Qimonda Dresden- 300mm Front End Wafer Fabrication Tools

By participating in this Online Auction, you consent to be bound by Seller’s Terms and Conditions (SECTION 1) and the Auctioneer’s conditions (SECTION 2) in addition to GoIndustry DoveBid General Terms and Conditions.

SECTION 1 - SELLER’S TERMS AND CONDITIONS

Preamble

Seller is Dr. jur. Michael Jaffé as insolvency administrator over the assets of Qimonda GmbH & Co. oHG, Königsbrücker Strasse 180, 01099 Dresden, Germany (referred to herein as „Qimonda“).

§ 1  Sale

1.1.    The Seller hereby sells and - subject to full payment by Purchaser of the purchase price in accordance with section 2 - transfers title to the Purchased Goods as shown on the relevant asset page to Purchaser which accepts the Purchased Goods hereby.

1.2.    The Purchased Goods shall not encompass any immaterial property rights of Qimonda existing in connection with the Purchased Goods, and, in particular, shall not encompass software or licenses. This shall also apply where such rights are necessary for the use of the Purchased Goods. Purchaser is therefore required to obtain all third party immaterial property rights necessary to make use of the Purchased Goods at its own cost. Purchaser is further obliged to defend and hold harmless Seller from and against all justified claims, demands and actions brought against Seller based upon any infringement of the Necessary Third Party Rights.

1.3.    The relevant asset page may describe whether the Purchased Goods are in new or used condition. Where the Purchased Goods are in used condition, these are sold in their respective state and condition at the time of the purchase. The Parties agree that this condition shall represent the fitness for use owed (geschuldete Beschaffenheit) in respect of the relevant Purchased Goods.

1.4.    The relevant asset page may contain special stipulations Purchased Goods which have been purchased or manufactured with capital investment subsidy.

§ 2  Purchase Price

2.1.    The purchase price for a Purchased Good is the price at which a lot is stated as “SOLD”, plus statutory value added tax to the extent applicable and the Buyer’s Premium or, if more than one item has been sold, the aggregate purchase price for all items sold.

2.2.    The Purchase Price is payable immediately.

2.3.       The Purchaser is obliged to pay the Purchase Price to the following account, unless stated otherwise in the Notice to Purchasers Akto RA Dr. M. Jaffé wg. Qimonda Dresden GmbH u. Co. OHG Kontonummer: [290860680], Commerzbank AG, München BLZ: 70040041 IBAN: DE88700400410290860680, SWIFT: [COBADEFF700].  Buyer is obligated to assign his executing bank to impose all banking fees charged by the Buyer's and Seller's bank in respect to the payment on him prior to processing the payment.

§ 3  Delivery, Transfer of Risk, Default of Acceptance

3.1.    Delivery shall take place after payment of the Purchase Price at the respective site of the respective Purchased Goods as notified to the purchasers. The Purchaser is responsible for picking up the Purchased Goods, including disassembly, crating, packing and transportation of such Purchased Goods. The Purchaser also bears on its own the costs as may arise where other property that is not purchased must be removed or moved from its original location. Where other property is damaged or destroyed, Purchaser shall bear liability for such property pursuant to statutory regulations.

3.2.    The Purchaser shall be obliged to take delivery of the Purchased Goods immediately. Where the Purchaser is in default of acceptance or where it culpably violates its obligations to assist in the consummation of the transaction, the Seller shall be entitled to claim against the Purchaser for the damages resulting thereof including compensation for the additional costs arising as a result thereof. The Purchaser reserves the right to assert additional claims.

3.3.    The risk of accidental destruction or of accidental damage to the Purchased Goods is transferred to the Purchaser with the pick up or, if applicable, with the start of disassembly of the Purchased Goods, however no later than the date of default of acceptance.

3.4     The Buyer states the recipient, including its address and country if they deviate from Buyer’ location, as the final destination of the Purchased Goods.

3.5     In case any Purchased Good is a Dangerous Good according to IATA (International Air Transport Association) /ICAO (Accord Européen relatif au transport international des Marchandises Dangereuses par Route, ADR (Accord Européen relatif au transport international des Marchandises Dangereuses par Route) /GGVSE (Gefahrgutverordnung Straße und Eisenbahn), the Buyer has the obligations as the sender and packer according to these laws and/or according to the regulations of these named organizations.

§ 4  Export Authorization und Export Freedom

4.1.    Where the Purchaser wishes to export the Purchased Goods, it shall bear the risk of an export prohibition as of the date it enters into the purchase, the risk of a subsequent export prohibition, and similarly, the risk of obtaining an import authorization.

4.2.        All costs associated with export and import shall be borne by the Purchaser.

4.3.        By bidding in this auction you agree to comply with all applicable export or import control or related laws or regulations and not to violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. The Seller reserves the right to cancel or rescind any sale at any time if it determines, in its absolute discretion, that the sale does or may violate applicable export or import control or related laws and regulations

§ 5  Retention of Title

The Seller shall retain title to Purchased Goods up until the fulfillment of all claims arising as a result of the business relationship with the Purchaser and, in particular, up until the settlement of any outstanding current account amounts (title retention until outstanding accounts have been paid – Saldovorbehalt). Until settlement of all such outstanding current account amounts the following shall apply:

5.1.    In the event of actions of the Purchaser which violate this Agreement, in particular, in the event of payment default, the Seller shall be authorized to withdraw from this Agreement subject to the expiry of a reasonable notice period and to repossess the Purchased Goods delivered by it or to effect seizure upon these. Upon the repossession of one or more of the Purchased Goods, the Seller shall be authorized to liquidate these; the liquidation proceeds shall be set off against the amounts owing by the Purchaser after deducting reasonable liquidation costs.

5.2.    The Purchaser is obliged to store and keep safe the Purchased Goods on behalf of the Seller and to treat these with care. Where maintenance and inspection is necessary, the Purchaser shall ensure that this is performed on a timely basis at its own cost.

5.3.    The Purchaser must notify the Seller immediately in writing in the event of seizure or other interventions by third parties. Where the third party is not able to reimburse to the Seller the court and/or extra-judicial costs of third party, the Purchaser shall be liable to compensate the Seller for the shortfall resulting therefrom.

5.4.    The Purchaser is entitled to subsequently sell the Purchased Goods in the context of customary business transactions but may not provide security interests in or pledge these. The Purchaser hereby assigns to the Seller in advance all claims in the amount of the final invoice amount (including value added tax) which it becomes entitled to assert against its respective customers or other third parties as a result of the subsequent sale. The assignment shall serve to secure the claims of the Seller in the same scope as the reservation of title in accordance with section 5.1 of these Ts&Cs (“Ts&Cs”). The Purchaser shall remain entitled to enforce upon these claims subsequent to the assignment. However, the Seller is entitled to enforce upon these claims itself where the Purchaser fails to comply with its payment obligations, defaults on payment, an application for the commencement of insolvency proceedings is commenced with respect to the Purchaser or the Purchaser ceases to make payments. In such cases, the Seller may revoke its grant of authorization to enforce upon claims. In addition, the Seller may demand that the Purchaser notify it immediately of the assigned claims and the parties owing under these, makes available to the Seller a written notification of assignment and makes available to the Seller all information and documents necessary for the enforcement of the claims.

5.5.    Where Purchased Goods are irretrievably commingled with or integrated into other goods that do not belong to the Seller, the Seller shall acquire joint and several title to the commingled or integrated goods corresponding to the value of the Purchased Goods belonging to the Seller (final invoice amount including value added tax) proportionate to the value of the commingled or integrated goods as a whole. Where the Purchased Goods are commingled or integrated in such a manner that the Purchased Goods of the Purchaser are regarded as the principal goods (Hauptsache), it is agreed herein that the Purchaser hereby assigns and transfers to the Seller proportionate joint and several property rights. The Purchaser shall store and keep safe the Purchased Goods belonging solely – or jointly and severally – to the Seller on behalf of the Seller.

5.6.    The Purchaser also assigns to the Seller as security for the Seller’s claims all claims against a customer of the Purchaser or third party resulting as a consequence of the Purchased Goods becoming attached as a fixture to real property. Section 5.4 of these Ts&Cs shall apply mutatis mutandis.

5.7.    At the request of the Purchaser, the Seller shall release security interests to the extent that the realizable value of the security interest exceeds the secured claims by more than 10 %. The Seller is entitled to select the security interests to be released.

§ 6  Warranty

6.1.1. The Seller assumes no responsibility for the achievement of any objectives – in particular commercial objectives - which the Purchaser is pursuing by entering into the purchase agreement.

6.1.2. Used Purchased Goods are sold exclusive of any warranty or guarantee, and nothing in these Ts&Cs shall be construed as an express or implied warranty or representation by Seller, irrespective of its legal basis.

6.2.    The following terms apply to the sale of unused and/or new Purchased Goods.

6.2.1. All information provided with respect to the Purchased Goods consists of information with respect to the attributes of the goods (Beschaffenheitsangaben) and does not constitute guarantees. 

6.2.2. The Purchaser may not refuse to accept Purchased Goods as a result of insignificant defects. Customary variations shall not constitute a defect.

6.2.3. The Purchaser is obliged to carefully examine Purchased Goods immediately upon their delivery. This shall also apply where the Seller delivers the goods to third parties at the instruction of the Purchaser. Purchased Goods shall be deemed to be approved where notice of a defect is not made immediately and the defect would have been discovered in the context of a careful inspection. Where a defect was not identifiable subject to careful inspection, the limitation period for providing timely written notice commences as of the date of discovery of the defect.

6.2.4. The Purchaser must immediately offer the Seller a reasonable opportunity to examine a defect during regular business hours. In the event of an intentionally or negligently false notification of a defect, the Purchaser shall be liable for the damages resulting therefrom.

6.2.5. The Seller shall not be liable for defects of the Purchased Goods delivered which arise as a result of their improper treatment by the Purchaser or third parties.

6.2.6. In the event of a defect as to quality (Sachmangel), the Seller shall be entitled to choose to deliver goods free of defects or to remedy the defect (Nacherfüllung). In the event of remedial action, the Seller shall be obliged to bear all necessary costs and expenses, in particular, transportation, shipping, labour and materials costs, to the extent that these are not increased as a result of the Purchased Goods having been relocated to a location different from that of the original delivery or shipping site. This shall not apply where the transportation of the goods to another site corresponds to the usual use of the Purchased Goods. Where the Seller elects to remedy the defect by way of subsequent delivery (Nacherfüllung in Form der Nachlieferung), the defective Purchased Goods shall be shipped back to the Seller free of freight and shipping charges, whereby the Purchaser shall select the most inexpensive means of shipping. 

 6.2.7. In the event that the remedy of a defect is ineffective, the Purchaser shall be entitled – at its option – to withdraw from the purchase agreement, to reduce the Purchase Price or to claim damages instead of specific performance or compensation for fruitless efforts. No claims for damages instead of specific performance or for compensation for fruitless efforts may be asserted in the event of insignificant defects (unerhebliche Mängel). The presence of insignificant defects shall not entitle the Purchaser to withdraw from the purchase agreement. A remedy of a defect is ineffective where the Seller is unable to remedy the defect within a reasonable period of time as set by the Purchaser, where two attempts on the part of the Seller to remedy the defect have been ineffective, where the Seller seriously and conclusively refuses to remedy the defect or the remedy of the defect is unreasonable for the Purchaser. The rights to which the Seller is entitled pursuant to § 275 BGB to refuse to remedy the defect in a specific manner remain unaffected.

6.2.8. Where, as a result of an ineffective remedy, the Purchaser is entitled on the one hand to continue to demand that the defect be remedied and, on the other hand, to assert the statutory rights to which it is otherwise entitled, the Seller may demand that the Purchaser exercise its rights within a reasonable period of time. The Purchaser shall notify the Seller of its decision in writing. The receipt of the written notification of the Purchaser shall be determinative with respect to compliance with notice periods. Where the Purchaser fails to exercise its rights on a timely basis (fristgerecht), it may exercise such rights, in particular, the right to claim damages or to withdraw from the purchase, only where an additional reasonable period (to be determined by it) for such remedy has expired without success.

6.2.9. Claims in respect of delivery of Purchased Goods with defects as to quality including damages claims relating to the delivery of such defective Purchased Goods shall expire one year after delivery. This shall not apply to damages claims based on intentional misconduct or gross negligence as well as to claims resulting from death, injury or damage to health. Where statutory provisions provide for a longer limitation period in respect of the use of Purchased Goods in buildings, the statutory limitation period shall apply.

6.2.10.The statutory provisions contained in §§ 478, 479 BGB remain unaffected.

§ 7  Limitation of Liability

7.1.    In the event of intentional misconduct or gross negligence on the part of the Seller or on the part of a representative or agent of the Seller, the Seller shall be liable pursuant to statutory liability regulations. The same shall apply in the event of death or injury or damage to health. The Seller – and its representatives and agents – shall further be liable for general negligence (leichte Fahrlässigkeit), in the event of the impossibility of consummation, for default and for the violation of another fundamental contractual duty. Fundamental contractual duties comprise those which render essentially possible the proper fulfillment of the purchase agreement and which the Purchaser is generally entitled to rely upon. In such cases, the Seller’s liability is limited to customary contractual damages which the Seller would have to have accounted for at the time the purchase agreement was entered into.

7.2.    Additional liability – regardless of its legal basis – is excluded. This applies – in particular – to all claims arising as a result of the violation of contractual duties and to claims arising in tort (unerlaubte Handlung). Liability in accordance with the Product Liability Act (Produkthaftungsgesetz) remains unaffected.

7.3.    This limitation of liability shall also apply to the benefit of the representatives and agents of the Seller.

7.4.    The Seller – as insolvency administrator – provides no personal guarantee and assumes no personal liability for the obligations contained in these Ts&Cs. All personal liability on the part of the insolvency administrator arising out of or in connection with these Ts&Cs is excluded to the extent permissible by statute. This applies in particular to obligations pursuant to §§ 60, 61 of the German Insolvency Act (Insolvenzordnung) and/or § 311 (2) BGB, but also to obligations arising under any other legal basis. In the event that personal liability on the part of the insolvency administrator should otherwise exist, this party shall only be liable for intentional misconduct and gross negligence. In any event, the personal liability of the insolvency administrator is limited to the purchase price actually paid by the Purchaser to the Seller for the Purchased Goods.

§ 8  Set-off, Rights to Withhold

8.1.    The Purchaser is entitled to set off claims to which it is entitled only to the extent that such claims have been established by a legally-binding, non-appealable judgment of a court or are undisputed. The same shall apply to the assertion of a right of retention (Zurückbehaltungsrecht).

8.2.    The Seller explicitly refers the Purchaser to the statutory provisions relating to set-off in an insolvency context pursuant to §§ 94 et seq. of the German Insolvency Act.

§ 9   Representation of the Insolvency Administrator

          The Seller notes that all notices made in connection with this purchase may only be provided by the Seller personally in his capacity as insolvency administrator or by individuals duly appointed by him. The previous representative bodies and appointees of Qimonda no longer exercise representative authority.

§ 10  Confidentiality

Purchaser shall for a period of two years after signature of these Ts&Cs use all information, which the Purchaser receives in connection with this Agreement confidential, use it only for the purposes of these these Ts&Cs and shall keep this information confidential to third parties.

§ 11  Concluding Provisions

11.1.    Arbitration agreements or provisions agreed to between the Parties or subject to the participation of Qimonda similarly shall not apply to this purchase agreement.

11.2.  With these Ts&Cs, the Parties regulate only the undertaking of the performance hereof. All other matters remain unaffected by this Agreement. In addition, by agreeing to these Ts&Cs, the Parties shall not prejudice any other matters, including comparable matters. Section 11.3 remains unaffected thereby. The ability of the insolvency administrator to assert potential claims in relation to other transactions or activities remains unaffected; this especially relates to entitlements to have transactions set aside. Third parties may derive no rights from this Agreement. In particular, the entering into of this Agreement does not constitute a representation to third parties with respect to performance or non-performance.

11.3. Unless otherwise expressly regulated in these Ts&Cs, each Party shall bear the costs, fees and transaction taxes incurred by it in relation to the entering into and performance of these Ts&Cs.

11.4.  This Agreement is governed exclusively by German law with the exception of UN commercial law. German-language terms contained in this Agreement shall serve as interpretative sources for the application of such terms in the context of this Agreement. These Ts&Cs are drafted in English; in all cases, however, German law and German legal definitions shall be used to interpret and apply these Ts&Cs regardless of whether a German definition is provided in the text of this Agreement.

11.5.  The ordinary courts (ordentliche Gerichte) shall have jurisdiction over disputes arising from and in connection with this Agreement. The exclusive venue for all disputes arising from and in connection with this Agreement is Munich, provided that no other exclusive jurisdiction is founded. However, the Seller shall also be permitted to claim against the Purchaser at its discretion in any other courts available to it by law.  

11.6. The English translation of these terms and conditions is for information purposes only. In case of any conflicts, the German version shall prevail.

SECTION 2 - Auctioneer’s Terms and Conditions

1. Auctioneer's role in Online Auctions

For the purpose of the Online Auctions the relevant GoIndustry DoveBid Group Company or, where applicable, the Associated Auctioneer named in the Notice to Purchasers or its agent will be the auctioneer and agent for the seller (the "Auctioneer") and will sell goods to a buyer. The Auctioneer may at its discretion or upon the instruction of the seller:

(a) alter or withdraw all or any lots up to the moment at which such lot(s) are indicated as "SOLD" (the "Announcement of Sale");

(b) where a reserve has been placed on any lot, withdraw that lot in the event that the highest bid price at the end of the Online Auction does not meet the reserve;

(c) bid for any lot or lots offered for sale at the Online Auction on its own account or on behalf of a third party; and/or

(d) combine (including in bulk), sub-divide or amend a lot or lots as the Auctioneer deems appropriate.

GoIndustry DoveBid, any GoIndustry DoveBid Group Company or an Associated Auctioneer may participate as sellers in Online Auctions from time to time.

Buyers agree that GoIndustry DoveBid and/or, where applicable, the Auctioneer may at any time and from time to time without notice: (i) discontinue an Online Auction either temporarily or permanently; or (ii) extend an Online Auction beyond the period indicated on the Site.

2. Sale

Subject to the reserve price (if any) being met, each lot shall be sold to the highest bidder. All sales are final. In the event of any dispute arising between buyers such dispute shall be dealt with in such manner as the Auctioneer may in its absolute discretion determine. The Auctioneer reserves the right to resell any lot in dispute by putting it up for auction again. The Auctioneer reserves the right to rescind any sale for any reason in which case the buyer’s sole remedy shall be the refund of the amount of the purchase price and any Buyer’s Premium actually paid.

The completion of a sale shall be indicated on the Site by showing the item as "SOLD" online - if an Online Auction for a lot closes without the lot being sold, it will show as "CLOSED", if a lot is withdrawn, it will show as "WITHDRAWN".

3. Regulation

Bidding shall be regulated by the Auctioneer in such manner as it may think fit and, without prejudice to the generality of the foregoing, the Auctioneer may without ascribing any reason therefore, refuse to accept any bid or may facilitate automatic bids on behalf of buyers during the Online Auction process.

4. Notice to Purchasers

The Site will show a separate Notice to Purchasers for each Online Auction which will stipulate a payment date ("Payment Date") for each lot in an Online Auction and the date by which the goods will have to be removed by the successful buyer ("Clearance Date" or "Removal Date") and certain other terms and conditions which form part of these Terms and Conditions.

5. Buyer's Premium

The buyer will pay to the Auctioneer such premium ("Buyer's Premium") on the Announcement of Sale as stipulated in the Notice to Purchasers for the Online Auction in question to which will be added any applicable value added tax or the equivalent or similar sales taxes in the relevant jurisdiction at the current rate. The Buyer's Premium is not negotiable and is payable by all buyers. The Auctioneer, when acting as agent for the seller, may also receive commission from the seller.

6. Buyer's obligations

(a) Payment

Unless otherwise provided for in the Notice to Purchasers, the successful buyer shall pay the full purchase price of the lot (including in addition Buyer's Premium and any value added tax or the equivalent or similar sales taxes) to the Auctioneer on behalf of the seller (in cleared funds) on or before the Payment Date. More information about the applicable taxes may be given in the Notice to Purchasers for the Online Auction in question, however, buyers should seek their own tax advice. The buyer agrees that invoices may be issued in electronic form by email.

Payment shall be made in the currency specified on the relevant Notice to Purchasers. Any bank charges in respect of conversion or transfer of monies shall be met by the buyer. If goods are exported, tax refunds or zero rating may apply, tax refunds (if any) will be made by the Auctioneer, subject to receipt of (i) satisfactory proof of export by the buyer; (ii) the corresponding amount of tax refund from the relevant tax authority or the seller and (iii) the relevant tax forms (if applicable).

(b) Collection/Removal

Unless otherwise provided for in the Notice to Purchasers for the Online Auction in question, the buyer will:

(a) remove lots from the seller's premises during normal business hours and not later than the Clearance Date/Removal Date for the lot in question and this condition shall be of the essence of the contract;

(b) only remove lots by previous arrangement with, and subject to the supervision of, the Auctioneer or its agent(s) or appointed representative(s);

(c) not be permitted to remove any lots it has purchased from the seller's premises until all sums due in respect thereof have been paid; and

(d) be responsible for the disconnection, dismantling, packing and collection and insurance of the purchased lot(s) at its own expense.

If, in the Auctioneer's opinion, removal of any lot or part thereof will be likely to cause serious damage to the seller's premises, or any other damage which the buyer is either unable or unwilling to rectify, the Auctioneer may by notice to the buyer rescind the sale of such lot or permit the removal thereof from the premises to proceed subject to such conditions as it may think fit to impose.

The buyer shall provide, or ensure that their agent(s) performing removals on its behalf, provide on demand, evidence of insurance policies reasonably satisfactory to the Auctioneer, GoIndustry DoveBid and/or the Seller.

Should any party claim possession of or title to all or part of a lot prior to its removal from the seller's premises, the Auctioneer reserves the right to rescind the sale thereof or to remove or permit the removal thereof from the seller's premises subject to such conditions as it may think fit to impose.

Should the buyer fail to comply with any of the foregoing requirements the lot or lots which have been subject to an Announcement of Sale to him or any part thereof may, without further notice, be re-offered for sale, destroyed or otherwise disposed of by the Auctioneer in any manner as it shall in its absolute discretion deem fit, and any monies paid shall be forfeited.

Without prejudice to any claims that the Auctioneer and/or the seller may have against the buyer for breach of contract or otherwise the buyer will become liable from the Clearance Date/Removal Date for all storage, security and administration expenses and the cost of and incidental to re-selling and/or otherwise disposing of uncleared items.

7. Buyer's responsibilities and conduct

The buyer will be responsible for all damage that it, its carriers or its agents may do to the property of any third party (and, in particular, to the seller's premises) in removing the lot(s) it has purchased. Should the Auctioneer consider such damage likely to occur, it may require the buyer to deposit such sum of money with the Auctioneer, by way of security for the costs of reinstating that part of the premises likely to be damaged by the removal of a lot, as the Auctioneer may require. Should the buyer refuse to deposit such monies, the Auctioneer may refuse the buyer access to the seller's premises for the purpose of collecting all or any of the lots it has purchased, or rescind the sale of such lot.

By placing a Bid on a lot, the buyer represents, warrants and undertakes that it has the authority and capacity to enter such Bid and close the transaction and that any Bid that it makes constitutes an irrevocable offer to buy the lot in question for the full amount of the Bid.

8. International statutory compliance exclusion

(a) It is expressly brought to the buyer's attention that, at the time of sale, any item of plant, machinery or equipment contained in the lot(s):

may not necessarily comply with the Health and Safety at Work Etc. Act 1974, Environmental Protection Act 1990 or any other UK and/or EC Acts, Regulations, Directives or their applicable laws or equivalent or similar laws in any relevant jurisdiction or; and

could contain blue or white asbestos, hazardous substances, dangerous chemicals etc. which if not handled correctly during their removal from a site could be in breach of the Health & Safety at Work Etc. Act 1974, Control of Substances Hazardous to Health Regulations 2002 or any other current legislations covering the use of such substances in a working environment in the UK, the EC or any other relevant jurisdiction.

(b) The buyer undertakes to:

remove, ship and use any purchased plant and equipment within the UK or EC or any other relevant jurisdiction in a way that does not contravene any relevant legislation and in full compliance with all applicable safety standards;

comply with all current applicable legislations in any relevant jurisdiction and reasonable instructions by the Auctioneer in relation to the removal/disposal of waste including hazardous waste.

Participants agree to comply with all applicable export or import control or related laws or regulations and not to violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. Participants acknowledge that the Auctioneer is not the exporter of record of any asset unless expressly stated.  The Auctioneer gives no representation or warranty concerning and has not conducted any investigation to ascertain which items, if any, constitute, for example, “Restricted Technology” for US law purposes or whose export is otherwise restricted under applicable law. The Auctioneer reserves the right to cancel or rescind any sale in an Online Transaction at any time if it determines, in its absolute discretion, that the sale does or may violate applicable export or import control or related laws and regulations. 

9. Intellectual Property Rights

The buyer acknowledges that any software or intellectual property rights attaching to a lot or lots may not be the property of the seller or capable of transfer by the seller. Neither the seller nor the Auctioneer is in any way authorising the use by the buyer of such software or intellectual property rights and any use of such software or exploitation of such intellectual property rights shall be at the buyer's sole risk.

10. Transfer of risk

Upon the Announcement of Sale the buyer shall assume all risks in and relating to such lots. The buyer is advised to effect in respect of all such risks arising thereafter any insurance it may consider necessary. The duty of the Auctioneer and/or the seller to make lots available shall be deemed performed upon Announcement of Sale even if a lot is subsequently damaged and/or part thereof has been lost.

Property and title in each lot shall not pass to the buyer until:

(a) full payment therefore has been received or (where payment or part payment is made by cheque) until the cheque(s) in question have been cleared; and

(b) each such lot has been removed from the seller's premises in its entirety.

11. As Is

All goods are sold "AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT RECOURSE". Illustrations, pictures or videos posted on the Site are for the convenience of the buyers only.
The Auctioneer and, where applicable, GoIndustry DoveBid has used its reasonable endeavours to ensure that the description of each lot(s) appearing on the Site are accurate, but the buyer relies upon such description at its own risk. Buyers should satisfy themselves prior to the sale as to the condition of the lot and should exercise and rely on their judgment as to whether the lot accords with its description at their own risk.

Subject to the obligations accepted by GoIndustry DoveBid and, where applicable, the Auctioneer under these Terms and Conditions neither the seller nor GoIndustry DoveBid nor, where applicable, the Auctioneer nor any of their respective employees or agents are responsible for errors of description or for the genuineness or authenticity of any lot and no warranty whatever is given by GoIndustry DoveBid or, where applicable, the Auctioneer, or their respective employees or agents or the seller to the buyer in respect of any lot and any express or implied conditions or warranties are hereby excluded to the greatest extent permitted by law.

12. Liability

Where the buyer loads any item of plant, machinery or equipment contained in a lot or lots to remove it from a site, neither GoIndustry DoveBid nor, where applicable, the Auctioneer shall be under any liability whatsoever to the buyer or any third party for any damage however so caused by the removal and the buyer shall be responsible for and indemnify GoIndustry DoveBid and, where applicable, the Auctioneer against any damage or loss which GoIndustry DoveBid or, where applicable, the Auctioneer may suffer or incur in respect of loss, damage or injury suffered by the buyer's employees or any third party arising from the removal of the plant, machinery or equipment. The buyer shall indemnify GoIndustry DoveBid, or, where applicable, the Auctioneer against any loss damage suffered by GoIndustry DoveBid or, where applicable, the Auctioneer which directly or indirectly is attributable to the nature of the plant, equipment or machinery acquired by the buyer whether through breakage, rust, decay, desiccation, leakage, wastage, inherent or latent defect or vice or natural deterioration.

arising out of or in connection with the use by, or the inability to use of, the Participant of the Site or the Services, or any other matter under these Terms and Conditions.

The aggregate liability of GoIndustry DoveBid in respect of any loss or damage suffered by a buyer and arising out of or in connection with these Terms and Conditions or arising out of or in any way connected with the sale or purported sale of any goods on the Site, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the amount of the Buyer’s Premium received by GoIndustry DoveBid from such buyer in respect of the goods which are the subject of the claim.  Nothing in this clause shall limit or exclude liability for death or personal injury resulting from the negligence of GoIndustry DoveBid or its employees or agents.

13. Choice of Law and Venue

ALL DISPUTES RELATING TO THESE TERMS AND CONDITIONS BETWEEN PARTICIPANTS AND THE AUCTIONEER SHALL BE EXCLUSIVELY GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF ENGLAND.

PARTICIPANTS AND THE AUCTIONEER HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE ENGLISH COURTS OVER ANY CLAIMS, DISPUTE OR MATTER ARISING UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THEIR ENFORCEABILITY. EACH PARTICIPANT ACKNOWLEDGES THAT GOINDUSTRY WOULD NOT PERMIT THE PARTICIPANT TO REGISTER AS A BUYER IF THE TERMS OF THIS CLAUSE 13 WERE NOT VALID, BINDING AND ENFORCEABLE.

In case of conflict between these Terms and Conditions, the General Terms and Conditions and the Qimonda Terms and Conditions, the Qimonda Terms and Conditions shall prevail in governing the relationship between buyers and the Seller.  These Terms and Conditions (and specifically clause 12) shall prevail in governing the relationship between GoIndustry DoveBid and the buyers.

These Terms and Conditions are drawn up in the English language.  If these Terms and Conditions are translated into another language, the English language text prevails.

GoIndustry DoveBid
September 2009