§ 1 General information

1. The following Terms and Conditions of Sale and Delivery (hereinafter referred to as ‘GTC’) shall apply to all delivery services of Cool+Call GmbH (hereinafter referred to as ‘Contractor’) which are provided on the basis of contracts for work and labour, contracts for work and materials or purchase contracts, provided that the contractual partner (hereinafter referred to as ‘Customer’) is a natural person within the meaning of § 13 BGB (German Civil Code).
2. The order submitted by the customer is a binding offer. The Contractor may accept this offer within two weeks by sending an order confirmation or by dispatching the ordered goods within this period.

§ 2 Documents provided

The Contractor reserves the right of ownership and copyright to all documents provided to the Customer in connection with the order placement, e.g. calculations, drawings etc.. These documents may not be made accessible to third parties unless the Contractor gives the Customer its express written consent. If the Contractor does not accept the Customer’s offer within the period specified in § 1, these documents must be returned to the Contractor without delay.

§ 3 Prices and payment

1. Payment of the purchase price must be made exclusively to the Contractor’s specified account. The deduction of a cash discount is only permitted with a special written agreement.
2. Unless otherwise agreed, the purchase price must be paid within 10 days of delivery. Interest on arrears shall be charged at a rate of 5% above the respective base interest rate per annum. The assertion of higher damages caused by default remains reserved. In the event that the Contractor claims higher damages caused by default, the Customer shall have the option of proving to the Contractor that the claimed damages caused by default were not incurred at all or were at least significantly lower.

§ 4 Offsetting and rights of retention

The customer shall only be entitled to set-off if his counterclaims have been recognised by declaratory judgement or are undisputed. The customer is only authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

§ 5 Delivery time

1. The commencement of the delivery period stated by the Contractor is subject to the timely and proper fulfilment of the Customer’s obligations. The defence of non-performance of the contract remains reserved.
2. If the customer is in default of acceptance or culpably violates other obligations to co-operate, the contractor shall be entitled to demand compensation for the resulting damage, including any additional expenses. Further claims remain reserved. For its part, the customer reserves the right to prove that no damage at all or at least significantly less damage has been incurred in the amount demanded. The risk of accidental loss or accidental deterioration of the object of purchase shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
3. In the event of a delay in delivery that was not caused intentionally or through gross negligence, the Contractor shall be liable for each completed week of delay within the framework of a flat-rate compensation for delay amounting to 3% of the delivery value, but not more than 15% of the delivery value.
4. Other statutory claims and rights of the purchaser due to a delay in delivery remain unaffected.

§ 6 Eigentumsvorbehalt

1. The Contractor reserves ownership of the delivered item until all claims arising from the delivery contract have been paid in full.
2. The purchaser is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. If maintenance and inspection work must be carried out, the purchaser must have this carried out in a timely manner at his own expense. As long as ownership has not yet been transferred, the purchaser must notify the contractor immediately in writing if the delivered item is seized or subject to other interventions by third parties. If the third party is not in a position to reimburse us for the legal and extrajudicial costs of a lawsuit in accordance with Section 771 of the Code of Civil Procedure, the purchaser is liable for the loss incurred by the contractor.
3. The processing or transformation of the purchased item by the customer always takes place in the name of and on behalf of the contractor. In this case, the customer’s expectant right to the purchased item continues to apply to the transformed item. If the purchased item is processed with other items that do not belong to the contractor, the contractor acquires co-ownership of the new item in proportion to the objective value of our purchased item to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to the contractor and keeps the sole ownership or co-ownership thus created for the contractor. To secure the contractor’s claims against the customer, the customer also assigns to the contractor any claims that arise against a third party as a result of the combination of the reserved goods with real estate; the contractor hereby accepts this assignment.
4. The Contractor undertakes to release the securities to which he is entitled at the request of the Customer if their value exceeds the claims to be secured by more than 20%.

§ 7 Warranty and Notice of Defects

1. The buyer must notify us of any obvious defects in writing within four weeks of delivery of the contractual item.
2. The customer has the choice of whether the subsequent performance should be carried out by repair or replacement delivery. However, the contractor is entitled to refuse the type of subsequent performance chosen by the customer if it is only possible at disproportionate costs and the other type of subsequent performance remains without significant disadvantages for the customer. During the subsequent performance, the reduction of the purchase price or withdrawal from the contract by the customer is excluded. A subsequent performance is deemed to have failed with the second unsuccessful attempt, unless something else arises from the nature of the item or the defect or the other circumstances. If the subsequent performance has failed or the contractor has refused subsequent performance altogether, the customer can, at his discretion, demand a reduction in the purchase price (reduction) or declare withdrawal from the contract.
3. The purchaser can only assert claims for damages under the following conditions due to the defect if subsequent performance has failed or the contractor has refused subsequent performance. The purchaser’s right to assert further claims for damages under the following conditions remains unaffected.
4. Without prejudice to the above provisions and the following limitations of liability, the contractor is liable without limitation for damage to life, body and health that is based on a negligent or intentional breach of duty by its legal representatives or vicarious agents, as well as for damage that is covered by liability under the Product Liability Act, as well as for all damage that is based on intentional or grossly negligent breaches of contract and fraudulent intent on the part of its legal representatives or vicarious agents. Insofar as the contractor has given a quality and/or durability guarantee with regard to the goods or parts thereof, the contractor is also liable within the scope of this guarantee. However, the contractor is only liable for damage that is based on the lack of the guaranteed quality or durability but does not occur directly to the goods if the risk of such damage is clearly covered by the quality and durability guarantee.
5. The contractor is also liable for damages caused by simple negligence, insofar as this negligence concerns the violation of contractual obligations whose compliance is of particular importance for achieving the purpose of the contract (cardinal obligations). However, the contractor is only liable insofar as the damages are typically associated with the contract and are foreseeable. In the case of simple negligent violations of secondary obligations that are not essential to the contract, the contractor is not liable. The liability limitations contained in sentences 1 – 3 also apply insofar as the liability of legal representatives, senior employees and other vicarious agents is affected.
6. Any further liability is excluded regardless of the legal nature of the asserted claim. To the extent that the contractor’s liability is excluded or limited, this also applies to the personal liability of the contractor’s employees, workers, staff, representatives and vicarious agents.
7. The warranty period is 2 years, calculated from the transfer of risk. This period also applies to claims for compensation for consequential damages, provided that no claims based on tort are asserted.
8. The devices/systems covered by the contract require regular, comprehensive maintenance to ensure the safety and functionality of the devices/systems. The customer is responsible for any damage resulting from failure to conclude a maintenance contract.
9. If operating, assembly or maintenance instructions are not followed, changes are made to the products, the products are stored or handled improperly, parts are replaced or consumables are used that do not correspond to the original specifications, claims for defects in the products will be void if the customer does not refute a corresponding substantiated claim that one of these circumstances caused the defect.

§ 8 Right of withdrawal

Consumers have a statutory right of withdrawal. A consumer is any natural person who concludes a legal transaction for a purpose that cannot be attributed to either their commercial or their independent professional activity. The contractor will inform the customer separately about their right of withdrawal.

§ 9 Miscellaneous

1. This contract and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. Should any provision of this contract be void or contestable or ineffective for any other reason, the remainder of the contract shall nevertheless remain valid. The parties are aware that, according to the case law of the Federal Court of Justice, a severability clause merely leads to a reversal of the burden of proof. However, it is the express intention of the parties to maintain the validity of the remaining provisions in any case and accordingly to exclude the applicability of

• 139 BGB to exclude altogether. In such a case, the contracting parties undertake to replace the void, contestable or ineffective provision with one that comes as close as possible to its meaning and guarantees a corresponding economic success.