction of the Website or the underlying system;
· inability to submit a Bid on time;
· Failure of a Lot to meet the specifications as stated on the Website;
· the fact that the information on the Website is incorrect, incomplete or not up to date;
· faults or defects in the Website and/or the underlying hardware and/or network connections and/or the software of the Website and/or the underlying system;
· the unlawful use of systems, including the Website of Troostwijk by a third party;
· acts of the Seller after the User has entered into a Purchase Agreement with it.
10.4 Troostwijk reserves the right to:
· not to recognise or refuse a Bid as such;
· exclude a User from the Auction;
· Assemble Goods into Lots, split Lots, make changes to (the composition of) the Lots and remove Lots or Goods from the Auction.
· cease, resume, extend or cancel an Auction;
· change the way the Auction takes place;
· correct mistakes made by Troostwijk or the Seller in the Auction and/or Allotment, without a User being able to make use of this mistake and/or derive any rights therefrom.
· take other measures, in its judgment, necessary.
10.5 Troostwijk is authorised, before and/or during participation in an Auction and/or bidding for a Lot, to require a User to make advance payment, a penalty clause or another form of security before proceeding to Allotment (on behalf of the Seller) or to cooperate (on behalf of the Seller) in Purchasing.
Article 11. Public Auction
11.1 For every Auction, Troostwijk offers the User the opportunity, in the context of a Public Auction, to make a bid in the presence of an auctioneer in a physical room, in addition to submitting an online Bid via the Website. On the Website and in the Specific Terms and Conditions of the Auction it is also indicated that this is a Public Auction, as well as at which location the User can be present in person or how the User should register.
11.2 A Bid made during a Public Auction shall be deemed to be a Bid excluding auction fees and VAT.
11.3 In order to be able to bid in a Public Auction on location, a User must be present at a location to be indicated by Troostwijk at the time indicated by Troostwijk and follow the instructions of the Auctioneer or Troostwijk.
11.4 In addition to the possibility of placing a Bid at a physical location, the User can also place a Bid in a Public Auction via the Website.
Article 12. Foreclosure sale
12.1 If there is a foreclosure sale (bankruptcy auction) or sale by way of immediate execution, this will be stated in the Specific Auction Terms or on the Website.
12.2 In the case of a sale as mentioned in 12.1, the provisions of Article 7:19 of the Civil Code shall apply and no right of withdrawal shall apply.
Article 13. The Bid
13.1 The User can place a Bid for a Lot on the Website. Every Bid is unconditional, irrevocable and without any reservation. Troostwijk and/or the Seller are entitled not to accept a Bid without giving reasons.
13.2 A Bid must be made in the manner indicated by Troostwijk on the Website. The Auction takes place by Static bid, Auto bid or Tender. The auction system ensures that in the case of an Auto-bid after an overbid by a third party, the minimum possible higher Bid is placed in the name of the User, as long as the maximum indicated by the User has not been reached. An Auto Bid can only be eliminated by the User in the interim by placing a Static Bid that is the highest bid at that time.
13.3 The Auction is always a (public) invitation by the Seller to make an offer. If a User makes a Bid, this Bid is deemed to be an offer to the Seller within the meaning of Article 6:217 of the Dutch Civil Code.
13.4 If a Lot is put up for auction together with one or more other Lots as a combination, this will be indicated on the individual page of a Lot on the Website. In that case, bidding on the individual Lots of the combination and after the closing of all individual Lots, can only take place for the combined Lot. Individual Lots will be allocated subject to award only if the total amount of the highest allocable bids on the individual Lots exceeds the highest allocable bid on the combination. A combination Lot will be allotted only if the highest Assignable Bid for the combination Lot exceeds the aggregate amount of the highest Assignable Bids for the individual Lots.
The Purchase
Article 14. Allocation and Purchase Agreement
14.1 The Purchase Agreement is established by Allotment. With Allotment, the Seller (through Troostwijk by virtue of a power of attorney on behalf of the Seller) accepts the Bid of User.
14.2 Within 48 hours after the close of the Auction (not counting Saturdays, Sundays and public holidays recognised in the Netherlands), the Buyer will receive confirmation by email on behalf of the Seller(s) if the Sales Agreement has been concluded, by sending a message from Troostwijk to the effect that the User must pay the Purchase Price. If the User does not receive an email within the aforementioned terms, it means that his Bid has not been allotted. Troostwijk can award a Bid on behalf of the Seller under suspensive or resolutive condition(s).
14.3 In case a Trustee is a Seller, Section 7:19 of the Civil Code shall apply. A Purchase Agreement will in that case be concluded under the resolutive condition that the permission of the bankruptcy judge is not obtained for the conclusion of the Purchase Agreement.
14.3 Any User who submits a Bid shall be deemed to have submitted the Bid for itself and shall be personally bound to fulfil obligations under the Purchase Agreement.
14.4 . A Sales Agreement comes about between the Seller and the Buyer. Troostwijk is not a party to a Sales Agreement. Troostwijk merely mediates in the realization of a Sales Agreement.
14.5 The Purchase Agreement consists of the description of a Lot (condition, description, particulars, restrictions), of what is published on the Website such as Specific Auction Terms and, to the extent not deviated from in the Specific Auction Terms, of these General Terms and Conditions.
14.6 In the absence of an Auction, the Sales Agreement comes about at the moment that a Bid from a User is accepted by Troostwijk on behalf of the Seller. In the case of such a sale outside an Auction, what is stipulated in Articles 16 through 20 of these General Terms and Conditions also applies. Since there is then no question of distance selling, the Buyer - if the Buyer is a consumer - has no legal right of withdrawal.
Article 15. Right of withdrawal
15.1 In principle, every Auction is a Public Auction, as a result of which the right of withdrawal does not apply. However, if the Auction is not a Public Auction, a Buyer who is a natural person and who is not acting in the exercise of a profession or business has the right to revoke the Purchase Agreement within 14 days after taking possession of a Lot without giving reasons. Articles 6:230o to 6:230s of the Civil Code shall apply in that case.
15.2 To exercise this right of withdrawal, Troostwijk must have received an unambiguous written declaration from the Buyer of the decision to dissolve the Sales Agreement within the aforementioned period.
15.3 If the Buyer makes use of this right of withdrawal, the Buyer will bear all the costs related to the return of the Goods. The Buyer must return the Lot to Troostwijk or the Seller as soon as possible, but within 14 days from the day following the declaration received in article 15.2, in accordance with instructions given by Troostwijk or the Seller, if any.
15.5 During the reflection period, Buyer shall handle a Lot with care. The Buyer shall be liable for any decrease in the value of a Lot resulting from careless handling by the Buyer.
Article 16. Payment obligation of Buyer
16.1 Troostwijk sends a notice to the Buyer stating that the Buyer must proceed with payment of the Purchase Price. The Buyer is obliged to proceed with payment of the Purchase Price within 48 hours after dispatch of the aforementioned notice. Payment must be made in euros, or in another currency indicated by Troostwijk. The Buyer can only pay in liberation by payment of the amounts owed to the Seller and Troostwijk. Subsequently, the Buyer will receive an invoice showing the Surcharge owed by the Buyer to Troostwijk and the amounts owed by the Buyer to the Seller, all this plus VAT.
16.2 The Buyer must furnish security for fulfilment to Troostwijk (on behalf of the Seller) at Troostwijk's first request.
16.3 In case of overdue payment, the Buyer is legally in default vis-à-vis Troostwijk and the Vendor, and Troostwijk and the Vendor are each entitled to compensation of the reasonable costs for obtaining extra-judicial settlement (collection costs) in accordance with the legal regulation norming collection costs.
16.4 At an Auction, the Buyer must take into account Specific Auction Conditions and costs and taxes payable by the Buyer in addition to the Bid, such as transfer tax, turnover tax, property tax (OZB), costs for the deed of transfer, financing costs, levy of (residual) BPM (car), costs for waste disposal and administration costs. These costs do not form part of the Offer, but are payable in addition by the Buyer (to the Seller).
16.5 The Buyer waives any right to suspend its payment obligation and/or waives any right to set- off.
Article 17. Take over
17.1 If and as soon as the Buyer has fulfilled all his payment obligations, the Buyer can take delivery of the purchased Lot or Lots at the time and place set by Troostwijk for that purpose on presentation of proper identification, i.e. the Takeover. The Buyer is obliged to take Take away at the latest on the date mentioned in the Specific Terms and Conditions of the Auction. Troostwijk can determine that
(a) certain Lot(s) can only be collected after Acceptance of (another) Lot(s).
17.2 The Buyer himself is responsible for the correct and timely taking of a purchased Lot. Troostwijk and/or Seller is responsible for the organisation and coordination of the time of taking delivery of a Lot sold by Seller.
17.3 The Buyer - or the third party engaged by him - is obliged to thoroughly inspect a purchased Lot on Acceptance. The Buyer is obliged to inform Troostwijk in writing of any inadequacies, defects and deviations immediately after discovering them. If the Buyer fails to do so, the Buyer will bear the consequences thereof. At Acceptance, the Buyer accepts a Lot in the condition in which it is.
17.4 If the Buyer refuses Acceptance or is negligent in providing information or instructions necessary for Acceptance, Troostwijk and/or the Seller is entitled (but not obliged) to store (a) purchased Lot or Lots at the expense and risk of the Buyer and to charge the Buyer for the costs incurred for this, without prejudice to any other rights of Troostwijk and/or the Seller and without prejudice to the Buyer's obligation to Accept. If Acceptance of a Lot takes place after all, the Buyer must have paid in advance the administrative, storage and insurance costs incurred, with a minimum of € 350.
17.5 It is the responsibility of the Buyer to ensure that all requirements, of whatever nature, in respect of the export of a Lot in an EU or other country are met. This means, inter alia, that the Buyer must comply with the laws and regulations of the relevant country regarding the remittance of taxes and duties and required documentation and, if necessary, obtain the required approval. If a Lot is to be transported, it is the Seller and Buyer who must be recorded on the underlying transport documents or customs documents as consignor or consignee of a Lot respectively, and not Troostwijk.
17.6 Actual Delivery, Transfer of Ownership and Transfer of Risk of Lot(s) takes place at the time of Purchase.
17.7 If, in the context of Purchasing, it is necessary to dismantle purchased Lots, the Buyer must take care of this on first request, at his expense and risk, in a professional manner. The Buyer is not entitled to dismantle Goods attached to Lots not purchased by the Buyer, except after obtaining explicit, written permission from Troostwijk and/or the Seller. The Buyer is liable for damage caused during or in the context of the Taking-over of the purchased Lots and will indemnify and compensate Troostwijk and/or the Seller on first request against claims from third parties in this respect.
17.8 The Buyer requires explicit permission from Troostwijk and/or the Seller for the use of its own tools such as a forklift for the purpose of moving and/or loading a Lot. The Buyer is aware of the relevant laws and regulations such as the Machinery Directive 2006/42/EC, Commodities Act Decree on Machinery, Occupational Health and Safety Decree and NEN EN standards, has valid liability insurance for the forklift truck. The buyer is at all times responsible and liable for the safe use of a forklift truck on the auction site.
17.9 If it appears that a Lot cannot be delivered because of claims by third parties or because of the fact that the Taking-Over might cause unacceptable damage to the buildings or grounds in which a Lot is located or if Taking-Over proves to be very difficult in any other way, Troostwijk is entitled to dissolve the Sales Agreement on behalf of the Seller. This dissolution occurs by email (or a digital message) and/or by registered letter to the Buyer at the address given by the Buyer, after which Troostwijk and/or the Seller is/are not bound to anything more than repayment of the amounts already paid by the Buyer to Troostwijk for the Purchase of the Lot(s).
17.10 The Buyer, whose allocated Lot(s) obstructs the collection of other Lots, is obliged, immediately after email and/or notification by Troostwijk to the address specified by the Buyer, to arrange for the collection of his Lot(s), failing which Troostwijk is entitled to arrange for this collection and any storage by third parties at the expense and risk of the Buyer.
17.11 Troostwijk is not responsible for the removal / disposal of waste at the pick-up location caused by the Purchaser. The Buyer is responsible for this, unless for the removal / disposal the order is expressly given to Troostwijk at the Buyer's expense. And Troostwijk accepts that order,
17.12 The Buyer who enters buildings and grounds for Acceptance does so entirely at his own risk. The Buyer is obliged to follow the instructions of Troostwijk, the Seller and/or third parties engaged by Troostwijk or the Seller. Troostwijk and the Seller are not liable for damage suffered by the Buyer by entering buildings and grounds for Takeover.
Delivery Lots
17.13 Contrary to the provisions in Articles 17.1 to 17.12 inclusive, Purchase of a Lot will be effected by delivery of the Lot by the Seller or a carrier engaged for that purpose at the Buyer's address, if agreed in writing in advance. In that case, the risk of the Lot(s) shall also pass to the Buyer from the time of delivery.
17.14 An agreed delivery time is not a deadline, unless expressly agreed otherwise in writing.
17.15 The Seller is permitted to deliver the Lot(s) in parts.
Article 18. Guarantees - Claims - Indemnities
18.1 Troostwijk and/or the Seller do not provide any guarantee of any kind with regard to the Lots and any claims of third parties thereon. The Buyer waives all rights that do not accrue to the Buyer under mandatory law.
18.2 Lots will be sold footloose in the condition they are in at the time of Acceptance with all associated joys and burdens. Troostwijk and/or the Seller give no indemnity whatsoever for visible or hidden defects or guarantee in connection with completeness, required documentation, numbers, functioning, usability, saleability, the existence or non-existence of rights or claims of third parties and/or the possibility of transfer to third parties.
18.3 Defects, of whatever nature, disappointed expectations of the Buyer and/or acquiring third parties do not give any right to (compensation) and/or suspension and/or set-off (unless mandatory law provides otherwise). The Buyer shall be deemed to have carefully examined a Lot purchased by the Buyer in advance.
18.4 If third-party claims based on (intellectual or other) property rights, including retention of title, and/or rights of third parties pursuant to Articles 3:166-200, 3:201-226, 3:290-295, 6:52-57, 6:271 (after an appeal to dissolution pursuant to Article 6:265) and/or 7:39-44 Dutch Civil Code, or other claims of third parties that may or may not be equivalent to these, the Buyer is obliged to keep the relevant Lots, for those third parties, under the obligation to hand them over to those third parties at the first request of Troostwijk, or otherwise to make suitable arrangements with any entitled parties. If a Lot is returned undamaged at the first request of Troostwijk, the Buyer is entitled, vis-à-vis the Seller, to a refund of the Purchase price paid for the Lot in question, and the Sales agreement concerning the Lot is deemed dissolved, without Troostwijk and/or the Seller being liable for any compensation (for damages) towards the Buyer.
18.5 Upon first request, the Buyer indemnifies Troostwijk and/or the Seller against any claim by a third party arising from the Purchase Agreement concluded between the Seller and the Buyer.
Article 19. Dissolution of Purchase Agreement
19.1 The Seller can abandon the sale of a Lot and has the right to terminate or dissolve all or part of the Purchase Agreement with the Buyer by means of a written declaration by Troostwijk (based on a power of attorney from the Seller) or the Seller, without owing the Buyer any (compensation) in this respect, and the right to sell a Lot without delay to one or more third parties, without prejudice to the Seller's right to (additional) compensation in the event:
· one or more of the following situations occurs:
o Buyer fails to perform any obligation under the Purchase Agreement, including (but not limited to) one or more of the following obligations and there is default or performance is permanently or temporarily impossible:
§ timely or (full) payment of the Purchase Price;
§ (timely) Purchase of a Lot and/or;
§ providing the information or documentation required for Purchase,
§ obligation to provide (adequate) security for performance upon first request;
o circumstances come to the knowledge of Seller and/or Troostwijk that give good reason to fear that the Buyer will not be able to meet his obligations,
o (application for) bankruptcy, suspension of payments or (statutory) debt restructuring of Buyer or (application for) WHOA proceedings and/or any other similar insolvency proceedings,
o if circumstances arise concerning persons and/or material which the Seller, or Troostwijk on the instructions of the Seller, uses or tends to use in the execution of the Sales Agreement, which are of such a nature that the execution of the Sales Agreement becomes impossible or so difficult and/or disproportionately expensive that fulfilment of the Sales Agreement can no longer reasonably be required,
o a third party has an interest in the careful removal of all or part of a Lot and removal by the Buyer would, in the opinion of Troostwijk or the Seller, endanger the building or cause permanent damage, or
o circumstances occur prior to Withdrawal as a result of which Withdrawal of a Lot is no longer possible, or
o in case of force majeure on the part of the Seller or Troostwijk, for example (but not exclusively) due to fire, theft or damage by natural forces, strike, war. pandemic, government measures.
19.2 After transfer of ownership, the Buyer cannot claim dissolution or annulment of the Purchase Agreement.
19.3 In the event of termination or dissolution as referred to in Article 19.1, the Buyer still owes Troostwijk the Call Money and, in addition to the Call Money, the defaulting Buyer owes Troostwijk a lump-sum amount of 25% of the winning Bid made by him to cover administrative, storage, insurance, transport costs as well as other (reasonable) costs, without prejudice to the Seller's right to claim full compensation. In the event of a credit where the Purchase Price is less than €150, no refund of the Purchase Price to the Buyer shall be made.
Article 20. Liability
20.1 Without prejudice to the provisions in article 6:89 and/or article 7:23 of the Civil Code, every right of claim of the Buyer against Troostwijk, the Client and/or the Seller lapses after a period of 4 weeks after the Purchase or after the Lot(s) have been made available to the Buyer.
20.2 The liability of Troostwijk and/or the Vendor if and insofar as, after application of the stipulations in these General Terms and Conditions and (if applicable) the Specific Terms and Conditions of Auction, there still remains, will always be limited to the amount paid out by the liability insurance of Troostwijk and/or the Vendor in the case in question. In case the liability insurance of Troostwijk and/or Seller does not pay out, the liability of Troostwijk and/or Seller towards a Buyer and/or User and/or Seller is limited to a maximum amount of € 5,000 in total for all claims individually and jointly.
20.2 Troostwijk, the Principal and the Seller are in any case not liable for indirect damage or consequential damage, such as - but not exclusively - damage in the form of loss of profit or unsaleability of a Lot and/or damage as a result of business stagnation.
20.3 Any liability of Troostwijk in connection with any defect in (a) Lot(s) or in relation to an (alleged) infringement of rights of (intellectual property of) third parties is excluded (unless mandatory law stipulates otherwise).
20.4 Notwithstanding the other provisions in Article 20, the following applies to the liability of Troostwijk, Client and Seller:
· Troostwijk, Client and/or Seller are not liable for damage to persons or Lots prior to the conclusion of the Sales Agreement arising or caused;
· Troostwijk, Client and/or Seller are not liable for damage to, caused by, or in connection with the purchased Lot(s), including the loss of the purchased;
· Troostwijk, Client and/or Seller are not liable for visible and non-visible defects of purchased Lot(s) (unless mandatory law provides otherwise).
· Troostwijk, the Buyer and/or the Seller are not liable for the non-compliance of the purchased goods with European directives, statutory provisions or other laws and regulations, including laws and regulations concerning the promotion of safety of employees in the workplace;
· Troostwijk, Client and/or Seller are not liable for damage caused by and/or arising from environmentally harmful or harmful substances in or on the goods purchased;
· Troostwijk, the Principal and/or the Seller are not liable for damage caused in the context of an internet auction as a result of computer malfunctions, including defects and/or malfunctions of hardware and/or software, viruses, unlawful programmes or files, nor for damage if, as a result of a computer malfunction, the User was unable to place a Bid.
· Troostwijk, Client and/or Seller are not liable for damage resulting from incorrect, outdated and/or incomplete information whether or not mentioned on the Website and/or on websites that can be visited by clicking on links to other websites mentioned on the Website;
· Troostwijk is not liable for damage suffered and to be suffered by the Buyer, including any consequential damage, insofar as there may be any question of lack of power of disposition on the part of the Buyer and/or Seller, restricted rights, non-entitlement to alienate, other restrictions and/or intellectual property rights of third parties concerning the Lots.
20.5 The limitations of Seller's liability included in these terms and conditions do not apply if damage is due to intent or conscious recklessness of Seller or its managers and/or subordinates, or auxiliary persons engaged by Seller.
20.6 The limitations of liability of Troostwijk contained in these Terms and Conditions do not apply if damage is due to deliberate intent or conscious recklessness on the part of Troostwijk or its managers, or auxiliary persons engaged by Troostwijk.
20.7 The Buyer hereby waives its rights arising from Title 1 of Book 7 of the Civil Code insofar as these provisions can be derogated from by law.
Other provisions
Article 21. Adjustments conditions and operation
21.1 If and insofar as any provision of the General Terms and Conditions is void or is voided, the other provisions of the General Terms and Conditions shall remain in full force and effect. The void, voidable or otherwise legally unenforceable provision shall in that case be deemed to be replaced by a new provision which, in its nature and purport, is as close as possible to the void/annulled or otherwise legally unenforceable provision.
21.2 Troostwijk is entitled to amend these General Terms and Conditions unilaterally. When the General Terms and Conditions are amended, the amended version comes into force as of every Auction organised and to be organised after the moment of placement of the General Terms and Conditions on the Website and/or concluded Sales Agreement.
21.3 Deviation from these General Terms and Conditions is only possible insofar as this is recorded in writing by an authorized representative of Troostwijk and confirmed to the User.
Article 22. Applicable law
22.1 These General Terms and Conditions, the User Agreement, the Purchase Agreement and other legal relationships arising in connection with an Auction are governed by Dutch law, with the exception of the Vienna Sales Convention.
22.2 The Dutch text of the General Terms and Conditions is the original text. In case the General Conditions are used in several languages, the Dutch text shall therefore prevail in case of ambiguities or contradictions.
22.3 The District Court in Amsterdam is authorised (without prejudice to the possibility of an appeal and without prejudice to statutory provisions to the contrary), to the exclusion of all other bodies, to rule in the first instance on disputes arising from the General Terms and Conditions, the User Agreement, the Purchase Agreement and other legal relationships arising in connection with the Auction.
Do you have questions about the General Terms and Conditions Users/Buyers of TroostwijkAuctions.com? If so, please contact us at info@troostwijkauctions.com
Version dated October 2023
