General Terms
Context:
MachinePlatform B.V. provides its customers with the Internet Portal MachinePlatform.com which matches supply and demand for secondhand equipment.


A. General Terms


1. MachinePlatform.
MachinePlatform offers an Internet marketplace ("online") consisting primarily of a database, a website and various data processing systems (hereinafter referred to as the "MachinePlatform Platform") through which used machinery, equipment and other surplus assets and remaining stock (hereinafter referred to as "Objects") can be marketed. Furthermore, MachinePlatform offers its customers support in marketing Objects via the website (“online”) and other brokerage and procurement services outside the MachinePlatform Platform ("offline"). 


2. Scope
These MachinePlatform-Conditions shall apply for the supply of all products and services of any kind provided by MachinePlatform to its customers ("Customers") online (summarily referred to as "Online Services") and offline (summarily referred to as "Offline Services"; Online Services and Offline Services summarily also referred to as "MachinePlatform Services"). If MachinePlatform and the Customer have entered into one or several contracts (hereafter referred to as "Contract"), these MachinePlatform-Conditions shall be an integral part of such Contract and apply except if and to the extent that the Contract provides otherwise. 


3. Dual Brokerage
MachinePlatform will usually render MachinePlatform-Services simultaneously for both contractual partners of a transaction. The MachinePlatform-Services are usually to be remunerated by both contractual partners of a transaction. 


4. Contract
MachinePlatform usually renders it’s Serves for both contractual partners. MachinePlatform enters into a contract with these contractual partners, which are defined as a buyer or a seller. 


4.1 Contract with Buyer
All offers (quotes) provided by MachinePlatform are subject to prior sales. Upon receipt of a returned signed order confirmation of Buyer by MachinePlatform within the specified tem via facsimile, parties are considered to have entered into a contract. After which the Buyer is obligated to the conditions of the order confirmation and is obligated to purchase the machinery and fulfill the terms of payment (according to article 6 of the general terms). Buyer is in breach of Contract, whenever Buyer does not fulfill one or more terms of the agreement. If Buyer fails to fulfil any of its obligations, all reasonable costs incurred out of court in order to secure payment will be borne by Buyer. Buyer will in any event owe an amount equal to 15% of the total amount due, to a minimum of € 500. If MachinePlatform proves that it has incurred a higher amount of reasonably necessary costs, these costs will also qualify for compensation. The above mentioned is without prejudice to MachinePlatform’s right to claim for the actual damage. Buyer will owe MachinePlatform all judicial costs incurred by MachinePlatform, unless these are unreasonably high. 


4.2 Contract with Seller
If MachinePlatform has not declined, the Seller’s request to offer it’s equipment for sale on the MachinePlatform.com Portal, via email, parties are considered to have entered into a Contract. Seller is obligated to hold the equipment available for sale and delivery, at the specified remuneration, as offered on MachinePlatform.com. In principle Seller can independently remove offered equipment, except for the event an order confirmation has been send out with regard to the offered equipment. During the period in which the order confirmation is valid, Seller is obligated to keep the equipment available for sale. MachinePlatform will inform Seller when MachinePlatform has provided an order confirmation for equipment of Seller via email. Removal of equipment, not subject to aforesaid situation, ends the Contract between Seller and MachinePlatform. Seller is in breach of Contract in the event Seller de facto is unable to deliver the offered equipment against indicated price, when it is obligated to do so as set out in the above. If Seller fails to fulfil any of its obligations as set out, all reasonable costs incurred out of court in order to secure payment will be borne by Buyer. Seller will in any event owe an amount equal to 17.5% of the total amount due, to a minimum of € 500. If Machine-Platform proves that it has incurred a higher amount of reasonably necessary costs, these costs will also qualify for compensation. The above mentioned is without prejudice to MachinePlatform’s right to claim for the actual damage. Seller will owe MachinePlatform all judicial costs incurred by MachinePlatform, unless these are unreasonably high. 


5. MachinePlatform-Compensation
MachinePlatform Pricelist, Reimbursement of Expenses. 
MachinePlatform shall be entitled to compensation ("MachinePlatform-Compensation") for the MachinePlatform-Services in accordance with the Contract. For certain Online Services the pricelist published on the MachinePlatform Platform at the time the Contract is made ("MachinePlatform Pricelist") shall apply. MachinePlatform shall retain the right to change the MachinePlatform Pricelist at any time. Existing Contracts (in as far as these are binding) shall remain unaffected. The relevant MachinePlatform Pricelist shall be an integral part of these MachinePlatform-Conditions. MachinePlatform shall have a right to reimbursement of damages if the Customer breaks a Contract (as defined in clause 4 of the general terms) or withdraws Objects while a quote is pending. Clause 9 and further claims of MachinePlatform to reimbursement of expenses shall remain unaffected. 


6. Terms of Payments
All invoices shall be paid by the Customer immediately upon receipt without any deduction. In the event that the Customer fails to make the payment within fourteen days from the date of receipt of the invoice, it shall be deemed to be in default whether or not MachinePlatform has reminded the Customer of its payment obligation. 


7. Value Added Tax shall not be deemed included in the prices quoted by MachinePlatform. If applicable, it will be shown separately in the invoice at the rate prevailing on the date of the invoice. 


8. The Customer shall not be entitled to set off any of its claims against claims of MachinePlatform, or to avail itself of a right of retention under civil or commercial law, except where the Customer's claims are undisputed or have been confirmed by a non-appealable court judgment. 


9. Term, Termination
Seller shall be entitled to terminate the Contract observing the conditions as set forth in article 4. Declarations of intent made as well as existing claims to MachinePlatform-Compensation shall remain unaffected. A notice of termination shall only be valid if it is in writing. 


10. Confidentiality
The Customer shall keep strictly confidential all business and technical information it receives from MachinePlatform, in particular other customer's personal data and all information regarding Objects insofar and as long as these are not generally known (without the Customer having been responsible for their becoming known), also beyond the term of the Contract, and shall refrain from using such information, copying it or making it accessible to third parties for any purpose other than under the Contract. This shall apply also with respect to information received by the Customer during on-site visits, as well as all technical documentation, cost estimates, drawings and calculations given to the Customer within the bounds of negotiations and the fulfillment of the Contract. All property, ownership, copyright and other rights to such documentation are reserved. In the event that the Customer uses such documentation without authorization, MachinePlatform shall (in its own name or, as the case may be, in the name of the owner) be entitled to demand that the documentation concerned be delivered to it immediately. 


11. Customer’s Warranties, Indemnification
The Customer represents, warrants and guarantees that it will fully comply with all laws and regulations which may apply to its business, in particular with the terms of all regulatory, competition and data protection laws, and that the offers for sales and purchases submitted by it will not violate any laws or third party rights, in particular title, pledge or other property rights or patents, trademarks, copyrights or other intellectual property rights. In particular, the Customer shall refrain from offering any Objects which violate the criminal laws of Netherlands or other countries, which are not permitted to be sold or which require official approval, especially weapons of any kind. The Customer shall hold MachinePlatform harmless from any third party claims which may be based on a violation of this Clause. 


12. Liability
MachinePlatform shall be liable in damages only to the extent that the damage was caused by gross negligence or willful misconduct imputable to MachinePlatform. In the event of bodily injury or damage to the health of a person, MachinePlatform shall be liable also for slight negligence. In the event of a violation of a fundamental duty under the Contract, MachinePlatform shall be liable also for slight negligence but its liability shall be limited to such damage as MachinePlatform could have reasonably foreseen at the time of signing of the Contract. 


13. No Party
Declarations of intent and other legally relevant statements or acts which MachinePlatform publishes at the Customer’s request or which are delivered to another customer or are received from another customer shall deemed to be declarations, statements or acts of the Customer (or other customer) concerned itself, which are delivered by MachinePlatform as messenger. MachinePlatform itself shall be neither entitled nor obliged by such declarations, statements or acts and shall also not be representative in another’s name. MachinePlatform shall assume no responsibility for deliveries or acceptance of Objects or other articles or for payment of considerations. 


14. No liability for misuse or creditworthiness
MachinePlatform cannot ensure that the person which may be named as Seller or Buyer in a declaration of intent received or delivered by MachinePlatform actually exists. The Customer submitting or accepting an offer therefore acts at its own risk with regard to the existence of the contract partner and with regard to the creditworthiness of the respective other party. In addition, MachinePlatform will not be able to prevent that a Usernamer, a password or a URL is obtained by a person not entitled to submit declarations of intent. This risk shall also be borne by the Customer. Any statutory liability which MachinePlatform might otherwise incur as a messenger without messenger authorization shall be excluded. Clause 12 shall remain unaffected. 


15. No Hire
The Customer shall refrain from actively hiring away MachinePlatform employees and/or other customers. 


16. No Other Conditions
MachinePlatform hereby objects to the Customer’s general conditions except if and to the extent that they have been explicitly accepted in writing. Any such acceptance shall apply only to the transaction at issue, and in particular not to any past or future Online or Offline Services. 


17. Amendments of these MachinePlatform-Conditions
MachinePlatform shall be entitled to amend these MachinePlatform-Conditions with proactive effect observing a notice period of one month. 


18. Changes to Services
MachinePlatform shall be entitled to change the Online or Offline Services offered by it at any time. Claims due under existing Contracts shall remain unaffected. 


19. Reference
MachinePlatform shall be entitled to refer to the cooperation with the Customer for marketing purposes, as long as the individual materials naming the Customer are first presented to the Customer for review. 


20. Subcontractors
MachinePlatform shall be entitled to employ subcontractors for all Online or Offline Services; MachinePlatform’ liability vis-à-vis the Customer pursuant to clause 12 shall remain unaffected. If and to the extent that the choice of the subcontractor is relevant for the Customer under regulatory or data protection law, its prior approval shall be required, but may be denied for cause only. 


21. Declarations
All declarations and notifications pursuant to these MachinePlatform-Conditions shall be valid only if they are in writing. This written form requirement shall also be deemed fulfilled if the declaration is given on the MachinePlatform platform using the masks offered or by email. 


22. Assignment
The Customer shall only be entitled to assign rights out of or in connection with the Contract – except for payment claims - with MachinePlatform’ prior approval. 


23. Severability
Should any individual provision of the Contract be or become wholly or partially invalid, or should there prove to be an omission, this shall not affect the validity of the remaining provisions of the Contract. In the place of the invalid provision, a valid provision shall be deemed agreed which corresponds to the purpose and meaning of the invalid one. In the event of an omission, a provision shall be deemed agreed which corresponds, on the basis of the purpose and meaning of the Contract, to what the parties would have agreed, had the parties considered the matter at the outset. This shall also apply if the invalidity of the provision results from a measure of performance or time set as a standard in the Contract; in such cases, a legally valid measure of performance or time which comes as close as possible to that originally agreed shall be deemed agreed instead. 


24. Governing Law
The contractual relations between MachinePlatform and the Customer shall be governed exclusively by the laws of Kingdom of the Netherlands to the exclusion of the rules on conflicts of law and to the exclusion of the United Nations Convention on the International Sale of Goods. 


25. Jurisdiction
All disputes arising under or in connection with the Contract or these MachinePlatform-Conditions shall be submitted exclusively to the courts of Rotterdam. MachinePlatform shall also be entitled, at its discretion, to take legal action against the Customer in the courts having jurisdiction over the Customer. 


B. The following conditions shall be valid for Brokerage Agreements. In addition, they shall be supplemented by the terms of Part A:


B.1 General Conditions for Brokerage Agreements (Online and Offline)


26. MachinePlatform-Compensation, Successive Transactions
In consideration for procuring the sale or purchase of an Object, MachinePlatform shall have a claim to MachinePlatform-Compensation as mentioned in the MachinePlatform Pricelist as per the MachinePlatform Pricelist. MachinePlatform shall have a corresponding claim to MachinePlatform-Compensation. Clause 10 shall remain unaffected. MachinePlatform shall have a right to reimbursement of its expenses breaks a Contract (as defined in clause 4 of the general terms) or withdraws Objects while a quote is pending. Clause 9 and further claims of MachinePlatform to reimbursement of expenses shall remain unaffected. 


27. Exclusivity
Should an interested party, which became aware of the object through MachinePlatform, contact the Customer directly with the intention of negotiating the purchase or sale of an Object, the Customer shall inform such party that it (as Seller) has commissioned the sale through MachinePlatform. The Customer shall inform MachinePlatform of any such contact. 


28. No liability, descriptions, inspection
The Objects are, in most cases, used or not newly produced. Descriptions on the MachinePlatform Platform, in particular details regarding source, condition, age and authenticity of an individual Object, shall be provided according to best knowledge. However, no liability for their correctness shall be assumed. The descriptions shall in particular not be deemed to constitute specifications or guaranteed characteristics. Pictures may deviate from the original. Additional information not contained in the catalogue or the MachinePlatform Platform may be available at the location of the Object. Every Customer shall be required to inspect the Objects, to the extent possible. Appointments for inspections shall be arranged with MachinePlatform. MachinePlatform shall be entitled to exclude an Object at any time, if in MachinePlatform' discretion the Seller's declarations appear incorrect, in particular if they do not correspond to the actual condition of the Object; MachinePlatform shall, however, not be obliged to examine the Object. 


29. Transfer of risk
Upon the conclusion of a contract of sale, all risks, in particular with regard to the accidental destruction and the accidental deterioration of the Object, shall pass to the Buyer. The Buyer shall, from this moment, also bear all public charges of the Object. 


30. Payment of MachinePlatform-Compensation
The MachinePlatform-Compensation incorporated in the sale price shall be paid to MachinePlatform immediately after the conclusion of a contract of sale. Clause 10 shall remain unaffected. The MachinePlatform-Compensation shall be subject to a compound interest of 1.5% per month on the amount due or the statutory interest (for England: of 8% per annum above the base rate of the Bank of England) if this is higher than 1.5% per month. 


31. Guarantee
A business purchasing an Object on behalf and on account of a principal shall be liable as absolute guarantor for the obligations of its principal. 


32. Payment of purchase price
The purchase price shall be paid immediately after the conclusion of contract of sale. In the event that the Customer fails to make the payment within fourteen days from the date of receipt of the invoice, it shall be deemed to be in default. Should a Buyer be in default of the purchase price, the amount due shall be subject to a compound interest of 1.5% per month on the amount due or the statutory interest (for England: of 8% per annum above the base rate of the Bank of England) if this is higher than 1.5% per month. MachinePlatform' claims to MachinePlatform-Commission against the Buyer and/or against the Seller shall remain unaffected by any withdrawal and/or demand of damages by the Seller. 


33. Delivery/Pick up of Objects, Costs, Risk, Transfer of Title
A business purchasing an Object on behalf and on account of a principal shall be liable as absolute guarantor for the obligations of its principal. 


33.1 Unless pick up times have been set, the Buyer shall pick up the purchased objects immediately after the conclusion of the contract of sale, at the latest by the end of one week after the conclusion of the contract of sale, at the location of the Object. Objects shall be delivered upon complete payment only. The Buyer shall bear any export customs and taxes. Shipping shall be at the expense and the risk of the Buyer. In particular, the Buyer shall bear all transport, insurance, packaging and dispatching costs. Title to the purchased objects shall not pass to the Buyer until receipt of full payment. 


33.2 If the pick up deadline is not respected, the Buyer shall be liable for any costs incurred, in particular for storing and preserving the Object. Any storage and shipping shall be performed at the Buyer's expense and risk. If the pick up deadline is not respected, the Seller may set the Buyer a reasonable grace period for picking up the Object. Should this grace period expire without the Object having been picked up, the Seller may, at its choice, either store, market or scrap the Object, in each case at the Buyer's expense. 


34. No Seller's liability for material defects of used or not newly produced Objects. The Objects are, in most cases, used or not newly produced. The Seller shall not be liable for any material defect of such Objects, unless individually agreed otherwise or required by mandatory law. 


35. Seller's liability vis-à-vis the Buyer
A business purchasing an Object on behalf and on account of a principal shall be liable as absolute guarantor for the obligations of its principal. 


35.1 For Objects used or not newly produced: The Seller shall be deemed to have guaranteed to the Buyer that the Seller is entitled to sell the Object and that the Object is not subject to any third party rights. The Seller shall not be deemed to have assumed any other liability vis-à-vis the Buyer, except as otherwise agreed individually or provided by mandatory law. 


35.2 For newly produced Objects: The Customers statutory remedies ("warranty claims") for defects of an Object, including material defects and/or any violation of rights of third parties (collectively "Defects") shall be limited as set forth herein after. Whether or not the contract is a commercial transaction, the Customer shall be responsible to inspect the Objects and to notify the Seller of any Defects thereof without delay, as provided under commercial law, failing which the Defect concerned shall be deemed accepted. The warranty claims for Defects shall be limited to performance. However, the Buyer's right to request a reduction of the purchase price or to withdraw from the contract of sale in the case of failure of performance shall remain unaffected. The Seller shall retain its right to choose the type of performance; such right shall pass to the Buyer only if the Seller is in default of performance. The Seller shall not be deemed to have guaranteed certain specifications or other properties of the Objects except if it has expressly confirmed such guarantee. A manufacturer's warranty issued with any Object shall not be deemed a guarantee of certain specifications or properties unless expressly agreed otherwise. 


35.3 Any warranty claim shall be excluded if (a) the Object deviates from the agreed specifications or the Defect in question limits the suitability of the Object for the agreed purpose to a negligible degree only or (b) the Defect in question is due (i) to use of the Object for any purpose other than the contractual purpose or in violation of the relevant statutory requirements and/or any guidelines issued by the manufacturer or (ii) to modification of the Object without the prior written approval of the Seller or to use of the Object in conjunction with other product not specifically approved by the Seller in writing. Any warranty claims for violation of third party rights shall be excluded unless such third party rights are valid within the European Union or Switzerland and the Customer enables the Seller to conduct the defense alone without any restriction and grants the Seller the necessary powers. If the Customer resells Objects, any right to take recourse shall be excluded except if and to the extent the Customer proves that the Object delivered by the Seller for retail and giving rise to such recourse shall have been shipped to the Customers clients in the order in which they shall have been received by the Customer (FIFO). 


B.2 Online Brokerage 


The following additional conditions shall apply to online brokerage: 


36. Registration. Customers wanting to take advantage of MachinePlatform' Online Brokerage Services must register in order to do so. For registration, the Customer shall completely fill out, date and, if appropriate, sign the forms provided online or offline with the following information: (a) the Customer's name, postal address, telephone number, email address, a password having 5 to 16 digits, and (b) other data which MachinePlatform may request in its discretion. Official identification shall be provided upon MachinePlatform' request. The Customer represents that the information provided by it will be complete and correct. It shall immediately notify MachinePlatform of any changes in the data provided. The Customer shall not have a claim to registration. 


37. Agent
Should the Customer be registered by an agent, MachinePlatform shall be entitled to demand proof of authorization. The details of such proof of authorization shall be determined by MachinePlatform. 


38. Upon completion of the registration, the Customer shall receive a Username and Password from MachinePlatform and shall ensure that the Username and Password is protected against unauthorized access by third parties and used by other persons only with its authorization. Should the Customer become aware, or have reason to believe, that third parties have obtained knowledge of confidential information stored on the MachinePlatform Platform or otherwise, such as its access data or payment information, it shall notify MachinePlatform immediately. 


39. Framework Contract
MachinePlatform' acceptance of the registration shall bring about a Framework Contract between MachinePlatform and the Customer on the conclusion and performance of Contracts regarding Online Brokerage Services according to these MachinePlatform-Conditions. 


40. Formalities concerning registration
For each order, the Customer has to state the Object (offered or wanted), the product group, negiotiation reserve and price. MachinePlatform' acceptance of the order shall bring about a contract ("Contract") between MachinePlatform and the Customer regarding Online Brokerage Services pursuant to the conditions of the accepted order and these MachinePlatform-Conditions, unless otherwise agreed in individual cases. The Customer shall not have a claim to acceptance of an order. 


41. MachinePlatform-Compensation; no Customer's claim to the placing of Objects
For placing an Object on the MachinePlatform Platform, MachinePlatform shall be entitled to MachinePlatform-Compensation and reimbursement of expenses as per these MachinePlatform-Conditions and the MachinePlatform Pricelist. MachinePlatform retains the right to object to the placing of an Object on the MachinePlatform Platform. The Customer shall not have a claim to the placing of Objects. 


42. The Management of the MachinePlatform Platform shall be the sole responsibility of MachinePlatform. In particular: 
42.1 The Customer shall observe the instructions given online for describing the Object and implementing the transaction concerned. 


42.2 The Customer’s right to use the MachinePlatform Platform shall be limited to the Customer’s internal business purposes and shall be determined solely by the Contract including these MachinePlatform-Conditions. All other rights regarding the MachinePlatform Platform are reserved. 


42.3 MachinePlatform reserves its right to deny the brokerage of a given Object, a purchase request, an offer or an acceptance without providing reasons or to allocate an Object to another product group than that requested by the Seller. MachinePlatform shall be entitled to change the user surface of the MachinePlatform Platform. The time on the MachinePlatform system clock shall control any deadlines specifying date and time. 


42.4 Only the price given by the Customer in the currency specified by the Customer shall be effective. The calculations of the prices in other currencies provided on the MachinePlatform Platform shall be for the Customers' non-binding information only. 


42.5 The Customer’s identification data shall be hidden to other users. MachinePlatform shall only be entitled to disclose Customer contact data to other customers where a contract has been made and for on-site inspection of Objects only. The Customer’s identification data as well as the data supplied to MachinePlatform in connection with the conclusion of a Contract shall be stored by MachinePlatform in machine-readable form. Such data shall be used by MachinePlatform solely for the operation of the MachinePlatform Platform and performance of MachinePlatform Services; MachinePlatform shall be entitled to store customer data regarding a past transaction rather than having to delete such data immediately; the Customer shall be deemed to have consented thereto by submitting its registration. The Customer may revoke such consent at any time. 


43. Customer Obligations
If not otherwise agreed, the Customer shall be responsible for creating the environment necessary for using the MachinePlatform Platform and providing MachinePlatform with all the information necessary for carrying out a transaction. The Customer shall furthermore immediately inform MachinePlatform of any visible or threatening disturbances to the MachinePlatform services and support MachinePlatform in determining their cause as well as in their removal. 


44. Fixed Price Sale
44.1 The Seller shall indicate its desired or a minimum price. The Seller’s indication shall be deemed an invitation for offers. The Seller shall have the possibility to rescind its invitation at any time without liability, expect when a quote is pending. 


44.2 The offer accepted by the Buyer shall be binding. If the Seller has stipulated a minimum price, the offer shall reflect at least this price. With the offer (quote), a date and time shall be indicated until which time the quote is valid. With respect to such offer MachinePlatform shall be deemed to act as messenger for the Buyer and receiver for the Seller. 


45. Want Ads
45.1 If a Customer (i.e. an interested Buyer) is looking for an Object, it may place a want ad on the MachinePlatform Platform. The Customer shall indicate online which Object it would like to purchase and thereby invite potential sellers to make offers. The Customer shall be permitted to withdraw such invitation at any time without liability. 


45.2 Any offer made online by the Seller, stipulating the date and time until which the offer is intended to be valid, shall be binding. With respect to such offer MachinePlatform shall be deemed to act as messenger for the Seller and receiver for the Buyer. 


45.3 The Contract of Sale shall be deemed made if the interested Buyer accepts the offer of Seller online within the acceptance period. With respect to such acceptance, MachinePlatform shall function as messenger of the Buyer as well as receiver for the Seller. The Buyer shall decide at its own discretion which offer it shall accept; the offer chosen must not necessarily be the least expensive. If the interested Buyer has given its acceptance, MachinePlatform shall provide it with the Seller’s contact data. MachinePlatform shall notify the Seller of the transmission of its contact data and transmit the Buyer's contact data. Upon the interested Buyer’s acceptance, the commitment of other users having also made offers shall lapse. MachinePlatform shall inform such other users of the lapse of their commitment. 


C. The following special conditions shall apply to Commission Agreements. In addition, the terms of Parts B and A shall apply as supplementary provisions. 


C.1 Sales Commission Agreement 


46. Sales Commission Agreement.
Upon acceptance of the order of a Customer wanting to commission MachinePlatform to sell an Object in its own name but on the Customer’s account, a sales commission agreement shall be deemed made between the Customer as the Principal and MachinePlatform as Commission Agent subject to the following conditions. 


47. Property, Insurance, Confidentiality
Until its sale, the Object shall remain the property of the Customer. The Customer shall insure the Object against fire, other damage and theft. MachinePlatform shall keep the Customer’s identity confidential vis-à-vis interested Buyers. 


48. Inspection
The Customer shall permit the inspection of the Object by MachinePlatform and by interested Buyers named by MachinePlatform. Interested Buyers shall agree with the Customer on the time and the modalities of the inspection and, if applicable, on the disassembly of the Object and observe any security regulations which may prevail on the Customer’s premises. This shall apply also to inspections by MachinePlatform employees. 


49. Right to Purchase
MachinePlatform will agree with the Buyer that the Buyer shall pick up and disassemble the Object at its own expense and risk. 


49.1 Defects
MachinePlatform will not grant the Buyer any rights regarding possible Defects as equipment is sold on a “as is where is” basis, unless the Customer has specifically agreed so. The Customer shall hold MachinePlatform harmless upon its first demand from all claims of the Buyer which are based on alleged Defects. 


50. Purchase Price
MachinePlatform shall be entitled to agree to payment terms of up to three months. MachinePlatform shall not be permitted to agree on a purchase price below the minimum price, if any, without the Customer’s approval. MachinePlatform shall assume no liability for the creditworthiness of the Buyer (no del credere). 


51. Collection, Set-off
MachinePlatform shall be entitled to collect the claim to the purchase price and set it off against its commission claim. 


52. Commission
MachinePlatform shall receive a commission at the percentage rate set out in the pricelist published on the MachinePlatform Platform at the time the Contract is made. The basis for calculation of the commission shall be the net purchase price, i.e. the purchase price excluding disassembly, transport, insurance and other costs and value added tax. The commission shall be subject to the statutory value added tax. 


53. Invoicing
MachinePlatform shall account to the Customer within one month of receipt of the purchase price and shall pay the purchase price less the commission to the Customer. 


C.2 Purchase Commission Agreement


54. Purchase Commission Agreement
Upon acceptance of the order of a Customer (Principal) wanting to commission MachinePlatform (commission agent) to purchase an Object in its own name, but on the Customer’s account, a Purchase Commission Agreement shall be deemed made which is subject to the following conditions. In addition, Parts B and A of these MachinePlatform-Conditions shall apply. 


55. Performance
55.1 MachinePlatform shall attempt to locate an Object for purchase corresponding to the specifications contained in the Commission Agreement and shall buy such Object in its own name, but on the Customer’s account. If a maximum price has been specifically agreed, MachinePlatform shall not be permitted to purchase the Object for a higher price without the Customer’s authorization. 


55.2 MachinePlatform shall inspect the Object for purchase and shall, if requested, arrange for the disassembly and transport of the Object to the Customer at the Customer's costs. The assembly of the Object on the Customer's premises as well as the assertion of claims based on Defects shall be the Customer’s responsibility. 


55.3 For the duration of the Contract, the Customer shall refrain from making it known elsewhere that it desires to buy the Object concerned. 


55.4 MachinePlatform shall be entitled to supply the Object for purchase from its own inventory if it has no stock exchange or market price, provided MachinePlatform proves the justification of the purchase price for the Object delivered by it to the Customer unless the Customer waives such proof. 


55.5 MachinePlatform shall receive a commission at the percentage rate set out in the pricelist published on the MachinePlatform Platform at the time the Contract is made. The basis for calculation of the commission is the net purchase price, i.e. the purchase price not including disassembly, transport, insurance and other costs and without value added tax. The commission shall be subject to the statutory value added tax. 


D. The following special conditions shall be valid for Purchase Agreements. In addition, the terms of Parts C, B and A shall apply as supplementary provisions.


D.1 MachinePlatform as Seller 


56. Purchase Agreement
When MachinePlatform accepts the order of a Customer who wants to purchase an Object from MachinePlatform, a Purchase Agreement is concluded between the Customer and MachinePlatform pursuant to these MachinePlatform-Conditions. MachinePlatform shall reserve itself a period of two weeks for acceptance of the order. 


57. Cost Estimates shall be non-binding and shall contain only requests for orders by the Customer. 


58. Delivery Terms
All deliveries of Objects shall be made ex works from the relevant location. The prices quoted by MachinePlatform shall be understood accordingly. 


59. Delivery dates shall only be binding if they are confirmed in writing
Their observance shall require the fulfillment of all delivery terms by the Customer. Fixed date transactions shall require explicit confirmation. 


60. Partial deliveries shall be permitted.



61. Every delivery shall be made subject to correct and timely self-supply of MachinePlatform by its suppliers. If the Customer knows or if it is apparent to the Customer from the circumstances that MachinePlatform, in order to deliver the Object to the Customer, has to purchase such Object itself, MachinePlatform shall have a right to withdraw from the Purchase Agreement if MachinePlatform does not, not timely or not correctly receive the Object from its supplier. 


62. Defects
62.1 MachinePlatform shall assume no liability for material defects of Objects which are used or not newly produced since these are offered on a “as is - where is” basis. 


62.2 The Customer's statutory remedies ("Warranty Claims") for defects of an Object, including material defects and/or any violation of rights of third parties (collectively "Defects") shall be limited as set forth hereinafter: Whether or not the Contract is a commercial transaction, the Customer shall be responsible to inspect the Objects and to notify MachinePlatform of any defects thereof without delay, as provided under commercial law, failing which the Defect concerned shall be deemed accepted. Warranty Claims shall be limited to performance. However, the Customer reserves the right to request a reduction of the purchase price or to withdraw from the purchase agreement if the performance fails. MachinePlatform reserves the right to choose the type of performance; such right shall pass to the Customer only if MachinePlatform is in default of performance. MachinePlatform shall not be deemed to have guaranteed certain specifications or other properties of the Objects except if it has expressly confirmed such guarantee. A manufactured warranty issued with any Object shall not be deemed a guarantee of certain properties unless expressly stated otherwise. 


62.3 Any Warranty Claims shall be excluded if (a) the Object deviates from the agreed specifications or the Defect in question limits the suitability of the Object for the agreed purpose to a negligible degree only or (b) the Defect in question is due (i) to use of the Object for any purpose other than the contractual purpose or in violation of the relevant statutory requirements and/or any guidelines issued by the manufacturer or (ii) to modification of the Object without the prior approval of MachinePlatform or to use of the Object in conjunction with other product not specifically approved by MachinePlatform. Any Warranty Claims for violation of third-party rights shall be excluded unless such third-party rights are valid within the European Union or Switzerland and the Customer enables MachinePlatform to conduct the defense alone without any restriction and grants to MachinePlatform the necessary powers. If the Customer resells the Objects, any rights to take recourse shall be excluded except if and to the extent that the Customer proves that the Objects supplied by MachinePlatform for resale and giving rise to such recourse shall have been shipped to the Customer's clients in the order in which they shall have been received by the Customer (FIFO). 


63. Limitation Period
Any claims based on Defects shall be subject to a limitation period of twelve months for newly produced Objects. Any claims based on a violation of rights of third parties shall be subject to a limitation period of six months for used or not newly produced Objects. Any claims which are based either on gross negligence or willful misconduct or on bodily injury or damage to the health of a person caused by negligence or willful misconduct shall be subject to the applicable statutory limitation periods. The limitation periods shall begin on the date specified by the statute. 


64. Retention of Title
Until payment in full of all outstanding amounts by the Customer, MachinePlatform shall retain title to the Objects. The Customer shall advise MachinePlatform without any delay of any attachments of any such Objects, in particular of any judicial execution measures or any other seizures, as well as of any damage suffered by such Objects. In the event that any Object is located in or shipped to a country where this Retention of Title Clause is not fully valid and enforceable, the Customer shall provide MachinePlatform with equivalent security. 


65. Export
The Customer shall refrain from exporting any Object and technical information received from MachinePlatform to the extent this is prohibited by the relevant laws or regulations of its country of residence and/or of the United States of America, and shall impose such obligation also on its customers, without prejudice to the other provisions of the Contract or these MachinePlatform-Conditions. 


77. The terms of this section 


D.1 shall apply mutatis mutandis to Contract of Sales between a Seller named by MachinePlatform and the Customer. 


D.2 MachinePlatform as Buyer 


67. Sales Agreement
When MachinePlatform accepts the order of a Customer intending to sell an Object to MachinePlatform, a Sales Agreement shall be deemed made between the Customer and MachinePlatform pursuant to these MachinePlatform-Conditions. MachinePlatform reserves two weeks for acceptance of the order. 


68. The payment of the purchase price by MachinePlatform shall be subject to the condition of full and timely payment of the resale price to MachinePlatform from its resale purchaser. If the Customer knows or if it is apparent to the Customer that the Object is to be resold by MachinePlatform to a resale purchaser, MachinePlatform shall have a right to withdraw from the Purchase Agreement if MachinePlatform does not, not timely or not fully receive the purchase price from the resale purchaser. 


69. The liability of the Seller shall be subject to the statutory regulations. 


70. MachinePlatform shall be entitled to deal with the Object as it sees fit in its discretion, in particular it shall be entitled to resell the Object. 


71. The deadline for a notice of defects which may be required under commercial law shall be two weeks from discovery of the defect. In the case of an apparent defect, the deadline for the notice of defect shall be two weeks from delivery. 


E. The following special conditions shall be valid for the Sale and Deliver of used equipment to Buyer. In addition, the terms of Parts D, C, B and A shall apply as supplementary provisions. 





Sales And Delivery Conditions Used Equipment Machineplatform B.V.
Article 1 (72) - Definitions
Seller: Any party that wishes to take advantage of the MachinePlatform.com portal to sell it’s pre-used machinery. 


Buyer: Any person or legal entity wishing to purchase equipment via MachinePlatform.com. 


Intermediary: MachinePlatform acts as an intermediary in which capacity is should be regarded as being commissioned to sell an Object in its own name but on the Customer’s account. MachinePlatform B.V., is located at Brasemsloot 3, 2724 EL Zoetermeer, The Netherlands, and user of these General Sales Conditions. Hereafter referred to as "MachinePlatform". 


Agreement: The written statement between MachinePlatform, in name of Seller, and Buyer regarding the sales of goods. Can be in form of letter or fax. 


Delivery: Handing over goods to Buyer, respectively providing power over goods to Buyer or his delegates. 


Goods: Equipment, used machinery, offered for sale by MachinePlatform’s customers using the MachinePlatform.com portal. 


Article 2 (73) – Applicability of these conditions
Until payment in full of all outstanding amounts by the Customer, MachinePlatform shall retain title to the Objects. The Customer shall advise MachinePlatform without any delay of any attachments of any such Objects, in particular of any judicial execution measures or any other seizures, as well as of any damage suffered by such Objects. In the event that any Object is located in or shipped to a country where this Retention of Title Clause is not fully valid and enforceable, the Customer shall provide MachinePlatform with equivalent security. 


Article 3 (74) – Quotes
Quotes given via MachinePlatform.com are merely invitations to treat. A quote may be revoked within 3 days of acceptance. Quotes are valid for 7 (seven) days, unless stated otherwise. MachinePlatform is allowed to offer assets to multiple clients simultaneously under “first come-first serve” conditions. All prices quoted are exclusive of VAT, unless stated otherwise. All prices are in Euro’s; conversions to other currency may be provided but is for convenience of Buyer only. 


Article 4 (75) – Inspection
Buyer may be brought in a position to inspect the equipment quoted (Also article 51, General Conditions). For this a visit may be planned with responsible contact persons at MachinePlatform, who will contact Seller with regard to the specific date(s). Unless agreed otherwise, the equipment is offered for inspection in “as is – where is” condition. Buyer acknowledges full risk and responsibility when he decides not to inspect equipment at issue. Technical advice may be provided; any claims on effectiveness or suitability of any kind are rejected. Potential translation costs are at the expense of Buyer. 


Article 5 (76) – Agreement
MachinePlatform composes a sales order; this written and signed document is required to come to a sales Agreement and is the only and exclusive proof that MachinePlatform will sell the equipment, on behalf of the Seller, at the conditions specified in the sales order. The sales order can be communicated by Fax, by registered mail or by E-mail and must be returned signed by Buyer. The proof of transmission to Buyer serves as proof for existence of the Agreement. The sales order defines the Agreement and has a unique number, which Buyer’s payments must refer to. An invoice follows the returned Sales Order within a week. 


Article 6 (77) – Payment
Full payment must be made by bank within 14 days of the invoice date. If this period lapses, buyer will be in default (also article 6, General Conditions). In the event of any default, Buyer will owe either a compound interest of 1.5% per month on the amount due or the statutory interest (for England: of 8% per annum above the base rate of the Bank of England) if this is higher than 1.5% per month (Also article 32, General Conditions). 


Article 3 (78) – Quotes
Payment must be effected without discounts or setoffs on MachinePlatform’s bank account as listed on the invoice (Also article 6&8, General Conditions). 
Payment must be effected without discounts or setoffs on MachinePlatform’s bank account as listed on the invoice (Also article 6&8, General Conditions). 
Payments made by Buyer will always be used first to settle all interest and costs due and then to settle the longest outstanding invoices, even if Buyer states that the payment is made for a later invoice. 
If Buyer is wound up, declared bankrupt or granted a moratorium, its obligations will become immediately eligible. 


Article 7 (79) – Delivery and transfer of ownership
Unless agreed otherwise in writing, delivery is in the condition “as is - where is” (Also article 68.1, General Conditions); 
Unless pick up times have been set, the Buyer shall pick up the purchased objects immediately after the conclusion of the contract of sale, at the latest by the end of one week after the conclusion of the contract of sale, at the location of the Object (Also article 38.1, General Conditions). 
The agreed delivery time is not a deadline, unless expressly agreed otherwise in writing. In the event of overdue delivery, buyer must give MachinePlatform written notice of default. 
Goods are made available for delivery after receipt of full payment, unless agreed otherwise in the sales Agreement (Also article 38.1, General Conditions). 
The risk associated with the goods to be delivered by MachinePlatform passes to Buyer at the agreed time of delivery or when MachinePlatform has notitied Buyer that the goods are ready for delivery, unless agreed otherwise in writing. 
Buyer is obliged to accept delivery of the goods at the time the goods are made available for delivery. If Buyer refuses to accept the delivery or fails to provide information or instructions required for the delivery after the period mentioned in article 7.5, (as far as required by the applicable law - through the fault of the other party -), the goods will be stored at Buyer’s expense and risk. In that case, Buyer will be liable for all extra costs, which will in any event include the costs of transport and storage. Following written notice to Buyer, MachinePlatform may declare Buyer in default and sell any of the goods at the best price reasonably obtainable under the circumstances after notification to Buyer with a one-week’s notice. MachinePlatform then may charge Buyer for any shortfall below the price under the contract or account to Buyer for any excess achieved over the price under the contract, in both cases having taken into account any charges related to the sale (Also article 38.2, General Conditions). 
If major damage occurs to the goods sold between payment of order and delivery, then MachinePlatform’s liability will be limited to the amount of the payment made (Also article 12, General Conditions). 
MachinePlatform is permitted to deliver the deliverable goods in parts and is authorised to invoice each part separately (Also article 65, General Conditions). 


Article 8 (80) – Default
If Buyer fails to fulfil any of its obligations, all reasonable costs incurred out of court in order to secure payment will be borne by Buyer. Buyer will in any event owe an amount equal to 15% of the total amount due, to a minimum of € 500. If MachinePlatform proves that it has incurred a higher amount of reasonably necessary costs, these costs will also qualify for compensation. The above mentioned is without prejudice to MachinePlatform’s right to claim for the actual damage. 
Buyer will owe MachinePlatform all judicial costs incurred by MachinePlatform, unless these are unreasonably high. 


Article 9 (81) – Reservation and retention of title
1. The goods to be delivered by MachinePlatform remain Seller’s property until Buyer has fulfilled the following obligations under all the arrangements in the Sales Agreement concluded with MachinePlatform (Also article 33.1, General Conditions): 
- payment of the consideration for the goods delivered or to be delivered; 
- payment of the consideration for the services provided or to be provided by MachinePlatform under the contracts of sale; settlement of any claim due to non-performance of any contract of sale or other contract by the buyer. 
- Resolve issues for which Buyer is declared to be in default. 
2. Goods delivered by MachinePlatform subject to the reservation of title under paragraph 9.1 of this article may only be resold as part of the normal business operations. Buyer is obliged to assign the debt of Buyer of the goods to MachinePlatform, provided that applicable law allows such assignment. However, Buyer is not authorised to pledge the goods or to establish any other right on them. 
3. Check of information provided (e.g. identity and solvability) by Buyer; should person occur to be of different identity than presented, he or she will be legible personally. Check is against Dun & Bradstreet database, to which potential fraud is reported when applicable. 
If Buyer fails to fulfil its obligations or if MachinePlatform has good reason to believe that it will fail to fulfil its obligations, MachinePlatform is entitled to collect or instruct a third party to collect the (preliminary delivered) goods that are subject to the reservation of title referred to in paragraph 1 of this article from buyer or third parties that hold these goods for buyer, if allowed by applicable law. 


Article 10 (82) – Liability
1. All pre-used goods are sold under warranty-free condition. MachinePlatform rejects all possible forms of warranty claims(also article 68, General Conditions). 
2. MachinePlatform rejects all liability for consequences of the operation with- and utilisation of goods sold under these conditions. 
3. MachinePlatform accepts liability for damage sustained by the ordering party arising directly as a result of an attributable failure on the part of MachinePlatform to fulfil its obligations, if and in so far as this liability is covered by its insurance, to the amount paid out by the insurer (also article 12 & 35, General Conditions). 
4. If, for whatever reason, the insurer does not pay out, MachinePlatform’s liability will be limited to the invoice amount, upto a maximum of € 25,000. 
5. Contrary to the provisions of paragraphs 1 and 2 of this article, MachinePlatform accepts no liability for consequential damage, damage resulting from overdue delivery that is not caused by gross negligence on the part of MachinePlatform or damage that is the result of poor co-operation or poor information from the ordering party regarding the Agreement. 
6. MachinePlatform is in no way liable for damage resulting from a failure in MachinePlatform’s performance if this failure is due to instructions or directions issued by the ordering party, in so far as such instructions or directions did not initially appear unreasonable or incorrect. 
7. MachinePlatform will not be liable if the failure is caused by force majeure. 
8. The restrictions set out in Article 10.5 do not apply if the damage is caused by gross negligence or wilful intent on the part of MachinePlatform or its executive subordinates. 


Article 11 (83) – Force majeure
1. Force majeure shall comprise all circumstances that impede or prevent the fulfilment of an obligation but which are not attributable to MachinePlatform, including without limitation strikes in companies other than MachinePlatform’s, wildcat strikes or political strikes in a MachinePlatform company, lockouts or other industrial disputes (other than those occurring within the MachinePlatform Group) legal restrictions, a general shortage of required raw materials and other goods or services required for the agreed performance, machine breakdown, unforeseeable stagnation at suppliers or other third parties on which MachinePlatform depends, war, national emergency, an act of terrorism, riot, civil commotion, malicious damage, accident, breakdown of plant or machinery, fire, explosion, flood, storm, epidemic or default of suppliers or subcontracts, as well as general transport problems. 
2. MachinePlatform will also be entitled to invoke force majeure if the circumstance impeding further fulfilment occurs after MachinePlatform should have fulfilled its obligation. 
3. During an instance of force majeure, the fulfilment of the obligation to deliver and other obligations of MachinePlatform are suspended. If the period during which force majeure prevents MachinePlatform from fulfilling its obligations lasts longer than 2 months, both parties will be authorised to dissolve the contract without being liable for damages. 
4. If, during an instance of force majeure, MachinePlatform has already fulfilled part of its obligations or is able to fulfil only part of its obligations, it is entitled to invoice Buyer separately for the delivered or deliverable part, and the buyer will be obliged to settle the invoice as though it were a separate contract. However, this provision does not apply if the delivered or deliverable part has no value of its own (Also article 66, General Conditions). 


Article 12 (84) – Obligations of Buyer
1. Sign and return order for approval. 
2. Pay invoice before delivery. 
3. Provide necessary information for logistic planning concerning pick-up of equipment. 
4. Buyer is obliged to provide MachinePlatform with all information, whether or not requested by MachinePlatform, to enable MachinePlatform to perform its work in a safe, proper and economically responsible manner. Buyer is liable for damage sustained by MachinePlatform as a result of failure of Buyer to provide any information that could reasonably have assumed to be relevant to MachinePlatform. 
5. In this article, damage is understood to include the costs of setting up the planned production process, the costs of hiring or booking personnel, the costs of hiring or booking business accommodation and machines, and other costs relating to management, planning and technology, etc. 


Article 13 (85) – Obligations of Seller
The Seller shall indicate its desired sale price. The Seller’s indication shall be deemed an invitation for offers. 
Seller is obligated to hold the equipment available for sale and delivery, at the specified remuneration, as offered on MachinePlatform.com. In principle Seller can independently remove offered equipment, except for the event an order confirmation has been send out with regard to the offered equipment. During the period in which the order confirmation is valid, Seller is obligated to keep the equipment available for sale. 
Until its sale, the Object shall remain the property of the Seller. The Seller shall insure the Object against fire, other damage and theft. MachinePlatform shall keep the Seller’s identity confidential vis-à-vis interested Buyers (Also article 50, General Conditions). 
The Seller shall permit the inspection of the Object by MachinePlatform and by interested Buyers named by MachinePlatform. Interested Buyers shall agree with the Seller on the time and the modalities of the inspection and, if applicable, on the disassembly of the Object and observe any security regulations which may prevail on the Seller’s premises. This shall apply also to inspections by MachinePlatform’s employees (Also article 51, General Conditions). 
MachinePlatform shall receive a commission at the percentage rate set out in the pricelist published on the MachinePlatform Platform (Also article 26, General Conditions). 


Article 13 (86) – Disputes
Contrary to the statutory regulations regarding the jurisdiction of a civil court, any disputes between Buyer and MachinePlatform will, if the Court has jurisdiction, be settled by Dutch court. However, MachinePlatform remains authorised to summon Buyer to appear before the Court that has jurisdiction according to law or the applicable international convention (Also article 24, General Conditions). 


Article 14 (87) – Applicable law
All contracts concluded between MachinePlatform and Buyer will be governed by Dutch law in Rotterdam (Also article 25, General Conditions). 


Article 15 (88) – Amendment to these conditions
MachinePlatform is authorised to amend these conditions. These amendments will take effect on the announced effective date with proactive effect observing a notice period of one month. MachinePlatform will send Buyer the amended conditions in good time. If no effective date is announced, the amendment will become effective for Buyer as soon as Buyer is notified of the amendment (Also article 17, General Conditions). 


Article 16 (89) – Termination of the contract
1. MachinePlatform’s claims against Buyer become immediately exigent: 
a if following conclusion of the contract, MachinePlatform becomes aware of circumstances that give it good reason to believe that Buyer will not fulfil his obligations; 
b if at the time of conclusion of the contract, MachinePlatform has requested Buyer to provide security for the fulfilment and buyer has failed to do so or has provided insufficient security. 
c In case of bankruptcy of Buyer; 
d in case of a moratorium having been granted to Buyer; 
e in case of transfer of supplier’s company or transfer of more than 50 percent of the share capital of the company of Buyer, in so far as MachinePlatform has reason to believe that such a transfer will result in Buyer failing to fulfil his obligations; 

2. If circumstances occur in relation to people or materials as a result of which performance of the contract becomes impossible or so problematic or disproportionately costly that performance of the contract can no longer reasonably be required, MachinePlatform will be entitled to dissolve the contract. 


Article 17 (90) – Miscellaneous
In case any provision of these General Conditions will be or become invalid, validity of the remaining provisions will not be affected (Also article 23, General Conditions). 


Rotterdam, February 2006
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