General Terms and Conditions of Trade (GTCT) for the online offer of Sportnex

General Terms and Conditions of Trade (GTCT) for the online offer of Sportnex

Status: 01.11.2011
1. Scope, modifications to the terms and conditions of trade:

1.1. www.sport-auktion.de, www.sport-auktion.at and the associated websites (sport-poster.de, sportundsale.de, vote-your-shirt.de, sportnex-shops.de and Sportnex Partner-Shops), collectively referred to as the ‘Websites’, are services of Sportnex GmbH, Balanstr. 73, Haus 19A, 81541 Munich, Germany (represented by Managing Director Andreas Lipp), hereafter referred to as ‘Sportnex’. Further information about Sportnex can be found in the site notice.

1.2. These GTCT govern the auctions and sales of goods and services offered by Sportnex. The goods and services here are provided/licensed by the clubs and partners connected with Sportnex but the sole contracting party is Sportnex unless otherwise indicated (for example with auctions of FC Bayern München). The GTCT are supplemented by the more specific details in the auction offer or the item descriptions. The more specific provisions apply in the case of contradictions.

1.3 Sportnex reserves the right to modify the GTCT with effect for the future. In this case, Sportnex will inform the user of modifications to the GTCT in advance by e-mail and indicate that the modifications are considered to be accepted if no objection to the modifications is received within four weeks and use of the websites continues nonetheless. Sportnex will advise the user of this legal consequence in the notice of modification.


2. Registration, conditions for participation, revocation of the user contract:

2.1 Only people over the age of 18 are entitled to participate. Users under the age of 18 are precluded from participation.

2.2 In order to be able to participate in the online auctions or to be able to make purchases in the shop categories, the user must initially register with Sportnex. Registration is free and requires the user to open a membership account and to agree to these GTCT. For registration, the user must provide the data requested in the course of the registration in full and correctly (e.g. forename and surname, address, telephone number, e-mail address). The registration is valid for all connected websites.

2.3 A confirmation e-mail will be sent to the e-mail address of the user immediately after registration, showing that a licence agreement for participation in the online services has been created and is now activated for all services of the websites.

2.4 Licence agreement cancellation right: the user may cancel the licence agreement within a period of two weeks without giving reasons. The period begins on receipt of the confirmation e-mail. The cancellation right expires prematurely if Sportnex has started to execute the licence agreement before the end of the cancellation period with the explicit consent of the consumer of if the user has instigated this.


3. Types of auction, participation in the auction, purchase of or participation in other services:

3.1 Types of auction:
- ‘Auction’: In an auction, Sportnex sets an offer with a description in the ‘auction’ service for the sale of a product or service. The offer runs for a specified time, during which the user can submit bids. Sportnex sets a starting price for this and specifies any other conditions, e.g. set increase amounts/rates. When the offer ends, the buyer with the highest bid gains the ‘acceptance’.
- ‘Reverse Auction’: In the case of the so-called reverse auction, Sportnex offers a product or service for a price, which is reduced by the specified amount or percentage rate for each specified time unit. The first person to submit a bid gains the ‘acceptance’ at the price that is current at this time.
- ‘Immediate Purchase’: It is sometimes possible to buy the item or service immediately for a set price. An ‘Immediate Purchase’ button with a fixed price is then available to the user. If the user clicks this button and submits a bid at this fixed price before the auction ends and before anyone else has sent an ‘Immediate Purchase’ bid then he gains the ‘acceptance’ at the specified price.

3.2. Participation in the auction:
The user sometimes has the option of using the ‘Bidding Agent’ function. Here, he can submit his maximum offer for an auction, i.e. the bidding agent automatically outbids other bids that are below the maximum bid. The user can participate in the auction only if he is logged in for the ‘Auction’ service. The user is bound by a submitted bid until the end of the auction. An auction requires the Sportnex server to be available at the router output of the computer centre for the duration of the auction. If, exceptionally, a system failure occurs at Sportnex and the server is therefore unavailable, Sportnex can use its discretion to extend the auction by the downtime relative to the auction period (i.e. the result is that the specified bidding period is maintained) or to cancel the auction. Participants in an affected auction will be informed immediately of the failure and further progress.

3.3. Purchase or participation in other services
- Other services refer to the online services of Sportnex that are offered in the context of the connected websites, specifically sport-poster.de, sportundsale.de, vote-your-shirt.de and sportnex-shops.de. In the context of these offers, items are sold at set prices.
- Ordering of the respective items creates the purchase agreement between the user and Sportnex.
- One special type of active participation is possible with the vote-your-shirt.de service. Here, design competitions, in which the user can actively participate, take place for various items of memorabilia. Users have opportunity to electronically provide their own drafts to Sportnex. By submitting a draft, the user consents to further use of this draft by Sportnex. Payment is issued only if the submitted draft is successful. Success is measured by how many votes the user’s draft receives in the poll of other users. Any registered user can essentially participate in the poll.

 

4. Contract formation, right of withdrawal, Sportnex cancellation right:

4.1 A purchase agreement for the products or service offered is formed as soon as a user gains the ‘acceptance of bid’. The user is informed of this immediately by e-mail or text message.

4.2 Right of revocation: You have the right to cancel this contract within fourteen days without having to give any reason.The period of cancellation is fourteen days as of the date when you or a third party you appointed who is not the forwarder took possession of the goods. To exercise your right of cancellation, you have to inform us (Sportnex GmbH, Balanstrasse 73, Haus 19A, 81541München (Munich), phone: +49(0)89-5526088-36, fax: +49(0)89-5526088-39, email: kundenservice@sportnex.de) by way of an unambiguous statement (e.g. letter sent by post, facsimile or email) of your decision to cancel this contract. You may use the attached standard cancellation form which, however, is not a must. To meet the deadline of the cancellation period it is sufficient for you to send the notice on the exercise of the right of cancellation prior to the expiration of the cancellation period.

4.3 Consequences of cancellation: If you cancel this contract we shall return to you immediately all payments we received from you, including delivery costs (other than the additional costs resulting from the circumstance that you chose another type of delivery than the most economical standard delivery we offered), however not later than within fourteen days as of the date when we received your notice of cancellation of this contract. For the repayment we will use the same payment method you used for the original transaction, unless we expressly agreed otherwise with you; we will in no event charge any fees for such repayment. We may deny the repayment until we received the goods back or until you proved that you returned the goods, whatever comes first.
You shall return or deliver the goods to us or to IDEAL Pack GmbH, Verpackungs- und Versandservice, c/o Lager Sportnex, Pfaffenstraße 49, 74078 Heilbronn, Germany immediately and by any means not later than fourteen days as of the date when you informed us of the cancellation of this contract. The period is met if you despatch the goods prior to the lapse of the fourteen days’ period. We will pay the costs for the return shipment of the goods. You only have to compensate for the loss of value of the goods, if any, if such loss of value is attributable to the use of the goods in excess of the handling required for the testing of the quality, properties and the manner of functioning of the goods.

4.4 Exceptions to the cancellation right: 
The right of cancellation does not apply to contracts
- for the delivery of goods which are not prefabricated and for the manufacturing of which an individual selection or designation by the user is essential or which are clearly designed to meet the personal needs of the user,
- for the delivery of goods which can easily perish or the best-before date of which would be exceeded quickly,
- for the delivery of sealed goods which are inappropriate for being returned for reasons of health protection or hygiene if their sealing was removed after delivery,
- for the delivery of goods if due to their nature they were combined indivisibly with other goods after delivery,
- for the delivery of alcoholic beverages the price of which was agreed on the conclusion of the contract but which can only be delivered 30 days after the conclusion of the contract at the earliest and the current value of which depends on fluctuations in the market not under the entrepreneur’s control,
- for the delivery of audio or video recordings or computer software in a sealed packaging if the sealing was removed after delivery, and
- for the delivery of newspapers, magazines or illustrated reviews with the exception of subscription contracts.

4.5 Right of withdrawal for Sportnex: In the event that payment for an auctioned product or service is not made within 20 days after receipt of the “acceptance of bid”, Sportnex is entitled to declare its withdrawal from the agreement. The same applies in the event that a direct debit is rejected by the customer.

5. Duties of the user:

5.1 The user has a duty to always keep the data in the membership account up to date. The user is informed that contractual declarations (e.g. confirmation e-mail, modifications to the GTCT, termination) may be sent to the same by e-mail. If communications, goods or possible refunds are unable to reach the user because the data entered by the same are incorrect then any delays or damages resulting from such will be at the expense of the user. This does not affect a possible right of cancellation by Sportnex in accordance with figure 11.

5.2 The user must ensure that the membership account is used only by the same and must keep his password secret to this end. He shall be liable to Sportnex for any abuses of his membership account for which he is responsible. The membership account is neither transferable nor heritable.

5.3 The user must procure the necessary technical requirements for participation (e.g. internet connection, mobile connection) at his own expense.

5.4 The user undertakes to refrain from actions that impair the function of the website (e.g. with software or other scripts) or otherwise interfere with the course of the auction without authorisation (e.g. use of so-called sniper software, submission of sham bids that have no genuine intention (joke bids)). The user will also refrain from modifying, overwriting, copying or distributing content of the website. This also applies for copying by means of ‘Robot/Crawler’ search machine technology.

5.5 Sportnex is entitled to demand a contractual penalty of 500.00 Euro for the first instance and 1,000.00 Euro for each subsequent instance from a user who has submitted a joke bid. This does not apply for serious bids whereby the user has an obligation to pay the sum that has been bid, in the event of rejection or delayed acceptance of the service, default of payment, or in the event that the user withdraws from the contract. The assertion of further damages from the submission of joke bids is not precluded and compensation claims for damages are counted with the contractual penalty.

6. Sportnex contact, next best bid:

6.1 If the user has gained the acceptance of bid in an auction or purchased an item, it may be necessary for Sportnex to make contact with him in order to clarify further details (e.g. date arrangement). The user agrees to this contact (including by telephone or e-mail).

6.2 In the event that the winner of the auction exercises his right of cancellation or return (figure 4) or Sportnex justifiably withdraws from the contract with the user then Sportnex is entitled to present the offer for acceptance to the user with the next best bid, setting a deadline for such. In this respect, the user agrees to temporary storage of his data for this purpose and to contact being made to this end. Sportnex is free to decide instead to re-advertise the product or service for auction or to no longer offer it at all.

7. Data protection:

7.1 If necessary for the performance of the contract, Sportnex will communicate the data specified by the user to contractual partners involved with the performance of the contract (e.g. to the clubs providing the products or service providers involved with the provision of the items or the delivery of the same).

7.2 Further information can be found in our data protection declaration for this website.

8. Server availability:

Sportnex guarantees 97% availability of the website on average over the year (24 hours, 365 days) measured at the router output of the computer centre, although maintenance times are not taken into account in the availability. Maintenance times are times that are required for the maintenance of the system and interruptions for offline backups within reasonable limits as well as interruptions due to force majeure, e.g. emergency measures in order to prevent a massive virus outbreak or unforeseen attacks by a third party (hacking).

9. Defects:

9.1. If a defect is present then, at its discretion, Sportnex will correct the defect or provide a replacement with the delivery of new goods. If the defect is not eliminated despite two subsequent attempts , or if Sportnex is unwilling or unable to provide an improvement or subsequent delivery, or if this is not effected within a reasonable period or if the supplementary performance fails for other reasons then the customer is entitled to assert the other statutory rights arising from product defects.

9.2 Sportnex provides no guarantee for the quality or durability of an item unless the quality or durability is explicitly identified as “guaranteed”.

9.3 The guarantee period for companies is generally one year; for consumers it is two years for new goods and one year for used items.

10. Liability:

10.1 Sportnex is liable only for malice and gross negligence and for the breach of an essential contractual obligation (cardinal duty). In the event of breach of a cardinal duty through slight negligence, the liability is limited to the damages foreseeable at the time when the contract is formed and to damages that are typical for the contract. Sportnex is not liable in the case of a breach of ancillary duties through slight negligence where these are not cardinal duties.

10.2 The liability limitation does not apply in the case of malicious concealment of defects or if a quality guarantee is provided, for liability under product liability law, and for damages compensation claims resulting from injury to life, body or health. No amendment of the onus of proof to the disadvantage of the customer is associated with this.

10.3 If the liability of Sportnex is excluded then this also applies for the personal liability of the employees, representatives and vicarious agents of Sportnex.


11. Term, suspension, cancellation:

11.1 The licence agreement runs for an indefinite period and may be terminated by the other party with a notice period of 30 days.

11.2 This does not affect the right to termination without notice. Sportnex is specifically entitled to terminate the agreement without notice if the user:
- Has given incorrect data or if data given by the same become incorrect due to lack of updating and a notification, product or refund therefore fails to reach the user;
- Has passed on his password;
- Has attempted to cause damage to other users;
- Has attempted to manipulate the services of Sportnex;
- Has acted dishonestly;
- Has failed to pay for a product or service on time.

11.3 If justified suspicion exists of grounds for termination without notice then Sportnex may suspend the membership account of the user until the suspicion has been eliminated. The user remains bound by offers already submitted for the duration of the suspension.

11.4 In the event of termination, the user is no longer entitled to submit bids if the auctions will finish only after the termination takes effect. He remains bound by offers already submitted until the end of the auction. After expiry of the notice period, Sportnex is entitled to delete the membership account.

12. Applicable law, place of performance, legal domicile:

12.1. German law applies to the exclusion of the regulations concerning choice of law and the UN convention on CISG.

12.2. The place of performance and exclusive legal domicile in relation to companies is Munich.

12.3 There are no verbal side agreements.

12.4 Should individual contractual terms or conditions be or become entirely or partially invalid then the remainder of the contract shall remain valid. The same applies in the event that a gap is found in the contract.