General Terms and Conditions

General Sales Terms and Delivery Conditions

pro KÜHLSOLE GmbH
Am Langen Graben 37
52353 Düren
Germany

- hereinafter “Seller”

§ 1
Validity of the Terms

(1)
The seller’s deliveries, services and offers take place exclusively based upon these terms and conditions of business. These terms and conditions thus apply to app future business relations even if the terms and conditions are not explicitly agreed upon. These terms and conditions are considered accepted at the latest when goods and/or services are accepted. The sales terms and conditions also apply when the seller knows that the sales terms and conditions of the purchaser vary or conflict with those of the seller and deliver the purchase to the purchaser without reserve.   

(2)
All agreements that are made between the seller and the pur-chaser for the completion of this contract are required to be stipulated in written form in this contract. Changes, additions and/or supplementary agreements require the written form. Verbal repeals of the written form requirement are null and void.

(3)
These terms and conditions only apply to companies that are acting in their commercial or independent occupation at the time of closing the contract and to public legal entities and public separate estates.    

§ 2
Offers and Conclusion of Contract

(1)
The seller’s offers are subject to change without notice and are without obligation. Acceptance declarations and all orders required the written form or by electronic means (i.e. facsimile) in order to be effective by law.  

(2)
Dimensions, weights and other performance characteristics are only legally binding when they are listed in the seller’s data sheets. The data sheets can be downloaded from the seller’s website www.prokuehlsole.de or the seller can also provide the data sheets in printed form upon request.

(3)
The seller’s employees are not authorized to make verbal supplementary agreements or verbal warranties that go beyond the contents of the written contract.   

(4)
The seller retains the property and copy rights for all illustrations, technical data sheets and leaflets, calculations and all other documents.

Information about the subject matter of delivery or perfor-mance is not a guaranty about the nature of the goods unless the goods are explicitly labeled with their nature.  



§ 3
Weight and Amount

The amounts and weights listed in the good’s accompanying documents by the seller are decisive for the goods delivered.   


§ 4
Prices and Conditions of Payment

(1)
All prices are “ex works (EXW)” including normal packaging unless otherwise agreed upon in written form.

(2)
Prices do not include value-added tax (sales tax); the value-added tax will be added as a separate position in the invoice on the day of issuing the invoice.   

(3)
The prices included in the seller’s offers are subject to change without notice. Otherwise the prices listed in the seller’s order confirmation are decisive plus the appropriate value-added tax. Additional deliveries and services will be invoiced separately.  

(4)
The sales price is to be paid in full within 30 days of the date of invoice without deduction unless otherwise agreed upon and stated in the order confirmation. If the purchaser defaults then the seller is authorized to charge interest in the amount of 8% above the ECB base rate will be charged as a blanket compensation for the default. The seller is authorized to verify higher damages.  

(5)
The purchaser is authorized to offset, withhold or reduction of the purchase price, also when a notification of defects or counterclaims are invoked, only when the counterclaim has been legally determined, is uncontested or recognized by the seller. The purchaser is also authorized to retention in cases of counterclaims from the same contractual relationship.    

(6)
In the case that the seller receives information about a significant degradation of the financial situation then the seller is entitled to demand advance payment or collateral because of due and/or not yet due claims for contracts which are not completely or partially fulfilled, even if the seller previously received payment in the form of check. The seller can also deny delivery until the seller receives the advance payment or collateral.

(7)
A payment is considered made when the seller can dispose of the amount paid. In the case of check payments then payment is considered made with encashment of the check.  


§ 5
Delivery Time and Time of Performance

(1)
Delivery times or deliver periods, which can be agreed upon as binding or non-binding, require the written form.




(2)
The seller’s delivery dates are non-binding unless otherwise agreed upon in written form.

(3)
The seller does not have to uphold delivery periods or dates, even binding periods or dates, when the delivery and performance delays result from Acts of God and because of events that not only temporarily substantially prevent or complicate the delivery by the seller – this especially includes strikes, lock-outs, legal orders, etc. even if the above eventuate at the suppliers of the seller or their sub-suppliers. The above events authorize the seller to postpone delivery or performance for the period of the hindrance plus an appropriate start-up period. The seller can also partially or completely withdraw from the contract as a result of the uncompleted portion of the order.       

(4)
If the hindrance exists for longer than three months then the seller is authorized to withdraw from the uncompleted portion of the contract with regard to the partially uncompleted portion of the order after an appropriate grace period. If the delivery time is extended or if the seller is freed from his obligation then the purchaser cannot derive damages claims from the above. The seller can only take advantage of the above noted situations when the purchaser is immediately notified of the situation.     
 
(5)
If the seller cannot fulfill binding delivery periods and dates or is delayed then the purchaser is entitled to delay compensation in the amount of 0.5% for each completed week of delay. This above compensation is however limited to 5% of the invoice value of the affected delayed deliveries and performance. Further claims are excluded unless the delay is based upon the seller’s gross negligence.      

(6)
The seller is entitled to partial deliveries or partial per-formance at any time unless the partial deliveries or partial performance is not reasonable for the purchaser.


(7)
The seller’s adherence to the delivery and performance obligations requires that the purchaser also punctually and correctly fulfills their obligations.

(8)
If the purchaser defaults on acceptance then the seller is authorized to demand compensation for the incurred damages.    

§ 6
Passing of Risk

(1)
Unless otherwise stated in the order confirmation then the delivery is “ex works”. The risk of incidental deterioration or the incidental loss of the delivery item is also passed to the purchaser in cases of freight paid deliveries. This means that when the transport costs are covered by the seller then the risk is passed to the purchaser with surrender to the freight carrier.       

(2)
The selection of the transportation method and the transportation means takes place, unless another special agreement exists, to the best judgment of the seller without any liability for cheaper shipping or a shorter form of transportation.  

(3)
Means of transportation that are supplier by the purchaser for the delivery of the goods must be at the pick-up location punctually and in a loadable condition. The seller can deny the use of such means of transportation if they, in the seller’s opinion, do not fulfill the safety standards. The seller is not liable for the results of such a denial, e.g. late deliveries, etc.

(4)
The means of transportation and delivery packaging supplied by the seller are to be immediately unloaded after arrival at the delivery location. The seller is to be notified as soon as possible returnable packaging has been emptied so that the seller can organize the pick-up of this returnable packaging. The purchaser is responsible for possible damage to or loss of the returnable packaging.  

§ 7
Liability for Defects

(1)
Purchaser’s warranty claims require that the purchaser has correctly fulfilled his examination responsibility and his obligation to complain according to § 377 of the HGB (German Commercial Code).    


In particular, the purchaser must check the purchased goods to ensure that the labeling of the delivered goods is correct and that the delivered goods correspond with the goods listed in the invoice within one week of receiving the goods.

The purchaser must immediately (at the latest within two weeks of receipt) inform the seller of the receipt of delivery item in written form. The seller is to be immediately informed, in written form, of defects that cannot be found with careful examination within the above stated period.    

(2)
If the seller’s instructions for use, listed in the technical data sheets that are included in the sales contract, are not followed, changes are made to the products, parts are replaced by other parts or consumables are used that do not represent the original specification then all claims about the product’s defects are null and void when the purchaser cannot refute a substantiated claim that one of the above situations has caused the defect.    

(3)
In cases of lawful warranty claims the seller is required to select a method of eliminating the defect or must deliver a product that is free of defects. If the seller does not ful-fill this requirement within an appropriate period of time or if the subsequent improvement is repeatedly unsuccessful then the purchaser is authorized to reduce the purchasing price or to withdraw from the contract. Further claims, especially damages claims or reimbursement of expenses claims as a result of defects or consequential damage, only exist within the regulations in § 8.



(4)
The statute of limitation for warranty claims is, unless otherwise agreed upon, 12 months from the time of the passing of risk. In cases of correct use of the goods the seller takes over a warranty of five years for the characteristics listed in the technical data sheets for the appropriate product. The data sheets can be downloaded from the seller’s website www.prokuehlsole.de or the seller can also provide the data sheets in printed form upon request. The contents of the technical data sheet at the time that the contract is closed are decisive for the validity of the characteristics. A prerequisite for the five year warranty is that the seller receives a reference sample from the filled system for examination 6-10 weeks after the first filling of the system and once every year after this.   


(5)
The statute of limitation in cases of delivery recourse remain unaffected according to §§ 478, 479 of the BGB (German Civil Code).

(6)
Liability for service life warranties or character warranties and liability for maliciously concealed defects, in cases of intent, gross negligence and in cases of injury of life, body or health is not affected by the above regulations. In these cases the legal regulations and warranty periods apply.      

(7)
Liability for normal wear and tear is excluded.
(8)
On the direct purchaser is entitled to defects claims against the seller and this right is not transferable.  





§ 8
Liability

(1)
Damages claims are independent from the type of the breach of duty include un-allowed acts and are excluded unless intent of gross negligence exists.
(2)
In cases of violations of essential contractual obligations the seller is liable for every negligence, however only to the amount of those that might typically be predicted, contractually typical and immediate damages. Claims for lost profit, saved expenses from damages claims from third parties and all other indirect and consequent damages cannot be made unless the seller guarantees a characteristic of state which is aimed to protect the purchaser against such damages.

(3)
The liability limitations and exclusions in paragraph 1 and 2 do not apply to claims that that result from malicious behavior of the seller and in cases of liability for guaranteed characteristics of state, for claims according to the Product Liability Act and from damages to life, body or health.  
 

(4)
If the seller’s liability is excluded or limited then the same applies to the seller’s employees, workers, representatives and vicarious agents.

(5)
The seller’s liability in cases of contract violations is limited to sales price after tax of the affected goods. Furthermore, the liability for damages that result from defects in the goods or packaging are limited to the direct personal or physical damage.  


§ 9
Retention of Title

(1)

All goods shall remain the seller’s property until all the customer’s payments from the sales contract have been re-ceived. In addition, all goods shall remain the seller’s property until the customer has fulfilled all claims that the seller has against the purchaser in their entire business relationship. In cases of open invoices the retention of title for the delivery (goods subject to retention of title) is a security for the seller’s account balance invoice.  

(2)
Processing or alterations take place only with the seller as processor. However, the seller must not accept this responsibility. The purchaser’s receivable claims from onward sale of the retained title goods are hereby assigned to us and, more precisely, regardless of whether the re-tained-title goods have been processed or not and regardless of whether they were sold onward to one or more users. The surrendered claim acts as security on the value of the item only of the according sold goods subject to retention of title.  

(3)
The purchaser is authorized to sell or make further use of the goods unless they default on their payment. In any case the purchaser is now responsible for surrendering all total outstanding payments including sales tax that he receives by selling the goods to a third party regardless of whether the goods have been processed or not. The purchaser is not authorized to surrender the claim to banks or other third parties.

(4)
The purchaser may not pledge the delivered item or surrender it as security. If it is pledged, seized or disposed of in any other way by or to third parties, he must inform the seller without delay and must also inform the third party that the goods belong to the seller. If the third party is not able to refund the seller with the costs that are associated with such a transaction then the purchaser is responsible for these costs.  

(5)
In cases of purchaser behavior that is contrary to the con-tract – especially payment default – the seller is authorized to withdraw from the contract and can demand the return of the goods subject to retention of title.


§ 10
Applicable Law, Court of Jurisdiction, Void in Part

(1)
German law applies to these business terms and conditions and the complete legal relationship between the seller and the purchaser. UN sales law is excluded.



(2)
The court of jurisdiction for all claims resulting directly and indirectly from the contractual relationship is where the seller is based if the purchaser is a businessman, legal person for public law or public separate estate.

 (3)
Should a single aspect of these business terms and conditions or a regulation within other agreements become totally or partly invalid, then the validity of the other agreements or regulations remain unaffected.



§ 11
Final Provisions

(1)
Supplementary agreements, assurances, changes or additions to these terms and conditions or the contract require the written form and must be labeled explicitly as such.

(2)
Rights resulting from the entire contractual relationship can only be transferred with the previous approval of the seller.

sbeziehungen zwischen Verkäufer und Käufer gilt das Recht der Bundesrepublik Deutschland. Die Bestimmungen des UN- Kaufrechts finden keine Anwendung.
2) Soweit der Käufer Kaufmann, juristische Person des öffentlichen Rechts oder öffentlich-rechtliches Sondervermögen ist, ist der Sitz des Verkäufers ausschließlicher Gerichtsstand für alle sich aus dem Vertragsverhältnis unmittelbar oder mittelbar ergebenden Streitigkeiten.
3) Sollte eine Bestimmung in diesen Geschäftsbedingungen oder eine Bestimmung im Rahmen sonstiger Vereinbarungen unwirksam sein oder werden, so ist hiervon die Wirksamkeit aller sonstigen Bestimmungen oder Vereinbarungen nicht berührt.


§ 11 Schlussbestimmungen

1) Nebenabreden, Zusicherungen, Änderungen oder Ergänzungen dieser Bedingungen oder des Vertrages bedürfen der Schriftform und müssen als solche ausdrücklich gekennzeichnet sein.
2) Die Rechte aus dem gesamten Vertragsverhältnis dürfen nur mit vorheriger schriftlicher Zustimmung des Verkäufers abgetreten werden.

 

Stand 01.07.2008