General Terms and Conditions

Terms of Delivery and Payment

1.1
Deliveries, services and offers from Cool Italia are performed exclusively on the basis of these Terms of Delivery and Payment. The terms also apply for all future business transactions even if they are not explicitly agreed on again. These terms are deemed as being accepted on receipt of the goods or service at the latest. Conflicting conformations from the Purchaser with reference to his business and purchasing terms are herewith rejected.
1.2
All agreements drawn up between Cool Italia and the Purchaser for the purpose of fulfilling this contract must be submitted in writing.
2.1
Offers made by Cool Italia are subject to change and are non-binding. Declarations of acceptance and all orders must be confirmed by Cool Italia in writing to be considered legally valid.
2.2
Orders are also considered as accepted when Cool Italia delivers the product and invoice or delivery note.
2.3
Subsidiary agreements and assurances made by service staff or representatives of Cool Italia require written confirmation to take legal effect.
2.4
Drawings, illustrations, dimensions, weights, delivery times or other performance data only become binding when explicitly agreed in writing. We reserve right of ownership and copyright in respect of quotations, drawings and all documents; they must not be made accessible to third-parties.
2.5
We reserve the right to modify the construction or manufacture of the goods where this can be deemed reasonable for the Purchaser taking the interests of Cool Italia into account. Benchmarks for reasonableness on the part of the Purchaser are the effects on value and functionality of the goods and on the part of Cool Italia the technical requirements, particularly those related to production. Excess and short delivery up to 10% are permissible.
3.1
Prices are calculated ex Fellbach if nothing else has been agreed on. Prices are subject to change up to the time of execution of the order. Charges are made according to the prices valid on the date of dispatch. Any surcharges and reductions on prices will be charged or deducted when our suppliers also charge or deduct them. Errors and omissions in the pricing entitle Cool Italia to amend the charge.
3.2
Additional expenses, to cover packaging, transport and insurance costs, for example, are not contained in the prices. The relevant, legally valid rate of Value Added Tax must also be added to the prices.
4.1
Delivery dates and delivery deadlines are only binding when they are formally agreed in writing. Conditions for maintaining the agreed delivery dates are that all the technical queries have been clarified and payments or other obligations made of the Purchaser have been submitted or fulfilled in good time. Our obligation to deliver is suspended for periods in which there is a delay in the Purchaser fulfilling any of his obligations. The delivery date is deemed complied with if, at the moment of its expiry, the delivery item has left our plant or notification that it is ready for consignment has been sent. Subsequent requests for modifications and amendments submitted by the Purchaser result in a correspondingly reasonable postponement of the delivery date. Orders confirmed by us on a make-and-hold basis must be called off within one year following the date of order at the latest. The same applies for scheduled stocks or subsequent orders on demand.
4.2
Cool Italia cannot be deemed liable for delays in delivery or performance due to a force majeure or circumstances which make delivery by Cool Italia substantially more difficult, and not just temporarily, or impossible – this particularly applies to strikes, lock-outs, official regulations, etc., also if they occur at Cool Italia's suppliers or their subcontractors – even in the event the deadlines and dates had been agreed on in writing. Such occurrences entitle Cool Italia to defer delivery or performance for the duration of such a disruption and to the extent of their effect plus a reasonable break-in period or to withdraw completely or partially from the contract insofar as it has not yet been fulfilled.
4.3
Should such a delay continue for more than 3 months, the Purchaser is entitled to cancel the contract with respect to the part of the contract not yet performed following a reasonable period of grace. If the delivery time is extended or Cool Italia is relieved of its obligations, the Purchaser is not entitled to assert any claims for compensation. Cool Italia may only make claim to the circumstances described above when they informed the Purchaser immediately.
4.4
In cases where Cool Italia is responsible for failing to meet binding dates and deadlines or is in default, the Purchaser is entitled to compensation for delayed completion at a rate of ½% for each completed week of the delay but the overall amount must not exceed 5% of the value of the invoice for the deliveries and services affected by the delay. More extensive claims are excluded unless the default is due to gross negligence on the part of Cool Italia.
4.5
Cool Italia is entitled to supply part deliveries and partial performance at any time except in cases where the part delivery or partial performance is not in the interest of the Purchaser.
4.6
Rights to correct and punctual self-supply are retained. Cool Italia is obliged to inform the Purchaser immediately in the event the delivery item is unavailable and, in the case of withdrawal from the contract, pay the corresponding amount of compensation to the Purchaser immediately.
4.7
In the event of a delay in acceptance by the Purchaser, Cool Italia is entitled to request compensation for any resulting damage; the commencement of the delay in acceptance marks the transfer of the risk of accidental deterioration and accidental perishing to the Purchaser. If Cool Italia demands compensation for non-fulfilment, 20% of the agreed price is demanded as compensation without evidence, where it cannot be proven that the damage ensued is much less. Cool Italia reserves the right to assert a claim for higher actual damages.
4.8
Where the Purchaser has not issued instructions to the contrary, we will determine the means of transport, the transport route and the transport insurance without being responsible for selection of the quickest or cheapest option. Claims for damages due to defective packaging of the goods, failure to observe a packaging instruction or failure to observe a transporting instruction are excluded in respect of minor negligence by Cool Italia.
5.1
The risk is transferred to the Purchaser as soon as the delivery item is handed over to the person responsible for transport or has left the Cool Italia stores for dispatch purposes.If delivery is postponed on request of the Purchaser, the risk is transferred to the Purchaser and entered in the ready for consignment note.
6.1
Where nothing else has been agreed on, invoices from the Seller must be paid without deductions within 30 days of the date on the invoice. Despite contrary provisions of the Purchaser, Cool Italia is entitled to initially offset payments against the Purchaser's older debts and is obliged to inform the Purchaser about the method of offset. If costs and interest have already accrued, Cool Italia is entitled to offset payments first against costs, then against interest and finally against the main performance.
6.2
A payment is then considered as having been made when Cool Italia has access to the amount. In the case of cheques, payment is only deemed as having been made when the cheque has been credited. Bills of exchange will only be accepted on account of performance and after agreement subject to their eligibility for discount. Discount charges will be charged from the date on the invoice or of presentation of the invoice and at the standard rate.
6.3
If the Purchaser defaults on payment, Cool Italia is entitled to demand interest at a rate of 8% above the basic interest rate of the German Federal Bank (Deutsche Bundesbank) from the 31st day after the date on the invoice. Interest rates must be applied at a lower rate if the Purchaser demonstrates lower damages; proof of higher damages on the part of Cool Italia is permissible.
6.4
If Cool Italia becomes aware of circumstances which jeopardize the creditworthiness of the Purchaser, particularly if a cheque is not cashed or his payments cease or if Cool Italia becomes aware of other circumstances jeopardizing the creditworthiness of the Purchaser, Cool Italia is entitled to demand the remaining amount owed even if Cool Italia has already accepted a cheque. In such a case, Cool Italia is also entitled to demand advance payments or collateral security.
6.5
The Purchaser is only entitled to offset, withhold or reduce payment, even if notices of defects or counter claims are being asserted, if the counter claims have been assessed with legal effect or are not contested. The Purchaser is, however, also entitled to withhold payment due to counter claims arising from the same contractual relationship.
6.6
In the event of defects, the Purchaser has no right of retention unless the consignment is obviously defective; in such a case, the Purchaser only has the right to withhold payment to an extent that the retained amount is proportionate to the defects and the estimated costs of supplementary performance (in particular, the cost of rectifying a defect).The Purchaser is not entitled to assert claims and rights regarding defects when the Purchaser has not settled outstanding payments and the amount due (including any payments already made) is reasonably proportionate to the value of the delivery afflicted with the defects.
7.1
Until all payment claims to which Cool Italia is entitled from the Purchaser for any legal reason, now or in the future, have been met (including all current account balance amounts), Cool Italia will be granted the following securities which will be released on demand according to his discretion as soon as the value of the securities is permanently more than 20% above the amount of the claims.
7.2
The goods remain the property of Cool Italia. Processing or transformation of the performance is always completed on behalf of Cool Italia as manufacturer, but without any obligations for Cool Italia. Where the (co-)ownership of Cool Italia expires through bonding, an agreement is now in place stipulating the (co-)ownership of the Purchaser of the uniform object will be transferred to Cool Italia proportionately according to the value (invoice value). The Purchaser will maintain (co-)ownership on behalf of Cool Italia free of charge. Goods to which Cool Italia has the right of (co-)ownership will subsequently be referred to as reserved property.
7.3
The Purchaser is entitled to process and sell the reserved property within the scope of proper business as long as he is not in default of payment. Pledging or assignment as security is not permitted. Sale abroad is only permissible following prior receipt of our written agreement. The full scope of any claims concerning the reserved goods (including all claims to balances from current accounts) arising from resale or on any other legal grounds (insurance, unlawful act) is hereby assigned by the Purchaser in advance by way of security to Cool Italia. Cool Italia grants the Purchaser the revocable authorization to collect all claims transferred to Cool Italia for his account and in his name. This authorization can only be revoked if the Purchaser does not properly meet his payment obligations.
7.4
In the event of access to the reserved property by third parties, particularly with regard to pledges, the Purchaser must point out the ownership of Cool Italia and must notify Cool Italia immediately so that Cool Italia can impose its property rights. In cases where the third-party is not able to refund judicial and extra-judicial costs of a legal action related to this to Cool Italia, the Purchaser is liable for payment.
7.5
In the event of a breach of contract by the Purchaser, in particular in the case of default in payment, Cool Italia is entitled to withdraw from the contract and reclaim possession of the reserved property.
7.6
If the right to retention of title, as defined in Points 7.1 – 7.5, would be extinguished in the foreign country of supply through export of the goods or on other legal grounds making specific measures necessary to retain the rights, the Purchaser must inform us of this and initiate the relevant measures at his expense. If the legal system of a country to which the goods to be supplied are to be delivered does not permit retention of title but allows the Seller to reserve other rights to the goods to be supplied, Cool Italia is entitled to exercise all rights of this kind. If an equivalent security for our claims against the Purchaser cannot be achieved by this, then the Purchaser is obliged to procure another security for the delivery item or other securities at his own expense.
8.1
Cool Italia is a supplier of individual parts. The goods are supplied free from manufacturing defects and defects in material; the period for assertion of rights to claim damages for any defects is one year after delivery of the products. Cool Italia is not responsible for defects in the delivery procured from third-parties and forwarded to the customer unchanged; liability regarding intent or negligence remains unaffected.
8.2
Where instructions with regard to operating, assembling or servicing are not observed, where alterations to the products are made, where products have been subject to improper storage or handling, where parts have been replaced or consumable materials used which do not comply with the original specifications, any claims for defects in the products shall lapse unless the Purchaser refutes a reasonably substantiated claim that the defect was caused by one of these circumstances.
8.3
The Purchaser is obliged to inform Cool Italia of any defects immediately, in writing, or within one week of receipt of the delivery item at the latest. Cool Italia must also be informed, in writing, of any defects that cannot be detected within this period despite careful examination, immediately following their.
8.4
In the event of a notification by the Purchaser that the products have a defect, Cool Italia may demand at its own discretion and expense that:a) the defective part or device be sent to Cool Italia for repair and subsequent return; the Purchaser holds the defective part or device ready and that Cool Italia will send a service technician to the Purchaser to complete repairs.If the Purchaser demands rectification of defects at a location stipulated by him, Cool Italia can comply with this wish, whereby replacement parts will not be charged but working hours and travelling expenses will be charged at the standard rates.
8.5
The Purchaser can only demand rectification. Cool Italia is entitled to complete replacement delivery instead of rectification. If the rectification of defects fails after a reasonable period, the Purchaser can choose between demanding a reduction in payment or withdrawing from the contract.
8.6
Claims in respect of defects may not be asserted if there is only a minor deviation from the agreed nature of the goods or only a minor impairment of usability. Liability for normal wear and tear is excluded.
8.7
Any claims against the Seller regarding defects may only be asserted by the direct Purchaser and cannot be transferred.
9.1
Claims to compensation are excluded regardless of the nature of the breach of duty, including unlawful acts, to the extent they are not attributed to intentional or gross negligence. Claims for compensation against Cool Italia which are related to a defect fall under the statute of limitations after one year, regardless of the legal foundation of the claim. To the extent that claims for damages of any kind exist against Cool Italia which are not connected to a defect, a period of limitation of one year also applies. The period of limitations for all claims begins on delivery.
9.2
In the case of a violation of essential contractual obligations, the Seller is liable for any negligence but only to the amount of the foreseeable damage. Claims cannot be made for loss of profits, expenditure saved from compensation claims of third parties, or for any other direct or consequential loss, unless the Seller has guaranteed a particular quality characteristic of the product with the purpose of protecting the Purchaser against such damages or loss.
9.3
The limitations of liability and disclaimers in accordance with Points 9.1 and 9.2 do not apply to claims related to fraudulent behaviour by the Seller, to any liability for guaranteed characteristics, to claims under the German Product Liability Law or to loss or damage resulting from fatal injury, physical injury and harm to health.
9.4
Insofar as the liability of the Seller is excluded or limited, this also applies to the Seller's staff members, employees, representatives and vicarious agents.
10.1
These terms of business and all legal relationships between Cool Italia and the Purchaser are subject to the laws of the Federal Republic of Germany. The provisions of the UN Purchasing Convention do not apply.
10.2
If the Purchaser is a business entrepreneur, a legal entity under public law or a special fund under public law, Waiblingen is the exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship. Cool Italia is also entitled to assert legal complaints at the headquarters of the Purchaser.
10.3
Should any provisions in these conditions become invalid or unenforceable in whole or in part, the validity of the contract and of the further terms and conditions remain unaffected. The ineffective provision must be replaced by a legally effective provision coming as close as possible to the sense and purpose of the ineffective provision. In the event of an omission, a provision is deemed agreed which corresponds, on the basis of the purpose and meaning of the contract, to what the parties would have agreed had the parties considered the matter at the beginning. This also applies when the ineffectiveness of a provision is based on a measure of performance or time (deadline or date) specified in the contract; then, a legally permissible measure of performance or time is implemented which complies with the one initially agreed as closely as possible.