Legal Notice

responsible for the content

 

 

 


attocube systems AG
Koeniginstrasse 11a
80539 Muenchen (Germany)

 

Phone:     +49 89 2877 809 0 (from 8 a.m. to 5 p.m. UTC | Mondays to Fridays)
Fax.:         +49 89 2877 809 19

 

E-Mail:     info@attocube.com
Internet: http://www.attocube.com

 

Board of Directors:

Management Board: Dr. Martin Zech
Chairman of the Supervisory Board: Dr. Manfred Wittenstein

 

Company register entry: HRB 138094, registry court: Muenchen
VAT Reg. No.: DE 813357627

 

General Terms and Conditions of Business of attocube systems AG for electronic commerce with customers with the status of entrepreneurs (B2B)

As at: 04.02.2016

 

Contents:                                                                                 

 

 

1.......... Scope of these Terms and Conditions

2.......... Conclusion of the contract; contract language

3.......... Subject of the contract

4.......... Delivery period; force majeure; transport and transfer of risk; delay in delivery

5.......... Payment, payment methods

6.......... Retention of title

7.......... Granting of rights

8.......... Delayed acceptance by the Customer; liquidated damages

9.......... The Customer’s obligation of inspection and notification of defects

10........ No assumption of warranties by attocube

11........ Rights and remedies in the case of material faults

12........ Rights and remedies in the case of defects of title

13........ Limitations of liability

14........ Confidentiality

15........ Data protection

16........ Offsetting and right of retention

17........ Miscellaneous

 

 

1          Scope of these Terms and Conditions

1.1       These General Terms and Conditions of Business (hereinafter “GT&Cs”) are applied by attocube systems AG, Königinstrasse 11a, 80539 Munich, Germany (hereinafter “attocube”) in electronic commerce with customers designated as entrepreneurs in accordance with Section 14 German Civil Code (BGB). Deliveries by attocube are governed exclusively by these GT&Cs in the version valid at the time of the Customer’s order.

 

1.2       The applicability of the Customer’s terms and conditions of business is hereby expressly excluded. This exclusion need not be repeated in the event that attocube receives terms and conditions from the Customer or the Customer accordingly refers to its terms and conditions. Specifically, provision of performance or its assumption does not denote attocube’s acceptance of the Customer’s terms and conditions.

 

2          Conclusion of the contract; contract language

2.1       Offers and quotations shown on the attocube website may be subject to change and are without obligation.

 

2.2       Orders are placed electronically by the Customer using the order process provided on attocube’s website. The Customer can select the desired products from the range of attocube products on offer and place the desired product in its shopping cart by clicking the Add to cart button next to the product in question. The Customer can delete individual items from the shopping cart by clicking the Delete symbol next to each item. The Customer can change the quantity of an item in the Qty (Qty = Quantity) box and then update the contents of the shopping cart by clicking the Update Shopping Cart button. The Customer clicks the Proceed to Checkout button to go to the checkout and view the contents of its order. At the checkout, the Customer can perform the following actions: the Customer can enter its billing address in Billing Information or – if already in possession of a customer account – log into this account. Under Shipping Information, the Customer can enter a delivery address other than its billing address, or enter the address of a third party as the recipient of the delivery. By clicking the Continue button, the Customer is taken to Shipping Method and has the opportunity to select a shipping method. By clicking Continue once more the Customer is taken to Payment Information, with the choice of Prepayment, Invoice and PayPal payment methods. The Customer clicks Continue again to go to Order Review, in which the contents of the shopping cart are displayed. In this order overview, the Customer can make final changes or correct any mistakes in the order. By clicking Place Order, the Customer places a legally binding order as a request to purchase the items in the shopping cart. However, this request can only be sent and transmitted when the Customer has previously accepted these T&Cs by clicking the button “I have read and accepted these T&Cs.”.

 

2.3       The Customer’s order constitutes a binding contractual offer in accordance with Section 145 German Civil Code (BGB). attocube may accept this offer within two weeks, thus establishing an individual contract between the parties (hereinafter “Contract”).

 

2.4       Automatic confirmation of attocube’s receipt of the Customer’s order is sent to the Customer in the form of an email to the Customer’s email address with a list of the items in the Customer’s order. This email can be printed out as a record of the order. However, this automatic confirmation of attocube’s receipt of the order is not sufficient to establish the contract. The contract is established when attocube sends its declaration of acceptance, sent by separate email and serving as confirmation of the order, or when attocube sends the ordered products.

 

2.5       The text of the contract is saved by attocube in compliance with data privacy policy conditions.

 

2.6       The prevailing language used for the contract and for communication with the Customer is English.

 

2.7       The GT&Cs can be accessed on the website under http://shop.attocube.com/ at any time and can be printed out and/or saved in electronic form.

 

3          Subject of the contract

3.1       The agreed quality of the delivery items is conclusively set forth in the Contract, in the relevant product description, specifically the relevant product data sheets, and in any other documents forming the basis of the Contract and any statements defining contractually appropriate usage given in the Contract. The Customer has no right to any quality of the delivery items extending beyond these descriptions.

 

3.2       Where a device or item is supplied together with the software necessary for the control or operation of the device, this software is supplied exclusively in the form of object code; the source code is not part of the contract. The software may only be used on or with the equipment or devices that is/are the subject of the contract.

 

3.3       Additional performance, such as setup of the devices or equipment, establishment of technical readiness for operation, performance of adjustments or provision of instructions or induction, only constitute part of the contract when expressly agreed in the Contract.

 

3.4       The user documentation supplied is intended to enable the Customer to use the devices or equipment correctly. The Customer has no right to any quality of the user documentation extending beyond this information.

 

 

4          Delivery period; force majeure; transport and transfer of risk; delay in delivery

4.1       Delivery times given on the attocube website are calculated from the time of order confirmation, assuming payment of the purchase price has been made (does not apply to purchases on account). Where the website states “on request”, customers must contact attocube for details of product delivery times.

 

4.2       If the product selected by the Customer is not available at the time of the Customer’s order, attocube will immediately inform the Customer of same in the order confirmation. If the product is permanently unavailable, attocube will not send confirmation of acceptance and no contract will be established.

 

4.3       Where attocube is unable to comply with binding delivery dates for reasons beyond its control, it will inform the Customer immediately of the delay, giving the expected new delivery date. If the product is not available within the new delivery period, attocube is entitled to cancel the contract in whole or in part; any payment already made by the Customer will be refunded immediately. Non-availability of performance in this case particularly denotes non-punctual delivery by attocube’s suppliers in cases where attocube has concluded a congruent hedging transaction, the circumstances are beyond the control of attocube and its supplier, or attocube is not obliged to procure the product in individual cases.

 

4.4       Where attocube is prevented from providing performance by an unforeseen exceptional event which it is unable to avert in spite of exercising all due care, particularly in the event of natural disasters, disruption to power supply or operations, official intervention, industrial action or other cases of force majeure, the agreed times of delivery and performance will be extended by the duration of the cause of the delay as well as by an additional reasonable run-up period after the cause of the impediment no longer applies. If it is impossible for attocube to provide performance in these cases, attocube will be released from its contractual obligations.

 

4.5       Unless otherwise stated in the Contract, the items ordered will be shipped at the expense of the Customer. Risk is transferred to the Customer when the items are passed to the party responsible for shipping, or have left the delivery works or warehouse to be shipped. If requested in writing by the Customer, transport insurance will be concluded at the Customer’s expense.

 

4.6       attocube delivers only to customers with a billing address in the following countries and that are able to give a delivery address: EU countries, USA and Canada

 

4.7       Commencement of delay in delivery is determined by the statutory legal provisions. A warning notice by the Customer is necessary under all circumstances.

 

 

 

5          Payment, payment methods

5.1       All prices stated by attocube are shown exclusive of statutory Value Added Tax at the applicable rate.

 

5.2       Costs of shipping and for any transport insurance requested by the Customer will be borne by the Customer. Customs duties, fees, taxes and other public charges will be borne by the Customer.

 

5.3       When submitting an order, the Customer may choose to pay in advance, on account or by PayPal.

 

5.4       In orders on account, the agreed order amount is due and payable within 14 days of receipt of the invoice and after delivery of the ordered goods to the Customer.

 

5.5       The Customer is deemed to be in arrears of payment upon expiry of this payment period. During the period of arrears the purchase price will be subject to interest at the applicable statutory interest rate. attocube reserves the right to claim further damages resulting from the arrears.

 

 

6          Retention of title

6.1       Transfer of the goods is subject to full payment of all claims, including future claims, of attocube due against the Customer from all business relationships.

 

6.2       The Customer will take the retained goods into custody for attocube in the customary manner. The retained goods must be insured by the Customer against fire, theft and transport risks.

 

6.3       During the period of retention of title, the Customer is prohibited from pledging the retained goods or transferring them by way of security.

 

6.4       Resale of the goods by the Customer is only permitted during the orderly course of business. In the event of resale of the retained goods, claims of the Customer against the purchaser of the goods to the amount of the remuneration due to attocube will be transferred to attocube with immediate effect, irrespective of whether the goods have been resold before or after processing. attocube accepts the transfer of the claims. The Customer is also entitled to collect these claims after their assignment. attocube’s authority to collect the claims themselves remains unaffected; however, attocube will refrain from collecting the claims while the Customer is duly meeting its payment obligations, is not in arrears and, specifically, while no application for bankruptcy proceedings has been filed or payments suspended. However, if this case ensues, attocube may require the Customer to disclose the assigned claims and their debtors to attocube, to provide all information required for collection of the claims together with the required documentation, and to inform the third-party debtors of the assignment of the claims; attocube is also entitled to inform the third-party itself.

 

6.5       Any processing, modification or transformation of the goods by attocube is always effected for attocube as the manufacturer as understood by Section 950 German Civil Code (BGB), without constituting any obligation on the part of attocube. In this case attocube’s contingent interest in the goods continues to apply to the transformed or modified item. Where the goods are processed or combined with other goods, attocube will automatically acquire co-ownership of the new item; in the case of processing, co-ownership is equivalent to the ratio of the value of the reserved goods to the value of the goods developed by the processing; in the case of combination, co-ownership is equivalent to the ratio of the value of the reserved goods to the value of the other goods. Where the Customer becomes the sole owner of the new item, the Customer will, with immediate effect, grant attocube co-ownership equivalent to the ratio of the specified values and will take the item into custody for attocube free of charge. If the items created by processing or combination are resold, the agreed advance assignment applies only to the equivalent value of the reserved goods.

 

6.6       The Customer undertakes to inform attocube immediately in writing if an application for bankruptcy proceedings is filed or if access to the reserved goods is effected by third parties, e.g. in the form of pledges.

 

6.7       In the event that the Customer infringes obligations, and particularly in the case of arrears on payment, attocube is entitled, after unsuccessful expiry of a reasonable period of grace, to cancel the contract and recover the goods. Statutory provisions concerning the dispensability of a period of grace will remain unaffected. The Customer is obliged to return the goods. If the Customer falls wholly or partly into arrears with a payment or suspends payment or if other justified doubts arise concerning the Customer’s ability or willingness to pay, the Customer will no longer be entitled to avail of the goods supplied by attocube. In this case attocube may revoke the Customer’s authorization to collect from the recipient of the goods. attocube will then be authorized to request information concerning the recipient of the goods, to notify the recipient that the claim has been transferred to attocube, and to collect the Customer’s claim against the recipient.

 

6.8       If the value of all collateral to which attocube is entitled under the above provisions exceeds the amount of collateralized claims by more than 10%, at the Customer’s request attocube will release a corresponding part of the collateral at its own discretion.

 

 

7          Granting of rights

7.1       Where a device is supplied together with the software necessary for the control or operation of the device, attocube will grant the Customer – subject to the following Section 7.2 – permanent non-exclusive rights of use to the software in the form of object code and, where applicable, the associated user documentation, for the purpose of operation of the device together with the device that form the subject of this Contract.

 

7.2       Where the software supplied with the device is external or third-party software (i.e. not produced by attocube), the Customer will be granted permanent non-exclusive rights of use for use of the software as intended, subject to the licensing conditions of the third party. The Customer acknowledges the corresponding contractual conditions and conditions of use of the external software manufacturer as binding and undertakes to comply with them.

 

 

8          Delayed acceptance by the Customer; liquidated damages

Where the Customer is in default of acceptance or omits to perform an act of cooperation, or where delivery is delayed for other reasons for which the Customer is responsible, attocube is entitled to charge compensation for any damage arising therefrom, including additional expenditure (e.g. storage or warehousing costs). In this case an all-in amount of EUR 40.00 per calendar day, starting with the delivery deadline or, in the absence of a delivery deadline, with the date of notification of readiness for dispatch, will be charged as all-in liquidated damages. The right to furnish evidence of higher damage and statutory claims (specifically: reimbursement of extra expenditure, appropriate compensation, termination of contract) will remain unaffected; however, the liquidated damages will be offset against further financial claims. The Customer reserves the right to furnish evidence that attocube suffered no damage, or lower damages than the above all-in compensation, from the delay.

 

 

9          The Customer’s obligation of inspection and notification of defects

            Assertion of rights and claims in the case of material defects assumes that the Customer complies with its obligation of inspection and notification of defects as set forth in Sections 377, 381 Subsection 2, German Commercial Code (HGB). Upon discovering a defect, the Customer must immediately notify attocube of same in writing. In the case of infringement of this obligation of inspection and notification of defects, the item will be deemed accepted with respect to the defect in question.

 

 

10        No assumption of guarantees by attocube

10.1      All technical data, specifications, explanations of functions and possibilities of use, and other information given in the product descriptions, descriptions of performance and user documentation are intended solely as descriptions of the nature and quality of the product and do not constitute any assumption of an independent guarantee (“selbständige Garantie”) or any guarantee of quality or durability (“Beschaffenheits- oder Haltbarkeitsgarantie”) on the part of attocube.

 

10.2      Statements by attocube concerning the object of performance only constitute independent guarantee (“selbständige Garantie”) or guarantees of quality or durability (“Beschaffenheits- oder Haltbarkeitsgarantie”) in a legal sense where they are issued in writing by the management board of attocube and are expressly and literally described as “independent guarantee” (“selbständige Garantie”), “guarantee of quality” (“Beschaffenheitsgarantie”) or “guarantee of durability” (“Haltbarkeitsgarantie”). The warranty rights pursuant to Section 11 remain unaffected.

 

 

11        Rights and remedies in the case of material faults

The Customer’s rights and remedies in the case of material faults are governed by statutory provisions unless otherwise stated in the provisions of Section 11 and Section 13 below.

 

11.1      A material fault is deemed to exist if the product delivered does not have the contractually agreed quality.

 

11.2      In the event of defects, attocube will remedy the fault at the Customer’s request by repairing the defect (reworking) or replacing the item with one that is free from defects (replacement) at its own discretion. The Customer may require attocube to provide a different form of remedy from that chosen by attocube within a reasonable period if acceptance of the form of supplementary performance chosen by attocube would be unreasonable. attocube’s rights under Section 439 Subsection 3, Section 275 Subsection 2 and 3 German Civil Code (BGB) remain unaffected.

 

11.3      In the case of material defects in the software, attocube is entitled to remedy the defect by supplying patches, updates or new software versions. attocube is entitled to supply a new software version where the new version has the same scope of functions as the software version that is the subject of the Contract and where acceptance of the new version may reasonably be expected of the Customer and will not entail significant disadvantages. Where a new software version is supplied, the Customer undertakes to return or delete the defective software.

 

11.4      Where reasonable for the Customer, attocube is entitled to inform the Customer of temporary workarounds or patches for the defect and to remedy the defect at a later date by supplying the next update or new software version released by attocube or – in the case of external software – by the manufacturer in question. If attocube chooses to exercise this right, this must be taken into consideration when determining a reasonable period for supplementary performance in line with the following Section 11.6.

 

11.5      The Customer will observe all instructions given by attocube, whether by telephone, in writing or electronically, within the scope of supplementary performance.

 

11.6      If the Customer sets attocube a reasonable time limit for supplementary performance but the supplementary performance is unsuccessful during this period, the Customer may undertake – assuming the specific legal conditions are fulfilled – to pursue its further rights to a reduction or, at its own discretion, withdraw from the contract and additionally, in cases where attocube is responsible for the defect, file claims for compensation in place of performance or for reimbursement of futile expenses under Section 284 German Civil Code (BGB), under application of the provisions in Section 13 below. However, the Customer is only entitled to withdraw from the contract and file for compensation in place of performance in the event of significant defects. Subsequent imposition of a deadline, declaration of withdrawal from the contract and filing for compensation in place of performance must be submitted in writing to be valid. No deadline need be set by the Customer in cases falling under Section 281 Subsection 2, Section 323 Subsection 2, and Section 440 German Civil Code (BGB).

 

11.7      After unsuccessful expiry of a deadline set for supplementary performance as under Section 11.6 above, the Customer must notify attocube in writing within a reasonable period of whether it intends to continue pursuing supplementary performance or to claim further rights as stated in Section 11.6 sentence 1. Where the Customer continues to pursue supplementary performance and attocube promptly announces such supplementary performance, the Customer will grant attocube a further reasonable period within which the Customer is not entitled to apply the rights stated in Section 11.6 sentence 1. Section 11.6 sentence 4 remains unaffected.

 

11.8      If investigation in connection with the defects reported by the Customer reveals that the Customer has no claims or rights against attocube under Section 11, attocube will be entitled to bill the Customer for any expenses incurred during investigation, based on attocube’s current prices, if the Customer has noticed or negligently failed to notice that the problem reported is not due to a defect, but to causes within the Customer’s own responsibility.

 

11.9      attocube accepts no liability for any changes or processing of the product by the Customer or third parties unless the Customer can prove that any defects occurring are not attributable to said changes or processing.

 

11.10    Claims by the Customer over a defect have a period of limitation of twelve (12) months, starting from the date of delivery. Statutory provisions governing periods of limitation will apply to claims for compensation and reimbursement of expenses due to breach of obligations on the grounds of intent or gross negligence, fraudulent concealment of a defect, material claims for restitution by third parties in accordance with Section 438 Subsection 1 sentence 1 German Civil Code (BGB), claims under the German Product Liability Act, or assumption of a guarantee of quality; however, in cases of assumption of a guarantee this only applies where not otherwise stated in the relevant guarantee or warranty agreement.

 

 

12        Rights and remedies in the case of defects of title

12.1      The Customer’s rights and remedies in the case of defects of title are governed by statutory provisions unless otherwise stated in the following provisions of this Section 12 and Section 13.

 

12.2      Defect of title is deemed to exist if the rights required for contractually agreed use of the goods and services cannot be effectively granted to the Customer.

 

12.3      If a third party files a claim against the Customer for breach of intellectual property rights by the products that are the subject of this contract, the Customer

 

(i) will immediately inform attocube of the claim in writing         

(ii)    will authorize attocube to conduct legal proceedings and negotiation of a settlement with the third party at its own expense and, as far as possible, alone, and will refrain from taking legal action unless with the agreement of attocube, and

(iii)   will provide attocube with all reasonable support and supply attocube with any necessary information and documents in its possession and with all necessary authorization.

 

12.4      In the event that the product that is the subject of the contract constitutes infringement of the rights of third parties, attocube will remedy the infringement at its own discretion by

 

(i)  modifying the product in such a way that it no longer constitutes an infringement of rights, yet continues to deliver the appropriate performance and scope of functions contractually agreed with the Customer, or  

(ii) purchasing rights of use for continued use of the product as adequate for the fulfilment of the contract and granting said rights to the Customer, or

(iii)  replacing the product with a different product of equivalent quality to that contractually agreed with the Customer, which delivers equivalent performance and does not entail significant disadvantages for the Customer.

 

In the case of sentence 1 Alt. (ii) and (iii), the Customer undertakes to return the product with defect of title.

 

12.5      In other cases the provisions governing material faults in Sections 11.5, 11.6, 11.7, 11.9 and 11.10 apply mutatis mutandis to defects of title.

 

 

13        Limitations of liability

attocube is liable for claims for compensation or for reimbursement of futile expenses in accordance with Section 284 German Civil Code (BGB), irrespective of their legal foundation, under the following provisions:

 

13.1      In accordance with statutory provisions, attocube has unlimited liability for damage resulting from injury to life, limb or health, for damage resulting from intent or gross negligence, and for damage falling under the scope of any guarantee (“selbständige Garantie”) or guarantee of quality or durability (“Beschaffenheits- oder Haltbarkeitsgarantie”) given by attocube, unless otherwise stated in the relevant warranty agreement.

 

13.2      In the case of forms of damage other than those given in Section 13.1 and resulting from breach of cardinal obligations due to minor negligence, attocube’s liability is limited to compensation for foreseeable damage typical of the contract. Cardinal obligations as understood in sentence 1 are obligations whose breach endangers achievement of the purpose of the contract, whose fulfilment constitutes a condition sine qua non, and on the fulfilment of which the Customer regularly relies.

 

13.3      Otherwise further liability for damage other than that given in Section 13.1, based on infringement of obligations other than those given in Section 13.2 due to minor negligence, is excluded.

 

13.4      Liability under the German Product Liability Act remains unaffected.

 

13.5      The liability provisions above also apply to personal liability on the part of employees, agents, legal representatives and bodies of attocube.

 

13.6      If the Customer fails to fulfil its obligation to perform correct data backup, attocube’s liability for data loss within the scope of the above provisions will be limited to the amount of damage that would have been incurred if the Customer had correctly performed regular data backups.

 

 

14        Confidentiality

14.1      The parties undertake to treat all information or objects representing industrial or business secrets or designated confidential (“confidential information”) acquired, made available or brought to their attention during the course of initiation or execution of the contract by the other party, with confidentiality for an indefinite period and to use them only for the purpose of fulfilment of the contract. The parties undertake to safeguard this confidential information in such a way that access by unauthorized third parties is excluded.

 

14.2      The Customer will provide confidential information only to employees and other third parties that require access to the information for the performance of their services to the Customer, and only to the extent of the authorization of use granted to the Customer under this contract. The Customer will inform employees and third parties who are granted justified access to the confidential information of their obligation to maintain confidentiality, and will obtain written undertakings from those persons to maintain the confidentiality of the information and restrict its use to the extent stated, unless the persons in question have already signed a confidentiality agreement covering the stated scope for other legal reasons.

 

14.3      The duty to maintain confidentiality does not apply to confidential information held by a contractual party which

 

(i)    is already public knowledge at the time of its disclosure, or

(ii)    becomes public knowledge after disclosure by the disclosing party without negligence by the receiving party, or

(iii)   was already in the lawful possession of the receiving party at the time of its disclosure by the disclosing party, or

(iv)   after its disclosure by the disclosing party, was lawfully disclosed by a third party not subject to limitations concerning confidentiality or use, or

(v)   was developed without recourse to the confidential information from the receiving party, or

(vi)   where disclosure by the receiving party is required by law; in this case the receiving party will immediately notify the disclosing party of the required disclosure and will support the disclosing party in preventing disclosure by legal means.

 

15        Data protection

            attocube will observe all relevant statutory data protection and privacy provisions. attocube will ensure its employees or other agents confirm their compliance with these provisions before commencing their duties; specifically, attocube will obtain their confirmation of compliance with data privacy provisions as per Section 5 German Data Protection Act.

 

16        Offsetting and right of retention

16.1      The Customer may only offset claims by attocube against its own counterclaims where said counterclaims are undisputed, res judicata or ready for a decision.

 

16.2      The Customer is only entitled to exercise right of retention when the counterclaim upon which the right of retention is based is undisputed, res judicata or ready for a decision and is based on the same contractual relationship.

 

 

17        Miscellaneous

17.1      All agreements between the parties are set forth in the contractual document of the Contract and its appendices. No further agreements apply.

 

17.2      Changes or additions to this contract must be submitted in written form to be effective. The decision to waive the written form must likewise be submitted in writing to be effective.

 

17.3      The Customer may only assign rights and obligations from this contract after obtaining prior written agreement by attocube. Section 354a German Commercial Code (HBG) remains unaffected.

 

17.4      attocube is entitled to call in subcontractors to fulfil its contractual obligations.

 

17.5      The law of the Federal Republic of Germany shall apply, with the exception of the rules that refer to another jurisdiction; application of the UN Convention on Contracts for the Sale of Goods (CISG) is expressly excluded.

 

17.6      If the Customer is a businessperson, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from and in connection with this contractual relationship is the domicile of attocube. attocube is also entitled to take legal action against the Customer at the latter’s place of general jurisdiction.

 

17.7      If a provision of these GT&Cs is or becomes invalid or unfeasible or has an omission, the validity and feasibility of the other provisions in these GT&Cs or Contract will remain unaffected provided it may be assumed that the parties would have concluded the contract nevertheless. The invalid provisions will be replaced by a provision that corresponds to the statutory provisions. If the parties have omitted to include an item requiring regulation in their contract, a provision will be included that the parties would be deemed to have included if they had been aware of the omission, taking both parties’ interests into consideration.