Equippo AG / V004 last updated: 9th of June, 2020
Listing Terms & Conditions
- 1. Scope of Application
These Listing Terms & Conditions (“Listing Terms & Conditions”) shall apply to and govern the relationship between you (“Seller”) and Equippo AG, Baarerstrasse 141, 6300 Zug, Switzerland (“Equippo”, together with the Seller the “Parties”) as the Seller’s Undisclosed Sales Agent, appointed by Seller by oral, written or other agreement, to from time to time sell and promote used equipment owned by the Seller (each and collectively “Equipment”, as applicable) in accordance with the provisions contained herein (“Services”).
As part the Services provided by Equippo, the Seller can list Equipment on Equippo’s electronic platform, which is designed as a virtual marketplace for the sale of industrial equipment to buyers in various countries around the world, and accessible via the following link: www.equippo.com (the “Marketplace”, and the “Website”, as applicable), in accordance with the listing rocedure set out in section 2.2 (“Listing”, “List” or “Listed”, as the context may require).
These Listing Terms & Conditions apply in addition to Equippo’s general terms and conditions for the use of the Website, accessible via the following link: http://www.equippo.com/en/content/website_terms_conditions (“Website Terms & Conditions”). In the event of discrepancies between the Website Terms & Conditions and the Listing Terms & Conditions, the latter shall prevail.
2. Sales, Listing and Orders
- 2.1. Sale as Undisclosed Agent
- (a) The Parties agree that Equippo will provide the Services as the Seller’s undisclosed sales agent (“Undisclosed Sales Agent” (Verkaufskommissionär)), acting for the account of the Seller (Kommittent) only to the extent that Equippo will always enter into a sales contract directly with any buyer that results from the provision of the Services (each a “Buyer”) (so that the identities of the Buyer and the Seller will not be known to each other), but will never take ownership of any Equipment, it being understood that the transfer of ownership of any Equipment purchased as a result of the Services will occur between the Seller and the relevant Buyer. For the avoidance of any doubt, Equippo shall not act and shall not be deemed to act as an agent of the Seller, so that any Buyer that becomes a customer of Equippo shall under no circumstances become or be deemed to be a customer of the Seller.
- (b) Equippo is entitled in its sole discretion to disclose the identities of the Seller and Buyer for the purpose of the assertion or enforcement of any rights (relating to any Equipment) of the Seller and/or the Buyer.
- (a) If the Seller desires to List Equipment it shall provide to Equippo: (i) a proposal clearly identifying the Seller; a unique identifier for each unit of Equipment (“Unit”) to be Listed; the lowest acceptable selling price after deduction of the Sales Commission (as defined in section 3.2) and transportation costs (“Authorized Selling Price”) – the Authorized Selling Price is a guaranteed net minimum paid to the Seller in case of a successful sale; and the descriptions, pictures and other information and specifications (“Specifications”) applicable to the Equipment (“Listing Proposal”).
- (b) The Parties agree that if Equippo decides to publish any Unit referenced in a Listing Proposal for Listing on the Marketplace, so that such Unit is made available for purchase by a prospective Buyer (“Publishing”, and “Publish” as the context may require), such Publishing shall be deemed an acceptance of the Listing Proposal with respect to that Unit (“Listing Acceptance”). In the event Equippo decides not to Publish a Unit, such decision will be deemed a rejection of the Listing Proposal with respect to that Unit (“Listing Rejection”). In case of a Listing Rejection, Equippo may contact the Seller via email to give the Seller an opportunity to provide Equippo with a revised Listing Proposal.
- (c) The Seller acknowledges and agrees that Equippo will only List and provide the Services for Equipment that has passed the Listing Acceptance; that Equippo may desire to inspect Equipment that the Seller desires to List prior and as a condition to its Listing; and that Equippo will never sell Equipment Listed lower than the Authorized Selling Price without prior written approval of the Seller.
- (d) The Seller grants Equippo full exclusivity regarding the Listed Equipment during the duration of the respective Listing. The Seller agrees not to advertise or offer the Listed Equipment to other parties, and grants Equippo the exclusive right to sell the Listed Equipment in accordance with these Listing Terms & Conditions.
- (a) Equippo is in its discretion entitled to remove a Listing from the Marketplace (“Delisting” and “Delist”, as the context may require) and will notify the Seller via email in the event it does so with the reason for the Delisting; and the Seller is entitled to request a Delisting by providing Equippo 10 (ten) Business Day (as defined hereinafter) prior notice by e-mail if the Seller has not already received an Offer Notice, Order Notice or Buy Now Order (as applicable) (in accordance with section 2.4 below) for the Equipment the Seller desires to Delist, in which case the Seller shall not be entitled to Delist the Equipment without a reason reasonably acceptable to Equippo. “Business Day” shall mean any day on which the Banks in Zug, Switzerland are open for business.
- (b) In the event the Seller fails to comply with its obligations as per section 2.3 above, the Seller shall pay Equippo a contractual penalty of an amount equal to five percent (5%) of the Authorized Selling Price of the relevant Listed Equipment, payable within ten (10) Business Days upon issuance and delivery of a payment request by Equippo.
- (a) The Buyer may either make a binding offer for the purchase of Equipment (“Offer”) or, when made available, place a binding order for Equipment by using the “Buy now”-Button (“Buy Now Order”).
- (b) Offer: The Offer of a Buyer contains an offer price net of delivery costs and prior to deduction of the Sales Commission (as defined in section 3.1). Equippo shall provide the Seller with the Offer (“Offer Notice”), unless the Offer is, in Equippo’s discretion, inappropriate, not qualified, not meant seriously or in case of other important reasons. The Seller is obliged to react within one (1) Business Day to Equippo by either accepting the Offer (“Offer Acceptance”) or providing a binding counter-offer (“Counter-Offer”) or rejecting the Offer without any Counter-Offer (“Offer Rejection”). Any Offer or Counter-Offer is subject to the condition that the sales contract comes only into force upon Equippo’s receipt of the full Buyer Payment or a Security by the Seller in accordance with section 4.1(a) (Final Sales Approval).
- (i) Offer Acceptance: The Seller shall notify Equippo together with the Offer Acceptance of a date on which the ordered Equipment can be picked up by Equippo (“Pickup Date”), it being understood that the Pickup Date shall not be later than five (5) Business Days after the Offer Notice. Upon receipt of the Offer Acceptance and the Pick-up Date, Equippo confirms the Offer to the Buyer and sends the Buyer a pro forma invoice (“Confirmation”).
- (ii) Counter-Offer: Equippo provides the Counter-Offer to the Buyer which may accept it within one (1) Business Day (“Order”). Equippo shall provide the Seller with Buyer’s Order (“Order Notice”) and Seller shall provide the Pick-up Date to Equippo within one (1) Business Day from receipt of the Order Notice. Section 2.4(b)(iii) applies by analogy.
- (iii) Offer Rejection: Equippo informs the Buyer of the Offer Rejection.
- (c) Buy Now Order: Buy Now Orders are deemed accepted by the Seller, subject to the condition that the sales contract comes only into force upon Equippo’s receipt of the full Buyer Payment or a Security by the Seller in accordance with section 4.1(a) (Final Sales Approval). Equippo provides the Seller with a notice of the Buy Now Offer via e-mail (“Buy Now Notice") for information purposes only. The seller shall provide the Pick-up Date to Equippo within one (1) Business Day from receipt of the Buy Now Notice. Section 2.4(b)(iii) applies by analogy.
- (d) Without limiting the Seller’s warranties regarding the Equipment: Equippo shall be entitled to inspect any Equipment prior to its shipment and the payment of Selling Price (as defined in section 3.1) to the Seller to ensure that it complies with the Specifications. In the event that certain Equipment does not conform to the Specifications, in addition to any other remedies available at law and per the Listing Terms & Conditions, the Authorized Selling Price for such Equipment will be amended reasonably and Equippo shall be entitled to cancel the applicable contract, Seller’s respective declarations of intent and/or any Offer Notice, Order Notice or Buy Now Notice.
- 3. Sales Commission
- (a) The “Buyer Payment” is the total payment received by Equippo from the sale of Listed Equipment per Equippo’s invoice to the Buyer, consisting of the Selling Price, VAT, delivery costs, Sales Commission (as defined below) and additional fees.
- (b) The “Selling Price” is the price at which the Seller sells the respective Equipment, as subsequently invoiced by the Seller to Equippo, net of Sales Commission (as defined below) and delivery costs to the Buyer.
Where any Listed Equipment is sold via the Marketplace, Equippo is entitled to a sales commission (“Sales Commission”) of:
- (a) twelve percent (12%) of the Selling Price for Listings with an expert inspection arranged by Equippo; or
- (b) six percent (6%) of the Selling Price for Listings with a self-inspection conducted or arranged by the Seller, but in any case at least EUR 50.
- (c) two percent (2%) of the Selling Price for Listings sold to a Buyer identified and provided to the Equippo by the Seller, in any case at least EUR 50.
- 4. Payment of Invoices
- 4.1. Payment of Buyer Payment; Provision of Security
- (a) In every event where Equippo does not agree with a Buyer to receive its full Buyer Payment prior to the Seller relinquishing possession of the Equipment ordered by a Buyer (“Sold Equipment”), Equippo shall ensure the Buyer provides a security by way of payment into escrow, letter of credit or similar instrument (the “Security”) for the Buyer Payment. Equippo will notify the Seller via email once the Security or the full Buyer Payment has been received (the “Final Sale Approval”), it being understood that shipment of any Sold Equipment is always on the precondition of and subject to Equippo receiving either the full Buyer Payment or the Security; and that pursuant to a Confirmation, Equippo shall obligate the relevant Buyer to provide the Buyer Payment or the Security within a maximum of 10 (ten) Business Days from the applicable Confirmation (the “Collection Period”).
- (b) The Parties agree and acknowledge that Equippo shall issue any (pro forma) invoice to a Buyer in its own name, and (without prejudice to the remaining provisions of the Listing Terms & Conditions) Equippo will operate as the Seller’s collection agent with respect to the collection of the Buyer Payment and transfer of the Selling Price to the Seller; and shall be entitled to obtain any proceeds from the Security as necessary to carry out its obligations and exercise its rights hereunder.
- (c) In the event a Buyer does not provide the Buyer Payment/Security within the Collection Period with respect to any Sold Equipment, the Seller shall be entitled to request a cancellation of the applicable Confirmation, and if the Seller does not cancel in accordance with the foregoing this shall be deemed as agreement to extend the Collection Period by a reasonable time, until the Buyer provides the Buyer Payment/Security or Equippo cancels the Confirmation.
- (a) Upon Equippo’s request (usually prior to the Pick-Up Date), the Seller shall issue an invoice to Equippo that matches the Selling Price (“Invoice”); Equippo will provide the necessary information regarding the transaction and the Selling Price upon Seller’s request.
- (b) The Parties agree and acknowledge that if the Seller does not issue an Invoice within ten (10) Business Days from Equippo’s request to do so, Equippo is entitled to issue the Invoice in the Seller’s name (self-billing).
Equippo will pay the Selling Price to the Seller within five (5) Business Days of Equippo’s receipt and acceptance of the applicable Invoice, subject to the remaining terms of the Listing Terms &
Conditions, by wire transfer to the Seller’s bank account, for which the Seller shall provide Equippo the details via email or in its invoice.
- 4.4. VAT and Customs (as applicable)
- (a) The Seller confirms validity of its VAT number and shall inform as well as the current location and customs status of the Listed Equipment at the time of the Listing Proposal.
- (b) For VAT purposes only, Equippo shall be deemed a principle of the sales transaction with the relevant Buyer and the Seller shall invoice Equippo as if it was an intermediate buyer of Listed Equipment. Equippo shall provide the Seller with the appropriate local entity or branch of Equippo to be used for invoicing purposes, as required for each transaction.
- (c) Equippo shall disclose the destination country to the Seller in the Offer Notice, Order Notice, Buy Now Notice (as applicable).
- (d) For any sale subject to local VAT, where the shipto address is within the country where the Listed Equipment is located, it shall be the Seller’s responsibility to apply the correct VAT treatment with respect to the deemed sale to Equippo, and it shall be Equippo’s responsibility to apply the correct VAT treatment with respect to the deemed sale to the Buyer. Equippo may exclude Buyers or delivery locations in the same country where the Listed Equipment is located in order to prevent the occurrence of domestic transactions subject to local VAT.
- (e) For deemed intracommunity supplies of goods from Seller to Equippo, the Seller shall invoice Equippo with a VAT rate of zero (0) in accordance with the EU VAT directive. Equippo shall provide the Seller with the appropriate entity or branch of Equippo and a VAT identification number issued by another EU member state than the country of dispatch of the Listed Equipment and any necessary proof of transport of the Listed Equipment to another EU member state or similar justification required by the laws and regulations in effect in Seller’s country.
- (f) For export sales of goods from the EU to nonEU countries the Seller shall invoice Equippo with a VAT rate of zero (0) in accordance with the EU VAT directive. Equippo shall provide the Seller with any necessary proof of export or similar justification required by the laws and regulations in effect in Seller’s country at the time of export.
- (g) Equippo shall be responsible to ensure the correct VAT treatment of the deemed sale of the Listed Equipment to the relevant Buyer.
- (h) For the avoidance of doubt, Equippo shall not be responsible for the Seller’s responsibility of correct VAT treatment of the deemed sale to Equippo.
- (i) The Invoice shall include the appropriate VAT and VAT identification numbers, if different, of the Seller and of Equippo and information about any VAT payable by Equippo to the Seller, if applicable.
- (j) Unless explicitly stated to the contrary herein, all prices, commissions and fees referred to in the Listing Terms & Conditions are net of VAT.
- (k) Notwithstanding the foregoing, in every customs declaration the Buyer will always be identified as the consignee/importer of record, and the Seller will always be identified as the consignor/exporter of record, with the exception of transactions that are deemed domestic or intra community transactions within the EU whereby Equippo, for VAT purposes, is deemed the buyer with its EU VAT Number and subsequently acts as the consignor/exporter of record.
All transactions under this Agreement shall be conducted in Euro, unless a different currency is agreed between the Seller and Equippo in the Listing Proposal and acceptance process.
- 4.6. Transportation and Delivery
- (a) In accordance with section 2.4(d) the Seller shall make all Sold Equipment available for transport, complete with charged batteries, fuel and keys, within ten (10) Business Days after its receipt of an Offer Notice (that has been accepted), Order Notice or Buy Now Notice (as applicable).
- (b) Without prejudice to the remaining terms of the Listing Terms & Conditions, in the event a breach of section 4.6(a) results in a cancellation of a contract or the Buyer’s respective order and a refund of the applicable Buyer Payment to the applicable Buyer, Equippo shall be entitled to charge the Seller a default fee of twenty percent (20%) of the Authorized Selling Price.
The Seller hereby grants a power of attorney to Equippo in its capacity as the Seller’s Undisclosed Sales Agent for the limited purpose of appointing a customs broker for export of the Equipment; executing all related export documents; entering into sales contracts with any Buyer; transferring ownership and possession of the Sold Equipment to the Buyer, collecting the Buyer Payment from the Buyer and self-billing of the Selling Price – as necessary to perform its duties under the Listing Terms & Conditions; or enable the Seller to perform its duties contained herein.
- 4.8. Transfer of Ownership and Risk of Loss
Ownership of any Sold Equipment shall transfer directly from the Seller to the Buyer at the point when Equippo receives the applicable Buyer Payment or Security from the Buyer; and all risk of loss relating to any Sold Equipment shall pass directly from the Seller to the Buyer the moment the Seller has carried out all of the Seller’s delivery obligations under a specific Offer Notice (that has been accepted), Order Notice or Buy Now Notice (as applicable). In case Equippo conducts a sale under different terms regarding Risk of Loss, for example under standard Incoterms, Equippo assumes the Risk of Loss until it has passed to the Buyer.
- 5. Representations, Warranties and Guarantees
The Seller hereby represents, warrants and guarantees in the sense of an independent guarantee pursuant article 111 of the Swiss Code of Obligations to Equippo, that the statements under section 5
are true, correct and accurate in all respects for the term of the Listing Terms & Conditions, unless specifically stated otherwise in the Listing Proposal:
- (a) The Equipment (until sold to a Buyer) is owned by the Seller free and clear of any thirdparty rights such as liens or any other encumbrances or obligations.
- (b) The advertising or sale of the Equipment does not infringe upon any patents, trademarks or similar rights of any third parties.
- (c) The Seller is solvent and has not entered into any preparations for insolvency or bankruptcy or other similar proceedings.
- (d) The Equipment has been properly imported and is in free circulation in the country where the Equipment is located.
- (e) The Equipment is certified in accordance with the legal requirements applicable at its location.
- (f) The Equipment is in good and safe running condition, and the description and Specifications provided by the Seller for all Equipment is accurate.
- (g) The Seller has disclosed to Equippo, any and all major damages to the Equipment, the definition of a major damage being any damage with a repair cost in excess of EUR 500 (five hundred euros).
- (h) The Equipment is free from any major fluid leaks, cleaned and transportready for transport by truck and vessel by common standards. The Seller has disclosed any other fluid leaks even if considered as minor.
- (i) The Equipment is free of hazardous materials other than normal operating fluids.
- (j) Any self-inspection of the Equipment has been carried out in good faith.
- 6. Further Obligations of the Seller
The Seller shall:
- (a) Ensure all Equipment to be delivered to a Buyer is in a condition appropriate for shipment, and that any repair or cleaning cost resulting from an unacceptable condition will be borne by the Seller and may be deducted from the Selling Price;
- (b) Ensure that the usage indicators (such as engine hours or km) are accurately represented in the Specifications, and that the usage indicators represent the true usage of the Equipment;
- (c) Provide all user and parts manuals required for the operation of the Equipment; document the Equipment with photographs; and store the Equipment in an appropriate weatherprotected place;
- (d) Provide all certificates of conformity issued or required with the Equipment (such as CE certificates of conformity for CE marked equipment) to Equippo by scan or digital photograph;
- (e) Ensure that the Equipment is not used after Listing, except for the purpose of loading upon shipment to a Buyer;
- (f) Grant, and to the extent possible hereby grants, Equippo the license and right to use any content, images and videos provided by it for advertisement of the Equipment on the Marketplace and any other media and shall procure that such use shall not infringe any rights of third parties; and
- (g) if the Seller has carried out a self-inspection and the Buyer makes use of the Money Back Guarantee as set out in section 2.4 of the Buyer Terms & Conditions (available under https://www.equippo.com/en/content/buyers_terms_conditions), undertake all necessary actions for the rescission of the purchase contract, in particular taking back the Equipment and paying back the Selling Price (without interest) to Equippo. The Seller hereby agrees to such rescission.
The Seller (the “Indemnifying Party”) shall indemnify, defend, and hold harmless Equippo (the “Indemnified Party”), its employees, officers and contractors against any and all third party claims or demands for damages, liabilities, losses, actions and/or suits, including reasonable attorney’s fees and court or arbitration costs (hereinafter referred to as “Losses”) arising directly or indirectly as a result of the Seller’s breach of a provision of the Listing Terms & Conditions or breach of a warranty by the Seller given herein, except to the extent that any such Losses are directly caused by the gross negligence or intentional misconduct of Equippo.
The Seller agrees not to contact, not accept any contact from, and to inform Equippo of any contact made by a prospective Buyer or a Buyer (each a “Contact”) identified and/or introduced (as applicable) by Equippo via the Marketplace, and shall refrain from taking any action that directly or indirectly leads to a sale to the Contact off the Marketplace without the prior written approval of Equippo (to be provided in its absolute discretion).
- 9. Miscellaneous
- 9.2. Taxes, Costs and Expenses
- (a) Unless otherwise provided in the Listing Terms & Conditions, any and all taxes and other public charges imposed on one of the Parties in connection with the Listing Terms & Conditions and the transactions contemplated hereby are to be borne by the Party on which such tax or public charge is imposed.
- (b) Unless otherwise provided in the Listing Terms & Conditions, each Party shall bear its own costs and expenses arising out of or incurred in connection with the Listing Terms & Conditions and all transactions contemplated hereby.
- 9.3. Amendments
Equippo reserves the right to amend the Listing Terms & Conditions at any time with effect for any future Listing.
Neither Party shall be entitled to assign or transfer any rights resulting from a binding contract among the Parties or any of the rights or obligations thereunder to any thirdparty without the prior written consent of each other Party. Transfers or assignments in accordance with the Listing Terms & Conditions shall remain reserved.
If any part or provision of the Listing Terms & Conditions shall be held to be invalid or unenforceable, the other provisions of the Listing 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 the Listing Terms & Conditions.
The relationship between the Parties and/or the Listing 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).
Any dispute arising out of or in connection with the relationship between the Seller and Equippo and/or the Listing Terms & Conditions shall be exclusively referred to the courts competent for the city of Zug, Switzerland.
The Listing Terms & Conditions may be translated into other languages; the English version however shall be the superseding and sole legally binding language version.