ECX – Users Agreement
Version 0.7, 31.03.2021
To facilitate the reading of the following Users Agreement, summaries have been added in front of the clauses. These summaries only describe the general meaning of the clauses without going into details. The parties acknowledge that these summaries are not legally binding and that their wording is irrelevant for the legal interpretation of the Users Agreement.
1. Preamble and definitions
This clause lists the definition of the capitalized words that are used in this Users Agreement.
1.1. European Car Xchange AG, Soneggstrasse 88, 8006 Zürich, Switzerland ("ECX") operates an international online platform for selling and buying total loss vehicles (the "Platform").
1.2. For the purposes of this Users Agreement for the use of the Platform (the "UA"), the following definitions apply:
are insurers or their experts, motor vehicle experts or their organizations, leasing companies, fleet operators, commercial dealers or private individuals who list vehicles for sale on the Platform.
is the period during which Bidders can bid on vehicles listed on the Platform.
Auction Winning Notification
is the notification received by the highest Bidder to inform him /her that he/she won the respective Auction. This notification might be issued by email or through the Platform.
is the amount offered by a Bidder to purchase a vehicle listed on the Platform.
are car dealers registered and approved by ECX to bid on vehicles listed on the Platform.
are Monday to Friday, except official public holidays in Germany or Switzerland.
are from 8 am to 6 pm CET during the Business Days.
is the Bidder who won the Auction.
is a Know Your Customer analysis.
is all the information which Advertisers provide regarding a vehicle for sale on the Platform.
has the meaning defined in section 7.5.
is a vehicle for which the sale requires the prior approval of the respective Seller and that is marked as such on the Platform.
is the brand name of an escrow service provided by the companies Pay and Relax GmBH and Mangopay SA to ECX. For the purpose of this UA, PAYLAX means the escrow services provided to ECX and to the Users.
are the owners of the vehicle listed for sale on the Platform.
are natural persons and legal entities with unrestricted legal capacity who use the Platform as Advertisers, Sellers, Bidders, or Buyer.
2. Scope, registration
The UA applies to the sale of vehicles and use of the Platform. As a rule, every User must accept the UA to use the Platform. ECX can choose whether to accept a given User or not. Users may have to provide certain documents to prove their identity to have their account activated.
ECX is considered as a service provider only and does not accept the application of any other party’s general terms and conditions.
2.1. This UA applies to the sale of vehicles and use of the Platform and the services connected therewith.
2.2. Potential Bidders can apply for registration on the Platform by uploading the required documents such as corporate documents, proof of business, and tax registration. Only registered car dealers in the EU and Switzerland are considered by ECX for approval. There is no entitlement for approval by ECX and ECX may deny any request or remove any approved Bidder in its sole discretion.
2.3. Bidders may be required to provide additional KYC documentation or to undergo such a similar process upon request by ECX or its payment processors. ECX may request the fulfilment of this process as a requirement for the activation of the Bidder’s account on the Platform.
2.4. Unless otherwise agreed in a separate agreement, this UA applies to registered Advertisers.
2.5. Sellers agree to be bound by this UA by accepting to have their vehicle listed on the Platform, or by accepting the sale of their vehicle. This may require an agreement between the Seller and the Advertiser to list the vehicle and share information with ECX regarding the completion of the sale (including but not limited to the location of the handover of the vehicle, contact information, bank information to ensure the payment of the vehicle, etc.).
2.6. Advertisers shall ensure acceptance of this UA by Sellers prior to listing a vehicle on the Platform or accepting a sale.
2.7. Any General Terms and Conditions of the Users are hereby expressly rejected. Such contrary General Terms and Conditions do not oblige ECX, even if they were not expressly contradicted when the contract was concluded, or the contractual partner provided a special form for the objection. Deviating General Terms and Conditions of the Users as well as ancillary agreements are only effective against ECX if they have been confirmed in writing by ECX.
2.8. ECX provides the Platform on which the Users, in accordance with this UA, can list vehicles or bid on listed vehicles for the duration of this usage agreement. ECX itself simply provides the Platform as a service provider and does not become a contracting party in the contracts about the purchase of vehicles via the Platform.
3. Escrow service
PAYLAX acts as an intermediary between the Buyer and the Seller, securing the payment of the agreed amount.
3.1. For the purpose of this UA, the services provided by PAYLAX to ECX and to the User may be described as follows:
• Following the end of the Auction, the Buyer will access PAYLAX's website through the Platform. The Buyer logs in the PAYLAX's website and deposits the agreed amount as per this UA via the options made available by PAYLAX.
• The Seller will be informed through the Platform about the secure receipt of funds in escrow.
• The Users can then proceed to the execution of the contract as per this UA.
• Once both Users confirmed the handover as per section 7.3 of the UA, the agreed amount, minus the fees accruing to ECX as per this UA, will be released out of escrow.
4. Listing of the vehicles for sale
The Advertisers must ensure that a) the vehicles listed on the Platform, except On-Reserve Vehicles, are available for sale, b) that the provided documentation is not copied from anywhere, and c) that the description of the vehicle is accurate. If they fail their obligations, they may have to indemnify ECX.
The Advertisers have to notify ECX if they notice any mistakes published on the Platform. ECX will then have to fix such mistakes.
4.1. Advertisers are responsible to ensure that the vehicles listed indicate whether they are (i) available for immediate sale or (ii) if they have to be considered as On-Reserve Vehicle as per this UA. Furthermore, Advertisers shall ensure that the data provided by the Advertisers regarding the vehicles listed (including but not limited to photography, description, documentation, etc.) are free of any third-party rights.
4.2. Advertisers shall ensure the accuracy of the vehicle description (including handover location) provided on the Platform. This includes information about the condition of the individual vehicles, availability of vehicle registration documents, and specified equipment features such as accessories or extras. The registration documents are only required when the listed vehicle is available for further registration, subject to a reasonable proof of ownership.
4.3. Advertisers shall immediately notify ECX if they notice any specific errors in the information published on the Platform. ECX will then take the necessary actions to correct the published information in a reasonable time. Once the information on the Platform corrected, ECX will restart the Auction and notify the Bidders who had already submitted a Bid based on the erroneous information.
4.4. Advertisers indemnify ECX from all claims, regardless of the legal reason, that result from any negligent or wilful violation of third-party rights.
5. Bidding process
The Auction starts when determined by ECX and lasts for 24 hours except if specified otherwise. The starting price is defined by the Advertiser. Each bid is considered as an offer and remains valid for 20 days.
Bidders can enter the maximal amount they would be ready to offer in a given Auction on the Platform. This amount will remain secret and the Platform will automatically bid for the Bidder up to the entered maximal amount.
Once the Auction is over, or, for On-Reserve Vehicles, upon acceptance of the sale by the Seller, the highest Bidder will receive the Auction Winning Notification and will have 3 days to transfer the Bid amount and the related fees. If the process fails, the second highest Bidder will be granted 3 days to transfer the amount corresponding to his/her Bid. ECX has the right to charge a penalty fee to the faulty Bidder and to stop him / her to participate in further Auctions.
5.1. The Auction for a respective vehicle lasts twenty-four (24) hours unless specified otherwise. The start of this period is determined by ECX and the respective Advertiser. It is displayed on the Platform. No further Bids may be made for the vehicle when the Auction ends.
5.2. The starting price of the listed vehicles is determined by the listing Advertiser. Bids are entered in the increments determined by ECX (e.g. EUR 100.00).
5.3. Bidders can view and bid on the vehicles listed on the Platform. The then-current highest Bid but not the other Bidders are visible to Bidders.
5.4. Bidders may enter their absolute highest bid on the Platform. The Platform will then automatically bid for the respective Bidder up to the entered absolute highest bid. The absolute highest bid remains secret to the other Bidders. The Bidders can subsequently increase their absolute highest bid, but not decrease it.
5.5. Each Bidder is bound by its highest effective Bid for the duration of the Auction plus a further twenty (20) Business Days from the end of the Auction. For the avoidance of the doubt, it is specified that a Bidder is only bound by its absolute highest bid to the extent effectively bid by the Platform in a given Auction.
5.6. For On-Reserve Vehicles: At the end of the Auction, and if the listed vehicle is listed as an On-Reserve Vehicle, the respective Seller has a 5 days period, unless indicated otherwise, to accept or deny the sale of the On-Reserve Vehicle. During this period, the sale is considered as pending and displayed on the Platform as such. If the Seller declines or fails to accept the sale, the Auction is immediately cancelled. In such cases, no fees shall be paid by the Bidders.
5.7. At the end of the Auction, or, for On-Reserve Vehicles, upon acceptance of the sale by the Seller as per section 5.6 above, the Platform sends the highest Bidder the Auction Winning Notification following which the Bidder shall transfer the amount corresponding to the winning Bid and the additional required fees as per section 9.1 of this UA via the available payment methods within three (3) Business Days. If the highest Bidder fails to comply with the before mentioned process, the Platform will send the Auction Winning Notification to the second highest Bidder who will then have to comply with the payment mechanism described in the present section. This process is repeated until a Bidder transfers the amount corresponding to the winning Bid and the additional required fees as per section 9.1 of this UA via the available payment methods. The Bidder becomes the Buyer once the money transfer is effective.
5.8. ECX may impose a penalty equivalent to 10% of the highest Bid made by a given Bidder if such Bidder fails to comply with its obligations as per section 5.65.7 of the present UA. Additionally, ECX may stop the faulty Bidder to participate in other Auctions taking part on the Platform for the duration ECX deems reasonable.
5.9. All Bids for vehicles are net and exclude VAT or other charges, if any. The Buyer and Seller are responsible for paying all such taxes and charges payable under applicable law.
6. Conclusion of the contract
After the Auction, the Buyer and the Seller conclude a contract regarding the sale of the respective vehicle. The contract is based on a template provided by ECX.
6.1. With the end of the Auction, or upon acceptance of the sale from the Seller as per section 5.6 in case of an On-Reserve Vehicle, a purchase contract is concluded between the Buyer and the Seller of the respective vehicle.
6.2. Unless otherwise agreed, the purchase contract concluded between the Buyer and the Seller is based upon the template made available by ECX on the Platform.
7. Execution of the contract
The handover of the vehicle must take place within 15 days following the reception of the Auction Winning Notification at the location mentioned on the Platform. The payment of the vehicle is transferred to the Seller once the Buyer confirmed the handover.
The Buyer complains to ECX if he notices a material defect (as defined by this UA). ECX will review the complaint and the Buyer will eventually have the right to cancel the transaction. The Advertiser will have to re-list the vehicle on the Platform within five days and to pay a fee to ECX for this delay.
7.1. The Seller and the Buyer negotiate the timing of the handover of the vehicle on the Platform. Unless otherwise agreed, the handover will take place at the location indicated in the Listing.
7.2. The handover shall take place at the latest within fifteen (15) Business Days following the receipt of the Auction Winning Notification. If the handover cannot be completed within this period, the Buyer shall be liable for late handover fees as per section 9.3 of this UA.
7.3. The Buyer shall immediately (i) confirm the handover of the vehicle on the Platform or, (ii) in case of a Material Defect, file a complaint with ECX. Upon confirmation of handover, ECX releases the amount corresponding to the respective Bid to the Seller.
7.4. In the event of a Material Defect, the Buyer has to log a complaint immediately on the Platform. ECX will review it, discuss with the involved parties as deemed necessary and decide bindingly on whether there are any grounds for the complaint. In case of a material defect, the Buyer is entitled to rescind the purchase agreement. In this case, the Advertiser who had listed this vehicle is responsible to adjust the description of the listed vehicle and to re-list it on the Platform within five (5) Business Days. The Advertiser is liable for the wasted costs of the Buyer and for the additional fees as per section 9.2 of this UA.
7.5. A Material Defect includes:
• Difference of more than 6 months between the actual and the stated first registration date of the vehicle.
• Wrong model
• Incorrect specification of the drive type (petrol / diesel etc.) or transmission type (automatic / gear shift)
• Non- or false information about significant previous and old damages that are not visible on the pictures (e.g. damages that affect the operation or safety)
• Substantial deviation of the equipment features, e.g. missing air conditioning, navigation system etc. although indicated (exception are equipment deviations, which are clearly visible on the pictures - pictures have priority)
• If the vehicle is registered in a country different than the one of the handover location, if not specified
• Missing or stolen vehicle documents (unless indicated otherwise in the Listing)
The following defects do not constitute Material Defects:
• Normal wear & tear
• Missing service checkbook
• Minor damages with a total value of up to € 500 net
• Damages visible on photos or deviations from the equipment from the Listing
8. Remedies, complaint procedure
The Buyers agree that the vehicles available on the Platform are damaged vehicles and that they are sold as such. The Buyers agree that the Sellers, the Advertisers, and, ECX cannot be liable for the vehicles listed on the Platform. The Buyer is responsible for the car from the moment of the handover.
8.1. The Buyers acknowledge and agree that all vehicles are damaged vehicles and sold "as is" without any warranties. Any claim for damages or loss of profit against the Seller, the Advertiser or ECX is excluded to the extent permitted under applicable law, unless explicitly stated otherwise herein or in the vehicle sales agreement.
8.2. The risk of accidental loss and accidental deterioration of the vehicle shall pass to the Buyer at handover.
8.3. The contract concluded between the Buyer and the Seller may only be cancelled in the presence of a material defect as per section 7.5 of the UA and in case of agreement by both the Buyer and the Seller.
9. Platform fees
ECX charges a fee listed on the current fee table to the Buyers for each purchased vehicle. This fee must be paid by the Buyers together with the price of the bought vehicle. ECX may also charge a fee previously agreed to the Advertiser for each vehicle listed on the Platform. The Buyers must pay late handover fees if the handover does not take place in the 15 days following the end of the Auction.
9.1. The Buyers shall pay ECX a fee for any purchased vehicle in accordance with the then-current fee table. The Buyers shall pay the fee together with the amount corresponding to their winning bid.
9.2. The Advertisers shall pay ECX a fee for each vehicle listed on the Platform as agreed in the relevant agreement between the Advertiser and ECX. The Advertisers shall also pay this fee when re-listing a vehicle on the Platform as per section 7.4 of this UA.
9.3. In the event of a later handover as defined in section 7.2 of this UA, and to the extent that the late handover is not attributable to the Seller, the Buyer shall pay ECX late handover fees in accordance with the then-current fee table. If the late handover is attributable to the Seller, the Seller shall indemnify the Buyer for its wasted costs.
9.4. Unless otherwise agreed or specified in the present Users Agreement, all invoices issued by ECX are payable within fourteen (14) days from the date of invoice. In case of late payment, the statutory provisions for such cases apply.
10. Service center
A service center is available for the Users to ask questions related to ECX’s services. The service center might be inaccessible fromtime to time.
10.1. ECX shall make available alone, or through sub-contractors, to the Users a service center that can be contacted at any stage of the process for questions related to ECX’s services by chat, email, or phone.
10.2. The service center is offered by ECX on an “as is” and “as available” basis.
11. Import and export
If the Users want to import or export vehicles, they must take every necessary actions to comply with the legal requirements.
11.1. The Users are solely responsible for ensuring that the relevant laws and other provisions regarding their rights to import or export vehicles are complied with.
ECX acts as service provider and does not participate in the contract between the Users. ECX does not verify the accuracy of the content of the Platform and does not assume any warranty if they are any mistakes on the Platform or if the Platform itself is unavailable for a given amount of time.
12.1. The Platform and all information displayed on it is provided by ECX on an "as is " and "as available " basis and ECX does not assume any warranty for the availability and the content displayed on the Platform.
12.2. ECX acts solely as a service provider and does not take part in any contract related to the purchase of the vehicles listed on the Platform, nor verify the accuracy of the information provided by the Advertisers regarding the conditions of the listed vehicles.
ECX, and its representatives or agents, are only liable to the mandatory extent required by law.
13.1. The liability of ECX is excluded to the extent permitted by applicable law, with the exception of injury to life or health and liability for damages caused willfully or with gross negligence. This limitation shall also apply for the benefit of ECX legal representatives and vicarious agents if claims are asserted directly against them.
Amendments of the UA
ECX has the right to amend the UA at any time. The Users will be notified, and the amendments will immediately apply.
14.1. ECX reserves the right to amend the UA at any time. The Users shall be notified of the amendments via e-mail or by notification on the Platform.
14.2. The amendments shall enter into force with immediate effect and apply to all Listings that are posted after the amendment is communicated.
15. Term and termination
The duration of the UA is unlimited. ECX and the Users have the right to terminate it at any time but must observe a 3 weeks’ notice period and formulate the termination in writing. If a User violates a provision of the UA, ECX has the right to exclude the User temporarily or to immediately terminate the contract in writing. The Bids made when the UA was still in force remain valid after the termination.
15.1. The contractual relationship between the Users and ECX is unlimited. ECX and the Users may terminate the contract at any time without giving reasons while observing a notice period of 3 weeks. The right to terminate without notice for an important reason remains unaffected.
15.2. In the event of serious breaches of contract, ECX is entitled to choose either to temporarily exclude the User from accessing the Platform or to terminate the contractual relationship without notice. A serious breach of contract occurs in particular when the User violates the provisions of this UA.
15.3. Termination shall only be valid when given in writing or text form (e.g. email, fax or letter).
15.4. Insofar as the Bidder has submitted Bids and the Auction or the bid binding period defined in section 5.5 above is still running after the termination of the contractual relationship, the Bidder is obliged to fulfil the obligations arising therefrom.
16. Data privacy
16.1. ECX collects, processes, and uses personal data in accordance with the Swiss Federal Act on Data Protection (FADP) and the European General Data Regulation (GDPR). Without the Users’ consent, ECX shall only collect, process or use data if this is necessary for the establishment, the implementation or the termination of the contractual relationship and for the purpose of recourse and settlement.
If a clause of this UA is ruled invalid, unenforceable or incomplete, the other clauses will remain fully valid. The Users have no right to transfer any of their rights or obligations to another person or legal entity. An exception is possible if ECX agrees in writing.
17.1. In the event that any individual provisions contained in this UA shall be deemed invalid or unenforceable or incomplete, this shall have no bearing upon the validity of the remaining provisions of this UA.
17.2. The Users shall neither assign its rights nor delegate its duties under this UA without the prior written consent of ECX. Any attempted assignment or transfer that is not permitted is void ab initio.
18. Applicable law, jurisdiction
Swiss law applies to this UA and the language used by the parties is English. Any disputes arising from this UA will be brought before a competent court in Zurich, Switzerland.
18.2. It shall be deemed agreed that all legal disputes arising from or in connection with the use of the Platform shall be settled before a competent court of law in Zurich, Switzerland.