Last update 01/04/2015.
1. These general terms and conditions of sale and use are applicable to all services offered by EXAPRO SARL, a company existing under French law, registered in the Company Registry of Saumur, registered office address: 4 Place Marc Leclerc 49400 SAUMUR – NAF Code : 4614Z, SIRET N° 4515749000021.
2. These general terms and conditions shall be applicable to all users of the Web sites operated by EXAPRO exclusive of any different provision.
3. These general terms and conditions of sale and use reflect the parties’ undertakings in their entirety and no other term appearing in any other document whatsoever can be deemed part of the rights and obligations binding on EXAPRO and any user of such sites and services.
4. These general terms and conditions of sale are applicable as accepted by any and all service Purchaser, provider or user.
5. EXAPRO hereby reserves the right to vary its general terms and conditions of sale and use at any time. In such a case, the new general terms and conditions shall prevail over the previous version. The new terms and conditions of sale and use shall become effective and binding immediately on their on-line publishing without any other formalities and without prejudice to the user’s option to terminate his/her membership to the site.
6. The full content of the sites (domain name, title, design, form, comments, original images and illustrations, logotypes, slogans, texts and other elements) as well as the data base are EXAPRO’s exclusive property as sole publisher and owner.
7. All the above contents are under worldwide protection by way of copyright, trade mark registration, data base creator’s rights or any other protection contemplated by the Intellectual Property laws in every country concerned.
8. The purpose of these EXAPRO-owned general terms and conditions of sale and use is to define the general conditions of sale, the general conditions of utilization, the confidential data protection policy, the web users’ duty of good behavior and in general, the terms governing the provision of on- and offline services offered by EXAPRO to its customers.
9. These general terms and conditions of sale and use make up together a cohesive whole. Nonetheless, in case any clause hereof should be adjudicated null or avoided, all the other provisions shall remain effective and binding.
10. On-line Ads: On-line ads are defined as an explanatory description drafted and designed under the web user’s exclusive responsibility in order to promote the sale of its assets. The purpose of this announcement is to extol the equipment for sale in a professional context. EXAPRO may have to modify or improve the editorial quality of the announcement inter alia according to the information provided by the Seller. This notwithstanding, the Seller shall remain solely responsible for its advertisement and therefore, for checking the relevant texts published on-line.
11. The Web User: The web user is defined as a natural person or public/private body corporate registered on a professional basis on the “Exapro.com” web site in order to browse and/or to place an ad. Amongst the web users group, one can identify the assets Seller that is a web user offering an asset for sale, and the client, that is a professional player seeking out professional equipment who will be introduced to the Seller via the exapro.com website.
12. Internet surfer or visitor: the internet surfer or visitor is defined as any person who does not match the web user’s definition and visiting the www.exapro.com site, or any other website operated by EXAPRO. In that respect, he/she can access public web pages, use the services available to all surfers. Unlike a web user he/she does not need to create a user’s account and to disclose his/her personal data. On the other hand, he/she cannot access EXAPRO’s paying services.
13. The asset: shall mean any equipment for professional application offered for sale on “Exapro.com” website.
14. Price: shall mean the pre-tax, asked price for an asset appearing in a static message, for a period of time decided by the Seller.
15. Offer: shall mean an offer to purchase an advertised asset inviting both parties to initiate purchasing negotiations for the relevant piece of equipment.
16. EXAPRO services: shall mean all services offered by EXAPRO which can be either paid or free of charge depending on their nature.
17. EXAPRO introduces a professional willing to sell to a professional willing to buy a professional asset. EXAPRO’s main object is therefore to establish contacts between Buyers and Sellers acting in an independent go-between capacity.
18. Because EXAPRO steps aside from the execution of the contract, EXAPRO is only acting as a broker, and not as a commission agent or authorized representative.
19. The deals transacted through EXAPRO’s mediation shall not be considered as public auction sales.
20. Each Seller shall enjoy unlimited freedom of choice to sell its equipment: in case of several offers, the Seller shall freely choose the sale best suited to its own appreciation.
21. EXAPRO shall retain full and exclusive title in and upon the data base of assets for sale. In no way such assets can be owned by EXAPRO that is only acting as a broker.
22. Each party to the contract shall have its own personal status and therefore they each act in their own name and for their own account.
23. Due to the very object of the service, EXAPRO is bound by a duty of care and diligence, but not by an obligation as to the outcome. Consequently, EXAPRO shall never be held liable for drafting the announcement, even where EXAPRO participated therein. Nor can EXAPRO be held liable for an interruption of the online service, if any.
24. The service offered by EXAPRO complies with any and all regulations and statutes currently in effect and is provided in compliance with the existing specifications.
25. The registration shall be free and on no account shall a registration fee or payment be required. On the other hand, the web registration on the site is a binding prerequisite to be allowed to buy or sell an asset via exapro.com.
26. EXAPRO reserves the right to approve in its absolute discretion any new registration, to verify all information submitted by the applicant for registration, or part thereof.
27. Under no circumstance can EXAPRO be held liable for any misrepresentation, inaccurate, misleading or libelous information submitted. On the other hand, EXAPRO reserves the right to deny registration in case of misrepresentation, inaccurate, misleading or libelous information submitted by web users.
28. Any fraudulent registration calculated to, or resulting in misleading another web user or EXAPRO shall be cause for erasing the user’s profile and reporting to the judiciary authority of jurisdiction for prosecuting the perpetrators.
29. Any registration shall be deemed an acceptance of the general conditions of use, and associated terms and conditions.
30. The existing legal regime is governed by the law passed on June 21st, 2004 on the on-line, off-premises selling between professionals and by the Data Protection Act passed on August 6th, 2004, which create obligations on both parties.
31. The Seller hereby undertakes to abide by all EXAPRO’s rules and shall transfer its equipment according to the web site practice.
32. The offer shall include at least the following information:
33. The Seller shall satisfy himself of having the necessary entitlement and authorization to sell the assets, and shall ensure that the latter are compliant with the statutes in effect to avoid any breach of the regulations or infringement of third party’s rights.
34. The Seller is under an obligation of organizing the delivery of the contractual asset to the Purchaser. The Purchaser shall by default pick up the bill for transport, handling, customs costs and other expenses associated with the transmission. The parties may elect to apply a different rule if they should so wish.
35. Prior to the sale, in order to avoid disputes, the parties shall agree on the expenses borne by the Purchaser in terms of transport, handling, customs and other costs inherent in the transmission.
36. An offer to sell an asset is an implied invitation for the Seller and the Purchaser to possibly negotiate.
37. EXAPRO hereby reserves its right to remove any asset for sale from the site for any reason whatsoever, at any time and without incurring any liability to the Seller or to the Purchaser, without prejudice to any and all other rights and remedies, and by email notice only.
38. EXAPRO does not give to the Seller any assurance of receiving any number of inquiries or of offers.
39. EXAPRO hereby reserves its right to highlight – or not - the ad published under various forms such as “Exaspot”, “special offer” or any other commercial reference. Besides, the Seller has no right to highlighted placement on the web site.
40. Within 72 hours after closing a deal with a Purchaser, the Seller shall inform EXAPRO of any sale of the relevant asset, failing which the Seller may incur contractual liability.
41. The asset shall be paid on principle by bank transfer. Payment by bank check can be accepted but only with French checks.
42. The existing legal regime is the on-line, off-premises selling system
43. The Seller hereby undertakes to abide by all EXAPRO’s rules and shall submit his/her offer according to the web site practice.
44. The Purchaser is solely responsible for the offer and shall ensure being entitled and capable of purchasing any assets subject to an offer.
45. The highest bid price will not necessarily win since the proposed service is not an auction sale service (see above).
46. EXAPRO does not warrant that all offers would be considered. Only the most relevant offers will be examined. There shall be no cause for action against EXAPRO available to a customer whose offer was not studied.
47. The Purchaser shall by default pick up the bill for transport, handling, customs costs and other expenses associated with the transmission. This notwithstanding, the parties may elect to apply a different rule. EXAPRO recommends (ref. art. 38) that they should agree on the amount of these costs before closing the sale.
48. EXAPRO hereby reserves its right to reject any offer for any reason whatsoever, at any time and without incurring any liability thereby, without prejudice to any and all other rights and remedies, and by email notice only
49. Each offer binds the Purchaser to negotiate with the Seller. The Purchaser can withdraw its offer until it is selected by the Seller.
50. In submitting the offer, the Purchaser undertakes to warrant the availability of the funds required to purchase the asset. Otherwise, following an emailed warning, the Purchaser may be removed from the site without any further notice.
51. Every Purchaser whose offer is accepted by the Seller shall immediately inform EXAPRO accordingly.
52. If the offer should exceed 50,000 €, EXAPRO hereby reserves its right to ask the Purchaser to submit a bank confirmation that the funds are available.
53. On EXAPRO’s request, as a condition precedent and prerequisite to being introduced to the Seller, the relevant Purchaser hereby undertakes to pay to EXAPRO the deposit on the terms defined by EXAPRO.
54. In addition, the Purchaser is bound under two essential obligations:
55. The Seller can freely determine the base price and reserve price and the length of time during which the offer shall be firm.
56. The final offer shall be selected by the Seller, which implies to introduce the Seller to the Purchaser.
57. In case a deal should be clinched, both the Seller and Purchaser shall jointly inform EXAPRO of the relevant terms without undue delay. The transmission of information from the Purchaser to EXAPRO is a condition precedent to the reciprocal introduction of the parties.
58. Where an offer has been accepted during the validity period, the Purchaser will be informed that he will be introduced to the Seller.
59. Prior to such introduction, EXAPRO can freely ask the Purchaser to pay a retainer. In such a case, within 4 working days after receipt of a notice via email, the Purchaser shall pay 10% of the offer – under penalty of the offer being turned off – to an escrow account (not bearing interest incurring to the Seller or to the Purchaser) opened in the bank selected by EXAPRO and according to its instructions.
60. EXAPRO hereby reserves its right to suspend the offer for sale of a product or to stop any introduction procedure, without cause, at any time and without incurring a liability, without prejudice to EXAPRO’s other rights and remedies.
61. EXAPRO shall raise a bill on the Seller for the amount of the commission payable to EXAPRO plus VAT. Such commission shall be paid within 15 days after the date of receipt of the bill.
62. The commission rates can be found on the web site address: http://www.exapro.com/sell-your-used-plant-machinery/. The parties shall be responsible for consulting these rates to avoid any dispute on this matter.
63. A commission shall be payable for each deal clinched through EXAPRO. Such commission shall also be due and owing on any deal struck by the same parties introduced by EXAPRO for a period of 6 months after they were introduced to each other, unless the introduction agreement should stipulate otherwise.
64. The commission payable by the Seller shall be deducted from any retainer or deposit paid to EXAPRO by the Purchaser. In case the retainer should exceed the anticipated commission, the balance shall be transferred to the Seller’s bank account as instructed by EXAPRO.
65. The amount of the transaction is deemed to be the amount of the offer which initiated the introduction of the parties. If the parties should negotiate a different price, the Seller shall inform EXAPRO accordingly within 30 days after receipt of the bill. EXAPRO will then adjust the commission and raise an updated invoice along with a credit note against the first one. No claim shall be accepted by EXAPRO after expiry of this 30 days period.
66. In case the negotiations should fail and the transaction should not be completed, the Seller and the Purchaser shall inform EXAPRO accordingly by email or letter. In such a case, EXAPRO shall instruct the bank to return the retainer to the Purchaser.
67. Any consideration paid by either party shall remain finally vested in EXAPRO and not refundable in whole or in part. In case any sum payable to EXAPRO by the Seller or the Purchaser should remain outstanding and unpaid on the due date, the Seller or the Purchaser shall owe EXAPRO as of right and without formal notice, late payment interests accruing from the first day of delay and calculated at one and a half time the legal rate of interest on the relevant amount.
68. EXAPRO reserves the right to check any and all information provided by the parties prior to circulating the same and, as the case may be, to refuse, withdraw or delete any information without notice. Such withdrawal under whatever form and for whatever time period shall never entail the payment of any compensation.
69. EXAPRO hereby reserves its right to terminate at any time and with immediate effect, any right of access or part thereof corresponding to an account and a password, or even to delete any account and password, unconfirmed and/or dormant account.
70. Access to the web site by any user can be terminated as provided herein without prior formal notice.
71. EXAPRO can contract out certain services provided by other natural persons or entities. Such third-party services can be offered to the Sellers and Purchasers, at their own costs and under their own responsibility. Under no circumstances shall EXAPRO incur any liability on that count. Exapro may use third-party services to promote the assets in order to perform the services. If a seller wishes not to have his assets promoted through third-party services, he should send a request by email to email@example.com.
72. The services offered by third parties may include links to other Web sites or Internet sources. To the extent that such sites and sources are outside its control, EXAPRO shall not be held responsible for the provision thereof nor can EXAPRO incur any liability as to the content, advertising, products, services or any other material available on, or from such sites or external sources. On no account shall EXAPRO incur any liability for any and all damage or loss, known or alleged, occurring as a result of, following or in connection with having used or trusted the information, services or data available at these sites or external sources.
73. The Sellers and Purchasers remain solely responsible for any tangible or intangible damage and loss sustained by EXAPRO, whether direct or indirect, if they are caused or originated by their use of the service offered by EXAPRO. In case any Seller or Purchaser should breach this agreement, a statute, contract or an applicable practice, they hereby undertake to hold EXAPRO harmless from and against any and all claims, suits and/or damage judgment incurred by, or threatened against EXAPRO.
74. Any Seller, Purchaser or third party can provide data to EXAPRO via the web site. EXAPRO hereby undertakes to act in order to protect the accuracy, relevance and interest of such content. On no account can EXAPRO incur any liability if any editorial content should infringe the rules and statutes in effect.
75. In its hosting provider’s capacity, EXAPRO discharges its information duty by putting alert and reporting systems into place.
76. EXAPRO shall not be under any systematic obligation of monitoring information transmitted or stored by any other party, nor is EXAPRO bound by a duty of due diligence or prior checking for facts or circumstances evidencing illegal activities.
77. EXAPRO hereby undertakes to withdraw any clearly abusive editorial content and to endeavor to prevent recurrent dissemination of any such content.
78. Except in case EXAPRO was duly informed about an abusive content within the meaning of the laws in effect, being present on the site and failed to act decisively to suppress it, EXAPRO cannot incur any liability for the contents or from the parties’ action or for the assets advertised for sale.
79. EXAPRO cannot guarantee to the Seller a specific number of bidders.
80. In no way will EXAPRO vouch that any Purchaser is solvent or meets its commitments. Under no circumstances can EXAPRO incur any liability on that count.
81. EXAPRO is in no way responsible for the quality, operation and conformity of the assets advertised on-line on its web site.
82. In its go-between capacity, EXAPRO denies any liability for the execution, termination and/or conclusion of the relationship created between any Seller and any Purchaser.
83. EXAPRO Sarl cannot incur any liability to the Purchaser for the quality and conformity of the product for sale on-line: the Purchaser shall obtain warranties directly from the Seller. The Sellers and Purchasers are solely responsible for any tangible or intangible damage and loss, whether direct or indirect to EXAPRO, if they are caused by them or originated in the context of their utilization of the service provided by EXAPRO.
84. In case of infringement of this agreement or of a law, contract or of an applicable practice by any Seller or Purchaser, they hereby undertake to hold EXAPRO harmless from and against any and all claims, suits and/or damage judgment incurred by, or threatened against EXAPRO.
85. On no account shall EXAPRO incur any liability for whatever financial, commercial or technical damage sustained by any Seller or Purchaser, such as lost productivity, loss of revenue, loss of profit or market, lost orders or data, any other financial damage and commercial loss, loss of income, lost profit or opportunities, wasted time or any other indirect damage.
86. EXAPRO hereby undertakes to provide the service with the utmost care and skill customary in the profession. This notwithstanding, EXAPRO shall not incur any liability in case of breach of its contractual obligations due to a force majeure occurrence, an act of God, unstoppable event, third party’s fault or mistake by any Seller or Purchaser.
87. In its technical mediation role, EXAPRO shall not be liable for the Seller’s failure to meet its outstanding obligations. In no way shall EXAPRO be accountable to the Purchaser for failure to deliver the asset purchased, improper delivery or any damage sustained by the product during shipment or commissioning.
88. EXAPRO hereby denies any liability in case the asset delivered should violate the statutes in effect in the country of delivery.
89. The financial terms of the purchase will be freely negotiated between the Seller and Purchaser and, therefore, EXAPRO shall on no account incur any liability for the purchaser’ non-payment if any.
90. Under no circumstance shall EXAPRO incur any liability for the information submitted by the Sellers about the equipment. No inaccurate, deceitful, misleading information and misinformation shall be binding on EXAPRO’s liability.
91. As an on-line marketplace EXAPRO is a technical interface which keeps a powerful data base accessible round the clock and 7 days a week. Consequently EXAPRO shall not incur any liability for the technical limitations inherent in Internet (all technical risks and capabilities in their entirety).
92. EXAPRO does not undertake to maintain uninterrupted and permanent access to the services. Therefore, EXAPRO cannot be held liable for any dysfunction occurring on its web site and for the direct or indirect consequences of malfunctions if any.
93. 12. EXAPRO is hereby allowed by the users to leave a “cookie” on their hard disc and authorized to use the resulting data.
94. Through the very object of its service, EXAPRO introduces the Seller and Purchaser as an independent mediator. Therefore, all costs, expenses (communication, equipment) required to use the site shall be borne by the users
95. Any Seller or Purchaser shall be responsible for the utilization of the service from its own account.
96. Use of the Service: during the use of the service, users shall refrain:
97. EXAPRO is thankful for placing your trust and confidence in our company to protect your personal information. EXAPRO hereby undertakes to protect and handle you proprietary data in strict confidentiality. By making this representation, the user hereby accepts that EXAPRO should access, process and uses such data for its own purpose. Needless to say, you can reverse your approval at any time with immediate, albeit not retroactive effect.
98. Every user of EXAPRO’ service shall nevertheless be responsible for doing the necessary to protect his/her own data or any other material stored in his/her IT equipment.
99. As provided by the Law N°78-17 passed on the 6th January 1978 [so-called “IT and freedoms”) on the protection of natural persons in the context of personal data processing, as amended by the law 2000-801 passed on the 6th August 2004, every Purchaser or Seller is entitled to access, modify or suppress any and all personal information of natural persons, shared with EXAPRO on using the Service.
100. Every Purchaser or Seller has a right to oppose to the transmission of his/her information to a third party by notifying the opposition on EXAPRO at the following address: 4 Place Marc Leclerc 79400 SAUMUR.
101. Customers’ information shall be kept strictly confidential. However such information may have to be shared in specific cases: court actions, legal obligation, compliance with the general conditions of use, general conditions of sale, to apply any executed agreement, to defend against alleged infringement of third parties’ rights, to protect the rights and interest of EXAPRO, its users and the general public.
102. Such information may be shared with third parties such as our affiliates, partners outside our control (sharing with a third party information connected with a transaction with such third party), service providers or in the context of a business or going concern transfer. In all other cases, EXAPRO hereby undertakes to inform you and ask your agreement prior to sharing any information of yours.
103. This agreement is drafted in French. Only the French version of these general terms and conditions of use and of sale shall prevail. Any other general terms and conditions of sale and/or use appearing on the exapro.com site or one of the sites managed by EXAPRO should be the translation hereof into a foreign language. Therefore, in case of conflict between the various documents, only these general terms and conditions of use and sale shall prevail.
104. All transactions shall be governed by the laws of France. In accepting these general terms and conditions of sale and use, all professional visitors and users accept to submit the contracts to French law. The laws of France shall not only apply to the relationship between EXAPRO SARL and the Purchasers and Seller, but shall also govern the Seller-Purchaser’ contractual relationship. In accepting these general terms and conditions of sale and general terms and conditions of use, the Sellers and Purchaser formally accept that their transaction shall be governed by French law.
105. Legal venue in case of disputes: the Tribunal de Commerce de Paris shall be the legal venue. The parties hereby formally accept that this court shall have jurisdiction on all disputes between EXAPRO and its customers but also on all disputes between the Seller and Purchaser.