Buyer Terms and Conditions
- “CLOUDGEEKS platform” or “platform” is a platform operated by CLOUDGEEKS for purchasing and selling used commercial vehicles. The purchase of such used commercial vehicles via CLOUDGEEKS-PLATFORM is subject to these Terms and Conditions of Sale.
- “BUYER” refers to the purchaser of the vehicle(s).
- “CLOUDGEEKS” refers to cloudgeeks GmbH, Marienplatz 12, Stuttgart, Germany registered with the commercial register of the Local Court of Stuttgart under no. HRB 786067, which is the seller of the respective vehicle(s).
- “CLOUDGEEKS SUPPLIER” refers to the respective supplier of CLOUDGEEKS for the offered vehicle(s)
- “Risk” refers to the possibility of suffering harm or loss of a physical or financial nature and the responsibility for the harm or loss suffered.
- “Vehicle” means the vehicle as described in the product details page. “Vehicles” mean the multiple vehicles that can be part of one order / purchase agreement.
- “Purchase agreement” refers to the contractual relationship between BUYER and CLOUDGEEKS as described in these Terms and Conditions of Sale.
II. About these terms and conditions
- CLOUDGEEKS and the BUYER expressly agree that any purchase of vehicle(s) is exclusively governed by these Terms and Conditions of Sale in its current version, regardless of any other general terms and conditions of the BUYER. These Terms and Conditions of Sale shall apply exclusively to a sale of vehicle(s) from CLOUDGEEKS to BUYER. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
- Nothwithstanding clause 8, Terms & Conditions of Use of CLOUDGEEKS website usage (https://go.wtx.com/terms-conditions/) apply in addition. In case of any discrepancies between these Terms & Conditions of Sale and the Terms and Conditions of Use of CLOUDGEEKS website usage, the terms outlined in these Terms & Conditions of Sale shall prevail.
- BUYER accepts these Terms and Conditions of Sale as legally binding upon initial registration on the CLOUDGEEKS platform (as outlined in ‘Access to CLOUDGEEKS platform’) and in course of every later transaction via the CLODUGEEKS platform. CLOUDGEEKS reserves the right to modify these Terms and Conditions of Sale in relation to future sales at any time and without giving reasons and BUYER will have to accept the then current version available at the time of the conclusion of the respective transaction.
- These Terms and Conditions of Sale have been uploaded in printable format on the CLOUDGEEKS platform. The current version of these Terms and Conditions (as amended from time to time) can be retrieved and saved at any time from the homepage of CLOUDGEEKS platform.
III. Access to CLOUDGEEKS platform
- The access to, the use of and the purchase of vehicles via CLOUDGEEKS platform is offered exclusively to entrepreneurs (as defined in Sec. 14 (1) of the German Civil Code, i. e. natural or legal persons or partnerships with legal capacity acting, when entering into the transaction in the exercise of their commercial, business or professional activity), but in no case to consumers.
- CLOUDGEEKS reserves the right to limit access only to dealers and traders of pre-owned commercial vehicles and similar types of entrepreneurs, e.g. fleet management customers.
a. BUYER will have to proof their status to CLOUDGEEKS during the onboarding process.
b. Any other type of purchaser may not be permitted to use the CLOUDGEEKS platform.
- CLOUDGEEKS reserves the right to decline access to the platform at sign up or revoke access at any point in time at its full discretion and for any reason.
- BUYER is required to go through several onboarding checks prior to being allowed to use the CLOUDGEEKS platform. Access to CLOUDGEEKS platform will then be granted in two stages (1) access to see prices of listed vehicle(s) (after passing the check for entrepreneurs as described in clause 12 and 13.) and (2) access to buy vehicle(s) and submit offers (after passing further onboarding checks as described below).
a. BUYER agrees to share all information and documents required to perform said onboarding checks;
b. The language of all documents and information shall be English, unless stated otherwise;
c. The onboarding checks may include but are not limited to
i. Anti-Money-Laundering and sanctions checks of both the BUYERs legal entity as well as involved representatives;
ii. Verification of company information through company registration documents;
iii. Verification of addresses;
iv. Identity verification of representatives and verification of power of representation;
d. The nature and details of said onboarding checks may be updated by CLOUDGEEKS at any point in time without notice;
e. CLOUDGEEKS may utilize 3rd party providers and/or databases to complete some or all of the onboarding checks. The BUYER hereby authorizes CLOUDGEEKS to forward all and any information and documents provided to those 3rd party providers.
f. BUYER shall update CLOUDGEEKS if any relevant information changes without undue delay.
- By submitting the registration form on CLOUDGEEKS, BUYER confirms in particular that:
a. The individual signing up on behalf of BUYER is authorized to act on behalf of the company (BUYER);
b. All ultimate beneficial owners (UBOs), directors and authorized users have been declared and their details have been provided;
c. All information and documents provided are true, complete and accurate.
- BUYER is in particular required to notify CLOUDGEEKS immediately should anything regarding the authorization of its representatives change.
- Compliance with financial reporting obligations
a. CLOUDGEEKS is obligated by law to comply fully with all financial accounting and/or reporting requirements as the case may be, which include but may not only be limited to accounting and/or reporting on certain categories of cash deposits received by BUYER. BUYER will comply with all lawful and reasonable requests and provide all relevant information to CLOUDGEEKS and any 3rd party provider utilized by CLOUDGEEKS for this purpose to allow full legal compliance on the part of CLOUDGEEKS.
b. BUYER hereby acknowledges and accepts that CLOUDGEEKS will be entitled to cancel any order where the vehicle(s) has/have not yet been shipped as well as access to the CLOUDGEEKS platform and be released from their obligations under such agreement should BUYER be or become subject to any sanctions or similar restrictions administered or enforced by the United Nations Security Council, Her Majesty’s Treasury of the United Kingdom, the Office of Foreign Assets Control of the Department of Treasury of the United States of America, the African Union, the Republic of South Africa or the European Union (each as amended, supplemented or substituted from time to time), and that BUYER shall be obligated to indemnify CLOUDGEEKS, and its affiliates against any and all damages or losses suffered by any of them due to such sanctions. Any further rights of CLOUDGEEKS to rescind or withdraw from any purchase agreement with the BUYER according to these Terms and Conditions of Sale remain unaffected.
IV. General definition about offered vehicles
- BUYER is aware that CLOUDGEEKS is a mere reseller and takes only restricted liability for the accuracy of the listed vehicle(s) and their details
a. Any and all information provided on CLOUDGEEKS platform (e.g., on product detail pages) including but not limited to pictures of a vehicle have been provided by CLOUDGEEKS SUPPLIERS and checked by CLOUDGEEKS for consistency and plausibility only. Accordingly, CLOUDGEEKS liability is restricted in that respect to such plausibility check.
b. The actual mileage of the vehicles may be slightly higher than the read mileage due to necessary movements in the logistic centers (e.g., re-parking, provision for transport, etc.).
- CLOUDGEEKS further does not guarantee the listed prices and availability of vehicle(s) shown on the platform as a binding offer. Both vehicle prices as well as availability as shown on the platform are subject to changes as stipulated in these Terms and Conditions of Sale.
V. General conditions of order process
- Adding vehicles to BUYER’s cart on the CLOUDGEEKS platform does not reserve these vehicle(s), they may get unavailable in the meantime and/or purchased by somebody else.
- BUYER has two general methods of ordering vehicle(s): 1. ‘Buy now’ and 2. ‘Make an offer’; in either case:
a. The listing and description of all vehicle(s) listed on CLOUDGEEKS platform shall not constitute an offer to enter into a purchase agreement, but rather merely a call for the BUYER to make a legally binding offer (invitatio ad offerendum).
b. The purchase agreement between BUYER and CLOUDGEEKS shall be concluded by CLOUDGEEKS accepting the BUYERS offer. The BUYER will be notified of the fact that a purchase agreement has been concluded by CLOUDGEEKS formally accepting and confirming the order via e-mail or over the CLOUDGEEKS platform. At this time, the consequences as outlined in these Terms and Conditions of Sale shall take effect.
- If BUYER clicks ‘BUY NOW’ on a cart with one or multiple vehicles
a. Doing so shall constitute a binding order of the BUYER to enter into a purchase agreement with CLOUDGEEKS. BUYER agrees and is legally bound to purchase the vehicle(s) at the listed price and conditions.
b. The BUYER shall be bound by such order from the moment of the order submission (by clicking on ‘BUY NOW’ on the cart) for 7 (seven) days (“Commitment Period”). Should the end of the Commitment Period fall on a Sunday or public holiday in BUYER’s or CLOUDGEEK’s country of its principal place of residence, the next working day shall be deemed to be the last day of the Commitment Period;
c. The order of the BUYER is not to be regarded as binding or accepted by CLOUDGEEKS until it is formally accepted and confirmed by CLOUDGEEKS via e-mail or over the CLOUDGEEKS platform within the Commitment Period. BUYER acknowledges and agrees that until such confirmation, CLOUDGEEKS will not be obliged to make available or ship the vehicle(s).
d. Once CLOUDGEEKS has formally accepted and confirmed the order via e-mail or over the CLOUDGEEKS platform, the BUYER acknowledges that a binding contract in the form of a purchase agreement between CLOUDGEEKS and the BUYER has been concluded at the time when CLOUDGEEKS sends the e-mail or accepts the order over the CLOUDGEEKS platform. BUYER's knowledge of the acceptance via e-mail or over the CLOUDGEEKS platform is not necessary and waived by the BUYER; insofar Section 151 sentence 1 German Civil Code shall apply.
e. CLOUDGEEKS reserves the right at this stage to deny or not to accept an order for any reason.
f. If CLOUDGEEKS does not accept the order via e-mail or over the CLOUDGEEKS platform within the Commitment Period, the order shall cease to be binding upon the expiry of the Commitment Period.
- If BUYER uses ‘makes an offer’ on a cart with one or multiple vehicles by stating a purchase price for the vehicle(s) selected:
a. BUYER can make offers on one or multiple vehicle(s) listed on CLOUDGEEKS platform.
b.Doing so shall constitute a binding offer of the BUYER to enter into a purchase agreement with CLOUDGEEKS, at the stated price and terms submitted with the offer.
i. The order is not to be regarded as binding or accepted by CLOUDGEEKS until it is formally accepted and confirmed by CLOUDGEEKS via e-mail or over the CLOUDGEEKS platform;
ii. The BUYER shall be bound by such offer from the moment of the offer submission for 7 (seven) days (“Commitment Period”). Should the end of the Commitment Period fall on a Sunday or public holiday in BUYER’s or CLOUDGEEK’s country of its principal place of residence, the next working day shall be deemed to be the last day of the Commitment Period;
iii. If CLOUDGEEKS does not accept the offer via e-mail or over the CLOUDGEEKS platform within the Commitment Period, the offer shall cease to be binding upon the expiry of the Commitment Period.
c. There are three possible scenarios after the BUYER submitted an offer, which are outlined below.
d. If BUYER’s offer is accepted completely
i. CLOUDGEEKS formally accepted and confirmed the offer submitted by BUYER via e-mail or the CLOUDGEEKS platform;
ii. Once CLOUDGEEKS has formally accepted and confirmed the order via e-mail or the CLOUDGEEKS PLATFORM, the BUYER acknowledges that a binding contract in the form of a purchase agreement between CLOUDGEEKS and the BUYER has been concluded at the time when CLOUDGEEKS sends the e-mail or accepts the order over the CLOUDGEEKS platform. BUYER's knowledge of the acceptance via e-mail or over the CLOUDGEEKS platform is not necessary and waived by the BUYER; insofar Section 151 sentence 1 German Civil Code shall apply;
iii. CLOUDGEEKS reserves the right at this stage to deny an order for any reason or provide a new proposal (counter-offer).
e. If BUYER receives a counter-offer
i. If BUYER’s offer is not accepted in full, BUYER will receive a counter-offer;
ii. This counter-offer may contain the same vehicle(s) as the original offer from BUYER but at a different price and/or it may contain fewer vehicle(s) than the original offer from BUYER (due to unavailability or decline of offer of some vehicle(s)); such counter-offer is not a legally binding offer from CLOUDGEEKS to enter into a purchase agreement, but rather merely a new call for the BUYER to make a legally binding offer at the conditions of the counter-offer (invitatio ad offerendum).
iii. BUYER has 48 hours time to react to the counter-offer
1. If BUYER does not respond within 48 hours, no purchase agreement has been concluded and the negotiation stage is ended.
2. The vehicle(s) are not reserved during this time and may be bought by someone else or be otherwise unavailable at any point in time
iv. BUYER can choose to accept the counter-offer as new invitatio ad offerendum (as described above); in which case:
1.The price and terms of the received counter-offer are binding for the BUYER as soon as BUYER clicks ‘submit offer’ and thereby submits his new offer;
2.The new order is not to be regarded as binding or accepted by CLOUDGEEKS until it is formally accepted and confirmed by CLOUDGEEKS via e-mail or the CLOUDGEEKS PLATFORM;
3.Once CLOUDGEEKS has formally accepted and confirmed BUYER’s new offer via e-mail or the CLOUDGEEKS platform, the BUYER acknowledges that a binding contract in the form of a purchase agreement between CLOUDGEEKS and the BUYER has been concluded at the time when CLOUDGEEKS sends the e-mail or accepts the order over the CLOUDGEEKS platform. BUYER's knowledge of the acceptance via e-mail or over the CLOUDGEEKS platform is not necessary and waived by the BUYER; insofar Section 151 sentence 1 German Civil Code shall apply.
v. BUYER can choose to decline the offer; in which case no contract has been created and the negotiation is ended.
f. If BUYER’s offer is declined completely or CLOUDGEEKS has not reacted to the offer of the BUYER until the expiration of the Commitment Period: No purchase agreement has been concluded and the negotiation stage is ended.
- If CLOUDGEEKS formally accepts and confirms a successful order via e-mail or over the CLOUDGEEKS PLATFORM (no matter through which of the purchase options), BUYER acknowledges and agrees that:
a.BUYER will be liable for, and agrees to settle the invoice amount of the purchase price, as contained in the invoice as per terms described in the ‘payment’ section of these Terms and Conditions of Sale;
b.CLOUDGEEKS will continue to own the vehicle until BUYER has paid to CLOUDGEEKS the full invoice amount owed in relation to the purchase (retention of title);
c.CLOUDGEEKS reserves the right to not load the vehicle onto the vessel at the port of origin until BUYER has paid the full invoice amount;
d.Risk in the vehicle(s) shall pass to BUYER upon beginning of loading the vehicle on the transporting vessel at the port of origin; ownership in the vehicle(s) will pass at the same time, however, subject to lit. b. above;
e.CLOUDGEEKS may still withdraw from the order in case of justified reasons, i.e. issues with CLOUDGEEKS SUPPLIER (e.g., unavailable vehicle(s), vehicle(s) not delivered by CLOUDGEEKS SUPPLIER, vehicle(s) did not match product description on CLOUDGEEKS platform, vehicle(s) are heavily damaged/destroyed before arrival at the port of origin, necessary export documents for the vehicle(s) are not available) without penalty. In this case, CLOUDGEEKS will inform the BUYER without undue delay about its withdrawal and will reimburse the purchase price without delay. CLOUDGEEKS is further entitled to alter the order if the change or deviation is reasonable for the BUYER, taking into account his interests.
VI. Vehicle specifications
- BUYER acknowledges
a.That he confirms that the vehicle(s) which he is purchasing from CLOUDGEEKS are suited for the purpose for which he is purchasing them;
b.That BUYER is not allowed to buy vehicle(s) for military usages (be it directly or indirectly);
c.That the vehicle(s) purchased are pre-owned and used vehicle(s) and accepted as is.
- CLOUDGEEKS will do its best to ensure no vehicle(s) with military equipment are available on CLOUDGEEKS platform. However, CLOUDGEEKS cannot guarantee this. Therefore, BUYER accepts that BUYER is required to notify CLOUDGEEKS in case BUYER sees a vehicle with military equipment offered for sale on the CLOUDGEEKS platform and that he will not try to purchase it over the CLOUDGEEKS platform.
- .BUYER accepts that in the supply chain, CLOUDGEEKS is only mere reseller of the vehicle(s) and other goods and that it is not the manufacturer of these products (e.g., the vehicle itself, tires, accessories and further extras).
- It is the BUYERs responsibility to inquire about manufacturer’s specifications, warranty, manual, service intervals, usage requirements or similar items. CLOUDGEEKS takes no responsibility for informing the BUYER about any of these specific requirements, CLOUDGEEKS provides no warranty and is not responsible for any manufacturer provided warranty if it exists.
a.BUYER acknowledges that CLOUDGEEKS has advised him that the vehicle(s) can only be used according to the exact manufacturer’s specifications;
b.BUYER acknowledges that CLOUDGEEKS does not provide manuals for the vehicle(s). It is the BUYER’s responsibility to inform himself about the proper way to operate the vehicle(s). CLOUDGEEKS takes on no liability for BUYER to properly operate the vehicle(s) according to the manufacturers manual(s).
c.BUYER acknowledges that CLOUDGEEKS has advised him that he must service the vehicle(s) within the specified intervals as well as comply with all the terms of the manufacturer’s service and/or maintenance plans in instances where these are applicable.
- CLOUDGEEKS will document the available keys at the port of origin and share the amount with BUYER.
- ONLY if applicable to the particular vehicle(s) which BUYER has purchased, BUYER will read the manufacturer’s warranty and user’s manual and make himself fully aware of what must and must not be done with and to the goods, being the vehicle, the tires, the accessories and further extras, in order for the goods to function correctly and safely.
- ONLY if applicable to the particular vehicle(s) which BUYER has purchased, BUYER will make himself familiar with what his obligations are in respect of the warranty, service and/or maintenance plan, the service requirements, and the matters which fall outside of the manufacturer’s warranty.
- It is the BUYER’s responsibility to inform himself about the vehicle(s)’ potential restrictions regarding the import and use in the country where BUYER intends to operate the vehicle(s).
VII. Special acknowledgment regarding pre-owned vehicle(s)
- It is expressly agreed between the Parties that CLOUDGEEKS is not obliged to disclose any risk(s), defect(s), failure(s), hazard(s) or unsafe item(s) that it was not aware of or could not have reasonably been expected to have been aware of.
- BUYER acknowledges that the vehicle(s) that BUYER is purchasing are early model(s) and have been subjected to extensive use. BUYER may be purchasing them for a lower value and accepts that one or more of the component parts, due to wear and tear and age could fail at any time after BUYER takes delivery of the vehicle(s). BUYER has taken notice of this and is fully prepared to purchase the vehicle(s) notwithstanding the risks pointed out to him in this clause.
- BUYER shall pay the full purchase price for the vehicle(s) without deduction. Details of the relevant purchase price are set out in the respective purchase confirmation and payment request. If BUYER purchased more than one vehicle, he may receive separate invoices per vehicle. Unless otherwise stated BUYER agrees to pay the full sum of all invoices of one order as summed up in the payment request shared with the BUYER.
- The purchase price shall be due and is to be paid immediately after conclusion of the purchase agreement (i.e. when CLOUDGEEKS sends the e-mail or accepts the order over the CLOUDGEEKS platform).
- BUYER shall be considered to be in default after three working days from having received the purchase confirmation (confirmation e-mail or acceptance of the order by CLOUDGEEKS over the CLOUDGEEKS platform). Section 286 German Civil Code is applicable. If the BUYER is in arrears with its payment obligations under a purchase agreement and/or in case of no or late payment, BUYER shall make a one-off payment to CLOUDGEEKS of 1% of the purchase price or EUR 250.00 (net) (whichever sum is higher) as liquidated damages. This shall not apply if BUYER is not responsible for the delay in payment. CLOUDGEEKS reserves the right to present and assert any damage exceeding this amount and the BUYER reserves the right to prove that no or only lower damage were actually incurred in this regard by CLOUDGEEKS.
- Payment of the purchase price in part payments is prohibited. If the BUYER performs partial payments despite this prohibition, the amounts paid will be deducted from the claims of CLOUDGEEKS. If the BUYER performs partial payments, CLOUDGEEKS is entitled to demand the payment of 1% of the purchase price or EUR 250.00 (net) (whichever sum is higher) as liquidated damages. This shall not apply if BUYER is not responsible for the partial payment. CLOUDGEEKS reserves the right to present and assert any damage exceeding this amount and the BUYER reserves the right to prove that no or only lower damage were actually incurred in this regard by CLOUDGEEKS.
- If the BUYER is in default of payment, CLOUDGEEKS may withdraw from the purchase agreement. After withdrawal has been declared – such withdrawal may also be declared by sending a cancellation document to the BUYER – CLOUDGEEKS will release the vehicle(s) for resale. The BUYER shall be obliged to pay to CLOUDGEEKS a lump sum of 2% of the purchase price or EUR 500.00 (net) (whichever sum is higher) as liquidated damage in respect of the damage incurred due to the withdrawal and resale, unless BUYER proves that no or only lower damages were actually incurred in this regard. Any diminished proceeds realized during resale shall also be asserted as damages against the BUYER. In the event that any liquidated damages became due before CLOUDGEEKS withdrawal, the respective amounts due as damages before and upon/after the withdrawal shall be netted. If the BUYER does not pay the amount claimed within five working days following the receipt of CLOUDGEEKS withdrawal declaration, CLOUDGEEKS may immediately initiate legal proceedings for debt recovery against the BUYER. CLOUDGEEKS expressly reserves the right to assert further damages claims arising from the default of payment. CLOUDGEEKS further reserves the right to revoke BUYER’s access to the CLOUDGEEKS platform.
- BUYER agrees to pay the full purchase price either through the 3rd party escrow payment process taken over by CLOUDGEEKS payment partners or through a wire transfer to the provided bank account (IBAN)
a. BUYER acknowledges that for this process all information and data required to complete the payment process will have to be shared with the 3rd party payment providers;
b. The 3rd party payment providers may have their own general terms and conditions that the BUYER will get access to and be required to agree to during the payment process.
- In case of escrow payment: BUYER acknowledges that he is required to send a full prepayment of the invoice amount into the escrow account and that the funds will be held at an escrow bank account until the waybill(s) have been provided. The payment made by BUYER may be fully or partially refunded, should BUYER file a legitimate claim to CLOUDGEEKS (e.g., vehicle(s) have not been shipped).
- CLOUDGEEKS currently obtains escrow and certain payment services including collecting, holding, disbursing, or remitting funds domestically and/or internationally via Tazapay Pte. Ltd., a company incorporated in Singapore, its subsidiaries, partners and/or affiliates (together “Tazapay”).
- The BUYER acknowledges that Tazapay renders its services according to its terms and conditions of escrow and payment services that can be viewed here https://app.tazapay.com/termsandconditions/v1 and that BUYER will have to accept these terms and conditions. BUYER undertakes to comply with and complete customer due diligence (i.e. Know Your Customer) measures performed by Tazapay when required.
- In case of wire transfer: BUYER acknowledges that he is required to send a full prepayment of the invoice amount to the provided bank account (IBAN).
- BUYER is required to send the payment from one of the bank accounts provided in the account on CLOUDGEEKS platform. If BUYER should send the payment from any other bank account, he is immediately required to notify CLOUDGEEKS and provide proof that this bank account is in BUYER’s name.
- BUYER accepts and agrees that delivery of the vehicle(s) will be made:
a. at the port of destination selected by BUYER during the purchasing process;
b. under the incoterms named in the purchase agreement and outlined in the ‘incoterms’ section of this document.
- Any dates and/or times given for delivery are estimates only and no exact delivery date or time has been agreed. BUYER acknowledges that CLOUDGEEKS is not in a position to promise delivery of the vehicle(s) at any specific date or time, as CLOUDGEEKS may utilize third party service providers for fulfillment / shipment.
- BUYER further accepts that he will have no claim of any nature whatsoever against CLOUDGEEKS for a delayed delivery of the vehicle where the delay is not caused by CLOUDGEEKS culpable behavior (e.g. when necessary export documents cannot be obtained or logistics shortages occur). For the avoidance of any doubt, BUYER hereby holds CLOUDGEEKS harmless in the event of a delayed delivery where the delay is not caused by CLOUDGEEKS culpable behavior. CLOUDGEEKS right to withdraw from the purchase agreements remains unaffected.
- BUYER accepts that CLOUDGEEKS may utilize third parties as forwarding agents and that CLOUDGEEKS will forward all information and documents to these third parties that are required to complete the logistics process.
- The following events are key milestones in the delivery process
a. Loading of vehicle(s) onto the vessel at port of origin: At this point the ownership and risk is transferred to the BUYER and the waybill and bill of lading are created (as outlined in Incoterms and Payments sections);
b. Arrival of vehicle(s) at port of destination: Anything beyond this point is completely under the BUYER’s responsibility to organize and take on liability (as outlined in Incoterms section).
- BUYER acknowledges that there may be multiple shipments (and related documents) for one order, in case more than one vehicle was purchased.
- CLOUDGEEKS has advised the BUYER that it or a 3rd party provider will conduct a pre-boarding inspection at the port of origin of the vehicle to reasonably confirm that the vehicle is indeed the vehicle described in the product listing (in principle pure identity check and check of obvious material discrepancies).
a. CLOUDGEEKS accepts no responsibility for the vehicles condition unless otherwise stated in these Terms and Conditions of Sale;
b. Notwithstanding the results of the check, CLOUDGEEKS reserves the right to withdraw from the purchase agreement without penalty for justified reasons, in particular (e.g. vehicle(s) do not match product description on CLOUDGEEKS platform), see clause 25 lit. e. In this case, CLOUDGEEKS will inform the BUYER without undue delay about its withdrawal and will reimburse the purchase price without delay.
- The condition of the vehicle(s) at the port of origin will be documented and this documentation will be provided to the BUYER
a.The BUYER is required to immediately after receiving the documentation raise any concerns with regards to the vehicle(s);
b.The BUYER may not stop the loading of the vehicle(s) at this time.
- BUYER is responsible to collect and inspect the vehicle(s) immediately after arrival at the port of destination with the due diligence of a responsible businessman as to identity, quantity and / or obvious defects (including the delivery documents) and document and report any concerns regarding defects or irregularities by specifying the defects or irregularities immediately to CLOUDGEEKS.
a.When collecting the vehicle(s), the BUYER shall be obliged to inspect the vehicle(s) for the correct vehicle identification number (“VIN”);
b.BUYER waives the right to claim any concerns, damages or similar raised after the vehicle(s) have left the port of destination;
c.CLOUDGEEKS takes on no liability for any damages or losses during the transportation of the vehicle(s)
i. For port-to-port transportation: In case, the incoterm CIF has been agreed (see clause 56), BUYER may raise a CIF insurance claim, should any damage or loss be proven to be incurred during port of origin to port of destination transportation; CLOUDGEEKS does not guarantee that any specific claim will be covered by the insurance provider and claims of the BUYER are limited to such claims fulfilled by the insurance provider;
ii. For transportation beyond the port of destination: liability lies solely with the BUYER.
- If the incoterm CFR (“Cost and Freight”) has been agreed in the purchase agreement, BUYER acknowledges that:
a. No insurance is provided by CLOUDGEEKS and BUYER is liable to get his own insurance coverage to cover any risks involved with the transport of the vehicle from the port of origin;
b. Under CFR terms CLOUDGEEKS is required to clear the goods for export, deliver them onboard the ship at the port of origin, and pay for transport of the goods to the named port of destination;
c. The risk in the vehicle(s) passes from CLOUDGEEKS to BUYER when the CLOUDGEEKS delivers the goods onboard the ship; ownership in the vehicle(s) will pass at the same time, however, subject to clause 25. lit. b. above.
d. BUYER is responsible for paying all additional transport costs from the port of destination, including import clearance and duties.
i.BUYER is fully responsible to ensure that all of the necessary paperwork inclusive of all permits and the like which will be necessary to accept the vehicle into the country of destination of the BUYER, are in fact in place and in order.
ii. CLOUDGEEKS accepts no responsibility whatsoever for the successful conveyance of the purchased vehicle(s) beyond the port of destination (not including customs etc.), and all expenses related hereto are also solely for the account of the BUYER (see clause 54).
iii. The BUYER will have no claim of any nature whatsoever against CLOUDGEEKS in the event of the vehicle(s) being prevented from entering any specific country chosen by the BUYER, for whatever reason (see also clause 33).
- If the incoterm CIF (“Cost, Insurance and Freight”) has been agreed in the purchase agreement, BUYER acknowledges that:
a. The terms described for CFR apply with the exception of insurance coverage;
b. CLOUDGEEKS obtains and pays for insurance coverage for the vehicle(s) through their journey from the port of origin to the named port of destination (based on the invoice amount);
c. All required details to obtain the insurance coverage will be forwarded to the insurance provider.
- For any incoterms not explicitly described in this document, the default industry standard interpretation of said incoterm is accepted by both CLOUDGEEKS and the BUYER.
- CLOUDGEEKS shall only be liable for damages caused by a breach of obligations due to its gross negligence or willful misconduct. Further, CLOUDGEEKS shall be liable for the negligent breach of obligations, whose fulfillment is essential to enable the ordinary implementation of the contract, whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the BUYER may rely on regularly. In the last-mentioned case, CLOUDGEEKS is only liable for the foreseeable, typical contractual damage. The abovementioned exclusions of liability do not apply in case of damage of life, body and health. The liability pursuant to the product liability law remains unaffected. The same applies to breaches of duty by its vicarious agents.
- CLOUDGEEKS platform and services, including all content, software, functions, materials, and information made available on or accessed through CLOUDGEEKS platform or services, are provided on an “as is” and “as available” basis without warranties of any kind, whether express or implied, including without limitation, implied warranties of non-infringement, merchantability or fitness for a particular purpose.
- BUYER acknowledges and agrees that any transmission to and from CLOUDGEEKS platform and services is not confidential and may be read or intercepted by others.
- BUYER further acknowledges and agrees that by submitting communications or content to CLOUDGEEKS and by posting information on CLOUDGEEKS platform or services, including listed item(s), no confidential, fiduciary, contractually implied or other relationship is created between BUYER and CLOUDGEEKS other than pursuant to these Terms and Conditions of Sale and the Terms and Conditions of Use unless otherwise agreed.
- BUYER will indemnify, defend and hold harmless CLOUDGEEKS, its subsidiaries, affiliates, and each of their respective officers, directors, employees, agents, successors, and assigns (the “Indemnified Parties”) from and against any claim or demand (including reasonable attorneys’ and experts’ fees and costs), made by any third party due to or arising out of (i) BUYER’s culpable breach of these Terms and Conditions; (ii) any personal injury, death, or property damage caused by or arising out of the listing, sale, transportation or use of any vehicle(s); or (iii) BUYER’s culpable violation of any law or rights of a third party, including related to any content BUYER provides. CLOUDGEEKS reserves the right, at its own expense to assume the exclusive defense and control of any matter otherwise subject to indemnification by BUYER, and BUYER shall not in any event settle any matter without CLOUDGEEKS written consent. While some jurisdictions may limit BUYER’s liability hereunder, this indemnity shall apply to the fullest extent permissible by applicable law.
XIV. Warranty, Withdrawal
- Any vehicle is sold as a pre-owned and used vehicle and therefore, all and any warranty for defects shall be excluded in relation to the sale of vehicle(s) to BUYER. There shall be no claims for defects in quality, in particular, if the defect or damage is attributable to normal wear and tear of a pre-owned vehicle. This exclusion shall also apply to defects which occur between conclusion of the purchase agreement and handover of the vehicle to the BUYER.
- The objective material defect definition of § 434 para. 3 German Civil Code is waived.
- CLOUDGEEKS makes no warranty that the listed item(s) will properly function or operate when BUYER receives them, nor that they will continue to operate or function for any period of time after BUYER receives them.
- The listing of any damage(s) is not an agreement on the quality of the vehicle(s) (Beschaffenheitsvereinbarung) and the BUYER explicitly acknowledges the restrictions set forth in Section VI. (Vehicle specifications) which will not result in warranty claims of the BUYER.
- Clauses 62. – 65. do not apply in cases of fraudulent intent (Arglist) of CLOUDGEEKS and in relation to damages for which CLOUDGEEKS is liable according to clause 58.
- Should there be an issue or claim with one vehicle of an order from multiple vehicles this shall have no effect on the remainder vehicle(s) of the order.
- If in special exceptional cases, the purchase agreement is rescinded and if CLOUDGEEKS takes the vehicle(s) back from the BUYER in the course of this rescission, the BUYER will be charged compensation for use, if during the period since it was sold to the BUYER the vehicle was used for more than 100km. CLOUDGEEKS is entitled to offset the compensation for use against the purchase price to be repaid as part of the rescission. The BUYER hereby agrees to such set-off. Furthermore, the BUYER will be charged a reasonable restocking fee.
- Any withdrawal from the purchase agreement shall be effected in accordance with this paragraph. The BUYER shall be under an obligation to send a current photograph of the mileage counter of the relevant vehicle(s) to CLOUDGEEKS, to return all vehicle documents obtained by it, any spare keys and all accessories and to move the vehicle to the CLOUDGEEKS hub in Antwerp, Belgium (place of performance of the return). As of the date BUYER is informed of the rescission, the BUYER shall be required to meet this obligation without undue delay. If the BUYER fails to meet this obligation within the applicable timeframe by fault, CLOUDGEEKS will charge a fee of EUR 15.00 (net) per day, up to a maximum amount of 5% of the net order value, unless the BUYER proves that no or only lower costs were actually incurred by CLOUDGEEKS in this regard. Concurrently, following receipt of all vehicle documents, any spare keys, accessories and the vehicle(s), CLOUDGEEKS shall repay to the BUYER the purchase price, less where applicable, the compensation for use and a fee, as separately notified.
XV. Severability clause
- Should any provision of these Terms and Conditions of Sale be or become invalid, this shall not affect the legal validity of the remaining provisions. Instead of the invalid provision, a valid provision shall be deemed to have been agreed which comes closest to the economic purpose intended by the parties. Same applies if these Terms and Conditions of Sale contain a gap.
XVI. Governing law, place of performance and place of jurisdiction
- These Terms and Conditions of Sale as well as all agreements and legal and business relationships that are subject to these Terms and Conditions of Sale shall be governed by the laws of the Federal Republic of Germany to the exclusion of all other laws and the exclusion of the United Nations Convention on Contracts for the International Sale of Goods as far as they may otherwise.
- In case of any dispute between BUYER and CLOUDGEEKS, the parties will faithfully attempt to amicably resolve such dispute.
- Place of performance of all services rendered by CLOUDGEEKS hereunder and the exclusive place of jurisdiction for all disputes arising under or in connection with this contractual relationship between BUYER and CLOUDGEEKS shall be Stuttgart, Germany.
XVII. Miscellaneous conditions
- No variation of these Terms and Conditions of Sale once accepted for a purchase agreement concluded thereunder will be of any force or effect unless reduced to writing and signed by both CLOUDGEEKS and the BUYER.