• EQUIPMENT IS SOLD ‘AS IS, WHERE IS’, WITH ALL FAULTS, IMPERFECTIONS, DEFECTS AND WITHOUT RECOURSE
• 10% BUYERS PREMIUM IS ADDED TO THE BID*
• VAT of 12% MAY BE APPLICABLE
• ALL BIDS ARE SUBJECT TO AWARDING

 

* A buyer's premium is an additional fee or percentage that is charged to the winning bidder on top of the final hammer price (the winning bid amount) for the item that has been successfully purchased. For example, if a winning bid is $1,000 with a 10% buyer's premium, the total cost for the winning bidder would be $1,100 ($1,000 hammer price + $100 buyer's premium).

 

AUCTION TERMS

This sales agreement (the “Sales Agreement”) shall be concluded after Buyer has won an auction and Seller has accepted the bid by awarding thereafter or after 72 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”);

 

Or

 

AGILA NY NAVAL INC., a domestic corporation duly organized under and by virtue of the laws of the Republic of the Philippines, with business address Agila Northern 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:

 

• 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”).
• 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.
• 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:

 

1. 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;
2. 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:
   1. 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;
   2. will transact business on arm’s length terms;
   3. 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);
   4. 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
   5. 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;
3. 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:
   1. 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
   2. 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;
4. 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;
5. 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;
6. 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:
   1. 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
   2. 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;
7. 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
8. 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:

 

1. 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;
2. 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

3. 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

 

1. 1. 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.
   2. 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

 

These are Sale Specific Terms, as mentioned in article 1.1.15 of the general Terms in Schedule 5.

 

• All bids are made in US Dollars
• All bids in the auction are subject to awarding by the seller.
• Awarding will take place within 72 hrs after closing of the auction.
• All items have to be picked up by appointment.
• Seller has the right to appoint preferred suppliers for certain activities on the yard (Like dismantling and loading)
• Seller has the right to oblige Buyer to use the services of preferred supplier(s).
• Seller has the right to set an ultimate removal date for items.
• Buyer has the obligation to remove their items before this ultimate removal date.

 

 

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:
  • For private individual buyers:
    • Identification document with photo
    • A Utility bill with the name and address of the individual
    • A bank statement of an Agila approved bank
  • 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

 

 

 

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. The following words and phrases used in these Terms shall have the following meaning:
      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;
      2. “Buyer” means the person indicated as such in the Sales Agreement who is purchasing the Equipment from the Seller;
      3. “Collection Location” means the location indicated as such in the Sales Agreement at which the Equipment must be collected by Buyer;
      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;                 
      5. “Data Protection “ means the GDPR and other privacy regulations applicable to the Sales Agreement;
      6. “Equipment” means the assets the Buyer buys from the Seller under the Sales Agreement;
      7. “EU” means the European Union;
      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;
      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;          
      10. “KYC Procedures” means the KYC procedures documented in Schedule 4 of the Sales Agreement;
      11. “Parties” means the Seller and the Buyer collectively and “Party” shall mean any one of them as determined by the context;
      12. “Personal Data” has the meaning as it has in the GDPR;
      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;
      14. “Purchase Price” means the amount payable by the Buyer to the Seller in respect of the sale and purchase of the Equipment;
      15. “Sale Specific Terms” means terms in a Sales Agreement that explicitly deviate from these Terms;
      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;
      17. “Third Party” means any person or entity other than the Parties;
      18. “VAT” means the applicable value added tax or applicable equivalents or applicable sales taxes; and
      19. “Seller” means the seller of the Equipment, indicated as ‘Seller’ in the Sales Agreement.
   2. The headings used in these Terms have been inserted for convenience only and shall not affect its construction or interpretation.
   3. Words importing the singular include the plural and vice versa.
   4. Words importing a gender shall include all genders.
   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
   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. 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
   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. 
      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
   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.
   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)
   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.
   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.
   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.
   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. 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
   1. International Statutory Compliance Exclusion
      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.
      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.
      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.
      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.
   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.
   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.
   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.
   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
   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.
   2. The Buyer should contact the Collection Party as provided in the Sales Agreement to arrange for the collection of Equipment.
   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.
   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. 
   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.
   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. 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.
   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.
   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.
   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.