General Terms and Conditions of CryoSnow GmbH (hereinafter referred to as CryoSnow)
1.1 Our General Terms and Conditions shall apply in their currently valid version to all present and future offers, orders, deliveries and services. They shall be deemed agreed upon with our order confirmation, at the latest, however, upon receipt of the goods.
1.2 Our general terms and conditions apply exclusively, even if they are not expressly agreed or in individual cases are not attached to correspondence with the customer. Conditions of the customer do not apply even if we do not expressly contradict you and execute the delivery or service.
1.3 Oral agreements, side agreements and changes as well as deviations and supplements on the part of the customer are only valid with our express written confirmation and only for the order for which we confirm them.
2. Offer, Order
2.1 Our offers are non-binding and subject to confirmation, unless otherwise assured by us in writing. Other verbal, telephone, telegraphic or electronic data transmission and information in advertising materials, catalogues, brochures and price lists are not binding. If an order is to be qualified as an offer in accordance with section 145 of the German Civil Code (BGB), the binding nature of the order requires our written acceptance.
2.2 Our offers are valid for one month from the date of the offer, unless otherwise agreed.
2.3 All documents that form part of an offer, such as illustrations, drawings, technical data and consumption data, are only approximate, unless they have been expressly marked as binding.
2.4 CryoSnow will only provide samples and blasting equipment and accessories for the purpose of testing on the basis of generally valid prices.
2.5 The contract is concluded with the dispatch of our order confirmation to the customer or through the performance of the service by us. The customer is bound to his order for 14 days.
2.6 CryoSnow may terminate the contract without notice and refuse the contractual services if CryoSnow’s claim for compensation is jeopardized. In particular, CryoSnow may terminate the contract without notice if the customer has lost its assets or if an application has been made to open insolvency proceedings against the customer. CryoSnow’s entitlement to compensation for services rendered prior to termination is not affected by this.
3.1 The prices stated in the order confirmation by CryoSnow are decisive. The prices are quoted in Euro ex works in 13599 Berlin and exclude packaging and insurance costs, freight, customs, import duties and other ancillary costs of any kind. The prices are subject to value added tax at the respective statutory rate. Unless otherwise agreed, CryoSnow will determine, at its discretion, the nature and method of shipment. All transport, packaging and insurance costs, freight, customs, import duties and other ancillary costs shall be borne by the customer.
3.2 If overtime, night and Sunday work are required by the customer for reasons of delivery, these additional costs will be invoiced separately.
3.3 If unpredictable increases in material, production, labour, transport costs, taxes and duties occur between the conclusion of the contract and the delivery, CryoSnow shall be entitled to adjust the price accordingly. If the adjusted price exceeds the agreed price by more than 5%, the customer is entitled to withdraw from the contract.
4. Terms of payment
4.1 CryoSnow’s invoices are payable within 30 days from the invoice date without deductions. For the timeliness of payments the receipt by CryoSnow is decisive.
4.2 Notwithstanding this provision, 100 % of the remuneration shall be payable upon conclusion of the contract, particularly if a supply relationship is entered into with the customer for the first time upon conclusion of the contract.
4.3 CryoSnow may demand a full advance payment of the fee in individual cases, especially in the case of foreign orders or late payment by the customer for other orders or if information available to CryoSnow does not appear to guarantee timely payment.
4.4 If reminders become necessary after expiry of the term of payment, the customer shall assume the costs incurred.
4.5 CryoSnow is entitled to charge default interest amounting to 8 percentage points above the base rate from the date payment was due, in accordance with Section 247 BGB.
4.6 CryoSnow is entitled to first offset payments against older debts of the customer. If costs and interest have already arisen, CryoSnow is entitled to offset the payment first against the costs and then against the interest and finally against the principal claim.
4.7 The customer is only entitled to offset if the counterclaims have been legally established or are undisputed. The exercise of a right of retention is only permitted if the counterclaim originates from the same legal relationship.
5. Delivery time
5.1 CryoSnow will use its best efforts to meet the delivery time stated in the order confirmation. The delivery time begins with the date of our order confirmation. If a deposit or full prepayment has been agreed, the delivery time does not begin before the payment has been received.
5.2 In the event of early delivery, the time of delivery shall be decisive.
5.3 The delivery time shall be deemed to have been met if the object of delivery has left the factory in 13599 Berlin before the delivery time expires or the readiness for dispatch has been notified.
5.4 The observance of the delivery time presupposes the timely and proper fulfilment of the contractual obligations of the customer.
5.5 Partial deliveries are permitted, whereby each partial delivery is considered a separate transaction.
5.6 The delivery time shall be reasonably extended in the event of force majeure or events which make delivery substantially more difficult or impossible, including, for example, official orders, strikes, lockouts and unforeseen obstacles beyond the control of CryoSnow. This also applies if the circumstances occur with CryoSnow’s suppliers or their suppliers. CryoSnow will notify the customer of such circumstances without undue delay. CryoSnow shall minimize the impact on the customer as much as possible. Delays entitle CryoSnow to postpone the delivery for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled.
5.7 If the delay lasts more than 3 calendar months, the customer is entitled, after a reasonable grace period, to withdraw from the contract for the part of the contract that has not yet been fulfilled.
5.8 If the delivery time is extended or if CryoSnow is released from the obligation, the customer cannot derive any claims for damages from this.
5.9 If an agreed delivery time is not adhered to as a result of gross negligence or wilful misconduct on the part of CryoSnow, the customer is entitled, subject to the exclusion of further claims, to demand a lump-sum compensation for default after expiry of a reasonable period of grace. The compensation for delay is 1 % for each full month of delay, but not more than 5% in total of the value of that part of the delivery that was not in accordance with the contract. CryoSnow is not liable for lost profits.
6. Packaging, Shipping, Transfer of risk
6.1 Unless otherwise agreed, CryoSnow shall choose the packaging and delivery method at its best discretion.
6.2 CryoSnow insures all deliveries against loss, theft and other damage in transit at the customer’s expense, subject to any special specifications of the customer. At the customer’s written request, the shipment will be insured at the customer’s expense against further risks specified by the customer.
6.3 The customer is obliged to take the necessary measures to settle any transport damage incurred.
6.4 The risk passes to the customer as soon as the consignment has been handed over to the person carrying out the shipment or the consignment has left the factory in 13599 Berlin for shipment. This also applies to the carriage paid delivery. If shipping becomes impossible through no fault of CryoSnow, the risk passes to the customer with notification of readiness for shipment. The same applies if shipment is delayed due to circumstances for which the customer is responsible.
7. Retention of title
7.1 CryoSnow retains ownership of all delivered goods until complete settlement of all claims, including future and conditional claims, arising from the business relationship with the customer, including interest and costs. When the goods are installed or combined with other items, the CryoSnow’s ownership also extends proportionately to the item created by installation or combination. This shall also apply if the remuneration for certain deliveries of goods specified by the customer has already been paid, as the reserved property serves as security for the balance of CryoSnow’s claim.
7.2 If the value of the items used by CryoSnow to secure the retention of title exceeds CryoSnow’s total claim by more than 20 %, CryoSnow shall be obliged to reassign such items at the customer’s request.
7.3 At our request, the customer shall be obliged to store and insure the goods delivered under retention of title in a specified manner and shall provide us with evidence of this upon request. If payment of the purchase price is made by cheque or bill of exchange, the retention of title does not expire with the encashment of the customer’s cheque, but only with the encashment of the final refinancing paper.
7.4 Further processing by the customer takes place under exclusion of the acquisition of property on behalf of CryoSnow. CryoSnow remains the owner of the resulting item, which serves as a conditional commodity securing the CryoSnow’s claims. If the customer combines the goods with other goods not belonging to CryoSnow, CryoSnow has co-ownership of the new item, which is now reserved goods within the meaning of this condition.
7.5 The customer is entitled to dispose of the goods subject to retention of title in the ordinary course of business, even if further processed. However, the customer must retain title until its purchase price claim has been paid in full.
7.6 The customer is not permitted to pledge the reserved goods or assign them as security and must inform CryoSnow immediately of any seizures by third parties or any other access by third parties to the reserved goods. Any intervention costs arising from this shall be borne by the customer.
7.7 The customer hereby assigns to us the claims to which he is entitled from the resale, subject to the condition precedent of the time of their occurrence. If the reserved goods are resold after combination, in particular with goods not belonging to us, the assignment shall only be made to the amount of the sales value of our reserved goods. If the third-party debt is higher than our claim, the claim against the third-party buyer shall only be transferred to CryoSnow to the extent that it corresponds to the value of our reserved goods.
7.8 The customer is entitled to collect the claims assigned to CryoSnow from the third party buyer for CryoSnow. However, the customer must transfer the collected amounts to CryoSnow without undue delay. CryoSnow reserves the right to collect the claim directly from the third party buyer, who must be named to CryoSnow for this purpose. At CryoSnow’s request, the customer is obliged to provide CryoSnow with all information and documents necessary for the assertion of CryoSnow’s rights against the third party buyer.
7.9 Any breach of contract on the part of the customer, in particular default in payment and breach of the duties of retention of title, shall entitle us to withdraw from the contract and demand the return of the goods without prejudice to further statutory rights due to this breach of duty on the part of the customer.
8. Notice of defects, Warranty
8.1 As a matter of principle, the product description in the contract shall be regarded as the nature of the goods. Information given verbally, by telephone, telegraph or electronically, as well as information in advertising material, catalogues, brochures and price lists, shall not constitute assurances of the contractual quality of the goods.
8.2 Notifications of defects must be made in writing without undue delay after receipt of the goods at the place of destination, but no later than 14 days thereafter, before use or further delivery to third parties. Otherwise the assertion of a warranty claim is excluded. In the case of hidden defects, the complaint must be made within one week after discovery, but no later than 6 months after receipt of the goods at the place of destination.
8.3 In the event of a justified notice of defects, CryoSnow is obliged to remedy the defect or to deliver a replacement at its best discretion. The customer shall give CryoSnow time and opportunity for this. Replaced parts of the goods become the property of CryoSnow. If CryoSnow does not fulfil this obligation to repair or replace the goods within a reasonable period of time, the customer is entitled to reduce the remuneration.
8.4 If the customer does not give CryoSnow the opportunity to convince itself of the defect, in particular if it does not make the goods complained of available on request or returns them freight collect, it cannot claim for defects in the goods.
8.5 The warranty period is 12 months. However, it does not include wear and tear attributable to wear and tear, incorrect or negligent use and handling, the use of unsuitable operating materials, damage and malfunctions due to incorrect operation, unsuitable ambient conditions and wilful destruction.
8.6 CryoSnow does not assume any warranty for insignificant, fabrication-related deviations which only slightly impair the external appearance or the functionality.
8.7 Modification and repair work as well as unauthorized opening of the housing by the customer or third parties without the prior written consent of CryoSnow shall result in the immediate loss of the warranty and all warranty claims. After prior written consent from CryoSnow, the customer is entitled to undertake remedial action itself in order to prevent excessively large damages.
9. Limitations of liability
9.1 Claims for damages against CryoSnow due to impossibility or delay of performance, positive breach of contract, fault in conclusion of a contract and tort are excluded, unless intentional or grossly negligent action is involved.
9.2 The limitations of liability shall not apply to claims of the customer arising from product liability or in the event of bodily injury or damage to health attributable to us or loss of life of the customer.
9.3 If CryoSnow is obliged to pay damages, this obligation shall be limited to the direct average damage foreseeable and typical for the contract at the time of conclusion of the contract.
9.4 Claims for damages expire one year after delivery of the goods. If remedial action is undertaken, the limitation period shall not recommence. Claims of the customer arising from product liability, bodily injury or damage to health attributable to us or loss of life of the customer are excluded from this.
9.5 The limitations and exclusions of liability shall also apply to the personal liability of employees, workers, co-workers, representatives, agents and vicarious agents of CryoSnow.
10. Copyrights, Industrial property rights
10.1 CryoSnow reserves the property rights and copyrights to illustrations, drawings, technical documents, calculations and other documents. This also applies to documents which are handed over to the customer before or after conclusion of the contract and which can be used for the manufacture or assembly of the delivery item. No documents are permitted to be reproduced, made accessible to third parties or published, not even in extracts, and all documents must be returned on request.
10.2 The customer shall also bear full responsibility in relation to CryoSnow for documents and objects which the customer hands over to CryoSnow, with regard to the infringement of industrial property rights of third parties. CryoSnow is obliged to make documents and objects marked as confidential by the customer accessible to third parties only with the customer’s consent. In addition, the customer undertakes to indemnify CryoSnow without undue delay against all claims of third parties in connection therewith.
10.3 Insofar as CryoSnow manufactures and delivers the goods to the customer on the basis of an order placed by the customer in accordance with the customer’s instructions and guidelines, the customer shall be liable to CryoSnow for the freedom of the deliveries and services ordered from the property rights of third parties. The customer indemnifies CryoSnow from all corresponding claims and shall compensate CryoSnow for the resulting damage. If CryoSnow is prohibited from manufacturing or delivery by a third party with reference to a property right belonging to that party, CryoSnow is entitled, without examining the legal situation, to stop the work until the legal situation has been clarified by the customer and the third party. Should CryoSnow no longer be able to continue the order due to the delay, CryoSnow is entitled to withdraw from the contract.
10.4 CryoSnow is entitled to the industrial property rights and copyrights, in particular all rights of use and exploitation, to the items designed and manufactured by CryoSnow or by third parties on behalf of CryoSnow, in particular drafts, drawings, devices, nozzles and accessories for blasting machines.
11. Rights to rescission, Contractual penalty, Damages
11.1 CryoSnow reserves the right to withdraw from the contract with a written declaration if the customer has made incorrect statements about its person or its creditworthiness, or stops its payments, or insolvency proceedings are applied for or opened against its assets.
11.2 If CryoSnow can claim damages from the customer due to a breach of duty or cancellation of the contract, CryoSnow shall receive a lump-sum compensation of 25 % of the order value from the customer, unless expressly agreed otherwise in these General Terms and Conditions. Notwithstanding the lump sum for damages, we reserve the right to issue an invoice for the actual damages incurred. The customer shall be responsible for proving a lesser damage.
12. Installation, Commissioning
12.1 CryoSnow shall only undertake work for the installation and commissioning of the delivery on the basis of a written agreement.
12.2 The costs of installation and commissioning shall be borne by the customer, unless these costs have already been expressly taken into account when the prices were fixed. In particular, the expenses for the personnel provided by CryoSnow, their work including all surcharges, as well as travel and transport costs incurred, shall be deemed to be costs to be reimbursed by the customer.
12.3 The customer shall provide the necessary auxiliary personnel, the necessary preparatory work, devices, materials, aids, devices and tools for the installation and commissioning, as well as lockable rooms for storage, at its own expense and risk. The customer is obliged to take all structural and other measures necessary for the timely execution of the installation and commissioning.
12.4 The customer shall bear all risks, including transport risks, for CryoSnow’s equipment and materials intended for installation and commissioning.
12.5 CryoSnow shall be liable for damages of all kinds, including consequential damages, which are connected with the execution of the installation and commissioning, exclusively within the framework of the provisions of these General Terms and Conditions.
13. Place of Performance, Jurisdiction
13.1 The place of performance for delivery, performance and payment is our factory in 13599 Berlin.
13.2 The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including actions on documents, cheques and bills of exchange, shall be Berlin. The same applies if the customer moves its residence or usual place of abode abroad after conclusion of the contract or if its residence or usual place of abode is not known. CryoSnow is also entitled to bring an action before a court which is competent for the registered office or a branch office of the customer.
13.3 These General Terms and Conditions and the entire legal relationship between CryoSnow and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
14. Final provisions
14.1 Should individual provisions of the contract, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially ineffective provision shall be replaced by such provision as results from the meaning of the other provisions.
14.2 In case of doubt, the German language version of the General Terms and Conditions shall prevail.
Valid: February 2019