Terms and Conditions | pro KÜHLSOLE GmbH

§ 1 General – Scope

(1) Our terms and conditions of sale apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale, unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer without reservation, despite being aware of terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our terms and conditions of sale apply only to businesses within the meaning of Section 310(1) of the German Civil Code (BGB).

§ 2 Offer – Offer Documents

(1) If the order is to be classified as an offer in accordance with Section 145 of the German Civil Code (BGB), we may accept it within two weeks.
(2) We reserve ownership rights and copyright in illustrations, drawings, calculations and other documents. This also applies to written documents designated as ‘confidential’. The customer requires our express written consent before passing them on to third parties.

§ 3 Prices – Terms of Payment

(1) Unless otherwise stated in the order confirmation, our prices are “ex works”, excluding packaging; this will be invoiced separately.
(2) Statutory VAT is not included in our prices; it shall be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
(3) The deduction of a cash discount requires a specific written agreement.
(4) Unless otherwise stated in the order confirmation, the purchase price is payable net (without deduction) within 30 days of the invoice date. The statutory provisions regarding the consequences of late payment apply.
(5) The customer shall only be entitled to set-off rights if their counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, they shall be entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.

§ 4 Delivery time

(1) The start of the delivery period specified by us is subject to the clarification of all technical issues.
(2) Compliance with our delivery obligation is further subject to the timely and proper fulfilment of the customer’s obligations. We reserve the right to raise the defence of non-performance of the contract.
(3) If the customer is in default of acceptance or culpably breaches other obligations to cooperate, we shall be entitled to claim compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims or rights.
(4) Provided the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the point in time at which the customer is in default of acceptance or payment.
(5) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of Section 323(2)(2) of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to claim that their interest in the further performance of the contract has ceased to exist.
(6) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be attributed to us. Where the delay in delivery is due to a breach of contract arising from gross negligence for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to a culpable breach of a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) The customer’s other statutory claims and rights remain reserved.

§ 5 Transfer of risk – packaging costs

(1) Unless otherwise stated in the order confirmation, delivery is agreed to be “ex works”.
(2) Separate agreements apply to the return of packaging.
(3) If the customer so wishes, we shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
(4) Means of transport provided by the buyer for delivery must be available at the place of delivery in a condition fit for loading in good time. The seller may refuse to use such means of transport if they do not meet the applicable safety requirements. The seller shall not be liable for any consequences of a delay in delivery that may result therefrom.

§ 6 Liability for defects

(1) Claims for defects by the customer are subject to the customer having duly fulfilled their obligations to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB). In particular, the buyer must check within one week of receipt of the goods whether the labelling of the delivered packages corresponds to the goods ordered.
(2) Where the goods are defective, the customer is entitled, at their discretion, to subsequent performance in the form of rectification of the defect or to delivery of new goods free from defects. In the event of rectification of the defect or replacement delivery, we are obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, provided that these are not increased by the fact that the goods have been taken to a place other than the place of performance.
(3) Insofar as the customer has incurred expenses in connection with the subsequent performance, in accordance with the nature of the goods and their respective contractual purpose, for removal and installation as well as for attaching the goods to another item, we are obliged to reimburse the customer for the expenses incurred in this respect. However, this shall only apply if the defect was not yet apparent at that time or was not discovered as a result of gross negligence on the part of the customer.
(4) If the subsequent performance fails, the customer is entitled, at their discretion, to demand either rescission or a reduction in price.
(5) We shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of an intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) We shall be liable in accordance with the statutory provisions insofar as we culpably breach a material contractual obligation; however, even in this case, liability for damages is limited to the foreseeable, typically occurring damage.
(7) Insofar as the customer is otherwise entitled to compensation for damage in lieu of performance due to a negligent breach of duty, our liability is limited to compensation for foreseeable, typically occurring damage.
(8) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(9) Unless otherwise provided for above, liability is excluded.
(10) The limitation period for claims for defects is 24 months, calculated from the transfer of risk. This does not apply where the purchased item is typically used in a building and has caused the defect. Provided the goods are used properly, the seller provides a 5-year warranty for the warranted characteristics listed in the technical data sheets for the respective product. The technical data sheets can be downloaded as a file from the Seller’s website or, upon request, sent by the Seller as a printed version. The content of the technical data sheet at the time the sales contract is concluded shall be decisive for the validity of the properties. However, a prerequisite for the forementioned 5-year warranty is that the seller receives a reference sample from the filled system for inspection 6–10 weeks after the system is first filled with and thereafter once a year.
(11) The statutory provision regarding the limitation period in the event of a supply recourse claim under Section 445b of the German Civil Code (BGB) remains unaffected.

§ 7 Total liability

(1) Any liability for damages beyond that provided for in § 6 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault at the time of conclusion of the contract, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB.
(2) The limitation under paragraph (1) shall also apply insofar as the customer demands reimbursement of wasted expenditure in lieu of a claim for compensation for damage in lieu of performance.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, staff, representatives and vicarious agents.
(4) If the seller’s instructions for use set out in the technical data sheets incorporated into the sales contract are not followed, or if modifications are made to the products, parts are replaced or consumables are used that do not comply with the original specifications, claims for defects in the products shall lapse unless the buyer refutes a substantiated assertion that one of these circumstances caused the defect.

§ 8 Retention of title

(1) We retain title to the goods until all payments under the supply contract have been received. Should the customer act in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the goods. Our taking back of the goods shall constitute a withdrawal from the contract. Following the taking back of the goods, we are authorised to realise their value; the proceeds of such realisation shall be set off against the customer’s liabilities – less reasonable costs of realisation.
(2) The customer is obliged to treat the goods with due care; in particular, they are obliged to insure them at their own expense against fire, water and theft damage at replacement value. Where maintenance and inspection work is required, the customer must carry this out in good time at their own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we may bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action in accordance with Section 771 ZPO, the customer shall be liable for the loss incurred by us.

(4) The customer is entitled to resell the purchased goods in the ordinary course of business; however, he hereby assigns to us, on a non- basis, all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the purchased goods have been resold unprocessed or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. We undertake, however, not to collect the claim as long as the customer meets their payment obligations from the proceeds received, does not fall into arrears and, in particular, no application has been made to open composition or insolvency proceedings or payments have been suspended. Should this, however, be the case, we may demand that the customer discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
(5) Any processing or transformation of the purchased goods by the customer shall always be carried out on our behalf. If the purchased goods are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased goods (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered subject to retention of title.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the principal item, it is agreed that the customer shall transfer proportionate co-ownership to us. The customer shall hold the resulting sole ownership or co-ownership in safe custody on our behalf.
(7) The customer shall also assign to us the claims arising against a third party as a result of the combination of the purchased goods with immovable property, as security for our claims against him.
(8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be at our discretion.

§ 9 Place of jurisdiction – Place of performance

(1) If the customer is a trader, our registered office shall be the place of jurisdiction; however, we shall also be entitled to bring proceedings against the customer at the court for their place of residence.
(2) The law of the Federal Republic of Germany shall apply.
(3) Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.
(4) Should any provision in these terms and conditions or any provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
(5) Any ancillary agreements, representations, amendments or additions to these terms and conditions or to the contract must be in writing and must be expressly identified as such.
(6) Rights arising from the entire contractual relationship may only be assigned with the prior written consent of the Seller.