GENERAL TERMS AND CONDITIONS

OF HUMMINGBIRD LTD

1. GENERAL, CUSTOMERS, LANGUAGE


(1) All offers, sales contracts, deliveries and services made on the basis of any orders by our customers (each, a “Customer“) through our online shop www.hummingbirdbike.com (the “Internet Shop“), including orders by telephone, e-mail, fax, or mail shall be governed by these general terms and conditions of sale (the “General Terms and Conditions“). In addition, all sales in our Showroom shall also be governed by these General Terms and Conditions so long as they do not specifically regard distance selling.

(2) The product offerings in the Internet Shop are directed to both Consumers and Business Customers (as defined below), but in each case only to end users. For the purpose of these General Terms and Conditions, (i) a „Consumer“ is any individual entering the contract for a purpose not related to his or her business, trade or self-employed professional activity, and (ii) a “Business Customer“ is a Customer (an individual, company or partnership vested with legal capacity) who enters the relevant contract in the conduct of his business or self-employed professional activity.

(3) Standard business conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.




2. CONCLUSION OF CONTRACT


(1) Our offerings published in the Internet Shop, in catalogues, and in our Showroom are non-binding.

(2) By placing an order through the Internet Shop (which requires prior registration and acceptance of these General Terms and Conditions), the Customer makes a binding offer to purchase the relevant product. The offer shall remain valid and binding for a period ending on the end of the 5th calendar day following the day of the offer. We are able to accept the order within this period.

(3) Without undue delay upon receipt of the order, we will send a confirmation of receipt to the Customer by e-mail, which shall not constitute an acceptance of the order. The order shall be deemed to be accepted by us either upon subsequent (e-mail) acceptance of the order or by dispatching the product. The sales contract with the Customer shall not become effective until our acceptance.

(4) Any Customer who is a Consumer shall be entitled to revoke the offer and return the product in accordance with the cancellation and return policy as separately made available to the Customer in connection with the e-mail confirming receipt of the order.

(5) In case the Customer asks for a cost estimate for repair work, in order to avoid unnecessary long service time for customer bicycles, the Customer has to declare within two weeks after receipt of the requested cost estimate whether he wants to accept or decline our offer. In case the Customer does not make a declaration within two weeks, we will provide an appropriate grace period of one week. After expiry of the grace period without a declaration of the Customer, we will assume that he declines our offer and will in this case return the product at the shipping costs of the Customer. We will also inform the Customer separately of this consequence in connection with our information regarding the grace period.




3. PRICES AND PAYMENT


(1) Our prices include statutory VAT, but are net of shipping costs. Prices in non-EU countries (excluding Australia and New Zealand) do not include VAT. Any customs duties and similar public charges shall be borne by the Customer.

(2) Unless expressly agreed by Hummingbird LTD, all shipments by Hummingbird LTD shall require advance payment (to be made in the manner specified in our order form) upon receipt of an invoice (which may be sent by e-mail and included in our notice of acceptance). Upon the Customer’s request, to be made in the order form, we will deliver the product against payment of the invoiced amount in our store in Chalker Way, Banbury, Oxfordshire, OX16 4XD

(3) The Customer shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by us or been determined by a final and binding decision.




4. DISPATCH OF THE PRODUCT


(1) We shall dispatch the product prior to or on the date of dispatch (i. e. the date on which the product is handed over by us to the carrier), as set out on the offer page when the Customer places the order; provided, however, that any such date of dispatch shall be only approximate and may therefore be exceeded by up to two business days. Any such time period relevant to determine the date of dispatch shall begin upon receipt by us of the full purchase price (including VAT and shipping costs). A period of six weeks as from the receipt of payment shall be deemed to be agreed upon for the dispatch of the product.

(2) In the event that our supplier fails to deliver in a timely manner any products which were not identified on the offer page in the Internet Store (at the time of the order) as or were sold out pursuant to subsection 1, the relevant date of dispatch pursuant to subsections 1 shall be extended until delivery is made by our supplier plus an additional period of two business days, but in no event by a period of more than three weeks. Any such extension shall be subject to the provision that we have without undue delay ordered the relevant products from the supplier and that our supplier’s failure to timely supply the products is not a result of our fault or negligence.

(3) In the event that the product is no longer available, or cannot be timely delivered, for any of the reasons set out in subsection 2, we shall without undue delay inform the Customer. In these cases, we will make an individual agreement with the customer regarding the time of delivery. If the product is no longer available from our suppliers within the foreseeable future, we shall be entitled to terminate the sales contract. In case of any such termination, we shall without undue delay reimburse the Customer any payments which the Customer has made to us in respect of the order. The legal rights of the Customer resulting from late delivery shall not be affected by this provision; provided, however, that the Customer may claim damages only subject to the provisions of Section 8 of these General Terms and Conditions. In the event that the product is permanently not available, we will not accept the order. In this case, a sales contract with the Customer shall not become effective.

(4) In the event that we fail to keep a date of delivery, the Customer shall provide an appropriate grace period that may not be less than one week.

(5) Partial deliveries of Products included in the same order shall be permitted, provided that the products can be used separately and provided further that we shall bear any additional shipping costs caused thereby.

(6) In case the Customer does not apply with an agreed pickup date, we will provide an appropriate grace period of one week and reserve our right of rescission of the contract. We will also inform the Customer separately of this consequence in connection with our information regarding the grace period.




5. SHIPMENT, INSURANCE AND PASSING OF RISK


(1) Hummingbirds are fully assembled and adjusted by qualified technicians in our factory. Specific components (seatposts, pedals) are removed for safety reasons prior to shipment. For this reason the consumer must fit these parts when he receives delivery of his bike. Written information on how to fit, seat posts and pedals are included with the delivery of the bike. In addition, a video explaining how to fit the required parts is available on the Hummingbird website (www.hummingbirdbike.com). If necessary, email support on how to fit parts will become available.


(2) Unless expressly otherwise agreed upon, we shall be free to determine the appropriate mode of shipment and to select the carrier at our reasonable discretion. We shall bear the risk of transport in case the Customer is a consumer.

(3) We shall only be obliged to properly and timely deliver the product to the carrier, and any transit times specified on the Internet Store shall only be non-binding estimates.

(4) If the Customer is a Consumer, the risk of accidental destruction, damage or loss of the delivered product shall pass to the Customer upon delivery of the product to the Customer or upon the Customer’s default of acceptance. In all other cases, such risk shall pass to the Customer upon delivery of the product by us to the carrier.

(5) The Customer shall bear the shipping costs. The shipping costs include the costs for a transport insurance against the usual risks of transportation. We will inform the Customer of the shipping costs in the order form.

(6) The Customer shall bear the usual return shipping costs when exercising the right to revoke in case the delivered product is consistent with the ordered product




6. RETENTION OF TITLE AND RESALE


(1) We retain legal title to any product supplied by us until the purchase price (including VAT and shipping costs) for such product has been fully paid. The statutory revocation right remains unaffected.




7. LIABILITY


(1) Our liability for negligence, other than for gross negligence, resulting from late delivery shall be limited to an amount equal to 5% of the aggregate purchase price (including VAT).

(2) We shall not be liable (on whatever legal grounds) for damages which may not reasonably be foreseen, considering the type of the relevant order and product and assuming a normal use of the product. The foregoing limitations of liability shall not apply in cases of wilful misconduct or gross negligence.

(3) Damage claims of the Customer based on obvious defects of the product are excluded, unless the Customer reports the defect within two weeks after the delivery of the product.

(4) It is the responsibility of the Customer to assure that all functional parts are initially adjusted properly, and subsequent normal maintenance services and adjustments necessary to keep the bicycle in good operating condition are properly made. This warranty does not apply to damage due to improper installation of parts.




8. DATA PROTECTION


(1) We may save and process any data relating to the Customer, to the extent necessary for the purpose of the execution and implementation of the sales contract and as long as we are required to keep such data in accordance with applicable law.

(2) We will not make available any personal data of the Customer to other third parties without the express consent of the Customer, except to the extent that we are required to disclose any data pursuant to applicable law.

(3) We shall not be permitted to collect, submit to any third party or otherwise process personal data of the Customer for any purpose other than those set forth in this Section




9. APPLICABLE LAW


(1) These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the United Kingdom.


(2) The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service). Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.




10. CHANGES TO TERMS OF SERVICE

You can review the most current version of the Terms of Service at any time on this page. We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.




11. CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at

[email protected]