STANDARD TERMS AND CONDITIONS OF SALE dd. 03.05.2021
ARTICLE 1. Field of application
These Standard Terms and Conditions of Sale (“T&Cs”) form the sole basis of the commercial relations between the parties, in accordance with article L 441-6 of the French Commercial Code. Their purpose is to define the conditions on which BIHR, S.A.S., with capital of €500,000, having its registered office at ZI Parc 3 - 7 rue Robert Schuman - 68870 BARTENHEIM – France and registered with the trade and company register of Mulhouse under no B 320 671 233, (the “Company”) supplies business buyers from anywhere in the world engaging in trade and/or repairs (the “Customer” or “Customers”) that want to purchase (via the website of the Company or otherwise) accessories and spare parts for two-wheeled vehicles, tricycles (TM) or quadricycles (QM),grouped under the abbreviation TQM, (the “Products”).
These T&Cs shall apply without time limitation or restriction to all sales agreed by the Company with its Customers, regardless of the clauses in the documents of the Customer, particularly its standard terms and conditions of purchase.
These T&Cs are available on the website of the Company and will always be notified to any Customer wishing to place an order with the Company. Any order for Products entails acceptance by the Customer of these T&Cs by checking a dedicated box (for online sales) or by signing the printed T&Cs (for offline sales).
The information intended for the Customer may be sent by email providing the Company has been informed by the Customer of its email address. The information stated in the Company’s catalogues, brochures and price lists is provided for guidance only and may be revised or amended by the Company without notice; However, this is without prejudice to pending orders, that will be maintained except for non-material modifications.
In accordance with applicable regulations, the Company reserves the right to waive or deviate from some clauses of these T&Cs on the basis of negotiations with the Customer, by agreeing in writing to Particular Terms and Conditions of Sale.
2.1 Sales shall be agreed as soon as an order is formally confirmed by Company (online or on any printed or electronic document).
2.2 Orders from the Customer, particularly orders for products known as “on-demand” products (which are orders for products that are not in stock and/or customized products) The Company draws the attention of the Customer to the fact that all online orders with incorrect or incomplete information may lead to errors in the fulfilment of the order that may not in any event be attributed to the Company. The Customer shall therefore be responsible for reviewing the entered data before the order is finally placed.
2.3 Orders may be cancelled by the Company if product is unavailable because it is out of stock or no longer included in the catalogue. This shall not lead to the cancellation of the overall order, but only that of the unavailable Product, and shall not lead to any compensation for the Customer.
2.4 Unless otherwise expressly agreed beforehand by the Company, no modification of firm and final orders from the Customer shall be taken into consideration by the Company.
2.5 Orders may only be cancelled by the Customer before they are made available for delivery, subject to the express prior written consent of the Company. Orders for “on-demand” or customised products, special orders from the Customer or products sold as part of special operations
or identified as “Products discontinued from ranges or available till stocks last” can never be cancelled.
3.1 Restricted explosives precursors
The customer gives his approval for the specific use or uses of a restricted explosives precursor as referred to in Regulation (EU) 2019/1148 of the European Parliament and of the Council. I hereby declare that the commercial product and the substance or mixture that it contains shall be used only for the indicated use, which is in any case legitimate, and will be sold or delivered to another customer only if they make a similar declaration of use, respecting the restrictions established in Regulation (EU) 2019/1148 for the making available to the members of the general public.
4. INCOTERMS RULE - TRANSFER OF RISKS
For direct orders and drop-shipping orders, goods shall be carried by default on the basis of the DAP (Delivered At Place) Incoterms rule. The goods shall be deemed to be delivered when they are made available to the Customer at the agreed place of delivery, on the incoming means of transport, before they are unloaded.
The Company shall select the carrier that is best suited to the needs of the Customer, shall pay for transport and bear the direct costs (which may be charged on to the Customer), responsibility and risks up to the agreed place of delivery.
The Customer shall in any event remain liable for the totality of customs formalities, the payment of duties and taxes relating to the import and for unloading the goods at their place of delivery. The Company shall not in any event have responsibility for the fulfilment of import formalities.
Any other Incoterms rule required by the Customer shallrequire the prior written consent of the Company.
5. DELIVERY SCHEDULES
Delivery schedules are provided for guidance only and
shall be counted from the date of confirmation of the
order. In no event may a delivery delay give rise to the
cancellation of the sale.
If an imperative delivery schedule is agreed, the Company agrees to abide by that date. If that is impossible, the Company shall inform the Customer as soon as the Company becomes aware of the same, with no compensation for any reason. In such case, Parties shall make best efforts to agree on a new delivery date.
No compensation may be claimed by the Customer (even in case of an imperative delivery date) if the delivery is delayed, suspended or cancelled:
- due to an unforeseen stoppage in manufacturing,
- due to the Customer’s failure to comply with the terms of payment provided in our order, to provide (in time) information that is required for the fulfilment of the order or due to any other reason attributable to the Customer,
- due to a force majeure circumstance, particularly strike, accident, fire, natural disaster, pandemic, procurement impossibility or any other reason out of our control.
6. RECEIPT AND RETURN OF GOODS
6.1 At the time of delivery, the Customer shall carefully examine the goods and imperatively record any visible defects and/or non-conformities on the delivery form, which it shall date.
Such exceptions shall be notified to the Company within three working days by recorded delivery with acknowledgement of receipt. All remedies against the Company shall lapse if the Customer fails to make a complaint within the aforementioned time. Any package that is damaged in transport and rejected by the Customer shall be returned to the carrier at the time of delivery. If the return is deferred, the Customer shall pay the costs of returning the Products.
6.2 If the Customer rejects the delivered Products without justification, the Company reserves the right to demand €50 exclusive of taxes from the Customer as processing costs in addition to carriage costs.
6.3 Goods may only be returned with the express prior consent of the Company and within a maximum period of 30 days from delivery (cumulative conditions). If any goods are returned for visible defects or nonconformity with the order, the Customer shall notify the defect in accordance with the procedure in 5.1. If any goods are returned based on warranty, the Customer shall notify its claim in accordance with the procedure in article 9.In any event, only new goods that are in their original condition and packaging and have not been damaged in any way by the Customer, its employees or third parties may be returned (this doesn’t apply in case of a warranty claim as referred to under article 9). Damaged items shall not be accepted.
6.4 As an exception, no return shall be accepted by the
Company in respect of the following Products:
- “on-demand” Products
- customized Products;
- Products that fulfil a special order from the Customer;
- Products that are sold as part of special operations or identified as “Products discontinued from ranges or available till stocks last”. With the exception of returns for visible defects or non-conformity to the order or returns under a warranty claim, all returns accepted by the Company shall give rise to an inclusive restocking charge of €9,00 exclusive of taxes per order for all shipments from the European Union, subject to additional customs costs.
6.5 If payment is made in cash with the order, returned goods shall be refunded by bank transfer, to the exclusion of any compensation.
In the event of payment using the financing arrangement provided in 8.2, the return of goods shall lead to the issuing of a credit note that will be charged to the next payment, to the exclusion of any refund.
Processing charges for the financed order shall be retained by the Company and shall not be refunded to the Customer.
7. RETENTION OF TITLE CLAUSE
The transfer of risks upon the delivery of Products notwithstanding, the Company shall retain the title to the delivered goods until the full payment of their price, including principal and ancillary costs. Any other clause, particularly those in the standard terms and conditions of purchase, shall be null and void in accordance with article L. 621-122 of the Commercial Code.
It is expressly agreed in respect of fungible and interchangeable goods that the Company may exercise its rights under this clause for any of its claims on all its products held by the Customer, which shall be presumed, by agreement, to be those for which the price has not been paid. In the event of any non-payment, the Company may take back the unpaid when it is due, the Company may unilaterally establish or cause the establishment of an inventory of its goods held by the Customer, subject to 24
hours’ notice. The Customer agrees to afford free access to its premises to the Company and to return the unpaid goods at the first demand from the Company within three days, and to pay the return costs. Failing that, it could be ordered to do so by a judge ruling in summary proceedings or a bailiff with the power to execute seizures under a prior
claim. The costs of such proceedings shall be paid entirely by the Customer. delivered goods or claim them as compensation
for its unpaid invoices, without prejudice to its right to cancel pending orders. If any invoice remains
7.1 Catalogue prices shall be quoted in euros exclusive of taxes, ex-warehouse with no discount; processing, packaging and shipment costs shall be charged in addition.
7.2 Prices may be revised at any time without notice, depending on monetary variations and suppliers’ price increases. The prices charged to the Customer shall be those applicable when the order is accepted.
8.1 Cash payment on the day of the order:
Invoices shall be payable in cash, by bank transfer or by
accepted bank card. The Company shall not accept payment by cheque or in money. For online payments, the Customer assures the Company that it has any permission that may be required for using the payment method selected by it.
8.2 Financing arrangement.
Payments for orders in a value up to €5000 may be made in one or more instalments using the financing arrangement of the financial partner of the Company, namely ALMA, simplified joint stock company with capital of €1,585.71, having its registered office at 176 avenue Charles de Gaulle, 92200 NEUILLY-SURSEINE, registered with the trade and company register of Nanterre under number 839 100 575, ORIAS no 18 004 631.
While selecting the financing arrangement, the Customer shall review the pre-contractual information relating to the payment in instalments selected by it and notify its acceptance electronically by checking the corresponding box and confirming its choice.
The Customer shall supply all the information required for preparing an application for a financing arrangement by completing the form provided, available when the payment method is selected. Upon receipt of the information, the Company shall make a preliminary financing application to its partner. If the application is rejected, notification shall be transmitted immediately to the Customer, who may select another payment method. Failing that, the order shall be automatically cancelled.
The cost of financing shall be 2.7% of the total value of the order (inclusive of taxes) in addition to processing costs of 1.2% of the total value of the order (inclusive of taxes). If any payment is not made when it becomes due, all the amounts owing from the Customer shall become immediately payable as of right, with no prior formality or notice. By confirming payment, the Customer agrees that it has reviewed the terms and conditions of financing and
accepts them irrevocably and without qualification.
8.3 No discount shall be granted for early payment. No delivery shall be made before payment is received.
8.4 Any failure to make a payment or make a payment on time shall result in the following:
- suspension of all pending orders.
- payment as of right without prior notice of an inclusive charge for collection costs equal to €40; the Company reserves the right to demand additional compensation from the Customer if the costs of collection that are effectively incurred exceed that amount, upon production of substantiating documents.
- payment as of right of interest for late payment at the rate applied by the European Central Bank for its most recent refinancing operation plus 10 percentage points in accordance with article L.441-6 of the Commercial Code, from the due date stated in the invoice up to the payment in full of the outstanding amounts (interests will accrue
without the need to send a prior notice letter).
8.5 If a default by the Customer makes it necessary to resort to legal or enforced collection, the Customer shall pay the Company, in addition to the principal, compensation equal to 15% of the principal amount inclusive of taxes of the claim as damages and agreed and inclusive interest, not including the compensation allocated under art. 700 of the Civil Procedure Code or equivalent legislation, and the costs of the proceedings.
The products delivered by the Company whose net amount is superior to € 12, benefit from a contractual warranty for a period of 24 months from the date of delivery to the Customer, covering the non-conformity of the products with the order and any defect, arising from a material defect, of design or manufacturing affecting the delivered products and making them unfit for use. This warranty does not apply: (a) to batteries and electrical products, which benefit from a 12-month warranty from the date of the delivery note, (b) to consumable products (tires, brake pads, clutches, seals, etc.) which are not guaranteed, except in the event of a manufacturing defect. This warranty is limited to the replacement or reimbursement of non-compliant or defective Products, as determined by the Company.
The replacement of defective Products or parts will not
extend the duration of the warranty. Warranty is excluded in case of misuse, negligence, non-compliance with technical recommendations or lack of maintenance on the part of the Customer, as in the case of normal wear and tear of the Product or force majeure. It also does not apply in the event of deterioration or accident resulting from shock, fall, or in the event of transformation of the Product. In order to assert their rights, the Customer must, on pain of forfeiture of any action relating thereto, inform the Company in writing of the existence of the defects within a maximum period of 4 working days from their discovery.
10. LIABILITY OF THE COMPANY
10.1 In any event, if the Company is found to be liable following a sale for any reason, the total compensation shall be limited to an amount equal to the net price of the Product that is at the origin of the liability. Any other express or tacit guarantee from the Company and/or liability of the Company is excluded. The replacement of defective Products shall not extend the applicable guarantee period.
10.2 The Company shall be liable solely for the foreseeable damage for which it is directly and personally responsible, with no joint or several or in solidum liability with third parties, particularly the manufacturer of the Product and/or the Customer and/or the end buyer and/or any other party replacing or acquiring the rights of the latter, who have contributed to the damage.
10.3 The Company shall not in any event be liable for indirect and/or unforeseeable losses or damage sustained by the Customer or third parties, particularly including any loss of revenue, inaccuracy or corruption of files or data, commercial loss, loss of turnover or profit, loss of customers, loss of opportunity, cost of obtaining a replacement product, service or technology, relating to or caused by the nonfulfillment or faulty fulfilment of the sale.
10.4 The Company shall not be liable if the Products have sustained negligence or improper maintenance by the Customer or the end buyer, normal wear and tear or a force majeure circumstance, or if the Products have been used in conditions that are different from those for which they have been manufactured, particularly if the conditions in the instructions for use are not followed. Further, the Company shall not be liable for damage or accidents due to impacts, falls, deficient monitoring or maintenance and/or if the Product is transformed.
10.5 If the Company undertakes maintenance, repair, modification or other work on parts given to it by the Customer, it shall not be liable for any harm or damage that such parts may subsequently cause if they are not attributable to the Company, but to the Customer or another party (failure to observe assembly instructions, assembly or reassembly work by an unauthorised party etc.)
10.6 Some parts distributed by the Company are designed to enhance the performance of the vehicle, for the sole purpose of competitive use. As a result, such parts may modify the characteristics of the vehicle in respect of its approval on the territory in which the vehicle circulates, and thus make it unfit for use on the roads. The Company shall not in any event be liable on any occasion or in any manner whatsoever for such a modification, or for the use of the modified vehicle for the purpose or with the effect of making it nonconforming to the governmental rules that are
normally applicable to it. It is the Customer's responsibility in any event to ensure the homologated nature or not of the parts that they mount on their vehicle depending on the traffic location.
In case of a third party claim against the Company based on such modification of the vehicle, the Customer will hold the Company harmless and compensate for the related costs.
11. WARNING FOR BUSINESS VENDORS
11.1 It is restated that driving on roads open to public traffic or places open to public traffic with a moped, motorcycle, power tricycle or power quadricycle that is not subject to approval is a class 5 punishable offence.
The sale, transfer or lease of such equipment to minors
are prohibited, as are the rental or provision to minors below the age of 14, with the exception of approved sports organizations (Art. L321-1-1 of the highway code).
In accordance with decree no. 2009-911 of 27 July
2009, the RULES RELATING TO THE SALE, TRANSFER, RENTAL AND USE OF UNAPPROVED POWER VEHICLES must be posted visibly and legibly in all marketing locations and a copy is to be submitted to anybody who purchases or rents such equipment.
In accordance with decree 2010-44 of 12 January 2010, each business is required to affix the words “Not for use on public roads” in a visible, legible and indelible manner on the relevant equipment.
If any of these T&Cs were to be found to be null and void, that shall not affect the validity of the other clauses, which shall continue to apply.
13. AGREEMENT OF PROOF
13.3 For online sales on the website of the Company, order confirmation and acceptance of these T&Cs via electronic means constitute proof of the existence of the sale agreement.
13.4 The Customer shall have sole responsibility for adapting its information system to the use of the Internetand for the relations required with suppliers of software and network service providers. Any account parameters (particularly password and user name) required for the order shall be strictly personal to the Customer and shall be kept confidential. Any order placed using such confidential parameters shall be deemed to be placed in the name and on behalf of the Customer.
14. PERSONAL DATA - GDPR
15. APPLICABLE LAW– JURISDICTION
15.1 These T&Cs and any sales by the Company shall be governed exclusively by the laws of France, to the exclusion of all others. They shall be prepared in French. If they are translated into one or more languages, only the French text shall be the authentic text in the event of a dispute.
15.2 ANY DISPUTE ARISING OUT OF THIS AGREEMENT IN RESPECT OF ITS VALIDITY, INTERPRETATION, PERFORMANCE, TERMINATION, THE CONSEQUENCES THEREOF AND ENSUING AFFAIRS THAT CANNOT BE SETTLED AMICABLY SHALL BE BROUGHT BEFORE THE COURT OF MULHOUSE.