LELY GENERAL TERMS AND CONDITIONS OF SALE
ARTICLE 1. DEFINITIONS
1.1. In these general terms and conditions (hereinafter referred to as the "Terms") “Lely” means: the selling Affiliate of Lely Holding B.V. having its registered office at Cornelis van der Lelylaan 1, 3147 PB Maassluis, the Netherlands, as referred to by Lely and where applicable, includes other Affiliates of Lely.
1.2. In these Terms, Affiliate means a company which is now or in the future becomes directly or indirectly owned or controlled by Lely Holding B.V., whereby “Control” means the direct or indirect ownership of 50% or more of the shares with voting rights for the appointment of managing directors for as long as such control exists, or the equivalent power to exercise control over the management of the Affiliate.
1.3. In these Terms, a Delivery means the delivery of Equipment and/or Part(s).
1.4. In these Terms, End User means the natural person or legal entity with whom or which the Other Party has concluded an Agreement in respect of the sale of the Equipment.
1.5. In these Terms, Equipment means any product delivered by Lely to the Other Party, (such as, but not limited to, the Lely Astronaut, Taurus, Qwes, Grazeway, Juno, Calm, Vector, Luna, Treatment box, Light 4 Cows, Discovery, Meteor, Walkway, Sphere, Horizon and Orbiter).
1.6. In these Terms, Manual means Lely’s instructions and directives and all amendments related thereto (such as, but not limited to, the Product Manual, Maintenance Manual and Service Manual), in relation to the service and maintenance of the Equipment.
1.7. In these Terms, the Other Party means the party that procures any Lely product.
1.8. In these Terms, Part(s) means all parts and components manufactured or furnished for or incorporated into the Equipment, including all parts and components for the replacement of defective Part(s) and/or servicing of the Equipment.
ARTICLE 2. APPLICABILITY
2.1. These Terms apply to and form an integral part of (a) quotations and offers (hereinafter both referred to as “Offer”) of Lely, (b) all acceptances, acknowledgements or confirmations by Lely (hereinafter all referred to as “Confirmation”) of any order of the Other Party, including without limitation orders of the Ordering Party resulting from any pricing- or other framework agreement between the Other Party and Lely, unless explicitly agreed otherwise in writing between Lely and the Other Party, (c) any agreement resulting from such Offer or Confirmation and (d) any agreement incorporating these Terms by reference (both types of agreements referred to under (c) and (d) shall hereinafter be referred to as an “Agreement”).
2.2. The applicability of any general terms and conditions used by the Other Party is expressly excluded.
ARTICLE 3. OFFERS, ACCEPTANCE AND AGREEMENT
3.1. All Offers to enter into an agreement by Lely are revocable, even where a term for acceptance is stated.
3.2. All Offers accepted by the Other Party may be revoked by Lely up to 5 days after the date of acceptance by the Other Party.
3.3. Lely is only bound by the Other Party’s order after Lely has confirmed the acceptance of the order in writing or if Lely has started to carry out the order (the “Order”).
3.4. Any changes in Offers or Agreements will only take effect after these have been accepted in writing by Lely.
3.5. The contents of promotional media, including but not limited to websites, brochures and leaflets, will not be binding upon Lely unless explicitly agreed otherwise in writing.
ARTICLE 4. PRICES
4.1. Unless stated otherwise, all prices are in Euros, exclusive of V A T and any other statutory levies.
4.2. The agreed prices are based on the costs of materials, wages, levies/rates and currency exchange rates applicable at the time of the Offer and on the basis of the agreed recent version of Incoterms.
4.3. In the event that one or more of the cost price factors increases after confirmation of the Order, Lely is entitled to increase the agreed purchase price accordingly.
ARTICLE 5. DELIVERY AND DELIVERY TERM
5.1. Delivery takes place CIP (according to the most recent version of Incoterms), at the place stated in the Order, unless stated otherwise in the Order.
5.2. The delivery date stated in the Order is approximate and may never be deemed to be a deadline by the Other Party, unless explicitly agreed otherwise in writing.
5.3. Unless the fulfilment of the Agreement has become permanently impossible without doubt, the Agreement cannot be dissolved by the Other Party on account of exceeding the delivery date, unless Lely also fails to fulfil the Agreement or fails to fulfil the Agreement fully within a reasonable period given to Lely after expiry of the agreed delivery date. In that case, dissolution is only permitted in so far as the Other Party cannot reasonably be expected to honour the Agreement.
5.4. Lely is entitled to make partial Deliveries and to invoice any partial Delivery separately. Any partial Delivery will not constitute an “incomplete Delivery” within the meaning of Article 9.1.
5.5. In the event that the Other Party or End User, as the case may be, does not accept the Delivery on the agreed delivery date, the Equipment and/or Part(s) will be stored at the expense and risk of the Other Party, and after a period of four weeks from the agreed delivery date Lely will be entitled to (privately) sell the Equipment and/or Part(s). The loss in proceeds, if any, and all costs incurred by Lely in this respect will be borne by the Other Party, without prejudice to any other rights Lely may have.
ARTICLE 6. LICENCES AND REGULATIONS
6.1. The Other Party is responsible for and bears the risk of obtaining all documents, permits and licences required in connection with the Delivery, installation or use of the Equipment and/or Part(s) to be delivered.
6.2. Delivery takes place in accordance with the agreed specifications. The Other Party is responsible for and will bear the costs of any modification of the delivered Equipment and/or Part(s) required pursuant to any local requirements or regulations.
ARTICLE 7. RETENTION OF TITLE
7.1. Any Equipment and/or Part(s) to be delivered remain the property of Lely until full payment for the Equipment and/or Part(s) has been received by Lely.
7.2. In the event that the Other Party fails to fulfil its obligations and pursuant to the provisions of this article, Lely is entitled at all times to recover any delivered Equipment and/or Part(s) or to have the same recovered from the Other Party or from any party keeping the Equipment and/or Part(s) for the Other Party. The Other Party is obliged to provide Lely with full assistance in the recovery.
7.3. The Other Party may use, process or sell the Equipment and/or Part(s) referred to herein within the scope of the Other Party’s normal business operations, but the Equipment and/or Part(s) may not be pledged or granted as security for any debt owed to any third party.
ARTICLE 8. ASSEMBLY/INSTALLATION
8.1. The Other Party is responsible for the correct and timely execution of all installations, facilities or conditions required: (i) for the assembly, set-up or installation of the delivered Equipment and/or Part(s) at the final destination and/or (ii) for the proper functioning of the Equipment and/or Part(s) after assembly, set-up or installation at the final destination.
8.2. Any damage and costs incurred as a result of the failure to fulfil the conditions laid down in this article or the failure to timely fulfil these conditions will be borne by the Other Party.
ARTICLE 9. INSPECTION DUTY
9.1. Objections due to incomplete Delivery and other recognizable defects are to be communicated to Lely in writing immediately upon delivery and at the latest within fourteen working days from the delivery date. Any concealed defects are to be communicated to Lely in writing upon discovery and at the latest within fourteen working days of their discovery.
9.2. Acceptance of the Delivery may not be refused by the Other Party due to minor defects.
9.3. Any claims regarding defects of the Delivery not reported in accordance with this Article 9 are precluded from compensation in accordance with these Terms.
9.4. The costs of the inspection of the Delivery will be borne by the Other Party.
9.5. Upon communicating any incomplete Delivery or other recognizable defects to Lely in accordance with Article 9.1, Lely will advise on the appropriate course of action.
ARTICLE 10. WARRANTY
10.1. For a period of 12 months from the date the Equipment and/or Part(s) is put into operation at the End User’s site, but in no event exceeding 24 months from the date of shipment of the Equipment and/or Part(s) (the “Warranty Period”), Lely warrants that under normal use the Equipment and/or Part(s) supplied subject to these Terms, excluding any software, prototypes, testing products and samples of newly developed products, shall, at the time of delivery be free from defects in material or workmanship and shall substantially conform to Lely’s specifications for such Equipment or Part, or such other specifications as Lely has agreed to in writing, as applicable. A Part that is supplied in replacement of a defective Part shall not be warranted longer than the expiration of the original warranty period of the defective part. Lely further warrants that the Equipment and/or Part(s), comply with relevant EU safety laws and regulations.
10.2. If the Equipment and/or Part(s) does not materially comply with the warranties contained in Article 10.1 (“Material Defect”), Lely’s sole and exclusive obligation, and the Other Party’s sole and exclusive right shall be limited, at Lely’s option, either to the replacement or repair of a defective or non-conforming Part or Equipment, or to an appropriate credit for the purchase price thereof. Lely will have a reasonable time to repair, replace or credit. The non-conforming or defective Part or Equipment shall become Lely’s property as soon as they have been replaced or credited for.
10.3. Admissibility and handling of any claim under Article 10.2 is subject to the Other Party’s adherence to the conditions stated in this Article 10, as well as to the following conditions:
- Only Material Defects that could reasonably not have been found during the inspection referred to in Article 9.1, and which are discovered within the Warranty Period and reported to Lely in writing within 14 calendar days upon discovery shall qualify for submission under the warranty;
- The Material Defect is demonstrably attributable to Lely on account of a failure on the part of the latter;
- Lely will be given sufficient time and opportunity to carry out all tests, repairs and replacements deemed necessary by Lely to remedy the Material Defect;
- the Other Party will provide Lely unimpeded access to the Equipment and/or Part(s) causing the Material Defect.
10.4. The Other Party will, at Lely’s direction and discretion:
(i) return to Lely the Part causing the Material Defect, and all transportation charges, both to and from the original destination will borne by Lely. Any Part so returned to Lely becomes the property of Lely, or;
(ii) keep the Part causing the Material Defect available for inspection by Lely at its premises for a period of no more than 6 months from the date of reporting the Material Defect to Lely, at Lely’s risk. Upon expiration of such storage period the Other Party will dispose of the stored Part(s) at Lely’s expense, provided that the Other Party arranges for such disposal in accordance with the following requirements:
- The disposal is carried out by an authorised waste company;
- the authorised waste company applies competitive prices for such services;
- the treatment of waste is in compliance with all applicable environmental regulations; and
- the Other Party provides a declaration evidencing the confirmation of the disposal of the Part(s) by the authorised waste company.
If the Other Party fails to comply with the requirements stated above, Lely will charge the Other Party for all costs incurred, including without limitation the costs of the Spare Part(s) supplied to the Other Party.
10.5. Labour costs incurred for the purpose of remedying a Material Defect will be compensated by Lely to the Other Party in accordance with Lely’s warranty labour protocol. All costs made or incurred in excess of the compensation agreed under Lely’ s warranty labour protocol, including, for example, accommodation expenses, will be borne by the Other Party, unless agreed otherwise in writing. The total amount of warranty claims to be compensated by Lely will not exceed the purchase price of the Equipment.
10.6. A Material Defect(s) will not constitute a ground for dissolving the Agreement for delivery of any Equipment or Part(s) concerned, unless it concerns a Material Defect that Lely fails to remedy in an acceptable manner after repeated attempts.
10.7. The following items and/or costs resulting from any actions stated below will not be compensated under the warranty terms in this Article 10:
- Parts specified by Lely as wear parts or consumables;
- Part(s) with a net sales price by Lely of less than EUR 10.00 per unit;
- any loss or damage resulting from use of the Equipment that is not in accordance with the specifications stated in the Manual; any intervention by technicians other than Lely-qualified service technicians or technicians approved by Lely to perform certain duties;
- any loss or damage resulting from the failure to perform preventive maintenance services in accordance with the Manual;
- incidents such as freezing, ice, fire, flood, inundation or any other form of excessive water and lightening;
- a defect or malfunctioning of the electrical system or grounding;
- the use of chlorinated chemicals and/or chemicals that do not comply with the relevant chemical specifications and used for rinsing, sanitation or washing that may cause damage to the Equipment and/or Part(s);
- use of compressed air that does not meet the quality standards set by Lely; and
- hacking activities, viruses or the like.
10.8. The Other Party will inform Lely immediately if the Other Party is required to engage a third party for the remedy of a Material Defect in case of an emergency due to i) imminent danger to the operational safety at the End User’s premises or ii) the likeliness of the occurrence of disproportionally great damage. Reasonable and necessary expenses incurred for repairing a Material Defect in the aforementioned circumstances will be compensated by Lely, and the Other Party preserves the warranty claim under these Terms in case the Equipment or Part causing the Material Defect is repaired by such third party incorrectly, always provided that the Other Party has acted reasonably and diligently in appointing a third party. Without prejudice to the foregoing, Lely is not liable for the consequences resulting from the incorrect repairs.
10.9. Lely is not liable for any consequences with regard to the use of parts not supplied by Lely, where the original Parts are required to guarantee the functionality of the Equipment. The same applies for modifications to the Equipment by or on behalf of the Other Party undertaken without Lely’s prior consent.
10.10. The Other Party will bear all costs relating to an improper assertion of a warranty claim under this Article 10 (i.e. if the product was not defective).
10.11. The warranty provisions contained in these Terms shall extend solely to the benefit of the Other Party, and not to any customers of the Other Party or other third parties.
10.12. Claims for loss or damage will be handled in accordance with Article 14.
ARTICLE 11. FORCE MAJEURE
11.1. Any full or partial non-fulfilment will not be an attributable failure by Lely if the non-fulfilment is the result of a circumstance beyond Lely’s control, foreseeable or not, including but not limited to: war or similar situations, riots, sabotage, boycotts, strikes, occupation, blockades, shortages in raw materials, machine damage, sickness of Lely staff, failures by suppliers and/or carriers, measures by the government (including foreign governments) such as bans on transport, import, export or manufacturing, natural disaster, adverse weather conditions, lightning strikes, fire, explosion and/or discharges of dangerous substances and gasses.
ARTICLE 12. PAYMENT TO LELY
12.1. All payments must be made within 30 days from the invoice date without any discount, reduction or set off, unless agreed otherwise in writing. The payment obligation will not be suspended by any claims.
12.2. In the event of late payment, the Other Party is liable, without any summons or notification of default being required, to pay interest in accordance with Article 6:119 of the Dutch Civil Code on the principal sum or on the unpaid part of the principal sum, calculated from the due date until the date of payment.
12.3. All costs, both judicial and extra-judicial, incurred in respect of the collection of the amount owed by the Other Party and not paid in time will be borne by the Other Party; these costs are set at a minimum amount of EUR 300.00.
12.4. In the event of the liquidation, bankruptcy or moratorium of the Other Party, the latter’s obligations will be immediately due and payable.
12.5. Lely may demand additional security for the fulfilment of the payment obligations of the Other Party if induced to do so by the creditworthiness of the Other Party, failing which Lely will be entitled to suspend the performance of the Agreement.
ARTICLE 13. INTELLECTUAL PROPERTY RIGHTS
13.1. All intellectual property rights and/or other rights, registered or not, vested in the delivered Equipment and/or Part(s) or in drawings, calculations, designs, etc. in the widest sense, and also including software made available to the Other Party, are owned and expressly retained by Lely.
ARTICLE 14. LIMITATION OF LIABILITY
14.1. No party shall be liable to the other for any indirect, incidental, punitive, special or consequential damages (including lost profits or lost savings) whether or not such damages are based on tort, warranty, contract or any other legal theory – even if such party has been advised, or is aware, of the possibility of such damages. In no event shall Lely be liable for excess procurement costs and rework charges.
14.2. Lely’s aggregate liability towards the Other Party under any Agreement shall not exceed (1) the lesser of (a) the amount actually received by Lely in the twelve (12) months immediately preceding the event giving rise to any liability for the Equipment or Parts causing any liability and (b) one hundred thousand (100,000) Euros, but (2) in case of liability for delay or non-delivery of Part(s) or Equipment, the purchase price under the relevant Agreement of the delayed or not-delivered Part(s) or Equipment concerned.
14.3. The limitations set forth above in this Article 14 shall only apply to the extent permitted by applicable law and shall not apply to the extent the Other Party’s damage is caused by Lely’s gross negligence or wilful misconduct.
14.4. Any damage other than referred to in Article 14.3 will be compensated to a maximum of the amount(s) that can be claimed under the liability insurance taken out by Lely, including the excess borne by Lely in connection with this insurance.
14.5. The compensation referred to in Article 14.4 applies to all cases of damage jointly arising out of a Delivery to which the damage is connected.
14.6. Without prejudice to the provisions of the previous paragraphs, only the damage suffered and shown within 12 months from the Delivery date and furthermore reported in writing within said term to Lely within 14 calendar days after discovery will qualify for compensation. As a material condition to the right to any damages, all necessary assistance will be provided to Lely in the investigation into the cause, nature and extent of the damage for which compensation is claimed.
14.7. The offsetting of claims for damages not acknowledged by Lely or not irrevocably established at law against any amounts payable by the Other Party is not permitted.
14.8. The Other Party indemnifies Lely against any claims by third parties on any account whatsoever which state to have suffered damage through the Equipment and/or Part(s) delivered by Lely to or on behalf of the Other Party, except to the extent that the Other Party demonstrates that, by virtue of the Agreement and these Terms, Lely can be held liable for this damage in the relationship to the Other Party and must compensate the latter for this damage.
14.9. Legal entities or persons belonging to the group of Lely or employed by Lely or called in by Lely in the performance of the Agreement and who are called upon by the Other Party to pay damages may invoke these provisions as well. The damages that can be claimed from these legal entities/persons and Lely jointly may never exceed the damages that Lely alone would have been required to pay.
ARTICLE 15. COMPLIANCE WITH LAWS
15.1. Each party hereto represents that it is duly authorized to enter into the Agreement and represents that with respect to its performance hereunder, it will comply with all applicable state and local laws, including but not limited to those pertaining to relevant export or import controls or restrictions of any applicable jurisdictions.
15.2. If the delivery of Parts and Equipment or services under the Agreement is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Lely may suspend its obligations and the Other Party’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Lely may even terminate the Agreement, without incurring any liability towards the Other Party. Furthermore, if an import license is required, the Other Party shall inform Lely immediately thereof and the Other Party shall provide Lely with such document as soon as it is available. By accepting Lely’s Offer, entering into any Agreement and/or accepting any Parts or Equipment, the Other Party agrees that it will not deal with the Parts or Equipment and/or documentation related thereto in violation of any applicable export or import control laws and regulations.
ARTICLE 16. CONFIDENTIALITY
16.1. The Other Party acknowledges that all technical, commercial and financial data disclosed to the Other Party by Lely is the confidential information of Lely and/or its Affiliates. The Other Party shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
ARTICLE 17. APPLICABLE LAW
17.1. The application of the Vienna Purchase Treaty (CISG) is expressly excluded.
17.2. Each Agreement and/or legal relationship between Lely and the Other Party is solely be governed by and construed in accordance with Dutch law.
ARTICLE 18. DISSOLUTION
18.1. In the event that the Other Party fails to fulfil, fails to fulfil properly or fails to fulfil in time any obligation arising out of the Agreement with Lely or in the event that the Other Party is declared bankrupt or has applied for bankruptcy, is granted a moratorium, its operations are ceased or liquidated, in the event that the Other Party dies or is placed under administration or legal restraint, or if (part of) its goods are seized, Lely will be entitled to dissolve the Agreement in full or in part, without any notification of default or judicial intervention being required, and without being liable to pay damages, without prejudice to any other rights Lely may have.
ARTICLE 19. DISPUTES
19.1. All disputes - in so far as these cannot be settled amicably - will be submitted to the competent civil court in Rotterdam.
19.2. If any of the present provisions conflict with local mandatory provisions, only that particular provision will be adapted to local legislation. All other provisions of the present Terms will remain in full force.