REMARKET NOW Sales Program

Terms and Conditions for Partners

Effective Date: Juli 2011

This Agreement sets out the terms and conditions under which CDS Business Services GmbH (hereunder mentioned as CDS) will sell products under the REMARKET NOW Sales Program for Partners. The relationship between parties will be that of a partner purchasing the products from CDS as an independent contractor and reselling them to its customers. Partner and its employees are not agents or representatives of CDS Busniess Services GmbH for any purpose, and have no power to represent, act for, bind or commit CDS. This agreement does not replace individual contractual agreements between partner and CDS Business Services GmbH.
The REMARKET NOW Sales Program is the portfolio of the products that are offered to CDS partners. The products include two categories: New products and Remanufactured products. “New” products come from end-of-life or factory excess or any other channel generating access products. “Remanufactured” products are generally spoken refurbished to a functional condition equivalent to new, but may have certain cosmetic imperfections. If this is not the case CDS will explicitly mention this in the product description or auctions. Both categories are offered with the original Manufacturers warranty as offered towards CDS.
The quantity of “New” and “Remanufactured” products offered by CDS under the REMARKET NOW Sales Program is limited. The availability might change during the auctions. CDS has the right to change the quantities any time withour prior notice.
  1. CDS will offer the products via web fixed price sales, paper fixed price sales, web auction sales, paper auction sales, open book models or other sales methods.
  2. In the case of auction sales, Partners must follow and accept the rules of the auction. These rules can be obtained from the CDS Auction Platform.
  3. Products offered via the REMARKET NOW shop and auctions are of limited availability. CDS has implemented quality processes to secure availability and shipment of all products offered via this platform, but is taking no legal liability. CDS withholds the right to formally reject sales partner orders due to lack of product availability. Sales partner accepts that system generated e-mails and other messages that claim the win of an auction or the acquisition of a product via the shop are not legally binding. Formal acceptance of sales partner’s order is done via the official CDS order number only.

5. DELIVERY [top]
Standard delivery term information for the products is available from the CDS auction platform.
  1. Price Protection on stock: Products sold under this Agreement are not eligible for price protection on stock.
  2. All prices (in the REMARKET NOW shop and/or auction) reflect net sales prices to CDS 1st Tier partners. 2nd Tier partners (not having a direct contract with CDS) are obliged to negotiate final purchase prices with CDS. CDS is free to decide on any uplift to the auction win price or shop price.

7. PAYMENT [top]
Unless otherwise agreed, Partners will pay CDS prior to delivery, unless explicitly agreed otherwise through the grant of a credit line in favour of the Partner.
8. GUARANTEE [top]
The products are covered by standard manufacturer’s product guarantee. The period of the warranty for the products will be communicated by CDS at the time the products are offered for sale by CDS.
9. Warranty (“Gewährleistung”) [top]
  1. CDS warrants that the products correspond to the manufacturers specifications applicable at the time of the purchase. This does not apply for marginal differences between the delivered products and the agreed quality.
  2. All warranty claims, unless claims which can be related to the shipping of the goods will be handled through the manufacturer.
  3. If CDS receives notice of such defects during the warranty period, CDS undertakes at its option the assurance of a managed process towards the manufacturer under the terms and conditions of the manufacturer to repair or replace defective products within an adequate timeframe.
  4. Compensation of expenses and damages is excluded in case of defects.
  5. Customer will notify defects related to the shipping of the products to CDS in writing without delay. If the notification of defect turns out to be without legal cause, Customer will pay CDS’s expenses.
  6. All defects related to the product itself must be handled through the manufacturer.

10. LIABILITY [top]
  1. CDS will be fully liable for damage caused by intent or gross negligence by CDS , its legal representatives or its vicarious agents.
  2. In case of slight negligence, CDS will be liable for any breach of essential contractual obligations of CDS , its legal representatives or its vicarious agents provided such breach endangers the purpose of the agreement. In this case, damages will be restricted on the merits and in terms of amount to those cases of damage that CDS was reasonably able to foresee at the time of the conclusion of the agreement, based on the circumstances known to CDS at that date. CDS's total liability will not exceed 50.000 €. The liability for indirect damages is excluded.
  3. CDS will not be liable for default or non-performance, if such default or non-performance is due to causes that are beyond CDS's reasonable control.
  4. CDS will not be liable for delays in delivery.

  1. Risk of loss and damage for products will pass to Partner upon delivery at the designated location. Title to the products will pass to Partner upon the later of final payment or delivery.
  2. If the products are incorporated in other products by Partner, CDS will become a co-owner of the newly created products, the scope of co-ownership being determined by the ratio of the value of the goods subject to retention of title to that of the other products that were also used. The products thus created will also be deemed to be products subject to retention of title by CDS .
  3. Insofar as Partner fulfils its payment obligations to CDS , the Partner will have the right to resell such goods, however, only subject to retention of title. Other disposals, in particular pledging of the goods or transfer of ownership thereto by way of security will not be permitted. If third parties raise claims to the goods subject to retention of title, the Partner will identify these goods as CDS's property and notify CDS without delay.
  4. Partner assigns to CDS by way of security all claims and ancillary rights that may arise from reselling or relating the products subject to retention of title or from Partner’s business relationship with its customers in connection with the reselling or re-letting of the products subject to retention of title, up to the amount of the value of the products. Partner will be authorized and under the obligation to collect the assigned claims. If Partner should default on payment, CDS will be entitled at any time to revoke this authorization and to notify the Partner's purchasers of the assignment and to take possession of the products subject to retention of title and if required demand that Partner assign any claims against third parties for the return of the products. Partner will be under the obligation to give CDS all information required for the recovery of the claims and to hand over the relevant documents. CDS's taking back or attaching the products subject to retention of title will not be deemed a rescission of the Agreement. At Partner’s request, CDS will release the securities insofar as their value exceeds all claims to be secured by more than 20%.

Partner will comply with the applicable data protection laws when dealing with the products sold under the REMARKET NOW Sales Program and any personal or confidential data contained therein. Partner agrees to indemnify and hold CDS harmless from any claims by third parties – including the costs of legal recourse – which emanate from a violation of data protection regulations. Without prejudice to its right to claim damages, CDS may terminate this Agreement with immediate effect if Partner resells the products without having first erased all data and all software from the unit. Unless expressly agreed otherwise, any personal data disclosed to CDS may be used by CDS in accordance with the CDS privacy policy. CDS may share such personal data with other affiliated CDS companies and subcontractors subject to the confidentiality terms in this Agreement. CDS may transfer such personal data to countries outside the EEA and Switzerland where such CDS affiliates or subcontractors are located either under the safe harbor regime or subject to adequate contractual measures. CDS will not share personal data with any other third parties before securing the prior consent of the person concerned.
  1. In the case of the (re-)export or import of the Products, Partner assumes responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. CDS may suspend performance under or terminate with immediate effect this Agreement: i) if Reseller is in violation of applicable laws and regulations, and ii) to the extent necessary to assure compliance under U.S. or other applicable export or similar regulations will comply with all applicable (re-)export regulations, and the Partner shall notify its customers about the applicability of such (re-)export regulations.
  2. CDS advises Partner that the United States Foreign Corrupt Practices Act (“FCPA”) prohibits the payment or giving of anything of value, either directly or indirectly, by a United States company, or any of its subsidiaries or affiliates, to an official of a foreign government, foreign political party, party official or candidate for foreign public or political office for the purpose of influencing an act or decision in their official capacity, or inducing them to use their influence with the foreign government, to assist the United States company, or any of its subsidiaries or affiliates, in obtaining or, retaining business for or with, or directing business to, any person. Partner agrees that it will not take any action which would cause CDS to be in violation of the FCPA or any other applicable anticorruption law or regulation and undertakes to duly notify CDS if it becomes aware of any such violation and to indemnify CDS for any losses, damages, fines, penalties whatsoever which CDS may suffer or incur arising out of or incidental to any such violation. In case of breach of the above, CDS may suspend or terminate the Agreement at any time without notice or indemnity.
  3. Partner must inform its customers clearly and explicitly that the products come from the REMARKET NOW Sales Program and are not always new but can also be remanufactured products, as required by applicably local laws, and at least in its commercial flyers, its website, its advertisements, offers for sale and sale agreements. Without prejudice to its right to claim damages, CDS may terminate this Agreement with immediate effect if Partner breaches this obligation.
  4. In case of remanufactured products, partner must add systematically to the product name “Remanufactured” or “Renew” in any communication regarding the product.

  1. This Agreement shall enter into force upon the effective date first mentioned above and shall continue for an indefinite duration until terminated.
  2. This Agreement may be terminated by CDS at any time. The termination of this Agreement shall not affect any contracts of sale that are already concluded under this Agreement.

  1. The Parties to this Agreement and their respective staff will treat all facts and information which they become aware of pertaining to the other party, strictly confidential and refrain from passing such information on to third parties unless the information has been declassified by the other party to the Agreement or is generally known without this violating any obligation. This shall in particular relate to facts or information involving business processes, business results, production figures, products, business policy, taxes and levies, receivables, organization and social or business administrative measures and data from procurement functions.
  2. This obligation shall terminate two (2) years after having received the last facts or information from the other party. The Partner shall be obligated to inform its staff accordingly.