General sales terms and delivery conditions of the Deutsche Solar
I. In General
- The following General Terms and Conditions of Sale and Supply of Deutsche Solar GmbH (hereinafter: “SELLER“) become subject terms of each contract with customers (hereinafter: “BUYER”). Altering and dissenting terms and conditions require the SELLER´s written consent. General terms and conditions of the BUYER are expressly excluded.
II. Offers, Orders
- Offers by the SELLER are, in terms of prices, quantity, time of delivery and capacity, subject to confirmation.
- Orders by the BUYER become binding to the SELLER with written or printed confirmation, which may be included in an invoice or bill of delivery.
- The Seller will calculate on the basis of the prices being valid at the time of supply.
- In case the SELLER generally increases his prices in the time between conclusion of the contract and supply, the BUYER shall be entitled to rescission of the contract within two weeks after announcement of the price increase, unless the price increase is solely caused by general increase of freight tariffs. The right to rescission shall not be applied with relation to permanent supply contracts (continuing obligations).
- In any case the SELLER is entitled to calculate on the basis of such prices being usual in the market at the time of supply, if respectively insofar as the price increase is caused by an increase in the price level of necessary basic/raw materials.
- If the Parties agree upon any other currency than EURO (€) (“foreign exchange”), the SELLER reserves the right to reduce respectively increase his purchase price in foreign exchange in such way that the invoice-sum will correspond with the amount in EURO resulting from the exchange on the basis of the currency rate being valid at the time of concluding the contract.
- The negotiation of a bill of exchange requires the SELLER´s consent and will be in lieu of payment. Maturity time for bills of exchange shall be 90 days after the date of invoice. Discounts, transaction fees, taxes or other duties will be paid by the BUYER.
- In case that reasonable doubt with regard to the BUYERS ability to pay or creditworthiness exist, and the BUYER is, in spite of such request, not willing to pay in advance or to provide securities, the SELLER shall be entitled to rescission of contract, unless he has not already performed himself either.
- Payments, also by bill of exchange, are not fulfilled until the amount is definitely disposable on any bank account of the SELLER.
- The SELLER reserves the right to offset payments for the settlement of the eldest invoices due plus any default interests and costs, in the following order: incidental costs, interests, principal claim.
- Any right of retention on the part of the BUYER is expressly excluded. The BUYER is only entitled to charge up with claims that are either uncontested or held legally binding.
- The SELLER will at any time make best efforts to supply as fast as possible. However, fixed dates and terms of delivery do not exist.
- In the event that the Parties, differing from the foregoing, agree upon a fixed delivery date, the BUYER shall in case of the SELLER´s default be obliged to grant an appropriate extension of normally four weeks.
- The SELLER might demand for an appropriate extension of the delivery time in the event that he does not dispose of sufficient quantities of the basic/raw materials required caused by shortage of such material.
- As day of delivery shall be considered the day on which the goods leave the SELLER´s factory or one of the stores, and, if such day is not ascertainable, the day on which the goods are made available to the BUYER.
VI. Force Majeure, Impediments
- Force majeure of any kind, unforeseeable interferences in business, traffic or despatch, fire, flood, unforeseeable lack of staff, energy, basic/raw materials or auxiliary materials, strike, lockout, official decrees or any other impediment decreasing, impeding, delaying or making unreasonable the production, despatch, acceptance or use of the goods, and not being caused by the Party in obligation, will free from the obligation to supply or to accept for the duration and the extent of the impediment. In case the supply and/or acceptance of the goods due to such impediment, is delayed for more than eight weeks, both Parties shall be entitled to rescission of the contract. In the event that the SELLER´s sources of supply drop out partially or entirely, the SELLER shall not be obliged to source the goods from other suppliers. In this event the SELLER shall be entitled to distribute the quantities of goods considering his personal requirements.
- The SELLER reserves the right to choose the way and mode of despatch. Additional costs incurred by particular requests to despatch by the BUYER, will be paid by the BUYER. The same applies to, after conclusion of the contract, an increase in freight costs, additional costs for diversion, storing, etc., unless the supply is agreed upon as carriage free.
- The risks of loss, destruction or damage of the goods, will be vested to the BUYER with despatch or, in case of picking up, with allocation.
VIII. Conditional Sale; Retention of Title
- The goods will not become property of the BUYER until all outstanding obligations arising from the entire contractual relationship with the SELLER, including incidental costs, damage claims and payment of bills of exchange are fulfilled. “SELLER” in terms of this provision are also such companies, which the SELLER, directly or indirectly, obviously shares by 50 % or more. The retention of title also persists, if several claims of the SELLER are included in a current invoice and the invoice balance is accepted.
- The SELLER is entitled to demand for restitution of the goods, without extension of terms and without rescission of the contract, in case of the BUYER´s default with their obligations. The return of the goods shall only be regarded as rescission of the contract, if the SELLER expressly declares so in writing. In case the SELLER withdraws from the contract, he shall be entitled to demand for remuneration for the duration of the use of the goods by the BUYER.
- In case of processing the goods, the BUYER will act on behalf of the SELLER, however, without gaining claims against the SELLER due to the processing whatsoever. Insofar, the retention of title comprises the product arising from the processing of the goods. If the goods are mingled or connected with goods being in the property of third persons, the SELLER will acquire joint ownership concerning the emerging products in relation of the invoiced value of the goods to the invoiced value of the goods possessed by the third person. In case the mingling or connection is made to principal goods possessed by the BUYER, the BUYER assigns the property rights concerning the emerging goods to the SELLER.
- The BUYER is obliged to duly keep the goods on behalf of the SELLER, to maintain and repair them at their own expenses, as well as to insure the goods against loss and damage at their own expenses according to the habits of a scrupulous merchant. All claims arising from insurance contracts are assigned to the SELLER in advance.
- As long as the BUYER duly fulfil the obligations against the SELLER, they shall be entitled to dispose of the goods within proper course of business; this shall not apply in the event that between the BUYER and their customers an interdiction of assignments concerning the purchase price has been agreed upon. The BUYER is not entitled to pledging, to transfer by way of securitization or to other charges against the goods. In case of resale of the goods the BUYER is obliged to make the acquisition of ownership by their customers dependent on full payment of the goods.
- The BUYER hereby assigns to the SELLER all claims arising from any resale of the goods together with all ancillary rights and security rights including cheques and bills of exchange, in advance and in order to secure all claims of the SELLER against the BUYER arising from their contractual relationship. In the event that goods being still the SELLER´s property are resold together with other goods for an aggregate price, the assignment shall be limited to the pro-rata amount according to the SELLER´s invoice concerning the goods resold. If goods being in the SELLER´s joint ownership according to Sec. 3 hereof are sold, the assignment shall be limited to the part of the claim corresponding to the SELLER´s co-ownership share. If the BUYER uses the goods for processing of goods being in third persons´ possession against payment, they assign to the SELLER any claim for remuneration against the third person for the afore mentioned purpose of securitization. As long as the BUYER fulfil their obligations of payment within due time, they will be entitled to collect the claims arising from any resale or processing themselves. The BUYER is not entitled to pledging and assigning of such claims.
- If the enforcement of claims seems at risk to the SELLER, the BUYER shall on request be obliged to announce the assignment to their customers and to give all necessary information and documentation to the SELLER. The BUYER is also obliged to immediately inform the SELLER about third persons´ access to the SELLER´s goods or to the assigned claims.
- In case the value of the securities in favour of the SELLER exceeds the SELLER´s claims against the BUYER for more than 20 %, the SELLER shall on request be obliged to de-allocate securities. The choice of securities to be de-allocated will be made by the SELLER.
IX. Claims for Damage
- The SELLER is only liable for intention and negligence; this also applies with respect to legal agents and auxiliary persons. In case of violating obligations being particularly important for reaching the purpose of the contract, the SELLER is also liable for slight negligence. The SELLER´s liability regardless of negligence or fault, however, is excluded.
- Any damage claim of the BUYER, regardless of its legal cause, is limited to such damages, the arising of which has been anticipated within the contractual relationship, inasmuch as the duty is violated because of slight negligence.
- The limitations as set forth herein shall not apply in case of violation against life, body and physical health.
- Compulsory legal provisions regarding liability remain unaffected.
X. Notices of Defects
- Any notice of defect will only be considered when being made in writing and immediately, at the latest within 14 days after receiving the goods, and by sending in the receipts, patterns, parcel bills, and by indicating the invoice number, the invoice date and the signature which is to be seen from the package.
- In case of hidden defects the written notice must be made immediately after detecting the defect, at the latest within one year after receiving the goods; the legal limitation periods shall remain unaffected. The burden of proof in terms of hidden defects rests with the BUYER.
- Rejected goods might only be returned with the SELLER´s explicit consent.
- In case that the purchase is a commercial transaction for both Parties, the provisions of § 377 HGB (German Commercial Code) shall be applicable subsidiary.
- Warranty claims of the BUYER are restricted to rectification of defects by the SELLER only. In case the rectification fails, the BUYER might also either abate the purchase price or withdraw from the contract. Damage claims as set forth in Clause IX remain unaffected.
- Warranty claims are subject to a one year limitation period, beginning with the legally determined begin of time limitation.
XII. Technical Support, Application and Processing
- Any advisory service with regard to technical application rendered by the SELLER in writing, orally or in testing, is conducted to best knowledge, however, will only be noncommittal and unbinding indication, also in reference to possible Intellectual Property Rights of third persons. The BUYER shall not be released from inspecting the goods supplied with respect to their applicability for intended procedures and purposes.
- Application, usage and processing of the products take place out of the SELLER´s control capacity and therefore lie solely within the BUYER´s area of responsibility.
- It is forbidden to offer or supply substitute products in lieu of the SELLER´s manufactures by giving reference to such manufactures, as well as to associate the SELLER´s product names, trademarked or not trademarked alike, with the word “substitute” in price lists or other commercial papers, or to contrast to names of substitute products.
- When using the SELLER´s manufactures for fabrication purposes or when processing, it is also forbidden, in particular within component indications, to use the SELLER´s product names, in particular trademarks, on goods or their packaging or in connection with relating print or advertising material, without the SELLER´s prior consent. The supply of manufactures under a certain trademark shall not be deemed as consent to the usage of such trademark for the products processed.
- The BUYER agrees to indemnify, defend, and hold harmless the SELLER from any claims of any third persons, in particular such as but not limited to claims arising from product liability, for every breach of the obligations as set forth in this section XIII.
XIV. Special terms and Conditions of contracts for work, for work and materials and for services
- The following Special Terms and Conditions additionally apply to contracts between BUYER and SELLER whose subject is re-engineering or refining of material provided to the SELLER by the BUYER. These Special Terms are prior to the General Terms and Conditions.
- The BUYER is liable for defects reducing the value or the capability of material provided to the SELLER by the BUYER and for correspondence with agreed specifications and warranted characteristics. Any notice of defect will be given by the SELLER immediately as soon as the defect is determined in accordance with the course of business. Period of warranty is 2 years from despatch of the goods unless otherwise agreed.
- Unless otherwise agreed it is up to the SELLER whether to re-engineer or refine material provided by the BUYER or appropriate material of average kind and quality. If so the SELLER becomes owner of material provided by the BUYER.
- The SELLER is not obliged to save test samples including documentation and/ or to return them to the BUYER. The SELLER may use third parties to fulfil obligations in re-engineering or refining material.
- The SELLER´s performance is regarded as accepted bindingly if the BUYER does not contradict in writing within 14 days on receipt of the performance. The SELLER shall point the significance of this out to the BUYER.
XV. Applicable Law, Construction and Interpretation of Clauses etc.
- German Law applies only. The application of the uniform laws on the international sale of goods and on the conclusion of international purchase contracts, both as of 17th July 1973, and the application of the UN Convention of Contracts for the International Sale of Goods (CISG) as of 11th April 1980, is excluded.
- Customary clauses shall be construed and interpreted according to the relevant version of the INCOTERMS.
- In case the Parties have agreed upon the BUYER paying any tollage or import tax in the country of destination, the BUYER will also pay for any increase in such taxes entering into vigour in the time between confirmation of order and despatch of the goods. All other fees, taxes and costs incurring in connection with the contract are also paid by the BUYER.
XVI. Place of Performance and Jurisdiction; Applicable Law; Validity
- Place of performance with regard to the supply is the respective forwarding office, with respect to payments Freiberg/Saxony (Germany).
- Place of jurisdiction for both Parties is Bonn. The SELLER is also entitled to sue the BUYER at their place of general jurisdiction.
- In the event that several clauses of these terms and conditions, partially or entirely, are void or invalid, the validity of the other clauses respectively other parts of clauses shall remain unaffected. A clause of these terms being held void or valid shall be substituted by such provision that comes nearest to the economic purpose of the contract and is valid. The same principle applies to any possible lack of contractual provisions.