SALE SPECIFIC TERMS
- These terms are the Sale Specific Terms as mentioned in article 1.1.18 of the Terms and Conditions below.
- This sale is a Private Treaty Sale, as described in article 1.1.14 of the Terms and Conditions below.
- When a bid is accepted, a Sales Agreement will be made to be signed by the Buyer and the Seller.
- In the Sales Agreement, the Buyer and Seller will state the terms for payment and removal, that may deviate from the Terms and Conditions below.
TERMS AND CONDITIONS
The following terms and conditions ("Terms") are the terms on which HILCO Industrial Acquisitions BV (“HILCO”), at Jan van Goyenkade 10-2, 1075 HP Amsterdam, The Netherlands, registered under the following number 60720700 at the Chamber of Commerce in Amsterdam, sells Equipment (defined below) at Auctions (defined below) or by means of Private Treaty Sales (defined below) and supersedes all other terms and conditions relating to the subject matter of these Terms. These Terms are the terms subject to which HILCO shall, either on its own behalf or as agent for the Vendor (defined below), sell Equipment to a Buyer (defined below) by way of Auction or Private Treaty Sale.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 8 AND THE BUYER SHOULD NOTE THAT:
- ALL EQUIPMENT IS SOLD ‘AS IS, WHERE IS’ (WITH ALL FAULTS, IMPERFECTIONS AND DEFECTS)
- NO GUARANTEES AND/OR WARRANTIES ARE PROVIDED BY HILCO IN RESPECT OF ANY EQUIPMENT
- IT IS THE BUYER’S RESPONSIBILITY TO INSPECT EQUIPMENT PRIOR TO BIDDING ON SUCH EQUIPMENT OR MAKING AN OFFER IN RESPECT OF SUCH EQUIPMENT
- ALL SALES ARE FINAL – NO EXCEPTIONS
- SALES MAY BE SUBJECT TO A BUYER’S PREMIUM (DEFINED BELOW), THE RATE OF WHICH WILL VARY FROM SALE TO SALE
- ALL AUCTIONS (DEFINED BELOW) ARE SUBJECT TO THE CONDITIONS, VALID IN THE COUNTRY, WHERE THE AUCTION TAKES PLACE
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1.
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DEFINITIONS AND INTERPRETATION
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1.1.
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The following words and phrases used in these Terms shall have the following meanings, except where the context clearly requires otherwise:
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1.1.1.
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"Advertising Material" means brochures, pamphlets, advertisements and any other marketing material (in both electronic and printed format) used by HILCO to market and promote the Auctions and/or any Private Treaty Sale;
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1.1.2.
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"Auction" means a public sale or online sale at which items of Equipment are being sold by HILCO, each such item of Equipment going to one of the competing bidders;
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1.1.3.
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"Buyer" means any person, firm or auctioneer who agrees to purchase the Equipment by participating in an Auction and placing a winning bid or who makes an offer which is accepted by HILCO in respect of a Private Treaty Sale;
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1.1.4.
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"Buyer’s Premium" means a percentage of the Hammer Price (specified in the Sale Specific Terms) which is added to the Hammer Price to make up the Purchase Price;
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1.1.5.
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"Catalogue" means an online or printed document containing a description of the Equipment to be sold at an Auction or by way of a Private Treaty Sale;
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1.1.6.
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"Data Protection " means the Data Protection as applicable in the Country where the Auction takes place or such other legislation which enacts or consolidates it (with or without modification);
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1.1.7.
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"Equipment" means the assets in respect of which potential Buyers are invited to submit offers by means of placing bids at an Auction or in respect of a Private Treaty Sale;
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1.1.8.
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"EU" means the European Union;
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1.1.9.
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"Force Majeure Event" means any event beyond a Party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable and which affects the performance by a Party of its obligations under these Terms, including without limitation, strikes, lock-outs or other industrial disputes (excluding such party’s own workforce), failure of energy sources or transport network, acts of God, international disputes, war, export or import limitations or embargos, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors;
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1.1.10.
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"Hammer Price" means the amount offered by the Buyer and accepted by HILCO at Auction in respect of the relevant Equipment;
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1.1.11.
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"Parties" means HILCO and the Buyer collectively and "Party" shall mean any one of them as determined by the context;
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1.1.12.
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"Personal Data" means any personal information (such as name, address, telephone number, credit card details and copies of documents such as a driving license used for identification purposes) which the Buyer provides to HILCO when submitting a Registration Form to HILCO;
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1.1.13.
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"Privacy Policy" means HILCO’S privacy policy accessible via the link on HILCO’S Website(s) and which forms part of these Terms;
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1.1.14.
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"Private Treaty Sale" means a sale (not by way of an Auction) of Equipment by HILCO where HILCO prepares descriptive details of the Equipment for sale and invites offers which HILCO may accept or reject;
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1.1.15.
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"Proxy Bid" means a bid submitted by an employee of HILCO on a Buyer’s behalf and with the Buyer’s authority in circumstances where a Buyer is unable to participate in an Auction;
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1.1.16.
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"Purchase Price" means the amount payable by the Buyer to HILCO in respect of the sale and purchase of the Equipment and shall consist of, in respect of sale at Auction, the Hammer Price plus the Buyer’s Premium and, in respect of a Private Treaty Sale, the price agreed between HILCO and the relevant Buyer;
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1.1.17.
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"Registration Form" means the printed or online form the Buyer completes when registering for an Auction;
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1.1.18.
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"Sale Specific Terms" means any terms published by HILCO on any of the Websites in respect of the sale of Equipment and, in respect of a sale by Auction, any terms made available at any Auction and which relate to the specific Auction mentioned in such terms and/or any other terms communicated to the Buyer or potential Buyer by HILCO from time to time which shall be incorporated into these Terms by reference;
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1.1.19.
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"Third Party" means any person or entity other than the Parties;
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1.1.20.
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"VAT" means value added tax or the equivalent or similar sales taxes applicable in the Country where the Auction and/or Private Treaty takes place
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1.1.21.
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"Vendor" means, the vendor of the Equipment, where HILCO sells the Equipment as agent on the vendor’s behalf or HILCO if it sells for its own account;
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1.1.22.
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"Website(s)" means HILCO’S website located at www.hilcoind.com and any other websites used by HILCO for purposes of Auctions or in respect of a Private Treaty Sale.
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1.2.
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The headings used in these Terms have been inserted for convenience only and shall not affect its construction or interpretation.
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1.3.
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Words importing the singular include the plural and vice versa.
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1.4.
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Words importing a gender shall include all genders.
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1.5.
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Reference to any statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under them as from time to time amended, consolidated or re-enacted.
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1.6.
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In the event of a conflict between the provisions of these Terms and the Sale Specific Terms, the Sale Specific Terms shall take precedence.
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2.
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APPLICABILITY OF THESE TERMS
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2.1.
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These Terms as well as the "Sale specific Terms" apply to all Auctions and Private Treaty Sales facilitated and/or conducted by HILCO.
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3.
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STATEMENTS RELATING TO THE EQUIPMENT
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3.1.
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All statements relating to the Equipment put up for auction at an Auction or offered for sale by means of a Private Treaty Sale contained on the Websites, in any Catalogue or in any Advertising Material (such as statements relating to description, quality and condition) are qualified statements of opinions and should not be relied upon or construed as being representations or warranties.
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3.2.
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It is the Buyer’s responsibility to inspect the Equipment and to satisfy itself on all matters affecting the Equipment, including the condition and description of the Equipment, its fitness and suitability for any particular purpose prior to bidding on such Equipment at an Auction or making an offer in respect of a Private Treaty Sale.
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4.
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OFFERS
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4.1.
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All offers of HILCO are subject to prior sale of the goods by HILCO to a third party.
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4.2.
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No offer, whether oral or in writing, is binding upon HILCO. HILCO has the right to withdraw any offer within five days after such offer has been accepted by the purchaser.
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5.
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RISK AND TITLE
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5.1.
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The risk in and to Equipment bought by the Buyer at an Auction shall pass to the Buyer on the ‘fall of the hammer’, but the legal and beneficial title in and to such Equipment shall remain with HILCO until the Buyer’s payment of the Purchase Price (together with any VAT and any other applicable tax) in accordance with clause 7 and has been received by HILCO in cleared funds.
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5.2.
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The risk in and to Equipment bought by the Buyer by means of a Private Treaty Sale shall pass to the Buyer on the date on which the Private Treaty Sale is agreed between HILCO and the Buyer, but the legal and beneficial title in and to such Equipment shall remain with HILCO (or as the case may be, the Vendor) until the Buyer’s payment of the Purchase Price (together with any VAT and any other applicable tax) in accordance with clause 7 and has been received by HILCO in cleared funds.
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6.
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PROXY BIDS
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HILCO may place Proxy Bids on behalf of a Buyer or potential Buyer at any Auction at the Buyer’s election.
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7.
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PURCHASE PRICE, PAYMENT TERMS AND VAT (AND OTHER TAXES)
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7.1.
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The Purchase Price shall consist of the Hammer Price plus the Buyer’s Premium (if applicable), or, in the event of Private Treaty Sales, the Purchase Price shall be the price agreed between HILCO and the relevant Buyer in respect of such Private Treaty Sale.
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7.2.
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HILCO may levy a Buyer’s Premium on all sales at Auctions and the rate of such Buyer’s Premium will vary from sale to sale.
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7.3.
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The Purchase Price does not include VAT and other taxes (if any). Any VAT (or other taxes if any) relating to a sale shall be payable at the current rate(s) applicable in the country of supply and at the rate in force at the time of supply where the sale takes place. In respect of VAT and any other taxes (if any) the following shall apply (please see important information below for intra EU dispatches and exports purchasers where the Equipment in question is removed from the EU)
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7.3.1.
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Buyers located in the country of supply and where the Equipment remains in that country will be charged VAT and other taxes (if any) on the Purchase Price, and for sales at auctions local VAT (and other taxes if any) will be levied on the Hammer Price and Buyers Premium.
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7.3.2.
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Buyers located in another country other than the country of sale but located within the EU must complete documentation or be able to support that there is an intra-EU dispatch and if necessary complete an intra-EU form. A deposit equal to the amount of the VAT payable in the country of supply will be taken from the Buyer and held by HILCO until satisfactory proof of intra-EU dispatch is received by HILCO. Where a Buyer removes the Equipment from the country of supply to another EU state then proof of removal will include full shipping documents, proof of transport certification, or any other shipping documentation required by the EU Member State of dispatch to satisfy the intra-EU supply rules for goods including the evidence of a VAT ID number in another EU state to that of the country of supply. This documentation must be received by HILCO within three (3) months from the date of the supply.
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7.3.3.
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Buyers who are established outside the EU will be charged VAT (and other taxes if any) on the Purchase Price. A refund of the VAT applied in the country of supply can be processed by sending proof of removal of the Equipment from the EU as an export (and this will include shipping documents) to HILCO within three (3) months from the date of the supply.
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7.4.
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The intra EU forms and proof of export documents (including full shipping documents) required under clause 7.3.3 should be sent to HILCO via regular mail, e-mail (infoHIA@hilcoglobal.com) or by fax +31 (0) 20 470 2084 or to such other person as HILCO may notify the Buyer from time to time.
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7.5.
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Buyers wishing to claim an exemption from VAT (or that VAT is to be charged at zero rate or is otherwise not payable (either at all or at the full rate or amount prevailing at the time of the sale)) should provide satisfactory proof to HILCO of the Buyer’s entitlement to claim such exemption or release.
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7.6.
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The Purchase Price should be paid by means of electronic funds transfer (EFT). The bank details and the currency in which payment should be made shall be specified in the Sale Specific Terms.
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7.7.
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Time for payment shall be of the essence and any items of Equipment in respect of which full payment (in cleared funds) has not been received by HILCO within ten (10) days of the closing of the relevant Auction or the date of the Private Treaty Sale shall be forfeited and the Buyer shall be liable for the administrative and other costs of HILCO for arranging for the resale and/or scrapping of such Equipment and any resulting loss of fees or commission or premium incurred or suffered by HILCO.
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7.8.
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No payment shall be deemed to have been received until HILCO has received the relevant payment in cleared funds.
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7.9.
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The Buyer shall make all payments due under these Terms in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
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7.10.
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If the Buyer fails to pay HILCO any sum due pursuant to the Buyer purchasing any Equipment at an Auction or by way of Private Treaty Sale, the Buyer shall be liable to pay interest to HILCO on such sum from the due date for payment at the maximum allowable annual rate accruing on a daily basis until payment is made, whether before or after any judgment.
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8.
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WARRANTIES AND LIMITATION OF LIABILITY
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8.1.
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International Statutory Compliance Exclusion
(A)
It is expressly brought to the Buyer’s attention that, at the time of sale, any item of plant, machinery or equipment contained in the lot(s):
may not necessarily comply with the Health and Safety Laws, in the relevant jurisdiction and or any other EC Acts, Regulations, Directives or their applicable laws or equivalent or similar laws in any relevant jurisdiction or; and
could contain blue or white asbestos, hazardous substances, dangerous chemicals etc. which if not handled correctly during their removal from a site could be in breach of the relevant Health and Safety Laws, use of such substances in a working environment in the EC or any other relevant jurisdiction.
(B)
The Buyer undertakes to:
remove, ship and use any purchased plant and equipment within the European Community or any other relevant jurisdiction in a way that does not contravene any relevant legislation and in full compliance with all applicable Health and Safety Standards and regulations;
comply with all current applicable legislations in any relevant jurisdiction and reasonable instructions by the Auctioneer in relation to the removal/disposal of waste including hazardous waste.
Participants agree to comply with all applicable export or import control or related laws or regulations and not to violate any applicable local, state, national or international law, statute, ordinance, rule or regulation.
Participants acknowledge that the Auctioneer is not the exporter of any asset unless expressly stated.
The Auctioneer gives no representation or warranty concerning and has not conducted any investigation to ascertain which items, if any, constitute, for example, "Restricted Technology" for US law purposes or whose export is otherwise restricted under applicable law. The Auctioneer and the seller reserve the right to cancel or rescind any sale in an Online Transaction at any time if either of them determines. In its absolute discretion, that the sale does or may violate applicable export or import control or related laws and regulations."
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8.2.
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Buyers Responsibilities and Conduct
The Buyer will be responsible for all damage that it, its carriers or its agents may do to the property of any third party (and, in particular, to the seller’s premises) in removing the lot(s) it has purchased. Should the Auctioneer consider such damage likely to occur, it may require the Buyer to deposit such sum of money with the Auctioneer, by way of security for the costs of reinstating that part or the premises likely to be damaged by the removal of a lot, as the Auctioneer may refuse the Buyer access to the seller’s premises for the purpose of collecting all or any of the lots it has purchased, or rescind the sale of such lot.
By placing a Bid on a lot, the Buyer represents, warrants and undertakes that it has the authority and capacity to enter such Bid and close the transaction and that any Bid that it makes constitutes an irrevocable offer to buy the lot in question for the full amount of the Bid."
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8.3.
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Transfer of Risk
Upon the Announcement of Sale the Buyer shall assume all risks in and relating to such lots. The Buyer is advised to effect in respect of all such risks arising thereafter any insurance it may consider necessary. The duty of the Auctioneer and/or the seller to make lots available shall be deemed performed upon Announcement of Sale even if a lot is subsequently damaged and/or part thereof has been lost.
Property and title in each lot shall not pass to the Buyer until:
(a) full payment therefore has been received or
(b) each such lot has been removed from the seller’s premises in its entirety."
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8.4.
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AS IS / WHERE IS
All goods are sold "AS IS, WHERE IS, WITH ALL FAULTS, IMPERFECTIONS, DEFECTS AND WITHOUT RECOURSE". Illustrations, pictures or videos posted on the Site are for the convenience of the Buyers only.
Each of the seller, the Auctioneer and, where applicable, HILCO has used its reasonable endeavors’ to ensure that the description of each lot(s) appearing on the Site are accurate, but the Buyer replies upon such description at its own risk. Buyers should satisfy themselves prior to the sale as to the condition of the lot and should exercise and rely on their judgment as to whether the lot accords with its description at their own risk.
Subject to the obligations accepted by HILCO and where applicable, the Auctioneer under these Terms and Conditions neither the seller nor HILCO nor, where applicable, the Auctioneer nor any of their respective employees or agents are responsible for errors of description or for the genuineness or authenticity of any lot and no warranty whatever is given by HILCO or, where applicable, the Auctioneer, or the seller of their respective employees or agents to the Buyer in respect of any lot and any express or implied conditions or warranties are hereby excluded to the greatest extent permitted by law."
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9.
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REMOVAL OF EQUIPMENT
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9.1.
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It is the Buyer’s responsibility to collect or to arrange for the collection of Equipment bought (at the Buyer’s cost).
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9.2.
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The Buyer should contact the individual whose name and contact details are provided in the Sale Specific Terms to arrange for the collection of Equipment.
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9.3.
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HILCO shall only release Equipment for collection by a Buyer or its duly authorized representative once such Equipment has been paid for in full and HILCO has received such payment in cleared funds.
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9.4.
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The Buyer must make payment of the Purchase Price on receipt of HILCO’S invoice. Invoices relating to purchases made via the Websites will be emailed to the Buyer within forty eight (48) hours of the closing of the relevant Auction or conclusion of the relevant Private Treaty Sale.
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9.5.
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Unless stated otherwise in the Sale Specific Terms, the Buyer shall collect or arrange for the collection of the Equipment purchased within ten (10) days of the closing of the relevant Auction or conclusion of the relevant Private Treaty Sale, after which HILCO shall be entitled to charge to the Buyer the cost of storing and securing such Equipment. The Buyer agrees to advise HILCO of the intended date for collection and method of collection and transport prior to collecting the Equipment.
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9.6.
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The dismantling and removal of Equipment by the Buyer shall comply with the Health and Safety Laws, applicable in the Country where the Equipment is located, if applicable, together with HILCO’S site safety policies and procedures. After the dismantling and removal, the Buyer shall ensure that the site where the Equipment is located is left clean and in the state it was in prior to the dismantling and removal of the Equipment by the Buyer.
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9.7.
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Certain types of Equipment may contain hazardous materials (such as chemicals) and, on his own account, the Buyer must ensure that the removal of such hazardous materials is carried out in accordance with the Health and Safety Laws, applicable in the Country where the Equipment is located and any other relevant legislation and/or regulations dealing with the removal and handling of such hazardous materials.
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9.8.
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The Buyer shall indemnify and shall keep HILCO indemnified against all liabilities, damages, costs, expenses, death and personal injury arising from or in the course of the removal of the Equipment.
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10.
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INTELLECTUAL PROPERTY
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The copyright in the text appearing on the Websites, in any of our Catalogues, Advertising Material and the photographs, digital images and illustrations of Equipment on the Websites, in any of our Catalogues and in any Advertising Material vest in and shall remain vested in HILCO or its licensors. The Buyer will not reproduce or permit anyone else to reproduce such text, photographs, digital images or illustrations without HILCO’S prior written consent.
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11.
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DATA PROTECTION
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11.1.
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HILCO collects Personal Data from the Buyer when the Buyer submits a Registration Form to HILCO, or, if a Buyer generally provides Personal Data to HILCO in the course of doing business with HILCO.
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11.2.
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The collection, processing and storage of Personal Data will be dealt with by HILCO in accordance with the Privacy Policy and HILCO’S obligations under the Data Protection Act.
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11.3.
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By submitting a Registration to HILCO the Buyer consents to HILCO collecting, processing and storing the Personal Data contained in such Registration Form for the purposes described in the Privacy Policy.
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12.
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REGISTRATION AND ACCESS TO THE WEBSITES
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12.1.
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While HILCO Endeavour’s to ensure that the Websites are normally available 24 hours a day, HILCO shall not be liable if for any reason the Websites are unavailable at any time or for any period. Access to the Websites may be suspended temporarily and without notice in the case of system failure, maintenance or repair, or for reasons beyond HILCO’S control.
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12.2.
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Each registration by a Buyer as a registered user on the Websites is for a single user only. HILCO does not permit a Buyer to share a user name and password with any other person nor with multiple users on a network.
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12.3.
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Responsibility for the security of any passwords issued rests with the Buyer.
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12.4.
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In consideration of the Buyer’s use of the Websites, the Buyer agrees to maintain the security of the password and identification used to access the user area of the Websites, and the Buyer shall be fully responsible for all use of the Buyer’s account and for any actions that take place using the Buyer’s membership account.
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13.
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FORCE MAJEURE EVENT
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Save for the Buyer’s obligation to make payment under these Terms (which shall not be excused), neither Party shall be liable for any failure or delay in performing its obligations under these Terms to the extent that such failure or delay is caused by a Force Majeure Event.
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14.
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WAIVER
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A waiver (whether express or implied) by one of the Parties of any of the provisions of these Terms or of any breach of or default by any other Party in performing any of those provisions, will not constitute a continuing waiver and that waiver will not prevent the waiving Party from subsequently enforcing any of the provisions of these Terms not waived or from acting on any subsequent breach of or default by any other Party under any of the provisions of these Terms.
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15.
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SEVERABILITY
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The provisions contained in each clause and sub-clause of these Terms is enforceable independently of each of the others and its validity will not be affected if any of the others is invalid. If any of those provisions is void but would be valid if some part of the provision were deleted, the provision in question will apply with such modification as may be necessary to make it valid.
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16.
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WHOLE AGREEMENT
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These Terms (together with any other documents referred to herein and referenced as forming part hereof), contain the whole agreement between the Parties relating to the subject matter contemplated by these Terms.
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17.
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RULES AT AUCTION
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The Auctioneer can at its own discretion:
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17.1.
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Change or withdraw any or all lots.
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17.2.
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Bid for any lot(s) offered for the sale at the Online-Auction on its own account and or on behalf of third parties, including on behalf of the seller.
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17.3.
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Sell lots in combination, subdivide a lot(s) or change lot(s).
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17.4.
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Withdraw any lot(s) if the reserve price, placed on that lot, has not been reached.
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17.5.
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HILCO and or any HILCO related company may act as the seller in any Online Auction.
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17.6.
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Temporarily or permanently stop the Online-Auction.
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17.7.
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Refuse to accept any Bid, including Autobids, for any reason and without any explanation to the bidder.
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18.
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IMPORTANT INFORMATION FOR EXPORT PURCHASERS
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If you are intending purchasing items for export outside the Country where the Items (Equipments/Lots) are located, YOU MUST satisfy all of the following criteria in order for a VAT refund/zero rating to be considered.
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18.1.
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Export Forms:
- The registered purchaser must complete the appropriate form showing the export destination and address.
- The registered Buyer must be the party who is to receive the goods overseas and NOT their agent.
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18.2.
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VAT Deposit:
A deposit equal to the amount of VAT due will be taken and held by HILCO until satisfactory proof of export is received (NO EXCEPTIONS)."
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18.3.
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Time Limit:
Goods must be exported and documentary proof provided within three months from the date of purchase. NO REFUNDS WILL BE GIVEN AFTER THIS PERIOD."
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18.4.
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Proof of Export:
- Bills of Lading / fully completed CMR documents together with a letter of declaration must be forwarded to HILCO within three months of the date of purchase.
- Bills of Lading / fully completed CMR documents must specify the goods with reference to lot numbers and description, and/or the purchase invoice reference number.
- Consignee details on the Bill of Lading must match those of the registered Buyer on our registration form.
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19.
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GOVERNING LAW AND JURISDICTION
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These Terms are governed by and will be construed in accordance with the Laws of the Netherlands. Each Party irrevocably submits to the exclusive jurisdiction of the Courts in the Netherlands for all purposes relating to these Terms.
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20.
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Prevailing Text
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20.1.
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The English text of these general terms and conditions prevails over any translations thereof.
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SALES AGREEMENT AUCTION
This sales agreement (the “Sales Agreement”) shall be concluded after Buyer has won an auction and Seller has accepted the bid thereafter or after 48 hours after the provision of requested documents by Buyer by and between:
AGILA SOUTH INC., a domestic corporation duly organized under and by virtue of the laws of the Republic of the Philippines, with business address Agila Southern Yard, Green Beach 1, Redondo Pen Sitio Agusuhin, Barangay Cawag, Subic Bay Freeport Zone, Zambales Philippines (“Seller”);
- and -
The Buyer as identified through the auction system
WITNESSETH:
WHEREAS:
| A. |
The Seller is the owner of the equipment specifically designated in the Auction documentation and of which Buyer has been awarded the winning bid (“Equipment”). |
| B. |
The Seller desires to assign, transfer, convey and deliver to the Buyer, and the Buyer desires to acquire and accept from the Seller, the Equipment in the manner and subject to the terms and conditions set forth herein. |
| C. |
As of the date of this Sales Agreement, the Buyer intends that the Equipment will be used directly and exclusively in the Buyer’s registered project or activity, as approved by the applicable Government Agency. |
NOW, THEREFORE, in view of the foregoing premises and the mutual covenants and representations contained herein, the parties hereby agree as follows:
ARTICLE I
PURCHASE PRICE
For and in Purchase Price of the amount for which the bid was made, plus Buyer Premium and applicable Taxes (the “Purchase Price”) which shall be due and payable to the Seller in accordance with Schedule 2 hereof, immediately upon receipt by the Seller of the Purchase Price in full, the Seller sells, assigns, transfers, and conveys to the Buyer, and the Buyer acquires from the Seller, all the rights, title, and interests of the Seller to the Equipment, free and clear of Encumbrances.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
Section 1. No Seller Warranties – The Equipment is sold on an “as is, where is” basis. No guarantees and/or warranties are provided by the Seller or its agents in respect of any Equipment.
Section 2. Buyer Warranties – The Buyer hereby represents and warrants to the Seller that:
| (i) |
it has taken all necessary corporate action, and has secured or caused to be secured all necessary Government Approvals to enter into and perform its obligations under this Sales Agreement, where “Government Approvals” means all permits, licenses, agreements, orders, certifications, registrations, filings, authorizations, consents, and all other approvals of, by, and with the Government of the Republic of the Philippines, including any agency, instrumentality, authority or political, economic, administrative or regulatory subdivision thereof, whether national, regional, provincial, municipal, or otherwise; |
| (ii) |
it and its officers, directors, employees, affiliates, brokers or other agents acting or benefiting in any capacity in connection with the transaction contemplated by this Sales Agreement:
| (a) |
is aware of and familiar with the provisions of the U.S. Foreign Corrupt Practices Act, as amended, and its purposes, and any other anti-corruption law applicable in a jurisdiction in which each of them or any party hereto may have conducted, or will conduct, business (hereinafter “Anti-Corruption Laws”), and has not, directly or indirectly, violated any Anti-Corruption Law; |
| (b) |
will transact business on arm’s length terms; |
| (c) |
is not any of the following (each, a “Restricted Person”): (I) a person with whom dealings are prohibited or restricted under any Sanctions; (II) a person that is named as a “specially designated national and blocked person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list, the United Nations Security Council, the European Union, the United Kingdom including without limitation His Majesty’s Treasury, or any other relevant sanctions authority; (III) a person that is owned 50% or more by any person described in (II); (IV) a person that is controlled 50% or more by any person described in (II); (V) any other person with which the Seller is prohibited from dealing under any Sanctions applicable to the Seller; or (VI) a person that derives more than 10% of its annual revenue from investments in or transactions with any person described in (I), (II), (III), (IV) or (V); |
| (d) |
has, not engaged in any activities (I) in breach of Sanctions, or (II), directly or indirectly with or for the benefit of Restricted, in each case, that results in a violation by any party to this Sales Agreement of AML Laws, Sanctions, and Anti-Corruption Laws; and |
| (e) |
has not, is not and, to the extent the relationship is ongoing, will not engage in any activities that may contravene federal, state and international regulations, including but not limited to AML Laws, Sanctions, and Anti-Corruption Laws; |
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| (iii) |
none of the Buyer or any of its officers, directors, employees, affiliates, brokers or other agents acting or benefiting in any capacity in connection with the transaction contemplated by this Sales Agreement:
| (a) |
has made or will make, directly or indirectly, any payment, loan or gift (or any offer, promise or authorization of any such payment, loan or gift), of any money or anything of value to or for the use of any Government Official under circumstances in which any of them knows or has reason to know that all or any portion of such money or thing of value has been or will be offered, given or promised, directly or indirectly, to any Government Official, for the purpose of inducing the Government Official to do any act or make any decision in his or its official capacity (including a decision to fail to perform his or its official function) or use his or its influence with a government or instrumentality thereof in order to affect any act or decision of such government or instrumentality or to assist either party in obtaining or retaining any business; and |
| (b) |
is a Senior Foreign Political Figure or a Politically Exposed Person (collectively, “SFPF/PEP”), or an immediate family member or close associate of a SFPF/PEP; |
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| (iv) |
none of the Purchase Price will be directly or indirectly derived from activities that may contravene federal, state and international regulations, including but not limited to AML Laws, Sanctions, and Anti-Corruption Laws; |
| (v) |
there has been no governmental inquiry or investigation or actual or threatened lawsuit by any person, or any internal investigation, relating to any possible violation of AML Laws, Sanctions and Anti-Corruption Laws by the Buyer and its officers, directors, employees, affiliates, brokers or other agents acting or benefiting in any capacity in connection with the transaction contemplated this Sales Agreement; |
| (vi) |
it will, and shall cause its officers, directors, employees, affiliates, brokers or other agents acting or benefiting in any capacity in connection with the transaction contemplated by this Sales Agreement to:
| (a) |
notify the Seller regarding any and all possible violations of AML Laws, Sanctions and Anti-Corruption Laws, or suspicious activity in connection therewith, and provide as promptly as possible to the Seller all notes, memoranda and reports regarding the investigation of such violations or activity; and |
| (b) |
provide to the Seller on or before the date of this Sales Agreement such materials and information with respect to the Buyer as are reasonably requested by the Seller to satisfy its and its affiliates’ obligations under AML Laws and Sanctions; |
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| (vii) |
it maintains books, records and accounts which, in reasonable detail, accurately and fairly reflect all transactions, assets and liabilities and maintains a system of internal accounting controls that provide reasonable assurance that: (I) its transactions are executed in accordance with management’s authorization, (II) its transactions are recorded as necessary to permit the preparation of financial statements in accordance with applicable internationally recognized accounting policies and to maintain accountability for its assets; (III) access to its assets is permitted only in accordance with management’s authorization; and (IV) it does not maintain any off-the-books accounts or more than one set of books, records or accounts; and |
| (viii) |
it will promptly notify the Seller should there be any changes to the information set forth in the foregoing representations. |
Section 3. Terms and Conditions – The Buyer acknowledges and accepts that the transaction-specific special terms attached as Schedule 3 and the Terms and Conditions attached as Schedule 5 shall apply to this Sales Agreement and all agreements between the Seller and the Buyer from the moment the Buyer accepts a quotation from the Seller.
ARTICLE III
GOVERNING LAW AND DISPUTE RESOLUTION
Section 1. Governing Law – This Sales Agreement shall be governed by and construed in accordance with the laws of the Philippines.
Section 2. Arbitration – Any dispute, controversy or claim arising out of or in connection with this Sales Agreement, including any dispute regarding the existence, validity, formation, effect, interpretation, performance, breach or termination, shall be submitted upon the application of either Party to the Singapore International Arbitration Center (the “SIAC”) and shall be finally settled through arbitration under the Arbitration Rules of the SIAC (the “SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference into this section. The number of arbitrators shall be three (3). Each party shall nominate one (1) arbitrator. The third arbitrator, who shall be the presiding arbitrator, shall be agreed upon by the two arbitrators. In the absence of agreement within twenty-eight (28) days of the appointment of the second arbitrator, the third arbitrator shall be appointed in accordance with the SIAC Rules. The place of arbitration shall be conducted in Singapore. The language to be used in the arbitral proceeding shall be English.
Subject to the SIAC Rules and the limitations on liabilities and the limitation on remedies set forth in this Sales Agreement, the arbitral tribunal shall have the power to grant any legal or equitable remedy or relief available under the applicable laws, including injunctive relief (whether interim and/or final) and specific performance. Any award of the arbitral tribunal shall be final and binding on the Parties and shall be enforceable before any court of competent jurisdiction upon application by a Party. Each Party retains the right to seek interim or provisional measures, including injunctive relief and including pre-arbitral attachments or injunctions, from any court of competent jurisdiction and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
Each Party shall bear the costs of its representation in the arbitral proceedings. The cost of the chairperson and the members of the Tribunal and the costs and expenses to be incurred by the Tribunal in the arbitration proceedings shall be borne in equal parts by the Parties. The Tribunal may, however, in its decision direct that a higher proportion of costs shall be borne by one of the two Parties, and this award shall be binding on the Parties.
Section 3. Pending Resolution. – Pending resolution of any disputes between the Parties, each Party shall continue to perform diligently all of its obligations under this Sales Agreement.
ARTICLE IV
MISCELLANEOUS
Section 1. Confidentiality. – The Parties agree that any exchange of any information or documents between the Parties in connection with this Sales Agreement shall be treated with strict confidentiality and no such information or documents shall be disseminated to any party without the prior written consent of the other Party, unless such information is:
| (i) |
disclosed by a Party to those of its affiliates and its and its affiliates’ representatives and professional advisors who need to be aware of the provisions of this Sales Agreement to evaluate or facilitate the consummation of the transactions contemplated herein, provided that the Party relying on this exception shall be responsible for the failure by any such person to whom disclosure is to be made to maintain the confidentiality of this Sales Agreement and the fact of its existence; |
| (ii) |
disclosed on a confidential basis to its or its affiliates’ actual or prospective co-investors, limited partners, or lenders or potential lenders and financiers and their respective professional advisers, in each case who need to be aware of the provisions of this Sales Agreement to evaluate or facilitate the consummation of the transactions and who are bound by obligations of confidentiality;
provided, that for both items (i) and (ii), other than with respect to (x) legal advisors or other professionals that are bound by professional or statutory duty of confidentiality or any actual, or (y) any proposed lender or financier of the Buyer in connection with the subject matter of this Sales Agreement, such representatives, professional advisers, co-investors, and partners to whom confidential information is disclosed shall be required to execute confidentiality agreements imposing on them the confidentiality obligations prescribed under this Section; and provided, further, that such representatives, professional advisers, co-investors, partners, and lenders or financiers shall not authorize any further disclosure of any information or documents between the Parties in connection with this Sales Agreement; or |
| (iii) |
required to be divulged or produced by any law, court order, or other competent authority. |
Section 2. Severability. – In the event any portion of this Sales Agreement shall be declared invalid or unenforceable by the court/s or otherwise rendered ineffective, the rest of the provisions hereof which can still stand and give efficacy hereto shall not be affected thereby. The Parties shall promptly and in good faith discuss and agree on any alternative provisions which will achieve the same end as the provision declared invalid, unenforceable, or ineffective.
Section 3. Taxes. – Any and all income tax on gain realized from the sale shall be for the account of the Seller. The Buyer shall not withhold any amount from the Purchase Price. Any applicable value added tax, documentary stamp tax, or local transfer tax, and any applicable SBMA fees on the transfer of the assets shall be for the account of the Buyer.
Section 4. Costs – The Parties agree that all costs, expenses and logistics to dismantle and transport the Equipment from the Seller’s premises to the location specified by the Buyer shall be the sole cost of the Buyer.
Section 5. Counterparts. – This Sales Agreement may be executed in counterparts, all of which taken together shall constitute one and the same agreement.
Section 6. Further Acts. – Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments, and documents, as the other party may reasonably request to carry out the intent and accomplish the purposes of this Sales Agreement, and any related agreement and the consummation of the transactions contemplated thereby and hereby.
Section 7. Defined Terms. – Unless otherwise provided herein, the following terms shall have the following meanings assigned to them:
“AML Laws” means all applicable laws, judgments, orders, directives, case law or treaties concerning or related to terrorism financing or money laundering, including the Bank Secrecy Act, 31 U.S.C. §§ 5311 et seq., as amended by the USA PATRIOT Act, and its implementing regulations, the Money Laundering Control Act, 18 U.S.C. §§ 1956 and 1957, and any related or similar rules, regulations or guidelines, which in each case are issued, administered or enforced by any relevant Governmental Authority, including those of the Philippines, United Kingdom and the Netherlands.
“Encumbrance” means any lien (statutory or otherwise), security interest, mortgage, deed of trust, option, pledge, hypothecation, preference, priority, charge, attachment or similar encumbrance of any kind or nature whatsoever, right of first refusal, pre-emption, conversion, put or call or restriction on transfer.
“Government Official” is (a) an officer, employee or any person acting in an official capacity for or on behalf of a government, including its departments, agencies, instrumentalities, quasi- or partially-government owned or controlled entities; (b) an officer or employee of an international organization (e.g., World Bank, United Nations); (c) an officer or employee of a political party or any party official, or a candidate for political office; (d) a member of the royal or ruling family of a country; or (e) any individual who is a principal or senior manager of, or who has an immediate family or close personal relationship or business ties with, any of the foregoing individuals or entities.
“Politically Exposed Person” means an individual that holds a prominent public position or function.
“Sanctions” means sanctions administered or enforced by the United States, including without limitation the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) and the U.S. Department of State, the United Nations Security Council, the European Union, the United Kingdom including without limitation His Majesty’s Treasury, or any other relevant sanctions authority.
“SBMA” means the Subic Bay Metropolitan Authority.
“Senior Foreign Political Figure” means (a) a senior official in the executive, legislative, administrative, military, or judicial branches of a non-U.S. government (whether elected or not), (b) a senior official of a major non-U.S. political party, (c) a senior executive of a non-U.S. government-owned corporation, or (d) any corporation, business, or other entity that has been formed by, or for the benefit of, any Person described in clauses (a), (b), or (c) of this definition.
SCHEDULE 2
Purchase Price Payment Terms
| i. |
Down Payment required for Buyers who have not yet completed all KYC checks and provided all necessary documents; insert amount of Down Payment (ie, 10% of the Purchase Price); Down Payment due on signing and before further KYC checks are completed. |
| ii. |
all Sold Assets shall be paid in full by the Buyer within five (5) Business Days after the Auction Sale and in any event, before any part of the Asset leaves the Location. |
SCHEDULE 3
Special Terms
[insert any special dismantling or other commercial terms below that deviate from the standard terms and conditions in Schedule 5]
SCHEDULE 4
KYC Procedures
- Agila requests basic information of each bidder prior to the Auction
- The winning bidder may be requested to provide the following information:
| o |
For private individual buyers:
- Identification document with photo
- Utility bill with the name and address of the individual
- A bank statement of an Agila approved bank
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For corporations
- company registration filed at SEC (or equivalent document)
- Passport of authorized representing officer (or online certification)
- List/Register of Members/Shareholders with ownership percentages identifying individuals who own 25% or more of the entity
- Confirmation payment shall be made from an Agila approved bank.
- In case of hits or adverse findings, further government photo ID and utility bill of the identified individuals who own 25% or more
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SCHEDULE 5
Terms and Conditions
The following terms and conditions (“Terms”) are the terms on which Seller sells the Equipment for its own account. These Terms apply to all agreements between Seller and Buyer from the moment a Buyer accepts an quotation from Seller.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 6 AND THE BUYER SHOULD NOTE THAT:
• ALL EQUIPMENT IS SOLD ‘AS IS, WHERE IS’ (WITH ALL FAULTS, IMPERFECTIONS AND DEFECTS)
• NO GUARANTEES AND/OR WARRANTIES ARE PROVIDED BY HILCO OR SELLER IN RESPECT OF ANY EQUIPMENT
• IT IS THE BUYER’S RESPONSIBILITY TO INSPECT EQUIPMENT PRIOR TO BIDDING ON SUCH EQUIPMENT OR MAKING AN QUOTATION IN RESPECT OF SUCH EQUIPMENT
• ALL SALES ARE FINAL – NO EXCEPTIONS
• AN AGREEMENT BETWEEN THE PARTIES IS NOT FORMED BY ACCEPTANCE OF A QUOTATION BY BUYER BUT BY CONFIRMATION OF THE FORMATION OF A SALES AGREEMENT BY SELLER AFTER ACCEPTANCE BY BUYER
• BUYER WILL BE REQUIRED TO PROVIDE STANDARD KYC DOCUMENTATION AND MUST MAKE A DOWN PAYMENT PRIOR TO FINALIZATION OF THE SALE; IF KYC DOCUMENTS ARE NOT PROVIDED, THE DOWN PAYMENT MAY BE FORFEITED
1. DEFINITIONS AND INTERPRETATION
1.1. The following words and phrases used in these Terms shall have the following meaning:
1.1.1. “Advertising Material” means any and all information provisioning to potential buyers in electronic and/or printed format used by the Seller or its agents to market and promote the sale of goods;
1.1.1. “Auction Terms” means the terms and conditions of an auction, as notified to the Buyer prior to the auction;
1.1.2. “Buyer” means the person indicated as such in the Sales Agreement who is purchasing the Equipment from the Seller;
1.1.3. “Collection Location” means the location indicated as such in the Sales Agreement at which the Equipment must be collected by Buyer;
1.1.4. “Collection Party” means the party indicated as such in the Sales Agreement which must be connected by Buyer to collect Equipment and which party shall facilitate collection of Equipment by Buyer;
1.1.5. “Data Protection “ means the GDPR and other privacy regulations applicable to the Sales Agreement;
1.1.6. “Equipment” means the assets the Buyer buys from the Seller under the Sales Agreement;
1.1.7. “EU” means the European Union;
1.1.8. “Force Majeure Event” means any event beyond a Party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable and which has led to default in the performance by a Party of its obligations under these Terms to the extent the Party in default could not have reasonably avoided the default;
1.1.9. “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
1.1.10. “KYC Procedures” means the KYC procedures documented in Schedule 4 of the Sales Agreement;
1.1.11. “Parties” means the Seller and the Buyer collectively and “Party” shall mean any one of them as determined by the context;
1.1.12. “Personal Data” has the meaning as it has in the GDPR;
1.1.13. “Project” means a collection of assets that are being sold by Seller to Buyers as one sales activity under the same Sale Specific Terms;
1.1.14. “Purchase Price” means the amount payable by the Buyer to the Seller in respect of the sale and purchase of the Equipment;
1.1.15. “Sale Specific Terms” means terms in a Sales Agreement that explicitly deviate from these Terms;
1.1.16. “Sales Agreement” means the document specifying what is bought and sold between Seller and Buyer with all specifics concerning the transaction to which these Terms apply and that forms the Sales Agreement together with these Terms;
1.1.17. “Third Party” means any person or entity other than the Parties;
1.1.18. “VAT” means the applicable value added tax or applicable equivalents or applicable sales taxes; and
1.1.19. “Seller” means the seller of the Equipment, indicated as ‘Seller’ in the Sales Agreement.
1.2. The headings used in these Terms have been inserted for convenience only and shall not affect its construction or interpretation.
1.3. Words importing the singular include the plural and vice versa.
1.4. Words importing a gender shall include all genders.
1.5. Reference to any statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under them as from time to time amended, consolidated or re-enacted.
2. STATEMENTS RELATING TO THE EQUIPMENT
2.1. Statements relating to the Equipment contained on the Advertising Material (such as statements relating to description, quality and condition) should not be relied upon or construed as being representations or warranties.
2.2. It is the Buyer’s responsibility to inspect the Equipment and to satisfy itself on all matters affecting the Equipment, including the condition and description of the Equipment, its fitness and suitability for any particular purpose prior to entering into any purchase transaction concerning the Equipment.
3. FORMATION OF SALES AGREEMENT
3.1.1. If the Sales Agreement is being formed as part of an auction process, the Auction Terms define how and when the Sales Agreement is being formed.
3.1.2. The formation of the Sales Agreement other than through an auction process does NOT take place through acceptance of an quotation from Seller by Buyer. Sales Agreements are formed only after explicit confirmation of formation of the Sales Agreement by Seller based on the acceptance of the quotation by Buyer. If Seller does not confirm formation of the Sales Agreement within 10 days after the Buyer accepted an quotation from Seller, Buyer shall be at liberty to withdraw the acceptance of the quotation. Buyer cannot withdraw the acceptance within the first ten days after the acceptance.
4. RISK AND TITLE
4.1. In case the sale is formed through an Auction, the transfer of risk and respectively ownership in and to Equipment bought by the Buyer shall pass to the Buyer in accordance with the Auction Terms.
4.2. The risk in and to Equipment bought by the Buyer other than through an auction shall pass to the Buyer on the date of formation of the Sales Agreement, but the legal and beneficial title in and to such Equipment shall remain with Seller until the payment receipt of the full Purchase Price (together with any VAT and any other applicable tax) by the Seller.
5. PURCHASE PRICE, PAYMENT TERMS AND VAT (AND OTHER TAXES)
5.1. The Purchase Price does not include VAT. Any VAT relating to a sale shall be payable at the current rate(s) as per the applicable law.
5.2. Time for payment shall be of the essence. Before final checks are completed by the Seller pursuant to the KYC Procedures, the Buyer the must make a down payment equal to 10% of the Purchase Price (the “Down Payment”). If the Buyer does not provide to the Seller the required documentation pursuant to the KYC Procedures, the Down Payment will be forfeited and the Sales Agreement between the Seller and Buyer for the Equipment terminated.
5.3. Any Equipment in respect of which full payment (in cleared funds) has not been received by the Seller within ten (10) days after the date of formation of the Sales Agreement (or any other term if specified in the Sales Agreement or is agreed in writing with the Collection Party) shall permanently remain property of Seller and Seller shall no longer have any obligation to deliver such Equipment to Buyer. The Buyer shall still have the payment obligation from the Sales Agreement for the Equipment concerned. The Buyer shall be liable for the administrative and other costs of Seller for arranging for the resale and/or scrapping of such Items of Equipment.
5.4. The Buyer shall make all payments due under these Terms in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
5.5. If the Buyer fails to pay an agreed sum to the Seller, the Buyer shall be liable to pay interest to the Seller on such sum from the due date for payment at the maximum allowable rate for trade transactions, accruing on a daily basis until payment is made, whether before or after any judgment.
6. EXCLUSION OF WARRANTY AND OF LIABILITY
6.1. International Statutory Compliance Exclusion
6.1.1. It is expressly brought to the Buyer’s attention that, at the time of sale, any Equipment (i) may not comply with the health and safety laws and/or any other acts, regulations or directives in relevant jurisdictions; (ii) may contain blue or white asbestos, hazardous substances, dangerous chemicals etc. which, if not handled correctly during their removal from a site, could be in breach of the relevant health and safety laws for use of such substances in a working environment in any relevant jurisdiction (iii) may not be approved for the intended use in certain jurisdictions.
6.1.2. The Buyer undertakes to (i) remove, ship and use any Equipment in a way that does not contravene any relevant applicable legislation of any related jurisdiction and in full compliance with all applicable laws and in particular with applicable health and safety standards and regulations; (ii) comply with all current applicable legislations in any relevant jurisdiction and reasonable instructions by the Seller in relation to the removal/disposal of waste including hazardous waste.
6.1.3. Buyer agrees to comply with all applicable export or import control, related laws and regulations and not to violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. Buyer acknowledges that the Seller is not the exporter of any Equipment unless expressly stated in the Sales Agreement. Seller gives no representation or warranty concerning (and has not conducted any investigation to ascertain) items of which the export is restricted under applicable law. The Seller reserves the right to cancel or rescind any sale at any time if Seller determines (in its absolute discretion) that the sale does or may violate applicable export or import controls or related laws and regulations.
6.1.4. Equipment may require software in order to operate it. Seller disclaims any and all responsibility for the existence, transferability and the sufficiency of any software licenses required for the use of the Equipment. It is the sole responsibility of Buyer to validate the existence, transferability and sufficiency of any software licenses required for the use of the equipment and to acquire any required software licenses from a licensor in case licenses are not transferrable, absent or insufficient for the intended use of the Equipment.
6.2. Buyers Responsibilities and Conduct
The Buyer will be responsible for all damage that it, its carriers or its agents may do to the property of any third party (and, in particular, to the Seller’s premises) in removing the Equipment it has purchased. Should the Seller consider such damage likely to occur, Seller may require the Buyer to deposit a sum of money with the Seller or Seller by way of security for the costs of reinstating that part or the premises likely to be damaged by the removal of the Equipment. If such sum is not deposited, the Seller may refuse the Buyer access to the Collection Location for the purpose of collecting all or any of the Equipment Buyer has purchased, or rescind the sale of such Equipment.
6.3. Transfer of Risk
Upon formation of the Sales Agreement the Buyer shall assume all risks in and relating to the Equipment. The Buyer is advised to effect any insurance it may consider necessary. The duty of the Seller to make Equipment available shall be deemed performed upon formation of the Sales Agreement by Seller even if Equipment is subsequently damaged and/or part thereof has been lost.
6.4. Property and title in the Equipment shall not pass to the Buyer until full payment therefore has been received by the Seller and the Equipment has been collected by or on behalf of Buyer in its entirety.
6.5. AS IS / WHERE IS
All Equipment is sold “AS IS, WHERE IS, WITH ALL FAULTS, IMPERFECTIONS, DEFECTS AND WITHOUT RECOURSE”. Illustrations, pictures or videos in any Advertising Materials are for the convenience of the Buyers only and cannot be relied upon for any warranty. The Buyer should satisfy himself prior to the sale as to the condition of the goods and should rely on its own judgment as to whether the goods accord with Buyer’s expectations.
6.6. EXCLUSION OF LIABILITY
Seller shall not, nor shall its agents, be liable for damages of Buyer unless – and only to the extent – exclusion or limitation of liability is not permitted under applicable law. This exclusion/limitation of liability is irrespective of the type of action of Buyer against Seller or any of its agents – such as claims for breach of contract, tort, product liability or any other courses of action.
7. REMOVAL OF EQUIPMENT
7.1. It is the Buyer’s responsibility to collect or to arrange for the collection of Equipment bought (at the Buyer’s cost) at the Collection Location.
7.2. The Buyer should contact the Collection Party as provided in the Sales Agreement to arrange for the collection of Equipment.
7.3. Seller shall only release Equipment for collection by a Collection Party, a Buyer or its duly authorized representative once such Equipment has been paid for in full and the Seller has received such payment in cleared funds.
7.4. Unless stated otherwise in the Sales Agreement ,the Buyer must make payment of the Purchase Price immediately on receipt of the Seller’s invoice.
7.5. Unless stated otherwise in the Sales Agreement, the Buyer shall collect or arrange for the collection of the Equipment purchased within ten (10) days after the date of formation of the Sales Agreement. The Buyer agrees to advise the Collection Party of the intended date for collection and method of collection and transport prior to collecting the Equipment.
7.6. The dismantling and removal of Equipment by the Buyer shall comply with all applicable laws – and in particular health and safety laws – of the relevant jurisdictions and with all collection site specific safety policies and procedures (if any). After the dismantling and removal, the Buyer shall ensure that the site where the Equipment is located is left clean and in the state it was in prior to the dismantling and removal of the Equipment by the Buyer.
7.7. Certain types of Equipment may contain hazardous materials (such as chemicals) and, on his own account, the Buyer must ensure that the removal of such hazardous materials is carried out in accordance with the health and safety laws applicable in the country where the Equipment is located and any other relevant legislation and/or regulations dealing with the removal and handling of such hazardous materials.
7.8. In all cases that Buyer finds hazardous materials that were not announced in the sales documentation the Buyer shall be obliged to immediately inform Seller of such an occasion and provide assistance to the Seller to exercise oversight of the removal activities of such materials by (or on behalf of) Buyer.
7.9. The Buyer shall indemnify and shall keep Seller and any of its representatives and/or agents indemnified against all liabilities, damages, costs and expenses arising from or in the course of the removal of the Equipment.
7.10. The Sales Agreement may contain specific responsibility assignments which shall be binding upon the Parties.
8. FORCE MAJEURE EVENT
Save for the Buyer’s obligation to make payment under these Terms (which shall not be excused), neither Party shall be liable for any failure or delay in performing its obligations under these Terms to the extent that such failure or delay is caused by a Force Majeure Event.
9. WAIVER
A waiver (whether express or implied) (i) by one of the Parties of any of the provisions of the Sales Agreement or (ii) of any breach of or default by any other Party in performing any of the provisions of the Sales Agreement, will not constitute a continuing waiver and that waiver will not prevent the waiving Party from subsequently enforcing any of the provisions of the Sales Agreement not waived or from acting on any subsequent breach of or default by any other Party under any of the provisions of the Sales Agreement.
10. WHOLE AGREEMENT
The Sales Agreement (together with any other documents referred to therein and referenced as forming part thereof), contains the whole agreement between the Parties relating to the sale of Equipment. No other materials may be relied upon in the interpretation of this Sales Agreement. In particular the Advertising Materials or other information not contained explicitly in this Sales Agreement must not be used for interpretation of the Sales Agreement. Changes to the Sales Agreement must be in writing and executed at the same authorization level as the original Sales Agreement.
11. ORDER OF PREVALENCE
In case a Sales Agreement contains multiple language versions of (parts of) it the English version shall be leading for the interpretation of the Sales Agreement. In case any provision within the Sales Agreement conflict with other provisions in these Terms, the provisions from the Sales Agreement shall prevail, then these Terms shall prevail and then the schedules to the Sales Agreement shall apply.
