Buyer & Seller Agreement
, hereinafter referred to as "Solvay" , Terms and Conditions of Sale for Used Equipment (these Terms)
1. SALE OF EQUIPMENT In these Terms:
1.1. Buyer means the party whose bid on the Website for the Equipment has been formally accepted by EquipNet as agent for Solvay.
1.2. Equipment means the equipment of Solvay described on the Website in respect of which the Buyers bid on the Website has been formally accepted by EquipNet as agent for Solvay.
1.3. EquipNet means EquipNet Inc., the agent of Solvay in respect of the sale of the Equipment to the Buyer.
1.4. EquipNets Terms means the terms and conditions of business of EquipNet set out on the Website to which the Buyer agreed to become subject when it made a bid for the Equipment on the Website.
1.5. Notification Address means the address on the Website notified to EquipNet as the Buyers address for the purpose of any notice to be given to the Buyer under the Sale Contract including without limitation any notice to be given pursuant to Clause 4.9.1.
1.6. Solvay means
1.7. Records means the title documents, certificates for the operation and use of, records, service documents and instruction manuals (if any) relating to the Equipment listed on the Website and included in the sale of the Equipment.
1.8. Removal Agent means any agent or agents used by the Buyer in any way in connection with the removal of the Equipment from the Removal Premises.
1.9. Removal Period means the period specific on the Website during which the Equipment has to be removed by the Buyer or any Removal Agent from the Removal Premises.
1.10. Removal Premises means the premises specified on the Website as being the location from where the Equipment is to be removed by the Buyer.
1.11. Sale Contract means the contract for the sale and purchase of the Equipment made between Solvay (with EquipNet acting as its agent) and the Buyer on the terms agreed on the Website which include EquipNets Terms these Terms and where applicable the Undertaking.
1.12. Undertaking means an undertaking under Section 6(8) of the Health and Safety at Work etc Act 1974 in the form required by Solvay.
1.13. Website means EquipNets website www.equipNet.com. 1.14. These Terms apply in relation to the sale by Solvay to the Buyer of the Equipment in addition to EquipNets Terms [and where applicable the Undertaking]. If there is any conflict between these Terms and EquipNets Terms, Solvay Terms shall prevail.
1.15. Subject to Clause 1.17 the Sale Contract is formed on the date formal acceptance of the Buyers bid by EquipNet becomes final in accordance with EquipNets Terms (Formation Date) and after proper screening under Export Compliance rules is completed and cleared.
1.16. Unless there is a variation under [Clause 1.18], the Sale Contract will be on these Terms, EquipNets Terms [and where applicable the Undertaking only], to the exclusion of any other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). The Buyers terms and conditions shall not apply to the Sale Contract.
1.17. Where Solvay decides that an Undertaking is required in respect of the Equipment the Sale Contract shall not become binding until the Buyer has delivered the Undertaking duly executed by the Buyer to EquipNet.
1.18. To be valid, Solvay is required to give the Buyer written confirmation of any change to these Terms or of any representations about the Equipment.
2. NO WARRANTIES
2.1. The Buyer acknowledges and agrees with that:
2.1.1. Solvay is entitled to and will continue to use the Equipment in the ordinary course of its business until the start of the Removal Period and that deterioration in the condition of the Equipment due to fair wear and tear in that period is not a ground for the Buyer refusing to accept the Equipment or for the price or any other sum paid in respect of the Sale Contract to be repaid to the Buyer;
2.1.2. All warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded upon and in relation to the sale of the Equipment;
2.1.3. the Equipment is used and is therefore sold as seen in its state and condition as at the time of removal of the Equipment by the Buyer or any Removal Agent (Removal Time), subject to all faults at the Removal Time and this is reflected in the price for the Equipment;
2.1.4. the Buyer is satisfied that it and its advisers have had full opportunity for investigation, inspection and testing of the Equipment prior to the Formation Date, is aware of the need to rely upon that investigation, inspection and testing by reason of the absence of warranties in the Sale Contract, is aware that Solvay will continue to use the Equipment in the ordinary course of its business until the start of the Removal Period and has satisfied itself as to:
22.214.171.124. The state, condition and location of the Equipment; and
126.96.36.199. The fitness for purpose of the Equipment for the use to which the Buyer intends to use it or supply it;
2.1.5. it has by bidding on the Website for the Equipment committed to buy the Equipment in whatever state and condition it is in on at the Removal Time and that it has no right once it has paid the Buyer the price for the Equipment to refuse to accept the Equipment;
2.1.6. The terms and conditions of the Sale Contract and in particular this Clause and Clause 7, are fair and reasonable having regard to the price being paid for the Equipment;
2.1.7. The Buyer is entering into this Sale Contract on the basis of its own judgement and professional advice and is placing no reliance on any warranty, representation or silence on the part of , EquipNet or their employees, advisers, valuers, agents, partners or representatives.
3. PRICE AND PAYMENT
3.1. The price for the Equipment and all other sums payable by the Buyer in respect of the Sale Contract shall be determined and be payable in accordance with EquipNets Terms. The price and all other sums payable to EquipNet as agent for Solvay under the Sale Contract exclude commission payable by the Buyer to EquipNet under EquipNets Terms.
3.2. If the Buyer does not pay EquipNet the price for the Equipment or any other sums payable under the Sale Contract on the due date then, without affecting any of other rights or remedies, Solvay may:
3.2.1. Cancel the Sale Contract or suspend delivery of the Equipment to the Buyer; and/or
3.2.2. charge the Buyer under the Late Payment of Commercial Debts (Interest) Act 1988 (as amended or re-enacted) on the amount that the Buyer has not paid.
4.1. The Buyer shall or shall procure that its Removal Agent shall collect the Equipment from Solvay at the Removal Premises during the Removal Period.
4.2. Solvay shall, or shall procure that, the Equipment is made available for removal by the Buyer or any Removal Agent at the Removal Premises on a Business Day in the Removal Period. The reference to Business Day in these Terms shall mean any day other than a Saturday, a Sunday or any public holiday in the country where the equipment is located.
4.3. Solvay shall be under no obligation to make the Equipment available for removal by the Buyer or any Removal Agent at the Removal Premises unless Solvay has received not less than 3 Business Days notice of when the Buyer or its Removal Agent is going to remove the Equipment from the Removal Premises and prior to removal there is produced to Solvay satisfactory evidence of the identity of the Buyer or any Removal Agent including any appropriate certificates required for such removal
4.4. Solvay will where the Equipment is in its normal state on wheels make the Equipment available for removal by the Buyer orany Removal Agent on a Business Day during the Removal Period at the loading bay or other suitable removal point at the Removal Premises. Responsibility for loading such Equipment onto the vehicle of the Buyer or any Removal Agent shall lie with the Buyer and it should ensure that it and/or any Removal Agent has the appropriate lifting gear to load the Equipment onto its vehicle.
4.5. Where the Equipment is not in its normal state on wheels but is not affixed to the Removal Premises, Solvay will provide the Buyer or any Removal Agent on a Business Day in the Removal Period with access to the place at the Removal Premises where the Equipment is normally located when in use by Solvay. Responsibility for loading such Equipment onto the vehicle of the Buyer or any Removal Agent will rest with the Buyer and it should ensure that it and/orany Removal Agent has the appropriate lifting gear to load the Equipment onto its vehicle.
4.6. Where the Equipment is affixed to the Removal Premises Solvay will provide the Buyer or any Removal Agent on a Business Day in the Removal Period with access to the place at the Removal Premises where the Equipment is affixed. Responsibility for detaching the Equipment from the Removal Point will rest with the Buyer and it undertakes to Solvay to ensure that the Buyer and/orany Removal Agent has the necessary skill, certificates, expertise and machinery to detach the Equipment from the Removal Premises without causing damage to the Removal Premises.
4.7. The Buyer and any removal agent shall obey the site rules for the Removal Premises and all instructions from any Solvay site supervisor or other appropriate authorised person. The Buyer and any Removal Agent shall be responsible for ensuring it obtains a copy of such rules before entering the Removal Premises.
4.8. Solvay shall not be liable for any delay in the Equipment available for removal by the Buyer or its Agent or any loss resulting from that.
4.9. If the Buyer or any Removal Agent fails to remove the Equipment from the Removal Premises before the expiry of the Removal Period the following provisions shall apply:
4.9.1. Solvay will give notice in writing to the Buyer at the Notification Address that the Removal Period has expired and that the Equipment is ready for removal;
4.9.2. The Equipment shall be deemed to have been removed at 9:00am on the third Business Day following the day Solvay gave such notice; and
4.9.3. subject to Clause 4.10 Solvay will store the Equipment until actual removal takes place, and charge the Buyer for all related costs and expenses (including storage and insurance) (Related Costs).
4.10. If seven Business Days after Solvay has given notice under Clause 4.9.1 the Buyer or any Removal Agent has not removed the Equipment, Solvay may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable Related Costs and selling costs, account to the Buyer for any amount received less any applicable tax.
4.11. The Buyer will be responsible for the condition of the vehicle in which it or any Removal Agent removes the Equipment (whether owned or hired) and shall not be liable in any way for loss or contamination of or damage to the Equipment resulting from the condition of that vehicle. The Buyer shall indemnify Solvay for any damage or injury to Solvay property, plant machinery, employees or licensees caused by the Buyer, any Removal Agent, their employees, agents or that vehicle.
4.12. The Buyer shall be responsible for obtaining all necessary licences and consents required for the purchase and removal of the Equipment and for complying with all applicable laws including without limitation those relating to health and safety when removing the Equipment from the Removal Premises. On demand by Solvay , the Buyer and/or the Removal Agent shall make available a copy of all such licences and consents prior to removal of the Equipment.
5. TITLE AND RISK
5.1. Ownership of the Equipment shall remain with Solvay until EquipNet as agent for Solvay has received from the Buyer full payment in cleared funds of the price and all other sums payable by the Buyer under the Sale Contract and until the Equipment has been entirely removed from the Removal Premises by the Buyer.
5.2. Subject to Clause 5.3, risk in the Equipment shall remain with Solvay until the Equipment has been delivered to the Buyer or any Removal Agent. Delivery for the purpose of this Clause 5.2 means when the Buyer or any Removal Agent begins loading the Equipment onto its vehicle or, where the Equipment is attached to the Removal Premises, begins detaching it from the Removal Premises.
5.3. If the Buyer fails to remove the Equipment by the end of the Removal Period then risk in the Equipment shall pass to the Buyer unless Solvay has cancelled the sale for not removing the Equipment within the Removal Period.
6.1. Each party undertakes to the other to keep confidential all information (whether written or oral) concerning the business and affairs of the other which it has obtained or received as a result of discussions leading up to the entry into the Sale Contract, or which it has obtained during the performance of the Sale Contract, except any information that is:
6.1.1. Already in its possession other than as a result of a breach of this Clause 6;
6.1.2. subject to an obligation to disclose under law, or that is required to be disclosed by any competent regulatory authority, by notice or otherwise;
6.1.3. in, or which subsequently enters, the public domain other than as a result of a breach of this Clause 6.
6.2. Each party shall use the confidential information of the other solely for the purpose of performing its obligations under the Sale Contract and shall only disclose it to those of its employees, agents and subcontractors on a need-to-know basis.
6.3. The obligations under this Clause 6 shall last for a period of 3 (three) years from the date of disclosure.
7. LIMITATION OF LIABILITY
7.1. Solvay does not accept any liability to the Buyer or to others in connection with the Sale Contract for loss of profit, loss of business, depletion of goodwill, loss of opportunity, loss of data, loss of use, loss of contracts, loss of expected savings or interruption to the Buyers business (Losses). If however, Solvay is found to be liable to the Buyer or to others for any of the Losses or for breach of contract, misrepresentation, misstatement or other tortious acts or omissions, including negligence, arising under or in connection with the Sale Contract, Solvay maximum liability shall be the price exclusive of taxes and other sums paid by the Buyer under the Sale Contract. [If it is found that to limit Solvay liability to this amount is unfair then Solvay shall only be liable to the Buyer and others for the matters described in this Clause 7.1 for up to the amount of insurance cover that Solvay has from time to time.]
7.2. Nothing in the Sale Contract including EquipNets Terms excludes Solvay liability to the Buyer for fraudulent misrepresentation or for death or personal injury resulting from Solvay negligence.
7.3. Except in respect of any loss or damage caused by Solvay or EquipNets negligence, the Buyer undertakes to indemnify Solvay against any loss, costs, claims, damages, expenses, fees or other sums Solvay may incur relating to the Buyers breach of the Sale Contract.
8.1. Unless any special terms are agreed in writing between Solvay and the Buyer, where the Equipment is supplied for export from [indicate country where the Equipment is located] the Buyer shall be responsible (at its cost) for complying with any legislation or regulations governing the importation of the Equipment into the country of destination (including obtaining relevant licences, permits and permissions) and for the payment of any duties.
9.1. The Sale Contract (including for the avoidance of doubt the Waiver if applicable) constitutes the entire agreement between the parties in connection with its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding or undertaking (in each case whether written or oral) given or made by or on behalf of the parties relating to its subject matter.
9.2. The invalidity, illegality or unenforceability of any provision of the Sale Contract shall not affect the other provisions and the Sale Contract shall be given effect as if the invalid, illegal or unenforceable provision had been deleted and replaced with a provision with a similar economic effect to that intended by the parties if this can be achieved by another Clause.
9.3. Neither the United Nations Convention on the Sale of Goods (CISG) nor the international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply to the Sale Contract.
9.4. The Buyer is not entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Sale Contract.
[9.5. The parties do not intend that any term of the Sale Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person other than the parties.]
9.6. Any notice required or permitted to be given by to the Buyer under the Sale Contract shall be in writing addressed to the Buyer at its Notification Address and may be delivered personally or by first class recorded delivery post or first class airmail letter. A notice shall
be deemed to have been served, if personally delivered, at the time of delivery or (if sent by first class recorded delivery post) forty-eight hours after posting or (if sent by first class airmail letter) ninety-six hours after posting. The Buyer agrees that may serve notice under the Sale Contract by any method, post, in person, email, fax, text messaging, cable, telephone, videophone or otherwise. There is no requirement that notice must be served by in writing.
9.7. All payments to be made by the Buyer to under the Sale Contract will be made in full and without any set-off or any deduction or withholding including an account of any counterclaim.
9.8. The Sale Contract shall be governed by and construed in accordance with French Law and the parties submit to the non-exclusive jurisdiction of the France Courts.
Electronic Signature -