In the event of a contradiction or divergence between this translation and our company’s General Conditions of Sale, which are written in French, the French text will prevail.
These conditions (the “Conditions”) govern the sale of new vehicles (the “Equipment”) by LOHR INDUSTRIE (the “Company”) to its customer (the “Customer”), who is deemed to be a professional acting in the context of its professional activity. The Conditions prevail over any other of the Customer’s documents, in particular over any general conditions of purchase unless prior and explicit agreement is given by the Company. All orders, order confirmations or acceptances of estimates by the Customer (the “Order”) imply and entail the express, unreserved acceptance of all the clauses and terms set out in the Conditions, from which they may not be exempted without the Company’s prior written agreement. If no such agreement is given, the Company will be bound only by what is expressly stipulated in the Conditions.
2. GENERAL PROVISIONS
The conditions, commitments or contracts granted by or placed with the Company’s representatives or agents do not bind or commit the Company until the latter has given its written acceptance or confirmation.
All Orders are firm and are considered as work orders; they entail the Customer’s authorisation to carry out any modifications and/or conversions to motorised vehicles entrusted directly or indirectly by the Customer to the Company for the completion of the Order. The Customer guarantees the Company against all complaints from owners of motorised vehicles, or their beneficiaries, linked to the presence or persistence of these modifications and/or conversions. More generally, these provisions apply to all property entrusted to the Company directly or indirectly by the Customer.
The Company will not accept the deposit of any entrusted property outside the DUPPIGHEIM site or outside opening hours. They will be made available at the Customer’s sole expense and under their sole responsibility. In no circumstances may any procedures or agreements concerning the entrusted motorised vehicles that may have been made between the Customer, the dealer and /or the carrier be enforced against the Company, unless such procedures or agreements have been communicated to the Company in writing and have been formally accepted by the Company at least seven days before the vehicles arrive. If the Customer fails to communicate these procedures or agreements, they will take personal responsibility for any complaints linked to these procedures or agreements and will compensate the Company in full for any costs or expenses that it may be required to pay in any respect whatsoever.
The Company reserves the right, which the Customer expressly accepts, to modify or improve the design or manufacture of the Equipment as long as the quality and output of the Equipment is not affected.
If it does not give a written agreement following the Order, the Company will not take sole responsibility for ensuring that the Equipment complies with the destination country’s rules, standards and specifications (outside the European Union and Switzerland). In no circumstances will the Company bear the cost of replacements and adaptation works imposed by changes in laws and regulations that have occurred after the acceptance of the Equipment, or where the Company has not been informed, prior to the Order, of the date on which such changes come into force.
The Customer will have sole responsibility and liability for all formalities with the competent authorities relating to movement authorisations, registration, temporary or permanent vehicle registrations, customs operations and, more generally, all the administrative formalities required to use the Equipment, along with all the financial consequences that arise therefrom.
The Company may not in any circumstances be held liable for any administrative difficulties encountered by the Customer, and such difficulties may not be used as a reason for non-payment or deferred payment of the price.
3. PRICE AND PAYMENT
The price of the Equipment is firm and may not be revised. In all circumstances, the Company will retain all sums paid in respect of a deposit, even if the Order is cancelled, and in this case without prejudice to any damages that the Company may wish to claim.
In case of late payment:
Late payment penalties will be applied on the expiry of a period of sixty days from the issue of the invoice. The penalty rate is set at three times the legal interest rate.
The Customer shall be required to pay a flat-rate sum of forty euros for each invoice to cover recovery costs in accordance with the applicable mandatory statutory provisions. However, if the recovery costs actually incurred by the Company are greater than forty euros, the latter reserves the right to claim additional compensation from the Customer.
4. RESOLUTORY CLAUSE
If the Customer fails to perform any one of its obligations, and one month after having sent notice by registered letter with proof of receipt informing the Customer of its intention to apply this resolutory clause, this notice remains without effect, the Company reserves the right to terminate the sale and claim damages.
5. DELIVERY – ACCEPTANCE – TRANSFER OF RISK
The delivery date mentioned on the Order is provisional. If the Customer is late in performing any of its obligations, and especially those linked to payment, the provision of the motorised vehicle(s) and/or the supply of technical information required to carry out the Order, the provisional date for delivering the Equipment will be postponed for at least an equal period.
The Equipment is delivered EX WORKS from the DUPPIGHEIM factory (Incoterm CCI2020). The Company will notify the Customer of the date on which the Equipment will be placed at its disposal for checks with a view to its acceptance and will then have the option of invoicing the Equipment. Unless agreed with the Customer, the date on which the Equipment will be placed at its disposal may not be prior to the provisional delivery date. In no circumstances will a disposal date of less than ninety days entail a right to cancel the Order.
The Customer must attend the checking operations within a maximum of one week after the date on which the Equipment is placed at its disposal. If it fails to do so, the Equipment is deemed to have been accepted. The Customer will inform the Company of the date chosen for these checks, giving at least two working days’ notice. The acceptance date is deemed to be the delivery date as far as the EX WORKS Incoterm is concerned. Acceptance extinguishes all claims on the Customer’s part for defects other than hidden defects and for all non-compliances in relation to the Order.
The Customer agrees to remove the Equipment, or have it removed as soon as it has been accepted, and in all circumstances within a maximum of thirty days following acceptance. Beyond this period, the Company reserves the option of claiming parking fees from the Customer, these being fixed at a lump sum of two hundred euros per month per item of Equipment and per vehicle entrusted; any month that has begun is due in full. In no circumstances do these parking fees cover any costs linked to maintenance or keeping the Equipment or vehicle in working order over a long storage period, such as recharging the batteries: these will be invoiced separately. Notwithstanding the foregoing, the Company reserves the right at any time to put into effect the termination provided for in Article 4.
6. CONTRACTUAL WARRANTY – LIABILITIES
The Company guarantees the Equipment against any defects caused by a design and/or manufacturing fault for a period of twelve months from the day on which the Equipment is accepted. The warranty period may not be extended, suspended or postponed.
The application of the warranty will not have the effect of extending the warranty period on the Equipment. Replacement parts and products from the After Sales Department are covered by a twelve-month warranty period. The warranty is limited, at the Company’s choice, to the pure and simple replacement of the parts or of the repair, in the Company’s workshops, of the parts acknowledged to be defective during the warranty period. In no circumstances may the warranty be extended to the consequences of a possible fault.
The Company will not agree to pay any costs incurred outside its own workshops without its prior written agreement. If parts are replaced under warranty, they become the Company’s property once again.
The Customer needs to send in a written request, giving full reasons, in order for the warranty to come into play. Unless stated in writing to the contrary, the Customer will pay all carriage charges relating to the parts in question.
The implementation of the warranty is irrevocably dependent on the Customer fulfilling all of its obligations, including using original replacement parts, and submitting the warranty request to the Company within a maximum of two weeks from the occurrence of the defect.
The warranty is suspended in the following cases in particular: negligence or wilful damage on the part of the Customer or a third party; any use, operation and/or maintenance of the Equipment that does not comply with the Company’s notices and/or instructions or with the normal rules for use; the user of the Equipment does not have the professional expertise normally required for using, operating and/or maintaining the Equipment; a violation of the laws and/or regulations concerning the use, operation and/or maintenance of the Equipment; the transformation or modification of the Equipment by the Customer or a third party without the Company’s prior authorisation; the defective repair of the Equipment by the Customer or a third party; a defect arising out of a fault in the property entrusted; normal wear and tear on the Equipment or vehicle.
The warranty will be cancelled immediately if the Customer or a third party transforms or modifies the Equipment without the Company’s prior authorisation.
If the Equipment is sold with the statement “as is”, this means that all warranties are excluded.
If any defect is substantiated on the Equipment and it is demonstrated that this defect causes a direct personal definite material loss, both current and foreseeable, the Company shall, up to the limit of its own responsibility, bear the cost of the repair of the material damage caused to the property of third parties or of the Customer, excluding damage caused to the Equipment, provided that for the event in question, the amount is greater than ten thousand (10,000) euro. For each event, a deductible of ten thousand (10,000) euro shall be applied.
For all losses, events and incidents combined, the total amount of the compensation may not exceed a fifth of the amount of the Order. However this amount may not exceed fifty thousand euros. Without prejudice to the mandatory statutory provisions which may apply, these provisions define the entire extent of the Company’s responsibilities. The Customer shall vouch for the compliance of its insurers, its own customers and their insurers and all third parties with these restrictions.
The term “substantiated” means (i) recognised by the Company or (ii) evidenced by a final court decision
The Customer accepts sole liability for all the consequences of any non-compliance in the property entrusted to the Company for the completion of the Order.
7. RESERVE OF OWNERSHIP
|The transfer of ownership of the Equipment is expressly dependent on the payment of the price in full. In the event of non-payment or late payment, the Company will have the right to re-take possession of the Equipment at the Customer’s expense.|
The simple hand-over of a security creating an obligation to pay, such as a draft or bill of exchange, does not constitute payment under the terms of this clause, the Customer’s original debt to the Company remaining with all the guarantees attached thereto, including reserve of ownership, until the said bill of exchange has been actually paid.
The provisions of this article do not prevent the transfer of risk to the Customer, from the moment of delivery, particularly the risk of theft, loss or damage, in application of the EX WORKS Incoterm (Incoterm CCI 2020), of the Equipment subject to reserve of ownership, and of any damage that it may cause. In the event of a garnishment or any other intervention by a third party involving the Equipment, the Customer must immediately inform the Company to allow it to oppose the intervention and preserve its rights.
The Customer furthermore agrees not to use ownership of the Equipment as a security or guarantee. If it decides to sell the Equipment, the Customer agrees to either pay the balance of the price due to the Company immediately, or to inform the buyers that the said Equipment is encumbered by a reserve of ownership clause, and to advise the Company of the sale so that it can preserve its rights and, where necessary, exercise a claim on the sale price vis-à-vis the buyer. In the event of insolvency proceedings, the Company reserves the right to claim the Equipment that has been sold and not paid for.
All information which may be exchanged in the context of performance of the Order or its negotiation (hereinafter referred to as “Information”) will be considered to be strictly confidential and may not be disclosed to a third party without the prior written consent of the providing party.
The Information cannot be used for other purposes than the negotiation of the Order or, if it is concluded, for its performance. The confidentiality obligations with regard to all Information shall cease when this Information comes into the public domain without infringement of these provisions.
9. FORCE MAJEURE
The Company will not incur any liability for having failed to fulfil an obligation, or for having fulfilled it partially or late, if such violations or delays have been caused by an act of God or a case of ‘force majeure’.
Total or partial strikes inside and outside the Company, war, lock-out, bad weather, epidemics and their consequences, the blockage of means of transport or supplies, earthquakes, fire, storms, floods, flood damage, government or legal restrictions, accidents or events of any kind (affecting the Company, its suppliers or the manufacturer) leading to total or partial stoppages in production, delivery or activity, are considered in particular to be cases of ‘force majeure’.
10. INTELLECTUAL PROPERTY
The Customer recognises that, subject to the rights of third parties, the intellectual property rights, whatever their nature, and the know-how used for the production, sale and after-sales support of the Equipment, or incorporated into it or relating to it (hereinafter referred to as the “Intellectual Rights”), shall remain the sole property of the Company, and under no circumstances shall the transfer of ownership of the Equipment be considered as a transfer of the Intellectual Rights.
This is true particularly, but not limited to, all the manuals and all the instructions delivered with the Equipment, and all drawings, specifications, descriptions and illustrations supplied, communicated or distributed by the Company in any form and in any manner whatsoever.
If new know-how or a new invention likely to give rise to intellectual property rights (hereinafter referred to as the “New Rights”) were to be extracted from the Equipment by the Customer, or were to derive from the performance of the Order in any manner whatsoever, the Customer recognises that the New Rights shall be exclusively owned by the Company.
11. Nullity of a provision
The nullity of a contractual clause does not entail the nullity of the Conditions. Should the Company temporarily or permanently fail to apply one or more of the clauses of the Conditions, this cannot be construed as a waiver on its part of the other clauses of the Conditions which continue to have effect.
12. PERSONAL DATA
Information collected about natural persons will only be processed by the Company for the needs of administrative and contractual management or of sales and marketing initiatives or to satisfy legal or regulatory obligations. The legal basis for processing personal data is the legitimate interest of the Company, as this data is necessary in order to carry out its sales and marketing activities and for the performance of a contract or to take steps prior to entering into the contract.
In accordance with the General Data Protection Regulation and the French Data Protection and Freedom of Information Law, the Customer has the right to access, rectify, block, restrict and delete data concerning it and to state its requirements concerning the fate of its data in the event of its death. To exercise its rights, the Customer should address a request together with proof of identity by post to the following address: 29 rue du 14 juillet – CS 50191 – 67980 HANGENBIETEN (France) or by email to email@example.com. The Customer also has the right to lodge a complaint with a supervisory authority. For further information, please refer to the following link: https://lohr.fr/fr/politique-de-confidentialite/
The Conditions are written in French. A translation is likely to be provided for the Customer’s needs. In the event of a discrepancy between the French version and the translation into another language, the French version shall prevail.
14. APPLICABLE LAW – COMPETENT COURTS IN THE EVENT OF A DISPUTE
|The Conditions are governed solely by French law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods signed in VIENNA on 11 April 1980. Any dispute relating to the or execution of these Conditions will be referred to the courts in Strasbourg (France), which have sole competence in the matter.|