Buyer Terms & Conditions
Last Updated: 19/08/19
1. Scope and Implementation
- By accepting these Buyer General Terms & Conditions (the "Buyer Terms and Conditions"), you (the "Buyer") acknowledge and accept that the Buyer Terms and Conditions shall apply to and govern any purchase by the Buyer of equipment ("Equipment") listed on the websites and online marketplaces operated by Equippo AG, Zug, Switzerland ("Equippo"; together with the Buyer the "Parties") under the domain www.equippo.com and any local country versions operated by Equippo) (the "Marketplace"). These Buyer Terms and Conditions are available under www.equippo.com/buyer-terms-conditions and can be printed out or locally saved.
- Unless explicitly agreed otherwise by Equippo in writing, general terms and conditions and/or other contractual documents issued or provided by the Buyer are explicitly waived and excluded. This shall also apply in case the Buyer encloses general terms and conditions or other documents to the order or "order confirmation" or discloses such general terms and conditions or other documents otherwise to Equippo.
- The Buyer acknowledges that its contracting party for the purchase of Equipment is Equippo. Notwithstanding the foregoing, the Buyer acknowledges that some or all of the Equipment may be offered by Equippo on the basis of an undisclosed agency model on behalf of a third-party seller.
- By accepting these Buyer Terms & Conditions, the Buyer confirms that he/she/it is duly authorized and has the contractual capacity to agree to these Buyer Terms & Conditions and to enter into any other purchase contract, as applicable.
- These Buyer Terms & Conditions apply in addition to Equippo's General Terms and Conditions for the Use of Websites and Marketplaces (the "Website Terms & Conditions"). In case of discrepancies between the Website Terms & Conditions and these Buyer Terms & Conditions, the terms of these Buyer Terms & Conditions shall prevail.
2. Order Process
2.1. Orders and Updated Offers
- By clicking on the ‘Order’ button, the Buyer submits a binding and irrevocable offer to purchase the relevant Equipment (the "Order"), without the right of the Buyer to cancel or retract the relevant Order, any exceptions being subject to the Money Back Guarantee Procedure.
- The Buyer hereby acknowledges that such Order is subject to reconfirmation of the purchase price and availability of the relevant Equipment by Equippo (the "Confirmation") or transmission of a revised offer (the "Updated Offer") by Equippo.
- Should an Updated Offer be transmitted to the Buyer, the Buyer may accept such Updated Offer within 24 hours. Updated Offers shall be deemed expired at the earlier of (i) the Buyer declining the Updated Offer or (ii) the failure of the Buyer to notify Equippo about the acceptance of the Updated Offer within 24 hours upon submission of the Updated Offer to the Buyer.
- Equippo reserves the right to reject any Order at its sole discretion.
2.2. Binding Contract
A binding contract for the purchase of any Equipment shall be deemed concluded upon Equippo having submitted a Confirmation to the Buyer, or upon the Buyer having accepted an Updated Offer within the applicable deadline, respectively.
2.3. No Warranties
Except with regards to the Money Back Guarantee, the Buyer acknowledges and agrees Equippo shall be exempt from and does not make any implied or express representations or warranties, or provide any guarantees, to the Buyer with regard to any sold Equipment, provided that Equippo represents and warrants that the Buyer will, upon full completion of the purchase of an Equipment in accordance with these Buyer Terms & Conditions and subject to full payment of the Purchase Price and any costs, taxes and duties in connection with the delivery of the relevant Equipment to the Buyer's destination country, become the legal owner of the relevant Equipment, free and clear of any liens and encumbrances.
2.4. Money Back Guarantee
The procedure detailed in this Section 2.4 shall be known as the "Money Back Guarantee Procedure".
Equippo herewith agrees to rescind ("Cancel") the binding contract agreed between you and Equippo (as detailed in Section 2.2) pursuant to any Equipment purchased (in each case the “Refund Equipment”) from Equippo (each the "Contract") in the event you provide us with a written notice that you want to Cancel the Contract within 5 business days from the moment of the first unloading of the Refund Equipment at your jobsite or business place (the "Money Back Guarantee Period"), in no case later than 25 calendar days from the arrival of the vessel, if applicable, but only subject to the following explicit conditions ("Refund Conditions"):
- Before operating the Equipment, you are responsible to ensure the equipment is ready for use; this specifically includes verification of sufficient fluid levels and the fluids and filter condition;
- The Refund Equipment is cleaned by you; and returned to Equippo in exactly the same condition it was when initially delivered to you, including without limitation, qualitatively; and functionally (the "Quality Condition");
- An inspection by a representative of Equippo at a reasonable location of Equippo's choice in the jurisdiction where the Refund Equipment was delivered ("your jurisdiction"), to ensure the Quality Condition is satisfied, it being understood that you shall provide Equippo with your full cooperation and assistance in arranging such Inspection;
- A written approval (for which an email shall be sufficient) from Equippo to you that the Quality Condition has been satisfied;
- Your full cooperation in delivering the Refund Equipment back into our custody at a reasonable location of Equippo's choice in your jurisdiction, to enable the transportation of the Refund Equipment to another location of Equippo's choice; or in the event you imported the Refund Equipment when you initially purchased it, a location outside your jurisdiction of our choice, in accordance with the following paragraph (in each case, as applicable, the "Return Location");
- If you imported the Equipment when you initially purchased it from Equippo, you must arrange for the satisfaction of all (re-)export procedures and requirements to enable the (re-)export and handover of the Return Equipment at a Return Location of our choice in a suitable free zone. Any exceptions to the requirements set out in this provision, are at Equippo’s sole discretion and must be agreed in writing between the Parties, for which email is sufficient.
- Your full cooperation in carrying out any actions necessary to enable the full transfer of ownership of the Refund Equipment from you back to Equippo.
- No unreasonable delay caused by you (including without limitation through your non-responsiveness to Equippo’s communication attempts, and lack of cooperation) in the return of Refund Equipment to the Return Location, or anything else necessary to carry out the Money Back Guarantee Procedure.
The Parties agree, that any funds you have paid Equippo as payment of the Purchase Price for the Refund Equipment (in each case the "Funds") will only be returned to you after the Refund Equipment is back in Equippo’s actual possession. In every event where Equippo agrees to Cancel a Contract after the Refund Conditions have been satisfied, Equippo will pay you back the Funds by bank transfer within 10 days of gaining possession of the Refund Equipment, as far as the purchase price has been fully received by Equippo at that time, or as applicable, by cancellation or return of other payment instruments, such as letters of credit or bank guarantees if these were used for payment of the original Refund Equipment purchase.
3. Purchase Price
3.1. Purchase Price Specification
The purchase price for any Equipment for which a binding contract is concluded in accordance with Section 2.2 (the "Purchase Price") shall be the purchase price indicated in the Order Confirmation message, or the Updated Offer, respectively. The Buyer hereby acknowledges that costs, taxes and duties shall only be included in the Purchase Price if and to the extent specified on the Order Confirmation, or the Updated Offer, respectively, as well as on the pro forma invoice.
3.2. Delivery Address
The Purchase Price is contingent on the delivery address provided by the Buyer in the Order. The Buyer acknowledges and agrees that any changes to the delivery address may lead to additional costs.
3.3. EU VAT or similar Taxes
- For the purpose of these Buyer Terms & Conditions, "VAT" shall mean any value added taxes as per the EU VAT directive, or any other value added taxes, sales taxes or similar taxes in non-EU countries.
- All prices indicated by Equippo on the Marketplace, in the Confirmation, the Updated Offer or otherwise by Equippo are net of EU VAT, unless explicitly stated and specified otherwise.
- In case of any sale being subject to VAT, such VAT will be charged and specified as such on the pro forma invoice issued as per Section 4.1 and Confirmation, or the Updated Order, respectively.
- Equippo will remit any taxes or duties specified as included in the Confirmation, or the revised Order, respectively, to the competent authorities on behalf of the Buyer. The Buyer shall be responsible for any duties and taxes not specified in the Confirmation, or the revised Order, respectively. Without prejudice to the foregoing, Equippo will inform the Buyer about such duties and taxes to the extent known to Equippo.
4. Invoice and Payment
4.1. Pro-Forma Invoice
Upon issuance of a Confirmation, or acceptance of an Updated Order, respectively, Equippo will send the Buyer a pro-forma invoice for the relevant Purchase Price.
4.2. Payment Terms
The payment of the amount specified on such pro-forma invoice and any other payments due by the Buyer to Equippo shall be made within 5 days upon receipt of the respective invoice, failure of which shall entitle Equippo to a penalty for late payment of EUR 100. Section 4.4 shall remain reserved.
The default currency for transactions conducted under these Buyer Terms & Conditions is the Euro. Any display of prices in local currency is for information only. Application of any currency other than the Euro for any transaction under these Buyer Terms & Conditions is subject to written agreement (whereby e-mail or form submissions on our website are acceptable) and only confirmed if specified in the Order Confirmation and the pro forma invoice.
4.4. Right to Rescind the Contract in case Non-Payment
Upon receipt of the payment of the amount specified on such pro-forma invoice, Equippo will send a respective confirmation to the Buyer. If full payment of the amount specified on such pro-forma invoice is not received by Equippo within 10 calendar days upon receipt of the respective pro-forma invoice, Equippo shall, without prejudice for any other rights by law or by contract, be entitled to rescind the relevant contract for the purchase of any Equipment without further recourse or liability towards the Buyer.
4.5. Method of Payment and Source of Funds
Unless other payment terms have specifically been agreed in writing and reconfirmed in the Confirmation, the payment of any Purchase Price and any payment of other amounts due by the Buyer to Equippo shall be made via bank transfer. All payments must be made with the Buyer's own funds. The bank account used for any payments must be in the name of the Buyer.
4.6. Additional Fees
Any additional and outstanding fees such as for premium inspections are payable at the latest together with the payment of the Purchase Price. The Buyer acknowledges and agrees that payment of such fees and surcharges will be required before the transport and delivery of the relevant Equipment can be conducted.
5. Export, Delivery and Import
Equippo shall arrange and pay for transport of the relevant Equipment from it's current location to the place of delivery agreed with the Buyer and any export customs fees, transport, insurance premium, bank fees and other third-party costs related to the delivery of the equipment to the Buyer will be paid from the Purchase Price. In addition to the foregoing, Equippo shall arrange and pay for transport of any Refund Equipment from the Return Location to a location of its choice, in every event the Money Back Guarantee Procedure is carried out in accordance with Section 2.4 and the remaining provisions contained herein.
5.2. Export and Export Control
- Equippo shall ensure compliance with any applicable export compliance regulations of the place of business of Equippo and/or of the country of export of the relevant Equipment.
- The Buyer represents that he is not subject to any export control restrictions and acknowledges that Equippo may fully rely on such representation.
- The Buyer acknowledges that Equippo will not sell to any embargoed persons or countries according to Swiss regulations or any regulations in place at the origin or ship-from country of the equipment, or which any third party seller may be subject to, which may include (but is not limited to) UN, EAR, OFAC or ITAR regulations.
- Any Buyer is required to refrain from reselling or otherwise transferring any equipment purchased from Equippo to embargoed person or countries.
- The Buyer acknowledges that Equippo will not sell to (i) any person or entity listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state or Switzerland, (ii) any person operating, organized or resident in a country subject to any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the aforementioned authorities or (iii) any person owned or controlled by any of the persons covered in items (i) or (ii) (together the "Sanctioned Persons").
- The Buyer shall confirm to Equippo that it is not a Sanctioned Person, that it is not acting on behalf or for the benefit of a Sanctioned Person and undertakes not to resell or transfer any equipment to any Sanctioned Person.
5.3. Destination Country Regulations
The compliance of any Equipment for which a binding contract is concluded in accordance with Section 2.2 with any safety, emission or other local regulations of the destination country indicated in the Confirmation, or the Updated Offer, respectively, shall be within the full responsibility of the Buyer.
5.4. Delivery Date
Equippo will provide an estimated date range for the delivery of the Equipment to the destination specified in the Confirmation or the Updated Offer, respectively. The Buyer acknowledges and agrees that such date range is an estimate only provided by Equippo in good faith and made by applying reasonable care and shall under no circumstances be deemed guaranteed. Notwithstanding the foregoing, Equippo will, however, undertake reasonable efforts to deliver the Equipment in an adequately short timeframe.
For certain markets, Equippo may facilitate the import of the relevant Equipment to the destination country for the Buyer in Buyer’s name. The Buyer shall, however, in any case remain the importer of record, and Equippo and its dedicated logistics partners shall hereby act as agents of the Buyer only. Should notwithstanding the foregoing Equippo be deemed the importer of record, the Buyer undertakes to hold Equippo harmless against any damages caused by Equippo being deemed the importer of record. The Buyer agrees to provide Equippo with any information and documents necessary for the purpose of importing the relevant Equipment to the destination country in question.
5.6. Power of Attorney
The Buyer hereby grants power of attorney to Equippo limited to arranging transport, insurance, customs procedures, remittance of duties and taxes due and transfer of ownership to the Buyer, and the Buyer undertakes and agrees to issue any documents reasonably requested by Equippo to evidence such limited power of attorney.
5.7. Confirmation of Receipt and Pictures
The Buyer shall confirm the receipt of the Equipment to the relevant transport company and to Equippo upon delivery. The Buyer shall be responsible to take pictures of the Equipment while still loaded on the delivering truck from every angle prior to unloading.
5.8. Transfer of Ownership
Whenever the Equipment is offered by Equippo on the basis of an undisclosed agency model on behalf of a third-party seller, the transfer of ownership of the relevant Equipment shall operate directly between the third party seller for which Equippo is acting on the basis of an undisclosed agency model and the Buyer. In any case, the transfer of ownership to the Buyer shall be executed by the transfer of the possession of the Equipment to Equippo or the subcontractors designated by it on behalf of the Buyer and hereby upon the loaded Equipment leaving the premises of a third-party seller (from whom Equippo may purchase such Equipment or for whom Equippo is acting on the basis of an undisclosed agent) or other location of the Equipment.
5.9. Transfer of Risk of Loss
Equippo shall arrange for transport insurance coverage for the benefit of the Buyer and for the period starting with the transfer of ownership to the Buyer as per Section 5.8 and ending with the delivery of the relevant Equipment to the Buyer. The Buyer acknowledges that Equippo may take out additional insurance for its own benefit to cover any fee arrangements with any relevant third party seller and further costs.
5.10. Unloading Delays
Should for any reason no representative of the Buyer be available for unloading and receipt of the Equipment within two hours of arrival of the truck at the specified delivery address, within the agreed delivery timeframe, any additional charges for waiting times and additional delivery attempts are at the charge of the Buyer and payable directly to the transport company prior to unloading of the Equipment.
5.11. Undeliverable and Abandoned Equipment
- Should it be impossible for Equippo to deliver the Equipment to the Buyer (e.g. due to inability to reach the Buyer or a representative of the Buyer for the purpose of delivery and unloading), Equippo may place the equipment in storage at the Buyers’ cost.
- The Buyer may claim for delivery of the Equipment within 60 days of the Equipment being placed into storage, in which case the Buyer shall pay for storage and additional delivery charges prior to subsequent delivery of the Equipment.
- Should the Buyer not claim for delivery of the Equipment within 60 days of the Equipment being placed into storage, Equippo may deem the Equipment abandoned and, without prejudice to any other remedy by law or by contract, offer the Equipment for sale at any liquidation value Equippo deems appropriate. Equippo shall be entitled to a commission of 25% of the gross proceeds resulting from such sale. The remainder of such gross proceeds, minus all additional transport and storage costs incurred, shall be kept by Equippo in escrow for the Buyer and be paid to the Buyer upon request.
6.1. Transport Damages
Disputes on transport damages of the Equipment must be raised immediately and in accordance with the conditions and procedure of the transport insurance policy, available on request.
6.2. Accuracy of Description
- Disputes on the accuracy of the description of the Equipment or any other similar disputes must be addressed by e-mail and only to Equippo.
- Any disputes must be submitted immediately, in no case later than 5 calendar days after unloading of the Equipment at the delivery address.
- Equippo will not accept disputes regarding conditions and related inaccuracies that did not exist prior to the transfer of ownership to the Buyer as per Section 5.8, and the Buyer acknowledges and agrees (for the avoidance of doubt) that Equippo in particular will not accept any disputes relating to defects caused during transportation or being within the responsibility of the Buyer.
- The Buyer acknowledges that Equippo may have certain remedies against a third-party seller in case of any defects of the relevant Equipment. Without prejudice to Section 2.3 (No Warranties), Equippo will attempt to investigate and resolve any valid, substantiated and proven defect in dialog with the relevant third-party seller.
- Equippo may, at its full discretion, choose to provide the contact information of any relevant third-party seller to the Buyer.
- If and to the extent Equippo should have any contractual remedies in case of defects of the relevant Equipment, Equippo agrees to assign such remedies, provided that it shall be acknowledged and agreed by the Buyer that any recourse by the Buyer shall be only against any relevant third-party seller and not against Equippo.
7. Further Provisions
7.1. No Circumvention
For Equipment that the Buyer has first identified on the Marketplace as being for sale, the Buyer is prohibited from, without prior written consent of Equippo, contacting or attempting to contact any relevant third-party seller directly or indirectly other than via Equippo, or otherwise from attempting a purchase of such Equipment other than via the Marketplace. Should such purchase outside of the Marketplace occur, the Buyer can be held liable for any damages occurred to Equippo, including but not limited to the loss of any commission and costs for the listing and advertisement of the relevant Equipment.
7.2. No Uptime Guarantees
The Buyer acknowledges that Equippo neither guarantees that transmission of any Order, Confirmation, Updated Offer or confirmation of such Updated Offer free of errors nor the continuous availability of the Marketplace.
7.3. Right to Delist
The Marketplace reserves the right remove any listed Equipment at any time and for any reason, without liability in case such of delisting.
7.4. Intellectual Property
Any intellectual property on all data generated by or disclosed on the Marketplace shall remain in Equippo’s exclusive property.
7.5. Guidance only
Any information provided by or disclosed on the Marketplace is provided as guidance only and does not form part of the purchase contract, unless explicitly stated in the Confirmation, or the Updated Offer, respectively.
- The Buyer agrees to fully indemnify Equippo against, and hold Equippo harmless for, irrespective of any fault of the Buyer, (verschuldensunabhängig), any damages suffered by Equippo and caused by any representations made by the Buyer under these Buyer Terms & Conditions not being true, correct and accurate in all respects or the Buyer not complying with its obligations pursuant to these Buyer Terms & Conditions.
- Where the Buyer makes any representations, warranties and guarantees under these Buyer Terms & Conditions, the Buyers liability pursuant to this Section shall neither be qualified, nor be reduced or otherwise be limited by any actual or deemed knowledge by Equippo.
9.1. Taxes, Costs and Expenses
- Unless otherwise provided in these Buyer Terms & Conditions, any and all taxes and other public charges imposed on one of the Parties in connection with these Buyer Terms & Conditions and the transactions contemplated hereby are to be borne by the Party on which such tax or public charge is imposed.
- Unless otherwise provided in these Buyer Terms & Conditions, each Party shall bear its own costs and expenses arising out of or incurred in connection with these Buyer Terms & Conditions and all transactions contemplated hereby.
- These Buyer Terms and Conditions (including any amendment of this Section) may be amended only in writing (including by electronic communication).
- Any deviations from these Terms and Conditions shall be agreed in writing and must be duly signed by an authorized signatory of Equippo.
- Equippo reserves the right to amend these Buyer Terms and Conditions at any time with effect for any future purchases (i.e. purchases for which the Buyer has not yet submitted an Order); and future executions of Money Back Guarantee Procedures (Money Back Guarantee Procedures that have not yet commenced).
Neither Party shall be entitled to assign or transfer any rights resulting from a binding contract among the Parties for the purchase of Equipment or any of the rights or obligations thereunder to any third-party without the prior written consent of each other Party. Transfers or assignments in accordance with these Buyer Terms & Conditions shall remain reserved.
If any part or provision of these Buyer Terms & Conditions shall be held to be invalid or unenforceable, the other provisions of these Buyer Terms & Conditions shall nonetheless remain valid. In this case, the invalid or unenforceable provision shall be replaced (by court order, as the case may be) by a substitute provision that best reflects the intentions of the invalid or unenforceable provision without being unenforceable. The same shall apply in case of any gap in these Buyer Terms & Conditions.
9.5. Governing Law
These Buyer Terms & Conditions shall be governed by substantive Swiss law (to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980).
9.6. English Language
These Buyer Terms & Conditions may be translated into other languages; the English version however shall be the superseding and sole legally binding language version.
Any dispute arising out of or in connection with these Buyer Terms & Conditions shall be exclusively referred to the courts competent for the city of Zug, Switzerland.