General terms and conditions for Lynk & Co wheel service for non consumers
VALID FROM 08 OCTOBER 2021
These are the general terms and conditions applicable to the Lynk & Co wheel service (‘Wheel Service’) (‘General Terms’) between Lynk & Co Sales Netherlands B.V. (‘Lynk & Co’, ‘we’, ’us’, ‘our’, ‘Party’) or any of its Affiliates (which means an entity that directly or indirectly through one or more intermediaries is owned by more than 50% by Lynk & Co or Lynk & Co International AB) and you as a buyer (‘you’, ‘your’, ‘Party’) on the Site or via email in the Netherlands.
Please read through all Sections of these General Terms before placing an Order. By placing an Order, you agree to be bound by these General Terms and confirm that you have read them.
As things change, these General Terms may change too, so please make sure to read through these General Terms before placing an Order, even if you have done so before. Orders are subject to these General Terms, in the version applicable when the Order is placed.
Lynk & Co Customer Engagement Centre (‘Engagement Centre’)
Phone Number: 0800-0233377
An order for the Service (as defined in Section 4 below) (an ‘Order’) will be concluded when a written offer made by Lynk & Co is accepted by you, in writing, within the period of validity of the offer. An Order under these General Terms can only be placed if you have purchased Lynk & Co winter wheels. When you place an Order, you are entering into a legally binding agreement (the ‘Agreement’) according to these General Terms. Once you have accepted the offer, we will send you a written confirmation of the Agreement (the ‘Order Confirmation’) which will contain the content of the Agreement between us.
Wheel Service entitles you to the Service specified below in Sections 4.1 and 4.2 and apply only to the individual Lynk & Co Car specified in Your Order Confirmation.
The services included in Wheel Service are listed below (‘Service’).
4.1 Wheel shift and storage
Wheel Service includes, (i) 1 (one) seasonal wheel shift at a Lynk & Co contracted workshop (‘Wheel Shift’) as well as (ii) storage, wash and pressure check (‘Wheel Storage’) of those wheels not mounted on the Lynk & Co Car and in use. Wheel Storage will be for 1 (one) season, which varies between national regions but will not extend beyond the period of either 1st September – 31st May or 15th March – 30th November (‘Wheel Storage Season(s)’).
4.2 Pick-Up and Delivery
The Service includes Pick-up and Delivery (‘PUD’) of your Lynk & Co Car for Wheel Shift. Lynk & Co will pick up the Lynk & Co Car at a by you and Lynk & Co agreed location and bring it to a contracted workshop for Wheel Shift. Following Wheel Shift completion, Lynk & Co will return it to you. You can find the details of the PUD Service here.
To arrange for Wheel Shift, Lynk & Co will contact you with a proposed date based on the standard practice in the region of your home address. Should the Lynk & Co proposed time and date for Wheel Shift be unsuitable to you, you may propose another date and time.
You can, in certain cases, change the chosen date and time for your Wheel Shift by contacting Lynk & Co via phone or chat. In some cases, this may only be done against a cancellation fee, which will be payable by you. We will always inform you before agreeing to a change should a cancellation fee be applicable. For more details on whether and how you can change your date and time for Wheel Shift, and what cancellation fee could be applied please see the rules set out in the PUD policy, which are applicable to the Service, here.
5. PRICE AND PAYMENT
The total price (‘Price’) applicable to your Order will be contained in the offer and the Order Confirmation. Unless we state otherwise, the Price excludes value added tax (‘VAT’). The Price for your Order must be paid not later than five (5) working days from the date of issue of the Lynk & Co invoice, which will be issued following, and on the same day as, completion of the Wheel Shift.
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 asking you to make payment promptly. Please make sure to follow the payment instruction in that reminder, it may differ from your normal payment method. Where your payment remains in arrears three (3) working days following the Payment Reminder, we will initiate a formal reminder, dunning procedures and debt collection measures, which may incur additional costs for you.
6. TERM, CANCELLATION AND TERMINATION
This Agreement is valid for a fixed period of one (1) Wheel Storage Season (as defined in Section 4.1 above) (‘Term’) beginning on the date you enter the Agreement. The Agreement will automatically terminate at the end of the Term.
You have the right as a consumer to cancel the Service before completion. Should you do so, the Agreement will automatically terminate and you will be obliged to pay Lynk & Co for the part(s) of the Service which have already been performed and work which must be completed despite cancellation, the value for which will correspond to that price which would have applied had the Agreement only contained the part(s) of the Service completed.
Lynk & Co is also entitled to further compensation in the form of costs for the remaining part of the Service which will not be performed due to your cancellation and compensation for loss for inability to take on other work due to the Agreement. The provisions of this Section will not apply should the cancellation stem from damage to or loss of the Lynk & Co Car due for Service other than as a result of negligence on your part, or inability by you to avail of the Service due to governmental regulation, decision or similar circumstance outside of your control. Our compensation under this Section will not exceed our loss resulting from the cancellation.
In the event that you have paid the Price before cancelling the Service, Lynk & Co will reimburse you the Price minus the amounts Lynk & Co is entitled to without undue delay.
Lynk & Co has the right to terminate this Agreement with immediate effect should circumstances outside of Lynk & Co’s control effect the conditions required for Lynk & Co to perform the Service in the Netherlands and therefore remove Lynk & Co’s ability to perform its obligations under these General Terms. In the event that you have paid the Price before the Agreement is terminated pursuant to this paragraph, Lynk & Co will reimburse you the Price corresponding to the part of the Service not completed due to the termination by Lynk & Co.
Both you and Lynk & Co have the right to terminate this Agreement with immediate effect should the other Party have materially been in breach of the terms of the Agreement and not rectify such failure within fifteen (15) days from receiving notification from the other Party of such failure.
7. WHEEL COLLECTION
Upon termination of the Agreement, for whatever reason, you are responsible to collect those wheels in Wheel Storage within the period of the Wheel Storage Season applicable to the Agreement. Should you fail to do so, we will store your wheels for another Wheel Storage Season and charge you for the Wheel Storage.
Should you fail to pay Lynk & Co for the additional Wheel Storage, the provisions for late payment in Section 5 above will apply. The stored wheels also serve as security for the fulfilment of your obligations towards us. This means we have a right of retention in respect of your wheels. In addition, you pledge these wheels to us. This way, you expressly declare that you are authorised to give the wheels in pledge and that no limited rights rest on the pledged wheels. If we have not received your payment within the time frame set out in the written reminder, we have the right, following three (3) months from the date of the reminder, to sell your wheels in Wheel Storage. We are not obliged to notify you as referred to in section 3:249 of the Dutch Civil Code. Should we choose to sell so and the value of the sale exceeds your payment obligations to us, we will pay to you the value of the sale minus the value of your payment obligations to us and the cost of the sale.
8.1 The Services shall be performed in a professional manner and in accordance with what Lynk & Co has held the Service out to be. Lynk & Co shall not otherwise be liable for the characteristics of neither the Service nor the wheels and/or tires. Further, Lynk & Co shall not be liable for defects or damages caused by you, such as, but not limited to excessive wear, insufficient maintenance, or incorrect handling. It is your responsibility to inspect the Lynk & Co Car and the wheels and/or tires for any defects or damages resulting from the Services upon the return of your Lynk & Co Car after completion of any of the Services. ‘
8.2 Lynk & Co shall only be liable for defects which existed at the time of return of your Lynk & Co Car to you upon the completion of any of the Services. You must notify Lynk & Co of any defect within five (5) working days (the ‘Notification Period’) from the date on which your Lynk & Co Car was returned to you. 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.
8.3 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 (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 wheels and/or tires to Lynk & Co along with any Lynk & Co requested documentation.
8.4 You shall compensate Lynk & Co for any and all labour and costs incurred where notice of fault is subsequently proven incorrect, in that there was no fault in the Wheel Service for which Lynk & Co was liable.
9. LIMITATION OF LIABILITY
With the limitations set out herein, if a Party breaches the terms of this Agreement, it shall compensate the other Party for the direct damages incurred as a consequence thereof.
Neither Party shall be responsible for any indirect or consequential damage caused by it, including but not limited to any loses of production or profit.
Notwithstanding anything to the contrary contained in this Agreement, the liability of the Parties for damage and losses arising pursuant to or in connection with the representations, warranties, indemnifications or other obligations (whether express or implied) of the Parties under this Agreement shall not exceed total value of this Agreement.
Except as provided for in 6.3 above, we are not responsible for not fulfilling the Agreement if the reason is due to events that are beyond our reasonable control which we could not have reasonably been expected to have anticipated when concluding the Agreement with you, or if we are prevented or delayed from acting according to the Agreement by anything you (or anyone acting on your behalf) do or fail to do.
For the avoidance of doubt, where a Party is entitled to a specific remedy hereunder, such right shall not be deemed to restrict that Party’s ability to claim other legal remedies under the Contract or under applicable law.
10. TRANSFER OF RIGHTS
We reserve the right to use sub-contractors to fulfil our undertakings and may assign or transfer our rights under the Agreement to third parties. This will not affect your rights and our obligations under these General Terms. You are not allowed to transfer any right or unfulfilled obligations to a third party without our prior written consent.
11. DATA PRIVACY
12. APPLICABLE LAW AND JURISDICTION
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 including the United Nations Convention on the International Sale of Goods (CISG).
Any dispute, controversy or claim arising out of or in connection with this Contract, or the breach, termination or availability thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the ‘SCC’).
The Arbitration Rules by the SCC 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 Rules of Expedited Arbitration shall apply. In the former case, the Arbitral Tribunal shall be composed by one (1) arbitrator.
The seat of arbitration shall be Gothenburg, Sweden. The language to be used in the arbitral proceedings shall be English.
Each Party undertakes and agrees that all arbitral proceedings conducted with reference to this arbitration clause shall be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision on award that is made or declared as part of the proceedings. Information covered by this confidentiality undertaking may not in any form be disclosed to a third party without its written consent of the Parties. This notwithstanding a Party shall not be prevented from disclosing such information in order to safeguard its rights in connection with the dispute, or if disclosure is required by law, court order or by obligations pursuant to any applicable stock exchange regulation.