Terms and conditions

§ 1 General 

(1) The terms and conditions of EcoCool GmbH (vendor) apply exclusively; conflicting or deviating terms and conditions of the purchaser are not binding unless their applicability had been consented to explicitly in writing. This applies in particular when delivery is rendered without reservation while having knowledge of conflicting or deviating terms and conditions.

(2) The laws of the Federal Republic of Germany shall apply; the applicability of UN-Sales Conventions is excluded.

 

§ 2 Quotations – Offer documentation

(1) All price quotations are valid for 60 days from date of offer, unless otherwise specified. The contract between vendor and purchaser becomes effective with the acceptance of the purchaser’s order and order confirmation by the vendor.

(2) Images, drawings, calculations and other documentation are subject to proprietary and copyrights. Before disclosure to a third-party the purchaser must obtain our express written permission.   

 

§ 3 Prices – Terms of Payment

(1) Unless otherwise agreed, our prices shall apply

         a) ex-works,

         b) excluding packaging of the goods, which is to be paid separately,

         c) excluding the statutory VAT which will be specified separately on the invoice in the legally applicable rate on the date of invoicing.

(2) Unless otherwise agreed, the purchasing price is to be settled net (without deduction) within10 days after invoicing date. Discount deductions will only be accepted when expressly agreed at conclusion of contract.

(3) In the case of significant irregularities in payment, the vendor is authorized to render delivery against prepayment.

 

§ 4 Terms of Delivery – Delay of Delivery

(1) Delivery date is the date of shipment. The vendor is authorized to deliver up to one week before the agreed date.

(2) Should the purchaser come in default of delivery or culpably infringe other obligations to cooperate, the vendor will be entitled to demand compensation for damages resulting therefrom.

(3) In case of damages resulting from delay of delivery, the vendor will be held liable only for deliberate or negligent breaches of duty. The proper and timely delivery by our sub-suppliers remains reserved. Unless the damages are due to a deliberate breach of duty, liability will be limited to predictable and typically emerging damages. The vendor shall only be liable in accordance with legal requirements, if the underlying purchasing contract is a fixed-date transaction in terms of § 286 Abs. 2 Nr.4 BGB or § 376 HGB.

(4) The vendor shall only be liable in a reasonable proportion to the delivery value at most to the invoice value of the delivery.

(5) Reasons beyond control such as malfunctions, labor dispute measures, force-majeure at the vendor or sub-suppliers, legal and regulatory measures, obstruction or delay of transport, disruption of energy supply or equivalent circumstances, entitle the vendor to partially or completely withdraw from contract.

 (6) The vendor shall accept liability for delay of delivery for each completed week of delay within the scope of a lump-sum compensation payment for default to the amount of 3% of the delivery value but not more than 15% of the delivery value.

(7) The vendor is entitled to make partial deliveries. These may deviate by up to 10% from the quantities agreed; in such cases, the agreed sales-price will decrease accordingly.

(8) In contracts with agreed partial deliveries (call-off contracts) the purchaser is obliged to accept delivery in approximately equal monthly installments, unless otherwise agreed. In the case of call-off contracts without fixed call dates, the deadline for the latest call of the entire call-off quantity is one year. In case of default of call-off, the vendor is entitled to charge partial quantities in four- week intervals such that the last installment is carried out at the end of the one-year period.           

 

§ 5 Packaging - Shipping

(1) Transport and other packaging in accordance with packaging regulations will not be taken back; with the exception of pallets. – The purchaser is obliged to provide for disposal of packaging at his own expenses.

(2) Unless otherwise agreed, standard pallets are to be exchanged for such of the same kind and quality.  When no pallet exchange takes place we are entitled to separately charge pallet costs in an adequate amount.

(3) The purchaser will bear all costs for possible transport insurance for delivery.

(4) Relevant for deviations in weight and quantity that cannot be accounted for by any of the parties, shall be the dispatch weight or the filling quantities determined at the site of the vendor.

 

§ 6 Defects – Liability for Defects

(1) Not considered as defects are

         a) Minor deviations in condition, material purity, color, and other characteristics.

         b) Minor deviations in vendor specification of cooling-performance, achieved under laboratory conditions 

(2) It is the obligation of the purchaser to verify the feasibility of the goods for their intended usage and to apply them according to the recommendations of the vendor. The vendor shall not be liable for damages resulting from usage that is not in accordance with these recommendations

(3) For damages resulting from defects of delivery, the liability of the vendor will only apply for deliberate or gross negligent breach of duty. Unless damages are due to a deliberate breach of contract, liability will be limited to predictable and typically emerging damages.

(4) The vendor shall only be liable in a reasonable proportion to the delivery value; at most to the invoice value of a delivery.

(5) The limitation period for defect claims is one year from the commencement of the statutory limitation period.   

 

§ 7 Joint Liability

(1) Extended liability for compensation as provided in  §4 and §6 is excluded. This applies particularly for claims for compensation from negligence in contract closure, other breaches of duty or tortious claims.

(2) The limitations as in section (1) also apply if the purchaser asserts a claim on replacement of useless expenses instead of the claim on compensation for the damage.

(3) As far as liability for compensation is excluded or limited, it also applies in regard to the personal liability of the vendor’s staff, representatives and subcontractors.

 

§ 8 Retention of Title

(1) The vendor retains the title to the purchased goods until receipt of all payments out of the sales contract.

(2) In the event of breach of contract by the purchaser, in particular default of payment, the vendor is entitled to demand the return of purchased goods. The demand for return of purchased goods does not represent a withdrawal from contract, unless explicitly declared in writing.

(3) A seizure of the purchased goods equals a withdrawal from the contract. After recovery of the purchased goods, the vendor is authorized to exploitation of the same. The proceeds obtained are to be deducted from the amounts payable by the purchaser, minus reasonable administrative costs.  

(4) Until final transfer of ownership, the purchaser is obliged to take proper care of the purchased goods; in particular to insure these at his own expense against fire, water and theft, at original value. Should maintenance or service work be necessary, these must be carried out at the expense of the purchaser.

In the event of seizures or other third-party interventions, the purchaser must inform the vendor immediately in writing. In this case the purchaser is obliged to compensate the vendor for court and out-of-court expenses for legal-actions in accordance with § 771 ZPO.

(5) The purchaser assigns all claims from a resale of the purchased goods to the amount of the invoice (including VAT) to the vendor. This applies irrespective of whether the goods were sold with or without further processing.  The vendor shall be authorized to collect these claims; the purchaser’s authority to collect remains unaffected by this. Should the purchaser be in default of payment, have filed an application for settlement or insolvency proceedings, or ceased payments, the vendor can request the purchaser to furnish all relevant information for collection to him and to notify the debtor (third-party) of the assignment.

(6) Processing and transformation of the purchased goods by the purchaser shall always be done for the vendor. Should the purchased goods be processed with other items not belonging to the vendor, the vendor will acquire co-ownership of the new items in the ratio of the value of the goods delivered under retention of title (final invoice value including VAT) to the value of the other goods at the time of processing.

For items created in processing, the same applies as for reserved goods.

(7) Upon request of the purchaser, the vendor undertakes to release the securities to which he is entitled as far as the realizable value of those securities exceeds the secured claims by more than 10 %. The choice of securities to be released shall be at the discretion of the vendor.

 

§ 9 Place of Jurisdiction – Place of Fulfillment

(1) If the purchaser is a merchant, the place of jurisdiction shall be the headquarters of the vendor. The vendor is entitled to file lawsuits at the registered office of the purchaser. 

(2) Unless otherwise specified, place of fulfillment shall be the headquarters of the vendor.