Terms and Conditions

Terms and Conditions of Cool + Call GmbH (as of August 2015)

1. General Information and Area of Application

1.1
All deliveries, services, and offers by Cool + Call GmbH are made exclusively on the basis of these Terms and Conditions. These shall also apply to all future business relations, even if they are not expressly agreed. These terms are deemed to have been accepted at the latest when the Customer receives the goods or services. Cool + Call GmbH hereby expressly rejects any counter-confirmation of the Customer under reference to its terms of business and/or purchase.
1.2
Any individual agreements reached with the Customer (including subsidiary agreements, supplements, and amendments) shall in all cases have precedence over these General Terms and Conditions. A written contract or written confirmation of Cool + Call GmbH is required for any such agreement to be valid. Only written declarations shall be legally binding.
1.3
Our Terms and Conditions of Sale shall apply exclusively to customers who are entrepreneurs pursuant to Section 14 of the German Civil Code.

2. Contract Subject Matter, Scope of Delivery, Reservation of Right of Modification

2.1
The agreement concluded with the Customer or binding offer of Cool + Call GmbH, if this was accepted in a timely manner, shall be authoritative for the scope of delivery. If no information on the scope of the delivery is contained in the agreement and/or in the binding offer, the scope of delivery shall be determined according to the written delivery requests of the Customer, insofar as Cool + Call GmbH does not contradict these within a week.
2.2
Our delivery obligation is subject to the timely and proper self-supply. This applies only in the event that the non-delivery is not attributable to Cool + Call GmbH, especially in case of the conclusion of a congruent hedging transaction with our supplier. The Customer shall be informed immediately regarding the non-availability of the service. The payment shall be reimbursed immediately. Cool + Call GmbH shall assign to the Customer its rights against a supplier with whom it has concluded a congruent hedging transaction in the scope in which the Customer has suffered damage due to late delivery, and shall hand in the contract with its supplier to the Customer; it shall also provide the Customer with all the information required to assert claims against the supplier.
2.3
Drawings, illustrations, measurements, weights, and other performance data are only binding if they have been included in the technical product description.
2.4
We reserve ownership and copyright of illustrations, drawings, calculations, and other documents, also in electronic form, unless they have been made by the Customer. This applies in particular to those documents which are designated as confidential. They may not be passed on to third parties without our express written consent.

3. Delivery Time, Lack of Performance by the Customer, Default in Acceptance

3.1
The agreement concluded with the Customer or binding offer of Cool + Call GmbH, if this was accepted in a timely manner, shall be authoritative for the delivery dates and deadlines. If no information on the delivery dates and deadlines is contained in the agreement and/or in the binding offer, the delivery dates and deadlines shall be determined according to the written delivery requests of the Customer, insofar as Cool + Call GmbH does not contradict these within a week. The delivery dates and deadlines are otherwise only binding if Cool + Call GmbH has confirmed these in writing.
3.2
The terms of delivery agreed upon begin with the conclusion of the contract, but not before the complete clarification of the particulars to be provided by the Customer with regards to the desired design and the technical questions to be answered by the same. The term of delivery shall not include the period in which the Customer is in arrears with an agreed payment, i.e. the term of delivery shall be extended by the period in which there were arrears. Compliance with the term of delivery is subject to timely and proper fulfilment of Customer’s obligations at all times. If the Customer causes a contract modification, which makes the compliance with the original delivery date impossible, the delivery deadline shall be extended to a reasonable extent.
3.3
The term of delivery is deemed met if factors causing the transfer of risk occurred within the term, in accordance with section 4.1. Cool + Call GmbH is entitled to partial deliveries and partial services at any time, unless the partial delivery or partial service is not reasonable for the Customer
3.4
The term of delivery shall be adequately extended - even within a delay period - in the event of force majeure and any unforeseeable obstacles that occur after the conclusion of the contract, for which Cool + Call GmbH is not responsible, insofar as these obstacles can be proved to influence the provision of the contractual service. This shall also apply if these circumstances occur at subsuppliers. Cool + Call GmbH shall inform the Customer as soon as possible of the start and end of such obstacles. If the obstacle lasts longer than three months, or if it is clear that it will last longer than three months, both Cool + Call GmbH and the Customer are entitled to withdraw from the contract.
3.5
If it becomes apparent after the conclusion of the Contract that the payment claim of Cool + Call GmbH is compromised by the inefficiency of its Customer, Cool + Call GmbH shall be entitled to refuse its services and actions in preparation for service provision. The right to refuse service is not applicable if payment has been made or a security has been provided for said service. Cool + Call GmbH can set a reasonable deadline for our Customer to make payment or provide a security. After the deadline expires, Cool + Call GmbH is entitled to withdraw from the contract. Cool + Call GmbH shall be entitled to completely or partially withdraw from the contract if the Customer files an application to open insolvency proceedings with regard to its assets, or if insolvency proceedings with regard to Customer’s assets are opened, or if Cool + Call GmbH becomes aware that the Customer has been classified as unworthy of credit when the contract is concluded, or if the Customer suspends its business operations.
3.6
For permanent supply relationships, the right to extraordinary termination without notice replaces the right of cancellation.
3.7
If the Customer does not accept the delivered goods on time, or if it is in arrears with the payment of the purchase price, Cool + Call GmbH may withdraw from the contract and/or request compensation instead of performance after a reasonable grace period set by Cool + Call GmbH has expired. In case of asserting claims for damages in lieu of performance, Cool + Call GmbH may request compensation without proof
- in the amount of 20% of the purchase price to compensate for lost profit, provided that the delivery item is a series or a standard product
- in the amount of 100% of the purchase price, provided that the delivery item is custom-made according to the specific requirements of the customer, and Cool + Call GmbH has incurred expenses due to preparation for delivery.
The Contracting Parties may provide proof of higher or lower actual damages. The rules for calculating compensation derived from the law shall remain unaffected, provided that Cool + Call GmbH has completely fulfilled its part of the contract. In case of default in acceptance by the Customer, Cool + Call GmbH shall also be entitled to charge for expenses incurred, in particular for storage costs. When goods are stored on our own premises, the local storage costs are calculated.
3.8
If Cool + Call GmbH defaults on delivery, it shall be liable only within the limits stated in section 8.

4. Delivery, Transfer of Risk, Transport Insurance

4.1
All shipments are sent at the expense and risk of the Customer. The risk is transferred to the Customer at the time when the delivery leaves the factory or warehouse of Cool + Call GmbH. This also applies if partial deliveries, which are permitted to a reasonable extent, take place. If delivery is delayed due to circumstances for which the Customer is responsible, then the risk shall be transferred to the Customer from the day the shipment is ready for dispatch.
4.2
Cool + Call GmbH chooses the type of transport and the transport route at its discretion, except if agreed otherwise, without guarantee for the cheapest and/or fastest dispatch.
4.3
At the request of the Customer, and at its expense, deliveries shall be insured against theft, transport damage, or other insurable risks.

5. Price and Payment

5.1
The prices quoted, unless otherwise agreed, apply ex-factory or distribution depot, and include loading at the factory, packaging, transport, insurance, as well as VAT at the applicable statutory rate and other charges.
5.2
In case of contracts with an agreed delivery time of more than three months, Cool + Call GmbH may request a change in the agreed price to the extent that unpreventable price-determining factors, such as cost reductions or increases, occur following the conclusion of the contract due to collective agreements or changes to the material price. The price change must be limited to the extent that is necessary to balance the incurred cost reduction or increase. A party to the contract shall also have a right to adjust the price appropriately if the actual delivery date is more than three months due to delays for which the other party is responsible.
5.3
Our invoices, unless otherwise agreed, are due in full 10 days after the date of invoice. A payment will be deemed to have been made once Cool + Call GmbH can dispose over the amount (payment received). The deduction of a discount is only permissible upon separate written agreement.
5.4
The legal regulations regarding consequences of late payment shall apply.
5.5
Despite any provisions to the contrary by the customer, Cool + Call GmbH shall be entitled to offset payments first against the customer's older debts, and shall inform the customer correspondingly of how payments have been attributed. If costs and interest have already been incurred, Cool + Call GmbH shall be entitled to offset the payment first against these costs, then against the interest, and finally against the principal service.
5.6
The Customer shall only have the right to offsetting and retention if its counterclaims have been legally established, are undisputed or acknowledged by Cool + Call GmbH. In addition, it is only entitled to exercise a right of retention when its counterclaim is based on the same contractual relationship.
5.7
Cool + Call GmbH may calculate interest in the amount of 9 percentage points p.a. above the applicable base rate from the time of default.
5.8
If the Customer defaults on payment of a claim, all other claims against the buyer may be declared due. The Customer shall bear all fees, costs, and expenses incurred in connection with any successful proceedings brought against it.

6. Retention of Title and Other Securities

6.1
Cool + Call GmbH reserves right of ownership to the delivered goods (reserved goods) until full payment of all liabilities (including any ancillary claims and any expenses incurred in the interests of the Customer) resulting from the business relationship with the Customer. For current accounts (current account relationship), the retained ownership shall apply as security for our balance claim, also if payments are made on specifically designated claims. The Customer acknowledges the balance when it does not contradict the balance notification within two weeks of receipt.
6.2
Manufacturing and processing of the reserved goods is carried out for Cool + Call GmbH as the manufacturer within the meaning of section 950 of the German Civil Code, without any obligation on the part of Cool + Call GmbH. The modified and processed goods shall be deemed reserved goods pursuant to para. 1. If the Customer undertakes manufacturing and processing, combining, or mixing of reserved goods with goods of a different origin into a new object or a mixed item, Cool + Call GmbH shall have joint ownership of it, in the proportion of the invoice value of the reserved goods at the time of delivery to the value of the other processed or mixed goods. The co-ownership share shall be deemed goods subject to retention of title pursuant to para. 1. The Customer shall safeguard our joint ownership free of charge, and with professional diligence.
6.3
If the reserved goods are combined with other goods, and an object belonging to the Customer is regarded as a principal object within the meaning of section 947 of the German Civil Code, it is hereby agreed that a co-ownership share in proportion to the invoice value of the reserved goods to the value of the principal object shall be assigned to Cool + Call GmbH, and the Customer shall store the object on behalf of Cool + Call GmbH free of charge. The co-ownership share shall be deemed goods subject to retention of title pursuant to para. 1.
6.4
The Customer may resell the reserved goods in the ordinary course of business under its normal conditions, and acc. to an agreement of a retention of ownership to the extent stipulated by Cool + Call GmbH, if it is ensured that Customer’s claims from the resale, in accordance with the paragraphs 6 to 8, will be assigned to Cool + Call GmbH.
6.5
The Customer hereby assigns to Cool + Call GmbH the receivables from the resale of the reserved goods, with all subsidiary rights, also within the context of factory or factory supply contracts. They shall be utilized as collateral in the same manner as the reserved goods. The Customer is only entitled to assign the receivables to third parties with our prior written consent. Without the need for any special notice, the Customer herewith also transfers all security interests against its customers, proportionately to the value of the receivables and rights assigned to Cool + Call GmbH as part of the extended reservation of title. Insofar as this is not possible, the Customer shall proportionately pay the collected receivables and the proceeds from the use of the security interest to Cool + Call GmbH. The Customer assigns to Cool + Call GmbH its right against its customers to grant a construction lien and to provide securities in accordance with section 648 of the German Civil Code. We accept the foregoing assignments.
6.6
If the Customer sells the reserved goods together with other goods not supplied by Cool + Call GmbH, the assignment of the claim from the resale applies only to the amount of the invoice value of the reserved goods at the time of the delivery. For the sale of goods, of which Cool + Call GmbH is a co-owner pursuant to para. 2 of para. 3, the assignment of the receivables applies in the amount of this co-ownership share.
6.7
If the assigned claim is included in a current account, the Customer assigns to Cool + Call GmbH at this time a part of the balance in the amount of such a claim, including the closing balance, from the current account.
6.8
The Customer is entitled to collect claims from the resale until further notice.
6.9
The customer must handle the goods with care, and sufficiently insure them at replacement value against fire, water, theft, and vandalism at its own expense.
6.10
The delivered goods must neither be pledged, nor used as security without consent. The Customer shall notify Cool + Call GmbH in writing, without delay, of any assignments or other third-party interventions with regards to the reserved goods, so that Cool + Call GmbH can initiate legal action in accordance with section 771 of the German Code of Civil Procedure. If the third party is not in the position to reimburse Cool + Call GmbH for the judicial and extrajudicial costs of a legal action pursuant to section 771 of the German Code of Civil Procedure, the Customer shall be liable for the damage suffered by Cool + Call GmbH.
6.11
If the Customer does not meet its obligations under this Contract or other contracts with Cool + Call GmbH, or if Cool + Call GmbH becomes aware of circumstances that diminish Customer’s creditworthiness, Cool + Call GmbH may prohibit resale, manufacturing and processing of the reserved goods, as well as their mixing or combining with other goods; the Customer's rights to ownership of the goods shall expire; Cool + Call GmbH shall then be entitled to enter the premises of the Customer, and to take possession of the reserved goods at the Customer's expense and, without prejudice to the payment and other obligations of the Customer, to sell them by means of a private sale or an auction at the highest price possible; sale proceeds shall be counted towards the Customer’s payables after deduction of costs incurred; any surplus shall be paid to the Customer; the Customer shall be obliged to communicate upon request the names of the debtors of the receivables that have been assigned to Cool + Call GmbH, so that Cool + Call GmbH may disclose the assignment and collect the receivables; all revenues from assignments due to Cool + Call GmbH shall be passed on to Cool + Call GmbH immediately upon receipt, if and as soon as claims of Cool + Call GmbH against the Customer become due; Cool + Call GmbH shall be entitled to revoke the Customer’s right to collect the claims assigned to it on its behalf.
6.12
If the value of the securities due to Cool + Call GmbH exceeds the receivables by more than 20% overall, then Cool + Call GmbH shall be obligated to release securities of its choice on Customer's request.

7. Notification of Defects, Rights on Account of Defects

7.1
The condition of the goods concerns in principle only the properties as agreed upon, as stated in the technical product description. Public statements, promotions, or advertising shall not contain any binding description of the agreed qualities of the goods. Profitability analyses and earnings forecasts contained therein are merely sample calculations, and are not binding. The Customer must report defects of any kind, stating the nature and extent of the defect in writing. Cool + Call GmbH must receive the complaint within eight business days after delivery (Saturday is not considered a business day); a complaint concerning hidden defects must be submitted immediately after their discovery. If the complaint does not correspond to the aforementioned requirements, the goods shall be deemed approved.
7.2
If the delivered goods have a defect, the Customer may demand subsequent performance, at the discretion of Cool + Call GmbH, either through remediation of the defect (rectification), or delivery of defect-free goods (replacement delivery). If Cool + Call GmbH is not ready or is unable to provide repair/replacement, in particular if this is delayed beyond a reasonable time for reasons for which Cool + Call GmbH is responsible, or the repair/replacement fails in any other way, then the Customer, provided further attempts at subsequent performance are unreasonable, is entitled to choose to withdraw from the contract or reduce the purchase price. The Customer can only withdraw from the contract due to a minor defect with the consent of Cool + Call GmbH.
7.3
Warranty claims shall be excluded in case of unsuitable or improper use or handling of the goods, natural wear and tear (in particular of wear parts), unsuitable equipment or operating conditions, etc.
7.4
The limitation period for material defects shall be one year, subject to sentence 2. In the event of culpable loss of life, limb, or health, and in cases of intent or gross negligence, the limitation period for claims for defects shall be two years.
7.5
Cool + Call GmbH shall be liable for damages due to defective goods only within the limits stated in section 8.
7.6
Inasmuch as the defective goods are third-party products, Cool + Call GmbH shall be entitled to assign its warranty claims against its subsuppliers to the Customer, and to advise it with regards to the (legal) recourse. A claim based on sections 7.2 and 6 can only be asserted against Cool + Call GmbH if the claims against its subsuppliers are not enforceable despite (legal) action being taken in good time, or if a legal action is unreasonable in individual cases.

8. Limitations of Liability

8.1
Cool + Call GmbH shall be liable in accordance with the provisions of the Product Liability Act, as well as in cases of culpable incapacity and culpable impossibility. Furthermore, Cool + Call GmbH shall be liable for damages in accordance with statutory provisions in cases of wilful misconduct, gross negligence, when a guarantee has been given, as well as in case of loss of life, limb, or health attributable to Cool + Call GmbH. If Cool + Call GmbH violates a cardinal obligation (i.e. an obligation that must be performed to allow for the proper execution of the contract in the first place, and on the compliance of which the contractual partner may rely, and duties whose breach jeopardises the achievement of the purpose of the contract) due to ordinary negligence, the liability of Cool + Call GmbH shall be limited to the foreseeable damage usual for this kind of contract. In all other cases of liability, claims for damages due to breach of an obligation, as well as those due to unauthorized actions shall be excluded from the contractual obligation, so that Cool + Call GmbH shall not be hold liable for lost profits or other financial losses of the Customer.
8.2
If the liability of Cool + Call GmbH is excluded or limited based on the above provisions, this shall also apply to the personal liability of the employees, workers, co-workers, representatives, and agents of Cool + Call GmbH.
8.3
The limitation of liability claims by the Customer against Cool + Call GmbH shall be based on section 4, unless it concerns claims arising from lawful acts, or those under the Product Liability Act.

9. Design Changes

Cool + Call GmbH reserves the right to make design changes at any time; however, it shall not be obliged to make such changes to products already delivered.

10. Property Rights of Third Parties

If property rights of third parties are violated in the process of manufacturing the goods in accordance with information supplied by the Customer (e.g. drawings, models, samples), the Customer shall indemnify Cool + Call GmbH against all claims in that respect.

11. Software Usage

Inasmuch as software is included in delivery, the Customer shall be granted a non-exclusive and non-transferable right to use the delivered software including its documentation; it is supplied exclusively for use with the specified delivery item. Any use, reproduction, revision, translation of the software, and a conversion of the object code into the source code for other purposes is prohibited.

12. Applicable Law, Place of Performance and Place of Jurisdiction

12.1
Unless otherwise agreed, the place of performance is Fellbach.
12.2
These General Conditions of Sale and all legal relations between Cool + Call GmbH and the Customer shall be governed by the laws of the Federal Republic of Germany, with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
12.3
To the extent that the Customer is a businessman within the meaning of the German Commercial Code, a legal entity under public law, or a public special fund, the place of jurisdiction for all rights and obligations of the contracting parties resulting from transactions of any kind shall be the registered address of Cool + Call GmbH. However, Cool + Call GmbH shall also be entitled to sue the Customer at its place of residence.

13. Final provisions

13.1
Should one of the clauses of these General Sales Conditions, or of a provision in a contract concluded on the basis of these General Sales Conditions be invalid or unenforceable, such invalidity or unenforceability shall not affect any other terms or provisions. In case of an invalid or unenforceable provision or agreement, the parties to the contract shall work towards ensuring that this is replaced by a valid and enforceable provision or agreement, which corresponds to the economic purpose of the invalid or unenforceable provision or agreement to the extent permitted by law.
13.2
The parties to the contract are mutually obliged to take all reasonable measures which are necessary to achieve the objective pursued by the contract, and to refrain from any action which would jeopardize the achievement of the purpose of the contract.