Terms and Conditions

 

  1. General

1.1. These General Terms and Conditions FREEZEDRY are intended for use in commercial transactions between businesses and privet persons

1.2. These GT&C shall apply for all, including future, contracts with the customer. Other terms and conditions shall not become part of the contract, even if FREEZEDRY does not expressly object to them. Amendments to and changes of the contract must be in written form. The waiver of the requirement for written form shall only be possible in writing. This shall not apply to individual contractual agreements. The language of the contract shall be English.

1.3. FREEZEDRY are subject to change and non-binding. FREEZEDRY reserves the right to make technical improvements to our products.

1.4. FREEZEDRY may electronically store and process data necessary for the purpose of processing the contract.

1.5. A set-off by the customer shall not be permitted unless the counterclaims are undisputed or legally established, or pecuniary counterclaims arising from the right to refuse payment pursuant to Section 320 Bürgerliches Gesetzbuch (BGB) (German Civil Code).

1.6. For commercial transactions with customers having no general place of jurisdiction in Germany and between businesses, public law legal persons or special funds under public law the place of jurisdiction shall be the court responsible in Frankfurt am Main, Germany. FREEZEDRY shall also be entitled to appeal to the court responsible for the head office of the customer. FREEZEDRY shall, furthermore, as plaintiff have the right to invoke the Arbitration Court at the Chamber of Commerce and Industry in Frankfurt am Main, Germany. The Arbitration Court shall, in this case, make the final judgment in accordance with the Rules of Arbitration of the Chamber of Commerce and Industry in Frankfurt am Main without recourse to the ordinary courts of law.

1.7. German law shall apply exclusively under the exclusion of the conflict of laws principles of Private International Law and the UN Convention on Contracts for the International Sale of Goods (CISG).

 

  1. Delivery

2.1 The place of performance shall be the factory FREEZEDRY , Germany. The risk shall transfer to the customer as soon as the goods for delivery are packed and loaded for shipment(FCA (Incoterms® 2020 free carrier)). This shall also apply to partial deliveries or where FREEZEDRY performed additional services, such as shipping; costs for transport, packaging or insurance, exportation and installation. This shall also apply in case of delivery to a consignment warehouse of the customer.

 

  1. Delivery Period, Force Majeure, Delay

3.1 Delivery times shall be ex works. Delivery periods or delivery dates are subject to the customer providing relevant information and documents such as drawings, permits or approvals, opening letters of credit as agreed, making agreed advanced payments and complying with any obligation on time. In particular, the customer is obliged to immediately provide all information required for export, import or shipment (e.g. final recipient, final destination and intended use), documents, approvals and certificates which may be required for the fulfillment of FREEZEDRY obligations.

If delays occur due to required approval, examination or information procedures, delivery periods and delivery dates shall be extended accordingly if FREEZEDRY is not solely responsible for the delay.

3.2 Delivery shall be subject to FREEZEDRY receiving its own supplies punctually and in good order.

3.3 If delays of delivery periods are due to Force Majeure, e.g. natural disasters, pandemics, mobilization, war, riot or similar events beyond control of FREEZEDRY, e.g. strike or lock-out, delivery periods shall be extended by the time during which the aforementioned event or its effects persist.

3.4 FREEZEDRY shall immediately inform the customer about delivery barriers or delays and their expected duration.

3.5 FREEZEDRY shall be considered to be in default of delivery only if the customer has issued FREEZEDRY with a reminder, has set a reasonable extension period which has elapsed. The customer shall be obliged to immediately inform FREEZEDRY in writing of any likely consequences of delay.

3.6 In the case of delay damages, FREEZEDRY’s liability for compensation shall be limited to 5% of the value of the delayed delivery/ service. The limitation shall not apply in cases of willful intent, gross negligence and/ or injury to life, limb or health.

 

  1. Prices, Terms of Payment

4.1 Prices shall be EXW packed and ready for shipping (Incoterms® 2020), and exclusive of statutory VAT, if applicable.  Costs of transportation, freight and insurance shall be borne by the customer. Prices shall also be exclusive of the cost of returning and recycling/disposing of old equipment.

4.2 Invoices shall be payable to FREEZEDRY account in EURO (€) without deductions and free of charges and expenses. Payment shall be made prior to shipping. The determinant factor shall be the receipt of payment.

4.3 In the case of an agreed return of goods that are free of defects, the customer shall be charged a checking and processing fee of 10% of the invoice amount. Min 50 Eur.

 

  1. Retention of Title, Assignment of Future Claims

5.1 The goods delivered shall remain property of FREEZEDRY until the complete and unconditional payment. Should FREEZEDRY still have further claims against the customer arising from the business relationship, FREEZEDRY shall then retain its property rights until payment of such claims has been effected.

5.2 The customer may neither use goods subject to retention of title nor combine them with other objects to which a third party may have rights. Should, however, goods subject to retention of title become, through their combination with other objects, part of a new (complete) item, FREEZEDRY shall be a proportional co-owner of this new item directly, even if this latter component is regarded as the main component. FREEZEDRY’s proportion of co-ownership shall be determined by the ratio of the invoice value of the goods to the value of the new item at the time of combination.

5.3 The customer may resell goods subject to retention of title in the course of his normal business as long as he has not assigned, pledged or otherwise encumbered his claims from the resale.

 

  1. Warranty, Limitation of Liability

6.1 FREEZEDRY warrants that its delivered goods (including any agreed installation) are free of defects at time of risk transfer. The required quality, durability and use of FREEZEDRY’s delivered goods are based solely on the agreed written specification, product description and/or operating manuals. Any information beyond this, in particular in preliminary discussions, advertising and/or referencing industrial standards shall only become part of the contract if they are expressly referenced in writing.

6.2 Should the customer require the delivered goods for purposes other than those agreed, he must take responsibility himself for examining their special suitability for this – also in terms of product safety – and ensure their compliance with all relevant technical, legal or regulatory provisions before the intended use. FREEZEDRY shall not be liable for any usability that was not expressly confirmed by FREEZEDRY in writing. In the case of material or design requirements of the customer, FREEZEDRY shall accept no liability for the suitability or permissibility of the desired materials or designs. Compliance with safety-related and occupational health regulations depends on the location and operating conditions of which FREEZEDRY has no prior knowledge. Action for ensuring compliance shall therefore be the responsibility of the customer or his buyer.

6.3 FREEZEDRY shall not be liable for the consequences of improper handling, use, maintenance and operation of the delivered goods; the consequences of normal wear and tear, in particular of wearing parts such as seals, valves, condensers, oil and the breakage of glass or ceramic parts; for the consequences of chemical, electrochemical or electrical influences; or non-observance of the operating instructions.

6.4 If a notice of defect is justified, FREEZEDRY shall initially only be required to provide cure. Any such cure shall be, at the discretion of FREEZEDRY, either rectification of the defect or delivery of goods free of defects. Further warranty claims shall only apply in the event of rejection, impossibility or failure of the cure. If cure is possible only at disproportionate expense pursuant to Section 439 Para. 4 BGB (German Civil Code), FREEZEDRY will bear the cost necessary for the cure according to Section 439 Para. 2, 3 BGB (German Civil Code) up to a limit of 150 % of the value of the delivered goods free from defects.

6.5 The customer must, immediately upon receipt of the goods, inspect them carefully, also in terms of product safety, and notify obvious defects immediately in writing; any hidden defects must be immediately notified upon discovery. The customer must notify the carrier immediately of any transport damage. Failure to observe the testing and notification obligation shall void any customer claims for defects.

6.6 FREEZEDRY’s liability for slight negligence shall be limited to claims for injury to life, limb or health, to claims under the Produkthaftungsgesetz (German Product Liability Act) or to claims of culpable breach of fundamental contractual obligations through which the purpose of the contract is endangered. Otherwise, its liability for slightly negligent breach of fundamental contractual obligations is limited to the typically occurring damages which FREEZEDRY could have foreseen when the contract was concluded.

6.7 Should the customer use the delivered goods in conjunction with environmentally harmful, toxic, radioactive or otherwise hazardous materials, must notify FREEZEDRY about any such materials and decontaminate the delivered goods prior to returning them to FREEZEDRY. If applicable, FREEZEDRY may charge any necessary costs for decontamination/cleaning and disposal to the customer’s account.

 

  1. Limitation Period

The warranty period shall be one year and starts from the date of delivery of the goods to the customer. The same shall apply for claims for damages, irrespective of their legal basis. The limitation periods of Section 438 Para. 1 Nos. 1 and 2 and Section 634a Para. 1 No. 2 of the BGB (German Civil Code) shall remain unaffected. The warranty period for any rights of recourse pursuant to Section 445a BGB (German Civil Code) shall be one year and starts from the date of delivery of the goods to the customer. The suspension of expiry pursuant to Section 445b BGB (German Civil Code) shall end no later than three years after FREEZEDRY has delivered the goods to the customer. The restrictions of the limitation periods shall not apply to claims based on fraudulent concealment of a defect, for claims under the Produkthaftungsgesetz (German Product Liability Act) or for damages resulting from injury to life, limb or health and other damages based on intent or gross negligence. The limitation period in respect of replaced or repaired goods shall only commence anew if FREEZEDRY admitted the defectiveness of the replaced or repaired goods.

 

  1. Software Use

8.1 All other rights to the software and the documentation including copies thereof shall remain with FREEZEDRY and/ or the software supplier. The issue of sublicenses is not permitted.

 

  1. Installation

9.1 Fixed installation prices shall only cover the work that has been agreed upon.

 

  1. Spare Parts, Maintenance/Repair

10.1 The respective FREEZEDRY list prices apply for spare parts, maintenance and repair services..

10.2 Insofar as there is an obligation on the part of FREEZEDRY to maintain/supply spare parts, then this obligation shall be limited to a period of five (5) years from the date of delivery. If spare parts are not manufactured by FREEZEDRY, or are no longer available on the market, for example electronic components, or if the raw material for their production is no longer available, the obligation of FREEZEDRY to deliver spare parts shall lapse.

10.3 Maintenance and repair services can only be provided if the customer has declared the devices sent to be safe to work on from a health hazard perspective.

 

  1. Legal Reservation, Industrial Property Rights, Confidentiality

11.1 FREEZEDRY reserves ownership and all industrial property rights and copyrights to all moulds, tools or other devices, samples, pictures, and business and technical documents produced or provided by FREEZEDRY. This also applies where the customer has wholly or in part taken on the costs hereof. The customer may use these only in the manner agreed with FREEZEDRY. Without FREEZEDRY’s written consent, the customer may not himself manufacture contractual objects delivered or have the same manufactured by third parties.

11.2 Insofar as FREEZEDRY delivers goods according to the designs or other requirements specified by the customer (models, patterns etc.), the customer shall be liable to FREEZEDRY by default for ensuring that, through the manufacture and delivery of these goods, the industrial property rights or other rights of third parties are not infringed. If the customer is at fault he shall reimburse FREEZEDRY all damage resulting from any such infringement of rights.

11.3 Any information acquired through the business relationship and not deemed to be public knowledge must not be disclosed by the customer to third parties.

 

 

Status as of: Jan 2022