Terms & Conditions
I General provisions
- Deliveries, services and offers of GermanSolar AG (hereinafter referred to as supplier) shall be effected exclusively on the basis of these General Terms and Conditions for Sale and Delivery.
- By accepting an offer, a confirmation of order, at the latest, however, when the order has been placed or a service has been accepted, the customer acknowledges that the General Terms and Conditions for Sale and Delivery shall apply for the entire business relationship with the supplier. The conditions of sale and delivery once agreed upon shall also apply for future conclusions of a contract.
- Silence of the supplier to contrary provisions of the ordering party shall not be deemed to be an acceptance of these provisions; their applicability is opposed. Each and every deviation from the conditions of sale and delivery of the supplier shall be considered a rejection of the order. The acceptance of a delivery – even with reservations – shall be considered an acceptance of the conditions of sale and delivery of the supplier.
- Provisions deviating from the conditions of sale and delivery shall require a written approval.These General Terms and Conditions for Sale and Delivery shall only be valid vis-à-vis entrepreneurs in the sense of § 310 Par.1 BGB [German Civil Code].
II Placing of an order
- All offers of the supplier are subject to confirmation and are unbinding.
- Orders shall become legally binding after the written confirmation of the supplier or after execution of the order. Collateral agreements, reservations, modifications or supplements to a contract require the written confirmation of the supplier to be valid.
- Samples shall be considered mere guideline specimen; in case of a purchase after having obtained a sample or specimen, the properties of the specimen shall not be considered guaranteed.
III Passing of the risk and dispatch
- The risk shall pass over to the customer – even if carriage paid delivery has been agreed upon – as soon as the delivery has been set aside for the ordering party in the warehouse of the supplier; in case of dispatch having been agreed upon, as soon as the set-aside consignment has been dispatched or has been collected.
- Packaging and dispatch – at the costs of the ordering party – shall be effected with common-practice care. At the request and at the costs of the ordering party, the consignment shall be insured against breakage, transport and fire damage by the supplier.
- If, at the request of the customer, shipment is delayed or the said is in default of acceptance, the risk shall pass over to the customer when the supplier arranges the warehousing. Any costs accruing shall be borne by the customer. Moreover, the supplier shall be entitled to withdraw from the contract or to claim damages for non-performance, if the customer does not accept the goods in due time or refuses acceptance.
IV Prices and terms of payment
- The prices shall be applicable ex warehouse of the supplier plus the legally applicable value-added tax, and packaging and postage, if and when applicable.
- The supplier reserves the right to modify prices accordingly if cost reductions or increases take place following the conclusion of the contract, in particular, due to wage settlements and changes in materials prices. The supplier will provide proof of such at the customer’s request.
- The claim of the supplier to payment shall become due as soon as the delivery has been rendered available to the ordering party.
- The customer shall be entitled to offset such claims only, if they are uncontested or have been declared res judicata.
- The customer shall not be entitled to the right to refuse performance in compliance with § 320 BGB [German Civil Code] and to the right of retention. This shall apply also to a right of retention based on alleged defects in delivery or service prior to the execution of guarantee, and on the Silver right of retention in compliance with § 369 HGB [German Silver Code].
V Time limits, default and impossibility
- With respect to the time limits for delivery or performance of services, the mutual written statements shall be decisive.
- A mutually agreed time limit shall be considered observed by setting aside the goods for the customer. If dispatch has been agreed, a time limit shall be considered observed when the ready-to-operate consignment has been dispatched. The observation of an agreed time limit requires the punctual receipt of all documents to be provided by the customer and the observation of the agreed terms of payment and other obligations of the customer. If these pre-requisites are not met in due time, the time limit shall be extended by a reasonable period of time.
- The supplier is not responsible for delays in deliveries or performance due to force majeure and due to events which temporarily make it significantly difficult or impossible for the supplier to deliver – i.e. strikes, lockouts, official directives, including those occurring to its suppliers and sub-suppliers – even in the case of binding dates and deadlines. The latter entitles the supplier to postpone delivery and/or performance for the duration of the hindrance plus an appropriate lead time, or to fully or partially withdraw from the agreement due to the still unfulfilled portion.
- If the hindrance lasts more than three months, after establishing an appropriate grace period, the customer is entitled to withdraw from the agreement in consideration of the unfulfilled portion of delivery or performance. If the delivery or performance period is extended, or if the supplier is released from its obligation, the customer may not derive any claims to compensation from this. The supplier may only invoke the aforementioned circumstances if he notifies the customer immediately.
- Claims of the customer for compensation for default and claims for damages due to non-observation by default or impossibility of the performance of the supplier shall be limited to 10 per cent of the value of such share of the delivery or performance which cannot be put to appropriate use or not in due time due to the impossibility and/or default. Claims for damages which exceed the limit mentioned above shall be excluded in all cases of delay or impossibility, even after the additional time set for the supplier has run down. This shall not apply in cases of intent or gross negligence where liability is prescribed by law.
- The objects supplied, even if they have unessential defects, shall have to be accepted by the ordering party. Partial deliveries shall be permissible unless the partial delivery or performance is not of interest to the customer.
VI Liability for defects
For defects, the supplier shall be liable in keeping with the following regulations:
a) In general, only the properties derived from the technical product description are considered characteristics of the merchandise. Public statements, promotions or advertisements of the manufacturer do not represent contractual characteristics.
b) The customer shall be obligated to fulfill its obligations to examine defects in accordance with § 377 HGB [German Silver Code]. The determination of the defects shall have to be reported to the supplier in writing within a preclusive period of one week stating the concrete objections. In case of apparent defects, the period shall start with the handover, in case of hidden defects with their detection. After the period has run down without a complaint having been filed, warranty claims shall be excluded.
c) In case of justified notification of defects, the supplier shall be entitled to choose between supplementary fulfillment with remedy of the defect, or delivery of a new product free of defects.. If the defect is remedied, the supplier is obliged to bear all expenses required for such remedy, particularly transport, road, labor and material costs, provided these costs are not increased because the product is delivered to a location other than the place of performance. If supplementary fulfillment fails, the customer is entitled to choose between withdrawal from the agreement and reduction of the purchase price.
d) The period of limitation for warranty claims is 12 months, starting with the passing of risk.
e) In the case of delivery claims under §§ 478, 479 BGB, the period of limitation is unaffected. This period is five years from delivery of the defective product. VII Overall Liability
- The supplier shall not be liable (a) in the event of ordinary negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents; (b) in the event of gross negligence on the part of its non-executive employees or other vicarious agents, unless this constitutes a violation of basic contractual obligations. Compensation for the violation of a fundamental contractual obligation is – insofar as it is not intentional or due to gross negligence – limited to the typical loss or damage that could be reasonably expected to occur.
- Liability for culpable injury to life, body or health is unaffected. This also applies to compulsory liability under the Product Liability Act.
- Except as provided for in the preceding clauses, liability is excluded.
- The aforementioned limitation of liability and exclusion of liability also applies to the non-contractual claims and claims for vain expenditures and disbursements according to § 284 BGB substituting claims for contractual damages.
- If liability for damages is excluded or limited for the supplier, this also applies to personal liability for damages of the supplier’s staff, employees, workers, representatives and vicarious agents.
- All claims for damages shall be statute-barred after six months after handover of the deliveries or the service. If a handover has not taken place yet or if the damage causing event occurred after the handover, the limitation of time shall start with the occurrence of the damage.
VIII Instructions and product observations
- The customer shall be obligated to carefully observe the product instructions provided by the supplier, and to forward the said to the potential user and his customer with a special note.
- If the customer does not meet his obligations in compliance with sub-chapter (1), and if this causes product or producer liability claims against the supplier, the ordering party shall indemnify the supplier against these claims in the internal relationship; if circumstances for which the supplier is responsible have been contributory, the indemnification shall be proportionate to the cause.
IX Reservation of Title
- The goods supplied shall remain the property of the supplier customer irrespective for whatever legal reason.
- The customer shall be entitled to process the goods supplied within the framework of his normal business transactions. The processing of the goods shall be effected for the supplier without binding him; the new products shall become the property of the supplier. In case processing has taken place with other goods not belonging to the supplier, the supplier shall obtain co-ownership in the newly produced objects relative to the invoiced value of the reserved goods compared to the other objects processed. In case of a joinder or mixture, the supplier shall become co-owner in compliance with the legal regulations. If the property of the supplier should perish nonetheless and the ordering party should become co-owner, he shall now already transfer to the supplier the property according to the proportion of the invoiced value of the reserved goods relative to the other processed objects as a security. In all cases mentioned the ordering party shall have to warehouse without charge all objects owned or co-owned by the supplier.
- The customer shall be permitted to sell the goods in a processed or unprocessed condition within the framework of his usual business transactions. The authorization to sell shall cease automatically with an unsuccessful execution with the ordering party, with the protest of a check or bill of exchange to be honored by the ordering party as well as with the filing of a petition for composition or bankruptcy. Otherwise, all other directions with respect to the reserved goods, in particular pledging and chattel mortgage, shall be impermissible.
- Now already the customer assigns to the supplier all claims with all ancillary rights derived from the resale of the reserved goods in processed and unprocessed conditions. In case of the resale of processed, combined and mixed reserved goods, the supplier shall obtain a preferential partial amount which corresponds to the percent
share of the invoiced value of the goods supplied plus a safety surcharge of 5 per cent. Subject to revocation at any time, the ordering party shall be entitled to include the claims transferred to the supplier in the normal business transactions. The supplier will not avail himself of his right of seizure as long as the customer meets his payment obligations – towards third parties as well – as agreed upon. This right of seizure shall not permit the ordering party to transfer his consequential claims to a factoring institute within the framework of a so-called real factoring by accepting the del credere risk. As a precaution, the customer transfers his claims against the factoring institute for payment of the factoring yield to the supplier, and undertakes to inform the factoring institute immediately after invoicing by the supplier.
- Without explicit approval of the supplier in writing, the customer shall not be authorized to place the claims of the supplier in a current account. Moreover, the ordering party shall not be authorized to place the claims from a resale of the goods supplied in a processed or unprocessed condition in a current account held along with his customer. As a precaution, the customer transfers his claims from the periodic balances and a final balance up to the amount of the secured claim to the supplier; the transfer shall comprise causal and abstract balance.
- The security interest of the supplier shall cease with the complete performance. In case of payment by check or bill of exchange, the security rights shall cease when the customer has honored the paper and recourse against the supplier is no longer possible. The supplier undertakes to release securities at his discretion as soon as the value of the existing security exceeds the claim of the supplier by more than 10 percent.
- The customer shall inform the supplier immediately of any execution measures of third parties involving the reserved goods and other securities by handing over the documents required for protest. The intervention costs accruing to the supplier shall have to be borne by the customer, provided the intervention was successful and the execution was attempted in vain against the defendant as debtor or the failure was caused by the ordering party. Upon the request of the supplier the ordering shall render available immediately a list of buyers of unprocessed or processed reserved goods, and shall have to inform these buyers of the transfer of the claims.
X Concluding provisions
- Should a provision of these General Terms and Conditions or a provision of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
- These General Terms and Conditions and all legal relationships between the customer and the supplier are subject to German law. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are not applicable..
- If the ordering party is a chartered merchant, a legal entity under public law or special federal funding, the sole venue shall be Cottbus in Germany for all disputes resulting directly or indirectly from the contractual relationship. The supplier shall be entitled to take legal action against the ordering party at the general venue of the said.