GENERAL TERMS OF SALE AND DELIVERY
FOR LUND MASKINFABRIK A/S
Unless otherwise agreed in writing, these general terms of sale and delivery apply to all deliveries from Lund Maskinfabrik A/S (hereinafter “Lund Maskinfabrik”) to the Customer. The Customer’s general terms of purchase shall not apply, regardless of whether they form part of the Customer’s sales documents, including acceptance. This applies regardless of when such terms may be presented.
Any deviations from these terms of sale and delivery must be made by written agreement between the parties.
1. Orders and order confirmations
An order is only binding on Lund Maskinfabrik if Lund Maskinfabrik confirms it in writing.
If the information on delivery time, payment terms, specifications or other matters stated in an order confirmation differs from the information stated in the Customer’s order, Lund Maskinfabrik’s order confirmation shall prevail. If the Customer does not wish to accept the terms stated in Lund Maskinfabrik’s order confirmation, the Customer must notify Lund Maskinfabrik in writing no later than 5 working days after Lund Maskinfabrik’s order confirmation has reached the Customer. If the Customer fails to do so, the purchase agreement shall be deemed to have been concluded on the terms stated in Lund Maskinfabrik’s order confirmation.
2. Prices
All prices are stated in Danish kroner or euros excluding VAT, freight, customs duties, taxes and other charges.
If the prices for the offered or agreed delivery change as a result of changes in purchase prices, raw material prices, exchange rates, freight, customs duties, taxes, charges or the like, Lund Maskinfabrik is entitled to change the prices offered and/or agreed with the Customer.
If the delivery is covered by a price list used by Lund Maskinfabrik, the price of the delivery shall be determined on the basis of the price list applicable at the time of delivery.
3. Terms of payment
Payment must be made no later than 30 days from the invoice date. In the event of late payment, interest on arrears of 2% per commenced month will be charged from the due date. Payment by set-off cannot take place if the counterclaim is disputed. Failure to comply with Lund Maskinfabrik’s terms of payment is considered a material breach, entitling Lund Maskinfabrik to suspend further deliveries and to demand immediate payment of any outstanding amount, whether due or not yet due.
When the Customer makes a payment, Lund Maskinfabrik is entitled to first apply the payment to cover interest and costs owed by the Customer.
4. Retention of title
Subject to the limitations that follow from mandatory rules of law, Lund Maskinfabrik retains title to the goods sold until the full purchase price and the costs incurred in connection with the delivery, shipping and insurance of the goods, paid by Lund Maskinfabrik on the Customer’s behalf, have been paid by the Customer, or until the agreed security has been provided. Until then, the Customer is not entitled to resell the goods or otherwise dispose of them in a manner that conflicts with Lund Maskinfabrik’s retention of title.
If the goods are converted or processed without losing their distinctive character or identity, the retention of title shall be maintained so that it covers the converted or processed item for the value that the goods represented before conversion or processing.
When the Customer has paid or provided the agreed security for all amounts owed, and title to the goods has passed to the Customer, Lund Maskinfabrik shall confirm this at the Customer’s request.
5. Product information and changes
Information in product information material is only binding to the extent that Lund Maskinfabrik expressly refers to it in writing. Lund Maskinfabrik reserves the right to make changes to all product specifications without notice if this can be done without significant inconvenience to the Customer. Drawings, specifications and the like provided by Lund Maskinfabrik before or after the conclusion of the agreement remain the property of Lund Maskinfabrik and may not be disclosed without Lund Maskinfabrik’s written consent.
6. Delivery
Delivery takes place ex works, unless otherwise stated in the order confirmation. At the Customer’s request, Lund Maskinfabrik will arrange for the goods to be transported, at the Customer’s expense and risk, to any location in Denmark designated by the Customer that is accessible by road. The Customer is responsible for immediate unloading, and any waiting time will be at the Customer’s expense.
The delivery time is set by Lund Maskinfabrik to the best of its judgement in accordance with the circumstances at the time the offer was made and/or the agreement was concluded. Unless otherwise agreed in writing, a postponement of the delivery time of up to 30 working days shall in all respects be considered timely delivery, and the Customer may not exercise any remedies against Lund Maskinfabrik on this account. Lund Maskinfabrik shall notify the Customer of any changes in the delivery time without undue delay.
The Customer is not entitled to compensation for any losses, regardless of their nature and extent, resulting from a postponement of delivery as described above.
7. Cancellation or postponement of orders by the Customer
An order may only be cancelled, or its delivery postponed, by prior agreement with Lund Maskinfabrik and against the Customer’s payment of a fee of 20% of the agreed price, but no less than Lund Maskinfabrik’s costs. The amount is due for payment no later than 10 days after Lund Maskinfabrik has approved the cancellation or postponement of the delivery date.
8. Returned goods
Stock items are only accepted for return if this has been agreed in writing between the parties and against a fee. In all cases, it is a condition for crediting returned goods that they are in saleable condition, undamaged and in their original unopened packaging. Goods are returned at the Customer’s expense and risk.
Specially processed or specially manufactured goods will not be accepted for return.
9. Delay
If a delay occurs, the Customer will be informed. In the event of delay, the Customer has no rights other than to cancel the agreement with respect to goods not yet delivered. The Customer may only cancel the agreement if the delay is material to the Customer and is caused by Lund Maskinfabrik. In that case, after the delivery date has passed, the Customer must send a written request to Lund Maskinfabrik demanding delivery within 3 weeks. If delivery does not take place before the expiry of the 3-week deadline, the Customer may cancel the purchase.
The Customer may not make any claim for damages in connection with the delayed delivery.
10. Defects and complaints
Upon delivery, the Customer is obliged immediately, and no later than 3 days after receipt of the goods, to carry out an effective incoming inspection of the quantity and quality of the delivered goods before they are put into use. If the goods are used in the Customer’s production, the Customer is also obliged to inspect the production on an ongoing basis so that any defects in the delivered goods are discovered as soon as possible.
Quantity defects:
If the agreed quantity is not delivered within a tolerance of +/-10%, the Customer must make a complaint immediately upon receipt in order to be able to claim a defect. The complaint must be made directly to Lund Maskinfabrik and noted on any consignment note. The Customer has no remedies other than the right to have the defect remedied by subsequent delivery as soon as possible. If subsequent delivery does not take place within a reasonable time, the Customer may claim compensation for documented loss, limited to the proportionate share of the invoice amount corresponding to the quantity deviation.
Quality defects:
Only documented design, manufacturing and material defects in the delivered goods and incorrectly performed work are considered quality defects. Quality defects resulting from the Customer’s instructions or from material supplied by the Customer cannot be claimed. The Customer should therefore ensure that such instructions regarding materials are correct.
Quality defects that could have been discovered during an inspection as described above may only be claimed if the Customer makes a complaint directly to Lund Maskinfabrik as soon as the defect is discovered. If the Customer has discovered or should have discovered the defect and does not make a complaint as described, the Customer cannot claim the defect at a later stage. In the case of visible defects and transport damage, the Customer must also note this on any consignment note and immediately contact the carrier responsible for the transport (post, rail, haulier, etc.) as well as Lund Maskinfabrik. The Customer cannot invoke defects that could not be discovered during an inspection as described above unless Lund Maskinfabrik A/S has received a written complaint within 1 year of delivery.
The Customer has no remedies other than the right to have the defect remedied. At Lund Maskinfabrik’s discretion, defects in the goods sold will be remedied, the goods replaced, or the purchase price credited to the Customer, and the Customer cannot make any further claims in this connection. Lund Maskinfabrik decides whether the remedy shall consist of repair or replacement of the defective part(s) or a new delivery. If the Customer supplies material, either as raw material or partly processed, and this material is damaged or lost, Lund Maskinfabrik is only liable for the cost price of the material excluding processing and cannot be required to pay anything beyond this.
Any modification of or interference with the goods sold without Lund Maskinfabrik’s consent releases Lund Maskinfabrik from all liability and obligations.
If the Customer makes an unjustified complaint, the Customer is obliged to pay all of Lund Maskinfabrik’s documented travel and hotel costs in connection with the inspection of the delivery, and the Customer must also pay the costs of the independent inspection.
The Customer may not make any claim for damages in connection with defects in the goods sold, and Lund Maskinfabrik has no liability for defects beyond what is stated in this section. This applies to any loss the defect may cause, including operating loss, loss of earnings and other consequential financial losses.
11. Product liability
The Customer shall indemnify Lund Maskinfabrik to the extent that Lund Maskinfabrik is held liable to a third party for damage and loss for which Lund Maskinfabrik is not liable to the Customer under this section. Lund Maskinfabrik is not liable for damage caused by the goods sold:
a) to real property or movable property occurring while the goods are in the buyer’s possession.
b) to products manufactured by the buyer or to products of which these form part, or for damage to real property or movable property caused by these products as a result of the goods sold.
Lund Maskinfabrik’s liability cannot exceed the production price of the goods in which the product supplied by Lund Maskinfabrik is incorporated, subject to a maximum of DKK 50,000. Any other loss is not covered.
Under no circumstances is Lund Maskinfabrik liable for operating loss, loss of earnings or other consequential financial losses. If a third party makes a claim for damages against one of the parties under this section, that party shall immediately notify the other party. Lund Maskinfabrik and the Customer are mutually obliged to accept being sued before the court or arbitration tribunal that hears claims for damages raised against one of them on the basis of damage or loss allegedly caused by the goods. However, the relationship between the Customer and Lund Maskinfabrik shall always be settled at the agreed venue in accordance with these terms of sale and delivery.
12. Limitation of liability
Lund Maskinfabrik’s liability for damages is limited to direct damage/loss and is, regardless of cause and regardless of the nature of the claim, limited to the amount invoiced for the service that caused the damage/loss or that is the cause of or directly connected with the claim for damages, subject to a maximum of DKK 50,000.
Under no circumstances is Lund Maskinfabrik liable to the Customer for loss of profit, lost savings or other indirect or consequential losses resulting from the use of the goods sold or the inability to use them, regardless of whether Lund Maskinfabrik has been informed of the possibility of such claims.
13. Exemption from liability (force majeure)
Lund Maskinfabrik is not liable for delays in delivery or non-performance if it is shown that the delay or non-performance is due to war, riots, civil unrest, government intervention, blockade, intervention by local authorities, seizure, fire, natural disasters, strikes, lockouts, export or import bans, interruptions to general transport, defective or delayed deliveries from subcontractors, or any other causes beyond Lund Maskinfabrik’s control that are likely to delay or prevent the manufacture and delivery of the goods sold.
If, in Lund Maskinfabrik’s assessment, there is an impediment to delivery of the kind mentioned above, the delivery time shall be postponed by a period corresponding to the duration of the impediment. If Lund Maskinfabrik, after being notified of an impediment to delivery, expects it to last a further 3 months or more, Lund Maskinfabrik is entitled, either immediately or at a later date, to cancel offers made and terminate unfulfilled agreements, without this being considered a breach on Lund Maskinfabrik’s part.
14. Disputes, governing law and venue
Disputes between the parties that cannot be settled amicably shall be settled at the courts of Lund Maskinfabrik’s domicile in accordance with Danish law. However, Danish rules of private international law that refer to foreign law, as well as the United Nations Convention on Contracts for the International Sale of Goods (CISG), shall not apply. Lund Maskinfabrik may nevertheless choose to bring an action at the Customer’s venue.