§ 1 General

1. The following service and maintenance conditions (hereinafter referred to as “GTC”) apply to all repair services on refrigeration units and their parts as well as other services in connection with refrigeration units such as the new installation of a corresponding system by Cool+Call GmbH (hereinafter referred to as “Contractor”) insofar as the contractual partner (hereinafter referred to as “Client”) is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) and the contract is part of the operation of the company and to legal entities under public law and special public funds within the meaning of Section 310 Paragraph 1 of the German Civil Code (BGB).
2. Contractual amendments and ancillary agreements require written confirmation by the Contractor to be effective.
3. These terms and conditions apply exclusively. Terms and conditions of the client that conflict with or deviate from these terms and conditions do not become part of the contract. This also applies if such conditions do not directly contradict but merely supplement the contractual provisions. Exceptions require the express written consent of the contractor. These terms and conditions also apply if the contractor acts for the client without reservation despite knowing that the client’s terms and conditions conflict with or deviate from these terms and conditions. In the context of long-term business relationships, these terms and conditions are deemed to be agreed in the same way for all orders. Counter-confirmations from the client do not become part of the contract even if they have not been contradicted in a separate letter. The objection expressed in these terms and conditions applies comprehensively, including for all future transactions.
4. With the transfer of the order, permission for trial operations is simultaneously deemed to have been granted.
5. The Client’s order is binding if it is accepted within 2 weeks of receipt by the Contractor by sending an order confirmation or if the Contractor starts carrying out the repair work within this period or if a written contract has been concluded in another way within this period.

§ 2 Cost information, cost estimate, termination of the client

1. The execution of repair work or other services is based on the rates for services provided by the Contractor that are valid at the time in question.
2. Where possible, the client will be given the estimated price when the contract is concluded, otherwise he can set cost limits. If the repair or other service cannot be carried out at these costs, or if it proves necessary to carry out additional work or use additional parts or materials, the costs can be exceeded by 20%.
3. If, during execution of the work, it becomes apparent that the costs will be exceeded by more than 20% in the interests of proper execution, the client must be informed of this and his consent will be deemed to have been given if he does not immediately object to an extension of the work.
4. If a cost estimate with binding price estimates is required before the repair or other service is carried out, this must be expressly requested by the client. Such a cost estimate is only binding if it is provided in writing and expressly stated to be binding.
5. If the client terminates the contract, whether due to exceeding the cost estimate or for other reasons, he must pay for the work and costs incurred up to that point, including the expenses for ordered and already procured spare parts as well as the profit.

§ 3 Due date and payment of the invoice amount

1. The invoice amount is due upon completion or acceptance of the repair or other service, but no later than the day the invoice is received. The invoice amount is to be paid without deduction.
2. The contractor may demand advance payment.
3. If the client defaults on payment, the contractor is entitled to exercise a right of retention for all further services arising from the business relationship until the default in payment has been remedied. As long as the default does not extend to minor amounts, the contractor is entitled to demand advance payment for all subsequent orders that have already been placed.
4. Complaints about an invoice must be made in writing and within 8 days of the invoice date.
5. The client is entitled to exercise the statutory rights of retention and refusal to perform due to undisputed or legally established counterclaims or to offset such counterclaims against the contractor’s claims. In addition, the client is not entitled to exercise rights of refusal to perform or retention or to offset.
6. The prices do not include VAT, which will be invoiced to the customer separately.
7. In the event of default, the client must pay interest on the outstanding amount at a rate of 9% above the base interest rate per year. The contractor reserves the right to claim higher damages for default.

§ 4 Cooperation of the client; technical assistance of the client

1. Unless otherwise agreed, the client must provide support to the repair personnel at his own expense when carrying out the repair work or any other service. In particular, at the request of the contractor, the client must provide assistants and resources (such as ladders, scaffolding, electricity, water, waste oil containers, a complete set of operating instructions and inspection plans, heating, etc.) as well as dry, lockable rooms for storing tools for the contractor’s employees at his own expense. In addition, the client must provide all materials and operating supplies at his own expense and carry out all other actions that are necessary to adjust the item being repaired and to carry out the test. The client must protect the repair site or construction site and materials from harmful influences of any kind. He is also responsible for cleaning the repair site or construction site and providing suitable theft-proof rest rooms with appropriate sanitary facilities and first aid for the contractor’s employees during the repair or the performance of any other service.
2. The protection of persons and property at the place of repair or other service is the responsibility of the client.
3. The client is obliged to ensure appropriate working conditions and safety at the place of repair or other service.
4. The contractor’s staff must be informed of the safety regulations to be observed – as far as necessary. Any violations of the safety regulations by the contractor’s staff must be reported to the contractor by the client.
5. The assistants must follow the instructions of the persons entrusted by the contractor with managing the repairs or other services. The contractor assumes no liability for the assistants provided. If a defect or damage is caused by the assistants as a result of instructions from the contractor’s responsible personnel, the provisions of §§ 12 and 13 apply accordingly.
6. The client must ensure that the repair or other service can begin immediately after the arrival of the personnel. Any delays that occur for which the client is responsible will be at his expense.
7. If the Client fails to fulfil his obligations, the Contractor is entitled but not obliged to carry out the actions in his place and at the Client’s expense.

§ 6 Deadline for carrying out the repair or other service

1. The information regarding repair times or any other deadlines are based on estimates and are therefore not binding.
2. If a repair deadline or other deadline is agreed in writing as binding, it is met if the object to be repaired is ready for acceptance by the customer by the time the deadline expires.
3. In the event of unforeseeable operational disruptions, e.g. work stoppages, absences from work due to illness of skilled workers, difficulties in procuring spare parts, delays in delivery or performance by suppliers, official interventions, force majeure or industrial disputes, binding delivery dates shall also be extended accordingly.
4. In the case of additional or extended orders placed later or if additional repair measures are required, the agreed repair period will be extended accordingly.
5. Any demonstrable damage caused to the client by the contractor’s delay will be compensated, but in the case of minor negligence, only up to a maximum of 5% of the repair price. All other claims for compensation are excluded in the case of minor negligence.
6. If the client grants the contractor in default a reasonable deadline, which must be set in writing – unless there is a statutory exception – and this deadline is not met, the client is entitled to withdraw from the contract. No further claims exist – notwithstanding Section 12 No. 3.

§ 7 Acceptance of a repair or other service, acceptance by the client

1. The contractor must inform the client of the completion of a repair and the termination of other services, in particular the new installation of a cooling unit. Sending the invoice also counts as notification. Completion replaces formal acceptance, acceptance is deemed to have taken place upon signing the report form; this also applies if an agent has carried out the work on site.
2. If acceptance is delayed through no fault of the Contractor, the repair service or other service shall be deemed to have been accepted after 12 working days have elapsed following notification of completion of the repair or other service or after 6 working days have elapsed following commencement of use, provided that the Contractor has previously informed the Client of this legal consequence.
3. If the repair or other service has not been objected to upon completion, upon signing of the report form or upon acceptance by the client, the subject matter of the contract shall be deemed to have been properly accepted.
4. Acceptance cannot be refused due to minor defects.
5. If the Client defaults on taking delivery, the Contractor is entitled to charge the Client storage costs or, in this case, to store the contractual object at a third location.

§ 8 Repair at the contractor’s premises; assumption of risk; transport

1. Any transport of the item to be repaired, whether necessary or carried out at the request of the Client for the purpose of repair at the Contractor’s premises – including any packaging and loading – shall be carried out at the expense and risk of the Client, unless otherwise agreed in writing.
2. The transport of the item to be repaired there and back is generally the responsibility of the customer, who also bears the risk of loss or damage during transport.
3. There is no separate insurance cover during the repair period at the contractor’s premises. The items handed over by the client for repair are not insured against fire, theft, transport and storage damage, etc. These risks must be covered by the client or will be covered by the contractor at the client’s express request and expense.
4. If the customer fails to take back the item being repaired, the contractor may charge storage fees equivalent to the cost of storing it elsewhere or arrange for it to be stored elsewhere. The costs and risk of storage shall be borne by the customer.

§ 9 Retention of title, extended lien

1. The contractor retains ownership of the delivery items and all parts thereof until all payments from the delivery process with the client, as well as future claims from contracts concluded at the same time or later, have been received. This also applies if individual or all claims have been included in a current invoice by the client and the balance has been drawn and acknowledged. If the client acts in breach of contract, in particular if payment is delayed, the contractor is entitled to take back the delivery items. Taking back delivery items by the contractor does not constitute withdrawal from the contract unless the contractor has expressly declared this in writing. After taking back the delivery items, the contractor is entitled to sell them; the proceeds from the sale are to be offset against the client’s liabilities – less reasonable disposal costs.
2. In the event of seizures or other interventions by third parties, the Client must immediately notify the Contractor in writing so that the Contractor can, if necessary, file an action in accordance with Section 771 of the Code of Civil Procedure.
3. The client is entitled to resell the delivered items in the ordinary course of business; however, he hereby assigns to the contractor all claims in the amount of the final invoice amount (including VAT) of the contractor’s claim that the client has from the resale against his customers or third parties. The client remains authorized to collect these claims even after the assignment. The contractor’s authority to collect the claim himself remains unaffected. However, the contractor undertakes not to collect the claim as long as the client meets his payment obligations from the proceeds received, does not fall into arrears and in particular has not filed an application for the opening of insolvency proceedings, such proceedings have already been opened or payments have been suspended. If this is the case, the contractor can demand that the client inform the contractor of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and inform the debtors (third parties) of the assignment.
4. If the reserved goods are processed, combined, mixed or blended with other goods that do not belong to the contractor, the contractor is entitled to the resulting co-ownership share in the new item in proportion to the value of the reserved goods to the other processed goods at the time of processing, combination, mixing or blending. If the client acquires sole ownership of the item, the contracting parties agree that the client grants the contractor co-ownership of the new item in proportion to the value of the processed, combined, mixed or blended reserved goods and stores them for the contractor free of charge.
5. If the delivered items or parts thereof have become an integral part of the client’s property, the client undertakes, in the event of default in payment, to allow the contractor to dismantle the items that can be removed without significantly affecting the structure and to transfer ownership of these items back to the contractor. The dismantling and other costs are borne by the client. If the client impairs the aforementioned rights, he is obliged to pay compensation.
6. As a precautionary measure, in the event that the client is not the owner of the repaired device or machine, the client assigns the claim and the expectancy to transfer of ownership or retransfer after complete settlement of existing third-party claims to the contractor and hereby irrevocably authorizes the contractor to fulfill the contract on behalf of the client. However, the contractor is not obliged to fulfill the contract in place of the client.

§ 10 Old parts

The disposal of old parts and other items that are no longer usable is the responsibility of the client. If statutory provisions are issued that stipulate otherwise, the client undertakes to reach an appropriate agreement with the contractor regarding recycling. It should be assumed that the contracting parties will use third parties to fulfill the recycling obligation.

§ 11 Claims for defects

1. The contractor is liable to the client for any repair defects or other defects in a work created by the contractor, the cause of which already existed at the time of transfer of risk, in such a way that he must, at his discretion, remedy the defects by making improvements in his factory or at the location of the repair item or the work, or by making a subsequent delivery. Any further claims by the client are excluded – without prejudice to No. 3 and Section 12.
2. Claims for defects expire 12 months after acceptance of the repair or other service. The discovery of such defects must be reported to the contractor immediately in writing. Defects in the repair item or other work carried out by the contractor that are not apparent upon acceptance must be reported to the contractor by the client immediately after they become apparent. If the client has improperly carried out repair work himself or had it carried out by a third party without the contractor’s consent, the contractor’s liability shall be void. The same applies if the replacement of parts in need of replacement is not carried out at the client’s request. Furthermore, the contractor is not liable for wear and tear or for improper use of the repair item or other work by the client.
3. If the contractor – taking into account the statutory exceptions – allows a deadline set for subsequent performance to pass without success, the client is entitled to the statutory right to a reduction in price. This right to a reduction also exists in other cases where subsequent performance fails. The client can only withdraw from the contract in accordance with the statutory provisions if the repair is demonstrably of no interest to the client despite the reduction.
4. Only in urgent cases or to prevent disproportionately large damage does the client have the right to remedy a defect himself or have it remedied by a third party. In these cases, the contractor must be informed immediately.
5. The contractor is not obliged to check whether there are any obligations of third parties to subsequent performance or other obligations resulting from defects. If the client’s claims for defects against third parties are lost due to repair work carried out by the contractor, the contractor shall not be liable for this.

§ 12 Other liability of the contractor and exclusion of liability

1. If, through the fault of the Contractor, the object of the order cannot be used in accordance with the contract by the Client as a result of omitted or incorrect execution of suggestions and advice made before or after conclusion of the contract as well as other contractual ancillary obligations – in particular instructions for the operation and maintenance of the object of the order – the provisions of Sections 11 Paragraphs 1 – 4 and 12 Paragraph 3 shall apply accordingly, excluding any further claims by the Client.
2. The contractor is liable for any damage to property caused by the contractor through negligence outside of liability for defects. In the case of minor negligence, liability is limited in terms of reason and amount according to the conditions and amount of any liability insurance that has been taken out or will be taken out. If no liability insurance has been taken out, liability in the case of minor negligence is limited to the amount of the fee for the repair or for the completion of the work.
3. Beyond these provisions, damages, including indirect damages, regardless of their nature and regardless of the legal basis on which they are claimed, will only be compensated by the Contractor
   • in case of gross negligence;
   • in the event of injury to life, body or health;
   • in the event of culpable breach of essential contractual obligations, insofar as the achievement of the purpose of the contract is endangered, with regard to the contract-typical, foreseeable damage,
   • in the case of defects that were fraudulently concealed or whose absence the contractor has guaranteed,
   • in cases where liability is incurred under the Product Liability Act;
   • in the absence of properties that were expressly guaranteed, if the guarantee was intended to protect the client against damage that did not arise from the object of the order itself.
4. The client’s claims for reimbursement of expenses are limited to the amount of the interest that the client has in the performance of the contract.
5. Otherwise, liability is excluded.

§ 13 Maintenance of the contractual equipment/systems

The devices/systems covered by the contract require regular, comprehensive maintenance to ensure the safety and functionality of the devices/systems. The client is responsible for any damage resulting from failure to conclude a maintenance contract.

§ 14 Jurisdiction

1. The place of performance for all services provided by the Contractor is the Contractor’s place of business.
2. The exclusive place of jurisdiction for all disputes arising from the contractual relationship and its validity is the contractor’s place of business. However, the contractor is also entitled to bring legal action at the client’s place of business.
3. 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).

§ 15 Effectiveness

Should a 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 thus to exclude the applicability of Section 139 of the German Civil Code (BGB) altogether. In such a case, the contracting parties undertake to agree on a provision that comes as close as possible to the meaning of the void, contestable or ineffective provision and guarantees a corresponding economic success.