4, place Marc Leclerc
49400 SAUMUR (France)
SIRET No. 451 574 900
These general terms and conditions of sale (hereinafter 'GTS') apply to any intermediation contract (hereinafter 'Contract') entered into by and between EXAPRO and the seller of a machine whose advertisement was published on the EXAPRO website (hereinafter 'the Seller') within the framework of the search by the EXAPRO intermediary, in the name and on behalf of the Seller, a potential buyer and the Seller's contact with the buyer.
Article 1. Definitions
Announcement: An announcement or advertisement published by a Seller on the Site regarding the offer for sale of a machine
Internet user: Physical person consulting the Site;
Machine: Any vehicle or tool specifically with an industrial or agricultural use;
Site: websites operated by EXAPRO for the publication of offers to sell machines.
Seller: Internet user with a user account putting a machine up for sale;
Reseller: A Reseller is a Seller for whom the sale and/or manufacture and sale of machinery constitutes the substance of his business (i.e. that he sells machinery consistently, independently and for profit, and thus it is not a casual or one-off sale of machinery).
Article 2. Purpose
The purpose of these GTS is to determine the respective obligations of EXAPRO and the Seller with regard to EXAPRO's intermediation services and any other services offered by EXAPRO on its Site.
Article 3. EXAPRO Services
EXAPRO, in its capacity as an independent intermediary, offers a contact service for buyers and sellers, and enjoys the exclusive quality of a broker but not a commissionaire and/or agent.
To this end, EXAPRO may promote third-party auctions with regard to the sale of machines. To this end, it will be able to set up mailings directly, or through a third party, to inform sellers and potential buyers referenced in its database of the holding of an upcoming auction. Therefore, anyone opening a user account on the EXAPRO site agrees to be kept informed of the holding of such auctions.
EXAPRO also allows advertisements to be published on its site. Once the advertisement is published on the Site, EXAPRO will explore potential buyers for the machine that will already be referenced in its database of potential buyers or will approach different companies that may be interested in the Seller's machine.
Each Seller enjoys total freedom of choice for the sale of his or her machines, and by free appreciation, the Seller chooses the offer that suits him or her best in case of multiple buyers.
In that regard, the Seller may favor one of the following criteria to guide his or her choice, namely:
By the very nature of the service, EXAPRO is bound by an obligation of means. EXAPRO cannot guarantee the comprehensiveness and completeness of the information on the Site, especially in the advertisements, and it is up to the Internet user to verify the information with the Seller, once they have made contact, before the conclusion of any sales contract. In addition, EXAPRO does not take part in the conclusion of potential sales contracts, in the delivery of the machines or in the payment of the price agreed upon between the Seller and the Buyer.
Therefore, the Internet user acknowledges that EXAPRO does not guarantee the buyer the conclusion of sales contracts relating to the machines, these being proposed by the Sellers under their sole responsibility.
EXAPRO will promote the advertisement in order to identify potential buyers and may translate the advertisement into different languages in order to increase the visibility of the advertisement and its referencing.
However, the content of the advertisement and its translation shall remain the seller's full responsibility.
EXAPRO reserves the right and opportunity to develop and offer new services in the future and, if necessary, to update its GTS.
In exceptional cases, EXAPRO may carry out a sales operation. In that particular
case, the transaction is submitted to the particular and specific terms and conditions
that are different from these GTS.
Article 4. Acceptance of the GTS
The GTSs were brought to the Seller's attention at the time of the opening of his or her account on the EXAPRO Site and these and any updates are permanently accessible. The GTCs were also transmitted to the Seller when he or she was informed by EXAPRO of the existence of a potential buyer for the machine.
The Seller's opening of a user account on the Site indicates consent and acceptance of the GTCs.
Thus, by publishing the advertisement, the Seller agrees to enter into an intermediation contract with EXAPRO entitling EXAPRO to collect a commission on the sale of the machine under the conditions specified in these GTCs.
Article 5. Commission
The price of the Machine as shown in the advertisement published on the Site is set unilaterally by the Seller.
This price is increased by any other accessory or equipment sold by the Seller to the buyer presented by EXAPRO, whether or not this equipment and accessories are necessary for the use of the machine.
On the other hand, this price excludes:
5.2 Commission amount
The amount of commission to be paid by the Seller to EXAPRO is calculated on the price as calculated in Article 5.1 of the GTSs.
The commission will be equal to 15% with a minimum invoiced of 1000 EUR/USD/GBP
For the Reseller, the commission will be equal to 10% with a minimum invoiced of 1000 EUR/USD/GBP
5.3 Right to commission
Once EXAPRO has found a potential buyer for the Machine, it will notify the Seller and serve the Seller with an estimate of the amount of commission owed to EXAPRO if it agrees to contract with the buyer, as well as a confirmatory intermediation agreement. EXAPRO and the Seller will be free to negotiate and to agree upon a different commission than the one in the commission grid mentioned in 5.2 of the GTSs, in which case EXAPRO and the Seller will mention it in the intermediation agreement submitted to the Seller BY EXAPRO. The confirmatory intermediation agreement shall be an integral part of the contractual relationship between EXAPRO and the Seller and shall be added to the GTSs.
The Seller shall inform EXAPRO of any other accessories and equipment sold to the buyer in addition to the machine so that EXAPRO can calculate and bill its commission to the Seller.
The right to commission for EXAPRO arises only upon condition that the sale of the machine by the Seller takes place with a buyer introduced to the Seller by EXAPRO. In the event the sale of the machine takes place with a buyer not introduced by EXAPRO to the Seller, no commission shall be due.
If the machine were to be unavailable or was destroyed before a sales contract between the buyer and the Seller is concluded, the Seller shall immediately notify EXAPRO and the buyer. The Seller may eventually offer the buyer a different machine rather than the one originally presented in the advertisement. In such a case, EXAPRO's commission shall not be affected and the commission shall be calculated on the price as expected in these GTS on the basis of the replacement machine proposed by the Seller to the buyer.
Article 6. Payment terms
Upon acceptance of the Contract, the Seller agrees to pay for the benefit of EXAPRO, in accordance with the terms stipulated in the Contract, the commission stipulated in Article 3 of the GTSs once the sale has been completed. The commission is payable in Euros to EXAPRO's account by wire transfer or check.
The commission due to EXAPRO shall be paid by the Seller no later than 15 days after the Seller receives the buyer's payment.
Article 7. Negotiations and sales contract
EXAPRO shall not participate in any negotiations that may take place between the Seller and the buyer as a result of its intermediation service. As a result, EXAPRO shall also not be a party to the sales contract concluded between the Seller and the buyer.
EXAPRO shall not therefore be held responsible for a failure to perform by any party to any obligation under the said contract.
The parties to the sales contract will freely negotiate the terms and times of delivery of the machine.
When the machine is delivered to the buyer by the Seller or made available to the buyer by the Seller in accordance with the terms of delivery negotiated between the parties to the sales contract, the Seller shall immediately inform EXAPRO thereof.
Article 8. Machines and guarantees
The machines offered for sale by the Seller are either new or used machines.
The machines may have a different trade name depending on the country in which they are originally marketed. EXAPRO will therefore be able to introduce the machine to the potential buyer under the current trade name in the buyer's territory and not only under the trade name provided by the Seller in the advertisement.
The Seller guarantees that the machine presented in the advertisement conforms to its description and responds to existing compliance defects at the time of delivery. In addition, the Seller also responds as to any guarantees for hidden defects.
The Seller shall hold EXAPRO harmless from any claim or complaint made by the purchaser against EXAPRO in connection with the machine for non-compliance or a hidden defect.
Article 9. Case of force majeure
Neither Party shall be held liable to the other nor shall be considered to have breached the contract if it is prevented or delayed in the performance of its obligations as a result of force majeure.
The party prevented by the case of force majeure shall inform the other party by registered letter with acknowledgement of receipt and shall describe precisely the case of force majeure.
In the event of force majeure, each party's obligations shall be suspended as long as the force majeure case continues, the other party not being able to claim any compensation.
Article 10. Termination
Subject to the stipulations of the paragraphs below this article, in the event of a serious and ongoing violation of the essential obligations of one of the Parties by virtue of this Contract (hereafter referred to as the "Defaulting Party"), the other Party may terminate this Contract under the following terms:
(i) In the event of a serious and ongoing breach that cannot be remedied and after prior notification sent to the Defaulting Party by registered letter with acknowledgement of receipt, the termination of this Contract shall take effect immediately upon the expiration of a ninety (90) day period subsequent to the receipt by the Defaulting Party of the written notice sent by the other Party.
(ii) In the event of a breach which the Defaulting Party can remedy, this Contract may be terminated following notification by registered letter with acknowledgement of receipt to remedy said breach within one hundred twenty (120) days delivered by the other Party to the Defaulting Party, if the Defaulting Party does not effectively remedy the breach within that time f
The termination of this Agreement under section (i) or (ii) above shall be without prejudice to all legal rights and actions available to the other Party to obtain compensation for losses or damages sustained.
The termination shall be without prejudice to any other rights, claims and remedies of the Parties provided for by applicable law.
If an insolvency proceeding is initiated against one of the Parties under Article L.622-13 of the French Code of Commerce, the other Party shall be entitled to immediately terminate the Contract by registered letter with acknowledgement of receipt, provided a prior written request sent to the judicial agent asking for a statement on continuation of the Contract, by registered letter with acknowledgement of receipt, remains unanswered for one month.
Article 11. Confidentiality
Both during the term of the Contract and after its termination or expiration, the Parties undertake:
In any event, each of the Parties is solely responsible for the compliance of these obligations by its employees and/or subcontractors.
However, this section does not prohibit Parties from making a disclosure required by applicable law provided that:
This confidentiality clause does not prevent the Parties from informing their respective subsidiaries of the existence and content of the Contract.
Article 12. Various
If one or more stipulations of this Agreement were or became invalid or unenforceable, the validity and applicability of the remaining provisions of this Contract shall not be affected. In this event, the Parties shall negotiate in good faith to replace the null or invalid stipulation with another valid and effective stipulation that will state, as far as possible, the original intent of the Parties
This Contract sets forth all the consents and agreements between the Parties as to the subjects covered thereby and substitutes and replaces any prior agreement or statement, written or oral, of any nature in this regard.
No modifications or amendments to this Contract shall be valid unless made in writing signed by the Parties specifically referring to this agreement and indicating the intention of the Parties to modify or amend it..
Any waiver of a term or condition for this Contract shall be made in writing signed by the Party against whom one wishes to oppose this waiver with reference specifically to the term or condition to be waived, and no waiver shall be deemed a violation of that term or condition or of any other term or condition of this Contract.
Article 13. Contract Language
The general terms and conditions of sale are written in French. In the event of translations of the general terms and conditions of sale into another language and contradictions between the two versions, the French version shall prevail.
EXAPRO reserves the right to modify its general terms and conditions of sale at any time. In such case, the new general terms and conditions of sale shall automatically replace those previous ones and shall be immediately applicable from the time they go online without further formality.
If one or more of the stipulations of these general terms and conditions were nullified for any reason whatsoever, the other provisions shall retain their full force and scope.
Article 14. Applicable law and dispute resolution
The law applicable to these general terms and conditions of use is French law.
In the event of a dispute arising from or in relation to this Contract, and in particular in the event of a dispute over its validity, interpretation, performance or non-performance, whether contractual or tortious in nature (hereinafter the "Dispute"), the Parties agree to meet in a place that is jointly determined, and to make their best efforts to resolve the Dispute amicably.
The Party which considers itself entitled to assert a right, shall send the other Party a registered letter with acknowledgement of receipt in which it will set out the reasons for the Dispute and provide the other Party with any documents it deems useful. The Parties shall endeavor to reach an agreement within thirty (30) days from receipt of the registered letter with acknowledgement of receipt.
In the absence of agreement under the conditions herein mentioned, the Parties agree to submit the Dispute to the mediation procedure provided for by the ICC (International Chamber of Commerce) Mediation Regulations in force on the date of signing of the Contract, regulations that the parties acknowledge they have become aware of and to which they declare they are adhering, in order to seek an amicable solution. The Parties agree that mediation is subject to the principle of confidentiality. Neither the mediator, nor the Parties, nor the councils, will be able to disclose to third parties, invoke or produce in a judicial or arbitral proceeding, in France or abroad, without the formal consent of the parties to the Dispute, the findings of the mediator and statements obtained during mediation. Confidentiality does not extend to documents pre-existing the mediation. The language of the mediation procedure shall be French and mediation meetings shall be held in Paris (France).
If the Dispute has not been resolved within the context of mediation within 45 days from the date of filing the request for mediation or in any other time frame which the Parties may agree to in writing, exclusive jurisdiction is given to the Paris Courts to undertake the Dispute, including interim or preliminary proceedings. No action arising from this Contract may be initiated more than one year after the Plaintiff party has known or should have known that it should initiate an action, it being understood and agreed between the Parties that the introduction of a mediation procedure shall interrupt the aforementioned one-year deadline.
In the event of a warranty appeal made by EXAPRO against the Seller by forced intervention in a proceeding against EXAPRO, Article 14 -2, 3 and 4 shall not apply.
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