GENERAL TERMS & CONDITIONS OF USE of the website usedequipment.kiloutou.com website
This website is published by: KILOUTOU, SAS [Simplified limited liability company] with a share capital of EUR 10 441 555, with its registered office at 1, rue des Précurseurs 59664 Villeneuve d’Ascq cedex, registered with the Registry of Trade and Companies of Lille Métropole under No. 317 686 061.
Hereinafter referred to as “KILOUTOU”.
These General Terms and Conditions of Use (hereinafter referred to as the “GTCU”) are intended to govern the use of the website accessible at www.usedequipment.kiloutou.com (hereinafter referred to as “the Website”) and/or any other address that KILOUTOU may decide to substitute for it, as well as all the terms of access and use of the personal area on the Website.
The use of the Website is available only to professional users, acting with professional skill in the targeted sector of activity, and for business use.
Any use of the Website, and any access to the personal area by any user entitled to personal access, implies full and complete acceptance of these GTCU by any natural or legal person accessing the Website (hereinafter referred to as the “User”).
The applicable GTCU are those in force on the date of use by the Users of the Website. KILOUTOU reserves the right to modify these GTCU at any time.
CLAUSE 1. PURPOSE
The purpose of these GTCU is to define the relationship between KILOUTOU and the User and to set out the terms and conditions of use of the Website by the User.
This Website is dedicated to presenting second-hand machines and equipment offered for sale as is by Kiloutou (hereinafter, the “Products”), and is intended solely for use by professionals in the second-hand market.
It consists of a web portal accessible by the general public and a personalised area, intended for professional clients, accessible by registration.
The Website is not a commercial site and is not intended to enable the User to enter into an online sales contract, but only for Kiloutou to present the Products and for the User to make an offer to purchase. Kiloutou’s final agreement on the offer to purchase and the completion of the sale takes place subsequently with direct contact between the parties.
Consequently, the rules relating to e-commerce agreements do not apply to these GTCU.
CLAUSE 2. PRESENTATION OF THE DIFFERENT FUNCTIONALITIES OF THE WEBSITE
The Website offers the following features:
- access to a personalised area accessible after the User has registered;
- the presentation of second-hand Products offered for sale by KILOUTOU;
- the opportunity to make an offer to purchase.
CLAUSE 3. THE PERSONAL AREA
The Website provides the User with a personalised area. Only professionals may create a personalised area.
3.1 Creation of personal area
Use of the Website is exclusively reserved for Professional Users, i.e. natural or legal persons or legal entities engaged in professional business activities, using the Website in relation to their professional activity for business purposes. Identification of the firm will be requested (SIREN [French national company identification number] number or its equivalent and an Intra-community VAT code).
A request to create an account is then sent to KILOUTOU for approval. Kiloutou reserves the right to withhold approval for the creation of the personalised area. KILOUTOU will send the applicant confirmation that the account has been created or that the request has been rejected.
Once registered, the User will have their own personal area, which they can access by clicking on the tab provided for this purpose. They can thereby log on with their username and password that they themselves defined during registration.
KILOUTOU wishes to draw the User’s attention to the need to keep their password confidential and to store it appropriately.
3.2 Functionalities of the personal area
Access to the presentation of second-hand Products is restricted to Users with an account that has been manually approved by the Kiloutou administrator.
Connection to the personal area is made using the Email/Password combination.
Once the User is connected to the Website through their personal area, they benefits from the following personalised functionalities: the “My Account” section allows the User to access their connection information, their personal and/or business contact details, their offers to purchase, and the possibility of making offers to purchase (see Clause 5)
CLAUSE 4. INFORMATION ON THE SECOND-HAND PRODUCTS PRESENTED
This Website provides the possibility to make offers to purchase the second-hand Products offered by KILOUTOU.
The Product Page contains the various items of information on second-hand Products, including notably the technical characteristics and condition of the main components of the used equipment. The condition of the second-hand product is described as fully as possible by KILOUTOU. However, the photos and drawings, information, technical standards and specifications indicated are deemed to be non-contractual. They are provided for indicative purposes only for the most recent models and KILOUTOU shall not be liable for any change thereto. The visuals and photos proposed are not necessarily those of the product but may be generic. The specifications relating to the Product, and in particular its quality, power and capacities are those indicated by the manufacturer at the time it was marketed. In view of the age and/or condition of the Product, the aforesaid specifications may therefore be approximate, with no warranty from KILOUTOU as to the second-hand Product’s compliance with them. KILOUTOU shall not incur any liability in these grounds. The second-hand Products presented are deemed compliant with the required technical specifications and with French legislation/regulations in force at the time they are placed on the market. KILOUTOU, however, does give any warranty as to the compliance of the second-hand Products with the required technical specifications and French legislation or regulations in force at the time of their presentation on the Website.
The second-hand Products are offered for sale as is in batches by Kiloutou, either as second-hand equipment or as spare parts, it being specified that all of these Products have been handled and used by a large number of professionals and/or non-professional users. The Client therefore expressly acknowledges that these items of equipment and spare parts, although they have been subject to due checks and are compliant with applicable regulations and good practice in tool and equipment hire, they constitute second-hand equipment that has been subjected to wear and tear which was beyond control, and the use of which has not been under the full control of Kiloutou.
CLAUSE 5. PURCHASE OFFERS
5.1 Access to the Products
The Website enables the User to make offers to purchase the second-hand Products offered by Kiloutou.
Once logged in to their personal area, the User can access sales in progress.
To select a Product, the User may:
- select the Product by viewing the sales in progress;
- use the search engine provided by the Website.
For each sale in progress, the following information is provided: the Title, the Number of items on the list, the Start Date, the End Date, a visual, and the Description of the Products.
The User can display all the Products offered and use filters according to condition, category, brand, year of commissioning, location. The User can create a list of favourite products.
The User selects the Product(s) for which they intend to make an offer under their own responsibility. The User represents that they have personally had full opportunity to inform themselves on the condition of the Product and its characteristics, and to select it in accordance with their professional requirements.
5.2 Presentation of the offer
Once authenticated, the User may select a Product and submit its purchase offer.
The User may submit offers only during a period that has a start date/time and an end date/time.
The User may submit an offer on the Products they wish during the aforesaid period. The User will not be able to make an offer after the end date/time of the period.
The User cannot view offers made by other users.
On the form of the selected Product, the User can submit their offer indicating the amount for each product by filling in the field provided for this purpose.
To confirm the offer, the User must click on the “make an offer” button. By clicking on this button, the User will definitively confirm their offer and will not be able to modify or delete it subsequently.
Once the User has made an offer to purchase, Kiloutou will contact the User directly if the offer has been accepted. The final agreement on the item, the price and the deadlines will be achieved by direct contact between Kiloutou and the User. Under no circumstances is the sale completed on the Website. The subsequent completion of the sale will be governed by the general terms and conditions of the as-is sale of equipment, reproduced below. Acceptance of these terms and conditions of use implies acceptance of the general terms and conditions of the as-is sale of equipment, which will apply between the vendor and the purchaser if the offer is accepted.
CLAUSE 6. UNDERTAKINGS OF THE USER
The User represents that they are using the site for business purpose and are acting with professional skill in that sector of activity.
The User represents that they have personally had full opportunity to inform themselves on the condition of the Product and its characteristics, and to select it in accordance with their professional requirements.
The User shall refrain from any use of the Website that does not comply with the laws and regulations in force.
KILOUTOU recalls that any harm to the integrity or proper functioning of the Website may cause the User to incur liability.
In addition, the User warrants that all the information provided at the time of registration is accurate and undertakes to update it on a regular basis.
The User is solely responsible for protecting the confidentiality of their username and password, and is responsible for the use of their account. Consequently, the User remains solely liable to KILOUTOU for actions performed from their account. The User undertakes to inform KILOUTOU immediately of any unauthorised use of a username and/or password, or of any breach of security relating to the Website.
If the password is lost, the User undertakes to contact KILOUTOU immediately, through the “forgotten password” link on the login page to their personal area.
CLAUSE 7. UNDERTAKING OF AVAILABILITY OF THE WEBSITE
Kiloutou shall be liable only for the availability of the Website on the WEB, and shall no incur liability in respect of the quality of service of access providers, communication infrastructure providers or of any means directly or indirectly enabling the User to access the Kiloutou Website.
The User is responsible for their Internet connection and cannot hold KILOUTOU liable for any direct or indirect loss resulting from the User’s inability to access the Website.
Kiloutou reserves the right to suspend access to the website for maintenance or updating, and will inform the User thereof by redirecting them to a maintenance notification page.
Kiloutou shall not be liable for the failure or suspension of third-party services offered by the Kiloutou website and which are delivered by third-party applications for which Kiloutou is not responsible, such as the failure of links to partner sites.
CLAUSE 8. INTELLECTUAL PROPERTY
The Website is the exclusive property of KILOUTOU.
KILOUTOU and the group companies own all the intellectual property rights relating to the Website and, in particular, all graphic, sound, text and software elements, including the underlying technology, or elements of any other kind that compose the Website.
KILOUTOU and the group companies also own the trademarks registered with the Institut National de la Propriete Industrielle [French National Institute for the Protection of Industrial Property (INPI)] and the duly-registered domain names.
The User therefore undertakes not to infringe the intellectual property rights of the KILOUTOU Group and in this respect undertakes not to reproduce, represent or disseminate, even partially, any element protected by an intellectual property right, other than with prior, express consent.
The User also undertakes not to infringe the intellectual property rights of KILOUTOU’s partners and, in particular, their trademarks which are represented on the Website.
Similarly, it is strictly prohibited to carry out any procedure relating notably to the technique of framing or deep-linking, other than with the express, specific and written consent of KILOUTOU.
CLAUSE 9 PERSONAL DATA
In accordance with the French Data Protection Law of 6 January 1978, as amended, you have the right of access to your personal data, their rectification, erasure and portability, and the right to restrict or object to the processing of such data.
For further information on our personal data page: link
CLAUSE 10. LIABILITY
KILOUTOU shall endeavour to ensure the reliability of all information published on this Website, and reserves the right to modify or correct content thereof at any time and without notice. Such information is not contractual. KILOUTOU does not give any warranty as to the accuracy, precision or completeness of the information available on this Website, and excludes all liability for any imprecision, inaccuracy or omission relating to information available on the Website, for any loss that may result from the credence given to this information, its use or the use of a product to which it refers.
In so far as allowed by law, the liability of KILOUTOU shall not exceed the amounts paid in respect of the subsequent contract of sale.
The User shall be liable for direct or indirect damage to property or non-physical loss of any kind, incurred by any third party, including by KILOUTOU, as a result of the unlawful use or operation of the Website, irrespective of the cause and place of occurrence of such loss.
CLAUSE 11. GOVERNING LAW
These GTCU and the ensuing relationship between KILOUTOU and the Users shall be governed by and construed in accordance with French law.
CLAUSE 12 LANGUAGE
These terms and conditions, as well as all contractual information are drafted in French. They have been translated into English for the convenience of our foreign clients. In the event of a dispute, however, only the French version shall prevail. The same shall apply if they are translated into another foreign language.
The sale which will be completed subsequently between the purchaser and Kiloutou will be subject to the following terms and conditions of sale:
GENERAL TERMS AND CONDITIONS OF THE AS-IS SALE OF EQUIPMENT
CLAUSE 1. SCOPE OF APPLICATION
These General Terms and Conditions of Sale, hereinafter referred to as “the GTCS”, apply to all unit or batch sales of Equipment by KILOUTOU to its Clients. In these GTCS, the term “Equipment” refers to the second-hand equipment and tools sold by KILOUTOU.
The second-hand equipment and tools are sold in batches by Kiloutou, either as second-hand equipment or as spare parts, it being specified that all of these items have been handled and used by a large number of professionals and/or non-professional users. The Client therefore expressly acknowledges that these items of equipment and spare parts, although they have been subject to due checks and are compliant with applicable regulations and good practice in tool and equipment hire, they constitute second-hand equipment that has been subjected to wear and tear which was beyond control, and the use of which has not been under the full control of Kiloutou.
The GTCS are expressly approved and accepted by the Client, who declares and acknowledges that they have full knowledge thereof, and therefore waives the right to rely on any conflicting document and, in particular, their own general terms and conditions of purchase. Any document other than these GTCS (catalogue, prospectus, notice, price list, etc.) shall be used information and guidance only and shall not be contractual.
The fact that KILOUTOU does not enforce any provision at a given time shall not be construed as a waiver of the right to subsequently rely on such provision or on these general terms and conditions of sale.
CLAUSE 2. INFORMATION ON THE CLIENT
The Client represents that they are entering into this sale for business purposes, and that they are acting with professional skill in the sector of activity to which the transaction relates.
The Client represents that they have personally had full opportunity to inform themselves on the condition of the Product and its characteristics, and to select it in accordance with their professional requirements. The Client certifies that they have had full discretion in testing it, and that they have chosen the equipment that is the object of the sale in accordance with their professional requirements. Any subsequent claim concerning the conformity of the Equipment to the Client’s requirements shall be deemed inadmissible and shall not lead to either termination of the sale or compensation.
CLAUSE 3. INFORMATION ON THE EQUIPMENT
The Equipment sold by KILOUTOU is either second-hand equipment or equipment that is out of working order and sold only for parts, as specified in the special terms and conditions and on the order form, after acceptance by Kiloutou.
The photos and drawings, information, technical standards and specifications indicated are deemed to be non-contractual. They are provided for indicative purposes only for the most recent models and KILOUTOU shall not be liable for any change thereto. The specifications relating to the Equipment set out in the offers and, in particular, its quality, power and capacities are those indicated by the manufacturer at the time it is marketed. In view of the age and/or condition of the product sold, the aforesaid specifications may therefore be approximate, with no warranty from KILOUTOU as to the second-hand product’s compliance with them. KILOUTOU shall not incur any liability in these grounds. The products marketed by KILOUTOU are deemed compliant with the required technical specifications and with French legislation/regulations in force at the time they are placed on the market. KILOUTOU, however, does give any warranty as to the compliance of the second-hand products marketed with the required technical specifications and French legislation or regulations in force at the time they are ordered by the Client.
The condition of the equipment is described in the “appraisal form” produced by KILOUTOU and which the Client declares that they have received prior to the sale.
The second-hand equipment is supplied, where applicable, with a user manual drafted by KILOUTOU on the basis of information from manufacturer and/or the manufacturer’s instructions. As it is expressly agreed that the equipment is sold as is, KILOUTOU gives no warranty that all the elements or accessories referred to in the manual will be included. Similarly, KILOUTOU gives no warranty as to the availability of spare parts. The purchaser represents that they shall personally deal with the availability of spare parts. If KILOUTOU is unable to provide the manufacturer’s instructions, the purchaser undertakes to obtain them from the manufacturer by their own means. Under no circumstances shall KILOUTOU be liable for failure to comply with the manufacturer’s instructions.
CLAUSE 4. OFFERS
Offers made by KILOUTOU staff verbally or by telephone are binding only if confirmed in writing in the specific terms and conditions. Quotations or pro-forma invoices issued by KILOUTOU are valid for a period of 1 month from the date on which they are sent. The price stated in the quotation is determined according to the quality and quantity of the products. Any change in any of these data on grounds that are not attributable to KILOUTOU will cause the indicated price to change.
CLAUSE 5: DELIVERY
The stated delivery time is indicative and delay in delivering the equipment shall not give rise to any penalty or compensation, nor justify the cancellation of the order. If, however, 3 months after the indicative date of delivery, the product is not available, for any reason other than a case of force majeure, the Client may cancel the order and obtain the return of their deposit, to the exclusion of any other compensation or damages.
Delivery is made in accordance with the order either by directly delivering the product to the Client or their representative, by simply notifying availability, or by delivery to a carrier, designated by the Client, on KILOUTOU’s premises. Unless otherwise provided, transport operations are at the cost and risk of the purchaser. Consequently, KILOUTOU shall under no circumstances incur liability for events occurring during transport.
Unless otherwise provided in the specific terms and conditions, the Equipment are made available to the Client at the KILOUTOU warehouse, the address of which is stated in the specific terms and conditions. The Equipment sold is collected by the Client from the KILOUTOU warehouse. Risk is transferred upon execution of the sale, materialised by the signature hereof. The Client undertakes to take possession of the product within one month following receipt of the notice of availability. On expiry of this period, the costs of storing the product will be invoiced to the buyer at a daily rate of EUR 20 per product, without prejudice to any action which KILOUTOU may wish to take. In any event, delivery can only take place if the purchaser is up to date with its obligations towards KILOUTOU, irrespective of the cause thereof.
Where appropriate, the Client undertakes to remove any reference to KILOUTOU which may still be affixed to the Equipment sold.
The Client undertakes not to resell the Equipment in mainland France.
CLAUSE 6. FORCE MAJEURE
Kiloutou shall not be liable for default or delay in the execution of its obligations that is partially or totally due to an event of force majeure which prevents it from performing its obligations either momentarily or in the long-term.
Any event causing serious difficulties in performance by Kiloutou, its suppliers or carriers, such as declared or wildcat internal or external strikes, lock-outs, bad weather, fires, floods, frost, blockages of communication channels, are considered an event of force majeurewithin the meaning of this clause.
Kiloutou will inform the Client as soon as possible by any means of the occurrence of the event and the consequences on the performance of its obligations.
If the duration of the event of force majeure invoked exceeds 40 consecutive calendar days, each of the parties shall be entitled to terminate the contract without compensation or damages due from either party.
CLAUSE 7. PRICE
The prices are determined excluding VAT and local taxes, and are provided in the specific terms and conditions. Prices are deemed to be on the basis of collection from the warehouse of KILOUTOU. The quoted price is determined on the basis of the quality and quantity of the products and the changes made to them. Any change in any of these data on grounds that are not attributable to KILOUTOU will cause the indicated price to change. Unless otherwise provided by way of express specific terms in the contract, payment for the Equipment is made by bank cheque or wire transfer prior to collection.
CLAUSE 8. FRUSTRATION
These GTCS expressly exclude the statutory regime of frustration of contract provided in Article 1195 of the Civil Code. The parties therefore each expressly waive their rights under Article 1195 of the Civil Code and undertake to satisfy their obligations notwithstanding the contractual balance being disturbed by circumstances that were unforeseeable at the time the sale was entered into despite the performance thereof becoming excessively onerous, and to bear all the economic and financial consequences thereof.
CLAUSE 9. PAYMENT
Unless otherwise provided, invoices are payable to KILOUTOU, in cash and without discount, on signature of this contract, and prior to collection, without the possibility of set-off against any debt due to the Client from KILOUTOU. The payment will be deemed to have been made only after actual receipt of the price.
Any amount paid by the Client at the time of the order constitutes a deposit. Any order is accepted in consideration of the legal, financial and economic situation of the Client at the time of the order. If the Client’s financial situation deteriorates between the date of the order and the date of delivery, KILOUTOU may require additional guarantees or terminate the sale. If the Client refuses to make payment when placing the order without offering any sufficient guarantee, KILOUTOU may refuse to honour the order placed and to deliver the relevant product, and the Client shall not be entitled to argue that refusal of the sale was unjustified, or claim any compensation whatsoever.
Any amount not paid on the due date stated in the invoice shall automatically entail the payment of late payment penalties at a rate equal to 3 times the statutory interest rate in force, as well as the forfeiture of all payment terms. For each unpaid invoice, a flat-rate indemnity for collection costs of EUR 40 shall also be due automatically and without prior notification. In the event of default or late payment, KILOUTOU may cumulatively:
1. unilaterally terminate the sale 7 calendar days after a formal demand has remained without effect;
2. cancel or suspend any other order, delivery and/or services in progress;
3. im. impose new terms of payment on the client for all invoices irrespective of whether or not they are overdue, and, in particular, require their immediate payment, without prejudice to any other action.
CLAUSE 10. EXPORT
If an order is placed for delivery to a country other than mainland France, and unless otherwise provided in the specific terms and conditions on the order form, Incoterm 2010 Ex-works (EXW) is automatically applied.
The Client is deemed to be the importer of the relevant product(s). As such, the Client will be required to verify and comply with local legislation/regulations in force. KILOUTOU shall not be liable for the non-compliance of the product with the legislation of the country of import.
Unless otherwise provided in specific terms and conditions, the price indicated to the Client does not include customs duties, import duties or other local taxes which will be borne by and are the sole liability of the Client. The costs of carriage, special packaging and documentary credits shall be borne by the Client.
CLAUSE 11. WARRANTY EXEMPTION
Equipment delivered and accepted cannot be returned or exchanged. The Equipment sold by KILOUTOU is second-hand equipment. As an informed professional, acting with professional skill in the sector of activity to which the transaction relates, the Client certifies that it is aware of the condition of the Equipment, in particular from inspecting the appraisal form provided by KILOUTOU, and declares that it accepts the Equipment as they find it on the day of the sale, at their own risk and without any warranty of any kind.
It is formally agreed that the vendor will be exempt from any warranty against any hidden or apparent defects, and the purchaser shall not be entitled to claim any reduction in price nor any warranty or indemnity from the vendor, on any grounds whatsoever and, in particular, hidden or apparent defects, obsolescence, wear and tear, or breakdown. It is expressly agreed that the purchaser shall personally deal with any difficulties of any kind whatsoever, without any remedy available against KILOUTOU, in particular, concerning the Equipment, its use or the consequences of its use.
CLAUSE 12. EXEMPTION FROM LIABILITY
Kiloutou shall not be held liable for any non-physical and/or indirect loss that may result from the contract, including but not limited to any financial or commercial loss, or loss of profit, business, orders, opportunity or goodwill, as well as any action against the purchaser by a third party. Furthermore, the Vendor shall under no circumstances be liable for loss resulting from the non-performance or poor performance by the purchaser of one of their obligations, or from the misuse of the equipment in relation to the manufacturer’s recommendations. Kiloutou shall not be liable for any direct or indirect damage to property or non-physical loss resulting from the use of the equipment.
In the event of damage caused by a safety defect in the product, the purchaser must first seek the liability of the manufacturer. Kiloutou shall not be liable for the harmful consequences of a defect in the Equipment sold to other goods, belonging to the Client or to third parties, which are not used by the victim mainly for their own private use or consumption.
In any event, and if KILOUTOU is held liable in connection with this sale for the Equipment sold, the maximum amount of compensation which it may be ordered to pay shall not exceed the price of the Equipment sold to the Client.
CLAUSE 13. RESERVATION OF TITLE
The equipment sold remains the property of KILOUTOU until full and effective payment of the price by the Client, even if payment terms are granted. The mere hand-over of a security creating an obligation to pay does not constitute a payment within the meaning of this clause.
For the duration of the retention of title, the Client shall bear the risk of loss or destruction of the item sold upon execution of the sale. The transfer of risk also applies to damage caused to third parties as a result of the use of the Equipment.
In the event of non-payment, KILOUTOU is entitled, without prior notice and independently of any court proceedings, to demand from the Client, who will no defence against this, at the Client’s expense, to either return the aforesaid equipment or pay an amount equal to the price of the products due to KILOUTOU. Restitution, if applicable, shall be made at the Client’s cost and risk. The right to make such claim shall be available even if collective proceedings have been instigated against the Client. In this respect, the Client undertakes to store the equipment sold in an individualised manner and not to resell it without, on the one hand, having informed the sub-purchaser of the existence of this clause and, on the other hand, having informed Kiloutou by registered letter with acknowledgement of receipt, so that it could exercise its rights and procure payment from the sub-purchaser or claim the equipment.
In the event of intervention by the purchaser’s creditors, in particular in the event of seizure of the Equipment or the launch of collective proceedings, the purchaser must immediately inform KILOUTOU thereof, by registered letter with acknowledgement of receipt, as well as the distraining creditors or the organs of the collective proceedings.
The purchaser shall refrain from granting a pledge over, or transferring title by way of security to, the equipment sold.
If the Retention of Title Clause is implemented, deposits paid shall be definitively acquired by KILOUTOU.
CLAUSE 14? JURISDICTION
Any dispute relating to the execution, construction, performance or non-performance of the sale and these terms and conditions shall be settled by the Commercial Court within the catchment area of the registered office of Kiloutou, to which the parties grant exclusive jurisdiction, even in the event of a guarantee call or multiple defendants.
CLAUSE 15. LANGUAGE
These terms and conditions, as well as all contractual information are drafted in French. If they are translated into one or more foreign languages, only the French text shall prevail in the event of a dispute.
CLAUSE 16. GOVERNING LAW
Any issue relating to these terms and conditions and the sales they govern shall be governed exclusively by French law, to the exclusion of any other law, including to the exclusion of the United Nations Convention of 11 April 1980 on the International Sale of Goods (Vienna Convention).