General Terms and Conditions for Entrepreneurs

§ 1 General information

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, insofar as the contractual partner (hereinafter referred to as ‘Customer’) is an entrepreneur within the meaning of Section 14 BGB (German Civil Code) and the contract is part of the operation of the company and vis-à-vis legal entities under public law and special funds under public law within the meaning of Section 310 (1) BGB.
These terms and conditions apply exclusively. Conflicting or deviating terms and conditions of the client shall not become part of the contract. This shall also apply if such terms and conditions are not in direct conflict but would merely supplement the contractual provisions. Exceptions require our express written consent. Our terms and conditions shall also apply if we deliver to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions. Within the framework of long-term business relationships, the following terms and conditions shall be deemed to have been agreed in the same way for all subsequent deliveries. Counter-confirmations of the customer shall not become an integral part even if they have not been objected to in a separate letter. The objection expressed in these terms and conditions shall apply comprehensively, including for all future transactions.
These General Terms and Conditions shall become an integral part of the contract in the version valid at the time the contract is concluded. This applies in particular to ongoing business relationships.

§ 2 Contract content

The content of the contract shall be based primarily on the content of the Contractor’s order confirmation. In addition, the following documents shall apply to the content of the contract in the order of precedence of the numbering (the lower number shall take precedence over the following – if documents of a respective number are not available in the specific case, the number shall be omitted without replacement)
1. The Contractor’s written offer in the most recently prepared version
2. Negotiation protocol
3. These GTC
4. Service description
5. Provisions in the order letter that deviate from items 1 to 4
6. The provisions of the German Civil Code
An offer submitted by the contractor is valid for a period of 3 months.

§ 3 Prices

The prices stated in the order confirmation shall apply.
The Contractor’s prices apply within Germany.
The prices shall only apply if the entire contractually agreed scope of delivery is ordered. The statutory value added tax must be added in each case. § The prices do not include ancillary costs such as packaging, transport and insurance costs.
The prices do not include a levy for the statutory lorry toll of EUR 9.50 per order.
For deliveries made later than 4 months after conclusion of the contract, the Contractor reserves the right to adjust the prices with regard to wage and/or general price increases that have occurred in the meantime, in particular material costs. This applies in particular if employees are deployed for commissioning or other activities on site for the provision of the service.

§ 4 Delivery, commissioning

Delivery means the delivery of the subject matter of the contract to the construction site; commissioning means the installation of the machine, including setting the machine parameters, configuration of the software and all other adjustments required for proper operation. Where these GTC refer to delivery, this does not include commissioning.
The prerequisite for compliance with the delivery deadline is the timely and proper fulfilment of the Client’s obligations and duties. The delivery deadline shall be deemed to have been met if the goods have left the Contractor’s distribution centre or readiness for dispatch has been notified by the time it expires.
Compliance with the delivery time is subject to correct and timely delivery by our own suppliers. The Contractor shall notify the Client as soon as possible of any delays that become apparent. In the event of cancellation by the contractual partner, any payments already made shall be reimbursed immediately.
In the event of delays due to force majeure, strike, lockout, unforeseeable failure or delay in material or machine deliveries from the Contractor’s contractual partners, the delivery period shall be extended by the corresponding period.
If the hindrance lasts longer than 3 months, the client is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if the Contractor is released from its obligation, the Client may not derive any claims for damages from this. The Contractor may only invoke the aforementioned circumstances if it notifies the Client immediately.
Transport packaging and all other packaging shall not be taken back. The client is obliged to dispose of the packaging at his own expense.
If commissioning is contractually agreed, it shall be carried out on the date specified in the contract; if a date is not specified in the contract or if a date needs to be agreed for other reasons (e.g. postponement), this shall be done on the basis of a written date proposal from the Contractor. The client undertakes to participate in the commissioning and to confirm the commissioning in writing on site. With the written confirmation, the Client declares that the Contractor’s service has essentially been provided in accordance with the contract and thereby declares acceptance of the services.
The Client undertakes to create the conditions for timely commissioning, in particular to properly coordinate and organise the construction site and to ensure that all necessary preliminary work is completed by this date. If the commissioning cannot be carried out in full on this one-off date due to breaches of obligations by the Client or if the Client requires additional instruction/training beyond the commissioning date, additional remuneration shall be agreed for this on the basis of the contract prices. The Client undertakes to inform the Contractor immediately in writing in the event that commissioning cannot be carried out on the agreed date due to delays in the construction schedule or other reasons within the Client’s sphere of risk and to propose an alternative date as soon as possible and to agree this with the Contractor. The additional costs incurred by the Contractor as a result of this, in particular interim storage and conservation costs, shall be borne by the Client.
The content of the contract and the scope of delivery shall be governed by the components of the contract listed in § 2 ‘Content of the contract’. The Contractor is authorised to make minor deviations with regard to the type and quality of the goods to be delivered.
The Contractor shall be entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is of no interest to the Buyer.

§ 5 Transfer of risk, default of acceptance

The risk shall pass to the Client as soon as the consignment has been handed over to the person carrying out the transport or has left the Contractor’s warehouse or works for the purpose of despatch.
In the event of default of acceptance, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer at the point in time at which the customer is in default of acceptance.
If the Client is in default of acceptance, it shall reimburse the Contractor for the resulting additional costs, in particular the interim storage and preservation costs.
If the Client is in default of acceptance, the Contractor shall be entitled to refuse fulfilment of the contract after expiry of a grace period to be set by the Client and to demand compensation. The Contractor may also dispose of the goods elsewhere and supply the Client within a new reasonable period. The compensation shall amount to at least 30% of the agreed price, whereby the Client reserves the right to prove that no damage or less damage has been incurred. The Contractor reserves the right to provide evidence of higher damages.

§ 6 Retention of title

The Contractor shall retain title to the delivery item and all parts thereof until receipt of all payments from the delivery transaction with the Customer, as well as future claims arising from contracts concluded at the same time or at a later date. This shall also apply if individual or all of the Contractor’s claims have been included in a current invoice and the balance has been drawn and recognised. In the event of breach of contract by the customer, in particular in the event of default in payment, the

Contractor shall be authorised to take back the delivery item. The taking back of the delivery item by the Contractor shall not constitute a cancellation of the contract unless the Contractor has expressly declared this in writing. After taking back the delivery item, the Contractor shall be authorised to sell it; the proceeds from the sale shall be offset against the Client’s liabilities – less reasonable selling costs.

In the event of seizures or other interventions by third parties, the Client must notify the Contractor immediately in writing so that the Contractor can, if necessary, take legal action in accordance with the German Civil Code.

771 ZPO can raise.

The Client shall be entitled to resell the delivery item in the ordinary course of business; however, it hereby assigns to the Contractor all claims in the amount of the final invoice amount (including VAT) of the Contractor’s claim which accrue to the Client from the resale against its customers or third parties. The Customer shall remain authorised to collect these claims even after the assignment. However, this shall not affect the Contractor’s authorisation to collect the claim itself. However, the Contractor undertakes not to collect the claim as long as the Client fulfils its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed, such proceedings have already been opened or payments have been suspended. If this is the case, the Contractor may demand that the Client informs the Contractor of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment without delay.
Any processing or treatment of the goods subject to retention of title shall be carried out by the Client on behalf of the Contractor without any obligations arising for the latter. If the goods subject to retention of title are processed, combined, mixed or blended with other goods not belonging to the Contractor, the Contractor shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the goods subject to retention of title to the other processed goods at the time of processing, combining, mixing or blending. If the Customer acquires sole ownership of the item, the contracting parties agree that the Customer shall grant the Contractor co-ownership of the new item in the ratio of the processed, combined, mixed or blended goods subject to retention of title and shall store these for the Contractor free of charge.
If the delivery item or parts thereof have become an essential part of the Client’s property, the Client undertakes, in the event of default of payment, to allow the Contractor to dismantle the items that can be removed without significant impairment of the building structure and to transfer ownership of these items back to the Contractor. The dismantling and other costs shall be borne exclusively by the client. If the Client impairs the aforementioned rights, it shall be obliged to compensate the Contractor for damages.
The Client also assigns to the Contractor the claims to secure the Contractor’s claims against the Client which arise against a third party through the connection of the purchased item with a property.

§ 7 Terms of payment

In the case of pure delivery services, the invoice shall be issued upon delivery. The invoice amount is due within 30 days without deduction, unless otherwise agreed.
Insofar as commissioning of the equipment by the Contractor is agreed in addition to the delivery service, the following shall apply:

The Contractor is authorised to issue partial invoices for services rendered according to the progress of construction. Unless otherwise agreed, invoices shall be issued as follows: 1/ 3 upon order confirmation 1/ 3 upon notification of readiness for dispatch 1/ 3 upon delivery, but no later than 14 days after notification of readiness for dispatch, if the delivery is delayed by more than one month.

The payments are due immediately in full in each case. The final invoice is due in full upon receipt of the invoice.

The client is entitled to exercise the statutory rights of retention and rights to refuse performance on the basis of undisputed or legally established counterclaims. Beyond this, the client is not authorised to exercise rights to refuse performance or rights of retention.
If the Client is in default of payment, the Contractor shall be entitled to exercise a right of retention for all further services arising from the business relationship until the default of payment has been remedied. Insofar as the default does not extend to minor amounts, the Contractor shall be entitled to demand advance payment for all subsequent orders that have already been placed.
In the event of default, the client shall pay interest on the overdue amount at a rate of 9 percentage points above the base interest rate per annum. The possibility of asserting higher damages caused by default remains unaffected by this provision.

§ 8 Duties of co-operation/obligations of the client

The Client undertakes to coordinate the progress of the construction site and to take organisational precautions to ensure that the Contractor’s services, in particular delivery and commissioning, can be carried out on time.
The client undertakes to provide the preliminary services required for this, in particular the peripherals, pipework, etc., in good time.

§ 9 Liability; warranty; statute of limitations

The Contractor shall be liable without limitation for its own wilful or grossly negligent breaches of duty and such breaches of duty by its vicarious agents. The Contractor shall also be liable without limitation in cases of injury to life, limb or health and insofar as the Contractor has assumed guarantees. Otherwise, liability for slight negligence for damage not caused to the system supplied by the Contractor itself shall be limited to EUR 10,000.00. The mandatory provisions of the Product Liability Act remain unaffected.
Liability for wear and tear and normal wear and tear of the delivery item is excluded. There is also no liability for improper use of the delivery item or for unauthorised modifications, in particular the installation of third-party parts.
In the event of a breach of material contractual obligations, the Contractor shall be liable for any negligence, but only up to the amount of the foreseeable damage. Claims for loss of profit, saved expenses, claims for damages from third parties and other indirect and consequential damages cannot be demanded, unless a quality feature guaranteed by the seller is specifically intended to protect the buyer against such damages.
If the Client requests that rectification work be carried out at a location specified by him, the Contractor may comply with this request, whereby replaced parts shall not be charged, while working time and travelling expenses shall be paid at the standard rates.
Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality or in the event of only insignificant impairment of usability.
The client’s claims for defects are limited in accordance with § 377 HGB (German Commercial Code) in the event that the client has not properly fulfilled its obligations to inspect and give notice of defects. The individual provisions of § 377 HGB shall become part of the contract. In the event of defects that were not recognisable even during a proper inspection, the Client is obliged to inform the Contractor of these defects immediately after their discovery.
The devices/systems covered by the contract require regular, comprehensive maintenance to ensure the safety and functionality of the devices/systems. The client shall be responsible for any damage resulting from failure to carry out maintenance.
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 shall lapse if the customer does not refute a corresponding substantiated claim that one of these circumstances caused the defect.
A guarantee of quality or durability shall only be assumed by the Contractor if this has been expressly agreed in writing. The mere specification of performance data and the other contents of the service description do not constitute a guarantee of quality or durability.
The client’s claims for defects shall become time-barred 2 years after delivery of the item (in the case of purchase contracts and contracts for work and materials) or after acceptance (in the case of contracts for work and labour). In the case of contracts for work and services, the limitation period is 4 years if the client has concluded a maintenance contract (at least for the duration of the liability for defects period) no later than 3 months after commissioning. If the client does not accept the work within a reasonable period specified by the contractor, although he is obliged to do so, this shall be deemed equivalent to acceptance (§ 640 para. 1 sentence 3 BGB).the liability period for defects for spare parts ordered by the client in isolation is 12 months from delivery.
The liability for defects for deliveries whose final destination is outside of Germany is only granted for a period of one year, starting from the date of delivery, whereby free delivery is limited to Germany.

§10 Copyright and other industrial property rights

The Contractor expressly reserves all copyrights and other industrial property rights to illustrations, drawings, calculations, plans, data and other documents. Such documents may not be made accessible to third parties unless this is absolutely necessary for the Client to provide its own services for the specific project. This applies in particular to the Contractor’s offer and the order confirmation. All documents listed above shall remain the property of the Contractor and must be returned immediately at the request of the Contractor. Reproduction of the documents listed above is prohibited.

§11 Applicable law, place of jurisdiction, place of fulfilment

Rights and obligations arising from the contractual relationship and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for all disputes arising from the contractual relationship and its validity shall be the Contractor’s place of business. However, the Contractor shall also be entitled to take legal action at the Client’s place of business.
The place of fulfilment for all of the Contractor’s services is the Contractor’s place of business.

§ 12 Effectiveness

Should any provision of this contract be void or voidable or invalid 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 be excluded altogether. In such a case, the contracting parties undertake to replace the void, voidable or ineffective provision with a provision that comes as close as possible to its purpose and guarantees a corresponding economic success.