xChange Standard Container Sales Contract
(Effective from 25th of June 2024)
Preamble
A. This xChange Standard Container Sales Contract (“Standard Sale Terms”) serves as the default terms for Transactions on the xChange Trading Platform between The Seller and The Buyer of the Equipment.
B. xChange is not a party to this contract apart from its role as commercial agent of The Seller.
C. While all commercial details (e.g., Sale Price, Free Storage Period, etc.) are negotiated and agreed on The Trading Platform (“Negotiated Sale Terms”), the terms below govern the process and responsibilities around the Transaction.
D. While these terms have been designed with the objective of maximum neutrality and fairness between The Buyer and The Seller, both parties are free to agree on deviations as part of their negotiation on The Trading Platform.
1) Deviation from Standard Sale Terms
a) Any modifications, alterations or supplementary terms between The Seller and The Buyer beyond the Standard Sale Terms and related terms (e.g., xChange Trading Payment Handling Terms and Conditions, xChange Claims Terms and Conditions) can be documented and stored in the dedicated “Images and additional information” section or in the deal chat on The Trading Platform.
b) Such modifications, alterations or supplementary terms are not processed, guaranteed, or enforced by xChange.
2) Payment
a) Payment agreed upon in the Negotiated Sale Terms is due latest 7 (seven) days after the issuance of the Invoice and prior to delivery or pick–up of any Equipment to/by The Buyer.
b) The Seller or xChange as its nominated agent is entitled to raise the Invoice at the time the Transaction is accepted.
c) Containers remain the property of The Seller until payment is received by The Seller or xChange as its nominated agent in full.
d) In case The Buyer and The Seller have selected “Payment Handling” upon acceptance of the Transaction on The Trading Platform, The Trading Payment Handling Terms and Conditions apply. In any case of conflict between the provisions of the Trading Payment Handling Terms and Conditions and this document, the provisions of the former shall prevail.
3) Taxes, Duties, Charges
a) The Sale Price negotiated in the Transaction does not (unless otherwise specified) include taxes of any kind or other amounts. The Buyer agrees to assume exclusive liability for and to pay, indemnify and hold The Seller harmless for all sales or use taxes, transfers, titles and registration fees, VAT, domestications, personal property taxes or other taxes, tolls, levies, imposts, duties or governmental charges imposed in connection with the sale of Equipment covered by the Invoice, or any services rendered by The Seller in connection with this Invoice, including any penalties, fines or interest thereon.
4) Domestication, Customs
a) Unless otherwise specifically agreed with The Seller in the Negotiated Sale Terms, The Buyer is aware that, at the time of transfer of ownership the Equipment has not been brought into free circulation and all Equipment remains as “non-domesticated goods”. The Buyer agrees that the Equipment will not be resold or otherwise disposed of unless The Buyer pays all applicable customs or/and other taxing authorities including any VAT or other taxes and import duties due upon import and/or domestication of the Equipment, or any services rendered by The Seller in connection with this Invoice, including any penalties, fines or interest thereon.
b) If The Buyer chooses to import Equipment to convert it to domestic use, then The Buyer agrees to do so at their own costs including any customs and/or import dues and taxes upon domestication. The Seller makes no representation as to the prior payment or current application of import duties or other taxes. The Buyer shall provide The Seller with proof of payment of any such taxes, duties, or other charges upon The Seller’s request.
c) For Transactions of Equipment as “non-domesticated goods” The Buyer shall provide The Seller or its nominated agent with a proof of export upon The Sellers request. The request for a proof of export must be made in writing on The Trading Platform and no later than 365 days after the Acceptance Date. The Buyer is not liable for charges that arise from a missing proof of export if the proof of export has been requested later than 365 days after the Acceptance Date.
5) Neutralization of Equipment
a) The Buyer agrees and is responsible at his expense, for the “neutralization” i.e. removal of all prefixes, identification system check digits, names and addresses, logos, decals, markings, designs, symbols or like items, as well as ACEP markings (as appropriate) of Equipment immediately after the transfer of ownership. The Seller reserves the right to repossess the Equipment in case it is not neutralized in breach of this clause.
6) Transfer of Container Ownership
a) Ownership to the Equipment passes to The Buyer after payment of the amount stated on the Invoice to The Seller or xChange as the nominated agent.
b) The Seller shall, to enable an orderly pick–up or delivery process:
i) Inform The Buyer of the earliest pick-up date when the Equipment is available or in case of delivery of the Equipment to The Buyer (for Gate-Buy Deals), inform The Buyer about the planned delivery date.
ii) Provide The Buyer and the Depot with a valid Release Document which details Equipment Type, Equipment Quantity, Depot Name, Depot Address, Local Contact Phone Number, Local Contact Email Address, and any other information necessary to pick-up the Equipment. In case The Seller has nominated specific containers for the Transaction, the Container ID also needs to be included. The Release Document shall be valid for 30 days after the earliest pick-up date unless otherwise negotiated between the parties. In case the Equipment is delivered to The Buyer a Release Document is not required from The Seller.
iii) Provide the Release Document within 48 (forty-eight) hours of the payment of the Sale Price.
iv) Object to pick-up notice by The Buyer in case the Equipment is not available within 24 (twenty-four) hours. If The Seller fails to object to a notified pick-up, and The Buyer unsuccessfully tries to pick up the Equipment 24-96 (twenty-four to ninety-six) hours after the notice by The Buyer, The Buyer can claim a compensation by raising an Operational Claim via The Trading Platform in accordance with the xChange Claims Terms and Conditions.
v) For Gate-Buy Deals (In case the Equipment is delivered to The Buyer): notify The Buyer latest 48 (forty-eight) hours prior to arrival of the Equipment in the destination.
vi) For Gate-Buy Deals (In case the Equipment is delivered to The Buyer): notify The Buyer’s Depot and The Buyer at least 24 (twenty-four) hours prior to delivery and only after a Drop-Off Document has been provided by The Buyer on The Trading Platform. Failure to comply with this rule shall result in a waiver of claims for damages against The Buyer or its affiliates or agents relating to inability to deliver the Equipment.
vii) Provide within 48 (forty-eight) hours after a pick-up or delivery of the Equipment a gate-out or gate-in report on The Trading Platform for each piece of Equipment stating location, depot or terminal, container number and type, data and time of the gate-out or gate-in move. Disputes on reported gate-outs and gate-ins are handled according to the xChange Claims Terms and Conditions.
c) The Buyer shall, to enable an orderly pick-up or delivery process:
i) Notify The Seller’s depot and The Seller at least 24 (twenty-four) hours prior to pick-up to verify availability of the Equipment and ability to retrieve. Failure to comply with this rule or an objection by The Seller or its depot to a pick-up notice, shall result in a waiver of claims for damages against The Seller or its affiliates or agents relating to unavailability of Equipment.
ii) Pick up the Equipment 24-96 (twenty-four to ninety-six) hours after the notice. Failure to pick-up the Equipment 24-96 (twenty-four to ninety-six) hours after the notified pick-up time shall result in a waiver of claims for damages against The Seller or its affiliates or agents relating to unavailability of Equipment.
iii) For Gate-Buy Deals (In case the Equipment is delivered to The Buyer): Provide The Seller and the depot with a valid Drop-Off Document within 48 (forty-eight) hours from receiving the notification of arrival in destination from The Seller. This Drop-Off Document shall entail details about Equipment Type, Equipment Quantity, Depot Name, Depot Address, Local Contact Phone Number, Local Contact Email Address any other information necessary to drop-off. The Drop-Off Document shall be valid for 30 days.
iv) For Gate-Buy Deals (In case the Equipment is delivered to The Buyer): object to delivery notice by The Seller within 24 (twenty-four) hours in case the Equipment cannot be delivered. If The Buyer fails to object to a notified delivery, and The Seller unsuccessfully tries to drop off the Equipment 24-96 (twenty-four to ninety-six) hours after the notice by The Seller, The Seller can claim a compensation by raising an Operational Claim via The Trading Platform in accordance with the xChange Claims Terms and Conditions. In any objection to the delivery notice The Buyer must cover reasonable Storage Charges of the Equipment resulting out of the objection.
v) Provide within 48 (forty-eight) hours after a pick-up or delivery of the Equipment a gate-out or gate-in report on The Trading Platform for each piece of Equipment stating Location, Depot or Terminal, Container Number and Equipment Type, ata, and time of the gate-out or gate-in move. Disputes on reported gate-outs & gate-ins are handled according to The xChange Claims Terms and Conditions.
7) Condition of Equipment on Pick–up, Delivery & Substitution of Equipment
a) The Seller must ensure that the Equipment is in the agreed-upon condition as specified in the Negotiated Sale Terms at the time of pick-up or drop-off (in the case of Gate-Buy Deals where the Equipment is delivered to The Buyer). Additionally, the Equipment must have been designed, manufactured, tested, and maintained in accordance with the regulations and standards outlined below:
i) International Organization for Standardization (ISO) – Specifications and Classification Series 1 Freight Containers.
ii) International Convention for Safe Containers (CSC) of 1972 or any amendment thereof.
iii) Customs Convention on Containers of 1956 and 1972 or any amendment thereof.
iv) Unified Container Inspection and Repair Criteria/Refrigerated Container Inspection and Repair Criteria (UCIRC/RCIRC) or any amendments thereto.
b) The Supplier warrants that the Equipment is delivered free from all liens and encumbrances.
c) If applicable for the agreed condition of the Equipment, the Supplier warrants that all Equipment delivered is operated under CSC Approved Continuous Examination Programme (ACEP). For clarity, this means that the Equipment must have a valid CSC certificate and plate at the time of pick-up or drop-off.
d) The Buyer is aware that Equipment is not subject to any ‘fit-for-purpose’ warranty claim even if the Equipment has a CSC plate.
e) The Buyer understands and agrees that the specific piece of Equipment requested for purchase may not be the one ultimately provided. However, The Seller remains obligated to deliver Equipment that meets the agreed-upon condition and specifications outlined in the Negotiated Sale Terms. The Seller must ensure that any substituted Equipment complies fully with these terms or provide compensation in accordance with the procedure established by the xChange Claims Terms and Conditions.
f) xChange provides detailed descriptions of the different condition levels of Equipment which are accessible via The Trading Platform. These definitions are the sole standards that apply to any Transaction on The Trading Platform.
g) In an event of any dispute regarding the condition or quality of Equipment upon pick-up and delivery, the resolution of the said dispute will be resolved in full accordance with the xChange Claims Terms and Conditions if The Buyer or The Seller have raised an Operational Claim via The Trading Platform.
8) Cancellation
a) The Seller may cancel the Transaction fully or partially, if The Buyer does not fulfil one or multiple of his Main Obligations. Main Obligations of The Buyer are:
i) Payment of the agreed Sale Price to The Seller or xChange as its nominated agent latest by the Invoice Due Date.
ii) If pick–up of the Equipment has been agreed on in the Negotiated Sale Terms, and The Seller has provided a pick–up deadline: Picking-up the Equipment within the given deadline. This deadline cannot be shorter than 14 (fourteen) days from the moment of communication by The Seller in writing on The Trading Platform and can earliest start from the day of provision of the Release Document to The Buyer.
iii) For Gate-Buy Deals (In case the Equipment is delivered to The Buyer): Providing a Drop–Off Document and enabling the delivery of the pieces of Equipment to the Buyer’s Depot latest 48 (forty-eight) hours after a Drop-Off Document has been requested by The Seller but earliest 14 (fourteen) days before the start of the delivery period agreed upon in the Negotiated Sale Terms.
b) The Buyer may cancel the Transaction fully or partially, if The Seller does not fulfil one or multiple of his Main Obligations. Main Obligations of The Seller are:
i) Providing the Equipment in the Condition and Specifications agreed upon in the Negotiated Sale Terms. The process of how cancellations under this Main Obligation are handled is outlined in detail in the xChange Claims Terms and Conditions.
ii) Providing a Release Document within 48 (forty-eight) hours from the moment of payment and allowing The Buyer to pick up the Equipment after a pick-up notice according to Section 6)b).
iii) For Gate-Buy Deals (In case the Equipment is delivered to The Buyer): delivery of the Equipment to The Buyer’s designated depot latest 14 (fourteen) days after the end of the Delivery Period that has been agreed upon in the Negotiated Sale Terms.
c) After a cancellation according to section 8) the party that did not fulfil a Main Obligation has to pay a Cancellation Fee per cancelled piece of Equipment to the damaged party. The amount of the Cancellation Fee per piece of Equipment is shown on The Trading Platform. The Cancellation Fee must be paid on top of other fees that are due according to this contract.
d) Cancellation Fees are subject to Payment Handling Fees according to the xChange Trading Payment Handling Terms and Conditions.
e) Cancellations must be communicated on The Trading Platform.
f) xChange reserves the right to cancel any Transaction and to apply the corresponding Cancellation Fee for reasons of quality assurance and risk management.
9) Cost for Storage, Handling, Pick–up, and Drop–off
a) The Buyer shall endeavour to pick up all Equipment within the Free Storage Period indicated in the Negotiated Sale Terms.
b) The starting day of the Free Storage Period shall be the Release Date.
c) If the Equipment is not picked-up within the Free Storage Period, Storage Charges will be applied. The Storage Charges are calculated per piece of Equipment and per day that the piece of Equipment is not picked-up after the Free Storage Period has ended. The Storage Charges can be found on The Trading Platform.
d) Storage Charges also apply if The Buyer or The Seller rightfully cancels the Transaction due to non-fulfilment of a Main Obligation by the other party according to Section 8).
e) Costs for handling the Equipment are borne by The Seller for Pick-Up Deals and by The Buyer for Gate-Buy Deals. Examples for such costs are Lift on Lift off Charges, Stacking Move Charges or Depot Handling Charges. In the case that The Buyer had to lay out the expenses for such charges to pick up the Equipment nevertheless, The Buyer shall raise an Operational Claim via The Trading Platform in accordance with the xChange Claims Terms and Conditions to get them reimbursed.
f) The Buyer may appoint a surveyor to inspect the Equipment prior to the pick-up. The costs of such surveyor shall be for The Buyer’s account. The Seller shall make the Equipment available for this inspection. Shifting and stacking charges for surveys go to The Buyer’s account.
g) The Buyer shall check the Condition and Specification of the Equipment upon pick-up at the depot to ensure that no incorrect Equipment is picked-up. In the case that Equipment that was not in the agreed Condition or Specification was nevertheless picked-up, The Buyer must provide proof from the time of pick-up by providing pictures of the Equipment and must raise an Operational Claim via The Trading Platform in accordance with the xChange Claims Terms and Conditions.
10) Liability
a) Unless otherwise defined in this Standard Sale Agreement or the Negotiated Sale Terms, The Seller shall under no circumstances be liable for any loss of profits or consequential, special, incidental, indirect or punitive damages, whether based upon breach, negligence, strict liability, tort, breach of contract or any other theory, or for failure to perform their obligations. The Seller’s sole liability hereunder for any and all loss or damage to The Buyer based upon breach of contract or tort shall be limited to and shall in no event in the aggregate exceed The Buyer’s Sale Price of the particular Equipment with respect to which losses, damages, expenses or costs are claimed.
b) Unless otherwise defined in this Standard Sale Agreement or the Negotiated Sale Terms, The Seller shall not be liable for any damages, costs or expenses paid or incurred by The Buyer on account of any imperfections, deviation from specifications or other defects impairing the quality, value or suitability for any purpose of any Equipment sold hereunder, whether caused by The Seller’s negligence, strict liability acts or omissions, or otherwise.
c) No statement or recommendation made, or assistance given by The Seller or their representatives, either orally or written to The Buyer, its customers or agent or other person in connection with the sale by The Buyer, shall constitute a waiver by The Seller of any provisions hereof or affect The Seller’s liability as herein defined.
11) Indemnification
a) The Buyer and/or its assignees or successors will indemnify, defend and hold harmless The Seller and its affiliates (including directors, officers, employees and agents thereof) for any damages or liabilities whatsoever incurred in relation to the Equipment subsequent to the time of delivery, including but not limited to property owned or used by, or in the care, custody or control of The Buyer, arising out of or in any manner connected with the ownership, possession, use, maintenance, modification, overhaul, operation of each Equipment after Delivery of such Equipment.
12) Notices
a) All notices given by either party or their agents to the other party in accordance with the provisions of this Agreement shall be in writing.
b) For the purposes of this Agreement, “in writing” shall mean any method of legible communication. A notice may be given by any effective means including, but not limited to, cable, telex, fax, e-mail, registered or recorded mail, or by personal service.
12) Severability Clause
a) In case of doubt, if a provision of this Agreement is or becomes invalid, contestable and/or unenforceable – for whatever reason – this shall not affect the validity of the remaining provisions. The invalid, contestable and/or unenforceable provisions shall be interpreted, reinterpreted or replaced in such a way that the desired economic success is obtained as closely as possible. The same shall apply if this Agreement has a loophole.
14) Definitions
“Acceptance Date” means the date and time when The Buyer and The Seller have agreed to the Negotiated Sale Terms.
“Cancellation Fee” means a penalty amount paid by the customer in accordance with the cancellation rules.
“Container ID” means the Equipment’s unique container identification. The identification system provides uniform international identification of containers, in documentation and in communication associated with the movement of containers from door to door. It consists of a 3-digit owner code, a 1-digit Equipment category identifier, a 6-digit serial number and a 1-digit check digit.
“Depot Address” means the city, post code, street name, number and any required driving instructions to the Depot designated for the pick-up of the Equipment.
“Depot Name” means the name of the Depot designated for the pick-up of the Equipment.
“Drop-Off Document” means the document that enables The Seller to deliver the Equipment to The Buyers nominated Depot. This document is also referred to as “Drop-off Reference”.
“Equipment Quantity” means the number of containers agreed to be sold in a Transaction.
“Equipment Type” means the size and specification of the Equipment sold in a Transaction.
“Equipment” means freight containers as defined by the International Organization for Standardization (ISO) and/or related Equipment, such as clip-ons.
“Free Storage Period” means the time after the Release Date in which The Seller covers the cost for storage.
“Gate-Buy Deal” means Transactions on The Trading Platform where the Seller is responsible for delivering the shipping container to the Buyer’s designated depot.
“Invoice Due Date” means the latest date by which the Invoice must be paid i.e. by when the payment needs to be received on one of the bank accounts shown on the Invoice.
“Invoice” means the document containing all agreed Sale Terms of a Transaction between The Buyer and The Seller and serves as demand for payment.
“Local Contact” means the name, phone number, email address of the person nominated by The Seller to serve as point of contact to organize the pick-up of the sold Equipment.
“Negotiated Sale Terms” means the specific financial and conditions details related to the sale of Equipment agreed between The Seller and The Buyer. These Terms are mutually agreed by The Buyer and The Seller for each individual Transaction on The Trading Platform.
“Operational Claim” means an officially opened dispute pertaining to any parameter or issue related to a Transaction on The Trading Platform. Such issues include but are not limited to Quality Issues, Container Damage & Cancellation. The full list of such issues is defined in the xChange Claims Terms & Conditions.”
“Payment Handling Fee” means the fee charged by xChange for handling any payments (as commercial agent of The Seller) in connection with Transactions on The Trading Platform.
“Pick-Up Deal” means Transactions on The Trading Platform where the Buyer is responsible for picking up the shipping container from the Seller’s designated depot.
“Release Date” refers to the date stated on the Release Document upon which The Buyer can pick up the Equipment.
“Release Document” means the document which enables The Buyer to pick up the Equipment of the Transaction at the agreed Depot. This Document is also referred to as “Release Reference”.
“Sale Price” means the amount agreed on by The Seller and The Buyer. It is stated on the Invoice for the sale of the Equipment.
“Standard Sale Terms” means the xChange Standard Container Sales Contract
“Storage Charges” means the storage costs which must be paid by The Buyer after the end of the Free Storage Period. The storage cost is negotiated on a “charge per container per day” basis between The Buyer and The Seller on The Trading Platform and is part of the Negotiated Sale Terms.
“The Buyer” means the party buying the Equipment.
“The Seller” means the party selling the Equipment.
“The Trading Platform” means the online Platform operated by xChange Solutions GmbH which The Buyer and The Seller use to facilitate a Transaction.
“Transaction” means the specific agreement between The Seller and The Buyer related to the sale of Equipment.
“xChange” means the xChange Solutions GmbH