A) TERMS OF DELIVERY AND PAYMENT
All legal relations between Purchaser and Central National (UK) Limited trading as Lindenmeyr International (referred to herein as “Seller”), are governed, in decreasing order of importance, by the order confirmation, these present sales terms and conditions (hereinafter “Terms of Business”), by English law. The Terms of Business are exclusively definitive. Any and all deviating conditions of the Purchaser are excluded and inapplicable. Even if Seller is aware of deviating conditions of the Purchaser when supplying goods to the Purchaser without reservation, Seller’s Terms of Business shall apply exclusively.
Quotations by Seller are non-binding. Contractual agreements are concluded exclusively through written order confirmation by Seller. This is also definitive for the scope of supply. Changes or amendments to the order are only binding for Seller if they are confirmed in writing and are made with an expressly authorized representative. If individual contract terms are agreed, the respective order confirmations are considered binding.
Unless expressly provided in the order confirmation, no fixed delivery dates apply. The delivery is made with the reservation that Seller itself is supplied in a correct and timely manner if Seller has concluded a congruent covering transaction, and Seller is not responsible for non-availability of the goods. The goods are dispatched and transported on behalf of and at the risk of the Purchaser. Transport and packaging costs are included in the purchase price. Incidents of transport damage can be asserted exclusively against the shipper used. Orders or packages are not taken back by Seller.
In the event of legal requirements in respect of recall or take-back obligation, Seller shall agree to an amicable arrangement with the Purchaser.
4. Product condition
Products are delivered in standard commercial quality, and are therefore subject to unavoidable deviations in condition, material, cleanliness, colour and other characteristics in the usual way.
5. Warranty/Notifications of defects
In the event of a duly submitted, justified notification of defect, Seller can at its option provide a replacement or rectify the defect. If the elimination of the defect or the replacement is not possible within a reasonable time limit, the Purchaser can demand a reduction or exchange.
Notifications of defects are only duly submitted:
a) In the case of obvious deviations of the delivery from the order in relation to quality/grade, external damage and quantity, within 3 working days of delivery, in which case damages and quantity errors must be confirmed by the delivering shipper.
b) In the case of deviations detectable through superficial inspection or simple examination, before commencement of use, and at the latest within 7 working days of delivery.
c) In the case of deviations that can only be detected after detailed inspection, by means of a test or normal machine cycle, immediately after detection, with the additional condition that the Purchaser can provide traceable supporting documentation for the deviations for inspection by Seller; an immediate complaint of this type can only be effectively asserted within 6 months of delivery.
Notifications of defects must be submitted to Seller in writing.
Claims by the Purchaser for damages only exist in accordance with this clause and are otherwise excluded. Seller is liable for damages – whatever the legal ground – in the event of intent and gross negligence. In the event of simple negligence, Seller is only liable:
a) for damages resulting from damage to life, body or health,
b) for damages resulting from breach of an essential contractual obligation (obligation whose fulfilment enables proper performance of the contract and on whose fulfilment the contractual partner regularly and legitimately relies); In no event will Seller be liable for any incidental, indirect, special or consequential damages, including but not limited to, loss of use, revenues, profits or savings.
The above liability limitations do not apply if a defect is fraudulently kept secret or if Seller has undertaken a warranty for the condition of the goods or for damages which were caused from a product liability risk or which otherwise may not be excluded by mandatory law.
7. Offsetting, Right of retention
Offsetting with counterclaims of the Purchaser or the retention of payments on account of such claims is only permitted as far as the counterclaims are undisputed or legally established.
8. Reservation of title
All goods remain the property of Seller until the Purchaser has paid in full all amounts owed to Seller in connection with the contract or any earlier or later contract, including damages, costs and interest. The Purchaser may, in the ordinary course of its business, process or resell the goods but will until then keep the goods individualised. The Purchaser may not grant any pledge, privilege or any other security interest on the goods and will immediately inform the Seller of any right, claim or action invoked by any third party regarding the goods. This retention of title shall (to the fullest extent possible under the applicable law) also apply to (i) the finished products if the goods have been processed; (ii) the price to be received by the Purchaser when reselling the goods or the finished products; (iii) the retention of title to be agreed between the Purchaser and its own customer if said customer did not pay the full purchase price in advance or upon delivery. The Purchaser assigns to Seller all of its claims arising from the resale of the goods hereabove described, including the retention of title agreed between the Purchaser and its own customer, irrespective of whether the goods subject to reservation of title are resold after or without processing or use, or whether or not they are combined with other moveable objects. The reservation of title remains applicable to ensure payment of any bill of change accepted by Seller.
The Purchaser must protect the goods subject to reservation of title against fire, theft and water. The Purchaser shall on first request, provide Seller with the identity and address of the owner of the premises where the goods are stored. Claims for damages against the insurer or other compensation claims are herewith assigned to Seller in the amount of Seller’s claims against the Purchaser.
9. Impossibility of delivery
War, mobilisation, unrest, strikes, lock-outs, official decrees, interruption of operations and transport, machine damage, power failure or shortage of raw materials, cases of force majeure, or any other events which directly or indirectly disrupt or reasonably prevent the manufacture or delivery of goods, release Seller from its delivery obligation for the duration and extent of the impediment, provided that the circumstances at the time of contract conclusion were not foreseeable for Seller and that such events are not attributable to Seller.
10. Place of performance
All goods are sold DDP Delivered Duty Paid INCOTERMS 2010 except if expressly provided otherwise.
The invoice is issued as soon as the goods are ready for dispatch. If the goods cannot be dispatched due to circumstances described under section 9 here above, then the goods are put into storage on behalf and at the risk of the Purchaser. This does not affect the due payment date of the invoice.
12. Payment terms
All invoices are to be paid within a period of 30 days beginning on the invoice date unless agreed otherwise
Payment terms are subject to mutual agreement and credit references. Payments are to be made by wire payment unless otherwise mutually agreed.
Any outstanding amounts shall bear interest at a rate of one percent per month, without need for any particular notice.
13. Termination of the contract
In case of (anticipatory) breach by the Purchaser, bankruptcy or liquidation of the Purchaser, attachment of the Purchaser’s assets or any insolvency proceeding, Seller shall be entitled, without prejudice to any other remedies (such as damages and exercise of the retention of title clause), to suspend the performance of its own obligations, even if these obligations relate to another contract, or to rescind the contract by written notice.
14. Applicable law/Place of jurisdiction
Any contract between Seller and the Purchaser shall exclusively be governed by the law of England, with the exclusion of the Vienna Convention on the international sale of goods (1980). Any dispute arising within the course of business or related with any contract, the courts of London, England shall have exclusive jurisdiction. Seller may however also sue the Purchaser before the courts of the Purchaser’s registered offices or, if Seller is sued by a third party before any other jurisdiction, before the court seized of the original proceedings.