Terms and conditions for spare parts supply and delivery
VALID FROM 1 JULY 2021
These general terms and conditions govern the sale and delivery (‘General Terms’) of Lynk & Co spare parts (‘Spare Parts’) by Lynk & Co Sales Germany GmbH, Amtsgericht Berlin (Charlottenburg) HRB 222609 B, Adresse: WeWork c/o, Leuchtenfabrik, House A, 1st floor, Edisonstraße 63, Berlin 12459,, Germany (‘Lynk & Co’, ‘Party’) or any of its affiliates (meaning an entity that directly or indirectly is owned by more than 50 % by Lynk & Co or Lynk & Co International AB (‘Affiliates’) to any legal person (‘You’, ‘Your’, ‘Party’) in Germany. Lynk & Co and You will hereinafter jointly be referred to as the ‘Parties’.
Lynk & Co encourages You to read through these General Terms before placing an Order. By placing an Order, You agree to be bound by these General Terms. Lynk & Co reserves the right to amend these General Terms without prior notice. Orders are subject to these General Terms, in the version applicable when the Order is placed.
1.1. An order for the purchase of Spare Parts (an ‘Order’) will be concluded when an offer made by Lynk & Co is accepted by You in writing. When You place an Order, You are entering into a legally binding agreement (the ‘Agreement’) according to these General Terms. In representing a company or other legal entity, You accept these General Terms on behalf of that legal entity and warrant that You have the authority to do so on that legal entity’s behalf.
1.2. Certain Spare Part(s) may be subject to special terms and conditions. If special terms and conditions apply, they will be presented to You before You choose to place an Order.
1.3. Any display of Spare Part(s), including in the Lynk & Co parts catalogue (the ‘Parts Catalogue’), does not imply or warrant that specific Spare Part(s) will be available at any time.
2. PRICE AND PAYMENT
2.1. Upon placing an Order, the prices shown in the offer from Lynk & Co apply. Lynk & Co reserves the right to amend prices with immediate effect and without advance notice.
2.2. The price for Your Order must be paid not later than seven (7) calendar days from the date of issue of the Lynk & Co invoice.
2.3. You are responsible to pay for Your Order as per the invoice and these General Terms. In the event that Your payment is in arrears, Lynk & Co will issue one (1) payment reminder (a ‘Payment Reminder’) on the day following the payment due date.
2.4. Where Your payment remains in arrears three (3) working days (Monday to Friday on any given week will be considered as working days) (‘Working Days’) following the Payment Reminder, Lynk & Co reserves the right to immediately terminate the Agreement without further reminder or communication with You.
2.5. No Party, nor any Affiliate thereof, may deduct from, set off, holdback or otherwise reduce in any manner any amount owed to it hereunder against any amounts owed hereunder by such Party to any other Party or any of such other Party's Affiliates.
2.6. Lynk & Co is the owner of the Spare Part(s) listed in the Order until the Order has been paid in full. Lynk & Co shall be entitled to repossess the Spare Part(s) in connection with a termination.
3.1. Delivery of the Spare Part(s) shall be made to the delivery location specified in the Order (the ‘Delivery Location’) and at the delivery cost stated in the Order (‘Delivery’). Delivery will be at Lynk & Co’s risk until Your receipt of the Spare Part(s) at the Delivery Location, or, in the event that You fail to take receipt of the Order upon Delivery, until such point in time that Your receipt of the Order should have taken place, at which point the risk for the Spare Part(s) will pass to You. Delivery of the Spare Part(s) shall not be made until payment according to the Lynk & Co issued invoice is made by You.
3.2. Following payment of the Lynk & Co issued invoice, Delivery will be made within two (2) to three (3) Working Days. In some cases, Lynk & Co may Deliver Your Order in more than one (1) shipment. Should this be the case for Your Order, Lynk & Co will let You know.
3.3. You are obliged to take receipt of the Order at Delivery. Where You fail to take receipt of the Order at Delivery, Lynk & Co shall ensure that the Spare Part(s) are stored at Your risk and expense and shall be entitled to terminate the Agreement where Your delay in taking receipt of the Order is unreasonable.
3.4. Where Lynk & Co fail to Deliver the Order in due time, the only remedy You shall be entitled to avail of will be fulfilment of the Agreement and thereby Delivery of the Order. Upon Delivery of the Order, this right will expire.
4. FORCE MAJEURE
4.1. Lynk & Co shall be relieved from liability for a failure to perform its obligations under these General Terms during such period, and to the extent, due performance thereof by Lynk & Co is prevented by reason of any circumstance beyond the control of Lynk & Co, which could not reasonably have been foreseen prior to entering into an Agreement under these General Terms and is beyond the Lynk & Co’s reasonable control which – without limiting any of the foregoing - shall include, acts of God, war, civil war, riot, acts of government, fire, flood, interruption in public transport, health pandemic or health epidemic as declared by the World Health Organisation (‘WHO’), communications or general energy supply, or other circumstances of similar importance.
4.2. If Lynk & Co wishes to invoke a circumstance in accordance with the previous Section, it shall give written notice to the other Party when there is a risk for failure or delay to perform an obligation under an Agreement governed by these General Terms.
4.3. The time for performance of the relevant obligations of Lynk & Co shall be appropriately extended by the period during which the circumstance in accordance with the first paragraph shall have continued, provided, however, that if performance of a contractual obligation is prevented by such a circumstance for a period of three (3) months or more, each Party shall be entitled to terminate an Agreement governed by these General Terms subject to three (3) months’ prior notice.
5. LIABILITY FOR DEFECTS
5.1. The characteristics and quality of the Spare Part(s) shall be according to what Lynk & Co has held them out to be. Lynk & Co shall not otherwise be liable for the characteristics of the Spare Part(s) and shall not be liable for defects or damage caused by You, such as, but not limited to insufficient maintenance or incorrect handling.
5.2. Upon Delivery of the Spare Part(s) to the Delivery Location, You are obliged to immediately inspect the Spare Part(s) for any defects or damage.
5.3. For Spare Part(s) not covered by warranty, as outlined in Section 7, Lynk & Co shall only be liable for defects which existed at the time of Delivery. You must notify Lynk & Co of any defect within one (1) working week (for the avoidance of doubt, the period from Monday to Friday on any given week is equal to a working week (‘Working Week’)) (the ‘Notification Period’) from the date of Delivery of the Spare Part(s). In the event that Your Order contains more than one (1) Spare Part(s) and Delivery of the Spare Part(s) is made in more than one (1) shipment, the Notification Period will begin from the date of Delivery of the Spare Part(s) being notified of. The notice of defect must contain a description of the defect. Untimely notice of the defect by You shall result in forfeiture of the right to complain of the defect.
5.4. You shall compensate Lynk & Co for any and all labour and costs incurred where notice of a defect in Spare Part(s) given by You is subsequently proven incorrect in that there was no defect for which Lynk & Co was liable.
6. RECTIFICATION OF DEFECT
Lynk & Co shall have the right and the obligation to rectify any defects and shall be entitled to determine, at its sole discretion, whether rectification will be made through repair or through replacement of the Spare Part(s) (redelivery) which shall be the only remedies available to You. Lynk & Co will rectify the defect promptly and shall bear the costs of rectification, troubleshooting and where applicable transport. You will be responsible to support the return of the Spare Part(s) to Lynk & Co along with any Lynk & Co requested documentation. You shall bear any extra costs incurred as a result of the Spare Part(s) being at a location other than the Delivery Location stated in the Order. You shall be responsible for labour and costs incurred as a result of the rectification resulting in modification to objects other than the Spare Part(s).
Certain Lynk & Co Spare parts come with a Spare Parts warranty (‘Warranty’), the details and conditions of which can be found in the Warranty certificate. In the event that a defect is covered by the Warranty, the terms and conditions of the Warranty certificate, not these General Terms, shall apply.
8. LIMITATION OF LIABILITY
Lynk & Co shall have no liability for any direct or indirect loss incurred by You. This limitation of liability shall not apply where either Party has committed gross negligence.
9. PRODUCT LIABILITY
Notwithstanding any previous stipulations regarding liability in damages, Lynk & Co shall not be liable for any third-party property damage or personal injury resulting from any defect in the Spare Part(s). In the event that You incur liability in damages to any third party due to property damage or personal injury, You shall hold Lynk & Co harmless.
10. DATA PRIVACY
You may not assign, pledge or otherwise encumber any Agreement entered under these General Terms or any of Your rights or obligations under these General Terms or any Agreement under these General Terms without Lynk & Co’s prior written consent.
Any termination or expiry (in whole or in part) of any Agreement under these General Terms (however it occurs) will not affect any rights or liabilities of either Party that may have accrued before termination. Furthermore, the following articles shall survive termination - 15 Severability, 16 Governing Law and Jurisdiction.
13. ENTIRE AGREEMENT
Both Parties confirm that these General Terms and any Agreement entered under these General Terms represent the entire understanding and constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, agent, employee or representative of either of the Parties.
14. NO WAIVER
The failure of a Party to insist on adherence to any term of these General Terms shall not be considered a waiver of any right, nor shall it deprive that Party of the right thereafter to insist on the adherence to that term or any other terms of these General Terms.
If any provision of these General Terms should be deemed invalid, unlawful, void or for any reason, unenforceable, the validity or the use of the remaining provisions shall not be affected.
16. GOVERNING LAW AND JURISDICTION
16.1. All Agreements entered under these General Terms shall be governed and construed in accordance with the laws of Sweden, without regard to any choice of conflict of laws. The United Nations Convention on the International Sale of Goods (the ‘CISG’) shall be excluded.
16.2. Any dispute, controversy or claim arising out of or in connection with these General Terms or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the ‘SCC’). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Gothenburg, Sweden. The language to be used in the arbitral proceedings shall be English.
16.3. The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not be disclosed to a third party without the prior consent by the other Party. Exceptions to the foregoing shall only apply to the extent that disclosure may be required of a Party due to mandatory law, an order of a competent court or public authority, or to protect, fulfil or pursue a legitimate legal right or obligation or to enforce or challenge an award.