General Terms and Conditions for the Supply of Goods and Services

of alfasolar Vertriebsgesellschaft mbH
Last amended June 2005

 

I. General Provisions
1. Legal relations between the Supplier and the Purchaser in connection with goods and/or services supplied by the Supplier (hereinafter referred to as 'Goods') shall be governed solely by the present General Terms and Conditions for the Supply of Goods and Services. The General Terms and Conditions of the Purchaser shall apply only if and insofar as the Supplier has expressly agreed to them in writing. The scope of Goods supplied shall be determined by mutually accepted written declarations.
2. The Supplier reserves any property rights and/or copyrights that relate to cost estimates, drawings, and other documents (hereinafter referred to as 'Documents') without limitation. The Documents may be made accessible to third parties only with the Supplier?s prior written consent, and shall, upon request, be returned without delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to Documents of the Purchaser; these may, however, be made accessible to third parties with whom the Supplier has subcontracted in a permissible way for Goods.
3. The Purchaser has the non-exclusive right to use standard software and firmware provided that it is used with the performance features agreed upon, remains unchanged, and is used on the agreed equipment. The Purchaser may make one backup copy of the standard software without an express agreement to that effect.
4. Partial deliveries are permitted insofar as they are reasonable for the Purchaser to accept.
5. As used in the present Terms and Conditions, the term 'claim for damages' also includes claims for compensation for useless expenditures.

 

II. Prices, Terms of Payment, and Setoff

1. Prices are ex works, exclusive of packaging, plus value-added tax or sales tax at the then-applicable rate determined by law.

2. If the Supplier has assumed responsibility for installation or assembly and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, such as for travel and transportation as well as travel allowances.

3. Payments shall be made free to the Supplier's payment office.

4. The Purchaser may offset against the Supplier's claims only those of the Purchaser's own claims that are uncontested or non-appealable.

 

III. Retention of Title

1. All items supplied (goods subject to retention of title) shall remain the property of the Supplier until all of the Supplier's claims against the Purchaser in connection with the business relationship in question have been fulfilled. If the combined value of all security interests held by the Supplier exceeds the total value of all secured claims by more than 10%, the Supplier shall, at the request of the Purchaser, release a corresponding part of those security interests; the Supplier is entitled to choose which security interests to release in such a case.

2. For the duration of the retention of title, the Purchaser is not permitted to pledge the goods or assign them as security, and resale thereof is permitted only to resellers in the ordinary course of their business and only on the condition that the reseller receives payment from its customer or subjects such resale to the condition that the customer acquires title to the goods in question only when such customer has fulfilled its payment obligations.

3. In the event of seizure or confiscation of the goods subject to retention of title or any other dispositions or interventions by third parties, the Purchaser must inform the Supplier without undue delay.

4. In the event of a breach of obligation by the Purchaser, in particular where the latter defaults in payment, the Supplier shall be entitled, after the unsuccessful expiration of a reasonable remedy period afforded to the Purchaser, to take back the goods subject to retention of title and to rescind the contract; this shall not affect any statutory provisions relating to when remedy periods are not required. The Purchaser shall be required to return the goods. The Supplier's taking back of the goods or assertion of its reserved title or seizure of the goods subject to retention of title does not constitute rescission of the contract unless the Supplier has expressly declared such rescission.

 

IV. Time Limits for Provision of Goods; Delays

1. Time limits set for provision of Goods shall be binding only if all Documents, required permits and approvals to be provided by the Purchaser, in particular plans, are received on time, and if the agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not met on time, the time limits shall be extended appropriately; this shall not apply if the Supplier is responsible for the delay.

2. If non-compliance with the time limits set is due to force majeure, such as in the case of mobilization, war, civil unrest, or similar events, e.g., strikes or lockouts, the time limits shall be extended accordingly. The same shall apply if the Supplier does not receive its own supplies on time or in the proper form.

3. If the Supplier is responsible for the delay or default and the Purchaser can demonstrate that it has suffered a loss therefrom, the Purchaser may claim compensation in the amount of 0.5% for every full week for which the delay persists, but not more than a total of 5%, of the price of that part of the Goods that, because of the delay, could not be put to its appropriate use.

4. The Purchaser's claims for damages due to delayed provision of the Goods as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above are excluded in all cases of delayed delivery, even upon expiration of a time limit set for the Supplier to make the delivery. This shall not apply in cases of mandatory liability based on intent or gross negligence, or due to loss of life, bodily injury, or damage to health. Rescission of the contract by the Purchaser based on statute is limited to cases in which the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.

5. At the Supplier's request, the Purchaser is required to declare, within a reasonable period, whether it rescinds the contract because of the delay in provision of the Goods or insists on provision thereof.

6. If shipment or delivery is delayed, at the Purchaser's request, by more than one month after notification of readiness to ship is given, the Purchaser may be charged, for every additional month or portion thereof by which such delay persists, storage costs in the amount of 0.5% of the price of the items to be delivered, but not more than a total of 5% thereof. The parties to the contract are free to prove that the actual storage costs incurred are higher or lower than as indicated.

 

V. Passing of Risk

1. Even where it is agreed that delivery will be made carriage paid, the risk shall pass to the Purchaser as follows:

a) if the deliveries do not include installation or assembly, at the time at which the goods to be delivered are shipped or picked up. At the Purchaser's request and expense, the Supplier shall insure the goods to be delivered against the usual risks of transportation;

b) if the deliveries do include installation or assembly, on the day of acceptance in the Purchaser's own business or, if agreed, after a fault-free trial run.

2. The risk shall pass to the Purchaser if shipment, delivery, the start or performance of installation or assembly, acceptance in the Purchaser's own business, or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the goods delivered.

 

VI. Installation and Assembly

Unless otherwise agreed in writing, assembly and installation shall be subject to the following provisions: The Purchaser shall provide the following at its own expense and in a timely manner:

a) all excavation and construction work and other ancillary work outside the scope of the Supplier's industry or sector, including all necessary skilled and unskilled labor, construction materials, and tools,

b) the equipment and materials necessary for assembly and commissioning of equipment, such as scaffolds, lifting jacks and other devices, fuels, and lubricants,

c) power and water at the point of use, including the connections, heating, and lighting,

d) sufficiently large, suitable, dry and lockable rooms near the place of assembly for the storage of machine parts, apparatus, materials, tools, etc., and for the assembly personnel, appropriate work and recreation rooms including sanitary facilities as are appropriate in the specific circumstances; furthermore, the Purchaser shall take all measures for the protection of the possessions of the Supplier and the assembly personnel at the construction site that it would take to protect its own possessions.

e) protective clothing and protective devices that are needed due to particular conditions at the installation site.

2. Before assembly work begins, the Purchaser shall provide, without being requested to do so, any information necessary about the location of concealed electric power, gas, and water lines or similar installations as well as the required structural information.

3. Before assembly or installation, the materials and equipment necessary for the work to start must be available at the site of assembly or installation, and any preparatory work must have advanced to such an extent that assembly or installation can be started as agreed and carried out without interruption. Access routes and the site of assembly or installation must be level and clear.

4. If assembly, installation, or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional necessary travel expenses of the Supplier or the installation personnel.

5. The Purchaser shall attest to the duration of time worked by the installation personnel to the Supplier at weekly intervals and shall immediately confirm in writing to the Supplier when assembly, installation, or commissioning, as the case may be, has been completed.

6. If, after completion, the Supplier demands acceptance of the Goods provided, the Purchaser shall comply therewith within a period of two weeks. If this does not occur, acceptance is deemed to have taken place. Acceptance is likewise deemed to have taken place if the Goods are put to use, including, where applicable, after completion of an agreed test phase.

 

VII. Receiving Goods

The Purchaser shall not refuse to take delivery of Goods due to minor defects.

 

VIII. Defects as to Quality

1. All parts or services that are subject to a Defect shall be, at the Supplier's discretion, repaired, replaced or provided again free of charge, provided that the reason for the Defect already existed at the time when the risk passed.

2. Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory period of limitation; the same shall apply mutatis mutandis in the case of rescission and reduction of remuneration. This shall not apply where longer periods are prescribed by law, according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec 634a para. 1 No. 2 (defects of a building) of the German Civil Code ('BGB'), where there is intent, fraudulent concealment of the Defect, or non-compliance with warranted characteristics. The statutory provisions regarding suspension of the statute of limitations and interruption and recommencement of limitation periods shall be unaffected.

3. Notification of the Defect shall be given by the Purchaser in writing without undue delay.

4. In the case of notification of a Defect, the Purchaser may withhold payments in an amount that is in a reasonable proportion to the Defect. The Purchaser, however, may withhold payments only if the notification of the Defect involved is justified beyond any doubt. The Purchaser has no right to withhold payments if its claims for Defects are time-barred. Unjustified notifications of Defects shall entitle the Supplier to demand reimbursement of its expenses by the Purchaser.

5. The Supplier shall be given the opportunity to repair or replace the defective product within a reasonable period.

6. If repair or replacement is unsuccessful, the Purchaser may rescind the contract or reduce the remuneration without prejudice to any claims for damages to which the Purchaser may be entitled according to No. 10.

7. There shall be no claims based on Defects in cases of insignificant deviations from the agreed quality, of only minor reduction of usability, of natural wear and tear or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective construction work, inappropriate foundation soil, or claims based on particular external influences that are not assumed under the contract, or from non-reproducible software errors. Claims based on Defects caused by improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof are also excluded.

8. The Purchaser shall have no claims with respect to expenses incurred in the course of repairs and replacement work, in particular costs of transportation, travel, work, and materials, to the extent that such expenses are increased because the item delivered has subsequently been brought to a location other than the Purchaser's branch office, unless such relocation is in accordance with the normal use of such item.

9. The Purchaser's right of recourse against the Supplier in accordance with Sec. 478 BGB (recourse of the contractor) is limited to cases in which the Purchaser has not entered into any agreement with its customers that goes beyond the scope of the statutory provisions governing claims based on defects. Furthermore, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse that the Purchaser has against the Supplier in accordance with Sec. 478 para. 2 BGB.

10. The Purchaser shall have no claim for damages based on Defects. This shall not apply to cases in which a Defect has been fraudulently concealed, any warranted characteristics are not complied with, or to cases in which there is loss of life, bodily injury, or damage to health, restrictions to liberty and/or intentional or grossly negligent breach of obligation by the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Any claims of the Purchaser based on a Defect other than or beyond the claims provided for in this Article VIII are excluded.

 

IX. Industrial Property Rights and Copyright; Defects in Title

1. Unless otherwise agreed, the Supplier shall provide the Goods free of industrial property rights and copyrights of third parties (hereinafter referred to as 'IPR') with respect to the country of the place of delivery only. If a third party makes a justified claim against the Purchaser based on an infringement of an IPR in the Goods provided by the Supplier and used according to the contract, the Supplier shall be liable to the Purchaser, within the time period stipulated in Article VIII No. 2, as follows:

a) The Supplier shall choose whether to obtain the right to use the Goods concerned, to modify them such that they no longer infringe the IPR, or to replace them, in each case at its own expense. If this is impossible for the Supplier under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration in accordance with the applicable statutory provisions.

b) The Supplier's liability to pay damages is governed by Article XI.

c) The above obligations of the Supplier shall apply only if the Purchaser immediately notifies the Supplier in writing of any such claim asserted by a third party, does not concede the existence of an infringement, and leaves any protective measures and settlement negotiations to the Supplier's discretion. If the Purchaser stops using the Goods in order to mitigate the damage or for other good cause, the Purchaser shall be required to inform the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.

2. Claims of the Purchaser shall be excluded if the Purchaser is responsible for the infringement of an IPR.

3. Claims of the Purchaser are also excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a type of use not foreseeable by the Supplier, or by the Goods being modified by the Purchaser or being used together with products not provided by the Supplier.

4. In addition, with respect to claims by the Purchaser in accordance with No. 1 a) above, Article VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.

5. Where other defects in title occur, the provisions of Article VIII shall apply mutatis mutandis.

6. Claims of the Purchaser against the Supplier or its agents based on a defect in title other than or beyond the claims provided for in this Article IX are excluded.

 

X. Impossibility of Performance; Adaptation of Contract

1. If and insofar as delivery is impossible, the Purchaser is entitled to claim damages unless the Supplier is not responsible for the impossibility of performance. The Purchaser's claim for damages is, however, limited to an amount of 10% of the value of the part of the Goods that, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent or gross negligence or due to loss of life, bodily injury, or damage to health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser's right to rescind the contract shall be unaffected.

2. Where unforeseeable events within the meaning of Article IV No. 2 substantially change the economic importance or the contents of the Goods or considerably affect the Supplier's business, the contract shall be adapted, taking into account the principles of reasonableness and good faith. If and insofar as this is not economically justifiable, the Supplier shall have the right to rescind the contract. If the Supplier intends to exercise such right of rescission, it shall notify the Purchaser thereof without undue delay after having realized the repercussions of the event; this shall also apply even where an extension of the delivery period has previously been agreed upon with the Purchaser.

 

XI. Other Claims for Damages; Statute of Limitations

1. The Purchaser has no claim for damages on any legal grounds whatsoever, particularly due to violation of obligations arising in connection with the contract or tort.

2. The above shall not apply in the case of mandatory liability, e.g., under the German Product Liability Act (Produkthaftungsgesetz), in the case of intent or gross negligence, or due to loss of life, bodily injury, or damage to health, or due to violation of a significant obligation undertaken under the contract. However, claims for damages arising from a violation of a significant obligation undertaken under the contract shall be limited to the foreseeable damage that is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for loss of life, bodily injury, or damage to health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.

3. If and insofar as the Purchaser has claims for damages, such claims shall be time-barred upon expiration of the statute of limitations in accordance with Article VIII No. 2. The same shall apply to the Purchaser's claims in connection with actions undertaken to avert damage (e.g., recalls). In the case of claims for damages under the German Product Liability Act, the statutory provisions on limitation periods shall apply.

 

XII. Venue and Applicable Law

1. If the Purchaser is a businessperson (Kaufmann) as defined under German commercial law, the sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier's place of business. However, the Supplier may also bring an action at the Purchaser's place of business.

2. Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

XIII. Severability

The legal invalidity of one or more provisions of this Agreement shall in no way affect the validity of the remaining provisions. This shall not apply if continuing to adhere to the contract would constitute an unreasonable hardship for either of the parties.

 

 

Supplementary Terms and Conditions - Expanded Retention of Title

Last amended November 2005

 

The following simple and expanded retention of title is agreed upon:

 

1. All items supplied (goods subject to retention of title) shall remain the property of the Supplier until all of the Supplier's claims against the Purchaser in connection with the business relationship in question have been fulfilled. If the combined value of all security interests held by the Supplier exceeds the total value of all secured claims by more than 10%, the Supplier shall, at the request of the Purchaser, release a corresponding part of those security interests; the Supplier is entitled to choose which security interests to release in such a case.

 

2. For the duration of the retention of title, the Purchaser is not permitted to pledge the goods or assign them as security, and resale thereof is permitted only to resellers in the ordinary course of their business and only on the condition that the reseller receives payment from its customer or subjects such resale to the condition that the customer acquires title to the goods in question only when such customer has fulfilled its payment obligations.

 

3. If the Purchaser resells goods subject to retention of title, the Purchaser assigns to the Supplier by way of security, already at this time, the Purchaser's future claims against its customers arising from such resale, along with all ancillary rights ? including claims, if any, to payment of outstanding balances ? without any further separate declarations to that effect being necessary. If the goods subject to retention of title are sold together with other items without an individual price having been agreed for the goods subject to retention of title, the Purchaser assigns to the Supplier that portion of the overall claim to payment of the price that corresponds to the price of the goods subject to retention of title as billed by the Supplier.

 

4. a) The Purchaser is permitted to process the goods subject to retention of title or to combine or connect them with other objects. Such processing shall take place on the Supplier's account. The Supplier shall hold the new item thus created in safekeeping and treat it with the care of a proper business entity. The new item is deemed goods subject to retention of title.

b) The Supplier and the Purchaser agree, already at this time, that in the event that the goods are connected or combined with other items that do not belong to the Supplier, the Supplier shall, under all circumstances, acquire co-ownership of the new item in proportion to the ratio of the value of the goods subject to retention of title that have been connected or combined with other items to the value of the other items in question at the time of the connection or combination thereof. The new item thus created is, in this proportion, deemed goods subject to retention of title.

c) The provision concerning assignment of claims pursuant to No. 3 also applies to such new item. Such assignment applies, however, only up to the amount that corresponds to the value, as billed by the Supplier, of the goods subject to retention of title that have been processed, connected, or combined with other items.

d) If the Purchaser connects the goods subject to retention of title to plots of real estate or to movable property, the Purchaser also assigns to the Supplier by way of security, without any further separate declarations to that effect being necessary, the claims to which the Purchaser is entitled as remuneration for the connection of such items, with all ancillary rights, in proportion to the ratio of the value of the goods subject to retention of title that have been connected with other items to the value of the other items in question at the time of the connection thereof.

 

5) The Purchaser is authorized, until revocation of such authorization, to collect upon claims arising from the resale that have been assigned. In the event that there is good cause to do so, particularly in the case of default in payment, suspension of payments, initiation of insolvency proceedings, protest of a bill of exchange, or well-founded reason to suspect excess debt or impending insolvency on the part of the Purchaser, the Supplier is entitled to revoke the Purchaser's authorization for such collection. The Supplier may moreover, after issuing a prior warning of its intent to do so and in compliance with an appropriate time limit, disclose the assignment by way of security, avail itself of the claims assigned to it, and demand that the Purchaser disclose the assignment by way of security to the customer.

 

6. In the event of seizure or confiscation of the goods subject to retention of title or any other dispositions or interventions by third parties, the Purchaser must inform the Supplier without undue delay. In the event that a legitimate interest is asserted, the Purchaser must provide the Supplier with the information necessary for the assertion of its rights against the customer and must turn over to the Supplier the necessary documents.

 

7. In the event of a breach of obligation by the Purchaser, in particular where the latter defaults in payment, the Supplier shall be entitled, after the unsuccessful expiration of a reasonable remedy period afforded to the Purchaser, to take back the goods subject to retention of title and to rescind the contract; this shall not affect any statutory provisions relating to when remedy periods are not required. The Purchaser shall be required to return the goods. The Supplier's taking back of the goods or assertion of its reserved title or seizure of the goods subject to retention of title does not constitute rescission of the contract unless the Supplier has expressly declared such rescission.