These terms and conditions constitute a sales agreement (?Agreement?) in connection with the transaction between Buyer and Seller using the platfrom EquipNet Inc. and is entered into between:
?Seller?: the entity who lists equipment at EquipNet Inc. for sale enabling buyer to submit offers to purchase. In this specific Agreement the seller is Vestas Wind Systems A/S, Hedeager 42, DK-8200 Aarhus N, company reg. no. 10403782.
and
?Buyer?: the entity who offers to purchase listed Equipment at EquipNet Inc. listed by Seller. In this specific agreement, the buyer is
Buyer and Seller may also be referred to individually as a ?Party? or collectively as the ?Parties?.
RECITALS
A. EquipNet Inc. provides a forum for matching members seeking to sell Equipment and members seeking to buy Equipment.
NOW AND THEREFORE, in consideration of the foregoing and other mutual understandings, the Buyer accepts the following:
1 General terms and conditions
2 Pricing and Payment
3 Supply conditions
4 Applicable Law and Arbitration
5 Miscellaneous
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the authorized representatives of Buyer, which agrees the terms and condition set forth above in this Agreement has been read and accepted. All terms and conditions of this Agreement has been accepted by Buyer by submitting the offer to Seller at EquipNet Inc., and by accepting Equipnet Inc.?s General Terms of Service and Equipnet Inc. Buyer Terms of Service Buyer.
(This Agreement need no signature to be valid and applicable between the Parties.)
B. Seller has listed Equipment for sale at the platform and service provider EquipNet Inc., with the intention of receiving offers to purchase from buyers.
C. By entering this Agreement, buyer has offered to buy Equipment listed by Seller, which has been accepted by Seller.
D. This Agreement sets out all the applicable terms and conditions between Seller and Buyer in regards to the transaction completed using EquipNet Inc.?s services.
1.1 EquipNet Inc.?s General Terms of Service and Equipnet Inc. Buyer Terms of Service remain in full force and effect, notwithstanding, this Agreement shall prevail in any matter regarding the in the relation between Buyer and Seller concerning purchase completed using the platform and service provider EquipNet Inc.
1.2 This Agreement only concerns and regulate obligations of Seller and Buyer regarding the Equipment bought by Buyer at EquipNet Inc. in this specific case.
1.3 This Agreement comes into force by Sellers acceptance of Buyers offer at Equipnet Inc. (?Effective Date?).
1.4 All information exchanged between the Parties in relation to this Agreement will be considered confidential information.
2.1 The Purchase Price for the Equipment is the price which Buyer has offered to purchase the Equipment for and Seller has accepted using the platform EquipNet Inc.
2.2 The aggregated purchase price of the Equipment is 3,900,000.00 EUR (three-million-nine-hundred-thousand EURO) (the ?Purchase Price?).
2.3 Seller will issue an invoice to Buyer within reasonable time after this Agreement has been completed and the procedure set out by EquipNet Inc. has been followed. Seller and EquipNet Inc. has entered into a agreement where payment must be paid to Seller directly.
2.4 The Purchace Price must be paid no later than five (5) calendar days after Seller has issued the invoice for the Equipment.
2.5 In the event Buyer does not pay an invoice which is due for payment in accordance with the above, Buyer must pay to Seller default interests at a rate of EURIBOR (3 months) + eight percent (8%) pro anno calculated on the basis of the Purchace Price and from Sellers written notification to Buyer.
3.1 Terms of delivery, passing of title and risk.
3.1.1 Seller shall deliver the Equipment ?where is?, meaning the Vestas location / facility where the Equipment is located. Seller shall make the Equipment available to Buyer immediately upon payment of the Purchase Price (?Delivery Date?).
3.1.2 Transfer of title to the Equipment occurs when the Equipment is picked up by Buyer or a third party on behalf of Buyer and the Equipment leaves the Seller?s location / facility. The risk of any loss or damage to the Equipment shall transfer on the Delivery Date or when Vestas has made the Equipment available for Buyer to pick up and Buyer assumes the full risk for any loss or damage to the Equipment occurring as a result of removal, loading or freight, by theft, or by delayed delivery.
3.1.3 All Equipment purchased must be picked up by Buyer as soon as possible from Seller?s receipt of payment as per this Agreement: the equipment located in Hall 1 will be cleared by 15th January 2024, the equipment located in Hall 2 will be cleared by 16th February 2024, the equipment located in Paint shop/outside will be cleared by 15th March 2024. If Buyer has not made arrangements to pick up the item within this timeframe, Buyer will be subject to pay liquidated damages to Seller of one (1%) of the Purchase Price for each commenced week of delayed pickup after the agreed timelines. The liquidated damages become due at Seller?s written demand, and payment of liquidated damages does not exclude Buyer?s liability to Seller for any costs, losses and damages incurred by Seller due to the delayed pickup.
To meet the agreed deadlines, Buyer must commence the removal work no later than 6th November 2023. Commencing the removal process after this date will result in a one-to-one delay, which will be allowed as a grace period.
3.2 Risk and liability
3.2.1 The Equipment is sold by Seller to Buyer ?as is? and (i) Seller does not undertake any explicit, implied or statutory risk, responsibility, warranty or liability under contract or law irrespectively of any negligence by Seller for the Equipment, howsoever arising; and (ii) Seller will have no liability towards Buyer for any costs, losses, damages or expenses (whether direct, indirect or consequential) howsoever incurred by Seller in relation to the Equipment.
3.2.2 If (i) any third party makes any claim against Buyer related to the Equipment, regardless of what legal basis such claim is based on, Seller will not be obliged to indemnify Buyer from or against any such claim; and (ii) if any third party makes any claim against Seller related to the Equipment, regardless of what legal basis such claim is based on, Buyer shall indemnify Seller from and against any such claim.
3.3 Warranty
3.3.1 Seller disclaims all warranties - express or implied - arising out of or related to this Agreement, including without limitation, any warranty of merchantability or fitness for a particular purpose, each of which is hereby excluded by agreement of the Parties. Seller makes no warranty that the Equipment will meet Buyer?s requirements. All Equipment is sold ?as is?, ?where is? and ?with all faults? without any liability of Seller.
3.4 Limitation of liability
3.4.1 In no event will Seller be liable for any claims, losses, damages and expenses, whether direct, indirect, incidental, consequential or punitive, of every kind and nature, known and unknown, disclosed and undisclosed, arising out of or in any way connected to the transaction between seller and buyer and relating to this Agreement.
3.4.2 For avoidance of doubt, in the case Seller should be liable to Buyer, Seller?s total cumulative and aggregated
liability in connection with this Agreement and the Equipment, whether in contract, tort, negligence or otherwise, shall be limited to 10,000.00 EUR (ten-thousand EURO).
4.1 This Agreement shall be governed by and construed exclusively in accordance with Danish law.
4.2 Any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, shall be finally settled by arbitration arranged by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The place of arbitration shall be Copenhagen, Denmark. The language of the arbitration shall be English, unless otherwise agreed between the Parties. All aspects of the arbitration shall be treated as Confidential Information subject to the terms of this Agreement.
4.3 This arbitration clause shall not prevent a Party from seeking injunctive relief or any other interim relief from a court of competent jurisdiction.
5.1 If any provision of these terms is held, illegal, invalid or unenforceable in whole or in part in any jurisdiction this shall not affect the validity or enforceability in that jurisdiction of any other provision of these terms or the validity or enforceability of that provision or any other provision in any other jurisdiction. The parties shall in good faith negotiate replacement provisions which in a legal, valid and enforceable way to the nearest extent reflect the original intent of the parties.
5.2 No change, modification, alteration or addition to any provision of these terms shall be binding unless in writing and signed by an authorized representative of each party.
5.3 Any notice given under the Agreement must be in writing addressed to an authorized representative of the other party and shall be deemed given upon receipt of the other party.