Updated version 12. January 2022 GENERAL TERMS AND CONDITIONS OF SALES FOR CLIENTS
The present Terms and Conditions of Sale (the “T&C”) are agreed upon between the company ARCADE (“AHK”) and any other individual or legal entity acting as the professional Client (reseller or end Client), and, making a purchase on the online shop (the “Client”) accessible at the address http://www.ahk-prod.com (the “Site”) or by any other means (letter, telephone, email, etc …).
1. VENDOR DESCRIPTION
ARCADE, simplified public limited company with a capital of 7.622,45 €, unique ID number 398 658 856 RCS Colmar, head office location ZA Les Erlen – 16, rue des Merisiers, 68290 Wettolsheim (France), intra community VAT number FR45 398 658 856, e-mail: firstname.lastname@example.org, telephone: +33 (0) 389 419 689.
2. ACCEPTANCE OF THE T&C
Prior to any order, the Client agrees having acknowledged these T&C, it being understood that accepting the offer and the order confirmation specifically implies full and unconditional acceptance of the present T&C, which remain available on the Internet site as well as on both the offers and invoices. These T&C will prevail over any other conditions appearing in contradictory documents, notably the general purchasing terms and conditions of the Client, the purchase constituting acceptance of these T&C. The present T&C may be modified at any moment and without prior notice. The new T&C will be readily effective on the date of posting on the Site. In the event the T&C are modified, the applicable T&C are those in force on the specific order date. The T&C are written in French in their original version, which will take precedence and prevail over any other version.
3. PRODUCTS OFFERED BY AHK
AHK is specialised in creating and marketing custom promotional products (hereinafter referred to as the “Products”). The Products are proposed on various communication supports (catalogues, price lists, Internet site) intended specifically for media object retailers. However, AHK can create, develop, and produce other products which is why the Client is encouraged to contact AHK for any projects to design objects in metal, PVC, embroidery, resin, etc, to manufacture medals, 3D objects, magnets, or other creations. All the Products are designed in France (client and production file). The manufacturing is undertaken mainly in Asia by companies chosen for their technical qualities and dependability. The AHK office in Hong Kong carries out regular production audits to guarantee quality goods and timeliness at the best market prices.
Pursuant to Article R.541-173 of the French Environmental Code, the unique identifier number (IDU) is FR022660_066BCW.
4. PLACING AN ORDER
Prior to placing an order, the Client must already have the creation of his account approved by the AHK sales department. The Client may then track his order on the Site by logging into his Client account. The order can be modified at any time until the definitive approval of the press check by the Client. This final acceptance comes after the press check approval and after AHK has sent an order confirmation to the Client. The order solely becomes final after being accepted by AHK. AHK reserves the right to refuse any order, notably if it has an anomaly, is non-compliant to the present T&C, or if the Client has previously failed to fulfil his obligations. The Client is solely responsible for all information given by him when placing an order. In the event of any errors of the Client contact information, AHK will in no manner be held liable in the event of inability to deliver the product. Any order placed implies acceptance of the product prices and descriptions.
4.1 Ordering Products listed in the AHK price list
The catalogue on the Site (the “Catalogue”) lists a certain number of Products offered to the Client. The process which applies to ordering these specific Products is described below:
- The Client sends a written description of the Products, the quantity, delivery address and desired delivery deadline. If AHK has drawn-up a specific commercial offer, the related reference number must be included.
- Order confirmation sent by AHK to the Client (including Product prices, reduction amount described in article 6.2, if any, delivery deadline, payment terms, delivery address and transport fees, packaging fees if applicable, storage fees, reorganising fees, CAP fees, etc). In addition to this order confirmation, AHK will send the Client a copy of the T&C relating to the order;
- Issuing of a down payment invoice by AHK sent to the Client according to the terms and conditions of article 6.3;
- Receipt by AHK of documents and files required for production in compliance with article 5.1;
- AHK can possibly send the Client Product prototypes which the Client must acknowledge receiving;
- Preparation of a press check (the “PC”) of the Products ordered;
- Client confirmation of the PC according to the provisions in article 5.3;
- Signing and sending of the order confirmation by the Client to AHK:
- Production launch of the Products;
- AHK receives the Products;
- Issuing of delivery slips for each Product order;
- Issuing of the invoice (depending on the client payment terms, the invoice may be drawn up at another moment in the process);
- Client pays the invoice;
- The addressee defined by the Client receives the goods.
4.2 Ordering Products not listed in the AHK price list
The Client can also order fully customised Products, which are not listed in the Catalogue. The process which applies to ordering these Products is described below:
- The Client sends a written description of the Product, the quantity, delivery address and desired delivery deadline;
- AHK sends an offer to the Client;
- The Client accepts the offer.
After the quote is accepted by the Client, the order process described in article 4.2 will be applied to the Products not listed in the AHK price list.
4.3 Follow-up Order
Should the Client request a follow-up order, the tools and moulds possibly required for the production are stored and reusable for a more or less long period of time, depending on the Products. The storing data is indicated, if necessary, on the order confirmation sent by AHK Productions. With the exception of the technical printing fees, the tools are generally valid for a two-year period.
The storage time of the tools starts from the creation date of the product, at the moment of the first order.
The technical printing fees (silk-screening, offset, sublimation...) are usually only valid for one single production.
5. PRODUCT MANUFACTURING CONDITIONS
5.1 Documents and files required for production
The Client provides AHK with the following documents and files for the production of the Products:
- A ready-to-use visual, either in colour or black and white, with directions for colour arrangement. There shall be no other written notes on this document. The colours will use the Pantone reference.
- In an “AI” or “EPS” vector file format with vectorised fonts. The Client can contact the Graphic Design (CAP/CAD) Department for further information.
If he does not have such documents and files required for production, the Client can ask the AHK design studio department to create and produce visual elements for his project.
5.2 Processing of Client’s documents and files
The integration and processing of the logo / vector image provided by the Client in accordance with article 5.1 is free of charge if it complies with AHK’s technical constraints described in the offer and mentioned on the Internet site. If a difficulty should arise during the processing and/or vectorization of the logo / image provided by the Client, AHK will inform the Client before the work is undertaken. The graphic services connected with the processing of the documents and files will be invoiced, by way of reference, as follows:
Vector file compliant with AHK technical constraints
Vector file with small changes / rearranging according to a drawing (less than 30 min.)
Non vector file easy to redraw (1 hr)
Non vector file difficult to redraw (1-2 hrs)
Design-creation work from an idea / inspiration, with or without visuals
Please ask AHK
As of the 3rd request for changes of press check (PC)
5.3 Press check approval
Following a Client request to create a Product, and within a 7-day deadline counting from the date all the required documents for the production are received, as listed in article 5.1, AHK will send the Client a PC of the Product. The Client has 15 days to approve the PC, counting from the day it is received. Should the Client ask for modifications, they will be undertaken within a 7-day deadline, counting from the day AHK receives these modifications. The Client then has another 15 days to approve the modified PC, from the day it is received. The production of the Products is launched upon receipt of the approved PC.
6. PRODUCT PRICES
6.1 Standard Product prices
The Product prices are set when the order is placed and are understood as being per unit, net, excluding tax and in Euros. Consequently, they will be increased according to the VAT applicable on the day of the order. The delivery fees include bulk import airline travel between Hong-Kong and mainland France. They may be reduced in the event of import by boat (conditions upon request). In the event of an order towards a country outside the European Union, the price will be automatically calculated without tax on the invoice, except in specific cases. All orders delivered outside mainland France can be subject to additional fees as well as customs duties and possible taxes which may be imposed when the package reaches its destination, the Client being the importer of the product concerned. It is the sole responsibility of the Client to pay these duties and taxes in full. AHK is not obliged to check and inform the Client of these applicable customs duties and taxes. It is up to the Client to make enquiries with the appropriate authorities in their respective countries.
The Product prices include wrapping and standard packaging fee. A supplement may be added on by AHK for any special packaging requests by the Client.
6.2 Reseller prices
Clients ordering Products to sell to end-buyers (the “Resellers”) can get a special reduction, deductible on all the prices mentioned in the price list. Furthermore, and solely for information purposes, AHK will give these Resellers a price guide which lists recommended sales prices to charge to the potential final consumer. This recommended price list satisfies two objectives:
1/ Give the Reseller an attractive sales price which can be directly used for the buyers.
Its function is to back reseller-specific prospection and negotiation activities and to provide a work tool for their sales team. It’s a document containing sales tips and decision-making recommendations.
2/ Simplify Reseller work by using this same document as purchasing price list.
Reseller purchasing prices are calculated on this cost by deducting a uniform rebate, applicable on the whole of this price list. By knowing the rebate and thus the purchasing price, the Reseller is able to immediately and readily sell to the final consumer.
6.3 Payment terms
Unless otherwise stipulated, upon approval of the order, AHK will send an invoice to the Client, specifying the payment due dates to be respected. In all cases, the order payment is due in full before delivery. For any order exceeding the amount of 1,500.00€ (tax not incl.) for a delivery in mainland France and the amount of 1,000€ (tax not incl.) for a delivery outside mainland France, a down payment of 30% of the total order price is required. In specific situations relating notably to when there is no credit insurance, or if there has been a past payment issue, AHK reserves the right to ask a down payment of more than 30% of the total order price. The production launch only occurs after having received the aforementioned payment. The remaining amount is to be paid before delivery, except for special conditions relating to opening an account, in compliance with the provisions of article 19. For any order exceeding or equal to 5,000.00€ (tax not incl.), the approval of a product prototype – either given personally or with a photo – and its related fees, are obligatory before any large-scale production. If the Client fails to pay any of the amounts on the due date, he will be charged a penalty fee fixed at three times the legal interest rate. In accordance with article L.441-6 of the French Commercial Code, these penalties are payable as of right, upon mere request by AHK. In addition, AHK reserves the right to file an action with the competent court to remedy such non-performance, subject to a daily fine of delay and without prejudice for any further claims. Lastly, the Client will be required to pay a flat rate compensation of 40€ to AHK to cover collection charges incurred due to late payments.
No discount is accepted when our invoices are paid in cash.
7. PRODUCT DELIVERY
All products are delivered to the Client at their own risk. The transport fees must be paid by the Client. The delivery is deemed performed once the products are made available to the primary transporter. The Client guarantees their facilities are accessible for all road transport services. The delivery deadlines mentioned when placing the order are given as a rough indication and are to be understood after the Client approves the PC. In the event of late delivery, the Client can only cancel the order after having sent a formal notice by registered post to AHK, which remains unheeded for more than 15 days after being sent. The Client must provide accurate and thorough shipping/delivery information to AHK in the order. The Client is responsible for informing AHK in writing of any changes regarding the information before the order is shipped to avoid any late delivery or avoid the Products from getting lost. The Client undertakes to take delivery of the goods within a maximum time period of 60 minutes (time elapsed from the arrival to the departure of the road transporter). Beyond this time, the Client could be penalised by 50.00€ for each hour exceeded. If the delivery is made directly to the Client’s final consumer, AHK will sent the Client, by mail, two copies of the goods delivered for reference purposes. This service is invoiced with the flat rate of 9.00€ (tax not incl.), plus the 2 samples provided if the net unit price is equal to, or over 2.00€ (tax not incl.). The Products are in compliance with the relevant regulations in France. AHK shall in no manner be liable in the event of non-respect of the legislation of the country to which the Product will be delivered. It is up to the Client to check with all appropriate, country-specific authorities regarding delivery as well as the possibility of importing or using the Products the Client wishes to order.
8. COMPLAINTS (PRODUCTS NOT-DELIVERED/LOST/ DAMAGED/NON-COMPLIANT)
In the event the Products are damaged, lost, or non-compliant, it is up to the Client or addressee of the Products chosen by the Client, as recipient of the Products, to check them and: (I) to immediately express reservations upon collection or on the transporter’s delivery slip, and (II) send a claim by e-mail, followed by a written confirmation sent by registered post with proof of delivery to the AHK Sales Department within 3 days of the collection or delivery. After these 3 days, no claims will be accepted, regardless the obligation which AHK failed to fulfil.
Any requests must be backed with tangible proof such as photographs sent to AHK. Should any claims be made, the Client must keep the Products, so as to allow AHK to also check the defects directly or to use a specifically chosen expert, when seen fit. No claim will be deemed admissible if the Products are not kept by the Client. Reasonable differences between the models presented and the Products sold are accepted by the Client, the latter having no right to claim any compensation. AHK will refuse any claims relating to Products which were used inappropriately, or which have not been the subject of any reservations from the Client within the required deadline mentioned above. It is expressly stipulated that the delivered Products will be more or less 5% of the quantities ordered, which the Client will expressly accept. If the Products sold by AHK are found to be non-compliant and if this definitely and unmistakably ascribable to AHK and recognised as such by both Parties, AHK undertakes to repair or replace the defective products, depending on what they deem the most appropriate, as soon as possible. The Products must be returned upon request from AHK and if the products cannot be repaired or replaced, AHK will give the Client a credit note. The Client may never, on the basis of a claim, retain all or part of the amounts they owe AHK, or attempt to obtain personal compensation through any other means. It is expressly agreed that the full liability of AHK only covers the replacement or repair of the defective products or the issuing of a credit note.
9. CLIENT LIABILITY AND GUARANTEE
The Client guarantees he has the necessary rights to produce the Products, notably to copy brands and logos on the Products they order. The Client therefore undertakes to readily provide, upon AHK’s first request, all documents proving their trademark rights or any other protected rights needed for the requested reproduction, or the express authorisation of the holder to do so. In accordance with this guarantee, the Client must bear all expenses, additional fees and other consequences resulting from a failure to fulfil this guarantee. In this regard, AHK shall never be held responsible in the event these Products are not delivered, notably following a procedure of retention in customs, and the Client will be obliged to pay for the order in full. AHK strongly recommends the Reseller to adopt this same policy with their final consumer.
10. INTELLECTUAL PROPERTY RIGHTS ON THE PRODUCTS
10.1 Product production without creations by AHK
Assuming that all the creative documents required to produce the Products are given by the Client and that no creative work has been undertaken by AHK, the intellectual property rights on the Products belong to the Client. The specific mould, which is used to produce the Products, cannot be used by AHK to make Products for other clients then the Client. Nevertheless, the Client waives any claims relating to the physical ownership of the mould, which is kept by the AHK supplier, the latter being allowed to destroy it within the 2 years following the receipt of the Products by the Client. So, AHK is expressly allowed to reproduce the Products on their Website, in their Catalogue or any other communication support in order to promote the activities of their company. The aforementioned licence is granted, worldwide, for a 5-year period counting from the Product order. The Product prices, given in article 6, take into account the price of the aforesaid licence. Therefore, no additional deductions will be made for the Client.
10.2 Product Production with creations by AHK
Assuming the work by AHK on the Products leads to a copyright protection in their favour (the “Creative Work”), the intellectual property rights relating to the Creative Work will be retained by AHK. The physical ownership of the mould is kept by AHK. AHK thus grants the Client with a copyright licence for the Creative Work which includes:
- Reproduction Right: the right to reproduce or have reproduced all or some of the Creative Work, on all or any medium, especially paper, magnetic, digital, CD Rom, or any other IT or electronic devices, known or unknown, present or future, and notably for means to use the Products, and this without any quantity limits;
- Performance Right: the right to broadcast, or have broadcast, all or some of the Creative Work, in whatever manner, using any method, regardless, known or unknown, and notably by all the telecommunications networks, present or future, such as the Internet, or any other means of TV broadcasting, and this on any medium, in all formats, directly or through an intermediary of a third party or organisation;
- Adaptation Right: the right to adapt or have adapted some or part of the Creative Work;
- Right to Use: the right to use or have used by any third parties of their choice all or part of the Creative Work, for any purpose, using any means and any media;
- Publishing Right: the exclusive right to publish or have published all or part of the Creative Work by third parties;
- Marketing Right: the right to sell or have sold all or part of the Creative Work, using any procedures, free or charge or paying, to all third parties;
- Operating Right: the right to reassign to third parties all or part of the Creative Work, regardless the form and notably though a transfer, licence or any sort of contract, in any form, all or part of the assigned rights, on a temporary or definitive basis.
This operating licence is granted for the whole world, for the legal protection period of the Creative Work.
The price of this licence is automatically included in the Products price calculated according to the terms in article 6.
11. OWNERSHIP RESERVATION
The Products sold remain the property of AHK until full payment of the price, for all amounts due by the Client (principal, interests, taxes and accessories). Nonetheless, the risk transfer occurs upon delivery of the Products. The Client is obliged at any moment to allow the products to be identified and claimed. If the Client is involved in a judicial settlement or court-ordered liquidation, AHK reserves the right to claim, within the framework of the collective proceedings, the Products which remain unpaid. In addition, the Client must immediately inform AHK of any measures taken by third parties on the Products, including the seizures.
12. PERSONAL DATA
13. INTELLECTUAL PROPERTY RIGHTS OF THE SITE
The Site is the exclusive property of AHK (web pages, images, script sources, etc). AHK products, AHK brands and more generally all brands, illustrations, pictures, drawing and models and logotypes appearing on the Site and/or the products sold by AHK, are the exclusive property of AHK or a third party which allowed AHK to reproduce them on their Site. The reproduction of Products visible on the Site are used solely as an indication to illustrate the business activities of AHK, with the prior authorisation of the copyright owners of these Products, if required. The Client is therefore not allowed to release or reproduce elements from the Site, partially or in full, in any form, without the prior and express written approval by AHK.
14. LIMITATION OF LIABILITY CLAUSE AND EXCLUSION OF WARRANTIES
AHK guarantees, only for orders fully approved by AHK, that the Products will be: (I) in compliance with their description and specifications, and (II) in compliance with the European regulations at the time they are made available.
AHK makes no other guarantee. More specifically, AHK cannot be held liable in the event these Products are used without respecting their recommended use by AHK. Pursuant to the present T&C, AHK’s liability will be limited solely to direct prejudice, damages, and interest, and within the limit of an amount which shall not exceed the value of the order having caused the prejudice.
15. FORCE MAJEURE
AHK will in no manner be liable in the event that it becomes impossible for them to fulfil their obligations due to the event of a force majeure or fortuitous occurrence (“Force majeure”). The events which could contractually be considered as being caused by force majeure, which are deemed as legitimate reasons to stoppage or suspension of AHK’s obligations, without recurse for the Client, are all incidents which affect the production and storage of its Products, the total or partial shutdown of raw material or energy supplies, notably transporter failure, fire, floods, machine breakdowns, total or partial strike, administrative decisions, third party issues, ware, and in general, all unpredictable and uncontrollable events defined by the law and jurisprudence in the event of a force majeure. In such circumstances, AHK will inform the Client, in writing, within 72 hours from the occurrence date of the event, being that the contractual obligations of AHK are suspended automatically, without any compensation, counting from the date of the occurrence of the event. If the event should continue for more than 60 days counting from its initial occurrence, all orders passed between AHK and the Client can be cancelled by the first party to act without either of the Parties being able demand any compensation. The present article does not waive the Client of the obligation to pay for any Products already received. This cancellation is effective upon the date of the first presentation of the registered mail with proof of delivery which refers to the cancellation of the aforementioned order.
16. RESOLUTORY CLAUSE
In the event the Client does not fulfil any one of his obligations, notably the payment of the price at the due date, AHK may, eight (8) days after sending a formal notice by registered post with proof of delivery which remains unheeded, deem the Client at fault and consider the sales as automatically cancelled, independently from any potential future compensations.
The fact that AHK refrains from demanding at a given moment the execution of any of the provisions of these T&C cannot be interpreted as a waiver of the right to invoke said total or partial non-execution later.
18. VALIDITY OF THE T&C
If any of the provisions of these T&C is declared partially or totally null and void, the other stipulations and other rights and obligations arising from these T&C will remain unchanged and continue to be applicable, except if it refers to a significant clause which led one of the Parties to conclude the sales contract.
19. ACCOUNT OPENING AND CANCELLATION
Any modification or the present terms and conditions of sale will result in the opening on an account with prior agreement from the AHK credit insurance company. The specific conditions granted will be the subject of a written agreement issued by AHK and accepted by the Client. The account will be willingly cancelled in the event of failure to respect the specific conditions implemented or in the event of an approval cancellation by the AHK credit insurance company.
20. APPLICABLE LAW – JURISDICTION
The present T&C are subject to French law. In the event of an unresolved dispute within a one-month period after one of the parties has been issued a formal notice, and subject to the applicable public policy provisions regarding legal competence, only the jurisdiction of the Colmar court of appeal are competent to settle any potential dispute relating to the present T&C.