General Terms and Conditions

For the supply and delivery of solar modules and accessories by Erneuerbare Energien Großhandel GmbH

I. Preliminary notes

(1) These Terms and Conditions shall only apply to persons who are exercising a commercial or free-lance occupational activity upon conclusion of the contract (entrepreneur), to legal bodies under public law and to special public assets.
(2) These Terms and Conditions shall apply to offers made and orders received by the Supplier. By placing an order, accepting the order confirmation and accepting the delivery, the Buyer acknowledges these Terms and Conditions as binding, for the present and the future. Objections made by the Buyer in reference to standard terms and conditions – in particular the Buyer’s own conditions of purchase – may be disregarded.
(3) These Terms and Conditions apply exclusively. Conflicting or supplementary terms and conditions of the Buyer are hereby expressly excluded.
(4) Amendments or additions to these Terms and Conditions must be made in writing. This shall also apply to the waiving of the written form requirement. The Supplier retains all rights of ownership and copyright of drawings, system layouts and similar information of corporeal or incorporeal nature, including in electronic form; furthermore, such material may not be made available to third parties. Both, the Supplier and the Buyer agree that information and documents deemed as confidential by the other party may only be made accessible to third parties with the other party’s permission.

II. Prices and payment

(1) All prices are ex-works, excluding packaging, transport insurance, VAT and freight charges.
(2) Unless otherwise agreed, payment shall be made in advance, provided that the Supplier receives the payment seven days prior to the date of delivery.
(3) Variations to this regulation shall be subject to a separate agreement.
(4) The Buyer may only offset against claims that are undisputed or have been determined to be legally valid.
(5) The prices shall be based on the wages, material costs, exchange rates and applicable VAT that are effective at the time of the offer. In the event that such costs change before the date of delivery, the Supplier reserves the right to pass such price changes on to the Buyer as appropriate. The Buyer shall be notified of such price change. In the event of a significant price increase, the Buyer shall be entitled to withdraw from the contract.

III. Offer

The scope of delivery of offers, which are non-binding until the written order confirmation, is based on the scope of supply and services as described in the offer.

IV. Late payment

In the event of culpable violation of substantial contractual obligations by the Buyer, in particular reference to default in payment, the Supplier shall be entitled to recover and the client is obliged to release the Delivery Item following a written warning.

V. Reservation of title

(1) The Supplier shall retain ownership of the Delivery Item until all payments under the delivery contract, including any due additional ancillary services, have been received.
(2) The Supplier shall be entitled to insure the Delivery Item against theft, breakage, fire, water and other damages, at the costs of the Buyer, unless the Buyer has demonstrably arranged insurance himself.
(3) The Buyer may neither sell nor pledge the Delivery Item nor offer it as security. In the event of distraint, confiscation or other acts of disposal by third parties, the Buyer shall notify the Supplier immediately.
(4) In the event of culpable violation of substantial contractual obligations by the Buyer, in particular reference to default in payment, the Supplier shall be entitled to recover and the client is obliged to release the Delivery Item following a written warning.
(5) The Supplier shall only be entitled to demand return of the Delivery Item on the strength of the reservation of title after withdrawal from the contract.
(6) If an application for commencing insolvency proceedings has been filed against the Buyer, the Supplier is entitled to rescind the contract with immediate effect and request immediate return of the delivered items.
(7) Processing or transformation of the Delivery Item by the Buyer is always carried out on the Supplier’s behalf as manufacturer, however, without any obligations for the Supplier.
(8) If the reserved goods are inseparably combined (or mixed) with other items not owned by the Supplier, the Supplier shall acquire joint ownership of the new product in the proportion of the value of the reserved goods (invoice value) to the other combined or mixed items at the time of combining (or mixing). If the combination (or mixing) is effected such that the Buyer’s item is to be regarded as the main item, it is hereby agreed that the Buyer shall assign the Supplier pro-rata co-ownership, calculated on the basis of the proportion of the value of the purchased item in proportion to the main item.
(9) The Buyer shall hold the (joint) property of the Supplier in custody free of charge.
(10) The Buyer shall be entitled to sell the reserved goods only within and according to the rules of customary business, and under an agreement of extended and expanded reservation of title. The Buyer shall not be entitled to dispose the items which are subject to reservation in any other way, in particular pledging or transferring ownership by way of security. The Buyer shall not be entitled to conclude a prohibition of assignment or any other conditions hindering an assignment (such as approval requirements) with his customers.
(11) The Buyer’s power of processing and disposal shall expire in the event of culpable violation of substantial contractual obligations, in particular reference to default in payment, or forfeiture of assets.
(12) The Buyer shall, for the purposes of security, herewith assign all claims resulting from further sale or any other legal reason with reference to the reserved goods fully or to the proportion of the co-ownership share to the Supplier. The Supplier hereby accepts this assignment.
(13) In the event of pledging, confiscation or other restraints or interventions by third parties to the reserved goods, the Buyer shall indicate the Supplier’s ownership rights to the third party and notify the Supplier without delay.
(14) The Buyer is obliged to adequately insure the reserved goods against theft, breakage, damages and accidental destruction (in particular fire and water) and to provide the Supplier with evidence of this insurance if requested.
(15) The Supplier undertakes upon request by the Buyer to free the Buyer from any obligation under these Terms and Conditions to accede to claims of the Supplier exceeding 20% of the actual value of the goods.

VI. Delivery time

(1) Unless otherwise agreed, the delivery time for solar modules is eight weeks. The delivery time shall commence the moment the written order confirmation is sent.
(2) Adherence to the delivery times by the Supplier presumes that all commercial and technical issues have been clarified between the contracting parties, and that the Buyer has performed all obligations incumbent on the Buyer, e.g. procurement of necessary documents, drawings, official certificates, approvals or other services to be provided, or that agreed down payments have been made. If this is not the case, the delivery time shall be extended appropriately. This does not apply if the Supplier is responsible for the delay.
(3) The Supplier shall notify the Buyer immediately of any emerging delays.
(4) The delivery time is deemed to have been observed if, by the expiration of the delivery time, the Delivery Item has been made available to the Buyer on the Supplier’s premises or any other named place (warehouse), or if notice thereof has been given.
(5) In the event that non-observance of the delivery time is due to events beyond the Supplier’s control, the delivery time shall be extended appropriately.
(6) Partial deliveries shall be permissible.
(7) If the dispatch of the Delivery Item is delayed for reasons for which the Buyer is responsible, the Buyer shall be charged the costs caused by the delay, beginning one month upon notification that the Delivery Item is ready to be dispatched.
(8) In case of delayed delivery, the Buyer after the due date may fix a reasonable final period to deliver the Delivery Item, and if this period is not met by Supplier due to his fault, the Buyer may by notice in writing terminate the contract as provided by law. On demand of the Supplier, he commits to declare within a reasonable period, if he will make use of his right to withdraw from the contract.

VII. Default of acceptance

In the event of acceptance default, payment shall be due on the agreed date of payment.

VIII. Transfer of risk, acceptance

(1) The risk shall be transferred to the Buyer as soon as the Delivery Item has been set aside for the Buyer at the Supplier’s premises or any other named place (factory, warehouse, etc.). This also applies if partial deliveries are made or if the Supplier has been commissioned to provide further services (e.g. shipping costs or delivery and installation). If the dispatch is delayed due to circumstances attributed to Buyer, in particular default of acceptance, the risk shall pass to the Buyer or the recipient of the delivery upon notification that the Delivery Item is ready to be dispatched.
(2) Insurance against transport losses shall only be effected by express written agreement and for account of the Buyer.
(3) Presuming no material defects, the Buyer is obliged upon delivery to accept the Delivery Item without delay upon notification that the Delivery Item is ready to be dispatched and to sign the acceptance protocol provided by the Supplier. Acceptance shall not affect the rights of the Buyer to withdraw from the contract.
(4) If acceptance is delayed as a result of circumstances not attributable to the Supplier, it shall be deemed as effected after expiry of one week from the date of notification of readiness for acceptance.
(5) If the Buyer has put the Delivery Item into use, acceptance shall be deemed as effected after expiry of one week, unless it was already effected.

IX. Warranty, material defects

(1) The Buyer may assert warranty claims provided that he has duly complied with his obligation to examine and complain according to Section 377 HGB (German Commercial Code). If the Contractual Partner is a trader, Section 377 HGB (German Commercial Code) shall apply for delivery of goods. If the Contractual Partner is not a trader or in the event that Section 377 HGB (German Commercial Code) is not applicable, the Buyer shall notify the Supplier of any defects immediately, at latest within three days after receipt of the Delivery Items. Any defects in excess thereof shall be reported within seven days after their discovery. The date of notification of defects shall be decisive.
(2) All parts proving to be defective due to circumstances arising before the transfer of risk are to be repaired or replaced by faultless parts at the Supplier’s discretion free of charge.
(3) The Buyer shall grant the Supplier the time and opportunity required to carry out any and all remedies and substitute deliveries deemed necessary on the part of the Supplier after coming to an agreement with the Supplier; otherwise the Supplier shall be exempt from liability for any and all consequences arising therefrom. Only in urgent cases where there is a risk to work safety or to avoid disproportionately large damage, of which the Supplier shall be informed immediately, shall the Buyer be entitled to remedy the defect himself or have it remedied by third parties, and to demand reimbursement of the necessary expenses by the Supplier.
(4) Out of the direct costs incurred as a result of the remedy or replacement delivery, the Supplier shall bear the costs for the replacement parts, including dispatch – insofar as the complaint proves to be justified. The Supplier shall also bear the costs of deinstallation and installation and the costs of any necessary provision of required mechanics and assistants, including travel expenses, provided no disproportionate burden is imposed on the Supplier as a result.
(5) The limitation period for claims and rights on account of any defects reported in due time is 12 months from the transfer of risk.
(6) No liability shall be assumed in particular in the following cases:
Unsuitable or improper use, incorrect installation of the system, incorrect assembly and initial operation by the Buyer or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating material, faulty structural work, unsuitable building ground, chemical, electro-chemical or electric influences – unless the Supplier is responsible for such conditions.
The Supplier expressively advises the Buyer to ascertain the correct electric installation of the system as well as the configuration of inverters of photovoltaic systems. The Supplier assumes no liability for unascertained configuration, wiring or laying of systems, or for defects, direct or indirect damages as a result thereof. Information and statements provided by the Supplier regarding the installation and wiring of systems and inverters shall be regarded as non-binding suggestions to be checked and, if necessary, amended by the Buyer. These suggestions shall not constitute any contractual obligations of the Supplier. Implementation of the Supplier’s suggestions by the Buyer is at the Buyer’s risk, and any liability by the Supplier shall be excluded.
The Supplier expressively advises the Buyer to test the statics when working with on- and in-roof constructions using products supplied by the Supplier. The Supplier assumes no liability for untested or insufficiently tested statics, or for defects, direct or indirect damages as a result thereof.
If the Buyer or a third party remedies a defect incorrectly, the Supplier shall not be liable for the resultant consequences. The same shall apply to any modifications to the Delivery Item made without the prior consent of the Supplier.
The Supplier’s liability for essential third-party products within a delivery shall be limited to assignment of the liability claims to which he is entitled against the supplier of the third-party product. On the Buyer’s request, the Supplier shall disclose the content of such claims to the Buyer. Only after unsuccessful legal action by the Buyer against the supplier of the third-party product shall the Supplier be liable pursuant to these Terms and Conditions.
a) In the event of an infringement of property rights through designated use of the Delivery Item supplied by the Supplier (patent, copyright or any other industrial property rights of third parties), the Supplier shall provide the Buyer with the right to further designated use or to modify the Delivery Item in a reasonable manner for the Buyer in such a way that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a suitable term, the Buyer shall be entitled to withdraw from the contract. The Supplier shall also be entitled to withdraw from the contract under the aforementioned conditions. In addition, the Supplier shall indemnify the Buyer against undisputed or legally enforceable claims from the relevant owners of the property rights.
b) The obligations of the Supplier mentioned in 9 a) shall only apply if

• the Buyer notifies the Supplier promptly of any infringement of industrial property rights or copyrights claimed by any third party,
• the Buyer reasonably supports the defence of any such claims by the Supplier and allows the Supplier to make modifications as referred to in Clause 9.1 here-inabove,
• the Buyer allows the Supplier to defend at his own cost any such claim or to make any out-of-court settlement with respect to any such claim as the Supplier may think fit,
• the legal defect is not due to any instructions given by the Buyer to the Supplier and
• the legal defect is not due to any modification of the Delivery Item by the Buyer or any use
  of the Delivery Item not in conformity with the intended use.

c) The Supplier shall bear the Buyer’s court and legal costs incurred in legal proceedings.
d) If the Buyer terminates the use of the product because of alleged infringement of property right in order to minimise the damage or for other sound cause, he shall be obliged to point out to the third party that the termination of use does not constitute an acknowledgement of the infringement of the property rights.
(10) If the guaranteed electric power of a solar module is within the tolerance range stated in the datasheet or on the product itself, and if, after initial operation, the possible reduction of the electric power specific for that product is lower than 5%, the solar module shall not be deemed to have a material defect.
(11) Claims to recourse against the Supplier by the Buyer pursuant to Section 478 BGB only exist insofar as the Buyer has not reached any agreements with his customer in excess of the statutory claims on account of defects.
(12) Further claims or claims other than those regulated in these Terms and Conditions filed by the Buyer against the Supplier and his vicarious agents on account of a material defect are precluded.

X. Compensation

(1) With regard to damage other than damage to the Delivery Item itself, the Supplier shall accept liability on whatever legal grounds only in the event of:

• intent,
• gross negligence on the part of the owner/the executive officers or other officers,
• culpable injury to life, limb or health,
• fraudulent non-disclosure of a defect,
• a defect the absence of which has been guaranteed,
• defects in the Delivery Items insofar as the Product Liability Act provides for liability for personal injury and damage to privately used property.

(2) In the event of culpable violation of substantial contractual obligations, the Supplier shall also be liable for gross negligence by the Supplier’s employees and for slight negligence; in the event of slight negligence, liability shall be limited to the contractually relevant, foreseeable damage or loss.
(3) Further claims shall be precluded.
(4) The provisions of these Terms and Conditions regarding compensation claims shall also apply for compensation claims for wasted expenses.

XI. Limitation

All claims of the buyer regardless of the legal bases shall be subject to a statute of limitations of 12 months. This shall also apply for defects to building structures or for Delivery Items, which were properly employed in their intended use for building structures and caused defects to such building structures. For damage claims, the legal limitation periods shall apply.

XII. Applicable law and jurisdiction, final provisions

(1) The place of performance is Dresden or the registered office of the respective supplier.
(2) The relationship between the Supplier and the Buyer shall exclusively be governed by the law of the Federal Republic of Germany, provided however that the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
(3) At the discretion of the Supplier, the court of jurisdiction is either Dresden or the registered office of the subsidiary that effected the delivery. The Supplier is also entitled to take legal action at the registered office of the Buyer.
(4) Data supplied by the Buyer shall be stored in accordance with the regulations of the Federal Law for Data Protection (BDSG).
(5) Should individual provisions of these conditions be invalid, the statutory provisions shall apply, unless the Parties have agreed otherwise. This, or any other written agreement, shall not affect the validity of these Terms and Conditions or any provisions thereof.