1.1. PURPOSE OF THE AGREEMENT. The Partner is the owner of certain machinery that he wishes sell to the various buyers. EXAPRO operates an online marketplace for used machinery, which connects sellers' offers with buyers' demand (“Platform”). The Platform is available from https://www.exapro.com and its language variations.
1.2. OTHER EXAPRO SERVICES. This Service is an extension of the standard service operated by EXAPRO, accessible from the following website https://www.exapro.com and governed by specific terms and conditions, available from https://www.exapro.com/help/conditions-sale/. This Service is governed solely by this Agreement and if the Partner uses other EXAPRO services, the terms and conditions of those other services do not apply to this Service unless otherwise expressly stated.
2.1. SCOPE OF SERVICES. The only scope of the service under this Agreement and the main purpose of the Platform is to provide the Partner with possibility list their machines on the Platform and to offer them directly to prospective buyers (“Service”). Together with Services, the Partner can be provided with additional services (such as translations, provision of additional information about the machines, sales tools, visibility boost etc.), as described on the Platform (“Extra services”).
2.2. LISTING. The Partner's machines, that it decides to offer, through the Service must always be properly uploaded to the Platform - this means uploading the machine information to the Platform so that the respective machine can be offered through the Platform (“Listing”). The method of listing to the Platform always depends on the agreement between the Partner and EXAPRO. Listing can be done either manually by either Partner or EXAPRO, or automatically by EXAPRO (e.g. by scraping the Partner's website or by providing API access to the Partner's database).
2.3. CONNECTION WITH THE BUYER. If a potential buyer expresses interest in purchasing a Listed machine via the Platform, EXAPRO undertakes to inform the Partner about this connection via email and/or notifications to the Partner's information system (if the Partner provides the relevant API).
2.4. LIABILITY FOR THE LISTING. Whichever way the Listing is conducted, the Partner hereby agree that all information submitted through the Listing will be true, accurate, current, and complete, and that the Partner will maintain the accuracy of such information and promptly update such information as necessary. If the Partner provides any information that is untrue, inaccurate, not current, or incomplete, EXAPRO has the right to suspend the provision of the Service, until the information is corrected.
2.5. CANCELATION OF THE LISTING. EXAPRO may decide to cancel the Listing of a Partner's machine - in particular, if the machine does not fit the portfolio of machines that are usually offered through the Platform by other users or if EXAPRO has any doubt whether and how the Partner will be able to meet its obligations to the potential buyer of the machine.
2.6. NO AGENCY. For the avoidance of doubt, the parties state that EXAPRO does not operate as a business agent. EXAPRO is not liable for whether and how the Partner will conduct negotiations on the final sale with a potential buyer who responds to its Listed machine.
3.1. USAGE PLANS. In order to use the Service, the Partner have to choose one of the usage plans, described on the Platform (“Usage Plan”) and authorize EXAPRO to charge it with a subscription fee plus applicable taxes („Subscription Fee“ or “Subscription Fees”) on a recurring basis and in accordance with the respective Usage Plan. The Subscription fee is always paid for a specific period of time (“Subscription Period”). Different usage limitations, conditions, and restrictions may apply depending on the Usage Plan the Partner select.
3.2. SUBSCRIPTION FEE AND ITS CHANGES. The Subscription Fee and Subscription Period for each Usage Plan is listed in the Platform. EXAPRO reserves the right to change the Subscription Fee of any Usage Plans, its features and/or items provided within the Platform at any time and for any or no reason prior to the transaction. The change in Subscription Fees has no effect on Usage Plans already paid for.
3.3. NUMBER OF LISTED MACHINES UNDER USAGE PLAN. Within the Subscription Period, the Partner is entitled to certain number of Listings. Information on the amount of Listings available under respective Usage Plan is always available within the Platform. Unused Listing within the Subscription Period can’t be neither carried over to the next Subscription Period nor refunded.
3.4. RENEWAL OF THE USAGE PLAN. Usage Plans are billed periodically until the Partner cancel the subscription. EXAPRO will provide the Partner with notice of the renewal. If the Partner cancel the Usage Plan rather than renew, the cancellation will be effective the day after the end of the current Usage Plan term.
3.5. CANCELATION. The Partner may cancel recurring Usage Plan by completing the cancellation process within the Platform. EXAPRO will not provide refunds for any partial subscription periods for Usage Plans unless stated otherwise within this Agreement. Following the termination or cancellation of the subscription, however, the Partner will continue to have access to the Platform through the end of the current Usage Plan period, at which point the Partner’s subscription will terminate.
3.6. USAGE PLAN UPGRADE. In case that during the Subscription Period the Partner decides to upgrade to Usage Plan with a longer Subscription Period or more listings per Subscription Period, then at the moment of the change of the Usage Plan the original subscription is cancelled and a new one starts. The Subscription Fee for the original Subscription Period will be invoiced at the time the original Subscription Period was due to end.
3.7. PAYMENTS OF THE SUBSCRIPTION FEES. The Subscription Fees will be charged to the Partner periodically in accordance with chosen Subscription Period. Subscription Fee will be payable immediately upon commencement of the Usage Plan, and the Partner will be charged with Subscription Fees after the end of the relevant Subscription Period. The applicable taxes might depend upon the Partner’s location.
3.8. PAYMENT CONDITIONS. EXAPRO will issue an invoice to the Partner for the Services for each Subscription Period. All Subscription fees:
a) are exclusive of VAT at a rate applicable from time to time, and the Partner shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice;
b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law);
c) shall be paid within fifteen (15) days after the receipt of the applicable invoice.
3.9. ELECTRONIC INVOICING. Unless the Partner requests a different procedure, the invoices will be delivered only in an electronic form to the email address specified by the parties.
3.10. NO REFUNDS. All Subscription Fees are non-refundable, except in accordance with this Agreement and/or as required under applicable law.
3.11. MONEY-BACK GUARANTEE. If the Partner is not satisfied with the Service, the Partner shall be entitled to terminate the Service within 30 days of entering into this Agreement and selecting the relevant Usage Plan. EXAPRO shall refund all Subscription Fees paid during that period. EXAPRO may decide not to refund Subscription fees if it finds that the Partner has already exercised this right in a previous relationship or if the Partner has abused this right contrary to its purpose.
3.12. THIRD PARTY CONTENT. The Platform may contain (or the Partner may be sent from the Platform) advertisements and links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by EXAPRO, and EXAPRO is not responsible for any Third-Party Websites accessed through the Platform or any Third-Party Content posted on, available through, or installed from the Platform. If the Partner decides to leave the Platform and access the Third-Party Websites or to use or install any Third-Party Content, the Partner does so at its own risk, and should be aware this Agreement no longer govern such access.
4.1. USER ACCOUNT. To use the Platform, the Partner will be provided with a user account (“User Account”). When registering to use the Platform, the Partner must provide complete and accurate information about itself and agree to update such information as it changes.
4.2. SECURITY OF THE ACCOUNT. It is the Partner’s responsibility to keep its User Account and any password provided to or created confidential and secure. In the event, that the Partner’s User Account is used without its consent or that the Partner discovers any other breach of security, the Partner agree to promptly notify EXAPRO.
5.1. INTELLECTUAL PROPERTY RIGHTS. Patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered (“Intellectual Property Rights”), in any part of the Platform and/or the Services are, and shall remain, the property of EXAPRO, and EXAPRO reserves the right to grant a license to use such intellectual property to any other party or parties. Any subject matter to be provided by EXAPRO to the Partner (particularly any part of the Platform) that is eligible for Intellectual Property Rights protection is proprietary to EXAPRO (or the appropriate third-party rights owner(s)) and the Partner acquires no rights in or to such content other than those expressly granted by this Agreement.
5.2. SOFTWARE AS A SERVICE. The Platform, software and services provided therein are operated and provided in the form of "SaaS" (Software as a Service), i.e. the Partner do not own or purchase the Platform itself.
5.3. RIGHTS TO THE DATABASE. Any databases available within the Platform are further protected by a special right of the database acquirer, that is EXAPRO.
6.1. PROHIBITED BEHAVIOUR. The Partner may not access or use the Platform for any purpose other than that for which EXAPRO makes the Platform available. The Partner agree not to and shall not, and will not permit others to:
a) use the Platform or any component of the Platform, in whole or in part, except as expressly provided in this Agreement;
b) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Platform;
c) circumvent, bypass, disable, or otherwise interfere with security-related features of the Platform;
d) rent, lease, sublicense, loan, resell or distribute the Platform and/or the access to the Platform, or any part thereof.
6.2. MONITORING OF ILLEGAL ACTIVITIES. EXAPRO reserves the right, but not the obligation, to monitor the Platform for violations of this Agreement, and to take appropriate legal action against anyone who, in its sole and absolute discretion, violates the law or this Agreement, including without limitation, reporting such a user to law enforcement authorities.
6.3. MODIFICATIONS TO THE PLATFORM. EXAPRO reserves the right, with prior notice, to change, modify, or remove the contents of the Platform, suspend, or discontinue, temporarily or permanently, the Platform or any part thereof or any service to which it connects at any time or for any or no reason, including to enhance the Platform functionality or stability or to address potential safety or security concerns, at its sole and absolute discretion. EXAPRO will not be liable to the Partner or any third party for any modification, suspension, or discontinuance of the Platform.
6.4. RIGHTS TO SUBMISSIONS. The Partner acknowledges and agrees that any questions, comments, suggestions, ideas, feedback, or other information regarding the Platform and/or the Services ("Submissions") provided by the Partner to EXAPRO are non-confidential and shall become EXAPRO’s sole property. EXAPRO shall own exclusive rights, including an unlimited license to all intellectual property, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to the Partner. The Partner hereby grants an exclusive and unlimited license to any such Submissions and waives the right to any kind of remuneration, and the Partner hereby warrants that any such Submissions are original with the Partner or that the Partner has the right to submit such Submissions. The Partner agrees there shall be no recourse against EXAPRO for any alleged or actual infringement or misappropriation of any proprietary right in the Partner’s Submissions.
7.1. SERVICE LEVEL. EXAPRO undertakes to make all reasonable efforts to provide the Partner with the Service and the Platform within reasonable availability. However, EXAPRO cannot guarantee that the Service and/or Platform will be available without interruption.
7.2. SCOPE OF LIABILITY. If EXAPRO does not perform substantially in accordance with this Agreement, the entire and exclusive liability of the Partner, and its sole and exclusive remedy, in respect of such warranty will be limited to, at EXAPRO’s option, to either: (i) repair of the Platform; or (ii) terminate this Agreement and refund the Partner for unexpired Subscription Period the Partner have paid for. This warranty applies only to the Platform and the Service, as originally delivered.
7.3. WARRANTY EXCLUSION. The Partner hereby acknowledges, that the Platform and any related Service or documentation is provided “as is” to the fullest extent permitted by law, and EXAPRO hereby disclaims all other conditions, indemnities, guarantees, representations and warranties, express or implied, arising from law, custom, prior oral or written statements or otherwise with respect to the Platform and/or any of its components and any related Service or documentation, including without limitation the implied warranties of merchantability, fitness for a particular purpose satisfactory quality, and non-infringement of any law or regulation.
7.4. SCOPE OF SUPPORT. Except as stated in Article 7.1 of this Agreement, EXAPRO has no obligation to provide any support for the Platform, the Service and/or any of its components, or to continue providing, updating or correcting any defects or errors of the Platform/the Service, regardless of whether the Partner informs EXAPRO of such defects or errors or EXAPRO otherwise is, or becomes aware of, such defects or errors, to the fullest extent permitted by the law. By way of example and not in limitation, EXAPRO does not warrant that: a) use of the Platform/the Service or any part thereof will be uninterrupted or error free; b) all defects in the Platform will be corrected.
7.5. LIABILITY EXCLUSION. To the maximum extent permitted by the law, the Partner agrees that under no circumstances shall EXAPRO be liable to the Partner, or any other person or entity claiming through the Partner, for any inconvenience, direct or indirect damages, including any loss of profits or other damages (“losses”), whether arising out of this Agreement, statute or otherwise arising out of or in connection with those, causing the Partner’s inability to access or use the Platform/the Service during any downtime, outage or discontinuance of the Platform, whether or not the damages are foreseeable and whether or not EXAPRO was advised of the possibility of such damages. In such a case nothing in this Agreement will be construed to obligate EXAPRO to maintain and support of the Platform/the Service or to supply any corrections, updates, or releases in connection therewith.
7.6. EXAMPLES OF LIABILITY EXEMPTIONS. For the avoidance of doubt, according to the abovementioned paragraphs, EXAPRO will assume no liability or responsibility for especially, but not limited to:
a) any errors, mistakes, or inaccuracies of the Platform;
b) quality, availability and scope of any services provided free of charge;
c) property damage, of any nature whatsoever, resulting from the Partner’s access to and use of the Platform and/or any of its components;
d) any unauthorized access to or use of EXAPRO’s secure servers and/or any and all personal information and/or financial information stored therein;
e) any behaviour of individual users or their way of using the Platform, especially one that is not in accordance with this Agreement or the law, nor for damages and damage thus caused;
f) any interruption or cessation of transmission to or from the Platform;
g) services provided by other entities, their quality, quantity or any consequences, or for the rights and obligations associated with these services, accessories, etc.;
h) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Platform and/or any of its components by any third party;
i) any payments, transactions or transfers that the Partner makes, resp. with the help of which the respective payment for the usage plan is made. The operators of these payment companies are responsible for these (transactional) services and portals; and/or
j) any impossibility of using the Platform and/or any of its components if the Partner does not own suitable and sufficient software or hardware equipment.
7.7. NON-EXCLUDABLE LIABILITY. The liability limitation shall however not apply to, or take into account, damages resulting from the gross negligence, bad faith or the willful or intentional misconduct of EXAPRO.
7.8. LIABILITY CAP. EXAPRO’s total cumulative liability for Losses suffered or caused due to or in connection with any agreement concluded under this Agreement or the use or performance of the Platform or the services related thereto, shall in any case not exceed the amount of all fees actually paid or due to be paid by the Partner.
7.9. RIGHT TO INDEMNIFY. The Partner hereby agrees to defend, indemnify, and hold EXAPRO and its agents, employees, officers, directors, successors, and assignors (“Released Parties”) harmless from and against any loss, damage, liability, claim, demand, or expense, including reasonable attorneys’ fees and expenses, asserted by any third party or an entity due to or arising out of:
a) use of the Platform and/or the Service;
b) breach of this Agreement;
c) any breach of the Partner’s representations and warranties set forth in this Agreement;
d) violation of the rights of a third party, including, without limitation, all claims based on publicity rights, defamation, invasion of privacy, copyright infringement, trade-mark infringement or any other cause of action whatsoever; and/or
e) any other harmful act toward any other user of the Platform.
7.10. OBLIGATION TO COOPERATE. Notwithstanding the foregoing, EXAPRO, to the extent permissible by law, reserves the right, at the Partner’s expense, to assume the exclusive defence and control of any matter for which the Partner is required to indemnify EXAPRO and the Partner agree to cooperate, at its own expense, with EXAPRO’s defence of such claims. EXAPRO will use reasonable efforts to notify the Partner of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
8.1. WAYS OF TERMINATION. This Agreement shall remain in effect until terminated by:
a) cancellation by the Partner (as mentioned in art. 3.5 of this Agreement);
d) termination of the legal entity (EXAPRO or the Partner) with liquidation;
e) termination via common agreement.
8.2. NOTICE SENT BY EXAPRO. EXAPRO may terminate this Agreement at any time and for any or no reason with a notice sent to the Partner in a form of a written notice, including an e-mail, a notification or a message sent via the Platform, with a notice period of one month which commences on the first day of the calendar month following the calendar month in which the notice is delivered to the Partner, provided that the Agreement is not terminated by other means of termination or cancellation herein prior to the end of the notice period. In such a case of termination, the Partner is entitled to obtain a refund in the amount corresponding to unused part of the Subscription Period, if applicable.
8.3. WITHDRAWAL. Withdrawal from the agreement under this Agreement is permitted in these cases:
a) VIOLATION OF THE AGREEMENT BY THE PARTNER. EXAPRO may withdraw from the Agreement should the Partner fail to comply with or violate any of the terms set forth. In such an event the Agreement and the rights provided to the Partner hereunder shall terminate immediately upon receiving a written notice, including an e-mail, a notification or a message sent via the Platform to the Partner by EXAPRO. Upon such termination any access granted to the Partner to use the Platform and/or any of its components and the Services provided is deemed to be revoked and the Partner is no longer entitled to use any of the Platform, Service and/or any of its components and/or any part thereof.
b) VIOLATION OF THE AGREEMENT BY EXAPRO. The Partner may withdraw from the Agreement if EXAPRO violates its obligations in a particularly serious manner, specifically, if EXAPRO makes the Platform unavailable permanently. In such an event the Agreement shall terminate immediately upon receiving a written notice, including an e-mail, a notification or a message sent via the Platform to EXAPRO by the Partner specifying the reasons for the withdrawal. Upon such termination any access granted to the Partner to use the Platform and/or any of its components and the Services provided is deemed to be revoked and the Partner is no longer entitled to use any of the Platform, Service and/or any of its components and/or any part thereof. In such a case of termination, the Partner is entitled to obtain a refund in the amount corresponding to unused part of the Subscription Period, if applicable.
9.1. JURISDICTIONS, CHOICE OF LAW. This Agreement shall be governed by Czech law. In the event of any disputes arising out of this Agreement, the Czech courts shall have jurisdiction.
9.2. CHANGES TO THE AGREEMENT. Any amendments or modifications to this Agreement must be in writing.
9.3. NO WAIVER. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder.
9.4. SURVIVAL CLAUSE. Should any provision of this Agreement be or become ineffective or unenforceable, the validity of the remaining provisions of this Agreement shall not be affected. In such event, the parties agree to replace the ineffective or unenforceable provision with one that most closely approximates the economic purpose of the ineffective or unenforceable provision in terms of its meaning and purpose.
9.5. HEADINGS AND SUMMARIES. The headings and summaries at the beginning of each paragraph are solely for the convenience of the Agreement and cannot alter the meaning or content of the Agreement or individual paragraphs.
9.6. EXCLUSION OF SOME PROVISIONS. To the extent permitted by the law, the contracting parties hereby expressly exclude the application of the provisions of § 557, 1798, 1799, 1800, 1805 par. 2, 1895 and par. 2445 - 2454 of the Act. No. 89/2012 Coll., the Civil code, as amended.
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