GENERAL TERMS AND CONDITIONS
OF THE COMPANY NICOLAS INDUSTRIE
- These general terms and conditions apply exclusively to all present and future contractual relations between the seller and the buyer.
- Contrary regulations in the general terms and conditions of the buyer are expressly objected, except if the seller gave his prior written consent to these regulations.
- All agreements between the buyer and the seller and all changes of the general terms and conditions need to be made in written form.
- The transfer of the buyer’s rights and duties from the sales contract to a Third Party require the prior written consent of the seller.
OFFERS – ORDERS – ORDER CONFIRMATIONS
- The offers made by the seller must be seen as purely indicative.
- The buyer is bound to the order he made to the seller.
- The sale only becomes binding with the order confirmation by the seller or with signing the sales contract.
- The subject of the sale is the object of purchase as it is described in the order confirmation by the seller. Catalogues, brochures and technical descriptions by the seller must be seen as purely indicative. The seller reserves the right to make improvements or minor modifications to the properties of the ordered object of purchase during the delivery lead time.
- Trade representatives and sales representatives of the seller are not permitted to conclude a contract.
- In case the buyer does not meet his purchase obligation, the seller has the right to demand a compensation for damage of 15% of the sales price before taxes of the object of purchase or, in case the damage is estimated as higher, the seller has the right to demand a compensation for damage as high as the resulting damage.
PRICES – PAYMENT TERMS
- All prices exclude taxes and discounts. Transport costs and other services which are not listed in the sales contract or in the order confirmation are charged in addition to the sales price.
- Upon order by the buyer, the buyer is obliged to make a down payment of 20% of the order value including taxes. This down payment will be reimbursed by the seller in case he does not accept the order. The remaining portion of the sales price and the auxiliary services is due upon issuance of the invoice issued upon the delivery of the object of purchase.
- In case of payment by cheque or bill of exchange, all transaction costs will be charged to the buyer; the buyer will only be exempted when the amount owed has been definitely credited to the seller’s account.
- The object of purchase must be paid in cash at the due date of the payment. Default interest is calculated with twice the currently valid base rate.
- In case of payment of the sales price by rates other than described above, including payment by cheque or bill of exchange, the seller’s claim becomes immediately due if reasonable doubts concerning the capability of the buyer to fulfil his contractual obligations arise. This is always the case if the buyer falls 8 days behind schedule in the payment of a rate.
- In case the buyer does not fulfil his obligation to pay the sales price in rates, the seller has the right to withdraw from the sales contract, to repossess the object of purchase and to demand compensation for damage. In case of a payment default, the seller has the right to charge a compensation of 40 € per sent reminder (for business customers). This compensation will be added to existing default interests.
- The buyer can only charge up the claim of the seller against a claim of the buyer towards the seller if the claim of the buyer is due and has been confirmed by the seller in written form, or if it is legally enforceable.
- Binding delivery deadlines must be expressly marked as such. The delivery periods do not in any case begin before all technical details of the order have been agreed to in written form by both contract partners and before a down payment agreed to by contract has been credited to the seller’s account.
- Delays which result from reasons which the seller is not responsible for, e. g. economic disturbances, strikes or delivery delays of suppliers of the seller are out of the reach of the seller and do not in any case entitle to a claim for indemnification or to a one-sided withdrawal from the contract. The delivery deadline will be extended accordingly.
- The buyer is obliged to take possession the object of purchase within 8 days of its provision. Upon this occasion, he is obliged to check the conformity of the object of purchase and to notify about eventual reservations in written form. In case the buyer does not attend to this obligation, the object of purchase will be seen as agreed to and checked by the buyer according to the contract.
In case the buyer does not attend to his obligation to take possession of the object of purchase despite of the communication of a deadline by the seller by a registered letter or by fax, the seller has the right to withdraw from the contract and to demand compensation for damage.
RESERVATION OF OWNERSHIP – LIEN
- Until complete payment of the sales price by the buyer, the object of purchase remains in the ownership of the seller.
- The buyer is only permitted to use the object of purchase in the context of the operation of his own company. He is responsible for the object of sale from the first day of delivery. Before full payment of the sales price, the buyer is obliged to keep the object of purchase in proper maintenance condition, to let the manufacturer carry out all maintenance and reparation work he estimates as necessary or let him get them carried out, without constituting any obligation for the seller.
- In case of the sale of a group of products which the buyer plans on using for the needs of his own production, the reservation of ownership is valid as long as the object of purchase is in a condition in which it can be disassembled without any deterioration of its condition or of the condition of its mounting equipment.
- In case the object of purchase is a vehicle, the buyer is obliged to take out a fully comprehensive insurance for vehicles and to immediately give evidence of the insurance contract. In case of breach of this duty, the seller has the right to take out this insurance at the expense of the buyer. If not agreed otherwise, this insurance must be used to cover the reparation costs of the object of purchase in case of damage. In case of severe damages, the seller can renounce from a repair; in this case, the insurance indemnity is used as a down payment for repayment of the sales price and for the costs incurred by the seller. The buyer now already assigns claims from the taken out insurance to the seller.
- In case the buyer breaches his duty resulting from the reservation of ownership or in case he does not pay the price in form of the agreed rate payments, the seller has the right to demand, by registered letter or fax, the immediate restitution of the object of purchase at the expense of the buyer.
- The seller has the right of lien for mobile goods as a security, for interests and costs.
- The object of purchase can only be sold, handed to a Third Party or mortgaged with prior written consent of the seller. In case of access by a Third Party, the buyer is obliged to immediately inform the seller in written form and to immediately inform the Third Party about the seller’s reservation of ownership. The buyer bears all costs of the restitution of the mortgaged object of purchase.
- The objects of purchase have a warranty of one year against manufacturing faults, limited to 30,000 km for vehicles and 2,000 operating hours for self-propelled machines.
- The warranty is realized, at the choice and expense of the seller, by a substitute delivery or by changing the faulty parts, excluding all rights, especially excluding claims for damage. The change or repair can only be realized after the seller’s prior written consent for the necessary measures.
- The repair measures will be carried out, at the choice of the seller, at his own headquarters, at the buyer’s headquarters or in a workshop approved by the seller.
- Ownership of the replaced parts is transferred to the seller. In the case of defects of tires or of equipment not manufactured by the seller, the buyer is obliged to make his claims towards the manufacturer of the faulty parts prior to claiming the seller’s warranty. The seller transfers him his rights in that matter.
- The seller does not have a warranty obligation in case
- the object of purchase has not been operated by a careful and experienced user or if the object of purchase has been overstressed or
- the buyer did not follow the requirements concerning handling and maintenance of the object of purchase or
- the buyer did not immediately inform the seller in written form about the discovery of a possible defect in the object of purchase and did not enable the seller to carry out the repair or
- the faulty object of purchase has been maintained or repaired by a company not agreed for servicing by the seller or
- the object of purchase has been changed or modified in a way the seller did not agree to or in case the discovered defect is the consequence of a modification or a change, even if it has been agreed to.
- In case the object of sale is an assembly group intended for the installation in a vehicle, the warranty is valid only for that assembly group.
- Normal wear of the object of purchase is excluded from the seller’s warranty.
- Except in case of opposing binding legal requirements, the seller is only obliged to cover a warranty and compensation for damage until the maximum described before.
APPLICABLE LAW – PLACE OF FULFILLMENT – PLACE OF JURISDICTION
- French law applies.
- The exclusive place of fulfilment for the obligations of the buyer and the seller is the seller’s headquarters.
- For any disputes concerning bills of exchange, cheques and warranty claims, the exclusive place of jurisdiction is Auxerre (France).