Legend Dairy Management Ltd. Global Terms and Condition of Sale
These Standard Terms and Conditions of Sale (these “Terms”) are the only terms that govern the Sale of equipment, services, parts and material (“Products”) by the Seller (“Legend Dairy Management Ltd. and its subsidiaries and/or affiliates under the name Legend Dairy Management”) and the buyer (“Buyer”), unless otherwise agreed to by Seller in writing with respect to a transaction. THE TERMS OF THIS CONTRACT SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER'S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
In these Terms:
“Buyer” means the entity to which Seller is providing Products or Services under the Contract.
“Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.
“Technical Specifications” means Seller´s specifications for the Products being supplied.
“Site” means the premises where Products are used or Services are performed, not including Seller's premises from which it performs Services.
“Works” means the installation of the Products at the Site.
“Critical Safety” means any component part or structure, equipment, plant or system whose failure could cause a major accident.
2. Order Process
The Buyer shall issue an order for the Product(s) clearly stating the applicable Product(s). An order shall only be deemed accepted by the Seller upon dispatch of an acknowledgement by the Seller of the order (“Sale Confirmation”), at which point the contract between the Buyer and Seller incorporating these Terms and Conditions (the “Contract”) shall come into existence. The Seller reserves the right to make changes at any time to the specification of the Products, provided such changes do not materially affect the installation, performance or price thereof. Any such change shall not invalidate any order placed with the Seller prior to such change being implemented, or render the Seller liable to the Buyer in any way whatsoever as a result thereof.
All Contracts of sale made by Seller shall be deemed to incorporate these Terms and Buyer´s acceptance of delivery of Products shall be deemed conclusive evidence of the Buyers acceptance of these Terms.
4. Permits and Drawings
Buyer must obtain at its expense all licenses, permits and approvals for the purchase, delivery and installation of any Product. The Buyer shall ensure that the Works are carried out and are in accordance with any laws, regulations and rules which are applicable to the Works. At Seller´s request, the Buyer shall provide the relevant information on these laws, regulations and rules in writing.
Modifications or cancellation of orders are subject to Seller´s prior written consent in each instance.
Unless otherwise set forth in the Sale Confirmation, Price is excluded of taxes, duties and charges, Buyer will pay or reimburse Seller for the same.
7. Payment and Credit Approval.
Seller reserves the right under the Contract to invoice, all or part, of the total Price of the Order, from any of Seller´s subsidiaries and/or affiliates.
Each transaction is subject to approval of Buyer`s credit by the Seller. If granted, credit terms are net fifteen (15) days, payable from date of invoice, unless otherwise specified in the Sale Confirmation. Seller reserves the right to charge late payment fee of two percent (2%) per month (24 % per year) against overdue amounts. Late payment fees will be recalculated every thirty (30) days thereafter based on Buyer´s current outstanding balance. . The Products will be invoiced on the date of shipment. Seller reserves the right to invoice the Buyer pro forma in which case the Products will be dispatched on receipt of payment.
Seller may suspend the delivery of any Products if Buyer fails to pay any amounts when due. Buyer may not withhold payment of any amount due and payable as a set-off of any claim or dispute with Seller. Buyer will be responsible for Seller´s costs and damages caused by Buyer`s failure to perform according to the Agreement.
When installation is carried out by the Seller, the Seller has the right, if the parties has not otherwise agreed in writing, to separately charge the Buyer the following: (a) all travelling expenses incurred by the Seller in respect of his personnel, (b) cost of board and lodging, (c) any taxes or dues levied on the invoice and payable by the Seller in the country where installation takes place, (d) any cost, expenses and time spent resulting from the applicability of mandatory rules of the Buyer´s country in social field.
The Products shall remain the property of the Seller until paid in full to the extent that such retention of title is valid under the relevant law. The retention of title shall not affect the passing of risk under Section 11.
9. Delivery and Shipping
Seller will deliver the Products according to the date specified in the Sale Confirmation. Seller shall not be liable for any delays, loss, or damage in transit. Except for any late delivery penalty to which the Seller may explicitly have agreed for a specific supply, the Seller is not liable for losses of any kind incurred by the Buyer for delays in or failure to deliver all or any part of the Products. The Seller shall deliver the Goods, Ex Works (Incoterms 2010) at the location specified in the Sale Confirmation (the “Delivery Location”), using Seller´s standard method of packaging and shipping.
Delivery of Products is deemed complete upon shipment per Incoterm, Ex Work. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer´s purchase order, in accordance with Section 10.
10. Partial Shipments
Seller reserves the right to make delivery in partial shipments (“Installments”). Any Products delivered in Installments may be invoiced individually and is payable subject to Section 7 of these Terms. Additional shipping and handling charges for Installments may apply. Delay in delivery of any Installment shall not relieve Buyer of Buyer’s obligation to accept remaining deliveries.
11. Risk of Loss
The risk of loss or damage to the Products passes to Buyer in accordance with the applicable Incoterm, Ex Work. If Buyer fails to accept the delivery of any Products from the date set forth in the Seller´s notice, or if Seller is unable to deliver the Products to the delivery location on such date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorization, then risk of loss to the Products shall pass to Buyer and the Products shall be deemed to have been delivered.
12. Inspection and Acceptance
Customer will inspect Products immediately at delivery. Seller may, at its option, be present at such inspection. Buyer shall immediately notify both the carrier and Seller of any damaged, defective or missing Products, failing to do so Buyer is deemed to have accepted such Products as delivered and shall have no claim for same. Buyer´s notification of damaged, defective or missing Products does not constitute conclusive evidence of Products´ condition at the time of delivery.
Unless otherwise set forth in the Sale Confirmation, Seller warrants to Buyer, for all new and Fully Factory Refurbished equipment, for a period of twelve (12) month following the date of when the risk of loss or damage to the Products passes to Buyer in accordance with Section 9, (“Warranty Period”), that the Goods will be free from defects in material and workmanship. If, prior to the expiration of the Warranty Period, Buyer informs Seller in writing of any breach of this limited Warranty, then Seller will, at its option, repair, replace or refund the Price of any Products found to be defective during the Warranty Period.
In the event Seller chooses to replace the defective Product(s), Buyer shall be responsible to make payment for any and all expenses related to the re-installation of the Product(s), including but not limited to duties and taxes.
The forgoing limited warranties do not apply to any defect in Products not manufactured by Seller; and any Products manufactured according to Buyer´s specifications. The Warranty does not apply to ordinary wear and tear and shall be null and void if Products are used for unintended purpose, are misused, abused, or improperly installed, maintained or operated by Buyer other then in accordance with the Seller`s instruction.
Advice, recommendations and/or other suggestions as to the design use and suitability of any Products do not constitute any warranties with respect of any Products or the use thereof, if not explicitly written in Seller´s user manual or Sale Confirmation.
14. Warranties on resale
Buyer shall make no representation or warranty, other than those stipulated in these Terms, in any resale of the Products or sale of any product incorporating the Products. Buyer shall indemnify, defend and hold Seller harmless against any and all claims, actions and expenses (including lawyers´ fees) in connection with any unauthorized representation or warranties or in connection with any claim of process patent infringement relating to a process in which the Products are used as a component part.
15. Use of Products
Buyer shall comply with the Seller´s Product specifications. Products are not authorized for use in critical safety or other environments where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Buyer uses or sells the Product for use in any such environment or fails to comply with Seller´s Product specifications, Buyer acknowledges that such use, sale or non-compliance is at Buyer’s sole risk.
16. Agents and Dealers
No agent, employee or other Representative has the right to modify or expand Seller`s standard warranty applicable to the Product(s) or to make any representations as to the Product(s) other than those set forth in Seller´s Product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Buyer and shall not form a part of the Contract.
Agent or other representative shall hold the Seller harmless against any and all claims, actions and expenses (including lawyers´ fees) arising from or in connection with Agent or Representatives installation of the Products at Site. Seller shall under all circumstances be hold harmless when Agent or Representative installs Seller´s Product(s) with a product from a third party.
17. Limitation of Liability
The Seller shall have no liability for any loss, damage or expense incurred including, without limitation indirect, special, incidental, exemplary, or consequential damages.
Seller´s total liability for all claims arising out of, or relating to, the Products shall be limited to general money damages in an amount not to exceed the total purchase price for the goods giving rise to the claim.
18. Force Majeure
Parties shall not be liable for any failures or delay caused by circumstances beyond Seller`s control, including but not limited to fires, floods, accidents, action of any governmental authority, war insurrection or riots, or shortage of labor, energy, raw materials, production facilities, or transportation. Either party may terminate the Agreement for the supply of the Products affected if such circumstances continue for more than six (6) moths.
Buyer claiming to be affected by force Majeure shall promptly notify Seller in Writing upon the occurrence of and upon the termination of the circumstances giving rise to the claim. If Buyer fails to give such notice, the Seller shall be entitled to compensation for any additional costs which he incurs and which he could have avoided had he received such notice.
19. Intellectual Property
All designs, drawings and specifications provided by the Seller are the sole property of the Seller, and they shall not be reproduced or copied in any manner whatsoever, in whole or in part, nor shall they be used, in whole or in part, for furnishing information to others or for any purpose not specifically authorized in writing by Seller.
The Buyer warrants that the Seller shall not infringe any intellectual property rights owned by a third party (including without limitation any patent, copyright, registered design or trade mark), by incorporating any instruction or design furnished or supplied by the Buyer in any Products supplied hereunder.
Neither party may assign all or any part of an agreement for sale of any Products without the prior written consent of the other party, except the Seller whom may assign any portion of the agreement to an subsidiary or affiliated company without the prior consent of the Buyer.
21. Confidential Information
All non-public, confidential, or proprietary information disclosed for supply and installation of any Products must not be used or disclosed by the recipient other than by written approval by the Seller, or for the express purpose for which it was disclosed.
If there are contradictions or inconsistencies between statements made in any Sale confirmation and documents related to a specific sale and supply, all documents shall be read so as to give priority to specific statement accepted by Seller by the signature of an authorized officer over the general statement, but if the contradiction is with any of these Standard Terms and Conditions of Sale, the Standard Terms and Conditions of Sale shall prevail unless Seller has expressly stated that the term or condition contradictory to the Standard Terms and Condition of Sale shall prevail.
23. Governing Law and Jurisdiction
The Sale of Products and all contracts related thereto are governed by and interpreted in accordance with the laws of Sweden.
Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, where the amount in dispute does not exceed EUR 100.000, shall be finally settled by Stockholm District Court as the first and final instance.
Where the amount in dispute exceeds EUR 100,000 it shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”). The Arbitration Rules shall apply and The Arbitral Tribunal shall be composed of a sole arbitrator where the amount in dispute exceeds EUR 100,000 but not EUR 1,000,000. Where the amount in dispute exceeds EUR 1,000,000, the Arbitral Tribunal shall be composed of three arbitrators. The amount in dispute includes the claim made in the Request for Arbitration and any counterclaims made in the Answer to the Request for Arbitration. The seat of arbitration shall be in Stockholm and the language to be used in the arbitral proceedings shall be in English, unless otherwise agreed by both parties.
These terms and conditions replace all previous versions and were updated on 1 November 2015.