GSC

Article 1.           Scope

These General Sales Conditions (the “GSC”) constitute, in accordance with article L. 441-6 of the Commercial Code, the sole basis of the business relationship between the parties. Their purpose is to define the conditions under which Onroak Automotive (“The Seller”) provides to professional buyers (“The Buyers or Buyer”) who so request, by direct contact or via printed media, specific replacement parts for racing cars (“The Products”). They apply without restriction or reserve to all sales concluded by the Seller with the Buyers of the same category, regardless of which clauses may appear on the Buyer’s documents, including its general purchase conditions.

In accordance with regulations in force: the GSC are systematically sent to any Buyer who requests them, in order to allow it to place an order with the Seller and the Seller reserves the right to derogate from some of these GSC clauses based on negotiations held with the Buyer, by establishing Special Sales Conditions.

 

Article 2.           Orders – Rates

All orders imply unconditional compliance with these GSC that prevail over all other conditions, with the exception of those that have been expressly accepted by the Seller. The sale is deemed to be concluded on the date the Seller accepts the order. Any sale of a Product that is not available in stock (“Future Order”) includes the payment of a deposit of 30%, as defined in article 3 of these GSC. Product means any Product referenced by the Seller.

Rate information appearing in catalogues, brochures and Seller’s rates are provided for information purposes only and can change at any time. The Seller is entitled to make any changes thereto that it deems useful.

2.1.       Ordering at the Seller’s store.

Orders must be made in writing, using an order form duly signed by the Buyer, or sent by fax or email to the Seller. Sales only take effect upon the express and written acceptance of the order by the Seller, who will make sure, among other things, that the requested Products are available.

Acceptance of the order by the Seller results from the drafting and dispatch or remittance of the invoice. Products are supplied at the rates mentioned in the Seller’s price list and if applicable, in the commercial offer sent to the Buyer. These rates are fixed and not revisable.

2.2.       Track orders.

All orders on the track are filled under the same validity conditions as in-store orders. As an exception, orders and pick-ups of Products on the track shall be made at the Seller’s rate increased by 10%.

2.3.       Modifications.

Orders sent to the Seller may not be revoked by the Buyer, unless the Seller expressly accepts thereto. Any request made by the Buyer to modify the contents or quantity of an order cannot be taken into account by the Seller.

2.4.       Cancellation.

In the event of cancellation of an order by the Buyer, after acceptance by the Seller, for any reason whatsoever, with the exception of force majeure, the deposit paid on the order, as defined in article “Delivery” of these GSC, shall remain the rightful property of the Seller, and will not be reimbursed. Removal or modification by the Seller’s own suppliers of Products that have been ordered and accepted by the Seller, entitles the latter to cancel the pending order, unless the Buyer agrees to modify it.

2.5.       Order refusal.

In the event that a Buyer places an order with the Seller, without having paid for the previous order(s), the Seller may refuse to honour the order and to deliver the Products in question, without the Buyer being able to claim compensation of any kind, for any reason whatsoever.

2.6.       Rates.

The Products are supplied at the Seller’s rates in effect on the day the order is placed, and if applicable, as indicated in the specific sales proposal sent to the Buyer. These prices are net and excluding taxes, collection from the premises of the Seller or on the track, packaging is extra. They do not include transportation or potential customs costs and insurance, which are borne by the Buyer.

Special rate conditions may apply based on specific Buyer requests regarding, among other things, delivery terms and time-lines or time-lines and payment conditions. A special sales offer shall therefore be sent to the Buyer by the Seller.

Article 3.           Payment conditions

3.1.       Price.

Except where special sales conditions expressly apply, the prices of the sold Products are those appearing in the price catalogue on the day of the order.

A deposit equal to 30% of the total purchase price of the Products is requested when an order for any Product not available in stock is placed. The balance of the price is payable in cash, on the day of delivery, under the conditions defined in article “Delivery” hereafter. In the event of non-payment of the balance upon delivery, the Seller shall not deliver the Products and may apply a penalty of 15% on the total amount of the order. The Seller shall keep the deposit in the event of cancellation of an order and in the event of non-payment of the balance of the price upon delivery.

3.3.       Payment method for orders with immediate collection:

Any order with immediate collection and for which the Products are available in stock in sufficient quantities, shall be paid in cash to the Seller upon delivery of the Products. Any order placed on the track shall be paid under the same conditions as those defined previously, with an increased rate of 10%.

3.4.       Payment method for Future Orders.

In no event shall payments owed to the Seller be suspended or reduced or set-off in any way without the written consent of the Seller.

The Seller shall not proceed with delivery of the Products ordered by the Buyer if the latter does not pay the price according to the conditions and terms indicated in 3.1. In the event of non-compliance with the aforementioned payment conditions, the Seller also reserves the right to suspend or cancel the delivery of any future pending orders from the Buyer.

A lump sum compensation for collection costs in the amount of 40 euros shall be rightfully due and without prior notification by the Buyer in the event of late payment (article D441-5 of the Commercial Code). The Seller reserves the right to request from the Buyer an additional compensatory amount if actual collection costs incurred exceed this amount, upon presentation of proof.

Any deposit paid by the Buyer shall be kept by the Seller as lump sum compensation, without prejudice to any other legal actions that it would be entitled to initiate against the Buyer in this regard.

If any payment of the price is not made at its due date, the Seller may rightfully terminate the sale, 10 days after a formal notice remains unanswered, without prejudice to damages that could be claimed by the Seller.

3.4.       Invoicing.

The Seller shall establish, upon receipt of the order, a duplicate invoice, one of which will be delivered to the Buyer. The invoice shall indicate the information referred to in article L. 441-3 of the Commercial Code.

3.5.       Payment methods.

All orders must be paid by bank card or by transfer to the bank account of the Seller whose bank details appear on the order form.

Article 4.           Delivery

4.1.       Time-line.

The time-line communicated by the Seller upon approval of the order is not a strict deadline, it is provided for information purposes only, and the Seller cannot be held liable towards the Buyer in the event of a delivery delay. Said time-line must take into account potential delays for product assembly.

In principle, the Seller shall make its best efforts so that, on the day when all items regarding order fulfilment are finalised by mutual agreement and the required deposits have been paid, except where special sales conditions expressly apply, the Products acquired by the Buyer will be delivered within a maximum time frame of 7 days before any sports event, in which the Buyer will have indicated in advance its participation to the Seller, within a sufficient time frame. The Seller shall in no case be held liable if a delay or suspension of the delivery is attributable to the Buyer, or in event of force majeure.

The indicated deadline is furthermore rightfully suspended by any event beyond the control of the Seller and causing a delay in delivery. Delivery delays cannot give rise to any penalty or compensation, nor can they justify the cancellation of the order.

4.2. Delivery method, transportation.

Delivery shall be made EXW (ex-works), after confirmation of full payment of the price to the Seller, and by delivery, at the premises of the Seller, directly to the Buyer or to a dispatcher or transporter chosen by the Buyer, the Products travelling at the Buyer’s risk and costs. Risks in the sold Products are transferred to the Buyer upon delivery of the Products. It is up to the Buyer, in the event of damage to the delivered merchandise or missing parts, to express all the necessary reservations to the transporter.

Any Product that has not been subject to reservations by registered letter with acknowledgement of receipt within 3 days of its acceptance from the transporter, in accordance with article L. 133-3 of the Commercial Code, and a copy of which will be sent simultaneously to the Seller, shall be considered as accepted by the Buyer. In the event that the Buyer makes special requests regarding the conditions governing the packaging and shipping of the ordered Products, as duly accepted in writing by the Seller, the related costs shall be subject to additional specific invoicing.

4.3.       Receipt.

The Buyer is obliged to check the apparent condition of the Products upon delivery. In the absence of any reservations expressed by registered letter with acknowledgement of receipt and accompanied by the delivery note, by the latter, within a period of 3 days from delivery, the Products delivered by the Seller shall be deemed to be compliant, in quantity and quality, with the order.

It is up to the Buyer to provide all evidence regarding the reported hidden defects and missing parts. The Buyer acknowledges that it is up to the transporter to carry out delivery, the Seller being deemed to have fulfilled its obligation of delivery as soon as it has delivered the ordered Products to the transporter who has accepted them without reserves.

Therefore, the Buyer cannot make any warranty claims against the Seller in the event of failure of delivery of the ordered Products nor can it make any claims for damages sustained during shipping or unloading.

No return of merchandise may be made by the Buyer without the prior, express and written consent of the Seller obtained by fax or e-mail. Return costs shall be borne by the Seller only if an apparent defect, or missing parts, are actually reported by the Seller. Only the transporter chosen by the Seller is authorized to return the Products in question. The Seller shall proceed with an additional delivery to make up the missing parts and/or replace as soon as possible and at its costs, the delivered Products, whose non-compliance defects have been duly proved by the Buyer, without the latter being able to claim compensation of any kind or to cancel the order.

4.4.       Buyer’s reservations.

The Buyer’s acceptance without reservations of the ordered Products covers any apparent defects and/or missing parts. Any claim made by the Buyer under the conditions provided in 4.3. shall not suspend payment by the Buyer for the Products in question. The Seller shall never be held liable for incidents during shipping, destruction, damage, loss or theft, even for a transporter that it has chosen itself.

4.5.       International sale.

Upon delivery of the Products and when they are taken over by the transporter chosen by the Buyer, the latter undertakes to ensure that the export certificates will be delivered to the Seller, within a maximum of 3 months of the delivery date, so as to allow it to prove the export sale of the Products.

The Buyer agrees to oversee all the necessary paperwork related to customs, as well as payment of applicable taxes, namely the declaration of the Products at customs, delivery of documents to the customs departments upon export and import, the payment of export and import taxes. As a result of the foregoing, the Buyer shall produce, within 3 months of the delivery of the Products, a copy of all the documents certifying that all the declarative and customs formalities have indeed been fulfilled by the Buyer, and that all the taxes have been paid to the relevant authorities, both in France and in the country of destination. In the event that the Buyer breaches its declarative obligations or fails to provide said documents within the maximum 3 months from the day of delivery of the Product, the latter shall therefore owe the amount of the value added tax, at the legal rate in effect on the French Territory, which will therefore be invoiced to it by the Seller.

Article 5.           Transfer of ownership – Transfer of risks

Ownership of the Products shall only be transferred to the Buyer once payment in full of the price is made by the latter, regardless of the delivery date of said Products. The risk of loss and deterioration shall be transferred to the Buyer upon delivery of the ordered Products.

Article 6.           Vendor’s liability – Warranty

All Products referenced by the Seller are spare parts, the use of which is exclusively intended for the adaptation and/or the assembly of racing cars, and exclusively in the context of automobile competition or automobile sport in general; consequently they are not subject to any specific contractual warranty.

The Seller guarantees the Products against latent defects, in accordance with the law, practices and case law.

The warranty only concerns latent defects. The Buyers being professionals, the latent defect means a fault in the production of the Product making it unsuitable for its use and unlikely to be noticed by the Buyer before its use. A design defect is not a latent defect and the Buyers are deemed to have received all the technical information concerning the Products.

The warranty only applies to Products regularly being the property of the Buyer and entirely manufactured by the Seller, with the exclusion of those originating from its own suppliers. Any warranty is excluded in the event of misuse, or non-compliance with the practices of automobile sport, negligence or lack of maintenance by the Buyer, as in the event of normal wear and tear of the Product or force majeure, or again if any modification has been made to the Product.

It also does not apply to any deterioration or accident resulting from an impact, a fall, negligence, lack of supervision or maintenance, or in the event of transformation of the Product. The warranty is limited to replacement or repair of the Products that are deemed to be faulty. This warranty does not cover labour costs. The warranty automatically ends if the Buyer has not informed the Seller of the alleged defect within a period of 7 days from the date of discovery.

The Seller shall draw the Buyer’s attention to the fact that the parts used to adapt the vehicles for competition may have certain features that render their use prohibited on public highways insofar as they noticeably modify the features of vehicles as described in the acceptance report delivered by the vehicle inspection department.

Article 7.           Force majeure

Are considered as cases of force majeure, events that are beyond the control of the parties, that they could not reasonably be expected to foresee, and that they cannot reasonably avoid or overcome, insofar as their occurrence makes it totally impossible to satisfy the obligations.

Should the event last for more than thirty days from the date of its occurrence, the sales contract may be terminated by the most diligent party, without any of the parties being able to claim any damages.

This termination shall take effect on the date of the first presentation of the registered letter with acknowledgement of receipt terminating said sales contract. The Seller shall keep any deposit paid.


Article 8.           Intellectual property

The Seller, for Products manufactured by it, retains all of the industrial and intellectual property rights related to the Products, photos and technical documentation that cannot be disclosed or used without its written authorisation. The Buyer undertakes, upon the Seller’s acceptance of the order, for whatever reason whatsoever, not to disclose, in whole or in part, information originating from the technical documentation or computer data, or any information belonging to or falling within the purview of the Seller.

In the event of non-compliance with the above, the Buyer faces a penalty to be paid to the Seller in an amount of at least 10,000 euros and as high as 150,000 euros.

Article 9.           Disputes

Any disputes arising from this contract, as to its validity, interpretation, performance, termination, consequences and implications shall be referred to the competent courts under common law.

Article 10.         Applicable Law – Contract Language

By express agreement between the parties, these GSC and the purchase and sales operations resulting there-from are governed by French law.

They are drafted in the French language. In the event that they are translated into one or several languages, only the French text shall prevail in case of dispute.

Article 11.         Buyer’s Acceptance

These GSC as well as the rates are expressly agreed and accepted by the Buyer, who declares and acknowledges to have perfect knowledge thereof and, as such, waives it right to invoke any contradictory document, including its own conditions.