KUBY – TERMS AND CONDITIONS
KUBY S.à r.l.1,
VAT number: LU26458779
1.1 “KUBY”: the limited liability company "KUBY SARL", with registered office at 1, Hauptstrooss L-9753 Heinerscheid, registered in the register, under number B180806, VAT LU26458779.
1.2 "General Terms and Conditions": these general terms and conditions.
1.3 "Client": any natural or legal person who purchases (whether or not in his own name and for his own account) one or more product(s) or services from, requests a quote for, places an order and/or has entered into an agreement with KUBY for this purpose.
1.4 "Agreement": The Agreement between KUBY and the Client under which the goods and/or services are delivered to the Client.
2.1 The legal relationship between the Client and KUBY and everything related to it shall be subject exclusively to the following standards: (in hierarchically descending order, the following in the absence or silence of the previous one)
- the written and signed special agreement;
- the order confirmation;
- these General Terms and Conditions;
- articles 4-39 and 41-88 of the Vienna Sales Convention;
- Luxembourg law, to the exclusion of other legal norms.
KUBY rejects all other standards and conditions, with the sole exception of those expressly agreed in writing with the Customer. These expressly accepted derogations in writing shall only be valid for the agreement to which they relate and cannot be invoked for any other agreements, even similar ones. The Customer accepts that these General Terms and Conditions will be the only ones applicable to the exclusion of its own.
2.2 The possible nullity of one of the provisions of these General Terms and Conditions or part of a provision does not affect the applicability of the remaining provisions and/or the rest of the provision. In the event of nullity of one of the provisions, KUBY and the Client shall, to the extent possible and according to their loyalty and conviction, negotiate to replace the void provision with an equivalent provision that complies with the general spirit of these General Terms and Conditions. If the parties do not reach an agreement, the competent forum may moderate the void provision to what is (legally) permissible.
2.3 KUBY shall always be entitled to amend these General Terms and Conditions. Any amendments. Changes to essential elements of the agreement shall always be based on objectively justifiable factors.
3. COMPLETION OF CONTRACT
3.1 Any offer on the website, in catalogues, newsletters, notes, leaflets and other publicity announcements is for information purposes only. Offers shall in any case only be valid while stocks last. Obvious mistakes and/or obvious errors in the offer shall not bind KUBY. KUBY shall only be bound by an obligation of means with regard to the correctness, up-to-dateness or completeness of the information offered. KUBY shall under no circumstances be liable for material errors, misprints or printing errors. KUBY shall endeavour to match images, colours and descriptions in catalogues as closely as possible to reality, but cannot exclude errors or slight discrepancies.
3.2 All quotations, offers, etc. shall always be without obligation and shall only be considered as an invitation to the Client to place an order. An offer is only valid for the specific order and therefore does not automatically apply to subsequent (similar) orders. An offer is also only valid for the duration stated on the offer, unless expressly agreed otherwise. If no duration is indicated on the offer, the validity of the offer shall be limited to thirty (30) calendar days.
3.3The Agreement between KUBY and the Client shall only come into being after the signing of the written agreement, order form or receipt of the order confirmation issued by KUBY or, in any case, at the time when KUBY starts to execute the Agreement after receipt of the order form. The written agreement, purchase order and/or order confirmation signed by the Client shall be deemed to be correct and complete. Sending offers and/or (other) documentation shall not oblige KUBY to accept an order or assignment. Non-acceptance shall be notified by KUBY as soon as possible, but in any case within 10 working days of the order, and shall always be based on objective reasons that shall also be communicated by KUBY to the Client. KUBY reserves the right to deliver or perform orders or orders against advance payment. The first order of a new Customer shall always be delivered against prepayment, provided the file has been accepted.
4. PRICE AND COSTS
4.1 The selling price of the Products appearing in our Catalogues and/or any other printed medium is indicative. The Products are supplied at the KUBY prices applicable on the day the order is placed. The applicable price is that stated on our website www.KUBY.biz at the time the order is placed.
4.2 All prices are expressed in Euro and are exclusive of VAT, as well as other taxes and duties (including import duties), any insurance and administration costs, delivery and shipping costs , installation costs and travel costs unless expressly agreed otherwise. All prices include Ecotrel contribution, if applicable.
4.3 KUBY reserves the right to change the prices stated on the website, in catalogues, newsletters, notes, leaflets and other publicity announcements at any time. Nevertheless, products and services shall be invoiced on the basis of the prices in force at the time the order is accepted by KUBY or the written agreement is signed by both parties. Obvious errors, manipulations or mistakes (such as obvious inaccuracies) may be rectified by KUBY even after the conclusion of the Agreement.
4.4 Currency fluctuations, increases in the prices of materials and raw materials, increases in prices by KUBY's suppliers, wages, salaries, social security contributions, government-imposed costs, (environmental) levies and taxes, transport costs, import and export duties or insurance premiums and other objective causes that necessitate a price increase and that take place between the placing of an order/signing of the Agreement/receipt of the order confirmation from KUBY and the delivery of the products and/or services may give rise to a price increase. However, if the price is increased without being based on an objective cause as stipulated above, the Client shall be entitled, within 48 hours, to contest the price increase and renegotiate the Agreement.
5. FULFILMENT OF THE CONTRACT
5.1 The Agreement shall only relate to the products and services described in the signed written agreement or order confirmation issued by KUBY. Any changes and/or additions to the order after the formation of the Agreement shall only be valid with the written agreement of KUBY. The Client acknowledges that such amendments and/or additions will affect the price and delivery times.
5.2 The Client accepts that KUBY may make minor changes to the products or services, if they are technically necessary or result from developments in technique, technology, production and aesthetics. The foregoing applies on condition that these changes only concern details and do not affect the specific functional and external characteristics that are essential for the Client.
6. DELIVERY OF THE PRODUCTS AND/OR SERVICES PURCHASED
6.1 Unless otherwise agreed, deliveries shall always be made in accordance with the Incoterm® "Delivered Duty Paid" (DDP), with KUBY delivering the purchased products to the Client at the address indicated on the order confirmation and/or agreement. The above shall not apply in the case where KUBY and the Customer have agreed that the Customer shall collect the order as stated on the order confirmation emanating from KUBY. The relevant deliveries shall take place in accordance with the Incoterm® "Ex Works" (EXW).
6.2 The agreed delivery terms shall always be interpreted in accordance with the Incoterms® valid at the time the Agreement between KUBY and the Client comes into being.
6.3 KUBY's delivery obligation shall always relate to the goods and/or services specified with article number in the written agreement and/or order confirmation issued by KUBY. Except as provided for in article 8 of these General Terms and Conditions, the Client is obliged to accept the delivery of the relevant agreed goods and/or services. Unless otherwise stipulated, in the event of non-acceptance or even incomplete acceptance of the order from the Client, the Client shall compensate KUBY for all the damage and costs incurred by KUBY in this regard, including but not limited to transport costs (return transport) or any other damage and/or costs relating thereto. If the Client does not allow delivery of the goods and/or services within five (5) calendar days, taking into account article 6.1. of these General Terms and Conditions, the Client shall be liable, unless otherwise agreed, for a storage fee of 1% of the full invoice amount per week. As soon as the scheduled collection date has been exceeded by two (2) weeks, KUBY shall be entitled to terminate the Agreement between KUBY and the Client, without prior formal notice and without judicial intervention, with effect from the date of dispatch of the termination. In this case, the Client shall owe liquidated damages equal to 35% of the total invoice amount, without prejudice to KUBY's right to prove higher damages.
6.4 Unless otherwise stipulated in the offer, written agreement and/or order confirmation, the delivery costs shall be €15.00 per order, even if multiple deliveries are made by KUBY. For order amounts from €5000, delivery shall be free of charge. KUBY shall be entitled to charge for durable packaging materials.
6.5 All execution and delivery dates stated by KUBY in these General Terms, the offer, written agreement and/or order confirmation are always indicative. If the indicated delivery period is exceeded, KUBY and the Client shall agree on a reasonable additional period but without any right to compensation or to terminate the agreement between KUBY and the Client. Accordingly, a delay in delivery shall not relieve the Client of any obligation to accept or pay for the products. In the event of non-delivery of the products, any advance payments made by the Client shall be reimbursed by KUBY.
6.6 Changes to the Client's offer and/or order, changes to the written agreement between KUBY and the Client, as well as changes to the order confirmation emanating from KUBY, shall automatically result in the lapsing of the presumed delivery dates.
6.7 In any case, KUBY shall not be liable for delays incurred as a result of the default of manufacturers and/or suppliers of KUBY, the Client, its customers and/or any other third party.
6.8 KUBY shall be entitled to deliver or execute the purchased products and/or the related services in several parts. Partial delivery or execution may not give rise to the payment of any compensation or to the termination of the agreement between KUBY and the Client.
7. INVOICING AND PAYMENT
7.1 KUBY is entitled to demand full or partial payment in advance from the Client.
7.2 Unless expressly agreed otherwise, all invoices are payable in cash at the registered office of KUBY or by bank transfer to the bank account number stated on the invoice. The Client is not allowed to make payments to intermediaries.
7.3 The Client shall pay the invoices within the payment term as stated on the invoice. In the absence of any mention of a payment term on the invoice, a payment term of fifteen (15) calendar days will apply. The value date indicated on KUBY's bank statements shall be considered the determining payment date. In case of non-payment, or incomplete payment on the due date of one of the invoices:
- by operation of law and without prior notice of default, an annual interest rate equal to the legal interest rate determined in accordance with the Late Payment Act of 2 August 2002, counting from the due date, which is capitalised annually until the date of full payment;
- the Client shall be liable, ipso jure and without prior formal notice, to pay liquidated damages equal to 12% of the invoice amount with a minimum of €50, without prejudice to KUBY's right to prove higher damages;
- the Client shall automatically and without prior formal notice be liable for all judicial and extrajudicial collection costs;
- all other invoices from KUBY to the Client, even those not yet due, shall become immediately payable by operation of law and without prior notice;
- and if payment has not been made within a period of fifteen (15) calendar days after receipt of a written notice of default to that effect, KUBY shall be entitled to recover the delivered products from the Client as well as to suspend and/or terminate the (further) execution of the relevant and/or one or more other agreement(s) with the Client.
Partial payments shall only be accepted under all reservation and shall be charged (in respective order) to (i) interest due, (ii) damages and (iii) only then to the outstanding principal sums.
8. ACCEPTANCE, WARRANTY AND COMPLAINTS
8.1 KUBY invoices shall be considered accepted if they have not been protested within a period of five (5) working days following receipt. At the expiry of this period as well as with the (partial) payment of the invoice, the invoice is considered accepted by the Client.
8.2 The Client is entitled to communicate directly verifiable deviations and/or related complaints to the purchased products and/or delivered services to KUBY. The Client must communicate these deviations and/or complaints to KUBY, on pain of lapse, within forty-eight (48) hours of delivery and/or installation. Any defects and/or damage to the delivery and/or the packaging that are already visible at delivery must be noted by the Client on the delivery note, the invoice and/or the transport documents, while in the event of (transport) damage, the packaging must be retained. In accordance with article 9.6 of these General Terms and Conditions, KUBY shall not be responsible for errors due to absence/lack of information or incorrect information provided by the Client.
8.3 If the Client wishes to return different products, this must be done within a period of fourteen (14) calendar days after receipt of the complaint in question. The products concerned must be returned to KUBY in their original packaging and must be undamaged. Unless otherwise agreed, the return postage costs shall be borne by the Client. In the absence of the above, the Other Party shall be deemed to have approved what has been delivered.
8.4 Complaints relating to hidden defects in the products delivered and/or services provided must be reported to KUBY in writing within a period of forty-eight (48) hours after discovery of the defect, on pain of inadmissibility. Such complaints may be reported to KUBY within the statutory guarantee period, or the guarantee period offered by the respective manufacturer or supplier of the product. In any case, the Client loses the right to invoke the defects in question if he does not notify KUBY in writing at the latest within a period of two years from the date of delivery and/or installation of the purchased product and/or services provided, unless this period does not correspond to the guarantee period as included in the Agreement.
8.5 As regards personalised/customised and/or printed products, KUBY shall only intervene for verifiable deviations and/or related complaints or any other defects if they are due to its own gross negligence or intent.
8.6 In the event of complaints that are reported to KUBY correctly and in good time, KUBY shall, at its own discretion and as far as applicable: (1) replace or repair the defective products and/or services, insofar as the same products are still in stock. If the defective product is no longer in stock, KUBY may choose to provide the Client with an equivalent of the defective product; or (2) credit an amount reasonably corresponding to the nature and extent of the defect in question. The Customer acknowledges that each of these measures individually constitutes full and adequate compensation for any possible damage resulting from any defects and accepts that the execution of these measures cannot be considered as an acceptance of liability by KUBY.
8.7 Without the express written agreement of KUBY, the Client shall under no circumstances be entitled to return products or have work carried out by third parties, with the exception of the right of return provided for in article 8.3 of these General Terms and Conditions.
8.8 KUBY reserves the right to determine itself the non-conformity of the delivery and/or other defects, and to ascertain their cause.
8.9 Under no circumstances shall complaints and/or a possible (partial) replacement or repair of products and/or services release the Client from his payment obligation within the period(s) specified on the respective invoice.
8.10 The possible replacement of products or re-performance of services may not give rise to the payment of any compensation or to the termination of the Agreement between KUBY and the Client.
8.11 The Client shall be obliged to reimburse costs incurred as a result of unjustified complaints.
9.1 KUBY shall always execute the Agreement to the best of its knowledge and ability in accordance with the rules of good craftsmanship and in accordance with the laws and regulations. In case of user advice, KUBY guarantees that its advice has been drawn up in accordance with the applicable regulations and recent insights. Further guarantees are excluded. With regard to advice from KUBY relating to the use and possible return on use, these shall always be drawn up on the basis of the information provided by the Other Party and shall only represent a best-efforts obligation on the part of KUBY.
9.2 If the Agreement concerns products or services not manufactured or supplied by KUBY, but only resold by KUBY, KUBY cannot be held liable for any damages other than those relating to the conformity of the delivery, and any complaints and/or damages other than those relating to the conformity of the delivery shall be the sole responsibility of the manufacturer(s) and/or supplier(s) from whom KUBY has purchased the products concerned. The Customer shall have maximum recourse to such complaints and/or damages for a period equal to the longest of the following periods:
- the guarantee period offered to KUBY by the respective manufacturer or supplier;
- the statutory guarantee period applicable to the products.
If the Client informs KUBY correctly and in good time, in accordance with these General Terms and Conditions, of any complaint and/or damage other than that relating to the conformity of the delivery, KUBY shall forward this complaint directly to the respective manufacturer or supplier. In the further handling of this complaint or damage procedure, KUBY shall only act as an intermediary between the Client and the respective manufacturer or supplier. KUBY's responsibility in this regard shall be limited to passing on information between the respective manufacturer or supplier and the Client, without KUBY being liable in any way for the actual complaint and/or damage.
9.3 Unless expressly stated otherwise in these General Terms and Conditions, KUBY's contractual and extra-contractual liability towards the Client shall be limited to the liability imposed by law and shall in any case be limited to the lower of the following two amounts: (1) the respective invoice amount (excl. VAT); (2) the amount that KUBY receives from its insurer in the framework of the respective liability case as a result of the civil liability policy taken out by KUBY.
9.4 Under no circumstances shall KUBY be liable for: (1) indirect damages (including but not limited to damages to third parties, loss of profits, consequential damages, intended results/goals), (2) defects caused directly or indirectly by the act of the Client or a third party, whether caused by fault or negligence, (3) damages resulting from the incorrect or inappropriate use of the purchased products (including advice for use), as well as for an unintended and/or undesired interaction resulting from a simultaneous use of the product with other products, (4) damages resulting from non-compliance by the Customer and/or a third party with legal and/or other obligations (o. a. the installation and user manual) (5) damage resulting from normal wear and tear.
9.5 The Client acknowledges that KUBY does not guarantee that the products comply with the regulations or requirements in force in any jurisdiction, except for the regulations or requirements in force in Belgium, as applicable at the time of delivery of the product to the Client by KUBY, therefore KUBY cannot be held responsible for later changes in legislation of any kind.
9.6 KUBY shall under no circumstances be liable for any damage resulting from the Client's failure to request and check all necessary and useful information, nor for any damage resulting from incorrect and/or incomplete information provided by the Client to KUBY and/or its employees or subcontractors.
10.1 KUBY shall be entitled to have (part of) its products and/or services delivered/performed by a supplier or subcontractor, the costs of which shall be passed on to the Client in accordance with the quotations provided in the written agreement and/or order confirmation.
11. RETENTION OF TITLE
11.1 KUBY reserves ownership of the products delivered to the Client as long as the Client has not paid the price, costs, interest and all other accessories relating to the order of the products and services in full.
11.2 Before the moment of transfer of ownership, the Customer shall not be entitled to alienate, process, use, transform, transfer, encumber and/or dispose of the products.
11.3 In case the Client resells - even processed - the Products belonging to KUBY, it shall transfer to KUBY all claims arising from this resale. The Client shall be obliged to leave the amount it receives for the products subject to the retention of title to KUBY as compensation for the termination of KUBY's property right and as a guarantee to KUBY in the amount of the value of the products subject to this retention of title.
12. FORCE MAJEURE AND HARDSHIP
12.1 KUBY shall not be liable for any failure to perform its obligations caused by force majeure or hardship.
12.2 In the event of force majeure or hardship, KUBY may, at its own choice and discretion, without prior notice of default or judicial intervention being required, and without any right of recourse against. KUBY: (1) propose to the Client to replace the missing products with a functional equivalent; (2) temporarily suspend the performance of its obligations; (3) extrajudicially terminate the Agreement between KUBY and the Client, if the Agreement cannot be performed for more than three (3) months due to force majeure, or (4) renegotiate the conditions under which the Agreement is performed. If the Client does not participate in good faith in these renegotiations, KUBY may, in accordance with Article 19, request the competent institution to determine new contractual terms and/or order the Client to pay damages.
12.3 Force majeure and hardship, shall include (purely exemplary enumeration): unavailability and/or scarcity of certain materials, resources or other resources, threat of terrorism, ice; special weather conditions; strike; mobilisation; war; disease; pandemic; lockout; accidents; communication and information technology failures; government measures; export prohibition; delay in supply; transport and/or movement impediments; including lack of or withdrawal of transport facilities; export impediments; import impediments; breakdown; traffic jam; etc.
13. TERM AND TERMINATION
13.1 In the event of any change in the Client's situation, such as death, collective debt settlement, seizure or any other circumstance likely to undermine confidence in the Client's creditworthiness, or in the event of fraud, intent or deceit that has not been remedied in a timely manner, KUBY reserves the right, because of that mere fact: either suspend the execution of the Agreement with the Client until the Client provides adequate securities for his payment; or declare the Agreement with the Client terminated from the date of dispatch of the termination, without prior formal notice and without judicial intervention, without prejudice to KUBY's right to claim additional damages.
13.2 If the Agreement between KUBY and the Client is terminated, with or without application of the termination right described in this article, the Client shall lose the right to demand that KUBY fulfils its obligations with regard to the terminated Agreement.
13.3 The Client shall be entitled to suspend its obligations arising from the Agreement in the event that KUBY fails to fulfil its essential contractual obligations without objective reason and does not correct them within fifteen (15) calendar days of the Client notifying KUBY.
14. INTELLECTUAL PROPERTY
14.1 KUBY remains and becomes the exclusive holder of all intellectual property rights to the products and services it provides. KUBY guarantees to hold the necessary licences/rights to offer its range of products and services.
15. PERSONAL DATA
15.1 KUBY shall at all times comply with the Privacy Law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data and the EU Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC ("GDPR"), hereinafter the "Privacy Law".
15.2 KUBY will only request personal data from its Customers that are necessary for the purpose of its processing. KUBY will only process personal data on a legal basis.
15.3 KUBY shall take all necessary measures to protect its Customers' personal data and shall not transmit them to third parties without a legal basis.
15.4 The Client may always request access, correction, erasure, restriction, transferability of their data.
- by post: KUBY, 1 Hauptstrooss L-9753 Heinerscheid
- by e-mail: info@KUBY.biz
16.1 All confidential information made available by KUBY to the Client prior to the conclusion of the Agreement or during or after its execution, shall be regarded as confidential and treated as such by the Client. The Customer undertakes not to disclose such confidential information to third parties unless it concerns information which is or has become publicly available without fault or negligence on the part of the Customer. In any event, the Customer shall only grant its employees and appointees access to this confidential information on a need-to-know basis.
17. TRANSFER OF CONTRACT
17.1 Unless otherwise agreed in writing between the parties, the Customer shall not be entitled to transfer the rights and obligations under the Agreement to a third party.
18.1 All possible disputes between KUBY and the Client shall fall within the exclusive jurisdiction of the competent courts of KUBY's registered office.