Terms and Conditions of Business of LOTUS Containers GmbH
This is a translation of the applicable German “Allgemeine Geschäftsbedingungen der LOTUS Containers GmbH”. In case of any discrepancies between the German text and the English translation, the German text shall prevail.
1 General, Scope of application
- Our offers, services and supplies are made exclusively on the basis of these sale and delivery conditions (hereinafter referred to as "Terms and Conditions of Business"). These Terms and Conditions of Business form an integral part of and apply to all agreements which we conclude with our contractual partners (hereinafter referred to as our "Customer") in respect of services and supplies offered by us. Our Terms and Conditions of Business shall also govern any future agreements in respect of services and supplies provided to our Customer.
- We do not accept any conflicting terms and conditions from our Customer and we do not accept any terms and conditions which deviate from our Terms and Conditions of Business unless we have given our prior written consent. This requirement to give prior written consent shall also apply even if we have knowledge of our Customer’s conflicting terms and conditions or of any terms and conditions which deviate from our Terms and Conditions of Business but still deliver the goods to our Customer without making an express reservation stating that our Terms and Conditions of Business apply.
- Any term individually negotiated and agreed with our Customer (including any subsidiary agreements, additions and amendments) shall, in any case, take precedence over these Terms and Conditions of Business.
- In case we provide our Customer with any freight forwarding services, the German Freight Forwarders' Standard Terms and Conditions (ADSp) (valid as from 01/01/2003) shall take precedence to these Terms and Conditions of Business.
2 Offer and conclusion of an agreement
- Our offers are non-binding and may be revoked at any time until our Customer’s order is confirmed by us, unless the respective offer is expressly marked as binding or contains a specific deadline for acceptance. Details given on our website at www.lotus-containers.com concerning services offered by us do not constitute a binding offer. If our Customer enters data or details into a contact form provided on our website, the entry does neither constitute a binding offer on our part nor an order confirmation from us to our Customer.
- Any details given by us in respect of our supplies or services (e.g. weights, measurements, utility values, resilience, tolerances and technical data), as well as our representations of the same (e.g. drawings and illustrations) shall only be deemed to be approximate unless the fitness for the contractually intended purpose requires exact compliance. Any regular commercial deviations as well as any deviations based on legal regulations or which constitute technical improvements, provided they do not impair the fitness of the goods or services for the contractually intended purpose, shall be admissible.
- We reserve the right of ownership and copyright in respect of all illustrations, drawings, calculations, brochures and any other documentation provided to our Customer. Our Customer must not make such documents available to third parties as such nor its contents, nor shall our Customer publish or duplicate such documents without our prior express consent.
3 Prices and terms of payment
- Unless anything to the contrary has been expressly agreed, the prices agreed are deemed net prices ex agreed warehouse, exclusive of ancillary expenses. All containers sold are under temporary importation and domestic buyer is responsible for and required to use all containers in international traffic or arrange for domestication, import and neutralization. All charges and costs in connection with domestication, import and neutralization are for domestic buyer's account. Domestic buyer accepts these responsibilities by paying this invoice.
- Unless anything to the contrary has been expressly agreed, we only deliver or make the goods available once the amount invoiced has been received. Our Customer shall be obliged to pay the amounts invoiced, without making any deduction whatsoever, either in cash or by way of bank transfer to one of our accounts. In the latter case, bank charges are to be borne by our Customer. Payment is made when the funds are received by us or the amount is credited to our account.
- Our Customer shall only be entitled to set-off his counterclaims against our claims provided his counterclaims have been awarded by an unappealable judgment or arbitration award, are undisputed or have been acknowledged by us. Our Customer shall only be entitled to exercise his rights of retention or his right to refuse performance in circumstances where he is entitled to set-off his counterclaim. In addition to this, the Customer shall only be authorised to exercise his rights of retention in so far as his counterclaims are based on the same agreement from which our claim arises from.
- We may make our performance under the terms of the agreement with our Customer subject to advance payments or security provided by our Customer in case it is agreed that delivery will take place against the provision of an invoice and any justified concerns about our Customer's creditworthiness arise after the conclusion of the agreement, in particular where attachments are made or other enforcement measures are brought against our Customer or where insolvency proceedings are instituted against our Customer or the institution of such proceedings has been declined due to lack of assets. Should the Customer not be prepared, or not be in a position to make advance payments or provide security, we shall be entitled to withdraw from the contract.
- Bank and currency conversion charges are to be borne by the customer.
4 Supplies and services, delivery time and delay in delivery
- In so far as nothing to the contrary expressly arises from the agreement, it is agreed that the goods will be made available at the agreed depot.
- In so far as nothing to the contrary is expressly agreed, our Customer undertakes to use containers purchased only as a means for transporting goods.
- The beginning of the delivery period specified by us requires that all technical issues have been clarified with our Customer. Moreover, adherence to our delivery obligation requires that the Customer fulfils its obligations in good time and properly, in particular makes the agreed payments and, if applicable, provides any agreed security.
- Delivery in various separate batches shall be permissible, in so far as this is reasonable for our Customer.
- Contrary to the terms of Sec. 286(2) German Civil Code (BGB), we shall only be in default for delay in respect of our delivery once we have received a written warning from our Customer. In case we are in default for delay in respect of our delivery, the Customer shall be required to set us a further grace period of at least two weeks to deliver the goods or services.
- In case we are not be supplied by our own suppliers with appropriate goods or services or in good time, we shall be freed from our obligation to deliver and may also withdraw from the agreement. However, the aforementioned right to withdraw shall not apply in the event where the non-performance by our suppliers resulted from our fault. Our Customer shall be informed immediately about the service or goods not being available. In such circumstances, we shall reimburse any consideration already received immediately.
- Cases of force majeure (e.g. industrial action at either our or our suppliers’ premises, war, fire, transport hindrances, raw material shortage, official or government measures, natural disasters or lock-outs) shall interrupt the delivery time we have quoted for the period during which they exist plus an additional reasonable time to make the goods ready, if required. This shall even apply in case we are in default for delay in delivery. We shall immediately inform our Customer on the occurrence of any case of force majeure and the expected duration of the force majeure event. We shall be entitled to withdraw from the agreement, in whole or in part, in respect of the part of the agreement which has not yet been fulfilled if, based on the duration of the force majeure event, it is not reasonable for us to continue to fulfil the agreement, however by taking our Customer's interests into consideration.
- Our liability for a delay in delivery shall be governed by paragraph 9 of these Terms and Conditions of Business.
5 Transfer of risk, shipping, delay in acceptance, warehouse charges
- The risk of accidental loss or accidental impairment to the goods shall pass to our Customer upon the goods being made available to our Customer. In case goods are shipped the risk of any loss or any impairment to the goods to be delivered, as well as the risk of delay shall pass to our Customer as soon as the goods have been handed over to the freight forwarder, freight carrier or any other person appointed to handle the shipping. This shall also apply to delivery made in several parts, regardless of whether delivery has been agreed to be "carriage paid" or not. In so far as an acceptance by inspection has been agreed, this shall determine the point in time when the risk is transferred to our Customer. Risk always passes to our Customer where our Customer is in default in accepting the goods or services.
- Our Customer shall be deemed to be in default in accepting the goods and services seven days after these goods or services have been made available. In such case, the Customer shall be required to pay one EUR per TEU per day as compensation for the damage caused by the delay, unless the Customer can prove that the actual damage incurred was less. The right to assert any further claims, in particular claims for compensation for damage, is reserved if, simultaneously with this delay, the Customer commits further defaults under the agreement, including but not limited to payment defaults.
- Our Customer shall be obliged to remove any markings, labels and symbols indicating previous possessors of the goods immediately, however no later than within seven days after accepting the goods.
- hould our Customer require permits or authorisations under either private or public law for the purpose for which he intends to use the goods or services (e.g. consent to undercut boundaries, building permits, structural calculations), our Customer shall be required to bear this risk, attend to and procure the permits or authorisations at its own expense.
6 Retention of title
- Until full payment of all our present and future claims arising from the agreement and our ongoing business relationship with our Customer ("Secured Claims"), we shall retain title to the goods (hereinafter referred to as "Reserved Goods").
- The Reserved Goods may not be pledged to a third party or transferred by way of security prior to full payment of the Secured Claims. Our Customer shall inform us in writing immediately if and in so far as the Reserved Goods are seized by a third party, so that we can file a claim under Sec. 771 German Code of Civil Procedure (ZPO).
- Our Customer hereby authorises us to enter any of his business premises and warehouses unhindered, and to collect the Reserved Goods in case our Customer has not adhered to our request for them to be handed over within a reasonable period of time.
- Our Customer shall be entitled to sell the Reserved Goods in his normal course of business. This shall not apply if it is agreed that our Customer's claim against the third party lapses by way of set-off.
- The retention of title shall extend to the full value of the products emerging as a result of any processing or mixing of Reserved Goods with other goods or them being connected with each other. In these circumstances, we shall be deemed to be the manufacturer of such products.
- For the purposes of security, our Customer hereby assigns to us any claims he has or may have against third parties which arise from the resale of the Reserved Goods, either in their entirety or to the extent of any co-ownership share that we may have in the goods in accordance with the above paragraph. We herewith accept the assignment. Our Customer’s obligations specified in sub-paragraph 2 shall also apply in consideration of the claims assigned.
- Our Customer shall remain authorised to collect the claims set out in sub-paragraph 6. We undertake not to collect the claims for as long as our Customer complies with his payment obligations in relation to us, does not fall into arrears with payment and does not cease to make payment.
7 Duty to inspect the goods and obligation to give notice of defects
- The goods are to be inspected carefully immediately after delivery to our Customer or the third party appointed by it. The goods are deemed to have been accepted by our Customer in respect of any obvious defects or other defects that would have been identified had the goods been carefully examined immediately in case we do not receive a notification of the defects within two business days from delivery of the goods.
- In regard to any other defects, the goods shall be deemed to have been accepted by our Customer in case we do not receive a notification of the defect within two business days of the defect becoming apparent. In case the defect could have been identified by our Customer at an earlier date, such earlier point in time shall, however, determine the commencement of the period allowed for examination and notification of a defect or deficiency.
- In case our Customer fails to inspect the item properly and/or notify defects, our liability in respect of the defect not notified shall be excluded.
8 Warranty, material defects
- Should there be a defect in the goods purchased, we shall, at our discretion, be entitled to remedy the defect or deliver a new item to our Customer that is free of defects (Supplementary Performance).
- In the event of Supplementary Performance, we shall bear the expenditure necessary to effect such Supplementary Performance, including transport costs, toll charges and the cost of labour and materials. In case Supplementary Performance would only be possible by incurring disproportionate expenses, e.g. because the goods have been taken to a different site than the place of performance and were not taken there in accordance with their intended use, we shall be entitled to refuse Supplementary Performance.
- In case we are at fault for the defect, our Customer may only claim damages by complying with the requirements as set out in paragraph 9.
- Claims by our Customer for defects in the goods shall be excluded in case of used goods. The Customer may, however, claim damages or claim reimbursement of expenses on the basis of the additional requirements set out in paragraph 9 below.
9 Liability for damages
- Our liability to pay damages, on which legal basis whatsoever but in particular in respect of impossibility of performance, delay, defective or incorrect delivery, contractual breach, breach of obligations during contractual negotiations or tort, shall be limited to the terms as set out in this paragraph 9.
- We shall not be held liable for simple negligence caused by our governing bodies, authorised officers, employees or other vicarious agents, unless a fundamental contractual obligation has been thereby breached. Fundamental contractual obligations include the obligation to deliver the goods in good time, that the goods are free of defects which impair the good’s functional capability or fitness for purpose in a material respect, as well as information and protection and custody obligations aimed at enabling our Customer to use the goods as contractually agreed, or ensuring the personal safety of staff of our Customer or protecting the latter's property from significant damage.
- In so far as we are liable for damages under paragraph 9(2), such liability shall be limited to foreseeable damage only. Any further claims for damages, in particular but not limited to claims for indirect losses or for lost profits, shall be excluded.
- In so far as we provide technical information services or actively advise our Customer and such information or advice does not form part of the contractually agreed scope of our services owed by us, our services and/or advice shall receive no consideration and all of our liability whatsoever in respect of such services/advice shall be herewith fully excluded.
- The foregoing exclusions and limitations of liability shall also apply to the same degree in favour of our governing bodies, authorised officers, employees and other vicarious agents.
- The limitations of this paragraph 9 shall not apply to our liability arising from intentional conduct, guaranteed characteristics, injury to life, body or health or to our liability arising under the German Product Liability Act.
10 Limitation period
- The warranty period for defects to the goods shall be one year running from the date on which risk in the goods is transferred. The statutory warranty periods under Sec. 438(1) no 1 and 2, Sec. 438(3), Sec. 479 and Sec. 634a(1) no 2 German Civil Code (BGB) shall remain unaffected.
- Any other contractual and non-contractual claims for compensation for losses on the part of our Customer are subject to a limitation period of one year. The statutory periods of limitation applicable for claims for damages and reimbursement of expenses based on intent and gross negligence, as well as for claims under the German Product Liability Act and any claims based on damage arising from injury to life, body or health shall remain unaffected.
- Our claims against our Customer are subject to the statutory limitation periods.
11 Prohibition on assignment
Our Customer shall not be entitled to assign any claims he may have against us to third parties. Sec. 354a German Commercial Code (HGB) shall remain unaffected. Our Customer shall likewise not be entitled to assign this agreement or any parts thereof to third parties without our express prior consent.
12 Place of jurisdiction, place of performance and governing law
- The exclusive place of jurisdiction shall be Hamburg. We do, however, reserve the right to file an action at the registered address or the business address of our Customer.
- The place of performance for any obligations arising from the sale agreement shall be the agreed place of delivery or the agreed warehouse location. In case no place of delivery or depot location has been agreed, the place of performance for any obligations arising from the sale agreement shall be our registered office in Seevetal, Germany.
- The law of the Federal Republic of Germany shall exclusively apply. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
13 Final provisions
In case any individual provision of the agreement concluded between us and our Customer or any provisions of these Terms and Conditions of Business are invalid, the validity of the remainder of the agreement shall remain unaffected. In the event that the agreement or these Terms and Conditions of Business contain any gaps or omissions, such legally valid provisions shall be deemed to have been agreed that the contracting parties would have agreed in accordance with the economic aims of the agreement and the purpose of these Terms and Conditions of Business had they known of such gaps or omissions.
CONTAINER SALE TERMS AND CONDITIONS of LOTUS Containers Limited, hereinafter referred to as "Seller"
1 Offer and conclusion of an agreement
Any offer made by Seller to Purchaser are non-binding and may be revoked at any time until Seller confirms in Writing ("Order Confirmation") acceptance of a purchase order made by Purchaser ("Order"), unless the relevant offer is marked as binding or contains a specified deadline for acceptance by Purchaser. For the avoidance of doubt, details given on Seller’s website (www.lotus-containers.com) concerning services offered do not constitute binding offers by Seller. If Purchaser enters information into a form on the said website, the information entered does not constitute a binding offer made by Seller or an Order Confirmation.
2 Condition, Disclaimer
Any technical data provided by Seller to Purchaser in relation to the Containers, in any Specification or otherwise, shall be deemed to be approximations only. Save as expressly agreed between Purchaser and Seller in Writing and/or in any applicable Specification supplied by Seller or agreed in Writing by the Seller, and save for the warranty contained in clause 5 hereof, the Containers are sold, transferred and assigned in their "as is, where is" condition and Seller makes no warranties, guarantees or representations of any kind, either express or implied, statutory or otherwise, that survive Delivery of the Containers to Purchaser. Purchaser waives, releases and renounces all warranties, obligations and liabilities of Seller, express or implied, arising by law or otherwise, with respect to any nonconformance or defect in the Containers, the condition thereof, damage thereto, the location of the Containers, any implied warranty of fitness or merchantability, any liability arising from strict liability in tort, product liability, implied warranty arising from course of performance, course of dealing or usage of trade, or loss of use, profit or other consequential damages.
3 Price and Terms of Payment
The price of the Containers shall be as stated in the relevant Order. The price shall be net of delivery charges to the named premises. The price shall be inclusive of all applicable Taxes, payment of which shall be the responsibility of Purchaser.
Purchaser shall pay all amounts invoiced to it by Seller in cash or by way of bank transfer to Seller, in which case, payment of any related bank charges are the responsibility of Purchaser. Payment shall have been made once the relevant funds are received by Seller or the amount is credited to its bank account.
Unless otherwise expressly agreed, Seller shall only deliver the Containers once the amount invoiced has been received by Seller from Purchaser.
Seller’s performance under an agreement entered into with Purchaser may be subject to advance payment or security to be provided by Purchaser in circumstances where Seller is justifiably concerned as to Purchaser’s creditworthiness, such as where attachments are made or other enforcement measures are brought against Purchaser or the institution of such proceedings has been declined due to lack of assets. Should Purchaser not be able or willing to make advance payments or provide security, as the case may be, Seller shall be entitled to withdraw from the agreement with Purchaser.
4 Removal of Evidence of Ownership
Immediately, and, in any event, within seven (7) days following acceptance, Purchaser, at Purchaser’s sole expense, shall remove from the Containers the reporting marks of Seller and any other plate, decal, or other evidence of a pre-ownership.
5 Delivery and Title
In these Terms and Conditions, the terms "Deliver" and "Delivery" include the use of any agreed-upon method of the transfer of possession and risk of loss from Seller to Purchaser, including, but not limited to, making the Containers available to Purchaser at a designated location. Seller hereby warrants that, at Delivery, Purchaser shall receive title to the Containers free and clear of Encumbrances, except those arising through or under Purchaser; provided, however, that title to the Containers, including risk of casualty loss and the right to possession of the Containers, shall remain with Seller until Seller has received the full Purchase Price and Purchaser has accepted the Containers.
Pending receipt by Seller of the full Purchase Price from Purchaser, Purchaser may not pledge or otherwise Encumber the Containers in favour of any third party.
Pending receipt by Seller of the full Purchase Price from Purchaser, if Purchaser has not adhered to Seller’s request for those Containers to be returned to Seller within a reasonable time, Purchaser hereby authorizes Seller to enter into any of Purchaser’s business premises and warehouses unhindered, and to collect those Containers.
As security, Purchaser hereby undertakes to assign to Seller any claims it may have against third parties which arise from the resale of any Containers in which Seller retains title under this clause. Any claim assigned under this clause shall be made in in whole or in part to the extent of any co-ownership share that Seller may have in the Containers concerned.
6 Transfer of Risk
The risk of accidental loss or accidental impairment to the Containers shall pass to Purchaser upon Delivery.
7 Collection of Containers
Once the Containers are made available by Seller at the designated location for collection by Purchaser (i.e. once the Containers are delivered), Seller will grant Purchaser seven (7) days free storage pending Purchaser’s collection of the Containers. Thereafter, storage charges shall apply in the amount of one euro (EUR 1.00) per day and per TEU. Purchaser is requested to check in advance with the respective depot whether the Containers are ready for collection. In case the units are not ready for collection, Seller cannot be held responsible for any consequential costs such as wasted haulage etc..
Purchaser agrees to indemnify, reimburse, and hold Seller harmless from and against all claims, damages, losses, liabilities, demands, suits, judgments, causes of action, civil and criminal legal proceedings, penalties, fines, and other sanctions, and any attorney fees and other reasonable costs and expenses, relating to any occurrence after delivery or arising in any manner out of Purchaser’s purchase, acceptance, ownership, possession, use, maintenance, or operation of the Containers, or from Purchaser’s failure to timely remove Seller’s reporting marks or other evidence of a pre-ownership from the Containers.
9 Remedies and Limitation of Liability
Seller shall not be liable for any negligent act caused by its officers, employees or other vicarious agents, unless a fundamental contractual obligation has been thereby breached. Fundamental contractual obligations include the obligation to deliver the Containers in good time; and ensuring the personal safety of the staff of Purchaser or protecting the latter’s property from significant damage.
Insofar as Seller is liable for damages as aforesaid, such liability shall be limited to foreseeable damage only. Any further claims for damages, including but not limited to claims for indirect losses or for lost profits, shall be excluded.
Any contractual and non-contractual claims by Purchaser against Seller are subject to a limitation period of one (1) year. Any contractual and non-contractual claims by Seller against Purchaser are subject to the Limitation Ordinance (Chapter 37, Laws of Hong Kong).
In the event Seller fails or refuses to perform its obligations hereunder and Deliver the Containers to Purchaser, then, provided Purchaser is not then in default hereunder, Purchaser shall be entitled to cancel the purchase. Any claim by Purchaser against Seller shall be limited to the refund of any sums previously paid by Purchaser on account of the Purchase Price, if any, and liquidated damages in the amount of twenty euros (EUR 20.00) per Container, but, in no event shall Seller be responsible for any claimed incidental or consequential damages. The parties agree that said sum is a reasonable estimate of the damages Purchaser would suffer for breach or non-performance by Seller hereunder. In the event Seller tenders the Containers for delivery in accordance with the terms of these Terms and Conditions and Purchaser fails or refuses to perform its obligations hereunder and pay the purchase price for the Containers, at Seller’s option, in addition any other remedy available to Seller, Seller shall be entitled to cancel the sale.
10 Late Payment Fees
If Purchaser delays payment of Purchase Price and other charges beyond agreed due dates then an additional late payment fee equal to one point five per cent (1.5%) per month of the outstanding payment shall be rendered. Payment of late payment fees will be due on presentation of the invoice. Seller acknowledges that the method of calculation of the additional late payment is a genuine pre-estimate of damages for consequential loss and damage.
Purchaser agrees to pay and hold Seller harmless from all registration fees, sales taxes, ad valorem taxes, value added taxes, stamp duties, goods and services taxes and other taxes, levies, impositions, duties (including domestication expense), charges, contributions or withholdings of any nature arising from the purchase, sale, delivery and transfer of the Containers, in each case whether in Hong Kong or elsewhere, whenever imposed and all penalties, charges, costs and interest relating thereto.
12 Customs Clearance and Compliance
At the time of sale, the Containers shall not be cleared for customs purposes in the country where the Containers are located and therefore continue to be subject to the temporary import relief regime, as specifically provided for international Container traffic. The Containers are sold on the condition that the Purchaser agrees to use the Containers solely for international freight transport. If the Purchaser subsequently decides to import the Containers for local use into the country of sale, then, the Purchaser agrees that it will act as importer of record and will be responsible for all fees and taxes as identified in clause 7 above. Purchaser shall be responsible for and shall pay any import value-added tax, custom duty or other taxes identified in clause 7 above, assessed as a result of the importation of the Containers.
Should Purchaser require permits or authorizations under any law for the purpose for which it intends to use the Containers, Purchaser shall be solely responsible for applying for any requisite permits or authorizations at its sole expense.
13 Intellectual Property
Seller reserves the right of ownership and copyright in respect of all illustrations, drawings, calculations, brochures and any other documentation provided to Purchaser. Purchaser must not make such documents or their content available to third parties, nor shall Purchaser publish or duplicate such documents with Seller’s prior express consent.
14 Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the substantive laws of Hong Kong. The United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) shall not apply to the transactions contemplated by these Terms and Conditions.
The prevailing party in any proceedings brought to enforce these Terms and Conditions shall be entitled to recover its reasonable fees and expenses incurred, including legal fees and expenses.
Neither these Terms and Conditions, nor any part of Purchaser’s rights hereunder, shall be assigned, transferred or otherwise conveyed by Purchaser to any person without the prior written consent of Seller, which shall not be unreasonably withheld. The agreements, indemnifications, representations and warranties made herein shall survive the sale and delivery of the Containers. The rights and obligations of the parties hereto shall inure to the benefit of, and be binding and enforceable upon the respective successors and permitted assigns of the parties.
The invalidity, illegality or unenforceability of any provisions of these Terms and Conditions will not affect the validity of the remainder of these Terms and Conditions.
In these Terms and Conditions, unless the context otherwise requires, the definitions below apply:
- "Business Day" means a day other than a Saturday, Sunday or a public holiday in Hong Kong;
- "Containers" means such container(s) being sold by the Seller to the Purchaser under a sale and purchase agreement;
- "Encumbrance" means any claim, charge, mortgage, security, lien, option, equity, power of sale, hypothecation or other third party rights, retention of title or security interest of any kind;
- "Hong Kong" means the Hong Kong Special Administrative Region of China;
- "Party" means each of Seller and Purchaser, and “parties” means Seller and Purchaser together;
- "Purchase Price" means the purchase price for the Containers as may be agreed in an agreement for the sale and purchase of Containers entered into between Seller and Purchaser;
- "Specification" includes any information relating to the Containers including but not limited to quantity, technical and functional specifications, quality and description;
- "Terms and Conditions" means the terms and conditions of sale and purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between Purchaser and Seller; and
- "Writing" includes facsimile transmission, e-mail and other comparable means of communication.
Lotus Containers Inc. Sale Terms and Conditions
1. DELIVERY, PICKUP, ID PLATES and PAYMENT.
All Equipment is sold “AS IS” “WHERE-IS’. Unless otherwise agreed, title to Equipment shall pass to Purchaser upon Purchaser’s pick up of the item of Equipment. Risk of loss shall pass to Purchaser upon the earlier of Purchaser’s payment for or Purchaser’s pickup of the item of Equipment. Seller shall have no liability whatsoever for loss or damage due to late delivery or non-delivery of the Equipment. Furthermore, if Seller’s performance of this sale is, in whole or in part, prevented or hindered by any cause whatsoever, Seller shall have the right to cancel, without any liability on its part, all or portions of this order so affected. Equipment must be picked up within seven (07) days of the date of Sale Release confirmation. Otherwise, Seller may cancel the sale or charge Purchaser storage. Purchaser will promptly remove all ownership markings and identification plates. Payment terms are listed on the respective invoice. Overdue payments will be subject to a service charge equal to the lesser of 2% per month or the highest legal rate. Bank and currency conversion charges are to be borne by the customer.
2. DISCLAIMER OF WARRANTIES/CONSEQUENTIAL DAMAGES.
PURCHASER IS AWARE THAT ALL EQUIPMENT IS SOLD “AS-IS” ‘WHERE-IS’. SELLER DISCLAIMS AND PURCHASER WAIVES AND RELEASES SELLER FROM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION (a) THE DESIGN, CONDITION, AVAILABILITY, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE EQUIPMENT; (b) THE FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR USE OR PURPOSE OF PURCHASER; AND (c) THE CONFORMITY OF THE EQUIPMENT TO THE SPECIFICATIONS REQUIRED BY ANY COUNTRY OR POLITICAL SUBDIVISION WITHIN WHICH THE EQUIPMENT MAY BE USED. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER SHALL HAVE NO LIABILITY TO PURCHASER FOR ANY CLAIM, LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, OR BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, OR BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH WHETHER ARISING IN STRICT LIABILITY OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE HEREUNDER FOR ANY LOST PROFITS OR FOR SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER DISCLAIMS AND PURCHASER WAIVES ANY WARRANTY REGARDING THE OPERATION OF MACHINERY OR TYPE OF REFRIGERANT REFRIGERATED CONTAINERS MAY CONTAIN. IN THE EVENT ANY EQUIPMENT SURVEYS ARE PERFORMED AT THE REQUEST OF PURCHASER, SUCH SURVEYS SHALL BE CONDUCTED BY AN INDEPENDENT THIRD PARTY ON BEHALF OF PURCHASER. SELLER DOES NOT GUARANTEE THE ACCURACY OF ANY SUCH SURVEY.
3. TAXES; CUSTOMS; COMPLIANCE WITH LAWS.
Prior to sale to Purchaser, the Equipment has been used solely for international transportation and is located at the pickup location under temporary admission permission pursuant to the Convention on Temporary Admission (Istanbul Convention) and related international and domestic laws. The Equipment has not been qualified in any jurisdiction for any other use. Purchaser agrees to assume exclusive liability for and to pay, to prepare all necessary filings (including VAT filings that may be required under the reverse-charge provisions), indemnify and hold SELLER harmless from all sales or use taxes, transfer, title and registration fees, VAT, domestication, personal property taxes or other taxes, tolls, levies, imposts, duties or government charges imposed in connection with the intended use of the Equipment by Purchaser, the sale of Equipment, or any services rendered by SELLER in connection with this sale of Equipment, including any penalties, fines or interest thereon.
Purchaser will defend at its own expense and indemnify and hold harmless Seller, its agents, employees and indemnities from and against any and all claims, losses, damages, liabilities, demands, actions, costs, expenses and fees (including attorneys’ fees) arising out of, or in connection with, the sale of the Equipment to Purchaser or any subsequent use, operation or disposition of the Equipment.
The remedies reserved to Seller herein shall be cumulative and in addition to any other or further remedies provided by law. Seller’s failure to insist on performance of any of the terms and conditions of this Agreement, or Seller’s waiver of any breach, shall not act as a waiver of any other term or condition or any subsequent breach.
6. ASSIGNMENT/ENTIRE AGREEMENT.
Purchaser may not assign this Agreement nor any of its rights or obligations herein without Seller’s prior written consent, which consent may be withheld for any reason. It is understood and agreed that this Agreement and the applicable invoice embodies the complete understanding of Purchaser and Seller relative to this sale. The parties may modify this Agreement only by a writing both have signed.
7. JURISDICTION AND LAW.
This Agreement shall be construed and interpreted according to the laws of the State of Delaware, USA excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Any claim or controversy arising out of or relating to this sale, may be referred to arbitration in the state of Delaware, USA before a single arbitrator appointed by the American Arbitration Association or may be litigated in the state or federal court located in the state of Delaware, USA. Seller and Purchaser hereby consent to be subject to the jurisdiction of such arbitration or courts and to waive any objection to the venue of such arbitration or courts and not to assert any defense of forum non conveniens. Seller and Purchaser agree that service of process upon the other in any action or arbitration may be made by mailing a copy (by registered or certified mail or commercial courier with receipt required), addressed to the respondent Party at the address shown on the invoice. Service shall be complete seven (7) days after such process has been sent to the respondent Party. Purchaser agrees to pay Seller’s costs and attorneys’ fees in any action or arbitration brought to enforce any of the provisions of this Agreement. Nothing herein shall affect the right of either Party to serve legal process in any other manner permitted by law or affect the right of either Party to bring any action or proceeding against the other Party or its property in any other court of competent jurisdiction.