Customer service General terms and conditions

General terms and conditions Merida Benelux B.V. Dealer (comments Nysingh July 2024)

This document contains Merida Benelux B.V.'s general terms and conditions. By signing this document you declare to have taken note of these general terms and conditions, to have received them and to agree to their content and applicability. These general terms and conditions apply to every offer and every agreement on account of purchase and resale to consumers. This is already the case even if in the future these general terms and conditions are not always explicitly declared applicable.

Art. 1 Definitions

The following definitions shall apply in these general terms and conditions:

Merida: Merida Benelux B.V., with its registered office in Apeldoorn.
Buyer: Any (legal) person, not being a consumer, who has concluded or wishes to conclude an agreement with Merida.
Consumer: a buyer who is a natural person and does not act in the exercise of a profession or business.

Article 2 General

These general terms and conditions shall apply to every offer and every agreement between Merida and the Buyer insofar as these general terms and conditions have not been deviated from by the parties in writing. Unless agreed otherwise in writing, Merida shall not accept general terms and conditions of the Buyer.

Article 3 Offers.

Any offer issued by or on behalf of Merida shall be without obligation. Offers shall be valid for 30 days unless otherwise indicated.
Each offer shall be based on execution of the Agreement by or on behalf of Merida under normal circumstances and during normal working hours.

Article 4 Agreement

The Agreement shall be entered into in writing and shall come into effect on the day on which Merida signs the Agreement or, in the absence of a written Agreement, on the day on which Merida commences the actual execution of the Agreement. E-mail and fax messages shall be considered equivalent to written documents.
Promises by and agreements with subordinates of Merida, if and insofar as they do not have the power of representation, shall not bind Merida until and insofar as they have been confirmed in writing by its Director.

Article 5 Price

The prices quoted or agreed by Merida are exclusive of turnover tax and other government levies applicable to the sale and delivery and are based on delivery ex factory, which is understood to mean Merida's business premises or warehouse. Where one of the (other) "Incoterms" has been agreed as the delivery condition, the Incoterms applicable at the time of conclusion of the Agreement shall apply. Merida shall be entitled to increase the price with delivery costs.
Merida shall be entitled to change prices unless otherwise agreed in writing. In the event of a price change, the Buyer shall be entitled to dissolve the concluded agreement by means of a written statement if there is a price increase of more than 10°o. The dissolution must take place immediately after the Buyer learns of the price increase. If a price increase is a consequence of a statutory or other government measure, Merida shall be entitled to pass the price increase on to the Buyer, even if it has been agreed that the price is fixed, without this leading to a right of dissolution for the Buyer.

Art. 6 Drawings, calculations, descriptions, models, tools, etc.

Information mentioned in catalogs, websites, images, drawings, size and weight specifications and the like shall only be binding between Merida and the Buyer if and insofar as they have been expressly included in an agreement signed by the Parties or an order confirmation signed by Merida.
The offer issued by Merida, as well as the drawings, manuals, calculations, software, descriptions, models, tools and the like produced or provided by it, shall remain its property, regardless of whether any costs have been charged to the Buyer for this. The Buyer guarantees that the aforementioned documents shall not be copied, shown to third parties, made known or used other than with Merida's written permission.

Article 7 Delivery and delivery time

An agreed delivery time shall not be a deadline unless the Parties have expressly agreed otherwise in writing. If delivery is not made on time, the Buyer must therefore give Merida notice of default in writing.
The delivery time shall commence on the latest of the following dates:
The day on which the Agreement is concluded;
The day on which Merida receives the documents, information, permits etc. necessary for the execution of the agreement.
The delivery time shall be based on the working conditions applicable at the time the agreement was concluded and on timely delivery of the materials ordered by Merida from third parties for the execution of the agreement. If a delay arises through no fault of Merida's as a result of a change in said working conditions or because materials ordered by Merida for the execution of the agreement are not delivered on time, the delivery time shall be extended to the extent necessary.
Without prejudice to the provisions elsewhere in these terms and conditions with respect to extending the delivery time, the delivery time shall be extended by the duration of the delay that arises as a result of the Buyer's failure to comply with any obligation arising from the Agreement or cooperation required from it with respect to the execution of the Agreement.
Buyer is obliged to take delivery of purchased goods at the time they are made available to him according to the agreement, or are delivered, whether or not the delivery time has been extended. If Buyer refuses to take delivery or fails to provide information or instructions necessary for delivery, the goods will be stored at Buyer's expense and risk. In this case, the Buyer shall owe Merida all additional costs, including in any case storage costs.

Article 8 Retention of title.

Merida shall remain the owner of all items it has delivered or will deliver to the Buyer under any agreement until the Buyer has fully complied with the consideration(s) relating to all such items. If Merida has performed or should perform services under any such agreement(s), the items referred to in the previous sentence shall remain Merida's property until the Buyer has also fully satisfied Merida's claims relating to the consideration(s) in respect thereof. The retention of title shall also apply to claims that Merida obtains against the Buyer due to non-compliance by the Buyer with such agreement(s).
If the law of the country of destination of the purchased Items has more far-reaching options for the retention of title than stipulated in paragraph 1 above, these more far-reaching options shall be deemed to have been stipulated for the benefit of Merida between the parties, on the understanding that if it cannot be objectively determined to which more far-reaching rules this stipulation relates, the stipulation in paragraph 1 above shall continue to apply.
Items delivered by Merida that fall under the retention of title may only be resold within the framework of normal business operations. In the event of bankruptcy, suspension of payments or (provisional) application of the statutory debt rescheduling scheme of/to the Buyer, reselling within the framework of normal business operations shall also not be permitted. Furthermore, the Buyer is not authorized to pledge the goods or to establish any other right on them.
At Merida's first request, the Buyer shall establish an (undisclosed) pledge for Merida on delivered items whose ownership has been transferred to the Buyer by payment and which are still in the hands of the Buyer, as additional security for claims that Merida may have on the Buyer for whatever reason. The right included in this paragraph shall also apply with respect to items delivered by Merida that have been treated or processed by or on behalf of the Buyer, as a result of which Merida has lost its retention of title.

5 If the Buyer does not comply with its obligations or there is a well-founded fear that it will not do so, Merida shall be entitled to remove or arrange the removal of delivered items subject to retention of title from the Buyer or third parties holding the item for the Buyer. The Buyer shall be obliged to provide all cooperation to this end on penalty of a fine of 10°o of the amount it owes per day. This shall not prejudice Merida's right to compensation.

If third parties wish to establish or exercise any right to the items delivered under retention of title, the Buyer must inform Merida as quickly as can reasonably be expected.
If a third party proceeds to pay the amount owed by the Buyer to Merida, this shall not result in the fulfilment of the suspensive condition of payment with respect to the retention of title created. Merida shall therefore retain its retention of title in this case.
After Merida has removed items subject to retention of title from the Buyer, the Buyer shall be credited for an amount equal to the purchase price applicable on the day of removal, but not exceeding the amount charged to the Buyer. Merida may deduct from the amount to be credited an amount for depreciation due to, for example, damage or aging and for costs incurred by Merida.
The Buyer undertakes to mark the items delivered under retention of title as Merida's property and to insure and keep insured against fire, explosion and water damage and against theft and to make the policy and proof of premium payment of this insurance available for inspection by Merida on demand.

Art. 9. Payment

Unless agreed otherwise in writing, payment must be made within 14 days after the invoice date. In the event of payment within 8 days after the invoice date or payment by direct debit, the Buyer shall be entitled to a discount if this has been agreed by Merida and the Buyer. After the expiry of 14 days after the invoice date without full payment having been made, the Buyer shall be in default; the Buyer shall owe an interest rate equal to the statutory commercial interest rate applicable in the mutual relationship between Merida and the Buyer as of the time of default.
Payment by the Buyer must take place without settlement.
Payments made by the Buyer shall always serve firstly to settle all interest and costs due and secondly to settle invoices that have been outstanding the longest, even if the Buyer states that the payment relates to a later invoice.
If the Buyer is in default with the payment of any claim against Merida, Merida shall be entitled to suspend the further execution of all current agreements between Merida and the Buyer until such payment has been made, while cash payment may also be demanded over the further delivery even if it had been agreed otherwise. This provision shall also apply if the Buyer disputes the claim. The Buyer shall not be entitled to suspend its payment obligation due to complaints.
If Merida takes collection measures against the Buyer who is in default, the costs related to such collection, with a minimum of 10°o of the outstanding amount, shall be borne by the Buyer.
The Buyer shall owe Merida the judicial costs incurred by Merida in all instances, unless these are unreasonably high.

Art. 10. Warranty (activities) and consumer delivery.

The Buyer shall only be authorized to sell Merida bicycles to consumers and only with the prior written consent of Merida to other Merida dealers.
Merida shall offer the consumer the following warranty for material defects and/or workmanship on Merida brand bicycles sold through Merida's webshop and delivered by it:

- lifetime frame breakage warranty on all carbon and aluminum Merida frames (except full suspension models from 140mm suspension travel);

- 5 years on rigid Merida forks made of carbon and aluminum;

- 3 years on frame breakage for all full-suspension Merida models from 140mm suspension travel;

- 1 year on frame breakage for all Dirtjump models and Merida labeled parts (not frames or forks);

- 1 year on paint and/or decals.

All parts (other than those mentioned in Article 10.2) are covered by the material defects and/or workmanship warranty of the respective supplier/brand and not by any Merida warranty.
The condition for warranty is that the bicycle has been used purposefully and has not been subjected to neglect, improper repair, improper maintenance, modifications, alterations, accident or other abnormal, excessive or improper use. Use in races, jumps or other forms of overloading is also not covered by the warranty. Only carbon frames of the type: road bike, cyclocross, MTB hardtail and full suspension up to 100 mm are covered by warranty provided the regulations for use in racing are met.
Damage due to normal wear and tear is also not covered by Merida's warranty.
Buyer shall not provide to Consumer Buyer any warranty more or other than the warranty(s) provided by Merida to Buyer.
Merida's warranty shall only apply to the Buyer and, as the case may be, the first Consumer Buyer to make a warranty claim with the Buyer, all subject to the presentation of the original purchase receipt, transfer slip and bicycle pass, which must show the date of purchase, the address of the specialist dealer, model and frame number.
During the warranty period mentioned above under Article 10.2, Merida shall either repair a defective frame or part or, at its option, replace it with the same or most comparable model or part at that time. If Buyer performs warranty work in connection with a consumer buyer's warranty claim, the compensation to be paid by Merida for such work shall be capped at the amount determined by Merida from time to time for this purpose, and Merida shall not be required to pay such compensation if prior written approval has not been obtained from Merida to perform the warranty work.

Merida and Consumer Distance Purchase Buyer Obligations.

In the event a Consumer purchases a Merida bicycle through Merida's webshop, the bicycle in question shall be delivered by the Dealer of the Consumer's choice as specified at the time of purchase.
The Dealer shall deliver the relevant Merida bicycle in accordance with the requirements set by Merida, including getting the bicycle ready for use, providing service and handling warranty claims.
The Dealer (Buyer) is obliged to provide the Consumer with the commercial warranty certificate as referred to in Article 7:6a of the Civil Code no later than upon delivery to the Consumer.
Warranty claims must be made through the Dealer where the bicycle was delivered. Proof of purchase from Merida or an authorized Dealer is required for a request for replacement or repair. The purchase receipt, transfer receipt and bike pass, which must show the date of purchase, address of the dealer, model and frame number, must be presented to the Dealer.
If Buyer has since moved or the Dealer where Buyer's bicycle was delivered is no longer available, Merida shall provide information about the nearest authorized Dealer upon Buyer's request.

Art. 11. Product recall

If product recalls are initiated by Merida's suppliers, by the government or by Merida itself in connection with product defects that have arisen during manufacturing or packaging, the Buyer must deal with the relevant products in accordance with the recall procedure announced by Merida in such cases.

Art. 12. Liability

Merida's liability to the extent covered by the warranty described in Article 10 shall be limited to fulfilment of the warranty obligations described in Article 10.
In all other cases, Merida shall only be liable to the extent that this liability is covered by its liability insurance, and Merida's liability shall be limited to the amount of the payment made by the insurer. If the insurer does not pay out in any case or the damage is not covered by the insurance, Merida's liability shall be limited to the invoice value of the relevant items.
For defects that the Buyer should have reasonably been able to detect at the time of delivery of the products, any liability of Merida in this respect shall lapse if the Buyer has not reported such a defect to Merida no later than five working days after the time when the Buyer has detected or could have detected the defect.
Merida shall not be liable for consequential losses, such as losses in the form of loss of profits and other indirect losses, including, but not limited to, any liability of the Buyer to third parties and costs for retrieval or replacement of delivered items.
The Buyer shall indemnify Merida against claims for compensation from third parties in connection with items delivered by Merida to the Buyer or services performed for the Buyer, if and insofar as Merida would not have been liable towards these third parties pursuant to the Agreement and these General Terms and Conditions if these third parties had been the Buyer themselves.
The limitations of liability in these General Terms and Conditions shall also apply on behalf of third parties engaged by Merida for the execution of the Agreement.
Merida shall not be liable for any damage, of whatever nature, that has arisen because it has relied on incorrect and/or incomplete information provided by the Buyer. Merida shall not be responsible for verifying the accuracy or completeness of the information provided by Buyer. The Buyer shall indemnify Merida against third party claims in this respect.
The limitations of liability included in these terms and conditions shall not apply if the damage is due to intent or conscious recklessness of Merida or its managerial subordinates.
If e-bikes and/or loose (battery) chargers are delivered, the following obligation shall apply to the Buyer/Dealer in addition to the previous provisions:
The Buyer must ensure that all possible safety regulations/legal regulations and guidelines relating to (the storage of) batteries and battery chargers have been complied with, in the absence of which Merida shall not accept any liability for possible damage of any nature whatsoever as a result of, for example, overheating, fire and/or explosion, short-circuiting or other possible consequences of the Buyer's failure to comply with the (safety) measures that can reasonably be taken.

Art. 13. Force majeure

In these General Terms and Conditions, force majeure shall mean circumstances that prevent fulfilment of the Contract and which cannot be attributed to Merida. This shall include (if and to the extent that these circumstances make fulfilment impossible or unreasonably difficult): Strikes; a general lack of required raw materials and other items or services required for the realization of the agreed performance; unforeseeable stagnation at suppliers or other third parties on which Merida depends; the circumstance that Merida does not receive, does not receive in time or does not receive properly a performance that is important in connection with the performance to be delivered by itself; governmental measures, such as import or export restrictions, which prevent Merida from fulfilling its obligations in a timely and/or proper manner; excessive absenteeism; terrorist attacks; restriction or discontinuation of the supply of energy whether or not by public utility companies; fire; stagnation due to frostbite or other weather influences; computer failures and general transport problems.
Merida shall also be entitled to invoke force majeure if the circumstance that prevents (further) fulfillment occurs after Merida should have fulfilled its commitment.
If Merida is prevented from fulfilling the agreement as a result of force majeure, Merida shall be entitled either to suspend the execution of the agreement for a maximum of 6 months without judicial intervention, or to dissolve all or part of the agreement without Merida being liable for any compensation.
If Merida has already partially fulfilled its obligations when the force majeure occurs or can only partially fulfil its obligations, it shall be entitled to invoice the part already delivered or the part that can be delivered separately and the Buyer shall be obliged to pay this invoice as if it were a separate agreement.

Art. 14. Termination

Merida's claims against the Buyer shall become immediately due and payable in, inter alia, the following cases:

- if circumstances become known to Merida after the conclusion of the agreement that give Merida good reason to fear that the Buyer will not fulfil its obligations;

- in the event of liquidation, bankruptcy, suspension of payments or (provisional) application of the statutory debt rescheduling scheme of/on the Buyer;

- if Merida has asked the Buyer to provide security for fulfilment and this security has not been provided or is insufficient;

- if the Buyer is otherwise in default and does not fulfil its obligations under the Agreement. In the aforementioned cases, Merida shall be entitled to suspend the (further) execution of the agreement and/or to dissolve the agreement in full or in part, all this subject to the obligation of the Buyer to reimburse Merida for any losses suffered as a result and without prejudice to any other rights to which Merida is entitled.

If circumstances arise with respect to persons and/or material that Merida uses or tends to use for the execution of the agreement which are of such a nature that the execution of the agreement becomes impossible or so difficult and/or disproportionately expensive that compliance with the agreement can no longer reasonably be required, Merida shall be entitled to dissolve the agreement wholly or partially.

Art. 15. Registration

When reselling or delivering a bicycle, the Buyer shall be obliged to register the relevant bicycle or have its buyer register it on Merida's website.
If the Buyer does not ensure registration in accordance with the provisions of this Article, Merida shall be entitled to refuse warranty claims.

Art. 16. Applicable law, disputes.

Agreements between Merida and the Buyer shall be governed exclusively by Dutch law (with the exclusion of the Vienna Sales Convention (CISG)).
All disputes between Merida and the Buyer shall be settled exclusively by the competent (Dutch) court of the place where Merida has its registered office, notwithstanding Merida's authority to submit the dispute to the court with jurisdiction according to the law.