General terms and conditions coolershop

1. General
1.1. These sales terms and delivery conditions shall only apply to companies, corporate bodies under public law or special funds under public law in terms of § 310 i.V.m. § 14 BGB (German civil code), in the following referred to as "purchaser".

1.2. These terms of sale shall apply exclusively and are an essential part of all offers, contract acceptances and sales contracts; Any provisions conflicting with or deviating from these General Terms and Conditions shall be expressly excluded. , unless we accepted them in written form prior to the order. Our conditions of sale shall also apply if we execute a delivery knowing about the purchaser's deviating or conflicting conditions.

1.3. These sales terms and delivery conditions shall also apply to all future business with the purchaser, even if we do not explicitly point them out; and shall be valid until new conditions come into effect as we send them to the purchaser.

1.4. Members of our staff are not permitted to make agreements deviating from these conditions.

1.5. We reserve the right to change these terms and conditions. At any time the current version of these terms and conditions shall apply, whereas the time of disclosure to the purchaser shall be decisive.

2. Order/ Offer/ Conclusion of Contract
2.1. All information (e.g. product descriptions and quotations) on our website, in brochures or other advertising material) about our products are subject to change and non binding.

2.2. Incoming orders shall be considered as an offer to us for the conclusion of a contract  (§ 145 BGB, German civil code, which we can accept within 2 weeks by writing an order confirmation or by executing the order.

2.3. We are not bound to confirm the order immediately.

2.4. A simple confirmation of a received offer/order does not necessarily represent a declaration of acceptance.

2.5. Only the written form of our order confirmation shall be decisive for the scope of delivery and the contract conditions. Any side-agreements, amendments to or supplements of this agreement must be in writing in order to be valid.

2.6. Orders by e-mail do not require a signature.

2.7. As far as any special agreements have been settled for a contract, they shall expire upon the completion of the contract and shall not apply to concurrent or future contracts.

2.8. Declarations of intention, which we possibly execute within the course of contract conclusion shall always be subject to the timely and correct delivery by our own suppliers, unless we can be held liable for a possible wrong or non-delivery. In case of unavailability of the goods as specified in the contract we reserve the right to supply goods similar in quality and price. If the delivery of goods, which are similar in quality and price is not possible, we are entitled to withdraw from the contract. This shall only apply if we cannot be held liable for the unavailability of the promised goods and if we did not guarantee the delivery to the purchaser. We undertake to inform the purchaser immediately about the unavailability and to immediately reimburse the purchaser for possibly performed services in case of withdrawal from the contract.

3. Prices/ Payment Conditions
3.1. All prices are in EURO.

3.2. Unless otherwise stated in our order confirmation, the prices include delivery within Germany, except islands.

3.3. The VAT is not included in our prices but will be separately listed in the invoice at the legal rate on the date of invoicing.

3.4. We reserve the right for reasonable price changes in case of cost reductions or increases, especially changes in the material costs. On request we shall provide evidence hereof.

3.5. Our invoices are payable net cash immediately after receipt (prepayment). Other payment arrangements require an explicit agreement.

3.6. We are not obligated to accept cheques. The acceptance is only executed on account of performance. Any charges are for the purchaser's account.

3.7. The purchaser shall be entitled to offset payments against counterclaims only if the counterclaims are legally established, undisputed or acknowledged by us. Furthermore he shall have the right of retention as far as his counterclaim is based on the same contractual relationship.

4. Delivery
4.1. We shall be entitled to perform partial deliveries and to separately invoice therefore as far as no additional costs accrue for the purchaser.

4.2. Delivery dates are non-binding information unless expressly agreed to as binding. The start of a binding delivery period stated by us requires the clarification of all technical issues. The compliance with the time limit also requires the timely and proper fulfilment of the purchaser's obligations. The defence of non-performance is reserved.

4.3. If the purchaser comes into default of acceptance we shall be entitled to demand compensation for the damage occurring, including any additional costs. Further claims remain reserved.

4.4. Provided that the provisions of paragraph 4.4 apply, the risk of accidental loss or accidental deterioration of the purchased item is transferred to the purchaser at the time when he has come into default of acceptance or debtor's delay.

4.5. For the duration of the purchaser's examination of press proofs, samples, printing blocks, etc. the delivery time shall be interrupted. Namely from the day of shipment to the purchaser until the day of receipt of his written comment.

4.6. In case of non-binding delivery and performance dates we shall come into default of delivery and service obligations only if the purchaser sends us a reminder with definition of a reasonable period of grace, if this grace period expires and upon the fulfilment of the further legal provisions.

4.7. Our deliveries always are subject to correct and timely delivery by our suppliers and on-time arrival of goods. Delivery delays or failure to deliver caused by fault of our supplier (independent of negligence on our part) do not represent any default on our part.

4.8. If the purchaser demands modifications to the contract, which influence the production time, after we have confirmed the order, a new delivery time shall start, namely upon the confirmation of the modifications.

4.9. We cannot be held liable for any delivery or performance delays caused by force majeure or other circumstances, which occur after contract conclusion and which we cannot influence, e.g. labour disputes, official directives, etc., even if these circumstances occur at our suppliers or sub-suppliers. In such cases the delivery time shall be prolonged by the duration of the interference plus a reasonable start-up period, however not longer than 6 months. After this period both parties shall be entitled to withdraw from the contract. The same shall apply, if a significant disadvantage would arise to one of the parties.

5. Transfer of Risk
5.1. Unless otherwise specified in our order confirmation the delivery shall be arranged from our business headquarters.

5.2. We do not take back transport- and other packaging material, except pallets. The purchaser is obligated to arrange for disposal of the packaging material at his own expense.

5.3. If requested by the purchaser, we shall send the goods as insured parcel. The costs therefore shall be borne by the purchaser.

6. Retention of Title
6.1. The sold goods shall remain our property until the receipt of all payments arising from the business connection with the purchaser. In case of conduct contrary to the terms of the contract, especially in case of default of payment, we shall be entitled to take back the sold goods. Taking back the goods shall represent a withdrawal from the contract. After taking back the sold goods we shall be entitled to commercialise the goods. The proceeds of the sale shall be offset against the purchaser's payable account, deducted by a reasonable fee for the commercialisation.

6.2. The purchaser is obligated to handle the goods carefully.

6.3. The purchaser has to inform us immediately in case of garnishment or other interventions of a thrid party.

6.4. The purchaser shall be entitled to resell the goods within the ordinary course of business. However he shall assign right now all his claims against his customers up to the height of the invoiced amount (including VAT) of our claim to us. Even after assigning the claim to us the purchaser shall still be entitled to collect the receivables. Our entitlement to collect the claim ourselves shall hereby remain untouched. However, we undertake to not collecting our claim as long as the purchaser discharges all payment obligations, does not come into default of payment and as long as no insolvency proceeding is opened. In such a case we shall be entitled to request, that the purchaser informs us about the assigned account and the corresponding debtor, gives the appropriate information for collection, passes the corresponding documents to us and informs the debtor about the assignment.

7. Liabilities for Defects
7.1. Warranty claims of the purchaser require, that he has fulfilled all his obligations with respect to § 377 HGB (German Commercial Code).

7.2. In case of any fault of the sold goods we shall be entitled to supplementary performance in the form of removal of defects or in the form of delivery of new, faultless goods. In the case of removal of defects we shall be obligated to bear all costs arising in connection with the removal of defects, especially the transport and travel costs as well as work and material costs, unless those are not increased as the sold goods have been brought to another place than the place of delivery.

7.3. In case of a failure of the supplementary performance the purchaser shall be entitled to withdraw from the contract or to demand a reduction of the sales price at his option.

7.4. We shall assume liability according to the legal provisions if the purchaser asserts claims, which are based on intent or gross negligence by us or our agents or assistants. Unless we cannot be accused of an intentional breach of contract our liability for damages shall be limited to the predictable and typically incurring damage.

7.5. We shall assume liability according to the legal provisions in case of any culpable breach of an essential contractual obligation; in such a case our liability shall be limited to the predictable and typically incurring damage.

7.6. The liability for damages arising from death or injury to body or health shall remain unaffected. The same applies to the mandatory liability under the Product Liability Law.

7.7. Unless otherwise determined above the liability is excluded.

7.8. The limitation period for defect claims shall be 12 months starting with the transfer of risk. In the event of a delivery recourse in accordance with §§ 478, 479 BGB (German Civil Code) the legal period of limitation shall remain unaffected.

8. Compensation of Damages
8.1. Any liability, which is not stipulated in § 7 shall be excluded – regardless of the legal nature of the asserted claim. The same applies especially to claims in case of culpa in contrahendo, in case of other breach of duty or tort claims for property damages in accordance with § 823 BGG (German Civil Code).

8.2. The limitation according to point 8.1 shall also apply if the purchaser does not demand the compensation of the damage but the compensation of useless expenses instead of the performance.

8.3. As far as our liability for damages is excluded or limited, it shall also apply with regard to the personal liability for damages of our workers, employees, assistants, representatives and vicarious agents.

9. Industrial Property Rights and Copyrights of Third Party
9.1. As far as the delivered goods have been produced according to the design or instructions of the purchaser, the purchaser has to indemnify us from and against all third party claims, which are raised due to the infringement of industrial property rights or copyrights.

9.2. In case of deliveries of goods to other countries than Germany we assume liability only for infringements of patents, which are granted in Germany. Our liability shall be limited to the assignment of our claims against our suppliers.

10. Printing and Stamping Orders
10.1. Proofs and press proofs have to be checked by the purchaser with regard to setting errors or other errors and have to be confirmed to be ready for printing. We assume no liability for errors, which the purchaser is liable for. Texts or modifications which were transmitted by telephone need to be confirmed in writing by the purchaser.

10.2. We assume no liability for originals, as especially films, printing plates, data carrier, etc. (in the following referred to as “originals”, which the purchaser has surrendered to us. The originals have to be returned to the purchaser upon order completion. If the purchaser asks us to archive such originals for future orders, we shall be obliged to archive these originals for max. 2 years. After this period we shall be entitled to destroy the archived originals without prior notice.

10.3. With placing an order the purchaser does not acquire any property claim to the tools required for printing and stamping, etc. Upon completion of the order we shall delete or wreck these tools.

11. Place of Jurisdiction / Place of Performance
11.1. Provided that the purchaser is a merchant, a corporate body under public law or a special fund under public law, our legal seat shall be the place of jurisdiction. This shall also apply, if the purchaser does not have a place of general jurisdiction in Germany. However, we also shall be entitled to bring an action against the purchaser at the court of his legal seat.

11.2. The laws of the BRD (Federal Republic of Germany) shall be applicable; the application of the CISG shall be excluded.

11.3. Our legal seat shall be the place of performance.

12. Written form / Severability Clause
12.1. Alterations, amendments and side-agreements shall be in writing to be legally binding. The same shall also and especially apply to the waiver of the requirement of the written form. As far as the compliance with the written form is required the transmission via telefax shall be sufficient. An electronic data transmission (e-mail) shall only be sufficient, if it is accompanied by a qualified electronic signature under the Electronic Signature Act.

12.2. Should one or more of the provisions of these sales terms and delivery conditions be or become invalid, in whole or in part, or if the provisions are found to be incomplete, the validity of the remaining provisions shall remain unaffected. The invalid, infeasible or incomplete provision shall be replaced by an appropriate provision, which comes economically closest to the whole purpose of the respective provision.

Last update: 03.02.2009

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