Terms and Conditions

Preamble

The purpose of these general terms and conditions of sale is to define the conditions under which NOSMOKE markets light electric vehicles under the KATE brand to its consumer customers located in the approval area of said vehicles.

The customer is obliged to read these terms and conditions carefully before using the vehicles offered by NOSMOKE. These terms and conditions contain important information about the customer's rights and obligations, as well as NOSMOKE's limitations and exclusions of liability.

NOSMOKE is a société par actions simplifiée (simplified joint stock company) with capital of 1,972,000 euros, headquartered at 132 avenue du 25 août 1944, 79140 CERIZAY (France), registered in the NIORT Trade and Companies Register under number 507 477 461.

Telephone: +33 (0) 5.49.80.38.02. Email: info@kate.tech

Website: www.kate.tech

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1. Definitions

Capitalized terms and expressions used herein shall have the following meanings:

• "Customer" means any natural person of legal age purchasing one or more Vehicles offered by NOSMOKE and who, acting for purposes that do not fall within the scope of his professional activity, has the status of consumer within the meaning of the French Consumer Code.
• "General Conditions" refers to the present general sales conditions, applicable to the relationship between NOSMOKE and the Customer.
• "Special Conditions" means the special conditions referred to in Article 4.2concluded between NOSMOKE and the Customer and whose purpose is to supplement or amend these General Terms and Conditions, in particular by specifying the characteristics and quantity of the Vehicles supplied to the Customer as well as the pricing and delivery conditions. The Special Conditions take the form of a quotation, drawn up by NOSMOKE, on the basis of the needs expressed by the Customer, and accepted by the Customer.
• "Contract" means both the General Conditions and the Special Conditions. The conclusion of the Contract is evidenced by the Customer's confirmation of the Special Conditions, implying his full and unreserved acceptance of the General Conditions.
• "Premises" means the premises of NOSMOKE, located at the address of NOSMOKE's registered office indicated in the Preamble, or any other address specified in the Special Conditions.
• "NOSMOKE" refers to the NOSMOKE company, whose legal notice appears in the Preamble.
• "Website" refers to the website hosted at the following address: www.kate.tech.
• "Vehicle" means the vehicle(s) offered for sale by NOSMOKE and purchased by the Customer.

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2.  Acceptance of Terms and Conditions

The General Conditions determine the contractual conditions applicable to the relationship between NOSMOKE and the Customer.

The Customer declares that he/she is a natural person of legal age with the capacity to enter into the Contract.

By purchasing a Vehicle, the Customer confirms its full and unreserved acceptance of the Terms and Conditions, which is expressly recognized by the Customer, who waives, in particular, to rely on any other document that has not been established or accepted by NOSMOKE and which would therefore be unenforceable against it. If the Customer does not accept the General Conditions, he is requested not to proceed with the purchase of Vehicles offered by NOSMOKE.

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3.  Vehicles

Under the KATE brand, NOSMOKE markets four-wheeled electric vehicles (notably categories L6e, L7e and N1, as classified by the French Highway Code).

All vehicles offered for sale by NOSMOKE comply with the regulations in force in the area where they have been approved (European Union).

The vehicles offered by NOSMOKE are the subject of a general presentation on the Website. The vehicle provided to the customer by NOSMOKE is specified in the Special Conditions.

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4.  Contract formation

4.1.    Customer needs

Before placing an order for a Vehicle, the Customer is asked to check that the Vehicle corresponds to his or her needs.

Without prejudice to its duty to advise, NOSMOKE cannot be held responsible for the Customer's failure to determine its needs.

4.2.    Special conditions (quote)

The Customer orders a Vehicle according to the following procedure:

(i) On the Website, the Customer configures the desired Vehicle and enters his/her identity and contact details;

(ii)    On this basis, NOSMOKE draws up an estimate and sends it to the Customer by e-mail, to the address provided by the Customer;

The estimate established by NOSMOKE has a validity of fifteen (15) days from its issuance.

(iii)   If you have any questions about the quotation, you can request a telephone appointment with a NOMOSKE sales representative;

(iv)    If the quotation is acceptable to the Customer, he signs it and sends it back to NOSMOKE by e-mail or by any other written means allowing to acknowledge receipt.

Acceptance of the quotation by the Customer entails formation of the Contract and acceptance by the Customer of the General Terms and Conditions.

NOSMOKE reserves the right to refuse any subsequent modification of a quotation previously accepted by the Customer.

In any case, any subsequent modification of the terms agreed between the parties shall be the subject of a new quotation drawn up by NOSMOKE or of an amendment concluded between the parties.

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5.  Registration on the anti-solicitation list

NOSMOKE is or may be required to collect the Customer's telephone number.

In accordance with the French Consumer Code, the customer is informed that he/she may at any time register on the Bloctel opposition list.

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6.  Financial terms and conditions

6.1.    Price

The price of the Vehicle is specified in the Special Terms and Conditions and is based on the rates in force on the date of conclusion of the Contract referred to in Article 4.2.

Prices are given in euros and include all taxes, including VAT. Any change in the VAT rate will be reflected in the price of the vehicles.

The price does not include the cost of packaging, transport and delivery, unloading, insurance and any other additional charges that may apply. These costs are specified, where applicable, in the Special Conditions.

In the event of delivery outside the European Union, the Customer will be liable for all duties and taxes, in particular relating to customs clearance operations that may be necessary for the delivery of the Customer's order.

6.2.    Terms of payment

The price is payable in euros only, the exchange rate risk being borne exclusively by the customer.

Subject to the stipulations in the Special Terms and Conditions, payment of the price shall be made as follows:

(i) Payment, on the date of conclusion of the Contract, of a deposit equal to thirty percent (30%) of the total price (including VAT) of the order;

(ii)    Payment of the balance within seven (7) days of the invoice date and, in any event, before the Vehicle is shipped, delivered or made available, as referred to in Article 8.1.

Payment of the deposit will result in the immediate allocation of a chassis number for the Vehicle.

Notwithstanding the foregoing, NOSMOKE reserves the right to require the Customer to provide any guarantee of payment of the price on the date of conclusion of the Contract.

Subject to the stipulations in the Special Conditions, payment is made by the customer by bank transfer.

In order to avoid any risk of fraudulent payment, NOSMOKE reserves the right to ask the customer for any proof of identity.

Payments made by the Customer will be considered final only after effective receipt by NOSMOKE of the sums due.

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7.  No right of withdrawal

The Customer acknowledges that he/she is expressly informed that he/she has no right of withdrawal under the Contract, insofar as the order is not made "within the framework of an organized distance selling system" and that in any event the Vehicle delivered to the Customer constitutes a clearly personalized good for the sale of which the right of withdrawal does not apply.

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8.  Delivery

8.1.    Delivery terms and charges

The delivery of the Vehicle takes place in principle within NOSMOKE's premises by collection directly by the Customer or by a third party mandated by the latter.

No delivery can take place before NOSMOKE has validated the payment of the total amount of the order.

At the Customer's express request, NOSMOKE may deliver the Vehicle to the delivery point specified in the Special Terms and Conditions, using the carrier of its choice. Delivery by NOSMOKE can only take place in the approval area of the Vehicles.  

As stipulated in Article 6.1the following costs are the exclusive responsibility of the Customer: transport costs, costs of unloading at the point of delivery, insurance costs and all other ancillary costs relating to the transport and delivery of the Vehicle, in particular all duties and taxes relating to delivery outside the European Union.

In case of delayed or prevented delivery due to the customer, NOSMOKE reserves the right to invoice the customer for all costs incurred by NOSMOKE, including storage costs.

8.2.    Customer cooperation

The customer agrees to cooperate fully with NOSMOKE and to comply with customs formalities or those related to intra-Community trade.

8.3.    Delivery times

Delivery times are specified in the Special Conditions, whether delivery takes place at NOSMOKE's premises or at the delivery point specified in the Special Conditions.

These times are average times estimated according to the characteristics of the order concerned and the agreed delivery point.

This period runs from the date on which the following conditions are met: (i) conclusion of the Contract, (ii) payment of the deposit referred to in Article 6.2 and (iii) receipt by NOSMOKE of all elements and information necessary to process the Customer's order.

NOSMOKE undertakes to provide its best efforts to meet the deadlines specified in the Special Conditions and will inform the Customer as soon as possible of any delay that may occur in the delivery of the Vehicle.

In the event of late delivery, the Customer may terminate the Contract if, after having given notice to NOSMOKE to effect delivery within a reasonable additional period, the latter has not complied within this period. The Contract will be considered terminated upon receipt by NOSMOKE of the letter or writing informing it of such termination, unless NOSMOKE has performed in the meantime. NOSMOKE will then refund all sums paid for the order, no later than fourteen (14) days after the date on which the Contract was terminated.

In any event, NOSMOKE shall not be held responsible for failure to meet delivery deadlines due to force majeure or customer action.

8.4.    Transportation risks

The risks of loss and damage of the Vehicle are transferred to the Customer when the latter, or a third party designated by him, takes physical possession of the Vehicle, either at NOSMOKE's premises in case of pick-up by the Customer, or at the delivery of the Vehicle by the carrier in case of transport through NOSMOKE.

In accordance with article L. 133-3 of the French Commercial Code, NOSMOKE's recourse against the carrier, in case of damage or partial loss, is extinguished upon receipt of the transported goods if the consignee has not notified the carrier, by extrajudicial act or by registered letter, of his justified protest within three (3) days, not including public holidays. This period may be extended in certain circumstances.

Consequently, in order to allow NOSMOKE to preserve its rights against the carrier, the Customer is invited to (i) inform NOSMOKE, upon receipt of the Vehicle, in case of damage or partial loss, at the address info@kate.tech and (ii) report to the carrier concerned within three (3) days by registered letter.

In particular, in the event of damage to the parcel or the Vehicle, the Customer is invited (i) to refuse the parcel, indicating "Refused: damaged product" on the delivery receipt, or (ii) if the Customer nevertheless accepts the parcel, to make any necessary reservations on the delivery receipt, indicating the damage to the Vehicle.

8.5.    Customs clearance

It is the Customer's responsibility to obtain information, in particular from the competent local authorities, on the formalities and customs clearance operations that may be necessary for the delivery of the Vehicle ordered.

The Customer expressly acknowledges that he/she is responsible for carrying out any formalities and customs clearance that may be required for the delivery of the Vehicle ordered.

All costs, duties and/or taxes arising from these customs clearance operations are borne exclusively by the customer.

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9.  Customer obligations

It is the customer's responsibility to identify and precisely define his needs.

It undertakes to :

(i) Follow NOSMOKE and manufacturer's recommendations regarding batteries, safety, storage, assembly, use, maintenance and inspection of the vehicle;

(ii)    Inform NOSMOKE immediately, if he has knowledge of a malfunction of the Vehicle.

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10. NOSMOKE's liability

Without prejudice to any mandatory provision of legal or regulatory origin, in particular legal warranties, NOSMOKE's liability is limited to proven fault or negligence of the latter and is limited to direct damages to the exclusion of any indirect damage of any nature whatsoever, including in particular damage to property of the Customer, loss of profits, commercial disturbance, demand or claim of third parties.

NOSMOKE shall not be held responsible for the Customer's failure to determine his needs or for incomplete or erroneous information provided by the Customer.

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11. Legal warranties

The customer benefits from the legal guarantee of conformity, in accordance with articles 1604 et seq. of the French Civil Code and articles L 217-1 to L 217-32 of the French Consumer Code, as well as the legal guarantee of hidden defects, in accordance with articles 1641 to 1649 of the French Civil Code.

In the appendix, you will find the box provided in the appendix to article D 211-2 of the French Consumer Code, informing the consumer of the procedures for implementing legal warranties.

The Customer wishing to return a Vehicle under a legal warranty must first inform NOSMOKE by email at info@kate.tech or by post at the address given in the Preamble.

NOSMOKE will acknowledge receipt of the Customer's request and provide the necessary instructions for the return of the Vehicle.  

Within the framework of the exercise of the legal guarantee of conformity, NOSMOKE will proceed to the refunding:

(i) Upon receipt of the Vehicle or proof of return of the Vehicle by the Customer and no later than fourteen (14) days thereafter;

(ii)    By using the same means of payment as the one used by the Customer for the initial transaction, unless another means of payment has been expressly agreed between the parties and in any case at no additional cost.

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12. Commercial warranty

The Customer benefits from the manufacturer's warranty, detailed below, on Vehicles purchased from NOSMOKE.

NOSMOKE guarantees the Vehicle, parts and labor, for a period of twenty-four (24) months, without mileage limit, from the date of availability at NOSMOKE's premises. The battery is guaranteed for twenty-four (24) months from the same date.

The terms and conditions of the commercial warranty are set out below.

The Customer must inform NOSMOKE of any defect within seven (7) days of its discovery by the Customer. This information shall be sent to NOSMOKE by e-mail to info@kate.tech and shall be confirmed by registered letter with acknowledgement of receipt, to the address indicated in the Preamble of these terms and conditions.

Failing this, the Customer may be deprived of the benefit of the present warranty.

The commercial warranty does not apply in the following cases:

(i) Any negligence or fault on the part of the Customer, in particular any breach by the Customer of the obligations referred to in Article 9 ;

(ii)    Any modification, repair or disassembly of the Vehicle outside of NOSMOKE authorized repairers or with spare parts not approved by NOSMOKE ;

(iii)   Non-compliance with NOSMOKE's or the manufacturer's recommendations concerning safety, storage, assembly, use, maintenance and inspection of the Vehicle;

(iv)    The use of parts, accessories or fluids not approved by NOSMOKE ;

(v) Modification of the Vehicle without NOSMOKE's prior authorization;

(vi)    Negligence, damage, late declaration of the defect, improper use of the Vehicle ;

(vii)   Insufficient or random battery recharging resulting in damage to one or more batteries or a significant drop in recharging capacity;

(viii)  Replacement of parts subject to normal wear and tear (in particular tires, wiper blades, brake linings and discs, shock absorbers, batteries);

(ix)    Damage caused by natural phenomena (particularly hailstorms and floods);

(x) Damage resulting from road accidents;

(xi)    Routine maintenance of periodic adjustments and overhauls, as well as parts for everyday use.

In the event of an unjustified request for the implementation of the present warranty by the Customer, in particular (i) in one of the aforementioned cases of exclusion of warranty and/or (ii) when the parts and the Vehicle are free of defects, the costs incurred by NOSMOKE within the framework of the implementation of the present warranty, in particular the costs of expertise, will be invoiced to the Customer.

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13. Proof agreement

In the absence of proof to the contrary, the data recorded in NOSMOKE's computer system constitutes proof of all transactions concluded with the Customer. The proof of the financial transactions concluded with the Customer is materialized by the data recorded within the payment system chosen by the Customer.

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14. Processing of personal data

In accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 (referred to as the "General Data Protection Regulation" or "GDPR") and Law No. 78-17 of January 6, 1978 as amended, relating to data processing, files and freedoms, NOSMOKE is required, as part of the performance of the Contract, to collect from the Customer personal data concerning the Customer.

These data are processed by NOSMOKE, necessary (i) for the performance of the Contract and, where appropriate, the execution of pre-contractual measures taken at the request of the Customer, (ii) to comply with legal and regulatory obligations incumbent on NOSMOKE and / or (iii) for the purposes of the legitimate interests of NOSMOKE.

Any individual whose personal data is processed as described above has the right to access, rectify, delete, port, limit or object to the processing of such data.

More complete information is available in NOSMOKE's Privacy Policy, attached hereto [and accessible on the Website].

Any request for further information or to exercise the aforementioned rights should be sent via the contact form accessible on the Website, by e-mail to: rgpd@kate.tech or by post to: NOSMOKE - RGPD, 132 avenue du 25 août 1944, 79140 CERIZAY (France).  

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Without prejudice to the foregoing, any dispute which may arise in connection with the formation, performance or interpretation of this Contract shall be submitted to the courts under the conditions of ordinary law.

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15. Intellectual property

Trademarks, corporate names, trade names, or domain names used by NOSMOKE to designate the Vehicles and associated activities are the full and complete property of NOSMOKE.

(Art. 11 of the General Terms and Conditions)

More generally, all other intellectual property rights relating to the Vehicles, such as drawings and models, patents, plans, commercial offers or other quotations, studies, as well as any methodology, know-how, tools and techniques, also remain the exclusive property of NOSMOKE or its partners.  

No license of use is granted to the Customer under these Terms and Conditions.

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16. General provisions

16.1.   Partial invalidity

The nullity of a contractual clause does not entail the nullity of the General Terms and Conditions, with the exception of an impulsive and determining clause that led one of the parties to enter into the contract.

16.2.   Modification of the General Conditions

NOSMOKE reserves the right to modify the Terms and Conditions at any time. Consequently, the General Conditions applicable are those in force at the date of conclusion of the Contract.

16.3.   Force majeure

NOSMOKE may suspend or terminate performance of the Agreement in the event of circumstances falling within the scope of force majeure, as defined and interpreted by French law and courts.

For the purposes hereof, it is agreed that the following events shall be considered as force majeure: natural disasters, epidemics, strikes and lock-outs of all or part of NOSMOKE's personnel or of its usual suppliers or carriers, difficulties or disruption in the supply of materials necessary for the supply of Vehicles.

NOSMOKE can not be held responsible in case of non-performance or improper performance of its obligations, which is due either to force majeure or the act of a third party unforeseeable and irresistible.

16.4.   Applicable law

The General Terms and Conditions, and more generally the Contract, are governed by French law, to the exclusion of the provisions of the Vienna Convention on Contracts for the International Sale of Goods of April 11, 1980.

The foregoing applies without prejudice to the right of customers residing in a European Union member state other than France to benefit from the protective provisions of their country of residence.

16.5.   Mediation - Jurisdiction

For any dispute related to the conclusion or the execution of the Contract, the Customer must, before any other step, contact NOSMOKE in order to seek an amicable solution. The Customer may send a written complaint (i) by e-mail to: info@kate.tech or (ii) by post to the address given in the Preamble.

In the absence of an amicable solution, the Customer may, in accordance with the French Consumer Code, have recourse to conventional mediation, in particular with the Commission de la médiation de la consommation or with existing sectoral mediation bodies, or to any alternative dispute resolution method in the event of a dispute.

Le Médiateur FNA

Immeuble Axe Nord

9 & 11 avenue Michelet

93583 Saint Ouen Cedex

Website: www.mediateur.fna.fr

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Customers, particularly those residing in a European Union Member State other than France, may also contact the European Consumer Centre (ECC) in their country of residence. The list of European Consumer Centers is available at the following address:

https://www.europe-consommateurs.eu/fr/nous-connaitre/liste-des-centres-europeens-des-consommateurs/  

Without prejudice to the foregoing, any dispute which may arise in connection with the formation, performance or interpretation of this Contract shall be submitted to the courts under the conditions of ordinary law.

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Appendix

Appendix to article D 211-2 of the French Consumer Code

(Art. 11 of the General Terms and Conditions)

Consumers have a period of two years from the date of delivery of the goods in which to invoke the legal warranty of conformity in the event of a lack of conformity. During this period, the consumer is only required to establish the existence of the lack of conformity, and not the date of its appearance.

Where the contract for the sale of goods provides for the supply of digital content or a digital service on a continuous basis for a period of more than two years, the legal warranty applies to this digital content or digital service throughout the period of supply. During this period, the consumer is only required to establish the existence of the lack of conformity affecting the digital content or service, and not the date of its appearance.

The legal warranty of conformity obliges the professional, where applicable, to provide all updates necessary to maintain the conformity of the good.

The legal guarantee of conformity gives the consumer the right to repair or replace the good within thirty days of his request, at no cost and without any major inconvenience to him.

If the good is repaired under the legal warranty of conformity, the consumer benefits from a six-month extension of the initial warranty.

If the consumer asks for the good to be repaired, but the seller requires it to be replaced, the legal warranty of conformity is renewed for a period of two years from the date of replacement of the good.

The consumer may obtain a reduction in the purchase price by keeping the good, or terminate the contract by obtaining a full refund in exchange for the return of the good, if:

1. The professional refuses to repair or replace the good;
2. Repairs or replacements will be made within 30 days;
3. The repair or replacement of the good causes a major inconvenience for the consumer, in particular when the consumer definitively bears the cost of taking back or removing the non-conforming good, or if he bears the cost of installing the repaired or replacement good;
4. The property's non-conformity persists despite the seller's unsuccessful attempt to bring it into conformity.

The consumer is also entitled to a reduction in the price of the goods, or to rescission of the contract, if the lack of conformity is so serious as to justify immediate price reduction or rescission of the contract. In such cases, the consumer is not obliged to request repair or replacement of the goods beforehand.

The consumer is not entitled to rescind the sale if the lack of conformity is minor.

Any period during which the product is immobilized for repair or replacement suspends the remaining warranty period until delivery of the repaired product.

The rights mentioned above result from the application of articles L. 217-1 to L. 217-32 of the French Consumer Code.

A seller who obstructs the implementation of the legal guarantee of conformity in bad faith is liable to a civil fine of up to 300,000 euros, which may be increased to 10% of average annual sales (article L. 241-5 of the French Consumer Code).

The consumer also benefits from the legal guarantee against hidden defects, in application of articles 1641 to 1649 of the French Civil Code, for a period of two years from the discovery of the defect. This warranty entitles the consumer to a price reduction if the good is kept, or to a full refund in exchange for the return of the good.

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