Terms and conditions

ARTICLE 1 - GENERALITIES

1. In accordance with the article L.441-1 of the Commercial Code, the present general conditions of sale constitute the single base of the commercial relation between the company NICOLAS INDUSTRIE, simplified joint stock company with a capital of 3.000.000 €, located at 19 avenue du Tertre in 89290 CHAMPS-SUR-YONNE, registered at the Trade and Companies Register of AUXERRE under the number 398 984 062 (hereafter the " Seller ") and any professional purchaser (hereafter " the Purchaser ").

2. These terms and conditions apply exclusively to all present and future contractual relationships between the Seller and the Buyer. Any order of goods by Buyer implies acceptance without reservation of these general terms and conditions of sale, Buyer acknowledging having been notified of them and having read them and thereby waiving the right to rely on any contradictory documents (including its own general terms and conditions of purchase), which shall be unenforceable against Seller, unless it has expressly accepted their application in its order confirmation. 

3. In any event, all agreements between Buyer and Seller and all modifications of these terms and conditions must be in writing, including any special terms and conditions agreed upon by the parties.

4.Seller's failure to enforce any provision of these terms and conditions at any time shall not constitute a waiver of any subsequent enforcement of such provision.

5.The invalidity of one or more clauses of these terms and conditions shall not affect the validity of the remaining clauses, which shall remain in force.

6.The transfer to a third party of all or part of Buyer's rights and obligations under the order and/or sales contract shall require Seller's prior express written consent.

ARTICLE 2 - OFFERS - ORDERS - ORDER CONFIRMATIONS

1.The offers issued by the Seller are purely indicative. Unless otherwise stated, the offers are valid for one (1) month from their date of issue.

2.Buyer is bound by the order it places with Seller. Each order must be in writing and is firm and irrevocable. Any change in the order must be expressly accepted in writing by Seller and shall result in a price adjustment.

3.The sale shall not be completed until the Seller has issued an order confirmation or signed the sales contract.

4.The sale is of the goods as described in the Seller's order confirmation or sales contract. The Seller's catalogs, brochures and technical descriptions are only indicative. Seller reserves the right to make minor improvements or changes in the characteristics of the goods ordered prior to delivery.

5.Seller's sales representatives are not authorized to enter into contracts with Buyer. Any document binding on Seller must be signed by a duly authorized representative of Seller to be binding on Seller.

6.If Buyer cancels all or part of its order, Seller shall be entitled to compensation for the damage caused to it by the cancellation in the amount of 15% of the selling price of the goods, exclusive of tax, without prejudice to any other penalties provided for in the contract or by law.

ARTICLE 3 - PRICES - TERMS OF PAYMENT

1.All prices are net of taxes, net of discount, ex Seller's warehouse (Champs-sur-Yonne), and are denominated in Euros. The costs of transport, customs, insurance and other services, fees, taxes and levies on the order and which are not mentioned in the sales contract, or the order confirmation are invoiced to the Buyer in addition to the sales price.

2.Unless otherwise agreed between the parties, Buyer shall pay a deposit of 20% of the value of the order, including all taxes, on the date of the order. This deposit shall be refunded by the Seller if the order is not accepted. Any delay in the payment of the deposit will postpone the execution of the order. The remaining part of the selling price and related services is due at the time of invoicing, upon delivery of the goods.

3.In the event of payment by check or bill of exchange, all transaction costs shall be borne by the Buyer, who shall not be duly released from his obligation until the amount due has been definitively credited to the Seller's account.

4.The goods shall be paid for in cash on the contractually agreed due date. Any delay in payment or partial payment shall entail the application, as of right and without prior notice, from the first day of delay, of penalties at a rate equal to twice the legal interest rate (Article L.441-10 of the French Commercial Code), in addition to a flat-rate indemnity for collection costs of forty euros (40 €). The Seller shall be entitled to request additional compensation, upon presentation of proof, if the collection costs incurred are higher. 

5.In the event of payment of the purchase price in instalments other than in accordance with the terms, including payment by check or bill of exchange, all sums due by Buyer shall become immediately due and payable as soon as there are reasonable doubts as to Buyer's ability to fulfill its contractual obligations. This shall be the case in any event if the Buyer is eight (8) days late in paying a due date.

6.If the Buyer does not fulfil his obligation to pay the purchase price according to the agreed payment schedule, the Seller is entitled to rescind the contract, to recover the goods and to claim damages.

7.Unless the Seller has given its prior written consent or the conditions for legal set-off laid down in Articles 1347 et seq. of the Civil Code have been met, any set-off between the Seller's claims and those of the Buyer against the Seller is excluded.

ARTICLE 4 - DELIVERY

1.The goods are delivered ex works (EXW, INCOTERMS 2020). The transfer of risk takes place in accordance with the applicable Incoterm.

2.Unless otherwise stated in the order confirmation or in the special conditions, the delivery times are purely indicative. They shall commence when all technical details of the order have been accepted in writing by both parties and the advance payment agreed in the contract has been credited to the Seller's account under the conditions of Article 3.

3.Delays in delivery due to force majeure, as defined by French law, shall not engage the responsibility of the Seller. In addition to events recognized as such by law or jurisprudence, the following are considered as cases of force majeure economic disruptions, strikes affecting the Seller or its suppliers, exceptional weather conditions, snow, fire, flood, war, production stoppages due to fortuitous breakdowns or delays in delivery by the Seller's suppliers, as well as any disruption, delay or difficulty of supply attributable to the suppliers of the Seller of which it would not have been warned in due time, shortages or interruptions in the supply of energy (water, electricity, gas) affecting the execution of the order, epidemics, pandemics, health crises, being specified that any new wave must be considered as an event of force majeure. In this case, the Buyer shall not be entitled to claim compensation or unilaterally terminate the order and/or the contract. The execution of the order shall only be suspended for the duration of the event and the delivery periods shall be extended accordingly. If the impediment is definitive, the order will be cancelled by operation of law, without compensation on either side.

4.The Buyer is obliged to take possession of the goods within three (3) days of their availability at the Seller's warehouse. The Buyer shall check the goods for conformity and shall declare any reservations in writing. If no reservation is made within this period, the goods shall be deemed to have been accepted by Buyer, this absence of reservation covering any apparent defect, shortage or non-conformity with the contract. If the Buyer does not fulfil his obligations to take over the goods made available, despite a deadline for fulfilment communicated by the Seller by registered letter with acknowledgement of receipt, the Seller shall be entitled to rescind the contract and to claim damages.

ARTICLE 5 - RETENTION OF TITLE - RIGHT OF RETENTION

1.NOTWITHSTANDING THE TRANSFER OF RISKS, THE GOODS REMAIN THE PROPERTY OF THE SELLER UNTIL THE FULL PAYMENT OF THE SALE PRICE IN PRINCIPAL AND ACCESSORY.

2.UNTIL FULL PAYMENT OF THE PURCHASE PRICE, THE BUYER IS ONLY ENTITLED TO USE THE GOODS PURCHASED FOR HIS OWN COMPANY'S ACTIVITIES. HE IS FURTHERMORE OBLIGED TO MAINTAIN THE PURCHASED GOODS IN A GOOD STATE OF REPAIR AND TO HAVE ALL MAINTENANCE AND REPAIR WORK CARRIED OUT BY THE MANUFACTURER OR ON THE MANUFACTURER'S BEHALF, AS THE LATTER DEEMS NECESSARY, WITHOUT ANY OBLIGATION ON THE PART OF THE SELLER.

3.IN THE CASE OF THE SALE OF GROUP PRODUCTS WHICH THE BUYER INTENDS TO USE FOR HIS OWN PRODUCTION, THE RETENTION OF TITLE SHALL APPLY AS LONG AS THE GOODS PURCHASED CAN BE SEPARATED WITHOUT ANY DAMAGE TO THE GOODS OR THE ASSEMBLY MATERIAL.

4.IF THE GOODS PURCHASED ARE VEHICLES, THE BUYER SHALL BE OBLIGED TO TAKE OUT COMPREHENSIVE MOTOR VEHICLE INSURANCE WITH A SOLVENT INSURANCE COMPANY IMMEDIATELY UPON DELIVERY OF THE VEHICLE AND TO SUBMIT THE INSURANCE POLICY TO THE SELLER WITHOUT DELAY. THE SELLER IS ENTITLED TO TAKE OUT THIS INSURANCE AT THE EXPENSE OF THE BUYER IF THE LATTER FAILS TO DO SO. UNLESS OTHERWISE AGREED, SUCH INSURANCE SHALL SERVE TO COVER THE COSTS OF REPAIRING THE GOODS IN THE EVENT OF DAMAGE. IN THE EVENT OF SUBSTANTIAL DAMAGE, THE SELLER MAY WAIVE THE REPAIR OF THE VEHICLE; IN SUCH CASE, THE SELLER SHALL REPLACE THE BUYER IN THE BENEFIT OF THE COMPENSATION PAID BY THE INSURANCE. THE BUYER HEREBY ASSIGNS TO THE SELLER THE RIGHTS ARISING FROM THE INSURANCE POLICY.

5.BY EXPRESS AGREEMENT, THE SELLER SHALL BE ENTITLED TO ENFORCE ITS RIGHTS UNDER THIS CLAUSE AGAINST GOODS OF THE SAME KIND AND QUALITY HELD BY THE BUYER OR BY A THIRD PARTY ON THE BUYER'S BEHALF, THE LATTER BEING DEEMED BY AGREEMENT TO BE THE UNPAID GOODS.

6.THE GOODS MAY NOT BE SOLD OR HANDED OVER TO A THIRD PARTY OR PLEDGED WITHOUT THE PRIOR, EXPRESS AND WRITTEN CONSENT OF THE SELLER. IN THE EVENT OF A THIRD PARTY'S LIEN ON THE GOODS, THE BUYER IS OBLIGED TO INFORM THE SELLER IMMEDIATELY IN WRITING AND TO INFORM THE THIRD PARTY IMMEDIATELY OF THE EXISTENCE AND CONTENT OF THIS RETENTION OF TITLE CLAUSE. ALL COSTS RELATED TO THE RETURN OF THE PLEDGED GOODS SHALL BE BORNE BY THE BUYER.

IN CASE OF RESALE OF THE UNPAID GOODS TO A THIRD PARTY, THE SELLER RESERVES THE RIGHT TO CLAIM THE RESALE PRICE. THE BUYER UNDERTAKES TO INFORM THE SELLER IMMEDIATELY UPON REQUEST OF THE NAME AND ADDRESS OF THE THIRD-PARTY PURCHASER, AS WELL AS THE AMOUNT OF THE REMAINING PRICE DUE TO HIM, IN ORDER TO ENABLE THE SELLER TO EXERCISE HIS RIGHT TO CLAIM ON THE PRICE AGAINST THIS THIRD-PARTY PURCHASER

7.IF THE BUYER FAILS TO FULFIL HIS OBLIGATIONS UNDER THE RETENTION OF TITLE OR IF HE DOES NOT PAY THE AGREED PRICE ON THE AGREED DATES, THE SELLER IS ENTITLED TO DEMAND BY REGISTERED LETTER WITH ADVICE OF DELIVERY THE IMMEDIATE RETURN OF THE GOODS AT THE BUYER'S EXPENSE, WITHOUT PREJUDICE TO HIS RIGHT TO RESCIND THE CURRENT SALES. IF THE BUYER FAILS TO RETURN THE GOODS, THE LATTER MAY BE FORCED TO DO SO BY THE JUDGE OR BY A JUDICIAL COMMISSIONER AUTHORIZED TO SEIZE THE GOODS. THE EXPENSES OF THESE VARIOUS PROCEDURES WILL BE SUPPORTED BY THE CUSTOMER.

ARTICLE 6 - INTELLECTUAL PROPERTY

The sale of goods by the Seller does not entail any transfer of any intellectual property rights to the Buyer, whether on the goods, the spare parts or the documentation supplied. The Buyer is required to respect intellectual property rights, in particular patents, designs and trademarks.

ARTICLE 7 - WARRANTY - LIABILITY

1.The goods are guaranteed for one (1) year from the date of delivery according to the applicable Incoterm, on account of a manufacturing defect. This warranty is limited to vehicles with less than 30,000 km in the year covered by the warranty and to self-propelled machines with less than 2,000 hours of operation in the year covered by the warranty.

Warranty service does not extend the warranty period.

2.Buyer shall immediately report the defect by registered letter with return receipt, accompanied by all evidence enabling Seller to verify the reality of the grievance, under penalty of inadmissibility. Buyer shall allow Seller to make the necessary findings to assess, analyze and remedy the grievance.

3.In the event of a proven defect, Seller may, at its sole discretion, either replace the defective goods or replace the defective parts, to the exclusion of any other remedy and in particular of any right of Buyer to claim damages. Repairs shall be made, at the Seller's option, either at the Seller's headquarters, at the Buyer's headquarters or at a workshop approved by the Seller. Replacement is conditional upon the return of the defective goods and/or parts to the Seller. In the event of defects in tires or equipment not manufactured by Seller, Buyer shall assert its rights against the manufacturer of the defective parts before invoking Seller's warranty. Seller shall transfer its rights in this regard to Buyer.

4.Any claim under this warranty shall be excluded in the following cases:

- When the Buyer is not up to date with his payments,

- When the defect concerns goods reconditioned or purchased second-hand by the Buyer from the Seller,

- In case of normal wear and tear of the goods, lack of maintenance, force majeure,

or any causes attributable to the Buyer or a third party.

- When the defects are due to improper use, improper assembly, improper maintenance, abnormal, inappropriate, unforeseeable or contrary to specifications use of the material by the Buyer or a third party,

- When the goods have not been used by a careful and experienced operator, or have been excessively stressed, 

- When the goods have been serviced or repaired by a company not authorized by the Seller,

- If the purchased goods have been processed or modified in a manner not authorized by the Seller or if the defect is the result of a modification or processing, even if authorized,

- If the Buyer has not immediately informed the Seller in writing of the discovery of a possible defect in the purchased goods and has not allowed the Seller to carry out the repair.

5.If the goods are a group of components intended for installation in a vehicle, the warranty applies only to that group of components.

6.Buyer may not use a warranty claim to suspend or defer payments or seek a price reduction.

7.In any event, Seller's total cumulative liability for any one order shall not exceed the total amount of such order, exclusive of tax, which amount shall be the maximum amount of compensation for all damages and causes, except for gross negligence or fraud. Compensation for indirect and immaterial damages is expressly excluded. Liability for defective products is excluded in case of damage to property.

8.Pursuant to Article 2254 of the Civil Code, it is expressly agreed that any action against the Seller which finds its cause, origin or object in the order and/or the contract concluded between the parties shall be barred after one (1) year.

ARTICLE 8 - PERSONAL DATA

1.The Parties undertake to comply with the regulations in force concerning the protection of personal data, and the European General Data Protection Regulation, known as the "GDPR", of the European Parliament and Council of 27 April 2016, as well as the law n°78-17 of 6 January 1978, known as the "Data Protection Act", as amended.

2.In the context of the discussions (presentation, negotiation, offer) with the Buyer about the goods and the order, NICOLAS collects personal data of the Buyer's representatives and business contacts, namely: first name, last name, telephone and business e-mail address.

This data is subject to computer processing by NICOLAS. They are recorded in its customer file and are necessary for the execution of its contractual obligations as well as for the respect of its legal and regulatory obligations.

NICOLAS undertakes to respect the confidentiality of this personal data, to process and store it in compliance with the regulations in force, and in any event, for the duration of the commercial relationship with the Buyer, increased by five (5) years as from its termination for any reason whatsoever, for the purposes of the limitation periods applicable in commercial matters.

The personal data collected are intended for NICOLAS, the Data Controller, and its employees authorized to process them by virtue of their functions and for the purposes mentioned above. It is not communicated to third parties, except for companies in its Group, and for the sole purpose of executing the order and/or the contract.

It is not transferred outside the European Economic Area (EEA). If the data is transferred outside the EEA, the Buyer will be informed, and the guarantees taken to secure the data will be specified.

The persons concerned by the processing implemented have all the rights provided for by the Data Protection Act and by Article 15 of the RGPD, namely the right of access, the right of rectification, the right to erasure, the right of opposition, the right of limitation, the right to portability, the right to define advance directives on the fate of the data post-mortem.

To exercise the above-mentioned right(s), it is advisable to contact NICOLAS by sending an e-mail to the address info.nicolas@tii-group.com accompanied by a valid proof of identity of the person concerned.

The person concerned has the possibility of addressing a complaint to the Commission Nationale de l'Informatique et des Libertés (CNIL), located at 3 Place de Fontenoy - TSA 80715 - 75334 PARIS CEDEX 07 - Tel: 01.53.73.22.22.

ARTICLE 9 - APPLICABLE LAW - JURISDICTION

1.These general terms and conditions of sale and the sales made between the Seller and the Buyer are subject exclusively to French law, to the exclusion of any other and of any rules of conflict of laws. The application of the Vienna Convention on the International Sale of Goods is excluded.

2.The application of the provisions of Articles 1222 and 1223 of the French Civil Code is expressly excluded.

3.If these general terms and conditions are translated into one or more languages, only the French text shall be deemed authentic in the event of a dispute.

4.The parties agree that e-mails are admissible in court as evidence of the data and elements contained therein.

5.ALL DISPUTES TO WHICH THE PRESENT GENERAL CONDITIONS AND THE SALES RESULTING FROM THEM COULD GIVE RISE, CONCERNING THEIR FORMATION, THEIR VALIDITY, THEIR ENFORCEMENT, THEIR INTERPRETATION OR THEIR APPLICATION, SHALL BE SETTLED BY THE PARTIES.EXECUTION, THEIR CESSATION, THEIR CONSEQUENCES AND THEIR CONTINUATIONS WILL BE SUBJECTED TO THE EXCLUSIVE COMPETENCE OF THE COMMERCIAL COURT OF AUXERRES, ONLY QUALIFIED TO KNOW IT EVEN IN THE EVENT OF REFEREE, PROCEDURE OF COMPLAINT, INCIDENTAL DEMAND, CALL IN GUARANTEE OR PLURALITY OF DEFENDANTS.

Download the NICOLAS general terms and conditions in English

I. General

1. These General Terms and Conditions apply exclusively to all, including future, offers, supply contracts and other performances.
2. Any conflicting stipulations and clauses of the Buyer are hereby explicitly rejected. Conflicting stipulations and clauses only become part of the agreement if recognized by us in writing.
3. Any agreements shall be made in writing. This applies to ancillary agreements and warranties as well as to subsequent changes to the agreement
4. No assignment of rights and duties of the Buyer to third parties shall be made unless with our written approval.
5. Should any stipulations of these Terms and Conditions be / become invalid, this shall not affect the validity of the remaining stipulations.
6. These Terms and Conditions only apply to companies as defined by § 14 BGB (German Civil Code) and public law entities as well as public special funds.

II. Offers, prices

1. Our offers are without engagement and only become binding from the time of our written confirmation of order. Reasonable technical changes and changes in shape, colour and/or weight are reserved.
2. Unless otherwise agreed, the price of the object sold is quoted ex supply plant plus the valueadded tax at the rate applicable on the date of invoicing. Cash discounts may only be deducted following written agreement. Additional services (e.g. acceptance, transfers etc.) provided at the request of the buyer which are not part of our obligations under the written agreement or our confirmation of order, shall be invoiced separately by us.
3. The Buyer shall bear responsibility for all risks arising during transport – subject to other individual contractual agreements. Where transport is carried out by our staff, the risk shall pass to the Buyer from the time when the goods leave our company premises.
4. Where a delivery period of more than 4 months after execution of the agreement has been agreed for the goods ordered from us, we shall be entitled to a reasonable increase in our prices in case of any price increases by our suppliers and increases of other costs.

III. Payment, default in payment

1. The purchase price and the price for any additional services shall be paid in cash at the time of transfer of the object sold – but no later than 8 days after receipt of the notification indicating readiness for collection – and delivery or transmission of the invoice. The Buyer shall be deemed in default if the invoice remains unpaid 30 days after receipt. The right to give written notice of default to the Buyer remains unaffected.
2. Even if a payment date or partial payments have been agreed, our complete claim shall become due for immediate payment irrespective of the due date of any bills of exchange handed over in case reasonable debts in the Buyer's ability to pay arise; this applies, in particular, if the Buyer is in default by more than 14 days, if he has ceased payments, or if a petition for insolvency proceedings has been filed with regard to the Buyer's assets.
3. Payment orders, cheques and bills of exchange shall only be accepted following special agreement and on account of payment whereby all collection and discount charges shall be charged to the Buyer.
4. The Buyer shall only be entitled to offset claims against our claims if the Buyer's counterclaim is undisputed or a legally enforceable decision exists. A right of retention can only be claimed in as far as it is based on claims under the same purchasing agreement.
5. If partial payments have been agreed and the Buyer defaults on the payment of two consecutive instalments despite an additional period of time of reasonable length for payment having been granted, we shall be entitled to withdraw from the agreement or claim compensation for failure to perform, notwithstanding our rights under Section 6, Para. 6.
6. Interest on arrears shall be charged at 8% p.a. above the base rate valid at the time. This interest shall be higher or lower if we are able to prove that we are charged a higher rate of interest or if the Buyer is able to prove a lower rate of interest.
7. We shall be entitled to offset any claims of the Buyer with counterclaims of whatever type. These counterclaims include, in particular, claims which we have established against the Buyer and which have been assigned to us by other companies.

IV. Delivery, default of delivery, default in acceptance

1. Unless otherwise agreed in writing, the delivery dates or periods indicated by us are not binding. Any delivery dates or deadlines, even when agreed as binding, shall be subject to complete and correct supplies reaching us from our suppliers, unless the failure or delay in delivery is caused by a reason for which we can be held responsible. The right to perform part deliveries is reserved.
2. The delivery period shall not commence until all technical and commercial details of the order handling have been finally clarified. The delivery period shall not commence until the Buyer has provided all required documents, approvals, releases and until the agreed payment, if any, has been received. The delivery period is deemed to have been fulfilled if before its expiry the goods have left our plant or the readiness for collection has been notified.
3. If we are in default of delivery for reasons for which we can be held responsible, our liability for any damage due to such default proven by the Buyer shall be limited to 0.5 % per calendar week of the value of that part of the delivery which could not be put into expedient operation due to the default in completing objects belonging to the delivery, but in total no more than 5% of the value of that part of the complete delivery which could not be used as intended.
4. The right of the Buyer to withdraw from the agreement due to a default of delivery or to claim compensation because of failure to perform shall be subject to the Buyer having granted us a reasonable period of grace after we had entered into a state of default. A reasonable period of grace is considered a period of up to 60 days. Under any circumstances our compensation shall be limited to damages which could typically be expected in this concrete transaction. Any claim to damages by the Buyer is limited to 15% of the value of the delivery unless the default of delivery is due to gross negligence on the part of our agents or our senior officers.
5. Compliance with our delivery promises shall be subject to the timely and correct fulfilment of the obligations concerning the Buyer by the Buyer. We shall be entitled to cease work on the delivery items or refuse delivery despite completed acceptance in case of reasonable doubt regarding the Buyer’s ability to pay. In this case, we shall be entitled to make the delivery of the object sold dependent on the provision of a suitable surety for our claims.
6. In case of any cases of Force Majeure or interruptions in our or our suppliers’ plants due to, for example, insurrections, strikes or lockouts, preventing us temporarily from delivering the object sold at the agreed time or within the agreed period for reasons for which we cannot be held responsible, the agreed dates and periods shall be extended by the duration of the interruption to our performance caused by such events. The Buyer shall be notified of such events.
7. Should the reasons given under Section 6 result in the inability to deliver, we shall be released from our obligation to deliver, and the Buyer shall have no right to claim compensation or rescission of contract.
8. If the delivery is delayed due to culpable behaviour on the part of the Buyer or for reasons for which the Buyer can be held responsible, the Buyer shall reimburse any costs (as well as storage costs etc.) arising as a result of such delay.
9. Changes in design and shape, deviations in shade and modifications of the scope of delivery shall be reserved during the delivery period, provided that the object sold is not changed significantly and that Buyer can be reasonably expected to accept these changes. These performance conditions shall not apply if the characteristics of the object sold have been expressly warranted by us in writing.
10. Any indications in descriptions valid at the time the agreement is concluded regarding the scope of delivery, appearance, performance, dimensions and weights, consumption of service fluids, operational costs etc. of the object sold shall be non binding and deemed approximate indications. These shall not be deemed warranted characteristics but shall serve as a measure to determine whether the object sold is free of defects, unless an express warranty has been given in accordance with Section 1, Para 3. No rights shall be derived from the mere fact that codes and numbers to designate the order of the object sold may have been used.

V. Acceptance

1. The Buyer shall be entitled to inspect the object sold at the agreed place of acceptance within 8 days from receipt of the notification of readiness for collection of the object sold, and he shall be obliged to accept the object sold within that period. If the buyer fails to accept the object of purchase within the set period, we shall be entitled to charge a demurrage of EUR 1.00 per metric ton of the object, per calendar day or part thereof, plus value-added tax.
2. If the Buyer does not fulfil his acceptance obligation under Para. 1 for reasons for which he can be held responsible, the object sold shall be deemed accepted as conforming to the agreement on expiry of the 8th day following receipt of the notification of readiness for collection; this stipulation will be indicated expressly in our notification of readiness for collection.
3. If the Buyer does not fulfil his obligation to cooperate, in particular with regard to his obligation to accept and collect the object sold despite a reasonable period of grace granted by us or should the Buyer refuse acceptance or collection seriously and finally, or if the Buyer is evidently unable to pay the purchase price, we shall be entitled to withdraw from the agreement or claim damages due to failure to perform. If we decide to claim compensation, such compensation shall amount to 15% of the purchase price. The amount of damages shall be set high or lower, if we are able to prove higher or the Buyer is able to prove lower damages.
4. If we decide to claim compensation, such damages shall amount to 15% of the purchase price, subject to evidence of concrete higher damages, in particular taking into account the cost of return, unless the Buyer is able to prove lower damages. There is no requirement to grant a period of grace within the context of claims for damages, if grounds for suspecting the Buyer’s ability to pay should arise following the conclusion of the agreement such as default of payment and cessation of payments, filing of a petition in insolvency, assignment of current assets as security, unfavourable credit reports from banks or other lenders or credit insurers.

VI. Reservation of title

1. The object sold shall remain our property until full payment of all our claims, irrespective of their legal grounds. In addition, the object sold shall remain our property (goods subject to reservation of title) until clearance of all cheques or bills of exchange accepted on account of payment, even if the purchase price is paid for specific designated claims. This reservation of title shall also continue for all claims against the Buyer acquired subsequently, e.g. as a result of repairs, spare parts supplies or out of the ongoing business relationship.
2. The Buyer shall keep the object sold in proper order during the duration of the reservation of title and have all maintenance work specified by the manufacturer and any necessary repair work performed immediately – with the exception of emergencies – by us or by a workshop recognized by the manufacturer for the support of the object sold.
3. During the duration of the reservation of title the Buyer shall conclude a fully comprehensive cover insurance with a reasonable excess stipulating that we shall be the beneficiaries of the rights under the insurance agreement. Should the Buyer fail to fulfil this obligation, we shall be entitled to conclude this fully comprehensive insurance at the Buyer's expense, to disburse the premium payments and to collect them as part of the claim under the purchase agreement. The Buyer hereby assigns any claims under an insurance concluded by the Buyer. Unless otherwise agreed, any payments under the fully comprehensive insurance shall be used in full for the reinstatement of the object sold. If, in case of severe damage, a reinstatement is waived with our agreement, the insurance payment shall be used to pay the purchase price and the prices for additional services as well as any costs disbursed by us. The Buyer hereby assigns any claims under an insurance concluded by the Buyer.
4. During the duration of the reservation of title, we shall have the right of possession of the vehicle document of ownership. The Buyer shall file a written application with the vehicle licensing authority to ensure that the ownership document is handed over to us.
5. During the duration of the reservation of title, the Buyer shall be entitled to have and to hold and to use the goods subject to reservation of title provided that he fulfils his obligation under the reservation of title in accordance with the stipulations contained in this Section and is not in default of payment (in accordance with Section III Para. 5).
6. If the Buyer is in default of payment or if he fails to fulfil his obligations under the reservation of title, we shall be entitled to demand the handover of the object sold from the Buyer, and the Buyer – to the exclusion of any rights of retention unless these are based on the purchasing agreement – shall surrender possession of the object sold to us without delay. Having demanded handover of the goods subject to reservation of title from the Buyer, we shall be entitled to exploit the goods in the best possible way by selling them by private contract following notification to the Buyer with a reasonable period of grace, offsetting them against the purchase price. All costs incurred as a result of the return and utilization of the goods subject to reservation of title shall be borne by the Buyer. Without the need for further evidence, the utilization costs shall be deemed to amount to 10% of the utilization proceeds including value-added tax. These costs shall be set higher or lower if we are able to prove higher costs or if the Buyer is able to prove lower costs. The proceeds shall be credited to the Buyer after deduction of all costs and any claims by us in connection with the purchasing agreement. For as long as the reservation of title exists, no sale, pledge, assignment by way of security, renting out or other transfer, which would affect our surety, or modification of the goods subject to reservation of title shall be permitted without our approval.
7. The Buyer shall notify us in writing without delay of any attachment by third parties, in particular of any seizure of the object sold or execution of a company attachment right by a workshop, and the Buyer shall inform these third parties immediately of our reservation of title. The Buyer shall bear all costs incurred in the process of having the attachment lifted or in the replacement of the object sold where these cannot be redeemed from the third party.
8. Any processing or conversion of the object sold by the Buyer shall also be deemed to have been effected on our behalf, however, without any liabilities arising for us from such processing of conversion. If the object solid is processed or combined with other objects not belonging to us, we shall acquire joint ownership in the new object in proportion of the value of the object sold to the other processed objects at the time of processing. The same stipulations shall apply for the object created by processing or combination as for the object sold under reservation of title.
9. We shall release the sureties due to us at the request of the Buyer where the value of the sureties exceeds the value of the claims to be secured by more than 20%.
10. The Buyer hereby assigns as surety the claims arising in the case that the Buyer sells the goods subject to reservation to title or the joint property in the goods created in accordance with Para. 9, against his buyer with all ancillary rights to the amount of the total invoiced sum (including valueadded tax). We shall inform the Buyer without delay of any enforcement measures by third parties against any assigned claims, and we shall provide him with any information and documentation required for the defence of such action.

VII. Warranty

1. In the case of any well-founded warranty claims by the Buyer, we shall, at our own discretion, either remedy the defect by reworking the goods or replace the defective goods with defect-free goods (subsequent performance). In the case of subsequent delivery of defect-free goods the Buyer shall return the defective goods to us.
2. We shall be entitled to refuse subsequent performance where this would only be possible by incurring unreasonably high costs. In judging the reasonableness, the value of the goods in defect-free condition, the significance of the defect, and the question whether the other type of subsequent performance can be used without significant disadvantages for the Buyer shall be taken into account, in particular.
3. Reworking shall be carried out in accordance with technical requirements by replacing or repairing defective parts at our own discretion at our place of business or at the place of business of the Buyer. The costs of materials and of the repair of the actual defect shall be borne by us. If parts are replaced during the reworking process, we shall be entitled to receive possession of such replaced parts.
4. The Buyer shall not be entitled to remedy defects in the object sold or have them remedied unless with our agreement.
5. During the course of reworking we shall be entitled to rework all damages caused by the defect.
6. In so far as defects of third party bodies or tyres are included in the warranty claims, the Buyer shall address the relevant manufacturer/importer before taking recourse on us. We shall authorize the Buyer in this respect to assert any warranty claims in his own name. The Buyer shall only pursue warranty claims against us if the relevant manufacturer/importer has not reworked the defective goods within a reasonable period despite the best efforts of the Buyer.
7. The Buyer’s right to rescind the agreement is excluded provided that the defect only represents an insignificant reduction in the value or merchantability of the object sold.
8. Within the framework of warranty, we shall only be liable with regard to our own publicly stated quality characteristics/indications. Any liability with regard to public statements of third parties concerning the quality of the object sold, in particular in advertising or during the characterization of certain properties of the object shall be excluded.
9. No warranty obligations exist if
    
   • the object sold has been treated improperly or excessively stressed, or
   • the object sold has previously been repaired, maintained or tended in a company not recognized by us for support, or
   • parts have been integrated into object sold whose use was not approved by us, or
   • the object sold has been modified in a way not approved by us, or
   • the Buyer has not observed the instructions regarding the treatment, maintenance and care of the object sold (e.g. operating instructions), unless it can be excluded that one of these circumstances was responsible for the occurrence of the defect.
10. Natural wear and tear is excluded under the warranty.
11. The Buyer shall check and examine the object sold carefully immediately on receipt and perform random sample testing, if applicable. Apparent defects shall be notified to us in writing without delay but no later than 8 days after receipt of the object sold. If no such immediate notification is made, any warranty claims shall be excluded. The object sold shall be stored properly and returned to us at our express request.
12. We perform any consultancy services to our best knowledge based on our expertise, but excluding any liability. Any statements and information regarding the suitability and application or use of the object sold are non-binding, unless expressly warranted in writing. Such information shall not release the customer from his duty to carry out his own tests.
13. The limitation period of § 438 Para. 1 Point 3 BGB (German Civil Code) for warranty claims shall be reduced to twelve months. This shall not apply to claims as contemplated by § 479 Para. 2 BGB (recourse in consumer goods sale).

VIII. General limitation of liability

1. Liability for property damage is excluded provided that the damage is caused by a slight negligence with regard to an accessory obligation – which does not result in any risk to the object of the agreement. This shall apply, in particular, if the damage caused is covered by the Buyer's insurance.
2. Irrespective of the reason of recourse to our company, our liability for damages shall be restricted to property damage and personal injury.
3. Our liability shall include – except in cases of intent – only such damages which can typically be expected in this concrete type of transaction.
4. Where our liability is excluded or restricted, this exclusion or restriction shall also apply to the personal liability of our officers, employees, representatives and agents.
5. Claims of compensation of the Buyer due to a defect shall expire one year from delivery of the goods. This stipulation shall not apply if we are culpable of gross negligence or in cases of personal injury or damage to health or in case of loss of life of the Buyer for reasons for which we can be held responsible.
6. The above liability restrictions do not apply to claims under the Product Liability Act (§ 1, Product Liability Act).

IX. Terms and conditions of sale for used vehicles or parts

1. Any warranty whatsoever shall be excluded with regard to the sale of used vehicles or parts by us. Such sales are performed "as seen" by the Buyer. No warranty statements or representations are made. The Buyer shall be responsible for checking the vehicle for its operational safety.
2. The used vehicle shall remain our property until complete payment of the purchase price. Otherwise the above terms and conditions shall apply mutas mutandis in as far as they can be used.
3. If used vehicles are traded in as part-exchange, the value to be determined on the day of takeover shall be authoritative if a reduction in value of or damage to the used vehicle has occurred between the conclusion of the agreement and takeover. If no agreement about the reduction in value can be achieved, this reduction shall be determined by an expert of our choice. If stipulated in the agreement that a used vehicle to be accepted by us in part-exchange must be handed over following testing by the TÜV testing organization, testing by any other official or officially approved testing organization is excluded. This test shall not be older than 14 days at the relevant time. Should the TÜV organisation detect defects, such defects shall be remedied by the Buyer at his own expense. The inspection report shall be presented before handover of the vehicle. If the Buyer fails to have such defects remedied, we shall be entitled to refuse the partexchange of the used vehicles and demand the agreed part-exchange amount for immediate payment.

X. Place of fulfilment and legal venue

1. The place of business of our company is the exclusive place of fulfilment for all our obligations towards the Buyer under the contractual relationship including our warranty obligation.
2. The place of business of our company is the exclusive legal venue for all disputes arising from present and future claims from the business relationship with the Buyer, including any claims from bills of exchange and cheques.
3. The law of the Federal Republic of Germany shall apply. The stipulations of the UN Sales Convention shall not apply.