Terms and Conditions

TOSCA srl  Standard Terms and Conditions for Delivery and Payment

1. Validity

a. Our standard terms and conditions apply exclusively; we do not recognize any conflicting, deviating or supplementing terms and conditions of the Customer unless we have explicitly consented tosuch conditions in writing.

b. We hereby explicitly reject any incorporation by reference to the Customer‘s standard terms and conditions or to any reference to the standard terms and conditions of third parties. In particular, we decline the related validity of any individual pre-formulated clauses or collections of such clauses referenced by the Customer.

c. Our standard terms and conditions apply to all legal claims of the Customer regardless of legal grounds.

d. Our standard terms and conditions also apply if we provide services with knowledge of any conflicting or supplemental clauses.

e. Our standard terms and conditions apply to relationships with companies, juridical persons organized under public law and special funds organized according to public law.


2. Contract partner

a. The contractual partner of TOSCA srl is exclusively the Customer that has directly placed an order and to whom the confirmation of the order has been given.

b. TOSCA srl provides its services only for the Customer named in the offer or in the order confirmation. Liability vis-à-vis a third party not named as the ordering Customer is hereby explicitly excluded.


3. Telephonic and oral representations

a. Verbal communication in person, by phone or other electronic media are not legally binding.

b. A potential Customer must specify the subject of the delivery in question (e.g. a particular cable construction) in writing and state the quantity and delivery details (desired delivery time, type of shipment, transfer of risk) since a reliable review is not possible otherwise.


4. Offer, reservations

a. All offers made by TOSCA srl  are non-binding.
b. Offers made by TOSCA srl  are explicitly subject to timely self-delivery. TOSCA srl  agrees to promptly inform the Customer of non-availability and to promptly reimburse any con- sideration already received.

c. For all its offers, TOSCA srl explicitly reserves the right

of prior sale. TOSCA srl agrees to promptly inform the

Customer about any resulting lack of availability and to promptly

reimburse any payments already received.

d. Offers are submitted subject to the Customer being accepted as

insurable by the commercial loan insurer.

e. TOSCA srl reserves the right to correct mistakes and

clerical errors in written offers.

f. If the offer has an expiration date, the offer becomes null and void

if not accepted within the deadline.

g. TOSCA srl  is not obligated to accept any order placed

after expiration of the expiration of the offer. In particular, all

delivery dates in the offer are no longer valid.

h. Catalog goods are offered only with the qualities evident in the

catalog and the online spec sheets for the respective product

whereby the online spec sheets reflect the technical status of qua-

lities governing the offer. TOSCA srl reserves the right to

make technical alterations. Utilization and suitability for a particular

purpose are not subject of the offer.


5. Order confirmation

a. A contract with TOSCA srl is reached upon the receipt of

the written order confirmation and acceptance of terms and con-

ditions as stated in the written order confirmation.

b. If no order confirmation is received, then the contents of the cont-

ract are governed by the offer made by TOSCA srl .


6. Modification, cancellation of orders

a. Modifications of an order are valid only if confirmed by TOSCA srl 

 in writing.

b. Modification of the order cancels the original delivery schedule.

c. The Customer is not entitled to cancel an order. Despite cancellation

by the Customer, TOSCA srl  may insist on acceptance

of delivery of the ordered merchandise and payment of the full

purchase price.


7. Prices and costs

a. TOSCA srl  may demand payment in advance. Deliveries

to new customers will only be made against advance payment.

b. In the case of international transactions, the Customer shall, at the

option of TOSCA srl , either make payment in advance or

post a documentary letter of credit with no payment time limitation.

c. Prices quoted in offers and order confirmations are net prices EX

WORKS without packaging, without postage, without insurance,

without customs costs and without shipping costs.

d. Packaging, shipping, loading and unloading costs as well as

possible customs duties, taxes and fees shall be the responsibility

of the Customer.

e. Unless otherwise agreed upon the Customer also bears the costs

of freight insurance.

f. The Customer is responsible for all applicable taxes and duties.

g. The invoiced amount is payable without any deductions immedia-

tely after receipt. The Customer is in default without further notice

for failure to pay by the agreed deadline. If no special payment

deadline is agreed upon with the Customer, the Customer is in

default 10 calendar days after receipt of the invoice. In the case

of legal transactions not involving consumers, TOSCA srl 

may charge the Customer late payment interest of nine percentage

points above the basic interest rate (published by the Italian central Bank).

h. If the Customer has not properly assigned a payment made, an

initial check will be made to see if the Customer’s intention is

apparent by matching the amount of payment with an open

invoice. If no allocation is apparent, the amount of payment will

be applied to the most recent invoice presented and then to the

immediately preceding invoices.


7.1. Cable and conduit pricing

a. Because of the high metal content it is customary in the German

cable industry to separately state metal costs („metal surcharge“).

TOSCA srl  is therefore entitled to separately state metal

costs („metal surcharge“). In international transactions, TOSCA srl 

 reserves the right to quote full material prices.

b. Copper metal calculation:

Unless otherwise agreed in writing, net prices for copper contain

a €150.00 per 100 kg copper base price (exception for under-

ground cables: Cu basis 0 and telephone cables: Cu base price


c. The calculation basis for the sale price is the published upper LME


exchange for copper on the day prior to the day the order is received

plus (at least 1%) purchasing costs. The sale price is increased

or reduced by the difference between the copper base price and

the LME quote. The copper number is multiplied by the copper

difference. If not otherwise stated, the copper number applies per

1000 m.

d. Other metal surcharges (e.g. aluminum, nickel, lead) are handled

equivalent to the copper calculation. The base price is the value

stated in our offers. All metal surcharges are excluded from prompt

payment and other discounts.


7.2. Accessory pricing

a. Metal calculation for brass:

Metal surcharges contain a brass base cost of €150.00 per 100 kg

of brass. The computational basis for the sale price is the price

quoted on the exchange (exchange quotation for MS 58. Proces-

sing stage 1) on the day after receipt of the order plus purchase

costs. The sale price is increased or reduced by the difference

between the brass base cost and brass quotation by allowing a 5%

brass surcharge or discount, respectively, for every full €13 per

100 kg. Such surcharges are always quoted on a purely net basis.

b. Metal calculation for copper: equivalent to cable and conduits (see


c. Metal calcultaion for copper lugs: the prices contain a copper base

cost of €150 per 100 kg of copper. The computational basis for

the sale price is the MK price for copper on the day before the day

the order is drafted. The copper number is to be multiplied by the

copper difference. If not otherwise stated the copper number is per

1000 pieces. All metal surcharges or discounts are always quoted

on a purely net basis.

d. Prices quoted assume acceptance of delivery of a complete packa-

ging unit (VE). HELU KABEL GmbH reserves the right to impose a

low quantity surcharge for smaller quantities or open packages.


7.3. Minimum order value, surcharge

a. We are not obligated to accept orders when the net price without

metal surcharge is below €100.

b. A surcharge of €10 for orders within Germany and €35 for

exported orders on orders below the minimum order value apply.


7.4. Cutting costs

a. If TOSCA srl agrees to deliver lengths that deviate from

normal lengths of those held in inventory, TOSCA srl  is

entitled to apply a per cut surcharge.


7.5. Freight and shipping costs

a. All deliveries exclude unloading.

b. We deliver orders worth €500 or more (without metal surcharge,

without value-added tax, without shipping costs) within Germany

“Freight Allowed”, without unloading, excluding packaging).

c. We also ship freight collect without unloading. The following flat

rates are charged for freight collect shipments in ITALY: €15,00

for small packages up to 31.5 kg. Shipments by freight forwarder

over and above 31.5 kg: €0.5 per kg. The Customer bears the

cost of special routings.

d. The Customer bears the cost of deliveries abroad which will be set

forth in the respective offer.


7.6 Packaging costs

a. TOSCA srl generally charges (in addition to the cable

drums) a €15.00 packaging flat rate.

b. Packaging material will either be invoiced or made available on a loan

basis. Pallet cages and Euro pallets will be delivered on an exchange

basis. Disposable drums will be invoiced and cannot be returned.

c. TOSCA srl reserves the right to decide whether to ship


8. Quantities delivered

a. Delivery will be made as set forth in our order confirmation. Partial

deliveries are expressly recognized as acceptable.

b. We generally reserve the right to deliver 10% more or less than

the ordered quantity. In case of Customer specific special cables,

however, this can be + / -15% of the quantity ordered. Special

cables are delivered in lengths that depend upon technical produc-

tion conditions. Partial deliveries are permissible.


9. Returns, return costs

a. The Customer has no right to return goods that are delivered free

of defects.

b. If, in exceptional cases, TOSCA srl  declares that it is

prepared to accept the return of delivered items, the condition of

the goods will be first determined. For this purpose, the Customer

shall return the delivered goods to TOSCA srl  at its own

cost. After receipt, TOSCA srl will inspect the merchandi-

se returned for quantity and condition.

c. TOSCA srl  will make an offer for accepting the return un-

der consideration of age and condition.

d. If the Customer accepts the return offer, TOSCA srl  will

either credit the Customer‘s account or execute the corresponding


e. If the Customer does not accept the return offer, it shall retrieve the

merchandise offered to it at its own cost. If despite demand made

to do so there has been no retrieval within one month, TOSCA srl 

 is entitled to have the corresponding merchandise scrap-

ped and charge the Customer.


10. Right to refuse performance, withhold payment, set-off

a. Customer‘s right to refuse performance (defense resulting from

the failure to perform) is excluded if the Customer is required to

pay in advance or present a letter of credit.

b. Rights to withhold payment pursuant to  exist only for claims 

that are mature and completely

valid a) either under the same order or, b) in so far as the order

is deemed a continuation of contracts concluded earlier, to the

extent these are undisputed or determined with legal finality.

c. Set-off is permissible only with respect to claims that are undisputed

or determined with legal finality.

d. A claim that is in litigation ready for decision is the equivalent of an

undisputed claim.



11. Reservation of title, objection to resale, use and processing

a. TOSCA srl retains ownership of the merchandise delivered

until full and unconditional payment of the invoiced amount for

the respective item has been received.

b. TOSCA srl hereby objects to resale, use and processing

before full payment of the purchase price. This also applies in

particular to the Customer‘s insolvency administrator.

c. Action taken by the Customer that leads to the loss of TOSCA srl 

 ownership is grounds for a compensatory damage claim

against the Customer. Besides the Customer, in the case of juridical

persons, its legal representative will be personally liable for com-

pensatory damages.

d. The Customer agrees to promptly inform TOSCA srl of

any judgment execution measures taken by third parties in the

goods subject to ownership of the goods. In addition, the Custo-

mer shall inform third parties of the ownership of the goods.

e. In the event of resale or lease of the goods subject to ownership,

the Customer now does hereby assign to TOSCA srl as

collateral its receivables claims accruing against its customers until

its rights to purchase price have been fulfilled. TOSCA srl 

accepts these assignments of collateral.

f. Where goods subject to ownership have been processed, modified

or bound to another object, TOSCA srl  shall acquire an

immediate property interest in the newly manufactured object

which shall subsequently be regarded as goods subject to ownership.

g. If the value of the collateral in the form of receivables claims

exceeds the purchase price claims of TOSCA srl  by more

than 20% then at the demand of the Customer TOSCA srl 

 shall release the collateral commensurately.


12. Delivery schedule, delayed delivery

a. All delivery dates stated are approximate. Exceeding an approximate

date shall lead neither to an immediate deadline for performance

nor default of delivery.

b. TOSCA srl may also make partial deliveries. TOSCA srl 

shall not be considered in default with respect to timely

partial deliveries.

c. A delivery deadline is deemed met upon timely delivery to the

freight forwarder.

d. The delivery will not be immediately due until a reasonable

deadline has been set. The deadline must be set in writing.

e. A warning notice shall not put TOSCA srl  in default until it

is given after the immediate due date of the delivery. The warning

notice must be given in writing.

f. If the delivery cannot be made because TOSCA srl  itself

has not been supplied, TOSCA srl  may declare its with-

drawal from the contract with respect to the affected merchandise.

The Customer‘s claims are limited in such cases to the repayment

of any payments made by the Customer. In cases of such failed

self-delivery any further rights of the Customer are excluded.

g. Where TOSCA srl  is at fault, the Customer‘s claims due

to default of delivery are limited to 0.5% of the net delivery value

of the merchandise affected by the default of delivery per full

calendar week not to exceed a total of 5% of the net delivery value

of the items affected by the default of delivery. Customer shall have

no further claims for damages or Customer‘s financial disadvantage

due to default of delivery, in particular to downtimes, business in-

terruption or lost profits. This exclusion shall not apply if TOSCA srl 

 caused the damage to the Customer intentionally or by



13. Place of performance, transfer of risk

a. The place of performance is the registered office of TOSCA srl

is Brescia, Italy. 

b. TOSCA srl  has met its performance obligation when

it has reported readiness to ship or has delivered to the freight


c. Unless the order confirmation provides otherwise, delivery EX

WORKS is agreed upon.

d. Unless otherwise agreed upon by the parties, the risk of accidental

loss or accidental deterioration in the case of sales shipments

passes to the Customer upon transfer to the freight forwarder.

e. The Customer must undertake unloading at its own cost. If the

Customer does not unload, it is in default of acceptance of delivery.


14. Warranties

14.1. Complaints of defect, warranty period

a. The merchandise delivered is free of defect if it meets the technical

specifications as illustrated on the online spec sheet and in the catalog.

b. TOSCA srl cannot determine and review suitability for a

particular application or use nor the environmental conditions nor

aftereffects on an electrical system. Neither suitability for particular

use nor suitability for particular environmental conditions are sub-

ject of the contract.

c. If TOSCA srl  has made recommendations then such

recommendations are conditioned upon the completeness and

accuracy of the data supplied by the Customer and there were no

special circumstances to consider.

d. Following the delivery of the respective merchandise, the Customer

must promptly inspect it and if a defect is apparent promptly

submit a written complaint to TOSCA srl . The written

complaint must contain the invoice number, article number, the

quantity involved with every individual complaint individually

listed In case of successive or partial deliveries each delivery must

be inspected and protested individually.

e. The responsibilty to make an immediate inspection extends in

particular to the testing of the merchandise delivered for its func-

tionality and conformity with the data provided on the online spec

page and catalog.

f. The responsibility to conduct an immediate inspection and com-

plaint applies for every individual processing step. If the Customer

fails to make immediate complaint at the respective processing

stage, the merchandise delivered is deemed approved.

g. TOSCA srl  hereby contests all clauses according to which

the responsibility to inspect falls on TOSCA srl 

 TOSCA srl  ability to inspect at the respective processing steps

is factually impossible since TOSCA srl is not part of any

further processing of the goods.

h. If the Customer does not promptly submit a complaint of defect,

the merchandise delivered is deemed accepted.

i. Upon acceptance, all possible rights of the Customer to demand

cure and compensatory damages regardless of the grounds are

null and void.


14.2. Clarification of technical matters, Customer‘s duty to


a. The Customer must send TOSCA srl samples of the

allegedly defective merchandise so that TOSCA srl  can

conduct a laboratory analysis.

b. In addition, the Customer must grant TOSCA srl  access

to the assembly site so that TOSCA srl  can inspect the

environment and exposure of the merchandise delivered (heat,

voltage, amperage, rectifiers, fuses, etc.).

c. Unless TOSCA srl  acknowledges the defect of the

merchandise delivered, the warranty is null and void if the Custo-

mer breaches the aforementioned duties.


14.3. Expert arbitration agreement

a. If the parties cannot agree whether the item delivered is defective

or not, the parties agree that the disputed facts will be decided

with legally binding effect by an expert arbitrator pursuit.

b. The expert arbitrator must be a publicly appointed and certified


c. If the parties cannot agree on an expert arbitrator, each par-

ty may apply to the IHK/AHK to name an expert arbitrator. The

expert arbitrator named by the IHK / AHK may be rejected only if

the grounds for rejection correspond to the grounds for personal

disqualification of a judge. The cost of arbitration are borne

depending on who prevails.


14.4. Procedure, crediting, cure

a. Typically the Customer will need substitute goods even before

clarifying whether the merchandise delivered is defective. For this

reason it is customary in the cable industry to deliver substitute

goods only against an invoice and not to grant a credit to until

clarification of the facts and then only to the extent of the actual

receipt of disassembled goods. This procedure derives from the

fact that the overwhelming majority of the price is based on metal

content, e.g. copper. TOSCA srl adheres to this general

industrial custom and will deliver substitute goods only against an


b. Typically, the Customer has an interest that the substitute goods are

being delivered as quickly as possible. For this reason, TOSCA srl 

is entitled to arrange for other manufacturers to

deliver equivalent merchandise as substitute goods that, techni-

cally speaking, are structurally identical.

c. As soon as a technical inspection of the merchandise that is subject

of complaint and its environment can be concluded,TOSCA srl 

 will inform the Customer of the result of the testing.

d. If TOSCA srl  confirms that the complaint of defect is

justified, TOSCA srl will credit the account to the extent

of the return receipt of the defective merchandise.

e. No credit can be given for defective merchandise that is not

returned. This provision derives from the high value of the metal

content (e.g. copper). In addition, failure to return the merchandise

raises a rebuttable presumption that the merchandise delivered

will still be used.


14.5. Failure to cure, price reduction, withdrawal from the contract

a. The Customer is not entitled to a reduction in price or to withdraw

from the contract until there has been a failure to cure.

b. TOSCA srl  will be granted at least two attempts to cure.

c. If the Customer seeks a reduction in the purchase price it must

demonstrate to what extent the utility of the merchandise delivered

is impaired by the defect. If from a technical point of view the

utility of the delivered merchandise is not impaired, there will be no

reduction in price granted.

d. Any failure to label the merchandise with the name of the Custo-

mer or the "TOSCA srl " name will not justify a price reduction

since it does not impair the technical performance capability of the


e. Typically, the metal component of the merchandise delivered is

not defective, hence the value of the metal remains the same. Any

price reduction can therefore apply only to the price of the item

without the metal surcharge.


14.6 Exclusion of no-fault liability

a. TOSCA srl is not liable to pay compensatory damages for

any defective delivery or performance that is not based upon fault,

in particular for any lost profits, downtime or compensation for

business interruption.


14.7. Reimbursement of expenses

a. The Customer is only eligible to submit a claim for reimbursement

of expenses if attempts to cure have failed and TOSCA srl 

is at fault for the defect of the delivered merchandise or for the

failure to cure.

b. If there has been a defect-free cure, claims for reimbursement of

expenses are null and void.

c. Reimbursement of expenses may be requested only as a substitute

for compensatory damages in lieu of performance.

d. Futile expenses are only those that were rendered useless due to

the defect in the delivered merchandise. These include, in parti-

cular, only those expenses incurred in reliance upon the delivered

goods being free of defect.

e. Reimbursed expenses include only costs incurred after receipt of

the order confirmation and that ultimately proved useless.

f. There shall be no claim for reimbursement of expenses to the

extent the Customer anticipated or should have anticipated failure

to perform.

g. In particular, the right to reimbursement shall not apply where

it has arisen for merchandise subject to the reservation of self-


h. There shall also be no right for reimbursement of expenses when the

expenditure is significantly disproportionate to the performance

not provided. This applies in particular if the Customer could have

readily obtained comparable merchandise from a competitor.

i. Claims for lost profits, downtime, business interruption and own

labor costs do not fall within the scope of reimbursable expenses.

j. If the Customer has or could have obtained some use from his

expenditures, then the right to reimbursement of expenses shall be

reduced accordingly.


14.8. Compensatory damage in lieu of performance

a. The Customer shall expressly set TOSCA srl in writing a

reasonable deadline to cure. The deadline to cure is valid only if at

the time the deadline is set the performance owed was due.

b. The deadline set must clearly and unequivocally specify the perfor-

mance demanded and clearly designate the end of the deadline. The

rationality of the time to cure must consider that the merchandise

must normally be remanufactured.

c. The Customer is not entitled to demand compensatory damages

in lieu of performance for defect-free partial deliveries received.

d. If the Customer has made a legally effective claim for compensa-

tory damages in lieu of performance, the right of the Customer to

compensatory damages in lieu of performance shall be limited to

the difference between a possible higher purchase price for repla-

cement goods of the same type and quality from the same country

of origin and the purchase price agreed in the order confirmation.

e. The Customer shall have no further claims for financial harm incur-

red due to failure to deliver; in particular, for downtime, business

interruption or lost profits. Such exclusion shall not apply if the

Customer‘s damages were caused by TOSCA srl  intenti-

onally or by gross negligence.

f. The aforementioned limitations of liability do not apply to com-

pensatory damage claims of natural persons for personal injury,

impairment to health or death as well as for inalienable rights

(Liability Act, Product Liability Act).


14.9 Compensatory damages for breach of duty

a. If TOSCA srl  is at fault for the nonfulfillment or poor

fulfillment of its duty to deliver, claims based upon downtime,

business interruption or lost profits are excluded. Such exclu-

sion shall not apply if the Customer‘s damages were caused by

TOSCA srl  intentionally or by gross negligence.

b. If TOSCA srl  is not the manufacturer of the merchandise

delivered, the fault of the manufacturer shall not be applied to

TOSCA srl 


15. Damage to any item of property other than the merchandise


a. Compensatory damage claims against TOSCA srl  for

damage to, or the destruction of, any items of property other

than the delivered merchandise itself shall exist only if TOSCA srl 

can be shown to have acted intentionally or with

gross negligence.

b. The Customer has no claim to compensatory damages if at the

time of ordering it has not informed TOSCA srl that

major financial loss might ensue in the case of a defective delivery.

Major financial loss is an amount in excess of €5,000.

c. Customer‘s claims based on financial damages, in particular for

lost profits, production down times or business interruption are

hereby expressly excluded.

d. TOSCA srl is not liable for financial damages attributable

to claims asserted against the Customer by third parties. TOSCA srl 

 is not liable in particular for damages whose cause is

attributable to the Customer’s waiver vis-à-vis its own customer of

the latter’s duty to immediately inspect or object or has assumed

such duty on behalf of its own customer.

e. The possible financial damage claims of the Customer are limited

to €10,000.

f. If the liability of TOSCA srl has been excluded or limited,

the exclusion or limitation of liabilities shall also inure to the benefit

of internal governing bodies of TOSCA srl , its managers,

employees, or vicarious agents.

g. The aforementioned limitations of liability shall not apply to

the extent claims are asserted based upon death, bodily injury,

impairment to health or inalienable rights (e.g. Product Liability

Act, Liability Act).

h. The aforementioned liability limitations and exclusions shall also

not apply if TOSCA srl  is shown to have acted intentio-

nally or with gross negligence.


16. Force Majeure

a. If the nonfulfillment of delivery or performance by TOSCA srl 

 is attributable to force majeure such as, e.g. natural catastro-

phe, epidemic, war, armed conflict, civil war, revolution, terrorism,

sabotage, nuclear reactor accidents, labor strike or other events

beyond the influence of TOSCA srl , then for the duration

of such event, TOSCA srl shall be released from its duty to

perform and the time of delivery shall be extended accordingly.

b. TOSCA srl shall inform the Customer of the beginning

and the end of such circumstances as soon as possible.

c. If the event lasts longer than six months, TOSCA srl  shall

also be entitled to terminate the contract.


17. Contract language, applicable law, jurisdiction and venue

a. Unless otherwise agreed the contract language is Italian.

b. The laws of Italy with the exception of its conflict of laws

provisions and the UN Convention on the International Sale of

Goods (CISG) shall apply to all claims in connection with deliveries

and performance of TOSCA srl irrespective of legal


c. Jurisdiction and venue for all disputes in connection with or arising

from deliveries or the performance of TOSCA srl  is at the

registered office of Brescia, Italy