General terms and conditions
1.1. These general terms and conditions apply to all offers of and agreements with KUBIC, oral or in writing, concerning the delivery of products and services to the customer, safe as varied by express agreement accepted in writing by both parties. The customer acknowledges to be informed of and to have accepted the general terms and conditions.
1.2. The general terms and conditions exclude the application of the general or specific terms and conditions of the customer.
1.3. Any deviation of the general terms and conditions by KUBIC in the benefit of the customer, does not give the customer the right to invoke such deviation in a later state.
1.4. In case KUBIC deviates from certain (sub)articles of these general terms and conditions, the other (sub)articles remain applicable.
1.5. The fact that KUBIC does not require the strict application of the general terms and conditions does not imply limitation of its rights.
1.6. The nullity or non-practicability of one or more provisions of these general terms and conditions will not have any effect on the validity or practicability of the other provisions, that will remain fully applicable.
1.7. Waiver to a right or claim according to these general terms and conditions or related to a breach of the other party, can only occur by written notification to the other party. Such waiver or right or claim cannot be accepted as a waiver of any other right, even if both situations are very similar.
Article 2. Orders
2.1. Offers sent are understood to be sent without any commitment by KUBIC, until its written confirmation. There will be an agreement between the parties after written confirmation by KUBIC, without any reserve, of the order by the customer or, in case of absence of a written confirmation, after the beginning of the execution by KUBIC.
2.2. The same shall apply to any commitment made by the agents or representatives of KUBIC.
2.3. The customer’s commitment is firm and irrevocable as a result of our written acceptance of the order form. In case of cancellation by the customer, without authorization in writing by KUBIC, the customer will be held to pay a lump sum of 10% of the agreed price (VAT excluded) with a minimum of 250 EUR without prejudice of the right of KUBIC to claim an indemnity equal to its actual losses and this without any prior notification.
2.4. The order shall only be taken into account once the requested down payment has been received in our accounts.
Article 3. Price and payment
3.1. All prices are net and expressed in euros, taxes, possible travel-, transport- and insurance costs excluded, except if agreed otherwise in writing.
3.2. All taxes shall be borne by the customer. The prices are those stated on the order form.
3.3. Invoices are sent to the address indicated on the order form.
3.4. A partial or disputed delivery shall not entitle the customer to postpone payment. Any invoice not paid by its due date shall – automatically and without notice – give rise to the immediate payment of all other invoices, including those not yet due. Any amount not paid by its due date shall automatically and without notice accrue interests at the rate of 1% per month from the invoice’s due date. Any month begun shall count as an entire month. If an invoice has not been paid by its due date, a lump-sum, irreducible compensation of 10% of the total amount to be paid, with a minimum of 250 EUR, shall be due by the customer – automatically and without notice – without prejudice to any procedural expenses.
3.5. Invoices will be paid upon date of invoice. In case of export, invoices shall be paid out in advance, i.e. upon date of invoice but before delivery.
3.6. Complaints related to the invoice are only acceptable in case of a detailed notification of the fact to which the complaints refer and if they are notified by the customer to KUBIC in writing within 7 working days after invoice date. If no complaint related to the invoice is formulated within this term, the invoice is deemed to be accepted by the customer. The part of the invoice that is not contested, has to be paid according to article 3.5.
3.7. In case of non (or late) payment or in case of emission of an uncovered check, the refusal of a commercial paper or any other such problem that avoids KUBIC to receive payment of the title that was transferred for payment by the customer, this will be considered to be a “serious breach”. In such case, KUBIC is entitled, automatically and without prior notification, authorization by the courts and without obligation of compensation, (i) to suspend the delivery of a part or the complete order of the goods, (ii) to terminate the agreement(s) with the customer. In addition KUBIC reserves the right to claim damages for the prejudice suffered or to be suffered.
3.8. In case payment did not occur in accordance with the agreed terms, or in case of bankruptcy or insolvency of the customer, KUBIC is entitled to take the delivered goods back without the obligation to notify in advance or to fulfil any other formality.
Article 4. Terms of placing at disposal or delivery
4.1. The terms of placing at disposal or delivery mentioned by KUBIC are only indicative and without any engagement to KUBIC. KUBIC will respect the terms of placing at disposal or delivery as much as possible. The terms of placing at disposal or delivery start upon receipt of the order by KUBIC.
4.2. The agreed date for the placing at disposal or delivery is communicated to the customer for final acceptance. The placing at disposal or delivery shall automatically take place at the risks and perils of the customer as regards all goods that have no final acceptance by the customer or its representative, on the date thus agreed, regardless of the location of the goods.
4.3. Storage expenses shall automatically be invoiced to the customer as of the agreed date. If the goods are not picked up or if the merchandise is not taken by the customer for final acceptance at the agreed date, this shall not affect the payment of the agreed price. Unless otherwise agreed in writing, the goods, even if they are dispatched carriage free or picked up at our workshops, travel is at the customer’s risks and perils. KUBIC reserves the right to make partial placements at disposal (or deliveries) and invoices.
4.4. The customer’s acceptance of the merchandise shall cover any visible defects. Any complaint concerning a hidden defect shall only be taken into account if it is sent within 7 days of the placing at disposal or delivery, by duly reasoned registered mail, and provided that these goods are immediately withdrawn from circulation. Regardless of the circumstances, any compensation due by KUBIC shall be limited to the price of the invoice without taxes and costs. KUBIC shall not be bound by any intervention with insurers, carriers, suppliers or others and any such intervention is made by KUBIC in the name of and on behalf of the customer.
4.5. Unless otherwise agreed in writing, the customer is responsible for installing the goods.
Article 5. Warranty
5.1. KUBIC offers a commercial warranty of 24 months from delivery or placing at disposal for all inherent defects to the delivered goods. In such case KUBIC (at his own choice) will proceed to the repair, replacement or reimbursement of the defect goods. During the possible repair/placement, the term of warranty is suspended, afterwards it continues.
5.2. The warranty does not apply on defects that are due to: lack of maintenance, wear and tear, wrong assembly/installation, fault by a third, force majeure, … .
5.3. After termination of the warranty, KUBIC will not be responsible for any defect to the delivered goods.
5.4. Except if agreed in writing otherwise, KUBIC will not give any warranty for the delivery of services, as f.e. repair services regarding the reconditioning of the material used by KUBIC.
Article 6. Modification or improvement of the product
KUBIC reserves the right to make modifications or improvements to the characteristics of the products at any time, following a technical development of the products or following a change in the economic environment.
Article 7. Retention of title
7.1. It is expressly agreed that the merchandise shall remain the property of KUBIC until entire payment has been effected by the customer, included all interests and costs.
7.2. If payment is not made, KUBIC reserves the right, without prior notice, to keep any down payment made, regardless of the amount, as compensation of its losses and damage, to cancel the order without prejudice to its rights to damages, to suspend any subsequent placing at disposal (or delivery) and/or to demand restitution of or keep the goods.
Article 8. Intellectual property
8.1. All intellectual property, all copyrights, and all rights in relation to inventions (including patents), registered and unregistered trade marks (including service marks), registered designs, circuit layouts, confidential information (including trade secrets and know-how) and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields and at all times will remain, the exclusive property of KUBIC.
8.2. The customer may not sell, copy, reproduce and/or communicate such to any third party, without our prior written approval.
8.3. Under no circumstances may the patterns, designs, models and prototypes be reproduced, copied or executed without our prior written consent.
Article 9. Liability
9.1. Except in case of any other legal provisions or other provisions foreseen in these general terms and conditions, KUBIC shall in no way be liable for any damage to the customer and/or to any third party as a result of the functioning or non-functioning of the products, or for any damage arising from any opinion or work on KUBIC’s part concerning the products, as well as for any damage arising from a late, incorrect or incomplete placing at disposal or delivery of the goods or services in question.
9.2. The customer shall indemnify and hold harmless KUBIC for all claims of third parties, as a result of a defect in the goods delivered by the customer to a third party and that was delivered or placed at disposal by KUBIC.
Article 10. Force majeure
Any order may, if we so wish and without compensation, be cancelled or its execution may be postponed in the event of the occurrence, subsequent to the order’s acceptance, of one of the following not limitative events: strike, fire, draft, requisition, embargo, foreign exchange trading prohibitions, riot, lack of means of transport, procurement problems, limitations with circumstances of work and/or energy, as well as any other event outside our control that requires to perform work that is not proportional to the initially planned work or that make it impossible to execute the order.
Article 11. Supersession, Entire Contract and Separability
This Contract supersedes all other Contracts between the Company and the Customer relating to its subject matter and can only be amended in writing. If any provision of this Contract is found to be unenforceable, without prejudice to the Company’s rights under this Contract, the parties shall replace it with a similar enforceable provision and this Contract shall remain intact in its entirety.
Article 12. Notices
Any notice to be given under the Contract shall be in writing, sent by registered mail to the receiving party at its registered office when a company or its address as last notified in writing to the other party in any other case and shall be deemed to have been given on the first working day following that on which the notice was sent by registered mail.
Article 13. Public Order and morality
KUBIC reserves the right to cancel all or part of any order that violates public order, morality, or any laws or regulations, or our general policy.
Article 14. Applicable Law/Jurisdiction
These general terms and conditions are exclusively governed by Belgian law.
The parties irrevocably submit to the jurisdiction of the Courts of Antwerp who shall have sole jurisdiction to resolve any dispute relating to the interpretation or performance of these general terms and conditions.