General Contractual Terms and Conditions for the Use of the Online Auction Service

 

Effective as of 9^th April 2008

 

 

1)       Purpose of the Contract. These General Contractual Terms and Conditions (GCTC) are to be applied to all services related to online auction services and provided by Electool Hungary as Service Provider (hereinafter Service Provider) to users (hereinafter Participants or Organisers).

 

2)       Contractual relationship between the Parties shall commence upon entry in the online auction system, according to the General Contractual Terms and Conditions and by accepting those GCTC. The Service provider shall publish the effective version of the GCTC in its online auction system and this version shall become effective immediately following such publication.

 

3)       In case you need further information concerning these terms and conditions or you have questions not answered by the User Manual, please write to aukcio@electool.hu.

 

4)       Participants of the Service

i)         Organiser. Organiser of an online auction is a legal personality or economic organisation without a legal personality that prepares an auction announcement. Organisers define subject of auctions, related terms and conditions (payment, delivery terms, etc.) and other parameters in such announcements.

ii)       Participant. Participants may include individuals, legal personalities or economic organisations without legal personality that obtained an invitation for a given auction and, having accepted the terms and conditions defined by the Organiser, makes valid offers for products or services constituting the subject of such auction.

iii)      User: A natural person that, in representation of a Participant or an Organiser based on an authorisation, has valid access and authorisation to the use of the auction system.

iv)      Service Provider. The Service Provider is the operator of the auction system, who ensures the system required for auctions to be available for Organisers and Participants according to the terms and conditions of agreements concluded with the Parties. In certain cases � based on a separate agreement �, the Service Provider prepares an auction condition system, invites auction participants and organises auctions for an Organiser following such Organiser's instructions, upon request of such Organiser and for the benefit, and on behalf, of such Organiser. In such cases, the Service Provider performs the task of Organisers and exercises the rights of Organisers.

 

5)       The Service provider reserves the right to modify these General Contractual Terms and Conditions. Organisers of online auctions may order Unique Policies for any given auction, which may complete or, in certain cases, override terms and conditions related to auction processes and governed by this GCTC (and exclusively these). Provisions set forth in Unique Policies shall not prevail over the Service Provider's rights set forth in the GCTC.

 

6)       It is the responsibility of those using online auction services to read and understand the Policy before each auction event and offer. General Contractual Terms and Conditions and User Manual of the online auction service may be downloaded from the system in an electronic document format (pdf).

 

7)       The Service Provider provides participating parties (Organisers and Participants) with the use of its online auction system. It may not provide any information related to products and services constituting the subject of auctions, shall not be held liable for the contents of announcements except when proceeding on behalf of an Organiser based on a separate agreement.

 

 

 

 

 

8)       Auction types

 

Auctions that can be held in the Service provider's system may be either procurement or sale auctions according to conditions defined by the Service Provider.

 

i)         Auctions aiming at procuring products or services described in auction terms and conditions are called �procurement� auctions. In this case, Participants compete by offering decreasing prices and increasing or decreasing parameter values � optionally � previously defined by Organisers.

ii)       Auctions aiming at selling products or services described in auction terms and conditions are called �sale� auctions. In this case, Participants compete by offering increasing prices and increasing or decreasing parameter values � optionally � previously defined by Organisers.

 

9)       Invitation for an auction. It is Organiser's exclusive right to invite Participants to make offers. Participants may accept or reject invitations for an auction. In case a Participant rejects an invitation for an auction, it may not participate in that auction.

 

10)   Registration as Participant. Participants are registered in the auction system based on Organisers' invitation. Potential Participants may register themselves on the website of the auction application using a code included in an e-mail message sent automatically by the system. Activation of the user name and password of a Participant is at all times subject to the approval of the Organiser inviting such Participant. Organisers may choose to accept or reject such Participants at their option. Participants receive automatic e-mail notifications on such decisions in every case.

 

11)   Managing auctions.

i)         The goal of Organisers is to procure or sell products or services described in auction announcements. Participants may make offers during auctions. Offered values are binding for Participants and they may not be revoked once an offer is made. Unless an Organiser requires otherwise in its auction announcement, the period while Participants remain bound by their offers is 30 calendar days.

ii)       The duration of making offers is the time interval previously announced by Organisers or the Service provider in the auction system, including automatic and manual prolongations.

iii)      The Service Provider may, at its option, suspend and/or postpone auctions to a later date.

iv)      The Service Provider can send a message to all Participants at the same time during auctions.� Such messages are displayed on each Participant's user interface when it is refreshed next. Neither the Service Provider nor Participants are able to send individual messages (i.e. to specific recipients) in the system.

v)        Following the closing of an auction, Organisers may send notifications to all Participants, which may contain information regarding its business decision made based on auction results. Data included in such notifications are exclusively for informative purposes.

 

12)   Services offered to Participants

i)         Connection and access to the Service provider's online auction system

ii)       Ensuring participation in online auctions

iii)      Making the User Manual available in an electronic document format (pdf)

iv)      Information service via telephone and e-mail related to the system

v)        Telephone and e-mail support during auctions

 

 

13)   Service fees, invoicing and payment terms

i)         Conditions and extent of Service fees are determined by agreements concluded by the Service Provider and Organisers. Participants may be obliged to pay service fees based on such agreements. This obligation shall only be valid if, before starting an auction, an Organiser informs Participants in writing (e-mail or printed format) at least on the following:

a.       conditions of validity of payment obligations

b.       amount of service fees to be paid

ii)       In case Participants are obliged to pay service fees, the following conditions shall apply:

a.       Participants undertake to pay service fees to the Service Provider in due time.

b.       Such fees include all costs of the Service Provider incurred with regard to accomplishment of its obligations set forth in the agreement.

c.       Fees charged by the Service provider shall be invoiced after auctions to Participants, who are obliged to pay such fees by bank transfer, within 8 calendar days following the date of invoices.

d.       For late payment, the Service Provider shall charge late payment interest, which is double of current basic interest rate of the bank of issue.

 

 

14)   Duration of Agreements

a)       For Organisers: Duration of agreements shall be determined by effective agreements between the Service Provider and Organisers.

b)       For Participants:

i)         Agreements shall be concluded by the Parties for one occasion commencing by acceptance of auction registration in the system and finishing by termination of auction access rights.

ii)       Participants may not enter the auction system when their agreements have expired even if their available entering code and password pair enables it.

iii)      The Service provider is entitled to terminate agreements with immediate effect any time and without any consequences or to terminate access to the auction system in case a Participant violates the provisions of this GCTC or fails to pay due fees or other payment obligations within 8 days following payment deadlines.

iv)      In case of expiry, or termination by notice, of an agreement, all fees already invoiced and due to the Service Provider shall become due within 8 working days following the date of termination of such agreement. Fees of used services but not yet invoiced shall become due within 8 days following the date of such invoices.

 

 

15)   Rights connected with the auction system as an intellectual creation

i)         As regards all elements of the auction system, intellectual rights are the property of the Service Provider or the Service provider's contractual partners. These include specifically, but not limited to, graphical, design and display elements related to the use of the auction system and created by the Service Provider, animation, sound, program codes, manuals and descriptions. Exceptions include logos, trade marks, text, graphical figures and other elements provided by Users to the Service provider and previously protected.

ii)       The sale channel provided by the Service Provider may be freely used as reference by Organisers and Participants in their other materials if previously approved by the Service Provider in writing.

 

 

16)   Prohibited use

i)         Users may use services of the auction system exclusively for lawful purposes.

ii)       Users may not connect any program or device endangering system integrity or intended operation (virus, Trojan, worm, etc.).

iii)      In case materials submitted for upload or uploaded in the auction system are infected, damaged and endanger system operation either indirectly or directly, the Service Provider is entitled to annihilate such materials.

 

 

 

 

iv)      Users may not intentionally perform operations that place an unjustified and disproportionate load on the system. The Service Provider is entitled to terminate an agreement with immediate effect and enter a claim in case it can justify that a User endangered/damaged the system on purpose.

 

v)        In case a User violates the following provisions, services may be suspended until such violating behaviour is terminated and such User declares in writing that it will avoid such behaviour in the future:

�         attempt of illegal computer intrusion,

�         intentional or negligent use, sale or advertisement of products violating copyright or other rights,

�         use of any service in an inappropriate manner (which paralyses, or prevents from operation/use, any of Electool's services),

�         intentional or negligent violation of effective legal provisions and rules of use,

�         intentional or negligent violation of business secret.

 

 

17)   Warranty, guarantees and indemnification

i)         In compliance with effective legal provisions, the Service Provider guarantees that the subject of services complies with provisions of the law and of agreements and the use thereof does not infringe any third party's rights. This guarantee does not cover cases when a User uses the auction system or any element thereof in contrary to the agreement or without authorisation.

ii)       Users are obliged to notify the Service Provider in writing on their objections related to accomplishment with no delay. The Service provider shall not be held liable for damages arising from failing to do so or doing so too late.

iii)      Organisers and Participants guarantee and shall be held responsible that logos, trade marks, text, graphical and audio elements made available to the Service Provider can be used lawfully and provide a right to use these for the Service Provider. Moreover, they shall be held responsible that use of the auction system in accordance with the provisions of this agreement is lawful and fully compliant with provisions and expectations.

iv)      Organisers and Participants expressly agree that they use the auction system at their own risk and at their own responsibility.

v)        The Service provider shall not be held liable for interruptions and possible damages arising from operation deficiencies of the internet, local network elements and/or computer infrastructure.

vi)      The Service provider's full responsibility for damages towards Organisers and Participants shall be limited to the amount paid by such Organisers or Participants to the Service provider except for damages related to death, health or due to intentional, seriously negligent actions or crimes.

vii)     Participants acknowledge that Organisers will not select a winning Participant or Participants based on the order of offers in every case. Organisers' decisions will usually be based on joint evaluation of all criteria but price characteristically plays a distinguished role among these.

viii)   Participants acknowledge that Organisers are not bound to conclude an agreement related to the subject of offers with any Participant.

ix)     Transactions performed in the auction system are not controlled by the Service Provider. For this reason, the Service Provider shall not be held liable for established prices, compliance with conditions of agreements between Organisers and Participants, quality of delivered goods or lawfulness of goods included in transactions. Moreover, the Service Provider shall not be liable for accomplishment of Organisers' orders, Organisers' accomplishment of their payment obligations or any other direct transaction between purchasers and suppliers.

x)       Participants undertake to absolve and indemnify the Service provider from any and all damages, claims, proceedings, punishments, fines and other disadvantageous legal consequences that arise from violation of the provisions of this agreement or violation of its obligation related to information and guarantee.

 

18)   Confidential information, data management

i)         The Service Provider undertakes to manage Organisers' and Participants' other data (transaction data, agreements) confidentially. It shall not sell data or make them available to third parties without the consent of Organisers or Participants.

ii)       The auction system does not disclose Participants' names to other Participants. During making offers, those making offers does not know directly how many Participants are present and who these Participants are. Any Participant can only see its own offers and rank and, depending on settings of any given auction, current lowest offered values and information on its position (its situation compared to other Participants). Names and contents of offers of Participants will not be known to any other Participant for any reason.

iii)      Organisers and Participants accept that the Service provider may use their public data for advertising and marketing purposes related to the services.

iv)      Users shall be held responsible for the reality of Organisers', Participants' and Users' data.

v)        Identifiers and passwords provided by the Service Provider to Users are to be regarded as confidential information and may not be disclosed to any third parties and may only be used by their intended User. Each user of Participants are to obtain unique User identifiers and passwords, such data may not be shared between themselves and may not be used jointly. It is Users' responsibility to change Users' identifiers and passwords.

vi)      Participants acknowledge that its data submitted during registration will be entered in the Service provider's Auction Database, from which any Organiser may select and invite such Participant for further online auctions. Participants may accept or reject participation in auctions for which they are invited.

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19)   Miscellaneous provisions

i)         This agreement may only be modified in writing, upon mutual agreement. Also, the Parties may only deviate from the provisions of this General Contractual Terms and Conditions by an express and unanimous contractual statement.

ii)       Representatives of the Parties with a right to sign or persons authorised by such representatives are entitled to make statements on behalf of the Parties in the subject of this agreement. Authorisation of representation is to be justified upon request. Contractual statements are to be delivered to the other Party in writing, in a recommended letter or in person to the address indicated in this agreement.

iii)      In case the present General Contractual Terms and Conditions or any provision of the agreement of the Parties violates any legal provision, the rules of partial invalidity are to be applied to such provisions, that is, such provisions shall become invalid but other parts of the agreement shall remain valid unchanged. The Parties are obliged to conclude an agreement complying with the sense and goal of such invalid or infeasible provisions. In case no such agreement is found, legal provisions are to be applied.

iv)      Legal relationship of the Parties shall be governed by Hungarian law. The Parties shall attempt to settle possible disputes by coordination. In case of a lawsuit, the Parties hereby stipulate exclusive competence of the Court competent at the Service provider's site.

v)      For auction procedures conducted within a Hungarian public procurement process, in addition to this regulation, the terms of the CXXIX/2007 law in public procurement (Law) and 257/2007 decree (Decree) are also authoritative. In case this regulation and the Law and the Decree should contradict the Law and the Decree are to be considered valid.

vi)      Among the languages this document is available in, the one should be considered authoritative that corresponds to the Organizer company/organization�s residence of incorporation. Whenever no document is available in that language, the English version should be considered relevant.