(1) The following Terms and Conditions of Sale and Delivery (hereinafter also referred to as: “General Terms”) shall apply to the entire business relationship between the Cubemos GmbH (“Cubemos”) and its customers (“Customer”), i.e. to all contracts, deliveries and other services, including advisory services and the supply of services (“Werkleistungen”) as well as pre-contractual obligations. These General Terms shall not apply as far as they are modified or excluded with the express consent of Cubemos. They shall apply to the present contract and also to all future business transactions, even if they are not separately agreed upon again.
(2) General terms and conditions of the Customer (e.g. terms of purchase) or other deviating agreements shall only apply, if they are acknowledged by Cubemos explicitly and in writing. Neither silence nor the delivery without Cubemos’ explicit objection shall be deemed as an acknowledgement.
2 Offer and Conclusion of the Contract
(1) Offers by Cubemos are always subject to change and non-binding, unless they are explicitly marked as binding or they contain a specific deadline for acceptance.
(2) Information on the object of delivery and on the services shall not constitute a guarantee, but are merely descriptions of the subject matter of the contract. Moreover, guarantees shall only be valid if they have been agreed upon in writing.
(3) Customers’ purchase orders or orders shall be considered as binding offers of the Customer and may be accepted by Cubemos within fourteen days after receipt by means of an order confirmation.
(4) A binding contract with the Customer shall be concluded upon the written confirmation of the order by Cubemos. Deviating individual agreements shall take precedence.
(5) Cubemos retains title or copyright to all their submitted offers and cost estimates as well as to drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources which were provided to the Customer. The Customer may not make neither these items themselves nor their contents accessible to third parties, disclose them, use or reproduce them himself or through third parties. Upon request by Cubemos, he shall return all of these items completely and destroy any copies he may have made if he no longer needs them in the proper course of business or if the negotiations do not result in the conclusion of a contract. The storage of data which was provided in electronic form for the purpose of usual data backup shall be excluded thereof.
(6) If and to the extent that Cubemos issued the order confirmation subject to a reservation, a binding contract shall be concluded. However, Cubemos shall have a special right of rescission in case Cubemos cannot obtain the components necessary for the performance of the contract from his upstream supplier. Cubemos shall not be obliged to obtain these components from suppliers with which Cubemos does not have any existing business relationship. As soon as Cubemos realises that the components cannot be obtained, the special right of rescission must immediately be exercised.
3 Contractual Obligations of Cubemos
(1) Cubemos shall only be obliged to produce a work (Sections 631 et seq. of the German Civil Code) if this has been expressly agreed upon. If Cubemos supplies movable things to be produced or manufactured, the sale of goods law shall apply (Section 652 of the German Civil Code).
(2) Cubemos shall not provide the Customer with any advisory services, unless this is explicitly agreed upon. To the extent that an agreement on the provision of advisory services was made with the Customer, the following shall apply: The advisory contract is a separate contract which is concluded in addition to the delivery contract. Cubemos only undertakes to provide an advisory activity, not an advisory success.
(3) As far as Cubemos provides services for plant and component maintenance, technical support or the like, it shall not owe the success, but merely the performance of a service (Section 611 of the German Civil Code).
4 Prices and Payment
(1) Agreed prices shall apply to the contractually agreed scope of supply and services. Additional and special services shall be invoiced separately.
(2) The value added tax (VAT) at the statutory rate shall always be added to the offered and agreed prices, as far as it is imposed.
(3) Insofar as the services offered were based on list prices by Cubemos and the service is performed more than four months after the conclusion of the contract, the valid list prices at the time of the delivery or the performance of the service shall apply.
(4) Unless otherwise agreed, Cubemos shall be entitled to insure the delivery item against breakage at the time of shipment on standard market terms for the account of the Customer. The Customer shall be charged 1 % of the net invoice value by Cubemos, at least EUR 0.50 per shipment.
(5) Unless otherwise agreed, payments shall be due upon receipt of the invoice and shall be transferred to the account of Cubemos, which is specified in the invoice, in full within 14 days. The date of the cash receipt by Cubemos shall be relevant.
(6) The Customer may only offset counterclaims against payment entitlements of Cubemos that are undisputed or have been declared final and absolute.
(7) The Customer shall only have the right to retain payments or other considerations to the extent that the counterclaims are based on the same contractual relationship and those counterclaims are undisputed or have been declared final and absolute. In case the Customer gives notice of defects, he may retain payments only to the extent that is proportionate to the defects that have occurred.
(8) If the Customer is in default of payment, Cubemos shall charge the interest rate for bank loans of a major European bank applicable to Cubemos in each case as damages due to late payments, but at least 9 percentage points above the base rate.
(9) Cubemos shall be entitled to effect outstanding deliveries and services only against advance payment or provision of security insofar as circumstances become known after the conclusion of the contract which are suitable to reduce the creditworthiness of the Customer significantly and put the fulfilment of Cubemos’ open receivables that result from the contractual relationship at risk.
5 Customer’s Cooperation Obligations
(1) The Customer shall participate as required in order to enable Cubemos to perform their services. In particular, the Customer is responsible for the approval of sample and construction models, their modification, the procurement of required regulatory certificates or permits as well as the approval of installation drawings.
(2) In case the Customer fails to participate or fails to participate properly, the obligation of Cubemos to provide their services shall not apply to the extent and for the period in which these depend on the previous participation of the Customer.
(3) Disadvantages and additional costs caused by the fact that the Customer fails to participate shall be borne by the Customer. Other statutory rights and claims of Cubemos remain unaffected.
6 Time of Delivery / Performance; Delay in Delivery and Impossibility
(1) The delivery/performance times proposed by Cubemos are not binding. This shall not apply if a fixed deadline or date has been explicitly confirmed by Cubemos or agreed upon with Cubemos. In case shipment was agreed upon, the delivery/performance times shall refer to the time of the transfer to the forwarder, the carrier or other third parties specified to carry out the shipment.
(2) Cubemos may extend the delivery/performance times by the period during which the Customer failed to meet his contractual obligations, particularly the participation agreed upon. The defence of unperformed contract and further claims or rights remain reserved to Cubemos. If the Customer requests a postponement of the delivery/performance time, the due date of the payment and other contractual obligations of the Customer shall not change. In this case the Customer shall become obliged to perform in advance.
(3) As far as Cubemos cannot meet the delivery/performance times due to reasons Cubemos is not responsible for (“unavailability of performance”), Cubemos shall immediately inform the Customers and, if possible, at the same time provide the expected new delivery/performance time. In particular, a case of unavailability of performance may occur if a supplier fails to deliver at all, fails to deliver according to the contract or fails to deliver to Cubemos on time. Cubemos shall be entitled to rescind the contract in whole or in part if the good or service is also not available within the new delivery/performance time; Cubemos shall immediately inform the Customer on the unavailability; a consideration that was already paid by the Customer will be refunded immediately.
(4) Unless otherwise agreed, Cubemos shall be entitled to make partial deliveries if the partial delivery can be used by the Customer within the scope of the contractually intended purpose, the delivery of the remaining goods ordered is ensured, there are no significant additional expenses or additional costs for the Customer (unless Cubemos agrees to cover these costs) and the partial delivery is not otherwise unreasonable for the Customer.
(5) The occurrence of default of delivery shall be determined in accordance with the statutory provisions. In each case, however, a reminder by the Customer is required.
(6) In the event that Cubemos is in default with a delivery or the performance of a service or if a delivery or service becomes impossible for Cubemos for whatever reason, the liability of Cubemos shall be limited to damages and reimbursement of expenses in accordance with the provisions of paragraph 11 of these General Terms.
7 Shipping, Passage of Risks, Acceptance
(1) As far as Cubemos uses delivery clauses in accordance with INCOTERMS (e.g. EXW), this relates to the INCOTERMS 2010.
(2) The type of shipping and packaging shall be in the dutiful discretion of Cubemos. The Customer shall bear the costs of packaging.
(3) The risk of accidental destruction or accidental deterioration shall pass no later than with the transfer of the delivery item to the forwarder, the carrier or other third parties specified to carry out the shipment (whereby the beginning of the loading process is relevant), even in the case that partial deliveries are made or Cubemos still owes other performances, such as shipping costs or delivery and installation. Insofar as an acceptance has to be carried out, this shall be decisive for the passage of risks. The Customer shall carry out the acceptance immediately after notification of readiness for acceptance has been given by Cubemos. If the shipment is delayed or does not take place due to circumstances not attributable to Cubemos, the risk shall be passed to the Customer on the day the delivery item is ready for shipment or, respectively, for acceptance and Cubemos has notified the Customer on this.
8 Extended Retention of Title
(1) The following agreed upon retention of title serves to secure all existing claims of Cubemos against the Customer resulting from the existing business relationship between Cubemos and the Customer, including balance claims from a current accounts relationship that is limited to the business relationship.
(2) The delivery item delivered to the Customer shall remain in the property of Cubemos until complete payment of all secured receivables. The retention of title shall include the delivery item as well as the good replacing the delivery item (“goods subject to retention of title”). On behalf of Cubemos, the Customer shall hold goods subject to retention of title in safe custody free of charge.
(3) As long as Cubemos has not rescinded the contract due to conduct in breach of the contract by the Customer (“enforcement event”), the Customer shall be entitled to process and to sell goods subject to retention of title in the proper course of business. The Customer is, however, not entitled to pledges or transfers of ownership by way of security. The right to rescind the contract shall only be exercised, if this is explicitly declared in writing by Cubemos. The assertion of the retention of title and the seizure of the delivery item by Cubemos shall not constitute the rescission of the contract.
(4) To the extent the Customer processes the goods subject to retention of title, it is agreed that the processing shall occur in the name and on the account of Cubemos as manufacturer and that Cubemos shall directly obtain ownership of the property or – if several substances of several owners are processed together or the value of the processed good is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created good in the proportion of the value of the goods subject to retention of title to the value of the newly created good at the time of processing. In case no such acquisition of ownership should occur, the Customer shall transfer his future ownership or co-ownership of the newly created good in the proportion mentioned above to Cubemos by way of security. If the goods subject to retention of title are combined or inseparably intermixed with other goods to one uniform good and one of these goods is to be considered the main good, Cubemos shall transfer co-ownership of the main good in the proportion mentioned in sentence 1 to the Customer as far as Cubemos owns the main good.
(5) In the event of resale of the goods subject to retention of title the Customer already assigns the resulting claim against the purchaser to Cubemos here and now, in the case of Cubemos’ co-ownership of the goods subject to retention of title in the proportion of the co-ownership share. Cubemos accepts this assignment. The same shall apply for other claims that take the place of or arise with regard to the good subject to retention of title, such as insurance claims or claims arising from unlawful act in case of loss or destruction. Cubemos grants the Customer the revocable right to collect the receivables assigned to Cubemos in its own name. Cubemos may revoke this authorization, provided that an enforcement event occurs, an insolvency of the Customer occurs or a request for the opening of insolvency proceeding has been filed or the insolvency proceedings have been opened or the opening has been refused for insufficiency of assets. The authorisation of Cubemos to collect the receivables itself remains unaffected by this; however, Cubemos undertakes not to collect the receivables as long as the Customer complies with his payment obligations and the Customer is not insolvent or the request for the opening of insolvency proceedings has been filed or the insolvency proceeding has been opened for the assets of the Customer or the opening has been refused due to insufficiency of assets. After setting a reasonable deadline, Cubemos may demand that the Customer discloses assigned receivables and their debtor, provides all information necessary for the collection, hands over the relevant documents and informs the debtors of the assignment. The Customer shall bear all costs incurred by this. If the assigned receivable against a third party debtor was added to a current invoice, the respective balance claim – including the final balance – shall be deemed as assigned to the amount of the value relevant to the individual assignment.
(6) In cases of seizures, applications to initiate an insolvency or requests for the opening of insolvency proceedings for the assets of the Customer, refusal of the opening of insolvency proceedings due to insufficiency of assets or other interventions of third parties or legal accesses of third parties on goods subject to retention of title the Customer shall immediately notify Cubemos in writing to enable Cubemos to assert its property rights. The Customer shall immediately inform the accessing third parties of Cubemos’ property rights, in particular in the event of seizure. The Customer shall be liable to Cubemos as far as the third party is not able to reimburse the related judicial and extra-judicial expenses incurred.
(7) Cubemos shall release the goods subject to retention of title as well as goods replacing these or receivables at its own choice upon written request, as far as their realizable value exceeds the value of Cubemos’ unsettled and secured claims against the Customer by more than 20 %.
(8) After an effective rescission due to conduct in breach of the contract (enforcement event), Cubemos shall be entitled to require the surrender of the goods subject to retention of title.
9 Defects and Supplementary Performance
(1) The warranty period shall be one year from delivery or, if acceptance is required, from the acceptance. This period shall not apply to claims for damages of the Customer arising from the injury of life, body or health or due to intentional or grossly negligent breaches of obligation of the seller or his vicarious agents, each of which shall lapse in accordance with the statutory provisions.
(2) The delivered goods shall be carefully examined immediately after the delivery to the Customer or to a third party determined by him. They shall be deemed accepted by the Customer with regard to obvious defects or other defects, which would have been discernible by an immediate, careful examination, if Cubemos does not receive a written notice of defects within seven working days after the delivery. Regarding other defects the delivery items shall be deemed as accepted by the Customer, if Cubemos does not receive a notice of defects within seven working days of the date the defect became apparent; if in normal use the defect was discernible for the Customer already at an earlier time, this earlier time shall be relevant for the beginning of the notice period. Upon request of Cubemos a rejected delivery item shall be returned to Cubemos carriage paid. In case of a justified notice of defects Cubemos shall compensate the costs of the cheapest dispatch route; this shall not apply as far as the costs increase because the delivery item is located at a different place than the place of intended use.
(3) In case of material defects of the delivered items, Cubemos shall be obliged and entitled to initially repair or replace at its own choice, whereby this choice shall be made within reasonable time. In the event of failure, i.e. the impossibility, unreasonableness, refusal or undue delay of the repair or replacement, the Customer may rescind the contract or reduce the purchase price appropriately.
(4) In the context of the replacement, the Customer is obliged to accept a new equivalent delivery item, which does not have the defect, provided this is reasonable for him. The replacement shall be deemed as reasonable if the delivery item is of the agreed quality and is suitable to fulfil the contractual obligations in an equivalent manner. In the case of replacement, the Customer shall return the defective item to Cubemos in accordance with the statutory provisions.
(5) In context with the repair, Cubemos shall be entitled to make at least two attempts to repair on account of the defect. The Customer shall support Cubemos in analysing and repairing the defects, in particular by specifically describing problems encountered, by fully informing Cubemos and by granting Cubemos the time and opportunity required for the repair. Cubemos shall be entitled to make the repair at a location of their choice.
(6) Cubemos shall be entitled to claim compensation for its expenses, in particular of travel expenses and staff costs, if it turns out in the course of repair work that the reported defect cannot be attributed to Cubemos.
(7) In the case of defects of components from other manufacturers which Cubemos cannot repair due to licensing or factual reasons, Cubemos shall assert warranty claims against the manufacturers and suppliers or assign them to the Customer. Warranty claims against Cubemos for such defects shall only exist in accordance with the other requirements and these General Terms if the judicial enforcement of the aforementioned claims against the manufacturer and suppliers were not successful or, for example due to an insolvency, lack a prospect of success. The limitation of the Customers’ respective warranty claim against Cubemos shall be suspended for the duration of the legal dispute.
(8) The warranty rights shall be inapplicable, as far as the Customer modifies the delivery item or has it modified by a third party without the explicit written consent of Cubemos and the repair becomes impossible or unreasonably difficult because of this. This shall not apply to modifications made in the context of the intended use. The Customer shall be entitled to explain and to prove that the modifications are in no way related to the alleged defect and the repair did not become impossible or unreasonably difficult due to the modification. In any case the Customer shall bear the additional costs of the repair caused by the modification.
(9) The provisions of paragraph 11 of these General Terms shall apply to the Customers’ claims for damages and the reimbursement of expenses.
(10) If the Customer eliminates the defect himself, he shall only be entitled to demand the reimbursement of the necessary expenses from Cubemos after a previous written agreement with Cubemos.
10 Intellectual Property Rights of Third Parties (1) The Customer shall immediately notify Cubemos in writing if claims based on the infringement of industrial property rights or of copyrights of third parties (intellectual property rights of third parties) are asserted against him.
(2) In case the delivery item violates intellectual property rights of third parties, Cubemos shall, at its own choice and expense, modify or replace the delivery item to such an extent that intellectual property rights of third parties are not violated any more but the delivery item still fulfils its contractually agreed functions or it shall procure the right of use to the Customer by concluding a license agreement. If Cubemos does not succeed in doing so within a reasonable period of time, the Customer is entitled to rescind from the contract or to reduce the remuneration appropriately in accordance with the statutory provisions. Any possible claims for damages of the Customer are subject to the restrictions of paragraph 11 of these General Terms.
(3) As far as the Customer grants Cubemos a right to indemnity, such entitlement presupposes in particular (i) that the Customer informs Cubemos of asserted violations of intellectual property rights or copyrights immediately, (ii) that the Customer supports Cubemos to a reasonable extent in the defence against the asserted claims or, respectively, allows Cubemos to perform the modification measure (iii) that all defence measures, including extra-judicial settlement are reserved for Cubemos, (iv) that the delivery item was not manufactured or modified on instruction of the Customer and (v) that the infringement was not incorrectly caused by the fact that the Customer modified without authorisation.
11 Liability of Cubemos
(1) Cubemos shall bear liability in accordance with the following provisions. They shall apply to all contractual and non-contractual claims for damages, irrespective of their legal basis as well as mutatis mutandis for the liability for futile expenses.
(2) Cubemos shall bear liability without contractual limitations in accordance with the statutory provisions a. for damages based on a breach of guarantee granted by Cubemos; a. for damages based on the fact that Cubemos fraudulently concealed a defect; b. for damages based on the injury of life, body or health or on an intentional or negligent breach of obligation by Cubemos or on other intentional or negligent conduct of a legal representative or a vicarious agent of Cubemos; d. for other damages based on an intentional or grossly negligent breach of obligation by Cubemos or on other intentional or grossly negligent conduct by a legal representative or a vicarious agent of Cubemos; b. according to the German Product Liability Act (Produkthaftungsgesetz).
(3) In other cases than those listed in paragraph 11 (2) the liability of Cubemos shall be limited to the compensation of the typical and foreseeable damage, insofar as the damage is based on a negligent breach of material obligations by Cubemos or by a legal representative or by a vicarious agents of Cubemos. Such obligations shall be material that mainly facilitate the proper performance of the contract in the first place and on the compliance with which the Customer regularly relies on and may rely on (“cardinal obligations”).
(4) The liability for negligence shall be excluded in other cases than those listed in paragraph 11 (1) and (2).
(5) The objection of contributory negligence remains unaffected.
12 Special Provisions on Cross-Border Transactions
(1) If a Customer or his representative located outside of the Federal Republic of Germany collects goods or transports or ships these abroad, the Customer shall provide the proof of export required for tax purposes to Cubemos. If such proof is not provided, the Customer shall pay the applicable VAT rate on the invoiced amount for the delivery within the Federal Republic of Germany.
(2) In cases of deliveries from the Federal Republic of Germany to other Member States of the EU the Customer shall notify Cubemos on the VAT identification number under which his purchase is taxed within the EU. Failing that, he shall have to pay the VAT amount legally owed by Cubemos in addition to the agreed purchase price.
(3) If either the Customer is registered for VAT purposes in another Member State of the EU or Cubemos is registered for VAT purposes in the receiving Member State of the EU, the VAT regulations of the respective Member State of the EU shall be applicable for the invoicing of deliveries from the Federal Republic of Germany to other Member States of the EU.
13 Final Provisions
(1) Contract language shall be German. As far as these General Terms are available in other languages, the German version shall prevail.
(2) We use our Customer’s email address to send our newsletter to his address. The Customer can object to such use at any time, without costs arising by virtue thereof, other than transmission costs pursuant to the basic rates. Please inform us on info@Framosai.de if you don’t want to receive further product information via email.
(3) Contracts between Cubemos and the Customer shall be governed by the law of the Federal Republic of Germany under exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and under exclusion of the rules of private international law.
(4) Unless otherwise agreed, the place of service provision and payment shall be the registered office of Cubemos. The place of jurisdiction for any and all disputes with merchants, legal persons under public law or special assets (“Sondervermögen”) under public law arising directly or indirectly out of the contractual relationship shall be the registered office of Cubemos; Cubemos shall, at its choice, also be entitled to bring an action at the registered office of the Customer.
(5) Amendments and addenda of agreements may only be concluded in writing. This shall also apply to any waiver of this clause. Guarantees and warranted qualities granted by Cubemos, notifications of defects, reminders and deadlines set by the Customer, as well as declarations on the reduction, the rescission or the termination by the Customer need to be given in writing in order to become effective. (6) The written form in accordance to all provisions of these General Terms shall be observed if the transmission takes place by means of telecommunication by fax and, in the case of a contract, by the exchange of letters. In all other respects, Section 127 (2) of the German Civil Code shall not apply.
(7) Should individual provisions of the contract including these terms and conditions be or become entirely or partially invalid or unenforceable, the validity of the remaining provisions of the contract including these General Terms shall not be affected by this. If the contract or these General Terms contain any gaps, such legally effective provisions shall be deemed as agreed, that would have been agreed on by the parties with regard to the commercial objectives of the contract and the purpose of these General Terms, had they been aware of the gap.