- The following General Terms and Conditions (hereinafter “the Terms and Conditions”) have exclusive application. The Terms and Conditions shall form an integral part of all agreements between QB CAPITAL LTD (hereinafter “Company”) and the person who or the legal entity (such person or legal entity hereinafter “Customer”) to whom Company sells Mobile House (hereinafter “RA1SE”). Company and the Customer are hereinafter jointly referred to as “Parties”.
- Standard business conditions furnished by the Customer that are contrary or deviate from the Terms and Conditions set forth herein will not be recognized unless Company expressly consents to their application in writing. The Terms and Conditions also apply where Company performs its obligation vis-à-vis the Customer in the knowledge of and without objecting to standard business conditions that are contrary or deviate from the Terms and Conditions.
- The Terms and Conditions set forth hereinafter apply exclusively in relation to merchants, legal entities of the public law and public trusts.
- Upon agreement to these Terms and Conditions, these Terms and Conditions may supersede terms and conditions previously in place. It is understood that all existing and future agreements between the Parties are subject to these Terms and Conditions upon their agreement by the Customer.
- Confidential Information shall refer to any kind of information whether oral or written in relation to the Mobile House. It could be written or in oral communication that may refer to but not limited to; any patent, copyright, trademark, or trade secret, idea, plan, design plan, product. The information is to be declared or constituted as Confidential by the Company and remain the exclusive property of Company irrespective of their delivery to the Customer.
- Such Information are confidential and the Customer shall not reproduce, make available to third-parties or exploit on behalf of third-parties this documentation or material without prior written consent notified by Company. The Customer shall enforce the aforementioned obligations in a suitable and reasonable manner vis-à-vis his employees.
3.CONDITIONS OF PAYMENT, PROHIBITION OF SET-OFFS
- Payments become due and payable within 7 days from being invoiced.
- In the event the Customer is late in the settlement of any portion of the payment, such unpaid portion shall be subject to interest at the rate of 1.5 % per month, however without prejudice to any other remedies at Company’s disposal in the event of such default. In case of default Company is further entitled to withhold the performance of any of its services; if periodical payments have been agreed, Company is entitled to suspend the services if the Customer is in default.
- The Customer is not entitled to set-off his claims unless these are either not contentious or they have been confirmed by a non-appealable decision in a court of law.
- If after the formation of the contract the financial conditions of the Customer substantially deteriorate or if Company learns of circumstances which are likely to endanger the enforcement of the claim to render payment, Company is entitled to retain performance of its obligations under the contract until the Customer performs its obligations or provides Company with sufficient security for the outstanding amount.
- Company may fix a reasonable grace period during which the Customer may elect to perform his obligations under the contract under condition concurrent in return for performance rendered by Company or to provide Company with sufficient security. If the Customer fails to do any of the above prior to the expiry of this term, Company is entitled to repudiate the contract without prejudice to the recovery of further damages.
4.TRANSFER OF RISK, COST, AND INSURANCE
- The point of transfer would be FOB Port of Origin (INCOTERMS 2020).
- If the Customer is in default of accepting the Mobile House or if the Customer returns without reasonable grounds to do so, Company is entitled to recover damages if the Customer fails to accept the Mobile House before expiry of a reasonable grace period notified to the Customer. Company may claim 30 % of the net contract value unless Company proves the damage to exceed this amount or the Customer proves that the damage is lower than this amount or that Company has incurred no damage.
- In case of warranty shipments, which replace or substitute items that are still part of the warranty provided by Company and have been identified as such by the respective staff, shipping of aforementioned items will be carried out DAP (INCOTERMS 2020).
5.FORCE MAJEURE, CONTRACTUAL OBSTACLES
- In case of force majeure, Company is entitled to postpone delivery for the full duration of such condition. If Company is impeded from rendering performance due to force majeure for a period in excess of six months, Company is discharged from the obligation to deliver. Force majeure signifies all circumstances which Company is not responsible for and which render performance by Company impossible or impose on Company undue hardship, e.g. strike, lock-out, civil war, acts of terrorism, civil unrest, natural disasters, import or export sanctions, shortage of energy or resources and delayed supply for which Company is not responsible. If Company is discharged from the obligation to deliver, the Customer is entitled to repudiate the contract.
- If delivery is, at the Customer’s request, postponed until after the agreed time of delivery, the Customer shall be charged all additional costs for storage for the time thereafter; i.e. if storage occurs at Company’s place of business an additional charge of 0.5 % for each beginning week during which the product are stored. The Customer is entitled to prove that Company has incurred less or no expenses for the storage.
6.CUSTOMER’S REMEDIES IN CASE OF DELIVERY OF NON-CONFORMING MOBILE HOUSE
- The Customer shall immediately after receipt duly inspect the Mobile House delivered in order to assess that these are in conformity with the terms of the contract. The Customer shall without undue delay notify Company if the Mobile House is either incomplete or have any defects (with the exception of hidden defects which shall be notified without undue delay following their detection). If the Customer fails to comply with these terms, the Customer is presumed to have accepted the delivery with the consequence that the Customer is precluded from invoking the remedies specified below.
- If the Mobile House prove to be defective, the Customer may demand specific performance, i.e. he may elect between the defect to be cured and a new tender of conforming product.
- Before entering into specific performance, Company may require the Customer to pay a reasonable part of the contract price taking the defectiveness of the delivered Mobile House into consideration. Company may refuse to specifically perform the obligation in accordance with the manner chosen by the Customer if such performance can only be accomplished at an unreasonable expense.
- If specific performance fails to produce conforming product twice, if Company refuses to render specific performance or if Company fails to specifically perform within a reasonable grace period notified by the Customer, the Customer is entitled to reduce the contract price or to repudiate from the contract and to claim compensation for futile expenses or for damages in lieu of performance. The Customer is precluded from repudiating the contract and from claiming damages in lieu of performance where the defect of the products is merely unsubstantial.
- The Customer is not entitled to invoke any remedies for defects which have been caused by e.g. an improper or inappropriate application, handling, inspection, maintenance, modification, damaging, assembly or manufacturing or by providing an unsuitable infrastructure or infringement of any other contractual provision or specification by the Customer or a third party or breach of any statutory obligation.
- The Customer’s claims lapse by operation of the statute of limitation after one year since delivery of the Mobile House.
- Company is liable without limitation for deliberate acts and acts committed with gross negligence.
- With the exception of injuries to life, body and sanity, Company is liable for acts committed with slight negligence only insofar as principal obligations under the contract are infringed. Liability is restricted to the typical and foreseeable damage, not exceeding 5 % of the Customer’s annual turnover.
- Liability for indirect and unforeseeable damages, for standstill of production and recovery for loss of use, loss of data, lost profits, failure of effecting retrenchments for savings purposes as well as expenses incurred for development, supplementary labor or product recall as well as pure economic loss due to third-party claims are excluded in the event of slight negligence.
- Further liability in excess of what is specified herein is excluded regardless of the legal nature of the claim asserted.
- Insofar as liability of Company is excluded or restricted pursuant to para. B,C and D, these exclusions and restrictions apply to the personal liability of any employee, representative, officer and vicarious agent.
- If a third-party asserts claims against the Customer for the infringement of an intellectual property right with regard to the Mobile House that are delivered by Company and are used by the Customer in a contractually appropriate manner, Company liability is subject to the following provisions.
- Company will, at its discretion and at its own expense, either acquire the necessary licenses for the product, design the Mobile House in a non-infringing manner, substitute the product with an alternative non-infringing product of equal efficiency or withdraw the Mobile House in return for the reimbursement of the contract price.
- Liability of Company can only be established if the Customer immediately notifies Company in writing of the claims asserted by the third party, if the Customer refuses to recognize the infringement and if all measures of defence against the third party are reserved for the benefit of Company. If the Customer desists from using the Mobile House in order to mitigate damages or for any equally important reason, the Customer shall inform the third party that no recognition of the infringement of the intellectual property right in question shall be inferred from such desistance.
- Liability of Company is excluded either if the Customer is responsible for the infringement of the intellectual property right, if the infringement is the result of the Customer providing Company with individual specifications, if infringement arises from an application of the product not foreseeable by Company or from adaptations of the Mobile House individually requested by the Customer, or from alterations of the products or combinations thereof with other products not delivered by Company. In these events the Customer shall hold Company free and harmless from any and all third-party claims that ensue from such infringement.
- The sale of the Mobile House to the Customer does not entail the acquisition from Company of any license to use the industrial property and copyright in combinations of the Mobile House.
- The business relations between the Parties shall be governed and construed in accordance with the law of the Cyprus.
- The exclusive place of performance for all obligations of delivery and payment by the Customer shall be Company principal administrative seat of business.
- The exclusive venue for all disputes arising from the business relations is Courts of Larnaca, Cyprus.
- Any amendments to or modifications of the contract and its collateral agreements shall be made in writing to be legally effective. The same applies to the derogation of this paragraph.
- In the event any of the aforementioned provisions is or becomes ineffective, the validity of the remaining provisions per se remains unaffected. The parties shall replace any invalid provision and mutually agree on new stipulations which are apt to attain the desired economic goal in view of the factual, legal and economic interests concerned. The same shall apply to any possible omissions in the Terms and Conditions.